Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 438 (KAR)

NEELASING SHARNAPPA HAJERI v. STATE OF KARNATAKA

2000-06-28

B.PADMARAJ, S.R.BANNURMATH

body2000
PADMARAJ, J. ( 1 ) HEARD the arguments of the learned Counsel for the appellant and the learned State Public Prosecutor for the respondent/state and carefully perused the case papers in detail with their assistance. ( 2 ) THE sole accused is the appellant herein. He was tried for having committed the offences under Sections 302 and 498-A of the Indian penal Code, on the allegation that at about 10. 00 p. m. of 2. 11. 1995, in the house situated in a locality called Rajajinagar in Bijapur Town, wherein the accused and his wife Smt. Prema were residing together as tenant of one Chandusing Hajeri, he poured kerosene and set his wife Smt. Prema on fire while the said Smt. Prema was sleeping on a mattress inside the house, as a result of which she sustained burn injuries on her person and ultimately succumbed to those injuries while undergoing treatment in the hospital at Belgaum on 6. 11. 1995 and that, further, prior to that incident, the deceased Smt. Prema was being tortured both mentally and physically, by the accused by coercing her to bring cash and gold from her parents. ( 3 ) THE accused had anger towards his wife Smt. Prema for not bringing the cash and the gold from her parents as has been demanded by him. The learned trial Judge convicted the accused for the offence punishable under Section 302 IPC and passed the sentence of life imprisonment against him. The accused has however been acquitted of the offence under Section 498-A IPC. Aggrieved thereby, the convicted accused has preferred this appeal challenging his conviction under Section 302 IPC as well as the sentence passed against him by the trial Court for the offence. ( 4 ) THE facts of the case as unfolded at the trial are: The accused neelasing is the husband of the deceased, Smt. Prema, who died within a short period of her marriage in the house of her husband, viz, the accused. Their marriage was soleminised on 5. 6. 1995, She died of burn injuries on 6. 11. 1995 while undergoing treatment in the hospital at Belgaum. The deceased, Smt. Prema, and her husband, viz. , the accused, during the relevant time of this incident had been residing together as a tenant in one of the tenements belonging to p. W. 5 Chandusing Hajeri. 6. 1995, She died of burn injuries on 6. 11. 1995 while undergoing treatment in the hospital at Belgaum. The deceased, Smt. Prema, and her husband, viz. , the accused, during the relevant time of this incident had been residing together as a tenant in one of the tenements belonging to p. W. 5 Chandusing Hajeri. The deceased and the accused were the only inmates in the said house. In the other two adjoining two tenements belonging to P. W. 5 Chandusingh Hajeri, one Aravind P. W. 13 and in the other one Biradar were residing. P. W. 5 is also a cobrother of the accused. In fact, it is stated that it is P. W. 5 who was mainly responsible for the marriage of the deceased with the accused. On that relevant night at about 10. 00 o'clock or so, when p. W. 5 had come to Rajajinagar in connection with the construction of has house, he saw some persons gather in front of the tenements of the accused and accordingly, he went there to see what it was. On reaching there, he saw the deceased, Smt. Prema, having sustained burn injuries sitting there. The accused was also there. ( 5 ) ON his asking the deceased as to how it had happened, he was told by the deceased that her husband, viz. , the accused, had set her on fire. Thereafter, P. W. 5 Chandusing secured an autorickshaw and sent the injured Prema for treatment to the hospital along with the brother and the sister-in-law of the accused. P. W. 6 Tuljaram hajeri is the brother of the accused, who had accompanied the deceased in the autorickshaw to the hospital. It is stated that on their way to the hospital, they also took along with them P. W. 4 suneetha form her house. The said P. W. 4 Suneetha is the sister of the deceased and wife of P. W. 5. In the hospital at Bijapur, the deceased Prema was examined by the Doctor P. W. 14 at about 11. 20 pm on 2. 11. 1995. The deceased was accompanied by RW. 6 tuljaram Hajeri, when the Doctor P. W. 14 saw the injured. He admitted the injured for treatment as inpatient in the hospital at bijapur. On examination, the Doctor P. W. 14 found burn injuries on the face, back, hands and legs. 20 pm on 2. 11. 1995. The deceased was accompanied by RW. 6 tuljaram Hajeri, when the Doctor P. W. 14 saw the injured. He admitted the injured for treatment as inpatient in the hospital at bijapur. On examination, the Doctor P. W. 14 found burn injuries on the face, back, hands and legs. She had sutianed about 82 per cent burns. The smell of kerosene was emitting from her person. At that time, she was found to be quite conscious and was able to speak. On the same night at about 1. 30 a. m. her dying declaration as per Exhibit P. 8 came to be recorded in the hospital at Bijapur by the Tahsildar P. W. 10 in the presence of the Doctor P. W. 14. P. W. 10 is the Tahsildar who recorded the dying declaration of the deceased prema in the hospital itself as per Exhibit P. 8. On the night of 3. 11. 1995 pursuant to a requisition received by the Tahsildar P. W. 10 from the concerned police, he had visited the hospital around 1. 00 am and saw the injured Prema who was then undergoing treatment in the hospital at Bijapur. At that time the Doctor P. W. 14 was also there. Then the Talsildar P. W. 10 spoke to the deceased. ( 6 ) SHE was found to be in a position to speak. He enquired her name, etc, and the injured Prema gave satisfactory replies to all his queries. When he asked the injured as to how she had sustained the burn injuries to her person, he was told by her that while she was sleeping in the house, her husband viz. , the accused, poured kerosene on her person and set her on fire. She told him that, when her husband viz. the accused had come to her parental house during 'deepavali' festival, he was not given any gold ornament by her parents and that angered by that, he did the said act. The Tahsildar P. W. 10 recorded the dying declaration of the deceased Prema in the presence of the Doctor RW. 14. He recorded the voluntary statement of the deceased. The same was recorded in the form of question and-answer. ( 7 ) THE deceased gave answers cleverly and after understanding the same. The Tahsildar P. W. 10 recorded the dying declaration of the deceased Prema in the presence of the Doctor RW. 14. He recorded the voluntary statement of the deceased. The same was recorded in the form of question and-answer. ( 7 ) THE deceased gave answers cleverly and after understanding the same. As the injured Prema had sustained burns on her hand, she was unable to subscribe either her signature or l. T. M. to the statement so recorded. Hence he did not obtain the signature or L. T. M. of the injured on her statement Exhibit P. 8, which was recorded in the presence of the Doctor P. W. 14. The Doctor p. W. 14 has signed the said statement which was recorded in his presence by the Tahsildar in the hospital. The Tahsildar P. W. 10 had also subscribed his signature to it. The PSI P. W. 19 had visited the hospital on receipt of the MLC intimation on the night of 3. 11. 1995 and saw the injured in the hospital. The injured was in a position to speak. The Doctor was also present at that time. He had also sent requisition to the Tahsildar for recording the dying declaration of the deceased. Accordingly, the Tahsildar P. W. 10 had come to the hospital and recorded the dying declaration of the deceased in the presence of the Doctor. After the Tahsildar recorded the statement of the injured, it is said that the PSI P. W. 19 had also recorded the statement of the injured as per Exhibit P. 17 on the basis of which he registered the case and took up investigation. He had also visited the scene of the incident and conducted observation mahazar as per Exhibit P. 7. The scene of the incident was situated in the house where the accused and the deceased were living together as tenant, where the PSI P. W. 19 found a partially burnt mat, partially burnt clothe of the accused. Can containing kerosene, a match box and a chimni (lamp ). The blouse pieces of the deceased were also found lying scattered there. They are as per M. Os. 1 to 7. He also recorded the statements of some of the material witnesses. The PSI P. W. 19 did not however find any traces or symptoms of stove burst at the spot. The blouse pieces of the deceased were also found lying scattered there. They are as per M. Os. 1 to 7. He also recorded the statements of some of the material witnesses. The PSI P. W. 19 did not however find any traces or symptoms of stove burst at the spot. ( 8 ) HE did not even find the presence of any stove at the scene of the incident. The further investigation of the case was taken over by the deputy Superintendent of Police, P. W. 18, and after completion of the investigation, he submitted the charge sheet against the accused. During the course of investigation, he arrested the accused on 5. 11. 1995. Further on 11. 11. 1995 he had received the intimation regarding the death of the deceased due to burns while undergoing treatment in the hospital at Belgaum. The report of the Chemical examiner received from the Forer. sic Science Laboratory indicates that the sample found in the tin or can contained kerosene and in all other articles which were sent for chemical examination, presence of kerosene was detected. P. Ws. 1 and 2 are the parents of the deceased and P. W. 4 is the sister of the deceased. P. W. 5 is the husband of P. W. 4 and, as we have already noticed, it was he who was stated to be responsible for the performance of the marriage of the deceased with the accused. Even the tenements in which the deceased and the accused were living together as tenant belonged to P. W. 5. The parents of the deceased are residents of Bailhongal in Belgaum district, while the accused is a resident of Bijapur. It appears that the deceased Prema, who had visited the house of her parents a few days earlier to the incident, had returned to the house of her husband, viz. , the accused only a day prior to the incident. The deceased came to the house of the accused and joined him on wednesday and the incident in question took place on Thursday in the house of the accused duing the night, where they were staying together as tenant. , the accused only a day prior to the incident. The deceased came to the house of the accused and joined him on wednesday and the incident in question took place on Thursday in the house of the accused duing the night, where they were staying together as tenant. It has come in the evidence of P. W. 6 Tuljaram hajeri, the brother of the accused, that the accused and the deceased were taking their food in the house of P. W. 6 situated in Gowdara oni and during night times they used to go to their tenement in rajajinagar to sleep there during the night. It appears that there was no separate room in the house of P. W. 6 and as such the accused had taken on rent the tenement belonging to P. W. 5 to sleep there during night times along with his wife. We have already stated that P. W. 6 is none other than the brother of the accused. Deceased prema left her parental house on Wednesday and on the very next day, ie. , on Thursday, the parents of the deceased received a phone message from P. W. 5 that the accused had set fire to the deceased and she has been admitted to the hospital for treatment. Thereupon the parents of the deceased visited the hospital at Bijapur on Friday and saw the deceased Prema who had sustained burn injuires and was undergoing treatment in the hospital at Bijapur. They were told by the deceased in the hospital that the accused had quarrelled with her over the issue of gold and poured kerosene and set fire to her by lighting the match stick and that it they had given the gold as demanded by the accused, this could not have happened. Thereafter, they shifted the deceased for better treatment to a major hospital at belgaum. After the deceased was shifted to the hospital at Belgaum, she was alive for two days. On the third day, i. e. , on Monday, she succumbed to her injuries while undergoing treatment in the hospital at Belgaum. ( 9 ) THE Doctor P. W. 12 conducted Post Mortem examination on the dead body of the deceased on 6. 11. 1995 at about 4. 45 pm and has issued Post Mortem Repot as per Exhibit P. 12. ( 9 ) THE Doctor P. W. 12 conducted Post Mortem examination on the dead body of the deceased on 6. 11. 1995 at about 4. 45 pm and has issued Post Mortem Repot as per Exhibit P. 12. On examination of the dead body of the deceased, she found that except forehead, right upper limbs, right heel and left foot, other part of the body was involved of superficial deep burns of about 85 per cent. According to the Doctor P. W. 12 the cause of death of the deceased was due to septicaemia as a result of 85 per cent superficial deep burns. P. W. 3 is a panch for the inquest proceedings held on the dead body of the deceased as per Exhibit P. 5. P. W. 4 is the sister of the deceased and wife of P. W. 5, who had accompanied the deceased at the relevant night to the hospital in the autorickshaw along with P. W. 6 and his wife. She was taken from her house by P. W. 6. In the hospital, when her sister requested for water, she says that she gave water and, when enquired by her as to why she did like that, she was told by the deceased that why she should do that and it is the accused, while she was sleeping, poured kerosene on her and set her on fire. Thus, according to P. W. 4, she was told by the deceased in the hospital that it is the accused who did this act. P. W. 5 is the husband of P. W. 4 and son-in-law of P. Ws. 1 and 2. According to him, he is the first among the relatives to see the deceased and was told by the deceased that the accused had set her on fire. He also speaks to the presence of the accused at that time and further it is he who is said to have secured the autorickshaw and send the deceased to the hospital for treatment along with P. W. 6. P. W. 7 - Ramsingh Ajeri is a neighbour of the accused and the deceased. His house was adjoining to the house of the accused and on that relevant night, at about 10. P. W. 7 - Ramsingh Ajeri is a neighbour of the accused and the deceased. His house was adjoining to the house of the accused and on that relevant night, at about 10. 30 p. m or 11 pm, while he was in his house, he heard screams or cires from the adjoining house of the accused and went there to see what it was. On reaching there, he saw the deceased in flames and he immediately put a blanket over her to put off the flames. The deceased had sustained burn injuries on her person and the accused who was very much there at that time, was found saying that he did not do anything to the deceased, i. e. to say, he is not responsible for what had happened to the deceased on that night in the house. He has further stated that he did not talk to the deceased. Then, he says that the deceased was removed to the hospital for treatment in an autorickshaw. The prosecution has however treated this witness PW 7 as hostile on the ground that he did not support the case for the prosecution in its entirety. PW-8 Shivappa Kolkar who is a panch for the spot panchnama ex. P. 7, had turned hostile wholesale. He did not support the case for the prosecution to any extent. PW. 10 V. M. Agnihotri is the Tahsildar who had recorded the dying declaration of the deceased as per Ex. P. 8 is the hospital at bijapur in the presence of the Dr. PW. 14. It was recorded around 1. 30 am on the night of 3. 11. 95 after a requisition was received from the concerned Police. P. W. 11 N. M. Shirhatti, is the Talsildar of Belgaum and while the deceased was undergoing treatment in the hospital at Belgaum, he was summoned on 4. 11. 95 to record the dying declaration of the deceased, but he couldn't record the same as the deceased was found to be unconscious and not in a position to give her statement. He however, held the inquest proceedings on the dead body of the deceased after her death as per the inquest report EX. 11 and during the inquest proceedings, he recorded the statement of the father of the deceased and others. He however, held the inquest proceedings on the dead body of the deceased after her death as per the inquest report EX. 11 and during the inquest proceedings, he recorded the statement of the father of the deceased and others. P. W. 12, is the Doctor who conducted the PM examination on the dead body of the deceased and has issued the Post-mortem report as per Ex. P. 12. PW-13, Arvind is another neighbour of the accused and the deceased. He says that the accused was not present at that relevant time in his house. PW. 14 is the Doctor who had admitted the injured to the hospital at Bijapur and in whose presence, the statement of the deceased was obtained or recorded by the Tahsildar PW-10. PW. 15 is another Doctor who was on Call Duty on the night of 2. 11. 95 in the hospital at Bijapur and he had examined the deceasedon 3. 11. 95 at 12. 15 a. m for her injuries. At that time, he found that the deceased was able to talk arid was conscious. He has noted this fact in the case sheet Ex. P. 13. According to him, the deceased was quite conscious till she left the hospital at Bijapur. PWs 16 and 17 are the Police Officers of Belgaum. PWs 18 and 19 are the two Investigating Officers. The accused when examined under Section 313 Cr. P. C, has stated that at the time of this incident, he was not at all present in the house and he was at the shop. He did not either examine himself or any other witness on his behalf to substantiate this fact. He has admitted that after his marriage with the deceased, he was living with her in a "koli" at Rajajinagar in Bijapur town and that they both had visited the house of PW-1 during panchaml festival. With regard to the deceased sustaining burn injuries due to stove burst as spoken to by PW-6 (his own brother), the accused would say that this is what the people were talking about. It would be of some relevance to note here itself that the accused in his statement under Section 313 Cr. With regard to the deceased sustaining burn injuries due to stove burst as spoken to by PW-6 (his own brother), the accused would say that this is what the people were talking about. It would be of some relevance to note here itself that the accused in his statement under Section 313 Cr. P. C. , has not specifically stated that the deceased had sustained burn injuries on her person due to stove burst and when he has been specifically asked about the same, as being spoken to or stated by his brother PW-6, he would say that it is the people who were so talking or saying like that. ( 10 ) THE Trial Court convicted the accused on the basis of the dying declaration made by the deceased. ( 11 ) THE contention of the appellant in this appeal is that the dying declarations made by the deceased do not deserve to be accepted and in any case, cannot be made the sole basis of conviction of the appellant. While elaborating this submission, the learned Counsel for the appellant has vehemently contended that the dying declaration ex. P. 8 recorded by the Tahsildar PW-10 did not contain either the ltm or the signature of the deceased, whereas the statement of the deceased alleged to have been recorded by the PSI PW-19 contains the LTM of the deceased, which would create a strong doubt on both the dying declarations recorded one by PW-10 and another by pw-19. He further contended that there is no certificate by the Doctor either on Ex. P. 8 or on Ex. P. 17 regarding the condition of the deceased at the time of recording of said dying declarations by PWs 10 and PW-19 and hence, there is no guarantee that the deceased was in a position to make a statement and hence, they cannot be relied upon. He also contended that the accused was not at all present at the time of this incident in his house and on the other hand, he was found in his shop at that item. In this contest, learned counsel drew our attention to the evidence on record showing the working hours of the accused which were extending upon 11 pm in the night. In this contest, learned counsel drew our attention to the evidence on record showing the working hours of the accused which were extending upon 11 pm in the night. He also sought to contend that after the incident in question took place, he was informed about this incident and accordingly, he had come to the hospital and there, he learnt from the people that his wife had sustained burn injuries due to stove burst. He also contended that though in the dying declaration Ex. P. 17 recorded by the I. O. , the deceased made some references to an assault committed on her in the presence of PW-4, but strangely, PW-4 doesnot say anything regarding the assault committed on the deceased by the accused as has been mentioned in Ex. P. 17. He therefore contended that the dying declaration Ex. P. 17 recorded by pw 19 cannot be considered to be genuine. Coming to the evidence of PW-5, he contended that the whole of his evidence before the court is nothing but falsehood and that further his evidence suffers from certain serious omissions. While referring to the evidence of pw. 6, he contended that it is he who took the injured to the hospital along with PW-4 and his evidence would clearly indicate that it was a case of accidental death. He also contended that the presence of the accused as spoken to by the prosecution witnesses is nothing but the omission and hence, it cannot be relied upon. On the other hand, he contended that the evidence of PW-13 would reveal that the accused was not at ail present in the house at the relevant time of this incident. Learned Counsel for the appellant has relied upon the following decisions in support of his submissions: 1. 1999 Criminal Law Journal P. 4321: 2. 2000 Criminal Law Journal P. 1167: while placing reliance upon these two decisions, he contended that the dying declaration relied upon by the prosecution has not been recorded in the manner as it ought to have been recorded and that further, the deceased was not at all in a position to give her statement at that time. He contended that in the absence of a certificate by the Doctor with regard to the condition of the deceased on the dying declaration Ex. P. 8, the same cannot be taken note of. He contended that in the absence of a certificate by the Doctor with regard to the condition of the deceased on the dying declaration Ex. P. 8, the same cannot be taken note of. He contended that both the dying declarations Ex. P. 8 and P. 17 are not at all genuine and they have been concocted for the purpose of this case by the Police. He also contended that there is no appeal filed by the State against the order of acquittal for the offence under section 498a of IPC and hence, motive is not established against the accused. He concluded his argument by saying that the prosecution has failed to prove the case beyond reasonable doubt and hence, the appellant/accused may be acquitted of the offence under Section 302 IPC. ( 12 ) AS against this, the learned SPP while supporting the findings recorded by the Trial Court, has contended that the relevant entries made in the case sheet Ex. P. 13 by the" Doctor corroborates and lend ample support to the dying declaration Ex. P8. He contended that merely because there is no endorsement by the Doctor on the dying declaration Ex. P. 8 with regard to the condition of the injured, that by itself, will not be sufficient to throw away the dying declaration recorded by the Tahsildar in the presence of the Doctor. He also contended that though the dying declaration Ex. P. 8 has been recorded by PW. 10 in a cyclostyled form, the answers given by the deceased were duly recorded by the Tahsildar PW. 10 in his own hand after satisfying himself about the condition of the deceased and hence, the dying declaration Ex. P. 8 recorded by the Tahsildar pw-10 in the presence of the Doctor P. W. 14 cannot be ignored. He also contended that merely because some of the unwanted portions in the proforma have not been scored by the Tahsildar, that by itself will not create any dent in the evidence of PWs 10 and 14. He further contended that the entries made in the case sheet Ex. P. 13 coupled with the dying declaration Ex. P. 8 fully satisfies the necessary requirements to place reliance upon the dying declarations. He further contended that the entries made in the case sheet Ex. P. 13 coupled with the dying declaration Ex. P. 8 fully satisfies the necessary requirements to place reliance upon the dying declarations. He therefore contended that the dying declaration recorded by the tahsildar in the presence of the Doctor is quite capable of being relied upon and hence the Trial Court was justified in placing reliance upon such dying declaration. He also contended that the false plea of alibi taken by the accused is an additional circumstance to establish the case of the prosecution. He also contended that the evidence of PW-4 does not suffer from any such infirmity or omission and merely because she has stated some thing more with regard to the dying declaration made by the deceased to her, it is not an improvement and hence, the oral dying declaration made before PW 4 is clearly acceptable in law. He further contended that the fact that the deceased made a dying declaration before PW-4 is not an improvement and on the other hand, what was sought to be added in her evidence before the Court is that the deceased asked for water and while giving water to the deceased, he had asked her as to why she did like that and to which the deceased told that she did not do that on her own and it is the accused who did it. He contended that the relevant entries made in Ex. P. 13 case sheet, is to be read along with the dying declaration Ex. P. 8 recorded by the Tahsildar in the presence of the Doctor PW. 14 and if it is so considered, it clearly goes to show that the dying declaration Ex. P. 8 is a genuine document and merely because there is no certificate of the Doctor regarding the condition of the deceased on Ex. P. 8 itself, it does not vitiate the dying declaration Ex. P. 8. He contended that the dying declaration ex. P. 8 coupled with the entries in the case sheet Ex. P. 13 establishes the genuineness of the dying declaration. He therefore contended that there is absolutely no merit in the appeal filed by the appellant and hence, it is liable to be dismissed. ( 13 ) ON the basis of the post-mortem conducted on the dead body of the deceased by the Dr. PW. P. 13 establishes the genuineness of the dying declaration. He therefore contended that there is absolutely no merit in the appeal filed by the appellant and hence, it is liable to be dismissed. ( 13 ) ON the basis of the post-mortem conducted on the dead body of the deceased by the Dr. PW. 12 and the PM report issued in respect thereof as per Ex. P. 12 coupled with the other circumstances appearing in the case, the conclusion is irresistible that the deceased had died on account of the burn injuries sustained by her in their house at Bijapur. But the defence would however contend that it was an accidental one and the prosecution would say that it was an intentional act on the part of the accused. Therefore, the moot question is whether it was an accidental death as suggested by the defence or it was an intentional act committed by the accused as contended by the prosecution and accepted by the trial Court. But the fact that the death of the deceased was due to the burn injuries sustained by her in the house of her husband is not in serious dispute. ( 14 ) THE dying declaration Ex. P. 8 was recorded by the Tahsildar Sri v. M. Agnihotri PW-10, who was then working as a Tahsildar at bijapur, He has deposed that on 3. 11. 95, at about 1 a. m. , pursuant to a requisition received from the concerned Police, he had visited the District Hospital at Bijapur and saw the deceased, who was admitted into the hospital for treatment with burn injuries. When he went there, the Doctor incharge was also present there. He has stated that the PSI was standing outside the hospital. He spoke to the injured and found her to be in a position to speak or to talk. Then, he put several questions to the deceased, which were satisfactorily answered by her. He then asked her as to how she had sustained the injuries. To which, the deceased replied that while she was sleeping in the house, her husband poured the kerosene on her person and set her on fire. She further stated to him that her husband was angered because he was not given gold during his visit to the house of her parents on the eve of Deepavali festival. To which, the deceased replied that while she was sleeping in the house, her husband poured the kerosene on her person and set her on fire. She further stated to him that her husband was angered because he was not given gold during his visit to the house of her parents on the eve of Deepavali festival. He recorded the dying declaration of the deceased in the presence of the Doctor PW-14. He has further stated that he recorded the dying declaration in the form of questions and answers. The deceased was quite conscious and with full knowledge of her senses, she gave answers to his questions. He has further stated that since the injured had sustained injuries on her hand, he could not either obtain her signature or LTM on the dying declaration so recorded by him in the hospital in the presence of the Doctor. The dying declaration Ex. P. 8 bears his signature and its contents are true and correct. Under the cross-examination, the defence has got marked through him, the requisition sent by the concerned Police which is as per Ex. D. 4. He has further stated in the cross-examination that ex. P. 8 is a cyclostyled form which he had kept in his house. He has denied the suggestion that he had obtained the signature of the doctor PW-14 subsequently to the dying declaration Ex. P. 8. He has also denied the suggestion that the deceased was not in a position to give her statement as she had sustained burn injuries in the throat. It has been further elicited in the cross-examination of this witness pw-10 by the defence that he questioned the deceased for about 10 minutes and the deceased gave her answers which he himself wrote. This particular answer obtained by the defence in the cross- examination would confirm the fact that the Tahsildar PW-10 recorded the statement of the deceased in the question and answer form and wrote down the answers in his own hand. ( 15 ) IT is no doubt true that through this PW-10, the defence has got marked Ex. D. 4, a requisition received from the Police, which says that the deceased had sustained burns due to stove burst while cooking food in the house. ( 15 ) IT is no doubt true that through this PW-10, the defence has got marked Ex. D. 4, a requisition received from the Police, which says that the deceased had sustained burns due to stove burst while cooking food in the house. But neither the Tahsildar PW-10 speaks to these contents nor the defence had examined any witness nor the defence had made any attempt or efforts to secure the person who had sent such a requisition to the Tahsildar PW-10 to speak to the contents of this requisition Ex. D4. It may be that the prosecution may not be interested in examining the witness who had sent such a requisition but it is always open to the defence to have requested the Court to secure such witness and could have proved the contents thereof through the said witness. The said contents of the requisitions ex. D4 have not been proved with regard to the basis or the source for such information. Further, it was not necessary at all to mention such facts by the Police in the requisition sent to the Tahsildar PW- 10 for recording the dying declaration. It was not required to be mentioned therein by the Police. Therefore, it is superfluous for the police to mention that fact in the requisition sent to the Tahsildar for the purpose of recording of the dying declaration of the injured. Therefore, in our view, no special significance can be attached to such contents of the requisition Ex. D. 4. The same has been rightly rejected by the Trial Court and the reasons given by the Trial Court to reject it are sound and proper. ( 16 ) IT appears from the dying declaration Ex. P. 8 that while the deceased was sleeping in their house in Rajajinagar at Bijapur Town, the accused poured kerosene on her and set her on fire. The evidence of the Dr. PW-14 would reveal that the deceased when brought to the hospital was in a position to talk and she was quite conscious. On the same night, at about 1. 30 a. m, her dying. declaration as per Ex. P. 8 was recorded in his presence by the tahsildar PW-10 and it bears his signature. The evidence of the dr. PW-14 substantially corroborates the evidence of Pw-10 with respect to the recording of the dying declaration of the deceased as per Ex. On the same night, at about 1. 30 a. m, her dying. declaration as per Ex. P. 8 was recorded in his presence by the tahsildar PW-10 and it bears his signature. The evidence of the dr. PW-14 substantially corroborates the evidence of Pw-10 with respect to the recording of the dying declaration of the deceased as per Ex. P. 8 in the hospital at Bijapur. Under the cross-examination, the Dr. PW-14 has stated that when the injured was brought to the hospital by PW-6, he spoke to her and both her attendant PW-6 and the deceased stated that the injured had sustained burns due to stove burst in the house. It would be of some relevance to note here itself that the alleged statement according to the Dr PW-14 was made both by the attendant of the deceased viz PW-6 and the deceased. PW-6 is none other than the brother of the accused. The evidence of the Dr. PW-14 would reveal that when the injured was brought to him for her examination and treatment, PW-6 was accompanying her. It is also true that PW-6 has deposed before the court that when enquired by him, he was told by the deceased that while cooking food in the house, the oil spilled over her and the stove got reversed. He would again say that the deceased had told him that when she tried to light the stove, the oil spilled and when she tried to burn the match stick, it caught fire. It is however, pertinent to note that this very witness PW-6 has stated in his evidence that the accused and the deceased were both taking their food in his house situated in "gowdara Oni" and as there was no separate room in his house, they both used to go and sleep during the night in the room, or Kohli which was taken on rent in Rajajinagar from PW-5. When according to PW-6 himself, both the accused and the deceased were taking their food in his house situated in "gowdara Oni" and were sleeping during the night time in their one room apartment situated in Rajajinagar at Bijapur, the question of the deceased cooking food in their house at that hour of the night will not arise and that further, no such stove was either seen or recovered from the scene of the incident by the Investigating Officer. The circumstances as indicated above would falsify the theory of the defence sought to be spoken through PW-6 that the deceased had sustained burn injuries due to stove burst. It is further ruled out by the evidence of the Dr PW-14 who says that he did not find any such indication when he examined the injured. Even the accused did not say this. On the other hand, what he says is that, he had only learnt from the people. It would now be useful to refer to the evidence of PW-5 who is the first among the relatives to come to the spot. He has deposed that when he went there, he saw the accused and the deceased who had sustained burn injuries on her person and on his enquiry, he was told by the deceased that the accused had set her on fire. Then, he says that he secured an autorickshaw and sent the injured to the hospital in the autorickshaw along with PW-6 and his wife and on the way, they also picked up his wife PW-4. One of the neighbours of the accused and the deceased viz. PW-7 also speak to the presence of the accused at that time. He also says that the accused was saying that he is not responsible for the same. It is nodoubt true that bcth PW-5 and pw-7 have suffered certain omissions in their evidence. That by itself will not discredit their evidence in Court especially when it has come in the evidence that his wife PW-4 had accompanied the deceased to the hospital and that PW-7 happens to be a neighbour who came to the spot on hearing the cries. Therefore, the presence of PW-5 and PW-7 as spoken to by them, cannot be considered to be unnatural on the facts and circumstances of the case. ( 17 ) THE above circumstances would clearly indicate that what PW-6 has deposed before the Court regarding the statement of the deceased is a blatant lie and has been made with intent to save his brother viz the accused. Further, when the deceased was taken by pw-6 to the Dr. PW-14, she was not a free person then. ( 17 ) THE above circumstances would clearly indicate that what PW-6 has deposed before the Court regarding the statement of the deceased is a blatant lie and has been made with intent to save his brother viz the accused. Further, when the deceased was taken by pw-6 to the Dr. PW-14, she was not a free person then. Therefore, the evidence of PW-6 that the deceased had told him that she had sustained injuries due to stove burst cannot be believed and even otherwise, it can be said to be a circumstance which must have compelled the deceased to say so. The reasons given by the Trial court for not considering the evidence of PW-6 in this regard as not convincing and the statement alleged to have been made to the doctor PW-14 by both the deceased and her attendant PW-6 could not be voluntary and true or quite convincing and we see no reason to differ from them. Therefore, the dying declarations made by the deceased before PWs 1,2, 4 and 5 and the dying declaration recorded by the Tahsildar PW-10 in the presence of the Dr. PW-14 at the hospital in Bijapur cannot be regarded as untrue merely because it is contrary to the statement of PW-6 and the history recorded by the Dr. PW-14. What the deceased had stated before the above witnesses and in her statement Ex. P. 8 recorded by PW10 appears to be more probable, natural and a true version of the incident. If the deceased had really sustained injuries due to stove burst, the stove must have been present at the spot. But the evidence of the Investigating Officer would show that no such stove was seen at the place of incident. There is absolutely no cross-examination on this point. Further, when according to PW-6 himself, the accused and the deceased were both taking food in his house and were going to their house situated in Rajajinagar only to sleep there during the night time, the possibility of the deceased sustaining injuries due to stove burst appears to be too remote and is not convincing. ( 18 ) IT would be of some relevance to note here itself that even according to PW-6, it is only after taking food in his house, they were both going to their house in Rajajinagar to sleep there during the night time. ( 18 ) IT would be of some relevance to note here itself that even according to PW-6, it is only after taking food in his house, they were both going to their house in Rajajinagar to sleep there during the night time. In that event, the question of the deceased cooking food in their house in Rajajinagar with the help of stove does not arise and that further, there is no possibility of her being alone in the house. This would also probabilise the presence of the accused in the house at the time of this incident. Further, there was no reason for the tahsildar PW-10 to depose falsely against the accused, if really, the deceased did not make such statement before him. As regards the condition of the deceased, he has clearly stated that the deceased was found to be fit to make a statement and the same was recorded in the presence of the Dr. PW. 14. Merely because the statement of the deceased was taken on recorded in a cyclostyled form, that by itself, will not discredit the evidence of the two independent and responsible persons viz. the Tahsildar PW-10 and the Dr. PW-14. We fail to appreciate how this circumstance or the circumstance that the PSI who recorded the statement of the deceased contains the LTM of the deceased would create any doubt regarding the evidence of the Tahsildar PW-10 and the Dr. PW-14 and affect the genuineness of the dying declaration Ex. P. 8 recorded by the Tahsildar pw-10 in the presence of the Dr. PW-14. Both PW-10 and PW-14 were independent witnesses who were holding responsible positions and have no reason to do anything which was not proper or correct. ( 19 ) INTACT, as rightly contended by the learned S. P. P. , the contemporaneous entries made in the case sheet Ex. P. 13 would also lend support to their evidence in Court. We do not find anything in their cross-examination as would create doubt regarding the truthfulness of what these two witnesses PWs 10 and PW -14 have deposed. Further, their evidence would receive substantial support from the oral dying declaration made by the deceased to PWs 1,2,4, and 5. P. 13 would also lend support to their evidence in Court. We do not find anything in their cross-examination as would create doubt regarding the truthfulness of what these two witnesses PWs 10 and PW -14 have deposed. Further, their evidence would receive substantial support from the oral dying declaration made by the deceased to PWs 1,2,4, and 5. We are therefore, of the view that the Trial Court was justified in placing reliance on such dying declaration which was voluntarily made by the deceased and that it was correctly and truly recorded, by PWs 10 in the presence of the Dr. PW-14. In view of the evidence of the Dr. PW-14 in whose presence the dying declaration was recorded by the Tahsildar PW-10 without inordinate delay and in view of the evidence of PW-10 himself indicating that the deceased was fully conscious and no reason having been ascribed to why the tahsildar PW-10 would try to help the prosecution, we see no justification as to why. the dying declaration Ex. P. 8 should not be relied upon. It is no doubt true the learned Counsel for the appellant while placing reliance upon the two decisions reported in the case of PAPARAMBAKA ROSAMMA and OTHERS vs STATE OF ANDHRA pradesh and in the case of STATE OF KARNATAKA vs ASLAM @ ASLAM PASHA sought to contend that failure on the part of the doctor incharge to certify abogt capacity of patient to make endorsement on the dying declaration Ex. P. 8, would affect the genuineness of the dying declaration recorded by PW-10. We have carefully perused these two decisions relied upon by the learned counsel for the appellant. There cannot be any quarrel with the principles enunciated in these two decisions. But the difficulty is about the application of these decisions to the facts and circumstances of this case. In the decision relied upon by the learned Counsel for the appellant in 1999 Criminal Law Journal Page 4321, it was found that the circumstances of the case are pointer to the fact that the deceased was disappointed and frustrated in her marital life and it is under these circumstances the dying declaration wherein all the three accused alleged to have committed the crime was not accepted. With regard to the certification or the endorsement of the Doctor on the dying declaration, it has to be mentioned that the absence of the Doctor's endorsement on the dying declaration as to mental fitness of the deceased to make the declaration is only a rule of prudence and ultimate test is whether dying declaration is voluntary and truthful. If a decision is required on this point, we may refer to a latest decision of the Hon'ble Supreme Court comprising of three judge Bench, reported in the case of KOLI CHUNILAL SAVJI and another vs STATE OF GUJARAT wherein it is held under ;"7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keswani, that in the absence of the doctor while recording the* dying declaration, the said declaration loses its value and cannot be accepted. Mr. Keswani in this connection relies upon the decision to this Court in the case of Maniram vs State M. P. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity, and interfered with the judgment of the High Court. But the aforesaid requirements and a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given. It is no doubt true that before recording the declaration, the Officer concerned must find that the declarant was in a fit condition to make the statement in question, in Ravi Chander vs State of Punjab, this Court has held that for not examining the doctor, the dying declaration recorded by the executive Magistrate and the dying delcaration orally made need not be doubted. The Court further observed that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur vs State of Punjab, this court has examined the same question and held (SCC P547) para 5): as regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained in endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner. ". ( 20 ) IN the above decision, it has been clearly held that the requirement of doctor's endorsement is only a rule of prudence and the ultimate test is whether the dying declaration is truthful and voluntary. In the instant case, we find the evidence of the Tahsildar pw-10 as welt as of the Doctor PW-14 who have both stated clearly and categorically that the deceased was then in a conscious condition and was able to give her statement and accordingly, she gave her statement to the Tahsildar PW-10 which was recorded in the presence of the Doctor PW-14. In such circumstances, the dying declaration Ex. P. 8 recorded by the Tahsildar PW-10 in the presence of the Doctor PW-14 is, in our view, voluntary and reliable for convicting the accused. That apart, in this case, the police also took the statement of the deceased which was treated as FIR and the same can be treated as dying declaration. Further, the deceased had also made oral dying declarations to PWs 1,2,4 and 5. All these dying declarations made by the deceased at different points of time corroborate each other and there is no inconsistency as such, with regard to the cause of the burn injuries sustained by the deceased on that relevant night. Further, we find from the records that the incident in question took place at about 10. 30 or 11 pm in the night and the Tahsildar PW-10 recorded the dying declaration at about 1. 30 am and hence, there has been no inordinate delay in recording the statement of the deceased. Further, we find from the records that the incident in question took place at about 10. 30 or 11 pm in the night and the Tahsildar PW-10 recorded the dying declaration at about 1. 30 am and hence, there has been no inordinate delay in recording the statement of the deceased. The evidence of the Doctor PW-14 that the deceased made a statement receives support from the contemparaneous records maintained in the hospital. As we have already stated Dr. PW-14 had abslutely no reason to falsely implicate the accused. The dying declaration Ex. P. 8 bears the signature of the Doctor PW-14 as well as of the Tahsitdar PW-10. We do not find any infirmity either in their evidence or in the manner of recording the dying declaration Ex. P8. It is nodoubt true that the Tahsildar pw-10 did not score off some of the unwanted portions in the dying declaration Ex. P. 8 recorded in the proforma, but that by itself, will not detract the evidence of the Tahsildar PW-10 in Court. The dying declaration Ex. P8 apart from the other dying declarations being reliable and truthful, were rightly relied upon by the Trial Court. Further, merely because the accused has been acquitted of the charge under Section 498a of IPC, it cannot be held that the accused had no motive for committing the murder. In this connection, a reference may be made to be a decision of the Hon'ble Supreme court reported in the case of RAVICHANDER and OTHERS vs STATE of PUNJAB wherein it is held that merely because charge under section 498a and 304 B failed, it cannot be said that the accused had no motive to comit the murder. With regard to the reliability of the dying declarations recorded by the. Executive Magistrates in the presence of the Doctors, reference may be made to the decisions reported in the case of HARJIT KAUR vs STATE OF PUNJAB and in the case of SHRIPATRAO vs STATE OF MAHARASHTRA. ( 21 ) THE evidence of the Doctor PW-12 who conducted the Postmortem examination on the dead body of the deceased would show that the death of the deceased was caused due to septisemic shock as a result of 85% superficial to deep burns sustained by the deceased. She has further stated in the cross-examination that the burns caused by kerosene oil would of a very nature. She has further stated in the cross-examination that the burns caused by kerosene oil would of a very nature. The evidence thus clearly shows that the septisemic etc. was directly relatable to burn injuries caused by the accused. It is no doubt true that the Dr. PW-14 has stated that the injured was got discharged against the medical advice. But then, it has to be remembered that the injured was taken by the parents of the deceased to procure a better treatment in the hospital at Belgaum. There is nothing on record to show that any complication had arisen due to the shifting of the injured from Bijapur to Belgaum. The evidence placed on record would show that the death of the deceased was the natural consequence of the burn injuries sustained by the deceased at the hands of the accused and it was not because of any negligence or external factor. It would be of some relevance to note here itself that the evidence of the Doctor PW-14 would reveal that the injured was shifted on the instructions of the doctor himself for better treatment to Belgaum hospital. Therefore, it cannot be said that the injuries were only indirectly responsible for causing the death of the deceased. On the other hand, the death of the deceased was directly related to the injuries caused by the accused. That being so, the act proved against the accused would clearly attract the offence under section 302 IPC. ( 22 ) IN our view, the appellant has been unable to point out any error or law or any perversity in upsetting the finding recorded by the trial Court in holding the accused to be guilty of the offences under section 302 IPC. We are therefore of the view that the Trial Court was justified in holding the appellant to be guilty under Section 302 ipc and it warrants no interference in the appeal by the Court. For the reasons stated above, we dismiss the Criminal appeal filed by the appellant and confirm the conviction as well as the sentence passed against the accused by the trial Court. --- *** --- .