( 1 ) IN this appeal preferred by the State, judgment of the Sessions judge, Shimoga, acquitting the respondent (accused) of the offences punishable under sections 302 and 380 of the I. P. C. , has been challenged. ( 2 ) THE case of the prosecution may be briefly stated as follows ; the accused Akkamahadevi was earlier a resident of Shimoga, There, she had developed intimacy with a Planning Officer, shimoga (P. W. 13 ). Then she shifted to thirthahalli. She began to work as a cook in a hostel. In Shimoga, Saraswathi (the deceased) had become friendly with her and that had led to P. W. 13 having an affair with saraswathi also. In Nov. 1993. P. W. 13 told akkamahadevi (the accused/respondent) to bring Saraswathi to Thirthahalli on the night of 7-11-1993, so that all the three could go to Udupi, Goa and other places. Accordingly saraswathi had been brought by the accused to Thirthahalli and was staying with her in her house. On that day, on the pretext of cleaning Saraswathi's ornaments, the accused took her ornaments, put them in soap water and kept the container on a shelf. Saraswathi took cold water bath, which caused a slight fever by the evening. Therefore, the accused asked Saraswathi to sit before the oven In the bath room warm herself. Saraswathi sat before fire in the oven situated in the bath room. At that time, the accused came behind her and pushed her into the fire, in the oven. The fire caught the saree of Saraswathi and she attempted to get up. At that time, the accused once again pushed her into the oven and hit on the back of her head by means of a blow pipe. Saraswathi managed to get up. By that time, the fire had engulfed her. Back of her head was bleeding. In that position, she chased the accused, who ran out and stood on the platform at the coconut tree in front of her house. Hearing the cries of Saraswathi, neighbours of the accused i. e. P. W. 1 thimmappa Shetty, P. W. 2 Bhaskaran and others came and extinguished the fire on the body of Saraswathi. In that position, she chased the accused, who ran out and stood on the platform at the coconut tree in front of her house. Hearing the cries of Saraswathi, neighbours of the accused i. e. P. W. 1 thimmappa Shetty, P. W. 2 Bhaskaran and others came and extinguished the fire on the body of Saraswathi. Saraswathi was shouting 'give ornaments, give ornaments' and when the assembled people asked her as to what had happened, Saraswathi told them that under the pretext of cleaning the ornaments, the accused had taken her ornaments, that she (the accused) had pushed her into the fire in the oven and had beaten her. P. W. 1 went to a nearby hotel and made a phone call to the police. P. W. 18 L. Sevyanaika, p. S. 1. accompanied by a police constable p. W. 21 Basavraj went there. The P. S. I, shifted Saraswathi to the hospital where she was examined by P. W. 17 Dr. G. D. Narayanappa. She was given treatment. Her statement was recorded by the P. S. I, as per ex. P. 11 and after returning to the police station at about 11. 30 p. m. he registered a case against the accused for offences punishable under Sections 302 and 380 of the i. P. C. and forwarded the F. I. R. The next day early morning at 5. 00 O' Clock, Saraswathi died. P. W. 18 L. Sevyanaika took the panchas to the house of the accused at 9. 30 a. m. and in the presence of panchas and the accused, he seized the ornaments of the deceased m. Os. 1 to Sunder amahazar. A spot mahazar was also conducted and the accused was arrested. She was produced before the Jurisdictional Magistrate who remanded her to judicial custody pending further investigation. After further investigation, a charge-sheet was placed against the accused respondent. ( 3 ) THE prosecution examined in all 21 witnesses and closed its case. P. Ws. 1 to 3 and P. W. 14 are stated to be eye-witnesses. P. W. 4 Is a panch for the Mahazar in which ornaments of the deceased (MOs 1 to 6) were recovered from the possession of the accused. After the case of the prosecution was closed, the accused was examined under section 313, Cr. P. Ws. 1 to 3 and P. W. 14 are stated to be eye-witnesses. P. W. 4 Is a panch for the Mahazar in which ornaments of the deceased (MOs 1 to 6) were recovered from the possession of the accused. After the case of the prosecution was closed, the accused was examined under section 313, Cr. P. C. wherein she denied the incident and contended that a false case had been instituted against her. After hearing the prosecution and the accused, the learned sessions Judge passed the judgment holding that the so called dying declaration stated to have been made by the deceased was not reliable particularly in view of certain inconsistencies and the absence of medical certificate with regard to her mental condition at that time; and in the result, he passed a judgment of acquittal, challenging which the present appeal has been preferred. ( 4 ) SRI B. C. Muddappa, learned Addl. S. R. P. submits that despite overwhelming evidence, particularly depositions of eye witnesses p. Ws. 1 and 3 coupled with the dying declaration and the recovery of articles from the possession of the accused, the learned Sessions Judge has discarded the eye witness account only on the basis of surmises and assumptions and that therefore the judgment of acquittal requires to be reversed, He argues that the evidence of eye witnesses who had seen Saraswathi on fire coming out of the house of the accused and telling them as to how the incident happened has been discarded without proper basis and that therefore, the judgment of acquittal requires to be reversed. ( 5 ) REPLYING to this, Smt. B. V. Nagarathna, learned counsel representing the respondent submits that the learned sessions Judge was right in rejecting the dying declaration in view of the absence of the certificate by the medical officer that the deceased was in a fit mental condition to give her statement, and that taking into consideration the fact that she had been administered sedative drugs, she was not in a proper mental condition to speak and that therefore, the learned Sessions Judge was right in concluding that the dying declaration ex. P11 was not trustworthy and not reliable. She submits that therefore the judgment of acquittal be confirmed. ( 6 ) WE have gone through the prosecution evidence in detail and have considered the matter in detail. P11 was not trustworthy and not reliable. She submits that therefore the judgment of acquittal be confirmed. ( 6 ) WE have gone through the prosecution evidence in detail and have considered the matter in detail. What has been proved by the prosecution and which remain controverted are : (I) That Saraswathi (the deceased) had gone to Thlrthahalli and had stayed in the house of Akkamahadevi (accused) on 7-11-1993; (ii) That about 9. 30 p. m. on 7-11-1993, p. Ws. 11,2 and neighbours heard the cries of a woman from the house of the accused that the accused ran out of her house and stood below the coconut tree In front of her house, followed by Saraswathi who was on fire; (iii) That Saraswathi was shouting give ornaments give ornaments'; (iv) That the fire was extinguished by p. W. 1 and other persons who had assembled there and that Smt. Saruswuthi was shifted to Thirthahalli Government Hospital; (v) That she was treated by P. W. 17-Dr. Narayanappa and that she died at about 5 a. m. on 8-11-1983 due to burn injuries sustained by her. The prosecution alleged that Saraswathi, when questioned, told P. W. 1 and other persons that under the pretext of cleaning ornaments, the accused had taken her ornaments and that when she was sitting in front of the fire in the oven warming herself, she was hit on the back of her head by accused and was pushed into the fire, resulting In fire engulfing her. ( 7 ) THE learned Sessions Judge has discarded the dying declaration on the following reasoning :"18. P. S. I, admits at the end of para 6 of cross-examination that there was no obstacle or impediment to get her dying declaration recorded by the Executive Magistrate at that time. He admits that he knew that "her condition was serious. P. W. 17 Dr. Narayanappa was present and he could have recorded the dying declaration. " ( 8 ) THE learned Additional Public Prosecutor submits that the observations of the learned trial Judge regarding the unreliability of the dying declaration are not based on sound principles of law and in this regard, he refers to the principles laid down by the Supreme Court in the following two decisions. " ( 8 ) THE learned Additional Public Prosecutor submits that the observations of the learned trial Judge regarding the unreliability of the dying declaration are not based on sound principles of law and in this regard, he refers to the principles laid down by the Supreme Court in the following two decisions. ( 9 ) IN the first decision Jai Karan v. State of Delhi, 1999 SCC (Cri) 1385: (1999 Cri LJ 4529), the observations of the Supreme court with regard to the dying declaration, are as follows :"a dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is adimitted on the premiss that ordinarily a dying person will not falsely implicate an innicent person in the commission of a serious crime. It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated, In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration. It must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on a strict scrutiny finds it to be reliable, there is no rule ot law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable. A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable. "in the latest decision of the Supreme court on the question of admissibility of dying declaration in the absence of certification by the doctor as to the evidence of the mind of the declarant, in Laxman v. State of Maharashtra (2002 AIR SCW 3479): (2002 cri LJ 4095) the Supreme Court observes as follows :"normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can ft be said that since there is no certification of the doctor as to the fitness of the rnind of the declarant, the dying declaration is not acceptable. . . . . . What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. 1999 AIR SCW 3440 : (1999 Cri LJ 4321), overruled. Koli Chunilal v. State, 1999 AIR SCW 3727 : (1999 Cri LJ 4582), Approved. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. " ( 10 ) IN the light of the above mentioned principles, the observation of the learned sessions Judge that the statements were not in question and answer form; that the P. S. I, has not made any effort to get her statement recorded either by the Execution Magistrate or by the doctor; that the doctor had not certified about the mental condition of the patient are not sufficient to discard Ex. P. 11. ( 11 ) SMT. Nagarathna, learned Advocate appearing for the respondent has placed reliance on the decision of the Supreme court in Paramjit Singh v, State of Punjab. 1997 SCC 156 : ( AIR 1997 SC 1614 ) wherein the observation is that where the S H. O. had not certified on the dying declaration that the maker was in a fit condition to make such a statement, under the circumstances of the case, the Supreme Court declined to accept the dying declaration as true. She has also referred to the observations of a division Bench of this Court in the case of ganapati alias Ganapayya Naik v. State of karnataka (2004 (3) KCCR 1942 (DB)) wherein under the facts and circumstances of the case, the Court after coming to the conclusion that the death being doubtful as homicidal or suicidal, held that the benefit of doubt should go to the accused. Even in that case also the observation of this Court is that the dying declaration need not be with certification as to the fitness of patient by the doctor. As rightly pointed out by her to the observation of the Supreme Court in laxman's case (2002 Cri LJ 4095) referred to above, it Is for the Court to come to the conclusion that the declarant was or was not in a fit condition to make the statement in question. ( 12 ) IN the present case as soon as the injured Smt. Saraswathi was admitted to the hospital, she was examined by the doctor p. W. 11 and apart from giving other treatment, he is stated to have administered calmpose and Fortwin injections. Referring to the observation of the Author R. S. Satoskar in Eighth Edition of Pharmacology and Pharmacotherapeuties at page 130, the learned counsel for the accused/respondent points out that the said drug Fortwin (Pentazocine) is a narcotic antagonist and has potent analgesic (agonist) activity as well as adverse reaction including sedation. Referring to the observation of the Author R. S. Satoskar in Eighth Edition of Pharmacology and Pharmacotherapeuties at page 130, the learned counsel for the accused/respondent points out that the said drug Fortwin (Pentazocine) is a narcotic antagonist and has potent analgesic (agonist) activity as well as adverse reaction including sedation. On the basis of f he same, it is submitted by her that Smt. Saraswathi was riot In a fit mental condition at that time to make any state merit since she was under sedation. ( 13 ) IT is noticed that the doctor-P. W. 17, who made examination of the Saraswathi, stated that she was fully conscious and she gave history that Akkamma set her on fire. An entry (Ex. P. 9) in this regard is also made in the accident register. Nowhere the doctor says that she was not: in such a. mental condition so as to make that statement. Apart from that. P. W. 18 the Investigating Officer, who recorded her statement Ex. P. 11, states that he took her statement as the treatment was going on. The treatment that was given at that, stage as per entries, was administering i. V. drugs, calmpose, fortwin. The drugs calmpose and fortwin take some time to have effect of sedation. Therefore it cannot be said, In the absence of any positive materials, that she was under sedation when ex. P. 11 was recorded, particularly when doctor and Investigating Officer state that she was conscious when she made the statement. ( 14 ) ANOTHER factor relied upon by the learned counsel for the respondent is that even according to the Medical Officer, the injured was brought to the hospital by akkamrna i. e,, the accused and that therefore, in case the accused had pushed saraswathi into the fire, it is unlikely that she, could have brought the injured to the hospital. This is not the only conclusion that one can arrive at by looking into the facts that have emerged in the evidence. The evidence of P. Ws. 1 and 18 clearly show that akkamma was present when the fire was extinguished and that she also came to the hospital and if that is so, it does not necessarily mean that only because she was innocent, she came to the hospital. The evidence of P. Ws. 1 and 18 clearly show that akkamma was present when the fire was extinguished and that she also came to the hospital and if that is so, it does not necessarily mean that only because she was innocent, she came to the hospital. The Medical officer normally records the name of the persons who ever is found by the side of the injured and, therefore, the name Akkamma having been mentioned as the person, who had accompanied the injured, does not necessarily mean that the accused could not have set Saraswathi on fire. ( 15 ) A very important factor that has riot been taken Into consideration by the learned sessions Judge is the deposition of P. W. 1. He is an independent witness and a neighbour of the accused. He had no acquaintance with the deceased. It is only on that day that he saw the deceased in the house of the accused. There is no reason for him to concoct a case against the accused. His evidence reads as under :"4. On 7-11-1993 at about 9. 30 p. m. , I was present in my house. 1 heard the voice of a woman crying inside the house of accused. After hearing the voice of cry, I rushed towards the house of accused. I saw that the woman who died was trying to come outside the house arid her entire body was burning. We also found that there was bleeding from her head. In front of the house of accused there is one coconut tree. There is a platform around that tree. We found accused standing on the said platform. The woman who was on fire was crying saying "naga Kodisu," "naga Kodisu. " Thereafter myself and labourers wrapped her with kambli and similar articles and extinguished the fire. Thereafter we questioned the said woman about the cause of fire. She told us that the accused got removed her golden articles under the pretext that she should take bath. She further told that after taking the bath, she was sitting in front of fire to heat her body. She further told that accused assaulted her with 'kolave" (blow-iron-pipe ). Thereafter the accused pushed her on the fire and she caught the fire. 1 rushed to a neighbouring hotel named Kavitha, I gave information to the Police Station on phone. She further told that after taking the bath, she was sitting in front of fire to heat her body. She further told that accused assaulted her with 'kolave" (blow-iron-pipe ). Thereafter the accused pushed her on the fire and she caught the fire. 1 rushed to a neighbouring hotel named Kavitha, I gave information to the Police Station on phone. " ( 16 ) THE cross-examination of this witness has not brought out any materlal"to discard the positive assertion made by P. W. 1. This dying declaration made at the earliest cannot be discarded easily. In addition to it, there is the evidence of P. W. 3 who is also a neighbour, who says that when he learnt about the incident, he went there and he was Informed that one person was on fire and that the accused was forcing that person inside the house. This corroborates the deposition of P. W. 1. As already pointed out, the accident register also contains the history of the injury suffered by Smt. Saraswathi and there (Ex. P. 9) history of injuries furnished by herself has been clearly stated as follows :"said to set fire on her by one Akkamma, cook of BCM of hostel, Thirthahalli on 7-11-1993 at about 9. 30 a. m. at Akkamma's residence. " ( 17 ) IT is to be noted that the identity of said Akkamma is that she was working as eook. The evidence also discloses that the accused-Akkamma was the cook in BCM hostel. Hence the person mentioned in the case history is none else than the accused herself. ( 18 ) AN attempt was made by the learned counsel for the respondent to show that the fire could have been accidental. She argues that in all probability, the accused might have blowed the fire for magnifying it at which time she must have caught the fire and she must have fallen back resulting in injury on the back of her head. On the basis of that suggestion, she refers to the observation of the Supreme Court in Sharad birdhichand Sarda v. Stale of Maharashtra ( AIR 1984 SC 1622 } : (1984 Cri LJ 1738) that where two views in a circumstantial evidence are possible, one pointing to the guilt of the accused and other to innocence of the accused, the accused is entitled to have benefit of one which is favourable to him. We may observe here that there is not only no such material to indicate that it was an accidental fire, the circumstances clearly show that it is only the accused, who could have set the deceased on fire and nobody else. The circumstances do not show the possibility of the incident as suggested by the learned counsel for the accused. ( 19 ) IN the present case, except the deceased and the respondent, no other person was in the house at that time. The evidence has clearly proved that after the shout of Smt. Saraswathi was heard from the house, the accused ran out first and thereafter followed by the deceased who was on fire. It is therefore, for the accused lo explain as io how the fire started. Not only there is absolutely no explanation given by the accused/respondent in this regard, the say of P. W. 1 that the deceased was shouting "naga Kodisu, Naga Kodisu," when she came out of the house, that she was on fire; that immediately after the fire was extinguished, she stated before him and ethers, that it was this accused/respondent, who pushed her into the fire in the bath room, would completely negative the theory of innocence on the part of the accused and the facts do not show that it was an accidental fire. It has been observed by the Supreme court in Joseph v. State of Kerala, 2000 (5) scc 197 : (2000 Cri LJ 2467) that where the accused instead of explaining the incriminating circumstances, totally denies everything when those circumstances were brought, to his notice by the Court, such denial provides the missing link, unmistakably and inevitably leading to the guilt of the accused. ( 20 ) IN the present case, as observed, the accused has absolutely no explanation with regard to the facts that have been proved by the prosecution. Therefore, not only the dying declaration which had been made before the Police Officer as per Ex. P. 11 is reliable but the dying declaration made by the deceased before P. W. 1, and the circumstances, which have been proved by the prosecution showing that the accused had come out of the house followed by the deceased, who was on fire and the entry (Ex. P. 11 is reliable but the dying declaration made by the deceased before P. W. 1, and the circumstances, which have been proved by the prosecution showing that the accused had come out of the house followed by the deceased, who was on fire and the entry (Ex. P. 9) in the medico legal register wherein it has been clearly recorded that the injured named the accused as the person who set on fire, all would complete the chain of events to show that it is only the accused, who could have set Saraswathi on fire. ( 21 ) WHILE appreciating the evidence in a criminal trial, what has to be looked into are the allegations of the prosecution and the evidence that has been placed with regard to such allegations. The evidence that emerges during the trial shall be examined dispassionately without being swayed by surmises and assumptions. Human response differs from person to person. In cases of crimes, the behaviour of the culprit may not follow a beaten track and it may exhibit an abnormality. Unless there are facts and circumstances appearing in evidence to create doubt about the veracity of the prosecution witness or a particular behaviour or an act of the witness, it is not proper for the Court to discard the testimony of the prosecution witness, only because in a given circumstance, the witness could have acted differently. The Court shall consider as to what has been disclosed and whether such matter as disclosed is trustworthy and reliable; and not what ought to have been done by a particular person or what could have happened. It may be borne in mind that lapses and omissions on the part of the investigating Officer in properly investigating the matter may result in certain facts not being brought out in evidence, but such lapses and omissions on the part of the In vestigating Officer themselves, do not nullify the facts disclosed during evidence. ( 22 ) IN the present case, abundant material placed by the prosecution in support of the charge for an offence punishable under s. 302 of 1pc has not been accepted by the learned Sessions Judge by venturing on surmises and conjectures, which is clearly illegal. ( 22 ) IN the present case, abundant material placed by the prosecution in support of the charge for an offence punishable under s. 302 of 1pc has not been accepted by the learned Sessions Judge by venturing on surmises and conjectures, which is clearly illegal. Therefore, the judgment of acquittal recorded by the learned Sessions Judge is required to be reversed, so far as it relates to the charge for an offence punishable under s. 302 of the I. . P. C. ( 23 ) AS regards the charge punishable under S. 380 of IPC, according to the prosecution, the accused committed the theft of the ornaments of Smt. Saraswathi by retaining them with her, though we have come to the conclusion that the prosecution has proved beyond reasonable doubt the act of the accused in pushing Smt. Saraswathi into the fire and causing her death due to the injuries she sustained in that incident, we find that the evidence Is insufficient for the offence of theft. Though it is stated by the prosecution that the accused was arrested only on 8-11-1993 in her house, when the police went with Panchayathdars to recover ornaments M. Os. 1 to 6, that appears to be unlikely since even according to the Medical officer, the accused had gone to the hospital when the injured had been taken and after the dying declaration Ex. P. 11 was recorded, it is unlikely that the I. O. would allow the accused to go home instead of arresting her. The allegation of the prosecution that she was there in the house when the Police and Panchayathdars went and that she produced M. Os. 1 to 6 is rather not believable and in all probability. Police recovered m. Os. 1 to 6 from the house of the accused. It may be that with the motive of retaining ornaments of Saraswathi, the accused could have resorted to the ghastly act of murder, but the ornaments found in the house of the accused do not prove the charge of theft. ( 24 ) FOR the abovesaid reasons, the appeal is partly allowed and reversing the order of acquittal of the respondent for the offence punishable under S. 302 of I. P. C. , we convict her for the said offence punishable under S. 302 of IPC. ( 24 ) FOR the abovesaid reasons, the appeal is partly allowed and reversing the order of acquittal of the respondent for the offence punishable under S. 302 of I. P. C. , we convict her for the said offence punishable under S. 302 of IPC. ( 25 ) AS regards the sentence to be imposed for the said offence, we have heard the learned Additional State Public Prosecutor and the learned counsel for the accused. Though the ghastly act was done by the respondent forgain, taking into consideration the facts and circumstances of the case, we do not find that this is a rarest of rare case requiring death penalty to be imposed. The ends of justice will be met if minimum punishment of imprisonment for life and a fine of Rs. l. 000/- is imposed, ( 26 ) FOR the abovesaid reasons, we sentence the accused/respondent to undergo imprisonment for life and to pay a fine of rs. l. 000/- (Rupees one thousand) in default to undergo simple imprisonment for 3 months. ( 27 ) THE trial Court shall take action to secure the presence of the accused/respondent and shall take further steps to carry out the sentence. Order accordingly. --- *** --- .