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Karnataka High Court · body

2015 DIGILAW 1053 (KAR)

State v. Swamy

2015-09-04

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of acquittal dated 17.1.2011 passed by the District and Sessions and Fast Track Court-IV, Bengaluru in S.C. No. 448/2007 is called in question in this appeal by the State. The accused were tried and acquitted of the offences punishable under Sections 504, 302and 212 read with Section 34 of IPC. Since accused No. 3 was the juvenile offender, the case against him was split up and he was sent for facing trial before the Juvenile Justice Board. Thus, the trial went up only against accused Nos. 1, 2, 4 and 5. It is also relevant to note that accused No. 5 (Chowdaiah) expired during the pendency of the trial. 2. Case of the prosecution in brief is that deceased Kalavathi is the wife of Thimmaraju; the said Thimmaraju was in the job of fixing tiles to the houses; the deceased was working as a tailor in garments factory; since they did not have sufficient work in their native place, they came to Bengaluru in search of work; as the deceased and her husband did not have shelter to reside at Bengaluru; they came to the house of accused No. 1 (Swamy @ Srinivasa) and requested him to give them shelter in his house; in the house of accused No. 1 (Swamy @ Srinivasa), other accused were already living along with him; accused No. 1 permitted the deceased and her husband also to live in the house for about one month by taking advance amount of Rs. 2,000/-; accordingly, the deceased and her husband paid Rs. 2,000/- and started to stay in the said house; on the date of incident i.e., on 14.7.2003 at about 10.00 a.m., when the husband of the deceased was not in his house and had gone to the work, all the accused came to the house and started to quarrel with the deceased in the matter of vacating the house; at that time, the deceased told the accused that she and her husband would vacate the house if Rs. 2,000/- paid by her as advance amount is repaid to her; the accused 2 to 5 having pronounced that they would not repay the said amount went out of the house. However, accused No. 1 stayed back and poured kerosene on the victim and set her ablaze and ran away from the scene. 2,000/- paid by her as advance amount is repaid to her; the accused 2 to 5 having pronounced that they would not repay the said amount went out of the house. However, accused No. 1 stayed back and poured kerosene on the victim and set her ablaze and ran away from the scene. After hearing the cries, neighbouring people rushed to the spot, extinguished fire; because of the incident, the victim lost sight of both eyes and she sustained more than 80% burns all over the body; the news reached the police officials; P.Ws. 4 and 14, who were on patrolling duty during the relevant point of time, on motor cycle, rushed to the scene of offence and talked with neighbouring people, who were gathered there. On coming to know that accused No. 1 doused kerosene on the victim and set her ablaze, P.Ws. 4 and 14 (the police officials) called Hoysala van to the spot and shifted the victim to the hospital along with police constable No. 1856. P.W. 14 (Assistant Sub Inspector of Police), in the presence of P.W. 4, recorded the statement of victim in the hospital as per Ex. P. 23; they took permission of the doctor to record and got certificate from the doctor that the victim was in a fit condition to make statement; the endorsement of the doctor is at Ex. P. 1. Based on Ex. P. 23, crime No. 207/2003 came to be registered for the offence punishable under Section 307 read with Section 34 of IPC in Nandini Layout Police Station. Immediately after admission to the hospital, history as spoken to by the victim was recorded by P.W. 13 (Doctor) as per Ex. P. 15; on the next day of the incident i.e., on 15.7.2003, the second dying declaration as per Ex. P. 18 was recorded by the Taluka Executive Magistrate (P.W. 16) in the presence of P.W. 5 (police constable) and P.W. 14 (Assistant Sub Inspector of Police). The deceased succumbed to burn injuries at 5.00 a.m. on 16.7.2003. After the death of the deceased, crime was converted for the offence punishable under Section 302 of IPC. The police, after investigation, laid the charge sheet. 3. In order to prove its case, the prosecution in all examined 21 witnesses and got marked 23 exhibits and 8 material objects. On behalf of the defence, no witness is examined. After the death of the deceased, crime was converted for the offence punishable under Section 302 of IPC. The police, after investigation, laid the charge sheet. 3. In order to prove its case, the prosecution in all examined 21 witnesses and got marked 23 exhibits and 8 material objects. On behalf of the defence, no witness is examined. The trial Court, on evaluation of the material on record, as aforementioned, has acquitted the accused by giving the benefit of doubt in their favour. 4. Before proceeding further, it would be relevant to note the versions of each of the witnesses in brief, so as to enable the Court to assess the material on record properly. P.W. 1 is the Doctor attached to Victoria Hospital; he certified that the injured Kavitha, aged about 18 years, was fit to make statement and the said statement was recorded on 14.7.2003 by P.W. 14 Puttachennaiah as per Ex. P23. P.W. 2 is the witness for scene of offence mahazar Ex. P2, under which, M.O. Nos. 1 to 8 are seized. P.W. 3 is the neighbour of the victim Kalavathi. She has turned hostile to the case of the prosecution. P.W. 4 is the Police Constable. He accompanied P.W. 14 the Assistant Sub-Inspector of Police while visiting the house of the victim at about 10.00 a.m. on 14.7.2003; P.Ws. 4 and 14 brought hoysala van to the scene of offence and shifted the injured to Victoria hospital in the said van; P.W. 4 accompanied P.W. 14 to the hospital and recorded the statement of the victim in the hospital as per Ex. P23 prior to 4.00 p.m. on 14.7.2003; based on the statement Ex. P23, Crime No. 207/2003 came to be registered in Nandini Layout police station for the offence under Section 307 r/w Section 34 of IPC. P.W. 5 is the Head Constable. He was accompanied by P.W. 14; in the presence of P.W. 5 and P.W. 14 the second dying declaration as per Ex. P18 is recorded on 15.7.2003 at 7.00 p.m. in the hospital. P.W. 6 is the Taluka Executive Magistrate. He has conducted inquest proceedings as per Ex. P5 after the death of the deceased. P.W. 7 is the another Assistant Sub-Inspector of Police. He carried three articles to Forensic Science Laboratory for examination. P.Ws. 8 and 9 are the circumstantial witnesses. P18 is recorded on 15.7.2003 at 7.00 p.m. in the hospital. P.W. 6 is the Taluka Executive Magistrate. He has conducted inquest proceedings as per Ex. P5 after the death of the deceased. P.W. 7 is the another Assistant Sub-Inspector of Police. He carried three articles to Forensic Science Laboratory for examination. P.Ws. 8 and 9 are the circumstantial witnesses. Both of them have turned hostile to the case of the prosecution. P.W. 10 is the Professor in Bangalore Medical College attached to Victoria Hospital. He conducted autopsy over the dead body. The autopsy report is at Ex. P9. P.W. 11 is the neighbour of deceased Kalavathi. He has also turned hostile to the case of the prosecution. P.W. 12 is the Inspector of Police. He completed the investigation and laid the charge sheet. P.W. 13 is the Doctor, who was present at the time of admission of the victim in the Victoria Hospital. He recorded the history of the incident as mentioned in the Casualty Medical Register marked as Ex. P15. P.W. 14 is the Assistant Sub-Inspector of Police. As aforementioned, he visited the spot immediately after the incident and made arrangement to shift the victim to the Victoria hospital. He went to the hospital along with P.W. 4 and recorded the dying declaration as per Ex. P23. He was also present while recording the second dying declaration on 15.7.2003 by Taluka Executive Magistrate. Practically, P.W. 14 is the responsible police officer who was present during all the relevant and important dates, which touch the merits of the matter in this case. P.W. 15 is the Sub-Inspector of Police. He searched for the accused and reported as per Ex. P13 to the Investigation officer. P.W. 16 is the Taluka Executive Magistrate. He recorded the second dying declaration at 7.00 p.m. on 15.7.2003 at Victoria Hospital as per Ex. P18. P.W. 17 is the witness for inquest mahazar Ex. P5. He has turned hostile to the case of the prosecution. P.W. 18 is the Sub-Inspector of Police. He registered Crime No. 207/2003 for the offence punishable under Section 307 r/w Section 34 of IPC based on the statement of the victim recorded by P.W. 14 in the presence of P.W. 5. He has conducted part of the investigation. P.W. 19 is the witness who was supposed to depose about harboring of accused Nos. 1 to 4 by accused No. 5. He has conducted part of the investigation. P.W. 19 is the witness who was supposed to depose about harboring of accused Nos. 1 to 4 by accused No. 5. He has turned hostile to the case of the prosecution. P.W. 20 is the mother of the victim. She is a circumstantial witness. She has turned hostile to the case of the prosecution. P.W. 21 is the Assistant Director of Forensic Science Laboratory. He has deposed about the three articles sent to him by the investigation officer for examination. On examination of these articles, he has given an opinion that there were no residues of kerosene on such articles. His report is at Ex. P14. 5. From the aforementioned narration it is amply clear that only the statutory officials have supported the case of the prosecution and none of the non-official witnesses including the mother of the deceased have supported the case of the prosecution. It is also clear from the aforementioned narration that the entire case of the prosecution revolves around the two dying declarations Ex. P23 and Ex. P18 and the history recorded by the Doctor P.W. 13 as per Ex. P15 while admitting the victim to the hospital. The relevant witnesses to speak about the aforementioned facts are P.W. 4, P.W. 5 and P.W. 14 (all police officials), P.W. 1 and P.W. 13 (both are doctors), P.W. 16 (Taluka Executive Magistrate) and P.W. 21 (Assistant Director of Forensic Science Laboratory). 6. The case of the prosecution as put forth is that accused Nos. 1 to 4 doused kerosene on the victim and set her ablaze at about 10.00 a.m. on 14.7.2003 in the residential house owned by accused No. 1; the deceased and her husband were tenants under accused No. 1 and they had taken the said house with an understanding that they would vacate the house within one month; even after one moth, the house was not vacated and therefore, the quarrel took place between the accused and the deceased; accused Nos. 2 to 5 are also the relatives of accused No. 1; the husband of the deceased is also a close relative of accused No. 1; the incident has taken place when the deceased was alone in the house and her husband had gone out of the house for work; immediately after the incident the accused fled away from the scene; the neighbours gathered and informed the police through some source; P.W. 4 and P.W. 14 who were on patrolling duty rushed to the scene of offence on the motor cycle and saw the injured victim in the house. They made arrangement to shift the victim to Victoria Hospital along with P.C. No. 8956; the history was recorded by the Doctor P.W. 13 immediately after admission of the victim as per Ex. P15; subsequently, two dying declarations as per Ex. P23 and Ex. P18 were recorded by P.W. 14 and by the Taluka Executive Magistrate respectively. 7. It is the specific case of the prosecution that at the time of admission of the victim to Victoria Hospital only P.C. No. 8956 was present along with the victim and it is also deposed so by the Doctor P.W. 13 in his evidence before the Court, which means, P.Ws. 4 and 14 were not there at the time of admission of the victim. But the evidence of P.Ws. 4 and 14 makes it amply clear that they also followed the victim on motorcycle and they were present at the time of admission of the victim to the hospital, which means, at the time of admission of the victim and at the time of recording the history by the Doctor-P.W. 13 not only P.W. 5, but also P.W. 4 and P.W. 14 (all police officials) were very much present in the hospital. It is also clear from the evidence of P.W. 4 that by the time they reached the scene of offence immediately after the incident after getting the news, number of neighbours had gathered and they were informed by the neighbours that it was accused No. 1 who splashed kerosene on the victim and set her ablaze, which means, even prior to admission of the victim to the hospital P.Ws. 4 and 14 and P.C. No. 8956 were knowing about the history of the case. The Post Mortem report Ex. 4 and 14 and P.C. No. 8956 were knowing about the history of the case. The Post Mortem report Ex. P9 and the evidence of the Doctor P.W. 10 who conducted post mortem examination clarifies that the victim had sustained 80% burns all over the body; the entire body of the victim was burnt from head to toe; the entire skin of the victim was peeled off because of the burn injuries and underlying muscles were exposed; the victim had lost eyesight of both the eyes and her lips and mouth were also burnt. Ex. P15 further makes it clear that the entire face and upper portion of the body was burnt fully. The sketch drawn in Ex. P15 reveals that the upper portion of the body including the face is almost burnt and 9 points are mentioned in the said diagram by the Doctor P.W. 13. P.W. 16 is the Taluka Executive Magistrate who recorded the second dying declaration as per Ex. P18 and it is also clear from Ex. P17 written by the very Taluka Executive Magistrate to the Inspector of Police that both the eyes of the victim were burnt; her face and lips were burnt and the mouth was open and the victim was not in a position to speak properly. However, P.W. 16 has proceeded to depose that the victim uttered the names of the accused as the cause for the incident. 8. From the aforementioned evidence it is prima facie clear that the victim was not in a position to close her mouth; the entire face including lips was burnt; even the Post Mortem report Ex. P9 and the evidence of the Doctor P.W. 10 also makes it clear that the lips were burnt. Ex. P17 further makes it clear that the victim was not in a position to give any statement of more than about 2 lines, which she has uttered before him. Further, Ex. P17 further discloses that despite repeated questions put to the victim and despite his efforts to understand as to what was being uttered by the victim, the Taluka Executive Magistrate could not make out anything from the utterances of the victim. Further, Ex. P17 further discloses that despite repeated questions put to the victim and despite his efforts to understand as to what was being uttered by the victim, the Taluka Executive Magistrate could not make out anything from the utterances of the victim. Thus, prima facie, we are of the opinion that since the entire upper portion of the body, face and lips were burnt and the mouth was wide open, the victim might not be in a position to make statement properly, particularly, in view of the evidence of the Taluka Executive Magistrate - the responsible officer of the State, as well as his report as per Exs. P17 and P18. In the light of these facts, the dying declarations and other material on record need to be evaluated. 9. Learned Public Prosecutor drawing the attention of the Court to Ex. P15 the history recorded by the Doctor argues that the history is furnished by the victim herself and the same is spoken to by P.W. 13 Doctor who admitted the victim to the hospital. There is no much cross-examination on this aspect of the matter by the defence advocate. Thus, according to him, the history as provided by the victim recorded in Ex. P15 should be treated as the first dying declaration made, particularly, when the same was made at the earliest point of time. Though the said submission appears to be attractive, the same is unacceptable having regard to the totality of the facts and circumstances of the case. We have already mentioned supra that the victim may not be in a position to make a lengthy statement before anybody, particularly, when she had suffered the injuries as aforementioned on vital portions including the face. In this view of the matter, the defence advocate may be justified in arguing that the history must have been furnished by the said officials P.Ws. 4, 14 and P.C. No. 8956 at the time of admission of the victim. Curiously, though P.W. 13, the Doctor, has deposed about the presence of P.C. No. 8956 at the time of admission of the victim, he does not refer to the names of either P.W. 4 or P.W. 14. P.W. 4 has admitted that himself and P.W. 14 were very much present at the time of admission of the victim and at the time of recording the history by the Doctor. P.W. 4 has admitted that himself and P.W. 14 were very much present at the time of admission of the victim and at the time of recording the history by the Doctor. There was absolutely no reason as to why the Doctor P.W. 13 should suppress the presence of P.Ws. 4 and 14 at the time of admission of the victim to the hospital. The presence of police officials in the hospital at the time of admission makes us to view the version of P.W. 13 with suspicion, in as much as, P.W. 13 has not deposed before the Court the true facts and has suppressed certain material facts. It is also relevant to note that though the Doctor P.W. 13 has deposed that P.C. No. 8956 was present at the time of admission of the victim, curiously, the prosecution has not even cited the said police constable as witness in the charge sheet and consequently, he is not examined before the Court. 10. We also see some overwriting in respect of one vital word in Ex. P15. According to the learned Public Prosecutor, it is written in Ex. P15 that the smell of kerosene is 'felt'. The word which is sought to be read as 'felt' by the learned SPP appears to have been overwritten. There is no initial found of the Doctor or anybody. We are of the opinion that some word which was already written is changed and in the said place, it is overwritten to mean as either felt or smelt etc., In view of the aforementioned facts and circumstances, it may not be possible for us to rely upon the evidence of P.W. 13 and the notings made in Ex. P15. The significance of this overwriting and the cause for such overwriting will be discussed by us subsequently. Then what remains to be seen is effect of two dying declarations Ex. P23 and Ex. P18. We are conscious of the fact that the accused can be convicted for the offence punishable under Section 302 of IPC if the dying declarations are proved and are found believable by the Court. The dying declarations can be the sole basis for conviction, if they are reliable and trustworthy. It is undisputed that the incident has taken place within the house and that the victim died because of Accused No. 1/Accused Nos. The dying declarations can be the sole basis for conviction, if they are reliable and trustworthy. It is undisputed that the incident has taken place within the house and that the victim died because of Accused No. 1/Accused Nos. 1 to 4 pouring kerosene and setting her ablaze within the house. The scene of offence panchanama Ex. P2 narrates that the house of the victim is measuring 8 feet x 10 feet only. The said area of 8 feet x 10 feet is divided into two portions with a short wall having height of about 3 to 4 feet, which means hall of the house is bifurcated with the kitchen portion with a short wall, may be having height of about 3 to 3 1/2 feet. The kitchen portion measures 3 feet x 8 feet only and the hall portion of the house measures about 7 feet x 8 feet only. PW. 4, the Police Constable showed the place of incident to the panchas and thereafter panchanama as per Ex. P2 was drawn. However PW. 4 has not deposed about his presence at the time of drawing scene of offence panchanama - Ex. P2. The panchas have found three items viz., a black coloured woolen rug, a photograph and burnt paper in the hall of the house. Certain other items were kept on the short wall which bifurcated hall from the kitchen, of which, we are not concerned. Further, it is mentioned in Ex. P2 that apart from the aforementioned three items, the panchas have also found a small torn black beeds necklace, glass bangle pieces, red coloured petticoat and the light cement coloured pant belt. Obviously, the black torn black beeds necklace, red coloured petticoat and broken pieces of glass bangles are belonging to the deceased. Since they were also found on the spot, they were also seized under Ex. P2. It is also made clear in the scene of offence panchanama that the kitchen portion which measures 3 feet x 8 feet was having a shelf on the eastern side, on which kerosene stove and certain utensils were placed; a kerosene can of 10 litres capacity which is closed with the yellow lid was kept under the shelf and the same was having one litre of kerosene. The said kerosene can also was seized. Ex. P2 narrates that totally 8 items including kerosene can were seized. The said kerosene can also was seized. Ex. P2 narrates that totally 8 items including kerosene can were seized. From the narration of Ex. P2, it is amply clear that the kerosene can so seized was placed in the kitchen portion under the shelf and not in the hall portion where the incident has taken place. The kerosene stove as well as kerosene can were existing in the kitchen that too in the place where they ought to have been existed normally in the house. Generally, the kerosene stove is expected to be in the kitchen and it was there in the kitchen. Even the kerosene can was in the kitchen and the same was placed under the shelf in the kitchen. Though such kerosene can was not found in the hall, the same was also seized curiously by the Police under Ex. P2. Though 8 items were seized including petticoat of the victim, only 3 items were sent for examination to Forensic Science Laboratory. Absolutely no reason is forthcoming as to why other items were not sent for examination. Even the kerosene can as well as the petticoat of the deceased were not sent for examination. The petticoat of the victim would have been vital material which should have been examined in the FSL to find out as to whether there were kerosene traces or not. Be that as it may, as aforementioned, only three items were sent for examination and the Assistant Director of FSL (PW. 21) in his report Ex. P14 has concluded that none of the articles so sent were having traces of kerosene. Thus the evidence of PW. 21 and the FSL report Ex. P14 will not help the case of the prosecution to show that the articles sent for examination were having kerosene traces. It is the specific contention of the defence that the incident has not occurred due to the intervention of the accused, who allegedly poured kerosene and set the victim ablaze. On the other hand, the defence of the accused appears to be that it is the case of accidental fire inasmuch as the deceased caught fire when she was lighting kerosene stove. If really either Accused No. 1 or any of the accused poured kerosene on the victim and set her ablaze in the hall, the kerosene stove ought to have been found in the hall of the house. If really either Accused No. 1 or any of the accused poured kerosene on the victim and set her ablaze in the hall, the kerosene stove ought to have been found in the hall of the house. On the other hand, the kerosene can was neatly closed and the same was found in the kitchen under the shelf where it ought to be in the house normally. Therefore it is clear that the kerosene can was not used for commission of the offence. The inquest panchanama nowhere reveals that the dead body was having kerosene smell. The Post-mortem report also does not disclose that the dead body was having kerosene smell. The Taluka Executive Magistrate who conducted inquest panchanama and the doctor PW. 10 who conducted post-mortem examination have not deposed about the kerosene smell emanating from the dead body. As aforementioned, the FSL report also does not reveal any positive factor in favour of the prosecution with regard to presence of the kerosene. The interpolation found in Ex. P15 recorded by PW. 13 assumes importance at this stage. One vital word appears to have been interpolated in Ex. P15. While narrating the presence of kerosene, a word is so interpolated in Ex. P15 to mean that traces of kerosene are 'found' or 'felt' or 'smelt'. From reading that particular word as found in Ex. P15, we are not able to make out as to what was the actual word earlier i.e., prior to interpolation. Only after getting the report, which went against the prosecution case, it seems the Investigating Officer has tried to interpolate one word in Ex. P15. Original of Ex. P15 is not produced before the Court. However Photostat copy of the same is marked. Be that as it may, the material on record is not sufficient to conclude that there were kerosene traces either on the body or on the clothes of the deceased which were fallen at the scene of offence or on other apparels worn by the deceased. The kerosene can was also not found in the hall where the incident has taken place. Based on such material, it may not be possible for this Court to conclude that the kerosene was poured on the victim either by Accused No. 1 or by any of the accused. 11. Ex. The kerosene can was also not found in the hall where the incident has taken place. Based on such material, it may not be possible for this Court to conclude that the kerosene was poured on the victim either by Accused No. 1 or by any of the accused. 11. Ex. P23 is the first dying declaration recorded prior to 4.00 p.m. on 14.7.2003, based on which, crime came to be registered at 4.00 p.m. in Nandini Layout police station. It is not mentioned in the dying declaration nor is deposed by either P.W. 4 or P.W. 14 as to at what time the dying declaration was written and as to what time the writing was completed. Be that as it may. According to the prosecution, the dying declaration is written by P.W. 14, the Assistant Sub-Inspector of Police and at that time P.W. 4 was present. The Doctor's endorsement as to the fitness of the victim is also found on the top of the dying declaration as per Ex. P1. The Doctor who certified as per Ex. P1 is examined as P.W. 1. P.W. 1 has deposed that on 14.7.2003 the police asked him as to whether the victim Kavitha, 18 years, inpatient No. 756056 was in a fit condition to make statement or not. On examining Kavitha he told the police that Kavitha is in a fit condition to make the statement. He made an endorsement as per Ex. P1. On a meticulous perusal of the record it is clear that the name of the victim is not Kavitha, but Kalavathi. Nowhere, in this case, any of the witnesses have deposed that the victim was also called as Kavitha. Even the statement of near relatives recorded during the course of inquest panchanama do not disclose that the victim was also being called as Kavitha. Not even a single piece of paper is produced before the Court to show that the victim's name is also Kavitha. However, in the examination-in-chief itself P.W. 1 has deposed that Kavitha inpatient No. 756056 was in a fit condition to make statement. Thus, it is clear that the Doctor P.W. 1 was under a mistaken notion that the police were recording the statement of Kavitha and not Kalavathi. It is also relevant to note that the inpatient number of Kalavathi is 107223 as is clear from Ex. P15. Thus, it is clear that the Doctor P.W. 1 was under a mistaken notion that the police were recording the statement of Kavitha and not Kalavathi. It is also relevant to note that the inpatient number of Kalavathi is 107223 as is clear from Ex. P15. The inpatient number is given at the time of admission of the victim to the hospital. Ex. P15 is the accident register maintained by the Victoria Hospital and that is produced at Ex. P15 to prove the history recorded therein. It means, the inpatient number of the victim in question as recorded in the hospital records is 107223 and not 756056. The evidence of P.W. 1 before the Court discloses that he has given the certificate with regard to inpatient No. 756056 and not 107223. Therefore, it is clear that the fitness certificate given by the Doctor is of a different patient altogether and the same has been misused by the police during the course of investigation to the matter on hand. Therefore, we are of the opinion that the certificate of the Doctor at Ex. P1 and the endorsement of the Doctor as per Ex. P1 cannot be made use of against the accused in this matter. The said Doctor P.W. 1 also has admitted that the victim had sustained more than 80% of burns all over the body. In Modi's Medical Jurisprudence and Toxicology Twenty-Third Edition (Chapter 20), the learned Author while explaining the extent of total body surface area observes thus:- "Effects of Burns: (1) ......... (ii)........ (iii) Extent of Total Body Surface Area To estimate the amount of area affected by second or third degree burns in percentage (modern classification), the body is divided into different areas, each representing nine per cent. This is called the rule of nine. There is marked fluid loss resulting in shock when over 20 per cent of the body is affected and usually over 50 per cent is fatal." Generally, Rule of Nine as mentioned by the learned Author Modi is followed in Karnataka by the Doctors while explaining the percentage of burns. The body is divided into different areas and each of such area will be representing 9% of the whole body. The sketch drawn in Ex. The body is divided into different areas and each of such area will be representing 9% of the whole body. The sketch drawn in Ex. P15 by the Doctor P.W. 1 discloses that the upper portion of the body including the head and face is burnt fully, in as much as, the Doctor has mentioned that each area of the upper portion of the body is burnt to the extent of 9%, which means there is 100% burns in respect of each of the areas of the upper portion of the body. Though the victim has suffered burn injuries to an extent of more than 80% to the whole body, she has suffered almost 100% burns to the upper portions of the body. Looking to the totality of the facts and circumstances and as the opinion of the Doctor about fitness given is in respect of a different patient as mentioned supra, we are of the opinion that the endorsements at Ex. P1 made by the Doctor and consequently, the version of P.W. 1, the Doctor is of no use to the prosecution case. 12. We also find that the versions found in Ex. P23 and Ex. P18 are conflicting with each other. Ex. P23 implicates accused No. 1 only in the crime of murder whereas, Ex. P18 implicates all the accused i.e., accused Nos. 1 to 4 to the effect that all of them poured kerosene and set the victim ablaze. We have already mentioned supra that Ex. P23 specifies that all the accused Nos. 1 to 4 threatened the victim with dire consequences in the matter of getting her vacated from the house and thereafter, accused No. 2 to 4 went out of the house and accused No. 1 who remained inside the house poured kerosene on the victim and set the victim ablaze. Thus, it is clear that the version as found in Ex. P23 is conflicting with the version found in Ex. P18. Unfortunately, at the time of recording the statement of the accused before the trial Court under Section 313 of Cr.P.C. the trial Court has not brought to the notice of the accused about the dying declaration Ex. P23. Since accused No. 1 or any of the accused did not had any opportunity to explain the dying declaration Ex. P23, they were not in a position to explain such incriminating material against them. 13. P23. Since accused No. 1 or any of the accused did not had any opportunity to explain the dying declaration Ex. P23, they were not in a position to explain such incriminating material against them. 13. The incriminating material, which is not put to the accused, cannot be relied upon by the Court to come to the conclusion against the accused. Though a specific question was asked to accused No. 1 with regard to the second dying declaration Ex. P18 recorded by the Taluka Executive Magistrate, no question whatsoever was asked to any of the accused including accused No. 1 with regard to Ex. P23, the first dying declaration. Ex. P23 is recorded by P.Ws. 4 and 14, based on which, crime came to be registered. Since such incriminating material was not put to the accused while recording their statement under Section 313 of Cr.P.C., the same will not be made use of against the accused. The Doctor-P.W. 1 has deposed that the victim could have taken longer time to make a lengthy statement. Ex. P23 runs to about two pages. Therefore, the victim must have taken minimum of two hours to make such statement if really, she was in a position to make statement. But we have already observed supra that the victim was not in a position to make statements, in as much as, the entire upper portion of the body of the victim was burnt. Though P.W. 14 has deposed that he was present while recording Ex. P23, his signature is also not found in Ex. P23. Be that as it may. Since we are of the opinion that the investigation officer has tried to improve his case by making use of the fitness certificate issued by the Doctor P.W. 1 in respect of Kavitha with inpatient No. 756056 to the matter on hand, we are of the opinion that Ex. P23 cannot be relied upon for convicting the accused. Moreover, we have already clarified that Ex. P23 was not brought to the notice of the accused while statements were recorded under Section313 of Cr.P.C. 14. The second dying declaration is at Ex. P18. The same is recorded at about 7.00 p.m. on 15.7.2003 in the hospital. The deceased succumbed to the injuries on 16.7.2003 at 5.00 a.m. It is deposed by P.W. 16, the Taluka Executive Magistrate who recorded Ex. The second dying declaration is at Ex. P18. The same is recorded at about 7.00 p.m. on 15.7.2003 in the hospital. The deceased succumbed to the injuries on 16.7.2003 at 5.00 a.m. It is deposed by P.W. 16, the Taluka Executive Magistrate who recorded Ex. P18 that he visited Victoria Hospital and went inside the Burns Ward and recorded the statement of victim as per Ex. P18. The Court can take judicial notice of the fact that the Victoria Hospital is the busiest hospital in Bangalore. The hospital is attached to the police station; the Burns Ward will always have duty doctors, nurses and other staff. Without meeting the doctor and without the permission of the Doctors nobody can enter the Burns Ward; despite the same, the Taluka Executive Magistrate recorded the statement of the victim in Burns Ward without taking the fitness certificate of the Doctor. It is not the case of the prosecution that the Doctors were not found during the relevant point of time while Ex. P18 was recorded in the Burns Ward. P.W. 16, the Taluka Execute Magistrate has also not deposed that none of the Doctors were present in the Burns Ward. Since P.W. 16 is the responsible officer of the State and as he is well versed in the procedure for recording dying declaration, there is no reason as to why he has not taken the opinion of the Doctor as to the fitness of the victim. It is specified by P.W. 16 as reiterated in the cross-examination that he had not enquired with the Doctor as to the fitness of the victim before recording the statement. It is also clearly deposed by P.W. 16, the Taluka Executive Magistrate that at the time of recording the dying declaration, P.Ws. 14 and P.W. 5 (police constable) were present, which means, P.W. 14 who was all through in-charge of the crime in question, right from the beginning till the end, was also present at the time of recording the dying declaration Ex. P18. We are at a loss to understand as to why the police should be present while recording the dying declaration by the Taluka Executive Magistrate. In all fairness, the police officials should have come out of the Burns Ward while the dying declaration was being recorded. The dying declaration should be truthful and untutored. P18. We are at a loss to understand as to why the police should be present while recording the dying declaration by the Taluka Executive Magistrate. In all fairness, the police officials should have come out of the Burns Ward while the dying declaration was being recorded. The dying declaration should be truthful and untutored. In order to show that the victim was in a free atmosphere to make statement, the police officials should not have been present at the time of recording dying declaration by the Taluka Executive Magistrate. It is the duty of the Taluka Executive Magistrate to record the dying declaration on his own, after sending the near relatives of the victim as well as the police officials out of the hall in which the victim was admitted. Therefore, it cannot be clearly said that the dying declaration Ex. P18 recorded by the Taluka Executive Magistrate is untainted, on the other hand, we prima facie find that the dying declaration Ex. P18 is not free from suspicion. 15. In the light of such shaky material on record and as the prosecution has not come out with the true facts and as we find that the investigation officer has tried to improve the case of the prosecution from time to time including at the time of taking fitness certificate from the Doctor, we are of the conclusion that the trial Court is justified in acquitting the accused, in as much as, the prosecution has not proved its case beyond reasonable doubt. The material adduced before the Court is not free from doubt. 16. We find that the view taken by the trial Court while acquitting the accused, under the facts and circumstances of the case, is one of the possible views. In view of the same, no interference is called for. The appeal fails and the same stands dismissed.