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2021 DIGILAW 591 (KAR)

State of Karnataka v. Nagaraju Biliyaiah

2021-05-12

P.N.DESAI, S.SUJATHA

body2021
JUDGMENT : P.N. Desai, J. 1. This appeal arises out of the judgment of acquittal passed by learned Prl. Sessions Judge, Mandya in S.C. No. 95/2012, wherein the respondents/accused were acquitted for the offences punishable under sections 498-A and 302, IPC r/w section 34 of IPC. 2. The briefcase of the prosecution is that:- Accused No. 1 Nagaraju was married to one Roopa of Bujavalli village, eight years prior to the incident. After marriage, they left to Bengaluru, where accused No. 1 was running an autorickshaw. It is further contended that accused No. 1 started consuming alcohol and availed loan and started physically assaulting Roopa. They have got two children from the marriage. Thereafter, they shifted to different places viz., Bangalore, Channapatna and K.R. Pete and finally returned to their village Bujavalli and started residing there. It is further case of the prosecution on 27.11.2011 at about 9.00 p.m., when deceased Roopa was in her house, her husband Nagaraju, accused No. 2 Boraiah and accused No. 3 Thimmaiah were sitting in front of her house. Then, after sometime, all the three accused came inside the house and accused No. 1 Nagaraju asked her as to any person visited the house in the afternoon, as informed to him by Bora. When she asked Bora as to why he is telling lie to her husband, accused No. 1 Nagaraju assaulted on her back with hand, when she tried to come out of the house, accused pushed her inside the house and accused No. 1 Nagaraju took a kerosene oil can, poured kerosene on her body, accused No. 2 tried to set her fire with a match stick. Subsequently, accused Bora threw a match stick on her body which caught fire. When she again tried to run away, accused closed the door. Then she screamed for help. The neighbourers viz., Chikkanna, Mayiboraiah and Kullashambu, opened the door and took her to District Hospital, Mandya for treatment. Thereafter, she was taken to K.R. Hospital, Mandya by her mother Sakamma and brother Ananda. Due to previous enmity , accused have committed the said act. In this regard, on 28.11.2011, ASI-PW-13 took the statement of Roopa between 12.30 p.m. to 1.00 p.m. and registered a case in Cr. No. 283/2011 for the offences under sections 498-A and 307 r/w 34, IPC. Due to previous enmity , accused have committed the said act. In this regard, on 28.11.2011, ASI-PW-13 took the statement of Roopa between 12.30 p.m. to 1.00 p.m. and registered a case in Cr. No. 283/2011 for the offences under sections 498-A and 307 r/w 34, IPC. It is further case of the prosecution that PSI Jagadish took up further investigation, conducted spot mahazar as per Ex-P19 and seized M.Os. 1 to 3. Then the Circle Inspector took further investigation. In the mean-while, said Roopa died on 1.12.2011 at about 11.45 a.m. on account of burn injuries while undergoing treatment at K.R. Hospital, Mysore. Thereafter, the inquest panchanama was conducted. Statement of the witnesses were recorded and the articles were sent to FSL and on completing investigation, a charge sheet came to be filed against the accused for the offences stated above. 3. In order to prove its case, the prosecution in all examined sixteen witnesses as PWs-1 to 16 and got marked 21 documents as Exs-P1 to P31 and three M.O.s were identified as M.O.1 to M.O.3. Thereafter, the statements of the accused as required under section 313, Cr.P.C. were recorded. Accused denied the incriminating evidence against them in the prosecution witnesses. Accused have not adduced any defence evidence. After hearing the arguments, learned Sessions Judge acquitted the accused for the offences stated above. Aggrieved by the same, this appeal is filed by the State. 4. Learned HCGP appearing on behalf of appellant-State argued that the impugned judgment of acquittal is contrary to the evidence on record; the reasoning given by the learned Sessions Judge is erroneous; the Sessions Judge ignored the legal position and has not properly appreciated the evidence of PWs-4 to 6 in its proper perspective; the learned Sessions Judge has not appreciated the evidence of Doctor PW-3; learned Sessions Judge erred in disbelieving the dying declaration of the deceased recorded as per Ex-P7; there are absolutely no reasons to disbelieve the said dying declaration, on the other hand, there are no reasons to falsely implicate the accused. Even in their statement recorded under section 313, Cr.P.C. the accused have not given any explanation as to how the deceased Roopa caught, fire. The Doctor has stated that the deceased Roopa was conscious. The relatives of the deceased have supported the case of the prosecution which corroborates the dying declaration. Even in their statement recorded under section 313, Cr.P.C. the accused have not given any explanation as to how the deceased Roopa caught, fire. The Doctor has stated that the deceased Roopa was conscious. The relatives of the deceased have supported the case of the prosecution which corroborates the dying declaration. Ex-P3 indicates burns to the extent of 70-80% to the deceased. The name of the accused is mentioned in Ex-P7. But the learned Sessions Judge wrongly acquitted the accused which needs to be interfered and contend to convict the respondents/accused. 5. Against this, learned Amicus Curiae Sri. B. Rajasubramanya Bhat for respondent Nos. 1 and 2/accused argued that the evidence of the mother of the deceased is not in corroboration with the case of the prosecution. No allegations are made against accused No. 1. On the other hand, the other witnesses viz., the neighbourers have not supported the prosecution case. The learned Sessions Judge has rightly disbelieved the evidence of ASI, who recorded the statement of the deceased which is subsequently termed as dying declaration. With these contentions, he supported the judgment of the trial court. 6. Learned counsel for accused No. 3 also argued on the same line with that of Amicus Curiae and prayed for dismissal of the appeal. 7. We have perused the judgment of the trial court. 8. The learned Sessions Judge held that the statement of the deceased which was subsequently termed as 'dying declaration' under section 27 of the Indian Evidence Act cannot be said as truthful or it is free from suspicion. The learned Sessions Judge held that as per MLC register Ex-P2 and the evidence of the Doctor PW-2 Dr. Yogendra Kumar, the deceased stated that it was a suicidal one on account of the harassment caused by the accused. Thus Ex-P7 is a subsequent statement which is recorded by ASI on the next day. So the learned Sessions Judge stated that as two versions are available, one is death of Roopa as suicidal and the other homicidal, both the versions will have to be carefully scrutinized and held that normally the version favourable to the accused is to be considered. The contents of Ex-P7 indicates that it is contrary to the statement given by her before the Doctor as per Ex-P2. But the manner in which the statement is recorded is contrary to her earlier version. The contents of Ex-P7 indicates that it is contrary to the statement given by her before the Doctor as per Ex-P2. But the manner in which the statement is recorded is contrary to her earlier version. There is no mention regarding anything stated before the Doctor. The evidence of other witnesses does not corroborate the evidence or charge particularly the evidence of mother of the deceased. The learned Sessions Judge while accepting the version before the Doctor held that the version relied on by the prosecution Ex-P7 is not truthful, as the said statement may be due to tutoring by her parents and as there is no other evidence, hence, by giving the benefit of doubt, acquitted the accused. We have reassessed the evidence in the light of arguments advanced by both sides. 9. Admittedly, there are no eyewitnesses to the incident. The entire prosecution case rests on the circumstantial evidence and Ex-P7 statement stated to have been given by the deceased Roopa before the ASI. The marriage of the deceased with accused No. 1 took place more than eight years prior to the incident. They have also got two children. These facts are not disputed. 10. On perusing the contents of Ex-P7, there are no allegations forthcoming to prove the offence punishable under section 498-A of Indian Penal Code. Accused Nos. 2 and 3 are in no way related to the deceased or accused No. 1. According to the prosecution, they are the neighbours of accused No. 1. Any enmity or ill-will against the accused is not forthcoming. The motive for the offence is also not clearly stated by the prosecution. The alleged statement Ex-P7 which the prosecution used it as 'dying declaration' admittedly does not bear the signature of the deceased. Though according to the PW-4, the mother of the deceased, she and her son went to the house during the night itself, they did not choose to lodge any complaint. If at all the deceased had stated before them that the accused have set fire to her and if at all she was in a condition to speak, then definitely, either the mother or brother of the deceased should have informed the police in this regard. The intimation was already given to the police by the hospital authorities. Why the complaint was not registered immediately or why the statement of the mother and brother is not taken. The intimation was already given to the police by the hospital authorities. Why the complaint was not registered immediately or why the statement of the mother and brother is not taken. On the other hand, according to the defence, there was evidence of the Doctor to show that it was a suicide. 11. It is settled principles of law that the 'dying declaration' as per Section 32 of Indian Evidence Act is a solemn declaration given by the declarant who was approaching the death. The said principle is based on the theory that the person in expectation of death will not lie. It is settled principle of law that the Court must examine the possibility of dying declaration being a product of tutoring or of imagination of the deceased. If there is some infirmity, the Court should look for corroboration. The dying declaration must be such it has to inspire the confidence of the Court. Only if the dying declaration is truthful and voluntary, then it is suffice to convict the accused on the basis of said dying declaration. It is also settled principles of law that simply because the dying declaration is recorded by the police, the same is not a ground to disbelieve it. But when there are plurality of dying declarations, it is the duty of the Court to consider each of them in its proper perspective. Since the accused has no opportunity of cross-examine the author of the dying declaration, the court should be on guard and satisfy itself as to whether it was result of tutoring or prompting. In the light of these settled principles, we have to reassess the evidence. 12. PW-2 Dr. Yogendra Kumar deposed that during night of 27.11.2011 early morning, he was on duty in Emergency Department at MIMS Hospital, Mandya. In the early morning, at about 1.10 a.m., one Roopa was brought by her husband Nagaraju for treatment. She has sustained burn injuries and she was conscious. She stated before him that her husband Nagaraju and neighbours Bora and Thimma were harassing her and she poured kerosene on herself and tried to commit suicide. The Doctor deposed that there was about 78-80% of superficial burn injuries. She was admitted to the hospital and sent to surgery department and police were also intimated in this regard. She stated before him that her husband Nagaraju and neighbours Bora and Thimma were harassing her and she poured kerosene on herself and tried to commit suicide. The Doctor deposed that there was about 78-80% of superficial burn injuries. She was admitted to the hospital and sent to surgery department and police were also intimated in this regard. He has produced the copy of the original MLC (Medico Legal Case) register before the Court which was compared with the original and marked as Ex-P2. The Doctor has further stated that he took the left thumb impression of her husband in the MLC register as he had brought her. He has also stated that he has issued intimation to the Mandya Police and for further treatment, the deceased was shifted to another hospital as per Ex-P3 and Ex-P4. Ex-P6 is the admission record of Mandya Institute of Medical Sciences and Teaching Hospital, Mandya, wherein it is also mentioned that deceased Roopa had sustained 70-80% superficial and deep burns and in the history, it is mentioned that the deceased had come with a history of suicidal burns on 28.11.2011. The consent signature of mother of the deceased was taken for her surgery. In the cross-examination by the accused, this witness has stated that the police outpost was situated in the hospital premises. The intimation to police was given in the early morning at 3.45 itself. PW-2 has also stated in the cross-examination that the severity of the burns sustained by the deceased was affecting her from minute to minute. He does not know when she was shifted to another hospital. 13. It is pertinent to note here that the prosecution has not denied the evidence of PW-2 Doctor. If at all the version of the Doctor is not true, then the learned Public Prosecutor should have treated him as hostile witness and cross-examined, but no such cross-examination is forthcoming. This evidence is fatal to the prosecution. Because it is the first information or disclosure given by the deceased Roopa. Her version before PW-2 is she tried to commit suicide by pouring kerosene on herself because of the harassment meted out to her at the hands of the accused. This evidence stood unchallenged. There is absolutely no reason to disbelieve the evidence of PW-2. Because it is the first information or disclosure given by the deceased Roopa. Her version before PW-2 is she tried to commit suicide by pouring kerosene on herself because of the harassment meted out to her at the hands of the accused. This evidence stood unchallenged. There is absolutely no reason to disbelieve the evidence of PW-2. Statement stated to have been recorded by ASI after a long time of incident creates doubt about the truthfulness and veracity of the said statement Ex-P7. 14. PW-3 Dr. Mohan has deposed in his evidence about admitting the said Roopa to their hospital. He states that on 28.11.2011 at about 12.30 p.m., one ASI has sent requisition to him to record the statement of Roopa and sought his opinion about her condition. He found that she was conscious and oriented. He made endorsement on the said requisition and in his presence, the ASI recorded the statement as per Ex-P7. He has further stated that since both the hands of the deceased were burnt, her signature was not taken on the statement. He has identified his endorsement at Ex-P7(a). He has stated that on 1.12.2011, at about 11.45 a.m., the deceased succumbed to the burn injuries. He has identified the outpatient slip as per Ex-P8 and the hospital records as per Exs-P9 and 10. Exs-P11 and 12 are the intimation given to the police. In the cross-examination, the witness has stated that as mentioned by the duty Doctors who were working under his supervision, the patient was conscious and oriented. They are post-graduate Housemanship Doctors and post-graduate Medical Students who have mentioned the condition of the deceased in the case sheet. He has also admitted that in the case sheet at Ex-P9, it is mentioned that the general condition was not satisfactory and as per Ex-P9, burns are about 80-85% superficial and deep. He has stated that the patient was conscious. Separate endorsement for having received the requisition of ASI is produced at Ex-P10(a) for recording the statement of the witnesses. He has also admitted that on 23.11.2011 itself, when deceased Roopa was admitted, it is mentioned in Ex-P10 that the patient was breathless. He has also admitted that in Ex-P18, some words which were appearing in the original were not forthcoming and he do not know, when those three words were inserted. He has also admitted that on 23.11.2011 itself, when deceased Roopa was admitted, it is mentioned in Ex-P10 that the patient was breathless. He has also admitted that in Ex-P18, some words which were appearing in the original were not forthcoming and he do not know, when those three words were inserted. In the cross-examination, he has admitted that in Ex-P10 the history sheet, he has not mentioned anything, but it was mentioned by the duty Doctor and he cannot say who is the duty Doctor. Therefore, the evidence of this Doctor will have to be scrutinised carefully before accepting his evidence. Because, his evidence is not supported or corroborated by the evidence of mother of the deceased Sakammma. 15. PW-4 Sakamma is the mother of the I deceased Roopa. According to her evidence, ' she received telephone call from the village of the accused stating that the deceased had poured kerosene on herself and set fire to herself and hence, herself, her husband and her son went to District Hospital, Mandya at about 1.00 a.m., As per the advice of the Doctor, they shifted injured Roopa to K.R. Hospital, Mysore. Therefore, according to PW-4, the first information which she received is that it is deceased who set fire to herself by pouring kerosene which corroborates the evidence of the Doctor PW-2. She has deposed a different version to that of prosecution case by stating that when they enquired their daughter at Mandya Hospital, she was conscious and she told them that when her husband was in deep sleep after consuming alcohol, accused Nos. 2 and 3 have poured kerosene on her and set fire. So this version is totally contrary and inconsistent to the charges and evidence of other witnesses. She has stated that the accused left the hospital after they came to the hospital. She has also stated that when the statement of the deceased was recorded by the police, she was sent out of the room and her son and husband were also outside the said room. She deposed that the police came to record deceased statement after three days on her admission to hospital. This creates a doubt regarding recording of such statement. She has further deposed that on account of a site, there was galata between accused No. 1 and accused No. 2. She deposed that the police came to record deceased statement after three days on her admission to hospital. This creates a doubt regarding recording of such statement. She has further deposed that on account of a site, there was galata between accused No. 1 and accused No. 2. In this regard, accused No. 2 had lodged a complaint on accused No. 1 and his brother. There was also a property dispute. In this regard, accused Nos. 2 and 3 have done this act. But she never stated anything against accused No. 1. The prosecution has treated her partially hostile witness. But in the cross-examination, she has denied having given any statement implicating accused No. 1 as per Ex-P3. She further stated that at the time of incident, only accused No. 1 and deceased were present in the house. So, her evidence makes the entire dying declaration stated to have been given by deceased as per Ex-P7 becomes doubtful. In the cross-examination, she has stated that they never informed police in this regard. She has denied the suggestion that the deceased was in the habit of consuming alcohol and always harassing accused No. 1. She has also denied the suggestion that at the instance of the deceased only, accused No. 1 resided at Bengaluru, Channapatna, Mandya and K.R. Pete. It was suggested that because of the bad habits of her daughter, accused No. 1 was visiting the house only twice or thrice a week. She has denied the suggestion that in the state of intoxication, deceased put kerosene on herself and set fire to herself when accused No. 1 was not in the house, when the villagers informed accused, he took the deceased to the hospital. 16. PW-5, Bairaiah, is the husband of PW-4 and father of deceased Roopa. He has not seen the incident. He gave a different version stating that when the deceased Roopa was in K.R. Pete, one of her children was with them and the other child was with her. But nothing is forthcoming as to where the children were at the time of the incident. He has also stated that the deceased told them in the Mandya Hospital that accused have set fire, but why they did not lodge any complaint in this regard at the earliest point of time is not forthcoming. But nothing is forthcoming as to where the children were at the time of the incident. He has also stated that the deceased told them in the Mandya Hospital that accused have set fire, but why they did not lodge any complaint in this regard at the earliest point of time is not forthcoming. He has not given any reason as to why the accused have committed the said act. He has denied the suggestion that he has given statement as per Ex-P14. He further deposes that by the time, they came to the hospital, the deceased was shifted to K.R. Hospital, Mysore and they went to Mysore Hospital next day. Therefore, the evidence of PW-4 that herself, her son and her husband along with grand children went to Mysore Hospital and the deceased informed them about the act committed by the accused is totally falsified by evidence of PW-5. It appears that deceased was not in a position to give the statement. He has admitted that accused No. 1 was looking after the deceased very well and there was no quarrel or misunderstanding between them. He has further stated that he does not know as to why PW-4 had retained one child in her house. His evidence is totally inconsistent and contrary to the evidence of his wife PW-4. 17. PW-6 Anand is the brother of the deceased has given a new version. He has stated I that when they received the message about the deceased admitted to Mandya Hospital, he and his mother PW-4 came to Mandya Hospital at about 1.00 a.m. He further deposed that since the deceased had suffered burns and as she was not in a position to speak, they could not ask her the details about the incident and as per the advice of the Doctor, the deceased Roopa was shifted to K.R. Hospital, Mysore for further treatment in ambulance. When they enquired deceased Roopa in the ambulance, the deceased informed them that due to petty issues, her husband, Bora accused No. 2 and Thimma accused No. 3 quarrelled with her and poured kerosene on her, lit fire, closed the door and went away. The villagers after hearing her screaming, shifted her in an ambulance to the hospital. In the cross-examination, he has admitted that accused No. 1 and deceased Roopa never resided in her parents' house. The villagers after hearing her screaming, shifted her in an ambulance to the hospital. In the cross-examination, he has admitted that accused No. 1 and deceased Roopa never resided in her parents' house. He has further stated that accused No. 1 and deceased Roopa never visited their house. He has also stated that accused No. 1 had a great love and confidence towards his wife Roopa. This statement belies the allegation under section 498-A of IPC and the allegation of accused No. 1 causing the death of the deceased. He does not know about the disputes between accused Nos. 1 to 3. 18. PW-7 Chikkanna, PW-8-Mayiboraiah, PW-9-Chikkahanumaiah, PW-10 Devaraju as per prosecution case, were the witnesses, who came to the house of accused after hearing the screaming of deceased Roopa and opened the door. It is evident from their evidence that their house is near to the house of accused No. 1 and deceased. But they have denied about any harassment or incident as alleged by the prosecution. The prosecution has treated them as hostile witnesses. Nothing helpful to the prosecution is elicited in their evidence. Their evidence further creates doubt about the prosecution charges. 19. PW-11 Sunanda is a Asha Karyakarthe or worker who was residing near the house of the deceased. She has also stated that the relationship between the deceased and accused No. 1 was cordial and she has never seen any quarrel between accused No. 1 and deceased. She has further deposed that children of deceased were residing with her. Similarly, PW-12 has also stated on the same line with that of PW-11 and she has not supported the case of the prosecution. The prosecution has treated her as hostile witness and cross-examined them at length. Nothing helpful to the prosecution is elicited in their evidence. 20. PW-14 C. Prakash a panch witness has not supported the scene of offence panchanama nor the seizure of kerosene can and the match stick. 21. PW-13 ASI Venkataram has stated in his evidence that he visited K.R. Hospital on 28.11.2011 at 11.00 a.m. and asked the Doctor to be present as the statement of the injured is to be recorded. The Doctor made endorsement on his requisition as per Ex-P10(a) and stated that injured was in a position to give the statement. In the presence of Dr. The Doctor made endorsement on his requisition as per Ex-P10(a) and stated that injured was in a position to give the statement. In the presence of Dr. Mohan, he recorded the statement of the deceased Roopa as per Ex-P7 and she has stated and he has reiterated what is mentioned in Ex-P7. He further stated that as both her hands and legs were burnt, he could not take her signature on the said statement. Then he gave the xerox copy of statement to the Doctor. He sent the FIR to the Court. At the time of recording the statement, deceased, the Doctor and another patient was there. But who is that another patient is not forthcoming. He has stated that he received information from the PSI about deceased admitted in the hospital and he does not know whether PSI mentioned in the case diary in this regard, but he went to K.R. Hospital and took a intimation memo from the Doctor from outpost. He has stated that as per the memo only, he went to the ward and he asked who is Roopa and he recorded her statement. He has denied the suggestion that he has created the said statement. He has further stated that at the time of recording the statement, the relatives of deceased Roopa were standing outside. He has deposed that he did not meet any of the relatives of the injured. This appears to be totally unnatural. Because when police visit the hospital, they enquire with the close relatives as to what had happened and how incident took place. They will record their statements and register the complaint immediately when the injured was not in a position to make any signature. But, the evidence of this witness indicates that even he does not know whether her relatives were present at the hospital or not itself creates doubt about the investigation done by him. On the other hand, PW-4 states that she was sent out by the police before recording the statement. Even on perusing Ex-P7, it is mentioned that there is some insertion of three words. He has mentioned in his endorsement that at about 5.15 p.m., the case was registered. That at "17.15" appears to have been inserted subsequently. The endorsement by PSI shows that the statement was recorded at 12.30 to 1.15. The endorsement Ex-P7(a) indicates on the top and below at "1.00 pm'. He has mentioned in his endorsement that at about 5.15 p.m., the case was registered. That at "17.15" appears to have been inserted subsequently. The endorsement by PSI shows that the statement was recorded at 12.30 to 1.15. The endorsement Ex-P7(a) indicates on the top and below at "1.00 pm'. There is no supporting endorsement issued by the Doctor stating that the injured or deceased was in a fit state of mind and she was conscious and fit to give the statement. On the other hand, what is recorded by the Doctor is that the statement was given by the patient herself before him and then he has stated that the patient was conscious all through her statement and the statement is recorded by ASI. So there is no statement or endorsement by the Doctor that before recording the statement that she was conscious and in a fit state of mind; Ex-P10(a) does not indicate as to whether the Investigating Officer has verified with the Doctor regarding her state of mind or capacity to give the statement. Ex-P10(a) indicates it is mentioned in the letter addressed to duty doctor stating that as deceased was taking treatment and her statement is to be recorded and the presence of counter signature of Doctor is necessary, so he has requested him to be present. There is no letter requesting the Doctor or the duty Doctor to state regarding the state of mind or condition of the patient. This creates doubt about the truthfulness of the statement stated to have been given by deceased Roopa and thereby creates doubt about the evidence of this ASI. So this evidence indicates that Ex-P7 statement is not truthful and not free from doubt particularly in the light of the evidence given by other witnesses. His cross-examination clearly indicates that it is not safe to rely on such evidence. 22. PW-15 H.K. Krishna Police Constable has stated about handing over the FIR to the Magistrate. It is evident that the FIR was received in the Magistrate Court on 29.11.2011 at 11.15. This delay in sending the FIR to the Court merely after 1½ days of the incident further creates doubt. This evidence indicates that there were number of buses from Bengaluru, Kollegala, Chamarajanagara, Madduru and K.M. Doddi. 23. It is evident that the FIR was received in the Magistrate Court on 29.11.2011 at 11.15. This delay in sending the FIR to the Court merely after 1½ days of the incident further creates doubt. This evidence indicates that there were number of buses from Bengaluru, Kollegala, Chamarajanagara, Madduru and K.M. Doddi. 23. PW-16 Krishnappa, Circle Inspector has conducted the inquest panchanama as per Ex-P25 and recorded the statement of the mother and other witnesses. But this witness has denied having given such statement. It is stated that accused No. 1 was arrested on 17.12.2011 but as per the evidence of the prosecution witnesses, accused No. 1 was present in the hospital on that day. He himself got admitted his wife. In the cross-examination, he has stated that according to him, statement of deceased at Ex-P2 may not be correct. But, he has admitted such entry in Ex-P2 discloses attempt to suicide. This creates doubt about the investigation done by him, particularly in the light of the evidence of PW-4 and the other evidence. 24. FW-17 Jagadish PSI of K.M. Doddi Police Station has stated about conducting further investigation and conducting scene of panchanama. The scene of panchanama sketch gives totally a different version. Ex-P26 sketch indicates that place of the scene of offence is outside the house. The scene of offence panchanama indicates the scene of offence is inside the house. It does not indicate any other burnt material inside the said house. Investigating Officer did not find any items which were burnt. Even there is no mention as to kerosene on the ground. This creates doubt about the scene of offence panchanama. 25. Therefore, on reassessing of the entire evidence of the prosecution, it is evident that there are two versions of dying declarations. As stated above, the dying declarations if found truthful to the conscience of the Court, then only that can be acted upon. On the other hand, when there is dying declaration or statement given by the deceased before the Doctor, it is the first dying declaration recorded by the Doctor stating that she has suffered burn injury by pouring kerosene on herself because of harassment by accused i.e., attempt to suicide, that cannot be disbelieved. The second dying declaration creates doubt, in view of other evidence and as the first dying declaration, as per evidence of Doctor, is not denied by the prosecution. The second dying declaration creates doubt, in view of other evidence and as the first dying declaration, as per evidence of Doctor, is not denied by the prosecution. There is delay in registering the complaint and sending the FIR to the Court. Statement of close relatives of the deceased were not recorded nor case was registered at earliest point of time. There is no evidence to show that the deceased was conscious and oriented or she was in a position to give statement before ASI. The burn injuries were deep and superficial to the extent of 75% to 80%. It is also mentioned in medical history sheet that the injured was breathless. So under such circumstances, whether, she would be in a position to give statement or whether she was in a position to speak about the incident is doubtful. Such deep injuries will definitely affect her mental condition and medical records indicates that from minute to minute the condition of the deceased was deteriorating. Under the said circumstances, the ASI and the Doctor who made endorsement on it cannot be believed particularly in the light of other evidence and the evidence of the PW-2 Doctor who first examined her and recorded statement given by her as per Ex-P2. 26. Simply because the accused have not given any explanation under 313 Cr.P.C. statement, does not absolve the prosecution of proving its initial burden beyond all reasonable doubt. Only if the prosecution proves its case beyond reasonable doubt, then the burden shifts on the accused. In this regard, the Hon'ble Supreme Court has considered the fact of non explanation of 313, Cr.P.C. statement by the accused and drawing any inference under section 106 of Indian Evidence Act and the decision reported in Crl.A. No. 1348/2013 dated 02.03.2021: (Reported in MANU/SC/0136/2021 : AIR 2021 SC 1249 ) in Shivaji Chintappa Patil v. State of Maharashtra, it is held at para 22 as under:- "Section 106 of Evidence Act does not directly operate against either a husband or wife staying under the same roof and being he last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. In this case, the prosecution has failed to prove beyond reasonable doubt, that the death was homicidal." 27. Regarding appreciating the statement of injured who has sustained deep burns and appreciating such statement on dying declaration, the Hon'ble Supreme Court in a similar type of case in Sampat Babso Kale and Another (2019) 4 SCC 739 : ( AIR 2019 SC 1852 ), wherein the injured deceased has sustained severe burn injuries to the extent of 98% and the Supreme Court considered the nature of the burn injury and as to whether the victim was in a fit state of mind to make the statement with that percentage of injury, it is held in para 16 as under:- "In the present case, as we have already held above, there are some doubt as to whether the victim was in a fit state of mind to make the statement. No-doubt, the doctor has stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion and therefore, there is a need to look for corroborative evidence in the present case." 28. Further the Hon'ble Supreme Court in the same decision has enunciated the principles regarding interference by the High Court while considering the appeal against acquittal, it is held at para 8 as under:- "With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka 2007 AIR SCW 1850), laid down the following principles: (SCC p. 432, para 42). "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 29. So in the light of the principles stated above and the discussions made by us, we find that there are material contradictions and inconsistencies which goes to the root of the case. There is no corroboration to the charge levelled against the accused. The possibility of the relatives/witnesses influence the police to prepare such statement also cannot be ruled out, as, they have lost the life of their loved and dear one. Second dying declaration appears to be not truthful and trustworthy. 30. There is no corroboration to the charge levelled against the accused. The possibility of the relatives/witnesses influence the police to prepare such statement also cannot be ruled out, as, they have lost the life of their loved and dear one. Second dying declaration appears to be not truthful and trustworthy. 30. There is lot of difference between 'may be true' and 'must be true'. If from the evidence of prosecution, two views are possible, then the view favourable to the accused will have to be accepted. 31. The learned Trial Judge has rightly appreciated the evidence of the prosecution witnesses and discussed the circumstances meticulously and came to the conclusion that the prosecution has failed to prove the guilt beyond all reasonable doubt and by giving the benefit of doubt rightly acquitted the accused. 32. We find no perversity or error in the judgment of the trial court. Hence, the appeal being devoid of merit is liable to be dismissed. Accordingly, we pass the following:- ORDER The Appeal is dismissed. This Court appreciates the services rendered by the learned Amicus Curiae who appeared on behalf of the respondent/accused and assisted the Court. Office is directed to pay an honorarium of Rs. 10,000/- to the learned Amicus Curiae.