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2021 DIGILAW 699 (KER)

PRASAD, S/O. UNNIKRISHNAN v. STATE OF KERALA

2021-08-04

K.VINOD CHANDRAN, ZIYAD RAHMAN A.A.

body2021
JUDGMENT : Vinod Chandran, J. A woman, married, with a child, suffered 60% burns and succumbed after about seven days. It was no accident and either she immolated herself or the accused did it. Whoever it be, the cause allegedly is retaliation for not reciprocating the love of one for the other. The prosecution case is that the victim, with whom the accused had prior acquaintance from the hospital where they were working, was abducted and taken to his house. Inside his house, he proposed to her and she declined, which resulted in the accused pouring petrol over her and setting her ablaze. The defence is that the deceased set herself ablaze, inside the parental house of the accused since he resisted her advances and demands to get into a proper marriage; a vengeance proper. 2. Sri.P.Vijayabhanu, learned Senior Counsel instructed by Smt. Pooja Pankaj appeared for the appellant and Smt.S.Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children] appeared for the State. 3. Learned Senior Counsel took us through the entire evidence and pointed out that the occurrence witnesses turned hostile. Yet another aspect was the dying declarations made, as evidenced in Ext.P18 wound certificate of the deceased and the testimony of PW23, the husband of the accused and PW24, a co-worker of the deceased. As far as Ext.P18 is concerned, there are interpolations and PW15, the doctor who examined the deceased first, clearly deposed that she was unconscious. There was no challenge to the statement in cross-examination made by the prosecution. PW3 and PW4, who had seen the victim immediately after the burn injury, testified that she was unconscious. PW9, the brother of the victim, does not speak of any dying declaration. As far as the testimony of PWs.23 and 24, the condition of the victim who suffered 60% burns has not been proved by the prosecution. The victim suffered burns on 21.02.2009, to which she succumbed on 28.02.2009. She was throughout admitted to the Medical College Hospital [MCH], Kozhikode. Neither the treatment chart nor a doctor's certificate was produced to show that she was mentally and physically fit to make the dying declaration. PW23 and PW24 did not speak about the dying declaration to the police when the 161 statement was recorded. 4. She was throughout admitted to the Medical College Hospital [MCH], Kozhikode. Neither the treatment chart nor a doctor's certificate was produced to show that she was mentally and physically fit to make the dying declaration. PW23 and PW24 did not speak about the dying declaration to the police when the 161 statement was recorded. 4. The prosecution attempted to establish the crime, including abduction, by witnesses who spoke of the accused informing them that the victim was in his custody at his house. Though two mobile phones were alleged to have been seized, it is not clear from whom it was seized or to whom they belonged. The Investigating Officer [IO] made absolutely no effort to take out the call details or even establish the mobile numbers of the accused, the deceased and her husband. A car was seized on the premise that the accused abducted the victim in the said car. Not even the ownership was proved. There is inconsistent evidence as to, for what reason the victim left the hospital in the afternoon. In any event, the prosecution case is that she left voluntarily from the hospital and she boarded a KSRTC bus. The bus driver turned hostile and nobody has seen the victim together with the accused at any time before the occurrence. It is not clear as to what was the substance used on the victim and who bought it. The learned Senior Counsel would assertively urge that suspicion however grave cannot take the place of proof and unless the circumstances provide an unbroken chain linking the accused to the crime, that too, beyond any reasonable doubt, there could be no conviction under the offences charged under Sections 366 and 302 IPC. Sri.Vijayabhanu relies on the decisions in Surinder Kumar v. State of Haryana [ (2011) 10 SCC 173 ], Naresh Kumar v. Kalawati & Ors. [2021 SCC OnLine SC 260] and Jayamma & Anr. v. State of Karnataka [2021 SCC OnLine SC 369] to seriously assail the dying declaration relied on by the prosecution. 5. Learned Special GP points out that the entire case is built on circumstantial evidence; since the ocular witnesses have turned hostile. The incident occurred in the house of the accused and he has no plausible explanation as to how the victim reached there. It could only be by abduction. 5. Learned Special GP points out that the entire case is built on circumstantial evidence; since the ocular witnesses have turned hostile. The incident occurred in the house of the accused and he has no plausible explanation as to how the victim reached there. It could only be by abduction. Homicide is for the reason of refusal by the victim to marry the accused. The crucial aspect in the evidence is the dying declaration made by the victim to PW23, her husband and PW24, his colleague on two separate dates, on 23.2.2009 and 26.02.2009. Both are trustworthy and reliable witnesses. Paras Yadav v. State of Bihar [1999 KHC 968 = (1999) 2 SCC 126 ] is relied on to contend that if evidence of the witness does not suffer from any infirmity, a dying declaration can be believed without any further corroboration. Advancing the contention that the absence of a declaration from the doctor as to the condition of a victim will not always render the dying declaration invalid reliance is placed on Jagbir Singh v. State (N.C.T. of Delhi) [2019 KHC 6884 = (2019) 8 SCC 779 ]. The victim was set ablaze after pouring petrol over her and there is scientific evidence to prove the same. The postmortem report juxtaposed with the evidence led, establish the guilt of the accused beyond a reasonable doubt, as held in Kadamanchi Laxmi v. State of Andhra Pradesh [2019 KHC 3706]. State of Karnataka v. K.Yarappa Reddy [ (1999) 8 SCC 715 ] is relied on to argue that the lacuna in an investigation cannot be allowed to enure to the benefit of the accused. The Inconclusive Medical Evidence: 6. PW17 is the doctor who conducted the autopsy. He marked P19 certificate. The cause of death is stated to be 'infective complication of burns (60% of the body surface)'. There is nothing stated by PW17 as to whether the death is by homicide or suicide. Obviously, not possible of a conclusive opinion considering the nature of the burns. The medical evidence, hence, does not provide any clue as to whether the death was by homicide. The Hostile Eye-Witnesses: 7. PW-2 was a neighbour of the accused, who turned hostile though he had stated to the Police, under Section 161, that he heard a commotion from the house of the accused, specifically a man and a woman talking loudly. The medical evidence, hence, does not provide any clue as to whether the death was by homicide. The Hostile Eye-Witnesses: 7. PW-2 was a neighbour of the accused, who turned hostile though he had stated to the Police, under Section 161, that he heard a commotion from the house of the accused, specifically a man and a woman talking loudly. When he approached the house, he saw a woman along with the accused. He also heard the accused tell her that if she does not marry him, he will pour petrol over her and kill her. He also spoke of having seen the accused set her ablaze when one Unnikrishnan and his servant, PW5 were attempting to enter the house through the front door which was closed from inside. PW2, before Court, turned hostile and denied every statement made to the Police. He merely stated that he heard a commotion from the house, but did not enquire about it. Unnikrishnan was not arrayed as a witness and PW5 said that he only had hearsay knowledge about the incident. PW7, a KSRTC driver, was summoned to speak of the victim travelling in his bus on the afternoon of the fatal day. He deposed that he had no acquaintance with the woman and turned completely hostile before Court. PW12 is a close relative of the accused, who too turned hostile in the box. He admitted to having been alerted by the outcry of one Subrahmanian Namboothiri, who lives close to the house in which the deceased was found set ablaze. He denied the presence of the accused but said that he and Subrahmanian Namboothiri saw the burning person and doused the flames with a gunny bag after which she was taken to the hospital. The prosecution suggested that he was trying to shield his relative, but failed to examine Subrahmanian Namboothiri. This Subrahmanian Namboothiri, even according to PW12 lives near to the subject house. It is also stated by PW12 that there is straight and clear vision into the subject house from the house of Subrahmanian Namboothiri; who we reiterate was not examined. The prosecution case is hence, one built on circumstantial evidence, especially since the ocular witnesses turned hostile. The Perilous FIS: 8. Ext.P1 is the FIS by PW1, who is the colleague of the husband of the victim. The prosecution case is hence, one built on circumstantial evidence, especially since the ocular witnesses turned hostile. The Perilous FIS: 8. Ext.P1 is the FIS by PW1, who is the colleague of the husband of the victim. The recitals in Ext.P1 indicate that on 21.2.2009 at 3.00 p.m., Muraleedharan, PW23, approached him inside the textile shop where they were working. PW-23 told PW-1 that when he called his wife, Dr.Prasad took the telephone and told him that his wife is in the custody of that person at his residence at Karalmanna. PW23 gave the phone to PW1, who also talked over the phone. It is stated that the person on the other side claimed that he was Dr Prasad, who was working with the victim in C.N.S. Ayurveda Hospital and they were in love. On being so informed PW-1, one Sivarajan and the victim's brother Satheesh (PW-9) proceeded to Karalmanna. When they reached the temple near the house of Dr Prasad, they were informed that the victim suffered burns and was taken to the hospital. It was also alleged that the accused poured petrol over the victim inside his home and set her ablaze intending to kill her. Having suffered grievous burns, the nearby residents had taken the victim to the nearby hospital and then she was taken to the MCH, Kozhikode where she was admitted and was being treated. It was also alleged that the victim and accused were in love and since the victim refused to succumb to his desires, the accused killed her. 9. PW1 spoke in tune with what he stated before the police. However, there was a substantial deviation in the testimony of PW6 from that stated by PW1. PW6 is the owner of the textile shop where PW1 and PW23 were working. PW6 deposed that around 2.45 p.m., PW23 came to him with a phone and said that his wife is in the custody of the accused. PW23 was disturbed and PW6 took the phone from PW23 and spoke over it. On asking the person on the other side as to who he is, the answer was that he was Dr Prasad, that he is close with the wife of PW23 and then the phone was disconnected. PW6 again called from PW23's phone and the person who picked up the phone was asked to hand over the phone to the victim, which was refused. PW6 again called from PW23's phone and the person who picked up the phone was asked to hand over the phone to the victim, which was refused. PW6, hence, told him that they are coming over to talk to him. They then enquired with the brother-in-law of the victim who was working in the same hospital and was informed that the victim had gone home from her working place. Immediately they contacted the Sub Inspector of Police, Pattambi, who sent a Police Constable, along with whom, he and one Sivan went to the residence of the accused. The witness added that Narayanan @ Kannan (PW1) was also with them. PW23, the husband did not accompany them. When PW6 reached near the house of the accused, they were told that a lady had suffered burns and was taken to a hospital at Perinthalmanna. They immediately went to Moulana Hospital, Perinthalmanna, from where they proceeded to the MCH, Kozhikode. 10. The transaction over the phone as deposed by the two witnesses tally, but there is a material deviation as to who was approached by PW23 with the telephone. While PW1 says PW23 came to him and he conversed with the man at the other end, PW6 claims he was approached and he talked to the accused. The testimony of PW23 is that when he called his wife, the accused picked up the phone and claimed that his wife was in the custody of the accused. He was upset and handed-over the phone to his employer, PW6. He also says that PW6 and one Sivan along with three others went to the house of the accused. If PW6 and PW23 are to be believed, then the FIS is in peril since PW1 specifically spoke of PW23 approaching him and handing over the phone to him; quite contrary to what PW1 deposed and the FIS reveals. PW6 also says that when they heard about the incident from near the house of the accused, the four of them, ie: PW6, one Sivan, a Police Constable and PW1, first went to Moulana Hospital, Perinthalmanna and from there to the MCH, Kozhikode, where they reached around 8.45 p.m. They remained there for about 1½ hours and then returned to Pattambi. Then the question arises as to how and why, at 11'0 Clock (in the night) on that day PW1, who accompanied PW6, went to Cherpulassery Police Station and registered the FIS, on the sly. PW23, quite interestingly, asserts that he did not leave the shop and left his employer and two colleagues to pursue his wife and the accused. He also deposed that at 7 p.m the three returned and the policeman informed him that his wife was admitted to the MCH. He says that he went to the police station and informed them about the incident and went to the MCH only on the next day. The FIS itself is in serious peril. 11. We find that the brother of the victim, PW9 has a totally different story to offer. He says that one Satheesh, the colleague of PW23, who figures in Ext.P9 Inquest Report called him to say that his sister was in the custody of the accused. He goes on to say that at 4.00 p.m when he called his sister, the accused picked the phone and confirmed that the victim was with him. Hearing this, he along with PW23, the husband and one Satheesh went to the house of the accused and from there went to MCH, Kozhikode. PW23 asserts that he went to the MCH only on the next day. In the context of the divergent testimony by PW1 on the one hand, PW23 and PW6 on the other and PW9 who spoke quite differently, we find difficulty in believing the version of what transpired in PW6's shop and the conversation over the telephone. There was also no attempt by the I.O to ascertain the telephone numbers of the deceased and her husband and obtain the call details on the crucial date. 12. It is also very unlikely that a person who abducted a married woman and had designs to either marry her or do away with her, would reveal his identity and the place where the victim is kept in confinement. Further PW6, whose testimony PW23 supports, speaks of the S.I of Police having been informed and the S.I having deputed a policeman to accompany them. The complaint being of abduction of a woman, that too a married woman, definitely an FIR would have been registered or at least a G.D (General Diary) entry made. Further PW6, whose testimony PW23 supports, speaks of the S.I of Police having been informed and the S.I having deputed a policeman to accompany them. The complaint being of abduction of a woman, that too a married woman, definitely an FIR would have been registered or at least a G.D (General Diary) entry made. More importantly, the policeman if arrayed as a witness could have corroborated the version of the husband's colleagues having gone to Karalmanna on information received of the illegal confinement of the wife. The presumption is that the prosecution failed to array that policeman as a witness, since the witnesses arrayed spoke a deliberate falsehood; both equally fatal to the prosecution. None of the witnesses was asked whether they had any prior acquaintance of the accused or whether they knew the location of the residence of the accused. We discard the evidence offered of a telephone conversation with the accused in toto. An Imaginary Motive: 13. We also do not hear the motive spoken of by any witnesses. PW3, the Manager of the Hospital, PW4, its owner and PW24 & PW9 employees of the hospital, the last of whom is the victim's own brother do not speak of an affair between the victim and the accused. All of them were working along with the accused and the victim when the accused was a Doctor attached to PW4's Hospital. PW8 was the Doctor who joined after the accused left PW4's Hospital. She deposed in chief-examination that she was asked by the Police about the details of the work of the accused; obviously points to her knowledge about that. She too did not speak of any such affair between them. The husband's colleagues or the husband himself did not speak of their knowledge of any illicit relationship between the accused and the victim. Pertinently the victim never complained of any untoward or an amorous advance made by the accused when he was working with her or after he left PW4's hospital. We find the motive also to be a mere story that remained not established. BROAD DAYLIGHT ABDUCTION: 14. PW3, the Manager of the C.N.S Ayurveda Hospital deposed that the victim, on the crucial day left in the afternoon citing the reason of her child suffering from fever and headache. We find the motive also to be a mere story that remained not established. BROAD DAYLIGHT ABDUCTION: 14. PW3, the Manager of the C.N.S Ayurveda Hospital deposed that the victim, on the crucial day left in the afternoon citing the reason of her child suffering from fever and headache. PW4, the owner of the Hospital says that the Manager (PW3) informed him that the victim had on the fatal day left the workplace to see the accused. According to PW9, the brother of the victim, she left the hospital, where he too was working, intending to go to Pattambi. PW23 deposes that she left in the afternoon since she herself had to see a Doctor about a chest pain she was suffering from. Whatever be, the victim voluntarily left her workplace after informing her superior and she is said to have boarded a KSRTC bus at 1.40 p.m (PW3). The incident occurred after 3.00 p.m and the abduction should have been from the public road in broad daylight. No investigation was conducted as to how and from where the abduction was carried out. The seizure of a car, without any details as to its ownership, we regret to say, is farcical. This is another broken link in the chain of circumstances as to how the victim reached the house of the accused; if not voluntarily. We find the allegation of abduction to be not proved by the prosecution. THE DICEY DYING DECLARATIONS: 15. Now we come to the dying declarations relied on by the prosecution and we would first deal with a judgment relied on by the prosecution. Paras Yadav (supra) was a case in which the victim while cycling home was waylaid by five persons, assaulted and eventually stabbed by one of them. Hearing the commotion, people ran to the spot when the accused fled and the victim told those who gathered as to what happened. A Sub Inspector who was on patrol duty also happened to come to the spot who registered the FIR on the statement given by the victim itself, naming the accused and specifically as to who stabbed him. Ten witnesses spoke of what the victim told them apart from the S.I who recorded the FIS and the Chowkidhar who accompanied him on patrolling duty. Ten witnesses spoke of what the victim told them apart from the S.I who recorded the FIS and the Chowkidhar who accompanied him on patrolling duty. The accused argued that the S.I failed to record the dying declaration and since no Doctor was associated, it could not be relied upon. It was in this context that the Hon'ble Supreme Court held that the defect in the investigation at all times cannot inure to the benefit of the accused. In that case, witnesses were speaking of what the victim told them immediately after the incident and they testified that he was in a conscious state to narrate what happened and the victim died after 24 hours. 16. We cannot draw any parallel with the present case. On the particular aspect of dying declaration, there cannot be found any lethargy or omission in the investigation because the Investigating Officer says that twice the Magistrate was brought to the hospital, but no dying declaration could be taken since the patient was not fit to give any statement. In this case, it is also not a stab injury to the abdomen as was the case in the cited decision. The victim had suffered 60% burn injuries and many of the witnesses spoke of the victim being unconscious. Only PW23 and PW24 spoke of the dying declaration made by the victim. The husband, PW23, admitted that the victim was unconscious when he first saw her but later on 23.02.2009, when he went to her bedside, she narrated the entire incident. The prosecution ought to have then produced the treatment chart and examined the attending Physician who could have spoken on the condition of the victim-patient. Especially when the police were informed of the incident and a constant vigil was maintained. If the patient became conscious the hospital authorities or the bystanders would definitely have informed the police. In the present case where the victim was admitted in a serious condition with more than 60% burns and many witnesses spoke of her unconscious state, it cannot be said that the deposition of the husband should be believed. 17. If the patient became conscious the hospital authorities or the bystanders would definitely have informed the police. In the present case where the victim was admitted in a serious condition with more than 60% burns and many witnesses spoke of her unconscious state, it cannot be said that the deposition of the husband should be believed. 17. PW24 admittedly did not speak of the dying declaration to the police, which was put as an omission to the witness during cross-examination and proved through the I.O. PW24 also says that the victim was admitted in the ward for women and the victim's sister was the regular by stander. He asserted that the sister heard the statement of the victim accusing the Doctor of having thrown petrol over her and set her ablaze. Strangely the sister of the victim was not examined. We are unable to rely on the dying declaration spoken of by the two witnesses without a credible medical opinion as to the condition of the victim who was admitted with 60% burns and in an unconscious state; who also succumbed to the burn injuries on the eighth day. 18. More apposite, on facts, are the decisions cited by the appellant. Surinder Kumar (supra) was a case of 95% burns allegedly caused on a married lady by a jilted lover. The dying declaration was one recorded by an Executive Magistrate on the next day of her admission and she succumbed two days later. Despite there being a certificate from the doctor that the victim was fit to make a statement, the Hon'ble Supreme Court disbelieved it since (i) the doctor who issued the certificate was not present when the victim's statement was recorded and the certificate was later issued to the police, (ii) there was no investigation into the various facts recorded, (iii) the victim had affixed her thumb impression which was impossible considering the severity of the burns and (iv) the victim was said to have spoken in a dialect different from that seen recorded. The principles as culled out from various decisions in Paniben vs. State of Gujarat [ (1992) 2 SCC 474 ] were extracted: "... The rule requiring corroboration is merely a rule of prudence. The principles as culled out from various decisions in Paniben vs. State of Gujarat [ (1992) 2 SCC 474 ] were extracted: "... The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying-declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 ), Ramawati Devi v. State of Bihar (1983) 1 SCC 211 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P, (1974) 4 SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. 1981 Supp SCC 25). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC 654 ). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu 1980 Supp SCC 455). (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar 1980 Supp SCC 769). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. 1988 Supp SCC 152). But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. 1988 Supp SCC 152). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan (1989) 3 SCC 390 )." It was held so in Surinder Kumar(supra): "28. Though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal". 19. Naresh Kumar (supra), was another case of 95% burns wherein the husband and sister-in-law were arrayed as accused. There too the dying declaration was disbelieved for reason of the doctor having not certified the fit state of mind which was held to be different from certification of consciousness as held in Paparambaka Rosamma vs. State of A.P [ (1999) 7 SCC 695 ]. State of Rajasthan vs. Parthu [ (2007) 12 SCC 754 ] was distinguished since though the certification was absent, the doctor was examined as a witness to prove the fitness of state of mind. Jayamma (supra) was yet another case in which the question agitated was whether the death was a homicide or a suicide, by burning. The relatives of the deceased themselves had turned hostile and the dying declaration was recorded by the police officer which was countersigned by the doctor. Jayamma (supra) was yet another case in which the question agitated was whether the death was a homicide or a suicide, by burning. The relatives of the deceased themselves had turned hostile and the dying declaration was recorded by the police officer which was countersigned by the doctor. The declaration was found to be not proved beyond reasonable doubt by the trial court considering the mitigating circumstances of testimonies of hostile witnesses, the nature of burn injuries and lack of corroborative evidence. Reversing the conviction entered by the High Court relying on the declaration, the Supreme Court pointed out eight reasons for doing so. Of these, relevant to our facts are (i) the accuracy with which the narrative was made, which is not expected even of a person in the normal state of mind, (ii) the inference that a person with 80% of burns would be reeling in pain and agony and normally would be delirious (iii) the alleged motive being highly doubtful; which apply squarely in this case too. The decision also relied on P.V. Radhakrishnan vs. State of Karnataka [ (2003) 6 SCC 443 ] wherein it was held that there is no hard and fast rule as to whether the percentage of burns becomes a determinative factor in deciding the credibility of a dying declaration and it would depend on the nature of the burns, the part of body affected, its impact on the faculties and other relevant factors. We bow to the above proposition and respectfully notice here the significance of a medical opinion as to the fit condition of the victim to make a declaration regarding how she suffered the burns. 20. Jagbir Singh (supra) was a case in which there were three dying declarations the earliest one, to the Doctor and the latter both, to the police. The last was recorded on the officer being specifically summoned by the brother-in-law who detected the victim in a conscious state. The first two admitted an accidental burning when the leaking petrol from the husband's motorbike caught fire, as he lit a match to smoke. The third spoke of the husband having set her ablaze after pouring kerosene over her. The Doctor had noticed the sharp smell of kerosene as distinguished from petrol in the first declaration, which smell was unexplained. The first two admitted an accidental burning when the leaking petrol from the husband's motorbike caught fire, as he lit a match to smoke. The third spoke of the husband having set her ablaze after pouring kerosene over her. The Doctor had noticed the sharp smell of kerosene as distinguished from petrol in the first declaration, which smell was unexplained. The police officer who recorded the second declaration also emphasized the smell of kerosene emanating from the scene of occurrence. Both the first statements were recorded in the presence of the husband. Paniben (supra) was relied on and in the case of divergent declarations it was held that “31. … The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered". The following extract was made from the Constitution Bench decision in Laxman v. State of Maharashtra [ (2002) 6 SCC 710 ] and it was held so in para 38: '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'. 38. We can proceed on the basis that even absence of the certificate by a Doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration”. 21. We cannot but observe that all the cases cited above are cases where there were dying declarations recorded, by the doctor, the police or by a Magistrate. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration”. 21. We cannot but observe that all the cases cited above are cases where there were dying declarations recorded, by the doctor, the police or by a Magistrate. Here no such declaration was recorded and it is the statement allegedly made to the husband (PW23) and the colleague (PW24), on two different occasions; in which context the rule of caution kicks in and we cannot ignore the fact that there is no opinion as to the condition of the victim. Applying the rule, the ante-mortem injuries noted in Ext.P19 postmortem report assumes significance and we extract it herein below: “B. Injuries (ante mortem) 1. Full-thickness (skin) burns whole of face, neck and upper limbs. Left ear was burned off at the periphery and only half was retained that too infected. 2. Skin deep dry burns front and sides of trunk up to umbilical level sparing scattered areas like the areas where the brazier was in tight contact (10cm below nipple, front of part of chest) and outer aspect of both breast. 3. Skin deep burns back of trunk up to a level 15 cm above small of back. 4. Superficial burns, infected front and outer aspect of left thigh, scattered on the inner and back of left thigh. 5. Superficial burns, top of left foot including toes (15x8 cm). 6. Superficial burns, inner aspect of right thigh and outer aspect of left leg lower part”. The above injuries indicate the whole of face, neck and upper-limbs burned to full thickness of the skin and the front and sides of trunk as also the whole of the back being affected with skin deep dry burns. The patient would have been administered sedatives and the attending Physician would have been the best person to speak on the fit mental state of the victim to speak on the cause of her injuries; especially in the context of the Police having attempted twice to record a dying declaration by a Magistrate. We notice from the Wound Certificate, Ext.P18 that the Doctor who first examined her at the MCH and admitted her, noticed the requirement to get a dying declaration (column Nos.12 and 13). We notice from the Wound Certificate, Ext.P18 that the Doctor who first examined her at the MCH and admitted her, noticed the requirement to get a dying declaration (column Nos.12 and 13). The patient would hence have been monitored closely by the hospital authorities and the Police. In the totality of the circumstances, we find it unsafe to rely on the declaration of the cause, by the victim as spoken to the husband, PW23, without any corroborative material. PW24 spoke of the declaration made to him, as to cause, first before Court, which we already found to be highly unlikely. 22. We have also noticed the various inconsistencies in the testimonies which include that of PW23 too. PW3 deposed that himself along with PW4 and PW24 visited the victim at the MCH after two days, i.e. on 23.02.2009, when she was unconscious. It was on this day the victim is said to have made the dying declaration to PW23. PW3 also said that at the time of their visit, the bystanders were the victim's sister and her brother, PW9. The brother, PW9, does not attest to the presence of PW23 and the sister was not arrayed as a witness. PW4, the owner of the hospital says, he along with PW3 & PW24 visited the victim on a Sunday, that is the next day. He too deposed that they could only see the victim from the outside and denied the victim having stated anything to them about how she suffered the burns. We assert it is difficult to believe the dying declarations as spoken of by PW23 and PW24. THE WOUND CERTIFICATE: 23. Though not very much stressed on by the prosecution, what disturbed us was the history recorded in the wound certificate by PW16 who first examined the victim on being brought to the MCH. There is also a certificate marked as Ext. P20 by PW18 who examined the victim at Moulana Hospital, where she was first taken to. No reliance can be placed on Ext. P20 since it is issued long after the incident on 15.03.2010 to the S.I of Police and the name noticed is Bindu; which was repeated when PW18 was examined. In cross-examination, PW18 said that the victim was unconscious. The certificate indicates that first-aid was given to her in the vehicle and advised to take her to MCH. P20 since it is issued long after the incident on 15.03.2010 to the S.I of Police and the name noticed is Bindu; which was repeated when PW18 was examined. In cross-examination, PW18 said that the victim was unconscious. The certificate indicates that first-aid was given to her in the vehicle and advised to take her to MCH. Learned Senior Counsel stressed on this aspect, which state of unconsciousness was not challenged by the prosecution. We have already expressed our reservation concerning the certificate issued, which does not commend us to place any reliance on the deposition of PW18. However, what is significant is that there was no question put to PW16, the Doctor who admitted her to the MCH as to the condition of the victim. The Doctor admitted that his deposition was based on the content in Ext. P18. There is a specific suggestion put in cross-examination that the alleged cause has been interpolated which was dutifully denied by the witness. But we have our own doubts. 24. The 'History and alleged cause of Injury' is recorded as 'Alleged homicide Burns involving 60% of body surface area'. The Details of injuries also have been recorded as 'Burns involving scalp, face, front of chest, abdomen, both upper limbs and both thighs'. We have already seen the severity of the injuries on the entire face which are of full thickness of the skin, on the face neck and upper limbs. Both these are in English while an interpolation is made in Malayalam in the Column provided for Details of injuries as: 'On 21.02.09 at Cherpulassery a person called Prasad poured petrol and set ablaze'. Though the use of the vernacular can be ignored as the language spoken by the victim, the interpolation raises suspicion. We cannot but notice that even if the victim who had suffered 60% burns made the statement, it would not include the date or the location. The location recorded obviously is of the jurisdictional police station and not the residence of the accused, the occurrence spot; which the witnesses of the locality termed as Karalmanna. It is definitely an interpolation as there is overwriting at the end of the first portion of the vernacular. Moreover the details of injuries recorded in English have been enclosed in brash brackets, which brackets are added later. It is definitely an interpolation as there is overwriting at the end of the first portion of the vernacular. Moreover the details of injuries recorded in English have been enclosed in brash brackets, which brackets are added later. What is available in brackets rightfully belongs in that column, under that heading and the interpolation in Malayalam ought to have been recorded alongside the just upper column where History has to be shown. The prosecution also neither asked about the medical condition of the victim; whether she was in a fit state to make a statement of the cause by herself. This assumes significance especially in the context of the Doctor having admitted that the victim was accompanied by several people; the number he could not specify. Nor was it asked as to who gave the history recorded in Malayalam. We cannot take the interpolation in the wound certificate to be convincing enough to raise it to the level of a dying declaration under Section 32. THE SCIENTIFIC EVIDENCE: 25. From the scene of occurrence, the I.O seized three umbrellas (MO3), a paint tin(MO4), a vanity bag(MO5), a purse(MO6), a tiffin box(MO7), a match stick(MO8), a melted plastic bottle(MO9), melted portion of a plastic bottle (MO10) and a matchbox(MO11). There were no telltale smells of burning noticed in the scene mahazar, Ext.P23 prepared on the next day i.e.: 22.02.2009. The scientific analysis report Ext. P32 reveals MO3, MO5, MO6, MO7, MO8 & MO9 having been subjected to tests that revealed residue of mineral oils. The use of petrol has not been established and it is the submission of the Special GP that when petrol burns, the remnant is mineral oil. However, we have no expert opinion on that and the prosecution failed to elicit the said fact, by examining a person who is competent to say so. There is no scientific evidence worthy of being relied on to connect the accused with the crime. The burnt objects recovered from the scene of occurrence; the parental house of the accused, revealed residue of mineral oils and not petrol. There is also a wound certificate produced of the accused, Ext.P17, indicating the hairs on his right forearm having been singed; which has not been noticed on arrest as on 22.02.09, evidenced by the Arrest Memo, Ext.P25 and the Inspection Memo, Ext.P26. There is also a wound certificate produced of the accused, Ext.P17, indicating the hairs on his right forearm having been singed; which has not been noticed on arrest as on 22.02.09, evidenced by the Arrest Memo, Ext.P25 and the Inspection Memo, Ext.P26. Ext.P17 certificate is dated 23.02.2009, the next day when he is produced from police custody; not compelling to be called a circumstance connecting the accused with the crime. THE CONCLUSION: 26. The case built on circumstantial evidence fails to bring home the guilt of the accused with an unbroken chain of circumstances connecting the accused with the crime of immolation of the deceased for the reason of his passionate entreaties having been spurned. The motive of an amorous intention of the accused as against the married woman, who was also a mother of a girl child is nowhere found in the evidence. The case set up of an abduction fails to have a ring of truth since it had to be from a public place in broad daylight and the destination was the parental house of the accused. That the deceased succumbed to burn injuries caused by immolation at the parental house of the accused alone is established and even the presence of the accused at the time of immolation is not proved. The prosecution case of the accused having set ablaze the deceased after throwing petrol over her, for having refused to accede to his demands to marry him has not been proved beyond all reasonable doubt and we cannot rule out the possibility of self-immolation; the motive for which eludes us. However as long as the guilt is not established by the prosecution and doubt lingers in our minds as to how and why the unfortunate incident happened, we find no way to affirm the conviction as held by the trial court. 27. The Investigation was sloppy, probably since the team was lulled into a false sense of security due to the eye-witness accounts recorded under S.161; which version was not deposed to in Court. But there were many leads the team did not follow, that of the call details, the inflammable material used and its procurement, more information on the relationship between the accused and the deceased, which definitely was beyond a casual acquaintance at the workplace and so on and so forth. But there were many leads the team did not follow, that of the call details, the inflammable material used and its procurement, more information on the relationship between the accused and the deceased, which definitely was beyond a casual acquaintance at the workplace and so on and so forth. We keep in mind the caution, that a faulty investigation cannot inure to the benefit of the accused, as held by the High Court of Telangana, in Kadamanchi Laxmi; but subject to the reservation expressed therein as seen in the following: “9. Although the learned counsel for the appellant is justified in pointing out the lacunae in the investigation, but the benefit of a faulty investigation cannot be given to the accused, especially, when the prosecution has produced cogent and convincing evidence against the accused persons. Both in the case of Amar Singh ( AIR 2003 SC 1164 ) (supra) and in the case of Aftab Ahmad Ansari v. State of Uttarakhand 2010 (2) SCC 583 : ( AIR 2010 SC 773 ), the Apex Court has opined that the plea that the investigation was done in an improper manner, would not necessarily be fatal to the prosecution case”. What assumes significance is the absence of cogent and convincing evidence against the accused. This was the reservation expressed in Yarappa Reddy (supra) too when it was held that the unscrupulous machinations of the Investigation Officer in the conduct of investigation or preparation of records cannot influence the court if the other evidence is credible and acceptable. We find no cogent and credible evidence, so convincing or acceptable as to convict the accused, from the evidence led on trial in this case. We allow the appeal and acquit the accused. The appellant shall be released from custody forthwith if not required in any other case.