1. The State – the appellant herein has preferred this appeal being aggrieved by the judgment and order of acquittal passed in S.C.No.22/2009 dated 03.06.2011 by the Fast Track Court, Kollegala, for the offence under sections 341, 354, 323, 504, 306 of IPC.

2. Brief facts of the case are as follows:-

It is the case of the prosecution that, on 12.06.2008 at about 3.00 p.m., the Victim was standing in front of her house at Kunthurmole village. The accused came near her house and quarreled with her stating why she had quarreled with his wife in the Sangha. The Accused further dragged her nighty and caught her tuft and assaulted her with hands and also abused her in filthy language. He further told her that "go and die instead of alive". The accused has insulted the Victim in a public place. The Victim, after having been insulted, decided to end her life and brought the kerosene tin and poured the kerosene on her, and set the fire herself. Consequently, she has sustained burning injury. The Victim's husband who was sitting in the nearby place of the locality, had heard the sound of quarrel from the side of his house and rushed to the spot and saw that his wife was igniting. Immediately P.W.2 and other co-villagers have shifted the Victim to the hospital. There she succumbed to the injuries on 17.06.2008 at about 12.30 a.m.

3. At the time of treatment, the Doctor has informed the police about the intention of the deceased to make her statement about the incident. The Police Head Constable No.136 visited the hospital on 12.06.2008 at about 18.30 hours and recorded the statement of the Victim and registered the case in Crime No.114/2008 under sections 354, 341 and 323 of IPC. Later, after the death of the Victim, a requisition was made to incorporate the provision under section 306 of IPC. Accordingly, a charge-sheet came to be filed by the respondent – Police for the offences under sections 354, 341, 323, 504 and 306 of IPC.

4. Since the offence under section 306 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court for further course of action. The Sessions Court framed the charges for the above said offences, read over and explained the same in the language known to the accused. The accused denied it as false, and he claimed to be tried.

5. In order to prove the case of the prosecution, the prosecution has examined nine witnesses, i.e., PW.1 to PW.9, and got marked the documents Ex.P1 to Ex.P10 and identified the material object M.O.1.

6. The trial Court, after having considered the oral and documentary evidence, opined that the prosecution had failed to prove the case beyond reasonable doubt. Hence, the trial Court passed the impugned judgment and order of acquittal.

7. Being aggrieved by the impugned judgment and order of acquittal, the State has preferred this appeal.

8. Heard learned counsel for the parties.

9. Sri.K.N.Nageshwarappa, learned HCGP, vehemently contended that the impugned judgment of acquittal passed by the Fast Track Court/trial Court is erroneous, contrary to the material on record, cannot be sustained under the law, and liable to be set – aside. Learned HCGP for the State further contended that PW.2 is the deceased's husband, and PW.3 is an independent witness. Evidence of PW.6 – The Doctor, who treated the injured and endorsed the statement recorded by PW.8, states that the victim was fit to state the incident. The law is well settled that a conviction can be based, only on the dying declaration, if it inspires the confidence of the Court. Here in this case, the Victim has spoken about the incident, and the same has been recorded by the Head Constable and endorsed by the Doctor regarding her State of mind; therefore, it would be sufficient to convict the accused. The trial Court ignored to appreciate the same, which led to the judgment of acquittal. Hence, the learned HCGP sought to allow the appeal.

10. Per contra, Sri.N.S.Sampangiramaiah, learned Amicus Curiae who is appearing for the respondent, while justifying the judgment of acquittal contending that the trial Court has rightly acquitted the accused after having gone through the oral and documentary evidence.

Learned Amicus Curiae further contended that the respondent has got double presumption of innocence, the Appellate Court while re-appreciating the evidence of the trial Court, has to keep in mind the scope of appeal as envisaged under the provision of section 386 of Cr.P.C. The Appellate Court has limited scope while re-appreciating the order of acquittal passed by the trial Court. Hence, he sought to dismiss the appeal.

11. I have given my anxious and thoughtful consideration to the arguments advanced by the learned counsel for the parties, and after having gone through the oral and documentary evidence available on record, the questions which arise for my consideration are:-

"(a) Whether the trial Court is justified in acquitting the accused for the offences under Sections 341, 354, 323, 504 and 306 of IPC

(b) Whether the State – Appellant has made out ground to interfere with the impugned judgment and order of acquittal passed by the Fast Track Court, Kollegala, in S.C.No.22/2009"

12. This Court being the first Appellate Court, in order to re-appreciate the entire evidence and material on record, it is relevant to have a cursory look upon the evidence of the witnesses.

"(a) PW.1 – Madashetty is the father-in-law of the deceased. He has lodged the complaint as per Ex.P1 and deposed that, there was a quarrel between the wife of the accused and the deceased in Self Help Organization. The women of the Village were running the same. The accused was told about the incident by his wife. After hearing about the incident from his wife, he went near the Victim's house and started insulting her in front of the public. Further, the accused dragged her nighty and held her tuft firmly and assaulted her. Consequently, his daughter-in-law committed suicide by pouring kerosene on herself and setting herself ablaze. He has supported the case of the prosecution.

(b) PW.2 – Siddashetty is the husband of the deceased." He says that, two years' ago, his wife had been to Sangha. At about 1.00 p.m., when he was sitting on the dais (Veranda) of the relative's house, he heard the sound of quarrel from the side of his house. Soon after having listened to the sound, he rushed to the spot. The accused came from the opposite direction. PW.2 further deposes that he saw his wife being burnt by pouring kerosene. He and some other villagers extinguished the fire and took her to the hospital for treatment. He further deposes that his wife has committed suicide because of the insult and assault made by the accused. He is also a witness to the oral dying declaration. He has supported the case of prosecution.

(c) PW.3 – Doreswamy is an independent witness. He is supposed to depose about the incident. But turned hostile. However, in the cross-examination of the Public Prosecutor, he admitted that on 17.06.2008, after hearing the quarrel, he came out of the house. Later, he accompanied PW.2 to the hospital. Partly supported the case of the prosecution.

(d) PW.4 – Nanjundaswamy is a witness to Ex.P3 – Seizure Mahazar under which M.O.1 was seized. When he saw the incident, PW.2 and PW.3 were trying to extinguish the fire. He has supported the case of the prosecution.

(e) PW.5 – Rajendra is also a witness to Seizure Mahazar – Ex.P3 and also Inquest Panchanama – Ex.P4. Supported the case of the prosecution.

(f) PW.6 – Dr.C.Mahadevaiah, the Doctor who treated the injured and had informed the jurisdictional police about the intention of the Victim to give herstatement before the police. He is also a witness to Ex.P5, wherein he has endorsed about the fitness of the Victim to make her statement. Supported the case of the prosecution.

(g) PW7. – P.Mahadevappa, Asst. Sub-Inspector of Police of Kollegala Rural Police Station. He made requisition to conduct Inquest Panchanama to the Tahsildar and also made a request to the Court to include the provision under section 306 of IPC after the death of the Victim.

(h) PW.8 – S.Prakash, Head Constable of Kollegala Rural Police Station. He says that he has recorded the statement of the Victim as per Ex.P5 and registered the case. He has supported the case of the prosecution.

(i) PW.9 – Ramesh.M., Police Sub-Inspector, Kollegala Rural Police Station. He has conducted the investigation and filed chargesheet.

13. Before adverting to the facts of the case, it is relevant to note the principles of the "dying declaration" and its admissibility. The Hon'ble Supreme Court, in the case of SATISH AMBANNA BANSODE vs. STATE OF MAHARASHTRA reported in 2009 (2) Crimes 19 (SC), has held that "Indian Evidence Act, Section 32 – Dying Declaration – If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis for conviction, even if there is no corroboration."

14. In the case of LAXMAN vs. STATE reported in 2002(6) SCC 710 held that, "It is indeed a hyper technical view that the certification of the Doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration."

15. In another reported Judgment, the Hon’ble Supreme Court in the case of Anjanappa V/s State of Karnataka reported in 2014 Cr.L.J 368(SC) has held that, Doctor’s endorsement about fitness of deceased, absence not material when doctor who examined deceased himself states on oath that the deceased was fit to make statement. In this case the date of incident is on 12.06.2008 and the Victim has died on 17.06.2008 i.e., the deceased died 5 days after getting burns.

16. The evidence of PW.2, who is none other than the husband of the deceased, discloses that the Victim has narrated the incident and reasons for the suicide. PW.3 and PW.4, who are the independent witnesses, had stated before the Court on oath that the deceased had committed suicide because of the quarrel, but they have not deposed about the accused's presence. The Doctor- PW.6 has endorsed on Ex.P5, which is the statement made by the Victim before PW.8, the Head Constable of Kollegala Rural Police Station.

17. The trial Court, while appreciating the evidence on the dying declaration, opined that the Doctor's certificate for the fit condition of the Victim to give a statement is essential. Unless such a certificate is there in the dying declaration, the statement said to have been given by the Victim would not have inspired the Court's confidence and hence, rejected Ex.P5 – dying declaration.

18. It is to be noted here that Ex.P5 is considered a dying declaration only after the Victim's death. Ex.P5 is the statement made before PW.8; based upon such statement, the case is registered in Crime No.114/2008, which does not require the endorsement of fitness of the Victim. The trial Court while appreciating the dying declaration, has ignored the judgment of the Constitution Bench of the Hon'ble Supreme Court, as stated supra. As a result, the impugned judgment is liable to be set- aside. The Hon’ble Supreme Court held that the requirement of the certificate of fitness by the Doctor is only hyper-technical essentiality, if the witness who recorded the statement deposed about the state of mind of the maker of the statement before the Court, the certificate may not play a significant role.

19. The Trial Court should have considered the evidence of PW.2 and other witnesses. PW.2 has stated that, his wife had told him about the incident while shifting to the hospital. The same has been endorsed by the independent witnesses, i.e., PW.3 and PW.4, the same villagers. PW.3 says that he heard the sound of quarrel said to have taken place in front of the house of the deceased. He came out of the house; by that time, she was being burnt herself after pouring kerosene on herself to commit suicide. This is one of the vital circumstances which the Trial Court must have taken note of for consideration.

20. The Trial Court failed to consider not only the judgment of the Hon'ble Supreme Court wherein Their Lordships have opined that, the endorsement of the Doctor is not required if a person who recorded the dying declaration and the Doctor who treated the Victim both have stated on oath that the deceased was fit to make statement, but also the other relevant circumstances such as the independent witnesses and their evidence.

21. Considering the prevailing circumstances, the prosecution has proved the case beyond all reasonable doubt that the dying declaration Ex.P5 recorded by P.W.8 and endorsement issued by P.W.6 are genuine. In addition to that, the evidence of other witnesses has inspired the confidence of the Court about the incident. Though P.W.2 the husband is a related and interested witness, his evidence cannot be rejected in Toto. Keeping in mind the principle of the dying declaration and its admissibility, if it inspires the confidence of the Court, the conviction can be based upon such dying declaration. Hence, I am of the considered opinion that the dying declaration is true and genuine and it is not tainted nor tutored.

22. In view of the observations made above, the points which arose for my consideration i.e., point No.1 is answered in the negative, by holding that the trial Court has failed to appreciate the dying declaration and other independent witnesses. Point No.2 is answered in the affirmative, by holding that the State – Appellant has made out ground to interfere with the impugned judgment and order of acquittal passed by the trial Court.

23. In view of the above, I pass the following:-

ORDER

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment and order of acquittal dated 03.06.2011 in S.C.No.22/2009 passed by the Fast Track Court, Kollegala, is hereby set-aside. The respondent / accused is found guilty for the offences punishable under sections 341, 354, 323, 504 and 306 of IPC.

(iii) The respondent / accused is convicted for the offence under section 341 of IPC and is sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.500/- (Rupees Five Hundred only), in default of payment of fine, he shall undergo simple imprisonment for a period of ten days.

(iv) Further the respondent / accused is convicted for the offence under section 354 of IPC and is sentenced to undergo simple imprisonment for a period of four years and also to pay fine of Rs.5,000/- (Rupees Five Thousand only), in default of payment of fine, he shall undergo simple imprisonment for a period of two months.

(v) Further the respondent / accused is convicted for the offence under section 323 of IPC and is sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.1,000/- (Rupees One Thousand only), in default of payment of fine, he shall undergo simple imprisonment for a period of two months.

(vi) Further the respondent / accused is convicted for the offence under section 504 of IPC and is sentenced to undergo simple imprisonment for a period of one year and also to pay fine of Rs.1,000/- (Rupees One Thousand only), in default of payment of fine, he shall undergo simple imprisonment for a period of two months.

(vii) Further the respondent / accused is convicted for the offence under section 306 of IPC and is sentenced to undergo simple imprisonment for a period of seven years (07 years) and also to pay fine of Rs.10,000/- (Rupees Ten Thousand only), in default of payment of fine, he shall undergo simple imprisonment for a period of two years.

(viii) All the sentences shall run concurrently.

(ix) Accused / respondent shall have the benefit of set-off as provided under section 428 of Cr.P.C.

(x) This Court placed appreciation on record for the service rendered by the learned Amicus Curiae Sri.N.S.Sampangiramaiah and direct the Legal Services Authority to pay a sum of Rs.8,000/- (Rupees Eight Thousand only) as honorarium.

(xi) The Registry is directed to transmit the records to the trial Court forthwith in order to secure the presence of the accused and to comply with the order of this Court.