The High Court · 2011

therefore she was hospital by the neighbours. (c) On coming to know of the same the complainant rushed to the Government Hospital, Hanagal and found that deceased was admitted in the said Hospital having sustained sever burn injuries. When he cnquired with the deceased, she informed one Raghavendra him that Pandurang Raikar (appellant-accused) of Hanagal came to the house at about 08-00 p.m. on that day, told her that he had fallen in love with her and therefore she should also love him, since she refused to accept his offer, he poured kerosene on her person and lit fire saying that either he or she should survive. After coming to know said incident, the complainant lodged his complaint by about 10-00 p.m. on the same day i.e., on 13/11/2007.

3. On the basis of the said complaint the police of Hanagal P.S. registered a ease against the accused for the offences punishable under Section 323 and 307 of IPC and issued FIR and accordingly (as per Ex.P30). e4W I •1l The deceased was taken to KIMS Hospital, Hubli, further treatment. She succumbed to the burn injuries on 18/11/2007 while she was under treatment at KIMS Hospital, Hubli. Therefore, accusation against accused came to be altered from the offence under Section 307 of IPC to the one under Section 302 of IPC. After completion of investigation, charge sheet came to be filed against the accused for the offence punishable under Section 302 of IPC.

4. The Trial Court, on appreciation of the oral evidence of PWs.l to 17. the documents at Ex.Pl P30 and MO.1 to 12, by its impugned Judgment and Order of conviction and sentence, convicted accused for the said offence and sentenced him as stated supra. Therefore, the accused therein has challenged in the present Appeal the correctness of the said Judgment and Order.

5. We have heard the arguments of Sriyuths S.S.Koti, Srinand A. Pachchapure and S.B.Chanal, learned counsels appellant-accused er. ) C L C L C m m ) ) C C C L C C C ( L C ) C m ICC L C ) C ) I C ) C L C L C C C B ) m m C C L C ) C C ) C ) C L C C * ) C L C L C - . . L C - — — ) C C C ’ 9 C C — ) C L C ) C ) ) C C 2 ) C m m L C - C C L C ) ) C ) C t : L C m m 0 ) C C C ) C 0 ) C ) C L C ) C L C ) C - ) C L C L C C ) I C C C ) C ) C C C C C ) ) C C m m . L — C C C L C ) C C < C C ) C ) C C C ) I C C C m m L — C C C ) C C C L C N < 1 ç . — ; ) . C B c - B C ) ) C m m C C ) C L C C C ) C L C C C L C ) C - L C m m L C C C C C m m L C C C — C C . ) C C C 0 ) C - — t ) C 0 ) I C C C ) ) C C ) C C C ) C C C ‘ L C L C ) ) C — ) ) C C C C ) C — — ) C C C C C C ) C ) C — ) C C C c L C ) C C < C C m m ) C ) C ) ) C C C C — m m L C C C L C L C L C — c m m ) C . ) ) C i ) C 2 L C Q C C ) C ) C ) C L C L C ‘ ) ) C - i L C L C m m C C C J — £ C C 0 - • m m L C C C I C - 2 ) C m m L C 0 B L C — C C — C C m m L C m r — - L C L C _ c 0 - C _ L C L C — C C C r ) I ) C c ) C ) C 0 m C ) C — C C C C L C . ) — C . . . E L C C C < C C 0 L C L C ) ) C C C C Q L C L C C C o L C — ) C C C Q C C i c - ) C L C ; C C ) C ) C ) C B L C — C C — L C ) C C ) C ) C ) I C ) C ) C C C ) I C L C ) C Q C E ) C L C L C + — ) QC C - ) L C B L C ) C L C C C ) C C C ) C L C c L C — C C C C ) C o L CC C L C Q C C C C ) ) C C ) C ) C ) C ) ) C C ) C L C ) C C C - ) C C — ) C ) C . m - m m L C — ) C ) C L C m m L C C C ) C C )C C I C C C ) L C C C m m ) N L C C C C C L C ) C ) C ) C L C ) ) I C m m C C C L C < r C C L C . ) C C C L C C C ) C ) C ) C ) C i c C C L C ) C ) BB C C ) ) C c ‘4 7 (b) The prosecution has strongly relied upon Ex.P23. the dying declaration, said to have been recordcd by PWI7 PSI in the presence of PWI4 Dr.Rajendra, Medical Officer, Government Hospital, Hanagal, and also Ex.P26 another dying declaration said to have been recorded by PWI5 Taluka Executive Magistrate (‘TEM’ for short) on the very date of incident after deceased was admitted Government Hospital, Hanagal. But two documents are not proved by the prosecution in accordance with law. (c) The prosecution has also relied upon Ex.P13 wound certificate issued by PWIO Medical Officer, KIMS Hospital, Hubli, to show that the history was given by the deceased herself that it was the accused who poured kerosene on her person and then set her on fire. But statement of this PW1O was not recorded Investigating Officer during investigation and the contents of Ex.P13 specifically disclose that the said history was given by certificate the deceased herself. I 8 (d) Absolutely no evidence is placed on record by the prosecution to show the presence of the accused at the relevant time when the deceased was caught with fire in her own residence. Therefore the prosecution could not take the advantage accused sustaining some burn injuries to his hands without properly explaining how he sustained the injuries. (e) It has come in the evidence of PW2, the junior paternal uncle and PW6 father the deceased deceased tendency committing suicide and she had made unsuccessful attempt to commit suicide on two or three occasions earlier to the said incident and therefore the possibility of she setting herself on fire with intent to commit suicide on the said date, time and place, when none was present in her residence could not be ruled out.

7. While contending as above, learned counsels for the. appellant-accused submit Trial Court ignored e C C ) C ) C ) C ) C ) C iBC D ) I - ) C . ) C ) C ) C ) C , ) , ) C C ) C ) C ) C L C i - ) C C T C ) ) C C ) C L C ) C - ) C . ) C ) C ) C ) C ) C ) C ) C L C ) ) C C )B C ) C ) C ) C ) C L C ) C - L C ) C ) 2 C ) C ) C ) C ) C ) C L C L C ) C - ) ) —C t . - ) ) C ) C ) C t - L C ’ ) C ) C L C ) C ) C ) C t EC ) - t - ) C ) C ) C ) C ) C ) C ) &C C ) ) C ) ) C C ) C L C ) C L C ) C ) C - ) C ) l C , ) C ) C ) C ) C - ) C ) C L C ) l C ) C ) C ) C ) ) C C ) — C C L C ) C o - ) C ) C ) C ) C ) . C — B - ) C ) C C ) C ) C L C ) C L C — - ) ) C C L C Q C — ) C L C ) C ) ) ) C C C ) C ) l C ) C L C ) C - — - C ) C L C ) C ) C ) C . . ) C ) C ) C L C ) C L C ) C ) C — ) C ) C < - ) C — ) C ) C ) C ) C L C ) l C ) C . ) C ) C ) C - ) C ) C ) C ‘ - ‘ L C ) C ) ) C C ) ) C ) C - - — — . ) C ) C C C C L C ) C ) C ) C ) ) ) C C C ) C — ) C ) C L C - — ) ) C C ) C L C 1 ) C ) C ) C ) C L C ) C ) C b ) C — D X C r . f ) C L C . ) C ) C L C ) C ) C ) C . t — L C ) C — ) C ) C ) C L C I 0 0 ) C ) C C C r — ç ) C ) C 2 L C . . ) C — C C C _ ) C — L C . ) C ) C ) C ) C ) ) C C ) ) C C L C — ) ) C C ) C ) C ) — C — — L C ‘ . • . - L C ) C ) C ) C L C . — ) C L C ) C ) C L C ’ ) C ) C ) C - ‘ < L C — ) C L C ) C ) C ) 2 C . — ) C . - ) C ) C - ) C ) C ) C ) C - ) C Q C < ) C ) C B ) C - L C . . ) C j ) C ) ) C ) C ) C ) C ) C — ) C ) C B ) C ) C . - - ) C ) C ) C — . r . ) C C C C , — ) C C C C — ) C ) C ) C B ’ B i - ) - C ) C . — . . ) C 2 L C - . . ) - ) C 9 . L . C • ) C L C . ) C ’ ) C B ) C ) C ‘ ) C ) C ) C ) : , C C ( ) C L C ) C ) ) ) C C C ) C ) C c - L C ) C s z ) C . ) C ) C ñ ) J ) C ) C . L C o ) - C ) C . ‘ ) C . — ) C ) C L C . . . 9 9 ) C ) C ) C L C ) ) 9 ) — C . i c ) C I - — ( — . ) C L C ) C ) C — ) C L C ) C ‘ 9 2 ) C — ) C ) C ) C L C ) C H ) C ) C a, lO Court has rightly relied upon the said statements in convicting the accused for the said offence. He further contends that Ex.P13 wound certificate, coupled with the oral evidence of PW]O Medical Officer who issued certificate, clearly establishes deceased gave history before PW1O that on the said date and time while she was in her house, the accused entered the house and poured kerosene on her person and set her on fire, therefore, the Trial Court has rightly held that the prosecution has proved its ease beyond reasonable doubt. He further contends that though it is an undisputed fact the accused sustained burn injuries to both the hands on the very date of the incident i.e., on 13/11/2007 and he was admitted in the Government Hospital, Hanagal, for the said injuries, he has not explained, either by making any suggestions to the prosecution witnesses or by stating in his statement recorded under Section 313 of Cr.P.C., as to how he sustained the said injuries and therefore the presence of the accused at the scene of C V ( C V ( - V ( H - _ _ y - 3 V ( - C ) C - V ( - 5 2 1 5 . - 5 2 E V ( ) 2 - 3 - 3 ) 2 t - t - — - V ( - C - — 5 : . 2 1 5 ) C ( 5 2 - C ) 3 . ) l C r 1 5 - ( V ( C . 4 1 p 1 5 — V ( C C 5 2 ) 2 ) 2 C 1 2 ) 2 5 2 C 2 4 - ) 2 t - 1 5 ) 3 t - “ E 2 ( 1 - 2 : t - ) 1 5 H 1 5 - 5 2 - C t - . 1 5 5 2 H H ) 2 L C , — C . 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E s i - - f C 2 ( 3 Z ) C ( ) 2 c 2 ( ) ( ) 2 2 2 ( ) C H ( C — j - 1 2 ) 2 — — 5 2 5 2 — 1 5 2 ( - ) 2 ) 5 2 — ) 2 5 2 1 5 _ 3 : . ) - ) C ( ) l C ) C ( ) 2 ) C I S 5 — 2 ) 2 1 5 ) C ( ) C ( i - C ) l C ) C ( C 5 2 ) C ( 3 ) 2 C 5 2 ) ) C L C — ‘ ‘ - ) l C . - 5 2 ) 2 5 2 ( ) C - 2 ( r Z ) C 1 2 - r Z 1 2 ) C ( ) 2 5 ) 2 Q T C ) C c - c C t r C 2 r Z 4 ) l C * 5 2 E ) l C — V ( ) ( V ( ) 2 L C 1 2 ) 2 r r Z 1 2 5 2 - V ( 5 2 ) l C H ) 2 2 V ( ) / C _ 3 : ) 2 H r Z x ) 2 • • - ) 2 2 r C H , I ( . V ( C S ) C ( , — s 2 2 ( 1 5 H — L ) I o • C < ) C ( 5 2 1 2 - — 3 4 E H — 5 ) 2 C 5 2 1 - * ) 1 5 . 4 . — ) C ( . 5 ) 2 C L C E 9 E ) ) 5 — - - - 3 : C 3 ) 2 ) 2 V ( B ) ) C L C D C — — L C D C L C D C D C D C D C L C D C D C * D C D C L C ) C C D C I D C . — D C D C L C D C D C L C D C D C D C L C L C D C D C D C D C D C D C D C - L C — D C — L C D C D C D C L C L C D C D C D C D C L C 0 D C - L C D C L C D C C ( D C D C D C L C D C D C L C D C D C L C * L C D C D C L C r L C D C D C D C L C D C L C — D C L C L C D C J D C D C L C D C D C L C D C D C D C — D C L C — D C D C D C L C E D C E B D C L C L C — B L C D C D C D D I L C D C D C D C D C L C D C - D C ) C D C L C D C L C L C D C D C 0 D C — D C D C L C L C D C D C D C D C D C D C L C D C j D - ) 1 D C L C — D C ç D C - - 0 L C D C . . D C L C D C - , - D C L C D C D C D C D C D C L C D C 0 _ L C D C D D I D C — L C L C 0 D C D C D C L C D C D C D C L C D C L C L C D C D C L C D C D C L C D C D C * D C L C D C 0 D C ) C D C D C D C D C C C D C o D C D I ( D o C L C L C D C ) I D D C L C D C ) C D C D C D I D C L C C D C L C D C L C D C D C D C D C D D I D D I D C B D C L C D C L C D C D C D C D C D D I 0 t J ( . — D D I D C L C D C D C L C Q C I D C D C ) 1 ( * L C D C D C 0 D C D C L C D C D C D C - D I D C . : — - D C D C D D I D D I D C — ) I ( D C ( D C D C L C — ) D C L C I L C D C D C 0 - D C L C D C D C D C D C p D C L C L C D C D C D C L C D C L C D C D C D C D C D I D C D C D C L C D C — D C D C D o C L C D C D C D C D C L C D C D C D C ) C L C D C L C D C L C D C D C L C D C D C D C D C — L C - D C L C D C D C L - C D C D - C D I ( D C D C D C * L C D C D C D C D C L C D C D C L C D C D C - C D D I D D I I L D C I I D C f D D C D C D C L C D C C C D C L C D C j D — C B “ ( L C - L C D C D C L C B I ( D C L C D C D C 5 C D C D C L C - D C - D C D C L C D C D C D C D C D C D C D C L C DC C D C D C C D C L C D C - L C D C L C D C - — L C D C D C L C C C - C D C L C C L C I D C D C D C J I 13 completely hostile to the prosecution. PW3 has denied that he stated before the Investigating Officc r as per Exs.P3 and P4. PW4 has denied that he stated before the Iniestigating Officer as per Exs.P5 and P6. Lika ise PW5 has denied that he stated before the police as per Exs.P7 and P8 and PW12 has also denied that he stated before the Investigating Officer as per Exs.P18 and P19. On careful reading of Exs.P3 to P8 and P18 and P19 respective portions of the statements of these witnesses, it could be seen that they arc said to have stated before the 10 that on hearing the cry of the deceased from her house, they all went there and saw that the deceased was on fire in the kitchen and the accused was also there and that the deccased told them that sinc e she refused to love him, the accused set her on fire They have elen denied the presence of the accused there at time. Though all witnesses arc cross cxamlncd at length by the learncd Public Prosecutor, nothing is brought on record whac h supports the case of the prosecut on K- 14 11 The prosecution has placed strong n lianee on Ex.P23 d ing declaration of the deceased said to have been recorded by PW 1? PSI and also Ex,P)t, another dying declaration said to have been recorded by PW 15 TEM. on the terv date of incident i.e , on 13 11 ‘2007 heteen 08 00 p.m. and 08 45 p.m. On careful perusal of Ex.P23 which is said to be the dying declaration recorded by PWI7 PSI in the presence of PWI4 Medical Officer. viz.. Dr.Rajendra. who was on dut3 in Government Iluspitdl. Hatiagal. ilicri deceased was admitted with burn injuries, it could be seen that the said statement is purported to havc becn recorded by PWI7 on 1311 ‘2007 but the time when it camc to be rccordcd is not mentioned on it Besides this. said document does not bear either signaturt or thc thumb imprc.ssion of thc deceascd. Besides this. PW 17 PSI has not gr en an cxplanatir;n in Ii s ev’denc e as to wh he ould not tak either the signaturc or the thumb imprcs ion of tic dccc ascd. D - C D C 0 1 i c D C i c i c C < - O D — ) C D ) l D 0 ) C C D C / i c i c 0 t - - 9 i c ) C D ) C D ) l C i c D C 0 ) l C i c - i c D C D C — i c D C . t - ) C D ç 7 D C . \ D 0 - 0 B - D C D C ) l D ) l C 0 - - 0 i - — . 0 0 ) l C i c t r ) C D — t - 0 i c t - D C i c 0 — D — C D C ) l C - 0 0 ) C D D C 0 1 — D C 0 B ) l D — 0 ) C D D C B D C ) C D ) l C D C i c - < 0 D C ) C D o ) l C t - i c D C ) C D i c 0 0 ) l C - 9 j r C > O D i c D C r — ) l O D i c — ) / C D C ) l C D C ) l D 2 o i c ) C D D C — 0 - • D C D C o B t - i c D C C - D - C i c — - c D C ) C D D C D C ) l 0 C D C i c ) C D C D C )0 C D C < N D E i c 1 ) C D 0 i c )- C D 0 1 ) C D i c _ i c D C D— - D I 0 i c i c t - t 0 i c D C - O D i c ) l C t - ) C D D C - D C 0 — - — Ct ) C D ) l C 0 D C ) l C — ) C D — i c D C O 0 ) l C t - i c D C ) C D C < D C 0 i c - ) C D 1 D C ) C D t - i c D C 0 — ‘ r 0 i c 1 - D C ) l C - D C 1 D C i c D C 1 - D C D C D C 2 ) l C i c ) C D t r i c D C D C 0 . D C 0 — 0 0 r i c ) C D D C ) C D 0 0 - i c D C D C 0 0 i c D C D C D C i c ) l D ) l C 0 - i c D C i c D C D C D C ) C D ) l C D C - 9 D C i c ) C D - i c - i c D C i - D C — o 1 D C ) C D i - D C — ) / C i c 0 D C - - B D C 0 N - O D i c C - ) C D i c i c o i c i c — ) C D ) l D o 0 i c D C D C D C ) C D _ _ D C < — i c D C i c • c O - D D C — ) l D ) l C ) C D - 0 i c D C i c D C ) l C D C B D C ) l C D C - D C - i c D C i c i c J ( - D D C i c ) l C ) l C - ) C D 0 — - i c D C — 0 - - , ) l C ) C D C - E t r 0 o i c - D C O D C D C ) C — a — — 0 o — 2 i c D C 0 - ) C D D - - D C 1 D C D C c — i c D C 1 D C i c — D i c i c — z c - 0 - D C D C 0 i c i c i c . i c D C ) C 1 - 0 - i c D C a i ; 1 i c i c D C D C D C ) C D ) l C D C i c - i c o — B — D C 0 i c - — i c D C C J - D C - 0 0 D C a C l ) L C D 0C , 5 5 ) C L C ) C 5 : ) C ) C C 1 ( ) C L C L C ) C D DC C D C 5 50: 5 - L D C C C D C B - D C . - B B D C L C D C L C D C D C ) C E L C D C . B L C D C L C 5 : D C D C D C 0 aC D E D C D C ) C B L C 5 : L C o . . - B D C L C L C D C D C L C L C 1 ,5 _ j - L C D C . — , _ D C D C L C L C )B C . D C - . . B a — L C 1 5 D C D C D C ) C L C D C , — — , L — C ) C N D C ) C D C L C — C ) f ) ) C D C D C 5 5 E ) C D C D C L C D C 5 — 5 L C . — ) C D C L C ) C L C B D C D C D C D C L C - . D C D C L C L C : D C B D C • ) l C ’ b D C L C D C D C D C L C D C D C ) C L C ) C D C B D C - . . . ) C L C + D - C - . ‘ C — — ‘ - — C L C Q i D C D C ) C L C — 5 5 5 : - . ‘ — L C * — D C D C — — 5 : i - ’ 5 5 D C D C ÷ - ) ’ ) C — 5 5 D C . ‘ ‘ - D C — B . . L C B L C , . . 5 5 5 D C L C D C D C D C 1 5 D C • — D C 1 - D C C — - - D C C — . — . . < , D C . 0 L C D C D C . D C D C 5 5 ’ 5 5 ) C ) / C 5 5 C L C D C ) C ) C D C - D C L C D C L C i o L C B i “ L C r — < . . . p L C D C i - 5 : D C D C D C : ‘ - B 0 5 5 L . . C ‘ D C L C L C . B 0 D C D C D C D C ) C D C — D B C D C D C 5 . C . “ , . , L C - . - C L C D C ‘ - L C D C D C ° D C E D C r L C ) C L C ” P D C ) C B , . a ‘ - — L C ‘ D ‘ C . L C L C t ‘ ) C D C D C L C . ) l C 1 5 5 5 5 ) C D C a ) C L C 5 5 ( D C D C ) C 0 D C D C L C ) C D C ) C D C D C D C D C L C ) ‘ C 1 5 ) C D C D C D C C D C D C 1 5 L C ‘ ) L C t a 5 : D C 1 5 L C 5 : D C E L C C 5 5 D C ) D C D C ) C 5 5 ) C D C 5 5 — 5 5 L C D C ) C ) C 5 5 L C ) ) C — D C D C - . — — D C D C D C — - 5 5 ) C , — Q : 5 5 B 5 5 D C D C 0 5 5 ‘ D C , — 5 5 5 D C ) C - D C D C - 5 5 D C D C ‘ D C D C D C D C ‘ 5 5 L C L C ) l C D C D C D C D C 1 5 ) C D C D C D C L C D C D C ) C D C L C D C ) C L C ) C 1 5 D C D C D C L — C D C D C ) C D C D C , ” 5 5 — D C L C 1 5 ’ r L C D C . D C 5 5 — L C L C . ) D C 5 5 — - ) C D C ” 5 5 D C D C 1 17 stated as to how he ascertained the said fact. However, he has stated in his evidence that he scnt a requisition in writing to the doctor concerned requiring him to state whether the said injured girl was in a position to give her statement and that the doctor gave his opinion as per Ex.P22(a) and therefore he proceeded to record the statement of the deceased.

14. On perusal of Ex.P22(a) endorsement could be seen that is on Ex.P22 which is not copy of the written requisition said to have been given by PW15 TEM to the doctor i.e., PW14 Dr.Rajendra. On the other hand, the said document (Ex.P22) is the carbon copy of the written requisition given to the said doctor by PWI7 PSI. This document further reveals that Ex.P22(a) thereon endorsement signature made by PW14 Medical Officer to the effect that the deceased was in a fit condition to give her statement. This endorsement is dated 13/11/2007 and the time put on it below the signature of PWI4 Medical Officer is 08-45 p.m. If this endorsement at Ex.P22(a) 18 is read along with the cvidencn ol PWI5 TEM that ht recorded the statement of the said injured (deceased) at 08 00 p.m. on 13 11 2001, it is quite clear that at time of recording of said statement 08 00 p.m. b PWI. there was no opinion of PW.14 doctor that she was in a fit state of health to give her statement.

15. Further, prosecution that the incident occurred in the house of the deceased at 08 00 p.m. on 13/11I2001 and thereafter the deceased was brought to the Government Hospital, then the Medical Officer sent intimation to PW17 PSI who in turn sent a requisition to PW15 TEM requesting him to record the dying declaration ol dec.cased and thc.rcafter thc. 1M came to the hospital and then recorded the said statcment Bcsides this PW14 .loctor his dcoscd in his cvidcncc deceasc.d as brouht to thc. ho%pital at 0 30 p ni on thit di ard thercaftcr w sent ;rttcn intimati n to rh c d h i cq.c.. c. PWI PI h 19 made endorsement Ex.P22(a) at 08-45 p.m. When that is so, there could be no occasion for this TEM to record the statement of the deceased at 08-00 p.m. on that day. Further, if it is his oral evidence that he recorded the said statement at 08-00 p.m., his endorsement on Ex.P26 statement which is marked as Ex.P26(a) goes to show that the said statement was recorded by him at 08-30 p.m. on that day.

16. Furthermorc, if it is the specific evidence of PW15 TEM that himself reduced the said statement to writing in his handwriting, this document reveals that the statement is recorded in one person’s handwriting and the endorsement of the TEM is made in the handwriting of another person. In other words, on careful reading of the entire writings in Ex.P26 it could be seen with naked eye that the person who wrote the entire statement was not the person who wrote the endorsement as trç “ (before me) and “nocvu, rttc’ flV2W, az,4, na-3D “. In his cross-examination this PWI5 TEM has stated that he wrote the said 20 statement in Using two cnlo’irs of ink, the statement %ets retorded in blue ink and his endorsement and signature were made in green ink and that he used two separatc pt ns for rccording thc statement and also for writing his endorsement. lie has denied the suggestion put to him by the learned counsel for the accused that statement which endorsement which is in green ink are not written by him, but thc art written by different persons. This being the nature of contents of the document Ex.P2b and the oral evidence of PW1S TEM, we have no alternative hut to hold that this document cannot be accepted as genuine cite. Therefore no evidentiar value could be attached to this document. It does not inspire an confidence of the Court

17. In tkw of our foregoing discussion, we are of the considered opinion that the Tral Court c ornrrtittcd serious error in placing its reliant e on the c’ucuntents lx.P23 purpo ting to bc the led iatic to hut liren reciircled i’ PW 1 7 PSI aml Ex. P2’, pta port trig to I 21 be another dying declaration said to have been recorded by PW1S TEM.

18. Ex.P13 wound certificate another important document on which strong reliance is placed by the prosecution to prove that it was the accused who set the deceased on fire on the said date, time and place. This wound certificate is issued by PWIO Dr.Hemalatha, the Associate Professor, OBG, KIMS Hospital, Hubli. She has stated in her evidence that on 15/11/2007 by about 01-00 p.m. the Police Inspector of Hanagal P.S., brought to her the deceased Bibihazira for her medical examination to find out whether she subjected to forcible sexual intercourse and therefore immediately she examined the said girl. She has further deposed in her evidence that when she enquired with the said girl, she informed her that, at about 07-00 p.m. on 13/11/2007 while she (the girl) her house, one person by name Raghavendra Pangurang Raikar came into the house, assaulted her, tied her hands and then poured D C i - ) C D I ( D C D C ) C ) C ) C — ) C — D C — N ( ) C D C - ) C D ) C D C - ) C D C ) C ) C ) C D C — ) C ) C — . ) C ) C - D C x ) C - ) C ) C . . ) — C ) C ) C D C ) C — D I ( — ) C D C ) C D I ( - ) C ) C D C ) C — ) C — ) C ) I ( D C < ) C ) C a D C 1 D C ) C 1 - ) C D C - ) C ) C - * r ) C D C ) C ) C ) C ) C — ) C ) C ) C D C ) C — D I ( D I ( — ) C D C ) C — ) C D C D D C — — — a D C - ) C — D C ) C D I ( ) C ) - ) — ) C D C — ) C — ) C ) C D ) C ) C ) C ) C ) C _ D C ) C < D C ) C ) C - D C C ) C D C D C ) C — ) C ) C D C ) C ) C ) C ) C ) C ) C ) C ) C ) C D C D C iC ) ) C ) C D C ) C — ) ) C ) C ) C . — ) C ) ) C C —C ) . - ) C D C I ( D C ) < 1 ) C D C ) C ) -C — )1 C — ) C D C — - — — . — — H ) C D C ) C • o 1 ) C D C ) C - C ) C ) C . : D C ) C ) C ) C — ) ) C 1 D C ) C ) C D I ( ) C ) )C C D C 1 - _ 0 E — . < ) C c ) C D C r D C D C ) C c D I ( ) C ) C ) C - - ) C D C ) C ) ) C C C ) ) C D C ) C ) C ) C ) C ) C ‘ p ) C D C D I ( )— C ) C ) C D C ) C — ) C D C 1 1 D C D / ( D C D C D C ) C ) C i c ) C < D C ) C ) C i . ) C ) C ) C ) C ) C ) C D C ) C r - ( ) C ) C ç ) C i D C 1 D C D C D C D C ) C ) C < D I ( — D C ) C ) C < ) C ) C ) C ) C - D C ) C C 1 ) C ) C ) C ) C ) C ) C ) ) C C D C - ) C D I ( D C - D C 0 ( ) C ) C D C ) C ) C ) C D C —C ) ) ) C C ) C D C D C - 2 : ) C D C ) C D C ) C ) C ) C D C ) ) C C ) ) C C ) C ) D C I ( - ) oC ) )C C - ) C ) C ) C )< C ( < ) C - ) D C C ) C ) C — ) -C D C D C 1 ) C — ) ) C C ) C - ) C ) C )— C ) C ) — D C I ( ) j _ ) ) C ) ) DC C C D 2 C r c D E C ) C ) C — 4 C ) D C D I ( ) C - ) C — C ) D I ( / 23 brought to her by the CPI of the said P.S., this entry in Ex.P13 reveals that she was brought by PC No.1017. It is pertinent to note that either the CPI of Hanagal P.S. or PC No.1017 of the said P.S. has not been examined as a witness for the prosecution. Besides this, above history does not reveal that thc same was given PWLO doctor deceascd herself. The undisputed facts are that the deceased sustained severe burn injuries on 13/11/2007, she was subjected to medical examination by PW1O on 15/11/2007 and she succumbed to the burn injuries on 18/11/2007. This being so, absolutely there is no evidence as to what was the health condition of the deceased as on 15/11/2007. This Ex.P13 wound certificate further reveals that the consent of mother of the deceased was taken by the doctor before the deceased was medically examined. PWIO has stated in her cross-examination that since the girl was minor, she obtained consent of mother of the girl. But no evidence whatsoever placed on record by the prosecution to show that r I 24 mother of the girl had accompanied the deceased when she was taken to PW1O for her medical examination. Added to this, the name of the mother is not mentioned in Ex.P13. All these facts and circumstances clearly go to show that the possibility of the said history being given by either PC No.1017 or CPI or any other police officer who might have taken the deceased to the said hospital could not be ruled out.

21. Further, is not in dispute deceased was first admitted in Government Hospital, Hanagal and it was PW14 Dr.Rajendra who examined her for the first time for her burn injuries. If at all any history were to have been given by the deceased that must have been given before PW14 Medical Officer of Government Hospital, Hanagal. It is pertinent to note that his evidence as to the history of the girl is only that, when he enquired with the girl, she informed him that ‘she sustained the burn injuries’. If the deceased could give the history before PWIO on 15/11/2007 that it was the accused who was responsible for her I D D ) C — C I ( ) C D C L C D C D C D C — D C D C D C D D I I ( D C C L C D C L C D C D C D C L C D C - D C - ) C C I ( - D C D C a D C C ) C D D C L C D C L C - - b D C - D • C L C D C D C D C — - L C D C D C — L C D C - D C . D C D C . L C D C D C D C D C D C D D I C - a i r D C . — L C D C I D D D D I r a D C D C D C C ( C I C — D C C D C Q J c D C — ) C D C ) i c D C D C D C . — D C D C a . C < D C D C D C D C . . X ‘ - D . . • X D C D C C I ( D C L C D C D C D C . . L C D C L C D D I D C C L C D C . . D C : L C D C C D C . L a C D C D C L C D C D C D C D C D C D D I D C D D I D C C D C D C D C - D C C D C D C . C . D C ) C L D C a D C D C x . D C ( C L C ) C — D D I D C D C ’ D C D C D C ‘ D C D C L C D C r D C — . — — D D I C D C C D C - a D C D C L C D < L C D C D C D C D C — D C D C D C o D C D C D C — D C D C D C L C - C D C D C D C 2 D C L C , D C C I ( C - . . L C D C — D C < D C ) I D I Q T D D C D C C I ( - ) C D C D C C L C c . L C D C D C L — C L C C D C D C ) C D D I D C D C — L C . D C C - D C D D C C L C D C D C D C L C c L C D C ) I D D C D C D C D C — L C D C 2 D C D C C - r L C D C C D D I D C ) C a D C - C I ( ) C D C D C L C D C L — C L C C D C D C D C — D D I a D C L C ) I D . . . D C F D C D C D C D C E D C D C 2 D D I D C ) — D C L C D C D C D C ) I D D C D C D C - ) I D ‘ $ — D C L C a ) I D D C D C L C a D D I a L C D C D C D C D C D C D C D C D C D D I + o - L C D C L C - D C D C D C D D C I D C D C D C D C L C , , , , , L C D C . L C D C — L C D C D C L C a $ C . $ L C D C D C • — D D D I r L I ( D C F - — D C L C < F D C m ) I D D C L C D C — C - D C L C ( ) I D — D C L C : • D C L C — D C ) C D C ’ D C ) C ) I D D C D C D C I . b D C . D C i I L C D C D C D C — c • D C D C a L I ( I ( - 4 D C L C D C D D I D C D a C D C D C , . a — L C D C — D a C C D C L I 26 record. Further, though prosecution that the deceased was taken to KIMS Hospital for her mcdical examination and she was medically examined by PW1O, her statement has not been recorded by the Investigating Officer during investigation. In view of all these circumstances we are the opinion that the oral evidence of PW1O Dr.Hemalata of KIMS Hospital that when she enquired with the deceased (the girl), she gave the history as stated supra, becomes seriously doubtful and the same can be said to be an improvement. Therefore we hold the document Ex.P13 is also of no help to the prosecution to connect the accused with the incident of the deceased being caught with fire on the said date, time and place.

22. No doubt the accused had sustained some burn injuries to his both hands and therefore he was admitted to Government Hospital at Hanagal. on the very date of the incident. Exs.P24 and P25 are the two certificates pertaining to deceased _ _ _ _ _ _ _ C — a a C - - a N ( C C C a C i C _ C C — - C 9 C C - a C C C C n a - 2 < — - a N ( C C C N ( - a - a C - a o C a C a - N ( — N ( C a C — - a C C - a - C . C N ( C Z N - a - a C - a C - a C — H ) ( N ( C - a C o - a — C o C - a C - a C C N ( < c C C o C - a C C C - a - a C C N ( C a C - C a C C C C - a - a N ( - a - , 1 - C C — - C C C — - a D - C - C • — - a C — - a a a - a C N ( P C . - C C - a C C C — - a C - a C C N ( C , - a C C C C - C - a C C - C C C - a — C C C - a C C N ( - a - r • • C - a • - — o a - a C - a C C C C C - E C - a o C - — C - a C C C C C C - a C — - a C - a ( - N N ( ( - a - a C a C - a C a C C — N ( C - a - a - a C - a o C C ) _ C C - C - a a . . - a p - - a — a C - a a — C - a C C - a C C — C - a C C - a - a C C C - a C C - a a C C N ( C C — < C ( : - E L — a - a C - - a C C - a C C a N ( - a C - a a C C - - 9 C - a C C . i c — C - a C - a C - a ) ( C - a - a C - a C C C - : C C C - a C C - a C - a C N ( N ( C - a C C N ( C — - a C C - C C C - — _ _ _ _ _ 0 0 0 m c m c m c — - m c m c 0 m c , . c 0 m c m c m c c 5 m c 0 — 0 - o • o m c 0 0 ( m c m c m c 0 — m c 0 m c — m c m c 0 ( m c m c m c m c 0 0 ° m c m c 0 m c m c m c a - 0 m c 0 ( m c - o 0 0 0 m c m c - 0 m c m c 0 0 m c - 0 m c - - 0 . - 0 Q 0 0 < m c m c o 0 0 ( m c - 0 — 0 . o _ 0 c m c 0 — - 0 : . ) 0 m - 0 m c - m c 0 - 0 m c 0 0 0 - 0 - ) 0 — 0 0 m c 0 0 m c m c 0 — — o c - 0 N O 0 0 0 m c - m c m c 0 ° m c - 0 m c m c — 0 0 m c m c — 0 . — 0 - 0 - 0 m c m c - Q ( m c m c 0 Q - 0 m c 0 0 - m c : 0 0 m c 0 - — m c m c 0 m c 0 . — 0 0 2 — m c m c - H m c 0 • m c m c m c 0 0 0 — 0 0 I N m c 0 ( 0 0 0 — 0 — 2 o 0 0 - E 0 m c - 0 0 ( m c 0 0 m c ( 0 0 ( m c m c - 0 — 0 m c . ? I N — Q c m c 0 . 2 0 0 m c c , c m c - 0 . m c m c 0 - ) 0 E N i s 0 0 0 ( 0 m c m c 0 m c 0 ( m c — m c 0 ( m c C 0 ( 0 - m c — - m c m c ) I 0 m c m c * 0 % 0 m c m c - 0 - 0 m c m c m c 0 m c 0 c t 0 - m c m c o 2 — 0 o c 0 m c c m c m c 0 m c — c o m c ( m c m c — - 0 0 ( o 0 ( m c m c m c * 0 - 0 0 ( m c m c m c 0 ( m c m c o m c 2 0 m c - Q 0 ( • m c m c m c m c m c : m c m c I 29 constrained to observe that the truth in this case came to be burnt along with the deceased and we have to acquit the appellant accused with pains for want of legally acceptable evidence against the accused. For the reasons aforesaid, the present appeal deserves to be allowed, Hence, the following: ORDER The appeal is allowed, The impugned Judgment and Order of conviction and sentence dated 23/4/2010 passed by the learned Presiding Officer, Fast Track Court, Haven, in SCNo20/2008 hereby set aside. The appellant accused is hereby acquitted of the offence under Section 302 of IPC (h) Since th accused is in prison, he shall he set at liberty forthwith, if he is not rquird to b detained in connection ith an ott er c se 6 (iii) Operative portion Judgment shall be communicated to the Jail Authorities concerned lorthwith. Sd/ JUDGE Sd! JUDGE Mrk/