2021 INSC 0251 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 758 OF 2010 Jayamma & Anr. ..... Appellant(s)                              VERSUS State of Karnataka ..... Respondent WITH CRIMINAL APPEAL No. 573 of 2016 Lachma s/o Chandyanaika & Anr. ..... Appellant(s)                              VERSUS State of Karnataka ..... Respondent                                                                     JUDGMENT Surya Kant, J: These Criminal Appeals, which have been heard through video conferencing , are directed against the common judgment dated Page  |  1 29.07.2008 passed by the High Court of Karnataka at Bangalore whereby the findings of the trial Court were reversed and after setting aside the appellants’ acquittal, they have been convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and consequently sentenced to life imprisonment. F ACTS    2. The parties in the present case are closely related. The case of the prosecution is that there was a long-standing animosity between the families of Jayamma wife of Reddinaika (Appellant No.1) and Jayamma wife of Sanna Ramanaika (deceased) and in connection thereto, a quarrel took place on 10.09.1998 in which, Thippeswamynaika son of the deceased assaulted and injured Reddinaika (Husband of Appellant No.1). Thereafter the appellants allegedly went to the house of the deceased on 21.09.1998 and confronted her about the assault on Reddinaika. The appellants demanded Rs. 4,000/- for the cost incurred on the medical treatment of Reddinaika. After a heated exchange of words, the appellants allegedly doused the deceased- Jayamma in kerosene and set her on fire. Specific roles have been attributed to all the appellants in Page  |  2 respect thereto. Upon hearing the wails of Jayamma, her other son Ravi Kumar (PW-2) and daughter-in-law Saroja Bai (PW-5; wife of Thippeshi or Thippeswamynaika) came to the spot and tried to extinguish the fire. The appellants meanwhile ran away from the spot. Since Jayamma was seriously injured, PW-2 sought help from Kumaranaika (PW-3) to shift Jayamma to the hospital. PW-2 and PW-3 then took the injured- Jayamma on a bullock cart to Primary Health Centre (P.H.C.), Thalak and there Dr. A. Thippeswamy (PW-16) provided primary treatment to the injured- Jayamma, including, administering her certain pain killers. Dr. A. Thippeswamy (PW-16) sent medico-legal case information to the Thalak Police Station, and on receipt thereof, SHO K.V. Mallikarjunappa (PW-11) reached the hospital and recorded the statement of the injured Jayamma (Ex. P- 5) in the presence of PW-16. Jayamma in her statement implicated all the appellants. On the basis of the said statement, Crime No. 101 of 1998 was registered at the Thalak Police Station under Sections 504, 307, 114 read with Section 34 of IPC. Owing to the seriousness of injuries, the victim was later shifted to Government Hospital, Chitradurga. However, on 23.09.1998 at 5:30 AM, Jayamma succumbed to her injuries. 3. Upon being notified about the death of Jayamma, the Police sent a requisition to the Court, requesting that offence under Section Page  |  3 307 read with Section 34 IPC be altered to offence under Section 302 read with Section 34 IPC. ASI J. Sanjeeva Murthy (PW-14) thereupon visited the Hospital and conducted the inquest. The body was sent for post mortem examination and a report was made by Dr. Sunil Chowhan (PW-19), wherein, it was opined that Jayamma died of shock due to extensive burn injuries. Thereafter, the police visited the spot, drew the mahazar and made certain seizures in the presence of Rameshnaika (PW-1) and Eshwarnaika (PW-15). During the course of further investigation, PSI Chandrahas Naik (PW-13) and CPI Shankar (PW-18) recorded the statements of witnesses and arrested the appellants. Appellant No.1, however, was able to obtain anticipatory bail and was, thus, released after her arrest. 4. After the completion of investigation and filing of charge-sheet, the case was committed to the court of Additional Sessions Judge at Chitradurga. Charges were framed under Sections 504, 302, 114 read with Section 34 IPC against the appellants, to which they pleaded not guilty and claimed trial. The prosecution examined nineteen witnesses and thirteen documents to establish the guilt of the accused. The case of the appellants, as recorded in their statements under Section 313 of the Code of Criminal Procedure, 1973 (“CrPC”) was one of total denial. No defense evidence was led by them. Page  |  4 5. During the course of trial, several prosecution witnesses turned hostile. PW-2, son of the deceased, put forward an alternative chain of events wherein he claimed that the deceased committed suicide because she couldn’t bear the fact that her son Thippeswamynaika was arrested and sent to jail for beating husband of the 1 st appellant. PW-2 further stated that the deceased was unable to speak after the incident. In a similar vein, daughter-in-law of the deceased (PW-5) also contradicted the prosecution version and denied any knowledge as to how the deceased died. Regarding the arrest of her husband Thippeswamynaika, PW-5 disputed the fact that any quarrel had taken place on 10.09.1998 and claimed that she was not aware of the reason behind her husband’s arrest. PW-1 and PW-15 who aremahazar witnesses also did not support the prosecution case; they denied being called by the Police and stated that nothing was seized in their presence. The only material witnesses who supported the prosecution version were PW-11 (K.V. Mallikarjunappa) and PW-16 (Dr. A. Thippeswamy). They deposed that the statement of the deceased (Ex.P-5), accusing the appellants for the murderous attack on her was genuine and voluntary. 6. Since it was not in dispute that Jayamma died due to burn injuries, the crucial question before the trial Court was whether the death was suicidal or homicidal. The trial Court noted that the sole Page  |  5 material on record to connect the accused persons with the offence of murder was the statement of the deceased Ex.P5, which was being treated as a dying declaration. The prosecution heavily banked upon the said statement in order to prove the guilt of the accused. However, upon considering the mitigating circumstances such as testimonies of the hostile witnesses, nature of burn injuries of the victim, and the lack of any corroborative evidence, the trial Court was of the opinion that the prosecution had failed to prove the genuineness of Ex.P5 beyond all reasonable doubt. The evidence of PW-11 and PW-16 who had supported the prosecution case was found to be vague and unsatisfactory. Consequently, the Court held that the prosecution had failed to discharge its onus and acquitted the appellants. 7. The High Court in appeal reversed the findings of the trial Court and held that the evidence consisting of dying declaration was clinching and sufficient to bring the guilt home. While several arguments appear to have been raised on behalf of the appellants, the High Court brushed aside the same, plainly stating that no credence could be attached to the testimonies of the hostile witnesses. The High Court instead placed emphasis on the testimonies of PW-11 and PW-16 who had corroborated the contents of the dying declaration (Ex.P-5). The High Court found no good Page  |  6 ground to disbelieve either the testimonies of PW-11 and PW-16, or the contents of the dying declaration (Ex.P-5), and reversed the acquittal awarded by the trial court. The appellants were consequently convicted under Section 302 read with Section 34 IPC and sentenced to life imprisonment. 8. Discontented with the order of the High Court, the appellants have assailed their conviction and sentence through these two criminal appeals. Since the High Court has summed up its conclusions by way of a brief order, we deem it appropriate to reproduce the two relevant paragraphs no.4 and 6 of its impugned judgment which are to the following effect:- “4.   On   through   consideration   we   find   that   although   the   material witnesses PWs.2 and 5 have turned hostile, the evidence placed by the prosecution by way of dying declaration is very much clinching. PW   11   recorded   statement   and   testified   the   fact   of   recording statement   at   Ex.P­5   and   his   evidence   also   discloses   that   it   was recorded   in   the   presence   of   the   doctor   PW16   and   the   doctor   has given   endorsement   at   Ex.P­5©.   He   has   also   deposed   that   the deceased   was   in   a   fit   state   of   mind   and   she   gave   the   statement voluntarily   which   was   recorded   by   PW11   in   his   presence.   The contents of Ex.P­5 implicates all the accused for causing murder with common intention. xxx  xxx  xxx 6.   On   thoroughly   going   through   the   documents,   we   find   that   no credence   could   be   attached   to   the   evidence   of   the   witnesses   who have turned hostile. PW16 is an independent witness. The evidence of   PW   16   discloses   that   the   deceased   made   a   statement   at   Ex.P­5 Page  |  7 and   it   is   voluntarily  and   that   she   was   in a  fit  state  of  mind  to   give her   statement.   The   evidence   of   PW   11   shows   that   he   recorded statement   in   the   presence   of   PW16   and   Ex.P­5   contains   the endorsement of the doctor. There is no good reason to disbelieve the version   of   PWs.   1   (sic)   and   16   and   the   contents   of     Ex.P­5.   The autopsy report discloses that  the death is on account of burn injuries which   corroborates   the   e=contents   (sic)   of   Ex.P­5.   In   view   of   the above, we find that the acquittal is bad in law and hence, the same is set aside. In the result we pass the following order: The   appeal   is   allowed.   Accused   Nos.   1   to   4   are   convicted   for   an offence   punishable   under   Section   302   read   with   Section   34   of   IPC. The accused persons are sentenced to life imprisonment.” C ONTENTIONS    9. We have heard learned counsels for the parties at considerable length and perused the record in-depth. The principal contentions raised on behalf of the appellants are that the High Court’s order is totally cryptic and it erroneously reversed the well-reasoned order of acquittal passed by trial Court. Relying upon a catena of decisions of this Court including in the cases of Chandrappa v. State of Karnataka 1, Perla Somasekhara Reddy and Others v. State of A.P. 2, State of Rajasthan v. Shera Ram 3, Shyam Babu v. State of Uttar Pradesh 4, Murugesan v. State 5, Mookkiah v. State 6, 1 (2007) 4 SCC 415. 2 (2009) 16 SCC 98. 3 (2012) 1 SCC 602. 4   (2012) 8 SCC 651. 5   (2012) 10 SCC 383. 6   (2013) 2 SCC 89. Page  |  8 and Shivasharanappa v. State of Karnataka 7, it was urged that the High Court while interfering with an order of acquittal was under an onerous duty to scrutinize the evidence on record, and should return a categorical and cogent finding as to why it was impossible to sustain the order of the trial Court or why it deserved interference. It was contended that neither did the High Court evaluate the entire evidence nor it dealt with the specific findings of the trial Court, and as such, the High Court failed to discharge its obligation under Section 378 CrPC. It was further argued that in the facts and circumstances of the present case, Ex. P-5 i.e., the purported dying declaration cannot form the sole basis to convict the appellants. Relying upon the decision of this Court in Surinder Kumar v. State of Haryana 8 , it was canvassed that since the document Ex.P-5 was shrouded with doubtful circumstances, the same cannot be acted upon to be the solitary basis for conviction in the absence of any corroboration. Learned Counsel also drew our attention to Paparambaka Rosamma & Ors v. State of A.P .9 and argued that in the absence of a medical certificate attesting to mental fitness of the deceased before recording of the dying declaration, the High Court ought not to have placed any reliance upon Ex.P-5. It was then 7   (2013) 5 SCC 705. 8 (2011) 10 SCC 173, ¶ 25, 26 & 28. 9 (1999) 7 SCC 695 ¶ 8,9 &12. Page  |  9 submitted that the High Court overlooked the fact that the prosecution has miserably failed to establish any motive in the present case and, thus, conviction of the appellants was untenable. 10. Per Contra, learned State Counsel supported the conviction awarded by the High Court. He drew our attention to paragraphs 4 and 6 of the impugned order to suggest that the High Court had not only given a well-reasoned judgment but also buttressed it with specific reasons, warranting interference in the order of acquittal. Reliance was placed on Vijay Pal v. State (Government of NCT of Delhi) 10 in order to contend that even in cases of hundred percent burn injuries, the Courts can rely upon the dying declaration to convict the accused. A NALYSIS    11. In   light   of   the   rival   contentions,   the   following   questions   fall   for our consideration. A. Whether   the   High   Court   erred   in   reversing   the   findings   of the trial Court in exercise of its powers under Section 378 of the CrPC? B. Whether  the prosecution has successfully established that the   deceased   died   a   homicidal   death   at   the   hands   of   the appellants? 10 (2015) 4 SCC 749. Page  |  10 12. It   may   be   seen   that   the   entire   case   revolves   around   the evidentiary value of the purported dying declaration dated 22.09.1998 (Ex.P­5).   The   High   Court   has   heavily   relied   upon   it   along   with   the corroborative  statements of K.V. Mallikarjunappa (PW­11), who is  the police   officer   who   recorded   Ex.P­5,   and   of   Dr.   A.   Thippeswamy   (PW­ 16),   who   was   present   at   the   time   of   recording   the   dying   declaration and   also   endorsed   the   mental   fitness   of   the   deceased   to   make   such statement. It thus appears useful to reproduce the translated version of the said dying declaration (Ex.P­5) which reads as follows:­ “ I   have   been   residing   at   the   above   given   address.   Today after   having   food,   I   was   sleeping   in   front   of   my   house   near Kurukoppa, in the night at 10.00 pm a resident of our village Reddy   Nayak   and   his   wife   Jayamma,   came   near   our Kurukoppa   and   complained   that   since   my   son   had   beaten her   husband,   she   has   spent   four   thousand   rupees   and scolded  in  filthy  language.  I  was   keeping  quite  at   that   time. All   of   a   sudden   Jayamma,   wife   of   Reddy   Nayak,   Laccha Nayaka,   son   of   Chandra   Nayak,   Thippeshi,   son   of   Rama Naika,   Shankara   Nayaka,   son   of   Namya   Nayka   all   of   them advanced towards her and threatened to kill her, and poured kerosene oil all over her body and torched. Therefore, I have sustained   burn   injuries   over   my   hands   and   entire   body. When   I   started   shouting,   the   Accused   ran   away   from   the spot.   My   son   Ravi,   son   of   Rama   Nayaka,   and   my   daughter Sharadamma, wife of Mallenayaka poured water all over my body,   doused   the   fire,   and   my   son   Ravi   and   my   daughter Sharadamma   took   me   to   Taluk   Hospital   in   a   cart   for treatment.   I   pray   for   taking   suitable   action   against   the Accused as provided in law.” Page  |  11 13. It   is   most   relevant   to   mention   at   this   stage   that   we   have   also perused   the   original   dying   declaration   (in   Kannada   language).   The original   dying   declaration   begins   with   the   statement   of   the   injured, which   is   purportedly   based   upon   the   questions   asked   by   the   police officer   (PW­11),   and   right   below   the   statement,   there   is   the   thumb impression   of   injured   (deceased).   Immediately   below   there   are signatures   of   the   police   officer   (PW­11)   who   recorded   the   dying declaration in his own hand writing. Since very less space was left on the page, Dr. A. Thippeswamy (PW­16) has on the left side of the paper written   a   line   in   broken   words   which   goes   from   south­west   to   north­ east,   endorsing   that   the   “ Patient   was   in   a   sound   state   of   mind   at   the time .” In the leftover available space on the right hand side, the police officer (PW­11) has remarked that the statement was recorded by him on   22.09.1998   in   the   night   at   1.15   am   in   Thalak   Hospital   and thereafter   he   came   to   the   police   station   and   registered   a   case   crime no.101/1998   under   Sections   504,   307   read   with   34   IPC.     These remarks by PW­11 are written in a different ink, and it further appears that PW­11 also used the same pen to make a ‘small correction’ in the original dying declaration, i.e., some words, written in a different ink, have been inserted between two lines of the dying declaration. Page  |  12 14.    Before   we advert to the actual admissibility and credibility of the dying declaration (Ex.P­5), it will be beneficial to brace ourselves of the case­law   on   the   evidentiary   value   of   a   dying   declaration   and   the sustenance   of   conviction   solely   based   thereupon.   We   may   hasten   to add   that   while   there   is   huge   wealth   of   case   law,   and   incredible jurisprudential   contribution   by   this   Court   on   this   subject,   we   are consciously   referring   to   only   a   few   decisions   which   are   closer   to   the facts of the case in hand. We may briefly notice these judgments. A. In   P.V.   Radhakrishna.   v.   State   of   Karnataka 11 ,   this   Court considered   the   residuary   question   whether   the   percentage   of   burns suffered   is   a   determinative   factor   to   affect   the   credibility   of   a   dying declaration and the probability of its recording. It was held that there is   no   hard   and   fast   rule   of   universal   application   in   this   regard   and much   would   depend   upon   the   nature   of   the   burn,   part   of   the   body affected,   impact   of   burn   on   the   faculties   to   think   and   other   relevant factor. B. In   Chacko   v.   State   of   Kerala 12 ,     this  Court declined  to   accept the   prosecution   case   based   on   the   dying   declaration   where   the deceased was about 70 years old and had suffered 80 per cent burns. 11 (2003) 6 SCC 443  ¶  16. 12 (2003) 1 SCC 112  ¶  3, 4. Page  |  13 It   was   held   that   it   would   be   difficult   to   accept   that   the   injured   could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which   he   had   suffered   the   injuries.   That   was   of   course   a   case   where there   was   no   certification   by   the   doctor   regarding   the   mental   and physical   condition   of   the   deceased   to   make   dying   declaration. Nevertheless, this Court opined that the manner in which the incident was   recorded   in   the   dying   declaration   created   grave   doubts   to   the genuineness   of   the   document.   The   Court   went   on   to   opine   that   even though  the doctor therein had recorded “ patient conscious, talking ” in the wound certificate, that fact by itself would not further the case of the   prosecution   as   to   the   condition   of   the   patient   making   the   dying declaration,   nor   would   the   oral   evidence   of   the   doctor   or   the investigating   officer,   made   before   the   court   for   the   first   time,   in   any manner improve the prosecution case. C. In   Sham   Shankar   Kankaria   v.   State   of   Maharashtra 13 ,     it was   re­stated   that   the   dying   declaration   is   only   a   piece   of   untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in  Paniben v. State of 13 (2006) 13 SCC 165  ¶  10, 11. Page  |  14 Gujarat 14   wherein this Court summed up several previous judgments governing dying declaration, the Court in   Sham Shankar  Kankaria (Supra)  reiterated::­ “(i)   There   is   neither   rule   of   law   nor   of   prudence   that   dying declaration cannot be acted upon without corroboration. (See 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. (See State of U.P. v. Ram Sagar Yadav   [(1985) 1   SCC   552   and   Ramawati   Devi   v.   State   of   Bihar   [(1983)1 SCC 211]); (iii)   The   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   an   opportunity   to   observe   and   identify   the   assailants and   was   in   a   fit   state   to   make   the   declaration.   (See   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.   (See   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.   (See   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.   (See   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. (See   State 14 (1992) 2 SCC 474  ¶  18. Page  |  15 of Maharashtra   v.   Krishnamurti Laxmipati Naidu   [1980 Supp SCC 455]); (viii) Equally, merely because it is a brief statement, it is not to   be   discarded.   On   the   contrary,   the   shortness   of   the statement itself guarantees truth. (See   Surajdeo Ojha   v.   State of Bihar   [1980 Supp SCC 769]); (ix)   Normally   the   court   in   order   to   satisfy   whether   the deceased   was   in   a   fit   mental   condition   to   make   the   dying declaration   look   up   to   the   medical   opinion.   But   where   the eyewitness   has   said   that   the   deceased   was   in   a   fit   and conscious   state   to   make   the   dying   declaration,   the   medical opinion   cannot   prevail.   (See   Nanhau   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. (See   State of U.P.   v.   Madan Mohan   [(1989) 3 SCC 390]); (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of  course,  if  the  plurality  of  dying  declaration   could   be   held to   be   trustworthy   and   reliable,   it   has   to   be   accepted. (See   Mohanlal   Gangaram   Gehani   v.   State   of Maharashtra   [(1982) 1 SCC 700])” 15. It goes without saying that when the dying declaration has been recorded   in   accordance   with   law,   and   it   gives   a   cogent   and   plausible explanation   of   the   occurrence,   the   Court   can   rely   upon   it   as   the solitary   piece   of   evidence   to   convict   the   accused.   It   is   for   this   reason that   Section   32   of   the   Evidence   Act,   1872   is   an   exception   to   the general   rule   against   the   admissibility   of   hearsay   evidence   and   its Clause   (1)   makes   the   statement   of   the   decease   admissible.   Such Page  |  16 statement, classified as a “ dying declaration ” is made by a person as to the   cause   of   his   death   or   as   to   the   injuries   which   culminated   to   his death   or   the   circumstances   under   which   injuries   were   inflicted.   A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of   a   conscientious   and   guiltless   person   under   oath.   It   is   a   statement comprising   of   last   words   of   a   person   before   his   death   which   are presumed to be truthful, and not infected by any motive or malice. The dying   declaration   is   therefore   admissible   in   evidence   on   the   principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.  16 . We may also take note of the decision of this Court in the case of Surinder Kumar (Supra).  In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could   put   a   thumb   impression   on   the   purported   dying   declaration when she had suffered 95­97 per cent burn injuries. Thereafter, it was noted   that   “ at   the   time   of   recording   the   statement   of   the deceased…….no   endorsement   of   the   doctor   was   made   about   her position   to   make   such   statement ” ,   and   only   after   the   recording   of Page  |  17 the   statement   did   the   doctor   state   that   the   patient   was   conscious while   answering   the   questions,   and   was   “ fit   to   give   statement ”.   This Court   lastly   noticed   that   before   the   alleged   dying   declaration   was recorded,   the   victim   in   the   course   of   her   treatment   had   been administered   Fortwin   and   Pethidine   injections,   and   therefore   she could   not   have   possessed   normal   alertness.   It   was   hence   held   that although there is neither a rule of law nor of prudence that the dying declaration   cannot   be   acted   upon   without   corroboration,   the   Court must   nonetheless   be   satisfied   that   the   dying   declaration   is   true   and voluntary,   and   only   then   could   it   be   the   sole   basis   for   conviction without corroboration. 17. Consistent with the cited principles, this Court refused to uphold the   conviction   in   the   case   of   Sampat   Babso   Kale   and   Another   v. State   of   Maharashtra 15 .   The   dying   declaration   in   that   case   was made by a victim who had suffered 98 percent burn injuries, and the statement was recorded after the victim was injected with painkillers. This   Court  adopted   a  cautious  approach,   and  opined  that  there  were serious   doubts   as   to   whether   the   victim   was   in   a   fit   state   of   mind   to make the statement. Given the extent of burn injuries, it was observed that   the   victim   must   have   been   in   great   agony,   and   once   a   sedative 15 2019 (4) SCC 739  ¶  14, 16. Page  |  18 had   been   injected,   the   possibility   of   her   being   in   a   state   of   delusion could   not   be   completely   ruled   out.   Further,   it   was   specifically   noted that  “ the endorsement made by the doctor that the victim was in a   fit   state   of   mind   to   make   the   statement   has   been   made   not before   the   statement   but   after   the   statement   was   recorded. Normally it should be the other way around .”  [emphasis supplied] 18. We   may   now   proceed   to   evaluate   the   evidentiary   value   of purported   dying   declaration   (Ex.P­5).   As   noticed   earlier,   the   son   and daughter­in­law of the deceased, their neighbour and other witnesses from the vicinity, have resiled and not supported the prosecution case. Only  two  material  witnesses  are  left  out,  one  being  police   officer  K.V. Mallikarjunappa   (PW­11)   who   is   the   author   of   the   dying   declaration, the   investigating   officer   and   the   prosecutor.   The   second,   and   more crucial   witness,   is   Dr.   A.   Thippeswamy   (PW­16),   who   was   working   in the   P.H.C.,   Thalak   at   the   relevant   time.   As   per   his   deposition,   the statement of the injured was taken in front of him and the patient was in   a   sound   state   of   mind   at   that   time.   PW­16   was   the   one   who   had informed   the   police   regarding   admission   of   Jayamma   (the   deceased victim) in the hospital, and in his cross­examination, he has admitted Page  |  19 that   painkillers   were   given   immediately   after   admission.   He   has acknowledged that in a case of fourth degree burns the patient will be “ delirious and in a period of confusion ”. He has not denied that due to painkillers there was bound to be drowsiness. He has also not denied that “ hand, body was fully burnt ” and that “ hand includes the fingers ”. He   has   candidly   owned   up   that   the   police   did   not   take   his   written permission before recording the statement. 19. As regard to the version of K.V. Mallikarjunappa (PW­11), he has deposed   that   he   was   the   SHO   of   police   station   on   the   night  when   he received   a   phone   call   from   Taluka   Government   Hospital   at   about 12:45   a.m.   He   went   to   the   hospital   and   noticed   Jayamma   with   burn injuries. According to him the doctor examined her and said that “she was in a position to talk”, then the statement of Jayamma was taken in   the   presence   of   the   doctor   and   after   he   put   in   his   signatures,   the medical  officer  also endorsed and signed it. In his cross­examination, PW­11 has stated that “ Jayamma’s son, daughter­in­law and one other person   was   also   present….”.   He   has,   however,   admitted   that   no written   permission   was   sought   or   taken   before   recording   the statement   of   the   injured   and   that   he   “ questioned   Jayamma   ­   the injured,   as   to   how   it   happened.   Then   she   narrated   about   the incident......... .   Jayamma   ­   the   injured,   narrated   the   details   of   the Page  |  20 accused persons. The thumb impression was taken since the said finger was not burnt ” 20. It   is   a   matter   of   record   that   Ravi   Kumar   (PW­2),   son   of   the deceased   has   been   evasive   as   to   who   brought   the   injured   to   the hospital.   Rest   of   the   prosecution   case   has   also   been   denied   by   him. Even,   Saroja   Bai   (PW­5)   daughter­in­law   of   the   deceased,   has completely repudiated the prosecution case.    This set of evidence does not indicate or support the prosecution case that the injured was in a position   to   speak   or   narrate   the   incriminating   events   of   the   incident before   or   after   she   was   rushed   to   the   hospital.   Their   version   runs contrary   to   the   statement   of   Dr.   A.   Thippeswamy   (PW­16)   and   the police officer K.V. Mallikarjunappa (PW­11).  21. The   litmus   test,   therefore,   is   whether   the   victim   made   the statement   (Ex.P­5)   and   if   so,   whether   such   statement   can   be   the solitary foundation for conviction of the appellants? 22. Having meditated over the issue to the extent it is possible, and on   a   minute   examination   of   the   original   document   Ex.P­5   (without understanding   its   contents   as   it   is   in   Kannada   language   except   that the   endorsement   of   the   doctor   is   in   English)   read   with   its   true translation   placed   on   record,   we   do   not   find   it   totally   safe   to   convict Page  |  21 the   appellants   on   the   basis   of   the   said   document   alongwith   its corroboration by PW­11 and PW­16. We say so for several reasons as summarised hereinafter:  Firstly , the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose   with   such   precision.   Although   it   is   stated   that   deceased   was questioned by the Police officer, the purported dying declaration is not in   a   questions   and   answers   format.   The   direct   or   indirect   dominance of   the   Police   Officer   appears   to   have   influenced   the   answers   only   in one direction. Secondly ,   the   injured   victim   was   an   illiterate   old   person   and   it appears beyond human probabilities that she would have been able to narrate   the   minutes   of   the   incident   with   such   a   high   degree   of accuracy.  Thirdly ,   there   is   sufficient   evidence   on   record   that   the   victim   had been   administered   highly   sedative   painkillers.   Owing   to   80%   burn injuries suffered by the victim on all vital parts of the body, it can be legitimately   inferred   that   she   was   reeling   in   pain   and   was   in   great agony   and   the   possibility   of   her   being   in   a   state   of   delusion   and hallucination cannot be completely ruled out.  We say so at the cost of Page  |  22 repetition   that   the   doctor   (PW­16)   made   the   endorsement   that   the victim   was   in   a   fit   state   of   mind   to   make   the   statement   ‘after’   the statement   was   recorded   and   not   ‘before’   thereto   —   being   the   normal practice.     It   further   appears   to   us   that   faculties   of   the   injured   had been   drastically   impaired   and   instead   of   making   statement   in   an informative form she had apparently endorsed what the Police Officer (PW­11)  intended  to.  True  it  is  that  the  Police  Officer   (PW­11)  had  no axe   to   grind   or   a   motive   to   implicate   the   appellants,   but   his   over­ enthusiasm   to   solve   a   criminal   case   within   no   time   seems   to   have swayed the Police Officer (PW­11) so much that he appears to have not asked   the   doctor   to   make   an   endorsement   of   fitness   of   the   victim before recording the statement. He also did not deem it appropriate to call   a   Judicial   or   Executive   Magistrate   to   record   such   statement,   for the reasons best known to himself. Fourthly,   there   is   a   serious   contradiction   between   the   statement   of Dr.   A.   Thippeswamy   (PW­16)   on   one   hand   and   the   police   officer   K.V. Mallikarjunappa (PW­11) on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police   officer   claims   that   her   hands   were   safe   and   she   could   put   her thumb   impression.   We   have   seen   the   thumb   impression   very Page  |  23 scrupulously and the same appears to be absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in respect of the nature and gravity of injuries, stands belied.  Fifthly , and most importantly   the  police officer  K.V. Mallikarjunappa (PW­11)   candidly   admits   that   he   did   not   seek   an   endorsement   from the doctor as to whether the injured was in a fit state of mind to make a   statement,   before   he   proceeded   to   record   the   statement.   Both   the police officer as well  as the  doctor have  tried to  cover  up this  serious lacuna by referring to the purported oral endorsement of the doctor. It appears   that   the   police   officer   was   in   full   command   of   the   situation and   with   a   view   to   fill   up   the   legal   lacuna,   he   later   on   secured   the endorsement   from   the   doctor   (PW­16)   on   the   available   space   of   the paper,   which   is   ex­facie   unusual   and   not   in   line   with   settled   legal procedure.  Sixthly , the alleged motive for the homicidal death is highly doubtful. There   is   not   an   iota   of   evidence,   and   the   prosecution   has   made   no effort   to   verify   the   truth   in   the   statement   that   the   appellants   poured kerosene and lit the victim on fire only because her son had assaulted the   husband   of   Appellant   No.1   and   the   accused   were   insisting   on payment  of  Rs.4,000/­  which   was  spent on  the  treatment  of  the  said Page  |  24 assault–victim.   Not   much   can   be   said   when   the   deceased’s   own   son and daughter­in­law have denied this incident and rather claimed that their mother/mother­in­law committed suicide.  The   Seventh   reason   to   dissuade   us   from   harping   upon   Ex.P­5  is   the conduct   of   the   parties,   i.e.,   a   natural   recourse   expected   to   happen. Had it been a case of homicidal death, and the victim’s son (PW­2) and her daughter­in­law (PW­5) had witnessed the occurrence, then in  all probabilities, they would have, while making arrangement to take the injured   to   hospital,   definitely   attempted   to   lodge   a   complaint   to   the police.   Contrarily,   the   evidence   of   the   doctor   and   the   police   officer suggest   that   while   the   son,   daughter­in­law   and   neighbour   of   the deceased were present  in the hospital, none approached  the police to report   such   a   ghastly   crime.   It   is   difficult   to   accept   that   the   son   and daughter­in­law   of   the   deceased   were   won   over   by   the   accused persons   within   hours   of   the   occurrence.   This   unusual   conduct   and behaviour   lends   support   to   the   parallel   version   that   the   victim   might have committed suicide. The Eighth reason which makes us reluctant to accept the contents of purported dying declaration (Ex. P-5), is the fact that victim, Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries after almost 30 Page  |  25 hours later at 5:30 am on 23.09.1998. It is neither the case of prosecution nor has it been so stated by PW-11 or PW-16 that soon after recording her statement (Ex. P-5) she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. We hasten to add that the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case. 23. The other important reason to depart from the High Court’s view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ‘possible view’. The judgment of the trial court cannot be set aside Page  |  26 merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact. 24. If the case in hand is evaluated on these parameters, it may be seen from paragraphs 4 and 6 of its order that the High Court dealt with the appeal against acquittal summarily and did not even discuss the ocular evidence, especially of the son and daughter-in-law of the deceased, who have, to some extent, belied the version of the doctor (PW-16) or the investigating officer (PW-11). We say so for the reason that according to Ravi Kumar (PW-2), son of the deceased, the victim Jayamma had lost consciousness and was unable to speak at the time when she was rushed to the hospital in a bullock cart arranged by Kumaranaika (PW-3). Without discarding or disbelieving such statement(s), it is difficult to accept that injured — Jayamma was in a Page  |  27 fit state of mind at 1:15 a.m. when the alleged dying declaration was recorded. Her state of mind can be well imagined due to the combined effect of the trauma and the administration of painkillers. The High Court, on the other hand, relied upon the dying declaration (Ex.P-5) as the same was purportedly corroborated by the statements of doctor (PW-16), and the police official (PW-11) who authored the document (Ex.P-5). Such a conclusion, in our considered opinion, is totally erroneous and based upon misreading of the evidence on record. It has already been noticed that according to the doctor (PW-16), the victim had suffered 80% injuries including on her hands. As against it, the Police Officer (PW-11) claims that there were no burn injuries on the hand of the victim, hence she could put her left thumb impression on the dying declaration (Ex.P- 5). These glaring contradictions should not have gone unnoticed by the High Court. 25. At this juncture, we may also delve into the nature of motive attributed to the appellants. The document (Ex. P-5) itself recites that son of the injured-deceased, Thippeswamynaika, had beaten the husband of Appellant No. 1 and the appellants had statedly incurred medical expenses to the tune of Rs. 4,000/- which they demanded from the injured-deceased and then they doused kerosene and set her on fire. In the absence of any provocation from the side of Page  |  28 injured, the cause itself being so trivial in nature and the factum of causing any injuries to the husband of Appellant No. 1 having been expressly denied by the daughter-in-law of the deceased, namely, Saroja Bai (PW-5), coupled with the fact that there is no evidence whatsoever to prove that any such incident took place, we are satisfied that the so-called motive has not been proved at all and the declaration Ex. P-5, thus, recites a non-existent incident. 26. The Additional Session Judge, Chitradurga in his judgment dated 30.11.2001 formulated point no. 1 as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill Jayamma went to her house and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration (Ex. P-5) threadbare and critically analysed the statements of the police officer (PW-11) and the doctor (PW-16). The factors like (i) interpolation in the dying declaration Ex.P-5, (ii) contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm, (iii) Page  |  29 the victim with 80% injuries was apparently not in a situation to talk or give statement, (iv) PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail, (v) there being no corroborative evidence to the statement Ex.P-5, and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement Ex.P-5, he held it unsafe to convict the appellants on the solitary basis of the dying declaration (Ex. P-5). 27. We fully endorse the view taken by the learned trial court. The reasons which we have assigned in paragraph 22 of this Order are sufficient to cast clouds on the genuineness of the prosecution case. We find it difficult to uphold the conviction only on the basis of the dying declaration Ex. P-5. 28. Consequently, and for the reasons aforestated, both the appeals are allowed. The impugned order dated 29.07.2008 of the Page  |  30 High Court is set aside and the appellants are set free. Since, they are already on bail, their bail bonds are discharged. ………………………….. CJI. ………..………………… J. (SURYA KANT) …………………………...J. (ANIRUDDHA BOSE) NEW DELHI DATED :07.05.2021 Page  |  31