Judgment:
Chidananda Ullal, J.
1. This is an appeal filed by the convict Ramachandra, now at Central Prison, Mysore having suffered a judgment and order of conviction and sentence for life imprisonment dated 31-10-1995 in S.C.No. 94/91 passed by the Principal Sessions Judge, Mysore, for an offence under Section 302 of the IPC.
2. Since the appeal herein is presented to this Court through the Superintendent, Central Prison, Mysore, by the convict now in jail, we had to appoint an Amicus Curiae to prosecute his appeal and therefore wo have appointed Sri A.S. Bellary, the learned Advocate in the panel of Amicus Curiae appointed by this Court. We have therefore heard Sri A.S. Bellary, the Amicus Curiae and further the learned High Court Government Pleader, Sri N.B. Viswanath appearing for the respondent-State. Having secured the records of the learned Sessions Judge in S.C. No. 94/91, we have also perused the said records.
3. A brief narration of the case is necessary here and the same is as hereunder:
That the appellant, a barber by community had contracted a marriage with one Meenakshamma (since deceased) daughter of Javaraiah, a woman belonging to 'Adi Karnataka Community', a community which is listed in the list of Scheduled Castes and that their marriage was a registered marriage and had taken place about 15 years earlier to the date of incident in the early hours on 13-7-1991. It appears that the deceased Meenakshamma and the appellant having married, stayed for a short duration in the house of her mother P.W. 3 in Somanathapura and for some time the deceased was pursuing avocation in private Hospitals and finally five years earlier to the date of incident, she, to her good luck or ill-luck, had secured an appointment as an 'ayah' in Government Hospital and at the relevant point of time of the incident, deceased was employed as such, in the Government Hospital at T. Narasipura. It is stated that the appellant though a barber by profession was not carrying on with his said avocation for long and he was addicted to alcohol and time and again he was demanding money from the deceased to go for the alcoholic drinks. That on 12-7-1991, the deceased collected her D.A. arrears from her Hospital and was having the same with her. That, in the evening of that day, the appellant started pestering the deceased to part with the money for the purpose of going for the alcoholic drinks and in that connection a quarrel was going on between the deceased on the one side and the appellant on the other. That, at about 8.30 p.m. on the said day, i.e. 12-7-1991 when their only child Ambika-P.W. 2, then aged about 13 years, returned from her tuition class, the above quarrel was going on in their house then at Bannur. It is stated that at one stage, the deceased could not put up with the harassment meted out to her by the demand of money by the appellant for drinking liquor and she had walked out of the house and threatened to commit suicide by jumping into a stream and at that P.W. 2-Ambika consoled the deceased and brought her back to the house. That, thereafter, the deceased and P.W. 2 took their meals. It is further stated that somewhere in the midnight, P.W. 2-Ambika went into sleep and she was sleeping on the cot. That at that time, both the deceased as well as the appellant were still quarrelling. It is also stated that at about 3.30 a.m. on the following day i.e. 13-7-1991 the deceased went for urination and having felt sleepy she rested on the cot by the side of P.W. 2, when the appellant was resting on the floor. The further case of the prosecution is that at about 4 a.m. the deceased felt the smell of kerosene and further she found herself doused by kerosene and having smelt so, she woke up and got herself out of the cot and at that, the appellant set her ablaze by striking a matchstick in his hand. That, when the deceased was burning, P.W. 2-Ambika woke up only to witness her deceased mother burning. That immediately at the instance of P.W. 2, the appellant fetched water and poured on the body of the deceased and further wrapped her up by means of a blanket and thus put out the fire. That, the deceased suffered 65% to 75% of burn injuries mainly on the front side of her body and further on part of her back. It is also stated that the fingers of both of her hands were completely burnt. It is also stated that P.W. 2 started crying out and at that the appellant took to his heels and ran out of the house. Then P.W. 2-Ambika cried out to draw the attention of the neighbours for help and at that the neighbours came to the spot. That, thereafter the neighbours engaged a taxi and went all the way to Somanathapura and brought P.W. 3-Kondamma the mother of the deceased, P.W. 8-Vijayakumari the sister of the deceased and further her father, Javaraiah to Bannur presenting all of them that the deceased then being a pregnant woman at the advanced stage of pregnancy (she was carrying for the eighth month) had developed labour pain and she had to be removed to the Hospital immediately. That accordingly, P.W. 3, P.W. 8 and father of the deceased-Javaraiah came all the way to Bannur and thereafter they and P.W. 2 in the house of the deceased, shifted the deceased to K.R. Hospital, Mysore. As per the Accident Register-Ex. P. 6, the deceased was stated to have been admitted by her brother by name Venkatesh and he had given the history to the C.M.O.-P.W. 6 that the appellant doused kerosene on the deceased and set her on fire. That at the Hospital, P.W. 2-Ambika, P.W. 3- Kondamma - the mother of the deceased and P.W. 8-Vijayakumari-the sister of the deceased were present. That P.W. 6, C.M.O. admitted the deceased to the Hospital, in token of which he had taken the impression of the right toe of the deceased in Ex. P. 6-Accident Register as at Ex. P. 6(a) as all the fingers of the deceased were burnt and further sent the deceased to the Emergency Ward of the said Hospital, of which Dr. B.C. Nalini-P.W. 16 was in charge. That in the evening, P.W. 13-the Head Constable of the jurisdictional Police, having been informed with the registration of a medico-legal case by P.W. 6, visited, the Hospital and recorded Ex. P. 11-the statement of the deceased in the presence of P.W. 3 and P.W.16-Dr. Nalini for the purpose of registering a case as against the appellant. Both P.W. 3 as well as P.W. 16 had contributed their respective hands to Ex. P. 11. That, three days later, on 16-7-1991 at about 3 a.m. the deceased succumbed to the burn injuries, whereupon the Police had treated Ex. P. 11-the statement of the deceased before the Police as the dying declaration and further registered a second FIR Ex. P. 13 to register a case under Section 300 as against the appellant. Thereafter, P.W.17-Dr. Panduranga Shenoy had conducted the post-mortem on the dead body of the deceased and issued Ex. P. 15 post-mortem report. The Police had also conducted inquest mahazar on the dead body as per Ex. P. 1.
4. On completion of the investigation, the Police had filed a charge-sheet against the appellant before the jurisdictional Magistrate for an offence under Section 300 of the IPC. On committal to Sessions, the appellant took trial before the learned Sessions Judge having pleaded not guilty of the said offence charged against him.
5. To sustain the charge, the Prosecution had examined 20 witnesses including P.Ws. 1 and 5-the neighbours of the deceased, P.W. 2-the daughter of the deceased, P.W. 3-the mother of the deceased and P.W. 8-the younger sister of the deceased, P.W. 6-the C.M.O. of K.R. Hospital, P.W. 7-the mahazar witness for seizure of M.Os. 2 to 5 from the spot of incident (he turned hostile), P.W. 13-the Head Constable who had recorded Ex. P. 11-statement of the deceased, later treated to he the dying declaration, P.W. 16-Dr. B.C. Nalini in charge of the emergency ward of the deceased, P.W. 17-Dr. Panduranga Shenoy who had conducted the post-mortem report and P.W. 20-the I.O.
6. They also produced as many as 20 documents and they include Ex. P. 1-the inquest mahazar, Ex. P. 6-the Accident Register, Ex. P. 8 the Acquittance Roll of the Hospital of deceased showing the entry for collecting the D.A. arrears, Ex. P. 9-the seizure mahazar, Ex. P. 17 for seizure of M.Os. 1 to 5 from the spot of incident, Ex. P. 11 the statement of the deceased treated as a dying declaration, Exs. P. 12 and P. 13 the first and the second FIRs, Ex. P. 15-the post-mortem report, Ex. P. 17-the spot mahazar and Ex. P. 20-the F.S.L. report. In addition to the above the prosecution had a5so produced 6 M.Os. and they are, M.O. 1-the match box, M.O. 2-a partly burnt pillow, M.O. 3-a partly burnt blanket, M.O. 4-a mat, M.O. 5-the burnt cloth pieces of the deceased and M.O. 6-a can.
7. In defence, the appellant had marked portion of the statement of P.W. 2 as Ex. D. 1, portion of the statement of P.W. 8 as Ex. D. 2, Exs. D. 3 to D. 5-the inland letters written by D.W. 2 to the appellant (admitted) and Ex. D. 6 yet another inland letter purported to have been written by P.W. 2 to the appellant (disputed).
8. On appreciation of the material evidence on record, the learned Sessions Judge had passed the impugned judgment and order of conviction, convicting the appellant for imprisonment for life and further to pay a fine of Rs. 10,000/- and in default whereof, to suffer further R.I. for one year.
9. Having been aggrieved thereto the appellant is before this Court to challenge the same.
10. The learned Amicus Curiae Sri A.S. Bellary had taken us through the facts of the case. At the outset he submitted that the learned Sessions Judge had totally failed to appreciated that the death suffered by the deceased was a suicidal death and not a homicidal death by dousing her with kerosene and further setting her on fire by the appellant as alleged by the prosecution. In this regard he had pointedly drawn our attention to the circumstances that the deceased had shown that temptation right on the evening of the day of incident at about 8.30 p.m. on 12-7-1991. In this context he had taken us through the evidence of P.W. 2-Ambika, the daughter of the deceased who had deposed in para (3) of her evidence that at about 8.30 p.m. on 12-7-1991 she came home after the tuition class and at that time, her deceased mother and the appellant herein were quarrelling with each other and that the appellant was demanding money from the deceased to consume alcohol and further he was abusing the deceased. That, they quarrelled with each other and the quarrel went on that day till midnight and in the meantime, the deceased went out of the house to commit suicide by jumping into a stream and at that P.W. 2 had requested the deceased not to do that and because of that request, the deceased came back and therefore according to Sri Bellary, it was more a case of suicidal death by the deceased in her own hand by dousing kerosene and setting herself on fire. It is in this context, Sri Bellary had found fault with the learned Sessions Judge in the very formation of the points for his consideration in the impugned judgment. According to him, the learned Sessions Judge would not have formed only the two points as set out in para (5) of the impugned judgment but would have formed a third point to decide as to whether the prosecution had proved that the deceased died of homicidal death.
11. Sri Bellary next submitted that the dying declaration-Ex. P. 11 was not a dying declaration in law as the close relatives of the deceased P.W. 3 and P.W. 8 and further her father Javaraiah were also admittedly present by her side when P.W. 13 stated to have recorded the same. In this context, it is aiso the submission of Sri Bellary that P.W. 3-the mother and P.W. 8-the younger sister of the deceased were interested in getting Ex. P. 11 recorded to impiicate the appellant falsely as they were totally interested and motivated to deprive the appellant of the monies by way of service benefits of the deceased he would have otherwise shared along with P.W. 2 as one the successors-in-title. It is in this context he had also drawn our attention to the circumstance that it is borne on the evidence on record that P.W. 3 had even hastened and procured the services of two lady Advocates of Mysore City for the purpose of getting a Will executed by the deceased bequeathing all the service benefits in the name of P.W. 2-Ambika to be represented by her, as P.W. 2 was hardly 13 years old then. In this regard it is argued at length by Sri Bellary that P.W. 3 was very cautious to see that the service benefits in respect of the deceased were cornered by her being the guardian of P.W. 2-Ambika and bearing that in mind, she had gone to the extent of getting her eldest son Govindaraju also married to P.W. 2, no matter that P.W. 2 was not willing and totally opposed for such an alliance as it had been very well narrated to by P.W. 2 in her letters addressed to the appellant marked in his defence as Exs. D. 3 to D. 5. Therefore, according to Sri Bellary, there was a well hatched plan by P.W. 3, P.W. 8 and the father and brothers of the deceased to see that the appellant was falsely implicated in the case so that he be taken out of the scene and further that in law he be barred from claiming the same as the conviction in the case would render him to be so.
12. Sri Bellary had also argued that Ex. P. 11-dying declaration was not free from doubt as the same had come into existence in very unnatural and suspicious circumstances. The unnatural circumstances according to him are the following:
(i) That, P.W. 13 had recorded Ex. P. 11 as an information to the police as to a non-cognizable offence under Section. 154 of the Cr. P.C. for the purpose of registering a cognizable case as against the appellant.
(ii) That, the same was not made over to the Police Station by P.W. 13 on the very day of recording as the same v/as made over at about 10 a.m. on the day next.
(iii) That, Ex. P. 11 was converted to be a dying declaration when at the early hours at about 3.30 a.m. on 16-7-1991 the deceased succumbed to her burn injuries due to septi-semiacomplications.
(iv) That, the dying declaration-Ex. P. 11 was not certified by P.W. 16-Dr. Nalini, the duty doctor in the Intensive Care Ward, where the deceased was admitted, that the deceased was in a fit condition to give such a dying declaration and that the dying declaration therefore was bad in law and as such, has got no evidential value.
(v) That, P.W. 3 in her evidence had totally disowned that she had affixed her LTM as it appeared to be in Ex. P. 11, no matter that P.W. 13 in his evidence had asserted that P.W. 3 did put her LTM and that such a LTM was taken by him after Ex. P. 11 was read over to her i.e. to P.W. 3.
(vi) That, as per the evidence of P.W. 2-Ambika, the appellant had poured water on the deceased when she was burning and furthermore he had wrapped her up by a blanket and furthermore and more importantly he had put out the fire and on the face of such a positive evidence of P.W. 2-Ambika, there was no whisper about the said magnanimous acts of the appellant in the dying declaration. The said circumstance, according to Sri Beilary, was totally a suspicious circumstance and that if at all it was true that the deceased was in the state of a feeling of impending death, she would have definitely given credit to the appellant, as at that point of time a dying person as that of the deceased was in her pure state of mind.
(vii) That, admittedly, the deceased did not die either on that day i.e. 13-7-1991 or on the next two days, as she died only at about 3.30 a.m. on 16-7-1991 and as such, it could not be said that the statement recorded by P.W. 13 could be a dying declaration in the strict sense of the term.
(viii) That, the jurisdictional Police including P.W. 13 did not make any attempt to get the dying declaration recorded even up to the next three days either through the jurisdictional Taluk Magistrate or by the duty doctor as required under Section 32 of the Evidence Act.
(ix) That, if the letters Exs. D. 3 to D. 5 admittedly written by P.W. 2-Ambika (she had also confirmed in her evidence that the contents thereof were all true and correct) are closely scrutinised and analysed, the same cannot co-exist with the dying declaration-Ex. P. 11, for P.W. 2-Ambika in the said letters had showered all the love and affection towards the appellant as if he was not guilty of an offence of murdering her beloved mother.
(x) That, P.W. 2 being a minor at the point of time of the alleged incident and further she being married to her maternal uncle, Govindaraju, also living with P.W. 3 was under the total influence of both P.W. 3, P.W. 8 and her Husband Govindaraju and as such, it is because of tutoring, she had deposed as against the appellant before the learned Sessions Judge, not knowing the consequence of such an evidence by her.
13. For the aforesaid reasons, the Amicus Curiae argued that it was totally erroneous on the part of the learned Sessions Judge to hold that Ex. P. 11 was the dying declaration of the deceased and further to base the same for conviction of the appellant.
14. Yet another glaring circumstance Sri Beilary pointed out is that the learned Sessions Judge in the course of the judgment had observed that the history as to the burn injuries suffered by the deceased was given by the deceased herself and as per Ex. P. 6(a) in Ex. P. 6-Accidcnt Register; but while adverting to the same, he submitted that it is clear therefrom that the history was given not by the deceased but by her brother one Venkatesh. Furthermore, he had pointed out that according to the said entry, Ex. P. 6(a) in Ex. P. 6, the deceased was brought by the very Venkatesh as there is an entry therein to read, 'B.B. Venkatesh. Brother Venkatesh', thereby to say probably, 'Brought by Venkatesh -Brother Venkatesh'. In this context it is further argued by Sri Bellary that the said entry goes against the very evidence of P.W. 3 and P.W. 8 and furthermore, the evidence of P.W. 2 to the effect that it is they who brought and admitted the deceased to the Hospital. He had submitted so for the reason that in the entry at Ex. P. 6(a) in Ex. P. 6 none of their names occur. Therefore, his submission is that it is totally incorrect to claim either by P,W. 3 or for that matter P.W. 8 that it is they who brought the deceased and admitted the deceased to the Hospital.
15. The next point Sri Bellary argued before us is that according to P.W. 6, the fingers of both the hands of the deceased were completely burnt and because of the extensive burn injuries she suffered particularly on her hands, P.W. 6 got the impression of the right toe of the deceased at Ex. P. 6(a) in Ex. P. 6 right below the entry as to the name of the person who brought the deceased and that if at all it was true that the deceased was in a position to put her impression by either of her thumbs, there was no reason for P.W. 6 to get the right toe impression at Ex. P. 6(a) in Ex. P. 6. In this context, he had also drawn our attention to that part of evidence of P.W. 6-C.M.O. The said circumstances according to Sri Bellary strongly go to show that the left thumb of the deceased was totally burnt making her practically impossible to fix her LTM. Therefore according to Sri Bellary, it was yet another error on the part of the learned Sessions Judge to hold that the deceased had affixed her LTM in Ex. P. 11 as at Ex. P. ll(a) by relying upon the evidence of P.W. 17-Dr. Panduranga Shenoy who in his cross-examination had stated that the burns noticed by him were superficial and therefore it was possible for the deceased to affix her thumb impression. This evidence according to Sri Bellary cannot be relied upon for the simple reason that the evidence of P.W. 6 who had seen the deceased at the first instance when the deceased was brought to the Hospital was to the effect that all the fingers of the deceased were burnt and it is for that reason he was obliged to take the right toe mark of the deceased as he had practically done as at Ex. P. 6(a) in Ex. P. 6-Accident Register. Hence, his submission in this regard is that the oral evidence of P.W. 6 and further the documentary evidence as at Ex. P. 6(a) in Ex. P, 6 outweigh the evidence of P.W. 17 only to hold that the LTM of the deceased was completely burnt making her totally impossible to affix her LTM on Ex. P. 11-the dying declaration. In the said circumstances, according to him, one cannot believe that P.W. 13 had taken the LTM of the deceased on Ex. P. 11 as at Ex. P. 11(a), particularly when the said impression was stated to have been taken hardly after 12 hours of admission of the deceased to the Hospital. Therefore, it is vehemently argued by Sri Bellary that Ex. P. 11-dying declaration had come intoexistence in most suspicious circumstances. It is also argued by him that the same was done more to believe that the deceased was in a position to execute a Will to bequeath all the service benefits that were to enure otherwise to the benefit of the appellant on the one side and P.W. 2-Ambika on the other, they both being the legal heirs of the deceased.
16. Yet another point Sri Bellary canvassed before us is that even the oral dying declaration of the deceased before the neighbours to say that it is the appellant who had doused the deceased by kerosene and further set fire on her as claimed by P.W. 3 and P.W. 8 is not borne on evidence, for no independent witness had supported such a theory of theirs. Here again, Sri Bellary reminded us that though to some extent P.W. 2 had supported such a case as she was amenable for tutoring by P.W, 3 and P.W. 8 and more particularly when Govindaraju, her maternal uncle was forcedly married to her by P.W. 3, particularly when all of them had an eye on the service benefits to be collected by them through P.W. 2 by making a false charge as against the appellant that it is he who had killed the deceased.
17. Sri Bellary next turned to Exs. D. 3 to D. 5, the letters that came to be written by P.W. 2 to the appellant while in jail during the course of the trial. Practically Sri Bellary had read over all the said three letters before us. By a cursory reading of all those letters in fact moved us and it did not infuse confidence in us to believe that P.W. 2 had given an evidence as against the appellant to say that it is he who had killed the deceased. Sri Bellary in this regard requested us to closely read and analyse the said letters so that we may place ourselves evenly to hold who was wrong at what point in the calamity that had visited the family of the appellant and P.W. 2. Here again, Sri Bellary had drawn our attention to that part of evidence of P.W. 2 that it is the appellant who had put out the fire by pouring the water on the deceased while she was burning in her house and further wrapping her up with a blanket.
18. It is also argued by Sri Bellary that in the instant case P.W. 1 was not the scribe as he only did the dictation work and Ex. P. 11-dying declaration was recorded by one P.C.No. 57 by name Siddappaji as deposed by P.W. 13 himself. According to him, non-examination of the said P.C. Siddappaji is fatal to the case of the prosecution. Lastly, he argued that the Court must ensure itself that the dying declaration-Ex. P. 11 by the deceased was a true and voluntary one and that the same was not as a result of tutoring by the close relatives of the deceased. In this context, he had pointed out to us that the deceased's mother-P.W. 3, her sister P.W. 8, daughter-P.W. 2 and the father of the deceased were all by her side, right in the ward when the deceased was undergoing treatment.
19. While summing up his argument, Sri Bellary submitted that the deceased suffered not a homicidal death in the hands of the appellant, but had suffered a suicidal death in her own hands as it was more a case of dousing the kerosene and further setting the fire by the deceased on herself. In this context, Sri Bellary recalled at the cost of repetition, that according to P.W. 2 herself, at about 8.30 p.m. on the night of the incident the deceased did walk out of the house threatening the appellant and P.W. 2 that she would commit suicide by jumping into a stream. That being so, it is his prayer that the appellant being a victim of the circumstances, be given the benefit of doubt and further, he be set at liberty by setting aside the impugned judgment and order of conviction passed by the learned Sessions Judge.
20. Sri Bellary had cited mainly the following decisions before us:
(1) State of Punjab v Gian Kaur and Another.
(2) State of Punjab v Savitri Devi.
(3) State of Assam v Mafizuddin Ahmed.
(4) K. Ramachandra Reddy and Another v Public Prosecutor.
(5) Munnu Raja and Another v State of Madhya Pradesh.
(6) Maniram v State of Madhya Pradesh .
(7) Govind Narain and Another v State of Rajasthan .
The first decision is on the point that when the evidence of the doctor who had conducted the post-mortem examination was to the effect that the deceased suffered 100% burns and both of her thumbs were burnt, the High Court was justified in giving the benefit of doubt to the accused when the conviction was based on the dying declaration of the deceased, wherein she was shown to have put her LTM.
The second decision is also of the Supreme Court wherein, the Supreme Court deals with certain conditions precedent when the dying declaration is made a sole basis for conviction. In paras (6) and (7) of the judgment, the Supreme Court held as hereunder:
'(A) Evidence Act (1 of 1872), Section 32 -- Dying declaration -- Evidentiary value of -- Conviction on sole basis of such statement -- Condition precedent.
The dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny of the closest circumspection of the statement before acting upon i.e. while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of imagination of the dying person. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailant and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
Where the Sub-Inspector who recorded the dying declaration had arrived in the Hospital 6 hours after intimation of the occurrence was sent to him and though the doctor appended certificate to the dying declaration to the effect that the deceased remained conscious throughout his statement that the glucose wad continued to be administered throughout was falsified by the Sub-Inspector and the doctor did not know if the Sub-Inspector recorded the statement of the deceased in his own hand or dictated it to some other police official and the relations of the deceased had an opportunity to meet her and to talk to her before recording her statement, the declaration could not be relied upon to convict the accused'.
The third decision is to the effect that where a dying declaration was the sole basis for awarding conviction and when the same was found to be untruthful, the High Court was justified in setting aside the conviction based on the same.
The fourth decision is a decision wherein the Supreme Court held that though the dying declaration is undoubtedly admissible under Section 32 of the Evidence Act, the same not being a statement on oath and its truth cannot be tested by cross-examination, the Courts have to apply the strictest scrutiny with closest circumspection before acting upon it.
The fifth decision is on the point of corroboration and admissibility of the dying declaration in the evidence. In para (6) of the said judgment, the Supreme Court held as hereunder:
'(B) Evidence Act (1872), Section 32 -- Dying declaration --Admissibility -- Corroboration -- Necessity.
It is well settled that though a dying declaration must be approached with caution for the reason that' the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus, Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration'.
The sixth decision is on the point of reliability of a dying declaration in a murder case, where the allegation against the husband was that he poured kerosene oil on the deceased wife, set fire on her and ran away and further wherein the P.S.I. recorded the dying declaration of the wife, but without their being the attestation of the doctor as to whether the deceased was conscious or not.
In para (2) of the said judgment, the Supreme Court held as hereunder:
'That apart, in a case of this nature, particularly when the declarant was in the Hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important requirements which have to be observed. In the instant case, as noted above, there is no other evidence against the appellant except this dying declaration which is of highly doubtful nature. In our view, the learned Sessions Judge has given the good reasons for acquitting the accused and the view taken by him is quite reasonable and there is no good ground for reversing the same by the High Court. In the result, we set aside the conviction and sentence awarded against the appellant and allowed the appeal. If he is in jail, he shall be released forthwith. A copy of this judgment shall be despatched immediately'.
In the seventh and last decision, the Supreme Court held that non-examination of the scribe of the dying declaration is fatal to the case of the prosecution. In para (14) of the judgment, the Supreme Court held as follows:
'That takes us now to the consideration of the dying declaration alleged to have been reduced into writing, Exhibit P. 3. The High Court as well as the Trial Court have disbelieved Exhibit P. 3 for a variety of reasons. Even if we agree with Mr. Makwana, learned Counsel for the complainant that some of the reasons given by the High Court to discard Exhibit P. 3 were not sound, we find that no reliance can be pleased on the document Exhibit P. 3 for the simple reason that the scribe of the document, Shri Jagdish Narain, constable, for the reasons best known to the prosecution, was not examined at the trial and the defence therefore, had no opportunity to cross-examine him. Mohamed Ali P.W. 4 has failed to explain the cause for non-production of Jagdish Narain. We are, therefore, in agreement both with the Trial Court and the High Court, that there are sufficient reasons on the record to justify the discarding of the alleged dying declaration contained in Exhibit P. 3 and we do not place any reliance on the same'.
21. For the aforesaid reasons, Sri Bellary prayed that the impugned judgment and order of conviction recorded by the learned Sessions Judge be set aside.
22. On the other side, the learned Government Pleader while supporting the impugned judgment and order of conviction argued that the learned Sessions Judge had rightly and justly awarded conviction against the appellant on proper appreciation of the material evidence both oral and documentary appeared against him on the record. He had once again taken us through the evidence of the material witnesses, particularly of P.W. 2-Ambika, the daughter of the deceased and the appellant convict, P.W. 3-the mother of the deceased, P.W. 8-the sister of the deceased, P.W. 13-the Head Constable who had recorded Ex. P. 11 the dying declaration and lastly of P.W. 16-Dr. Nalini, the duty doctor of the Intensive Care Unit where the deceased breathed her last being an in-patient in that ward. It is also argued by him that P.W. 2 in her evidence had clearly stated that, after smelling kerosene oil she woke up and when she woke up she witnessed her deceased mother burning and after some time, the appellant-convict ran away from the scene and it is thereafter she went out of the house and cried out for drawing the attention of her neighbours. Sri Viswanath had also pointed out that even if there were some contradictions in the evidence of P.W. 2, they were all minor in nature and that being so, the same were of no consequence and help to the defence. While adverting to the evidence of both P.W. 3 and P.W. 8, Sri Viswanath submitted that the evidence tendered by the said witnesses was quite natural and acceptable and furthermore, in their cross-examination, nothing was got out to show that they were lying before the Court. Sri Viswanath while taking us through the evidence of P.W. 10-a co-employee of the deceased who had deposed as to the payment of the D.A. arrears to the deceased submitted that the evidence of the said witness also lent general corroboration to the case of the prosecution that the quarrel between the deceased on the one side and the appellant on the fateful day had commenced with the demand for money in the hands of the deceased.
23. While turning to the evidence of P.W. 13, Sri Viswanath argued that the said witness was the Head Constable of the jurisdictional Police Station and having been informed of the medico-legal case being registered by the Government Hospital, Mysore he paid a visit to the Hospital out of duty consciousness and he had thus recorded naturally Ex. P. 11 as a statement of the deceased for the purpose of registering a FIR and P.W. 3-mother of the deceased having been present at the ward and P.W. 16-Dr. Nalini being the duty doctor at the relevant point of time, both affixed their respective hands to Ex. P. 11 to lend authenticity to show that Ex. P. 11 was in fact the statement given by the deceased and the same was very naturally recorded by P.W. 13 through P.C. Siddap-paji, who accompanied P.W. 13 to the Hospital. While taking us through the evidence of P.W. 16-Dr. Nalini, Sri Viswanath submitted that it is in the evidence of the said witness, she had stated that the deceased was conscious enough and in that position P.W. 13 had taken the statement of the deceased. His further submission is that, Ex. P. 11 was the true dying declaration of the deceased and there is no good reason for the Court to doubt the recording of the same and that it is for that reason the learned Sessions Judge had rightly believed Ex, P. 11 to be true dying declaration of the deceased and accordingly accepted the same in evidence by holding that the same was the true and authenticated dying declaration of the deceased. Hence, he submitted that there is no merit in the instant appeal and therefore the same is destined to be dismissed.
24. To buttress his argument, the learned Government Pleader had also cited before us the following four decisions, They are:
(1) Habib Usman v State of Gujarat.
(2) State of Orissa v Parasuram Naik.
(3) Munnu Raja's case, supra.
(4) Bhayani Luhana Radhabai v State of Gujarat.
The first decision is to the effect that the presence of relatives and friends will not render a dying declaration as the tutored one.
The second decision is also with regard to a dying declaration and in the said decision, the Hon'ble Supreme Court held that in the absence of a certificate showing that the deceased was medically fit to make statement, dying declaration recorded by the doctor cannot be relied upon. The said decision does not support the prosecution, but we are at a loss to understand how the same is of any assistance to him.
The third decision is to the effect that a dying declaration is not necessarily to cover the entire incident or transaction which caused the maker's death and the last decision is once again on the matter of dying declaration, wherein the Supreme Court held that a dying declaration stands on the same footing as any other evidence and that it is to be judged in the surrounding circumstances and with reference to the principles governing the weighing of the evidence and further that the Court must in order to test the reliability of a dying declaration keep in view the circumstances like the opportunity of the dying man for observation.
25. Having heard both sides, the only point that arises for our consideration in the instant appeal is whether the impugned judgment and order of conviction passed by the learned Sessions Judge is based on the material evidence on record or not.
26. In support of the case of the prosecution, as we have stated above, the prosecution had examined more importantly P.W. 2-Ambika, the minor daughter of the deceased and the appellant-convict, then aged about 13 years, P.W. 3-the mother of the deceased, P.W. 8-the sister of the deceased, P.W. 13-the Head Constable who had recorded Ex. P. 11-the dying declaration and P.W. 16-Dr. Nalini the duty doctor of the Intensive Care Unit of the Hospital to which the deceased was admitted with the history of burns. We have carefully gone through the evidence of the above witnesses the prosecution adduced before the learned Sessions Judge in the light of the forceful argument advanced by both sides.
27. In the case in hand, as we see, the evidence of P.W. 2 appears to be crucial. The learned Judge had strongly relied upon her evidence to base the conviction as against the appellant; but it is not as if her evidence is far from contradictions. On a close scrutiny, we found the following contradictions in her evidence:
(i) In the examination in para (3) of her evidence, she had deposed that at about 4.00 a.m. she smelt the smell of kerosene oil in the house and earlier she found the kerosene tin near her father (the appellant herein), but in the end of that para she had stated that she had seen white plastic can containing kerosene but not the black can shown to her before Court.
(ii) In the evidence in para (2) she had deposed that, on her request the appellant poured water from 'hande' on the body of her mother and he covered blanket on her body, but in the statement to the Inquest Report-Ex. P. 1 she had stated that the appellant on his own poured the water from the 'hande' and wrapped her up by woollen blanket.
(iii) Before the Court below she had deposed that after covering the deceased by blanket, the appellant ran away and in another breath, she had deposed that on her cry the neighbours came and at that the appellant went away.
(iv) In her evidence before Court she did not say that she witnessed striking the match and setting fire by the appellant and that her mother had stated so before the neighbours when they visited the house immediately after the incident, but in the statement to Ex. P. 1-Inquest Mahazar, she had stated that she had seen the appellant doing the above acts. But, interestingly, in the evidence of the neighbours P.Ws. 5, 6 and 7, none of them supported the prosecution case as they all turned hostile.
(v) In one breath she had stated in para (4) of her evidence that she had respect for her father prior to the incident and again in the next breath she had stated that she has got respect to him still.
(vi) In the examination-in-chief, P.W. 2 had deposed in para (2) that she and the deceased slept on the cot when the appellant slept on the mat stretched on the ground and that after sometime the deceased got down from the cot and slept on the ground; but in the cross-examination she had deposed that for sometime the deceased slept with her on the cot and the deceased and the appellant were still quarrelling when she was on the cot.
28. In the light of the above contradictions, it appears to us that she was not at all a witness to the incident of the dousing of the kerosene oil and setting up of the fire to the deceased by the appellant and in the facts and circumstances, it is most probable that she woke up when the deceased was crying while she was burning and at that time, P.W. 2 might have smelt the kerosene oil all around. From the close scrutiny and analysis of the evidence of P.W. 2 in co-relation to her statement in Ex. P. 1-Inquest Report, it also appears to us that in the midst of the quarrel P.W. 2 might have gone to sleep on the cot and later the deceased also joined her to sleep with her on the cot, when the appellant was lying down on the mat spread on the ground and further that the deceased on the cot and the appellant on the mat below continued with their verbal quarrel and at some stage, to the feeble feeling of P.W. 2, then at sleep, the deceased got down from the cot to sleep on the ground away from the appellant on the mat.
29. It further appears to us that, when P.W. 2 and the appellant were asleep, the deceased might have doused herself with kerosene on her body and set herself on fire to commit suicide. It is to be pointed out here that the deceased was only crying when P.W. 2 woke up and saw the deceased burning. It is to be remembered here that the fingers of both the hands of the deceased were completely burnt as deposed by P.W. 6 and that was quite possible naturally when she had doused her body herself with kerosene and in that process the fingers of both the hands were completely doused with kerosene oil more and with the result, the fingers of both the hands and the hands themselves had the first brunt to be burnt completely. It is very important to take note in this context that P.W. 2 had seen the matchbox by the side of the deceased as deposed by her in her evidence. Further, if it was true that the appellant had doused her with kerosene and set her on fire, it would have been quite natural that the deceased herself would have shouted or cried out for help to invite the immediate attention of P.W. 2 inside the house and the neighbours at the next doors, but instead the deceased was seen only crying when she was burning; such a situation could be visualised only if the deceased was controlling the pain and the agony with full of emotions running high in her at that crucial hour as it was her own make and not make of anybody else.
30. There is yet another but important sequence P.W. 2 had stated in her statement to Ex. P. 1 inquest. That is to the effect that when P.W. 2 had seen the deceased burning, she i.e. P.W. 2 screamed and madly rushed to hold the deceased and at that the deceased was stated to have kicked P.W. 2 by her leg. This appears to be natural and true with genuine purpose, firstly to keep P.W. 2, her beloved child away from danger and secondly, to leave the deceased in peace to have her way. This in fact the deceased threatened to do by jumping into a stream or river at about 8.30 p.m. on that day as deposed by P.W. 2. Therefore, it is no wonder that such an incident did take place to be witnessed not only by P.W. 2 but also by the appellant on the fateful day.
31. On reading of the above analysis of the evidence of P.W. 2 by us, one may say that we tried to visualise the whole situation before us; of course that exercise in fact we did in our endeavour to find out the truth in the culpability of the appellant, now a condemned prisoner in jail.
32. Now the point is, why P.W. 2 had falsely implicated the appellant, for whom she had shown great love, very well reflected in Exs. D. 3 to D. 5 inland letters admittedly written by P.W. 2 when the appellant was in judicial custody during the pendency of the trial before the learned Sessions Judge. This makes us naturally to turn to the said Exs. D. 3 to D. 5. We only say here that, that was only misfortune of the appellant as well as of P.W. 2, for, the latter was under the total influence and control of P.W. 3, P.W. 8 and more particularly, her maternal uncle Govindaraju, whom P.W. 2 was forced to marry by P.W. 3 with purpose,
33. We have to state here that we have carefully gone through the said three letters Exs. D. 3 to D. 5 to understand as to whether P.W. 2 was really having all the love and affection towards the appellant. In so doing, we were astonished to read that P.W. 2 poured into her said letters her daughterly love and affection and what not on the appellant. In some of the letters, she had gone to the extent of associating herself more with the appellant-convict as against her husband, her aunt-P.W. 8, P.W. 3-her grandmother and the rest. Furthermore, she had also written therein that immediately after her SSLC she would join service and she would think of her marriage only after that and that she would see that the appellant was brought out of the jail.
34. We want to place on record some of the salient feature narrations as it appeared in Exs. D. 3 to D. 5. It is to be noted here, that, for
In Ex. D. 3 : (Dt.....)
In Ex. D. 5 (Dated 4-12-1993).
35. All those narrations as we see had naturally in filled into Exs. D. 3 to D. 5 in a very natural way as if an affectionate daughter had written to her affectionate father. In these circumstances, one gets a genuine doubt whether a daughter as that of P.W. 2 would write to her father, if it was true that he had done to death her beloved mother. The love and affection P.W. 2 had shown towards the appellant from the bottom of her heart, we could as well see in all those three letters admittedly written by her. It appears to us therefore that a normal daughter would not have written a murderous father the letters of affection in Exs. D. 3 to D. 5. Here assumes one important aspect of the case, of course very well borne on the evidence of P.W. 2 that on seeing the deceased mother burning she demanded the appellant to put out the fire and promptly did the appellant poured water on the burning body of the deceased and furthermore, wrapped up her body in a woollen blanket and further that he went out of the scene only after putting out the fire. These facts interestingly enough had not occurred in Ex. P. 11-dying declaration. If it is true that the appellant convict put out the fire as stated above by P.W. 2 in her evidence, a dying person as that of the deceased would not have belied that fact in her dying declaration, for at that point of time, the condition of the mind is considered to be pure and without prejudice or rancour. It is in this context, the learned Amicus Curiae Sri Bellary had argued that the dying declaration-Ex. P. 11 and the evidence of P.W. 2 do not go together. We find every force in that argument of Sri Bellary when we read Exs. D. 3 to D. 5 with close scrutiny. It is therefore, we have developed a strong doubt as to the truthfulness or genuineness in the dying declaration-Ex. P. 11 recorded by P.W. 13.
36. In this regard it is worth noting that though in the loft hand side of the end part of Ex. P. 11 the LTM of P.W. 4 was taken by P.W. 13, in the evidence of P.W. 3 she had clearly deposed that she did not contribute her hand for the same. It cannot be ruled out that P.W. 3 did not want to associate herself with the dying declaration-Ex. P. 11. The reason is obvious that she knew well as to how it had come into existence. Added to it, P.W. 16-Dr. Nalini who had also affixed her signature beneath the end part of the Ex. P. 11 had failed to certify therein that the deceased was in a fit state of mind to give her dying declaration as at Ex. P. 11. We have to mention here that Ex, P. 11 that came to be recorded as if a statement of the deceased for the purpose of registering a case was treated to be a dying declaration for the reason that after two days of recording of the same, the deceased succumbed to her injuries. But again, why the jurisdictional Police did not arrange for recording of the dying declaration by the jurisdictional Taluk Magistrate is not properly explained by the prosecution, for all that what is in the evidence of the Sub-Inspector-P.W. 15 is that, he was not in the headquarters and had gone out on 14-7-1991 itself to attend to certain case here in the High Court. As we see, it is also in his evidence that when he left the headquarters, he had made over the charge of the Station to the Senior-most Police Officer in his Police Station and that being so, nothing prevented that Officer to get the dying declaration recorded as contemplated under Section 32 of the Evidence Act, despite the fact that the deceased lived little over two days. But what the Police did in this case is to treat Ex. P. 11-the statement recorded during the course of investigation as the dying declaration of the deceased. As a matter of fact, recording of the dying declaration by the Police Officer is abhorred by the Supreme Court in certain given situations like the one in hand. In this context, we may beneficially quote what the Supreme Court held in the case of Dalip Singh and Others v State of Punjab. In the said case, the Supreme Court held as hereunder:
'(D) Evidence Act (1 of 1872), Section 32 -- Criminal Procedure Code (2 of 1974), Section 162 -- Dying declaration recorded by Police Officer during investigation -- Admissibility Evidentiary value.
Although a dying declaration recorded by a Police Officer during the course of investigation is admissible under Section 32 of the Evidence Act in view of the exception provided in sub-section (2) of Section 162, Criminal P.C., 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a Doctor. The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. This is not to suggest that such dying declarations are always untrustworthy, but, what has to be emphasized is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method : 1976CriLJ1718 , foll.
Held: A dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a Police Officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration, was left out of consideration as it contained a statement which was a bit doubtful'.
37. It is to be borne in mind here that Ex. P. 11 also bears the LTM of the deceased and the LTM is impressed by using the indelible ink in a normal way and in the said LTM the ridges are very clearly and distinctly visible. If it is true that the fingers of both the hands of the deceased were completely burnt and P.W. 6-C.M.O. of the Hospital for that reason had taken the right toe mark in Ex. P. 6(a) in Ex. P. 6-Acci-dent Register at the time of admission of the deceased at about 7.10 a.m. on 13-7-1991, as deposed by him, i.e. P.W. 6, it is difficult for us to reconcile with the circumstances that P.W. 13 could get the LTM in the manner it had appeared in Ex. P. 11 that came to be recorded by him within about 12 hours from that time of admission of the deceased (admission was made at 7.10 a.m. on 12-7-1991) by P.W. 6, for Ex. P. 11 is stated to have been recorded at 7.30 p.m. on 13-7-1991, as if nothing had occurred to the fingers of the deceased; of course P.W. 17 in the cross-examination had stated in para (9) of his evidence that the burns noticed by him were superficial and therefore it was possible for the deceased to affix her thumb impression. Here again, we find it difficult to accept the evidence of P.W. 17 for the simple reason that he had not noted the said superficial injuries on the fingers of both the hands in his post-mortem report-Ex. P. 15.
38. In the totality of the above facts and circumstances, it appears to us that Ex. P. 11 came into existence in most suspicious circumstances. Therefore, it is difficult for us to accept that Ex. P. 11-dying declaration as genuine and true dying declaration of the deceased. It further appears to us that the deceased did not suffer a homicidal death in the hands of the appellant but on the other hand, she had suffered a suicidal death in her own hand as she doused the kerosene on all over her body by pouring the same and further setting herself on fire.
39. The learned Sessions Judge in the course of his judgment at para (21) had observed that the entry as at Ex. P. 6(a) in Ex. P. 6-Accident Register showed that the admission was done at 7.10 a.m. on 13-7-1991 and the history was given by the deceased herself as to pouring of kerosene by her husband and lighting up of a matchstick on 13-7-1991 at about 3.30 a.m. in her house. But on cross-check of this fact with reference to Ex. P. 6(a) in Ex. P. 6-Accident Register, we find that the said observation of the learned Sessions Judge is factually incorrect, for as argued by the learned Amicus Curiae, the history therein was stated to have been given by the deceased's brother Venkatesh. Here again we have to point out yet another controversy with regard to the admission of the deceased to the Hospital. It is the evidence of P.W. 3 and P.W. 8 that it is they who having come to the house of the deceased at Bannur, both of them and PAV. 2 took the deceased in the very car in which they journeyed from Somanathapura and admitted the deceased to the Hospital. But in Ex. P. 6(a) in Ex. P. 6 it is shown therein that the deceased was brought by Venkatesh, the brother of the deceased and it is he who admitted the deceased to the Hospital, but strangely enough, the said Venkatesh was not at all examined by the prosecution before the learned Sessions Judge. Here again, we cannot forget for a moment that when the deceased was brought to the Hospital, she was not brought in an unconscious state as she was stated to be quite conscious and despite that, we do not find any explanation as to why P.W. 6 did not ascertain the history himself for the burn injuries from the deceased to record the same in Ex. P. 6(a).
40. In the midst of the above controversies, there was none from the neighbourhood of the deceased to speak as to how the deceased suffered the burn injuries and furthermore as to any narration by the deceased herself before them while they have visited her in her house at Bannur. It is to be mentioned that P.W. 4-Kempamma, P.W. 5-Jayamma and P.W. 7-Madaiah, the neighbours of the deceased had not at all supported the case of the prosecution as they all turned hostile. Therefore, it is clear from the evidence on record that, except Ex. P. 11 and further the oral evidence of the interested witnesses, P.W. 3 and P.W. 8 and the tutored evidence of P.W. 2, there is no material evidence on record to connect the appellant with the offence. At the cost of repetition, we have to state here that P.W. 3-the mother, P.W. 8-the younger sister, the brothers of the deceased and the father of the deceased appear to have ganged up as against the appellant-convict to corner the entire service benefits unto themselves and it is for that reason, they prepared the innocent P.W. 2-the daughter of the deceased and the appellant-convict to fall in line with their theory that the appellant-convict was responsible for the death of the deceased and it is for that reason they lost no time even to fetch two lady Advocates from Mysore City for the purpose of execution of a Will by the deceased to bequeath all her service benefits in the name and favour of P.W. 2 then aged about 13 years and how the service benefits had been used by P.W. 3 and her sons, Venkatesh and another by name Govindaraju, to whom P.W. 2 was given in marriage is a matter of record in the letters Exs. D. 3 to D. 5, P.W. 2 had written to the appellant. It is befitting to state that in a letter dated 17-11-1994 marked as Ex. D. 3, P.W. 2 had gone to the extent of writing to the appellant that after the death of the deceased the money that would have been enjoyed by her and the appellant-convict being merrily spent and enjoyed by P.W. 3 and her sons, much against the wish of P.W. 2 and that sum was a grand sum of Rs. 51,000/-.
41. The learned Amicus Curiae had cited before us seven decisions about which we have discussed in para (20), supra. Having gone through the same, we are of the considered view that all decisions cited by him are aptly and squarely applicable to the case in hand.
42. For all the aforesaid reasons, we are of the view that the learned Sessions Judge had not appreciated the material evidence both oral and documentary, particularly, the letters of P.W. 2 to the appellant-Exs. D. 3 to D. 5 marked in the defence, Ex. P. 6(a) in Ex. P. 6-the Accident Register spoken to by P.W. 6, on record in its proper perspective and furthermore that he had not closely and critically scrutinised the truthfulness or otherwise of the dying declaration-Ex. P. 11. Had he done that exercise, probably he would not have entered into an error to hold that the charge against the appellant was proved before him beyond all reasonable doubt.
43. Therefore, we are further of the considered view that it is imperative for us to set aside the impugned judgment and order of conviction and sentence for life imprisonment and further the imposition of fine of Rs. 10,000/- recorded by the learned Sessions Judge under Section 302 of the IPC and further we have to acquit him of the said charge, in allowing the instant appeal preferred by the appellant now a convict lodged at the Central Jail at Mysore, which we hereby do. We direct the said Jail Authority to set the appellant-convict at liberty forthwith.
44. We observe here in this context that life and liberty of a man cannot be put in jeopardy on mere suspicion, however strong it may be in given circumstances, and that one can only be deprived of the same on the basis of definite proof, that too, beyond all reasonable doubt. It is therefore well said that suspicion cannot take the place of proof.
45. In the case it appears to us that the deceased might have committed suicide and the appellant-convict was only a suspect and furthermore, a victim of circumstances, firstly that he had grown alcoholic and time and again he was harassing the deceased for money from her, as he was not pursuing any avocation of his own, the circumstance for which he has to blame himself and none else and secondly that P.W. 3-the mother of the deceased and her children had schemed to their advantage and to the peril of the appellant to deprive him of the service benefits which would have otherwise gone to him too, had he not suffered the judgment and an order of conviction and sentence in the case. With this judgment and an order of acquittal in his favour in the end in our hands, we hope that the appellant may think that all is well that has ended well; this in fact what P.W. 2-Ambika, his beloved daughter too wished and fondly looked for; in observing so here, we are not expressing our sentimentality, for we are well aware that sentimentality has got no place in the matters before Courts and that sentimentality shall not influence the decisions of the Courts in any way.
46. To facilitate an immediate communication to the jail authorities with regard to the judgment and order of acquittal herein passed by us, we also direct the Registry to send the operative portion of the same either by telegraphic message or by fax message whichever is expeditious for the prompt release of the appellant-convict from custody.
47. To depart from the discussion and the result of this appeal, we record words of appreciation for the able assistance Sri A.S. Bellary, the learned Amicus Curiae rendered us in the appeal. We do understand that he had done good homework to place before us apt decisions to supplement his argument.
48. We liberally fix his fee at Rs. 1,250/-.
49. The appeal succeeds and accordingly stands allowed.