Santhosh S/o Dinakar Achari Vs. The State Of Karnataka - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232502
CourtKarnataka Dharwad High Court
Decided OnFeb-21-2023
Case NumberCRL.A 100027/2020
JudgeDr. H.B.PRABHAKARA SASTRY AND C M JOSHI
AppellantSanthosh S/o Dinakar Achari
RespondentThe State Of Karnataka
Excerpt:
1 r in the high court of karnataka dharwad bench dated this the21t day of february, 2023 present the hon’ble dr.justice h.b.prabhakara sastry and the hon’ble mr. justice c.m. joshi criminal appeal no.100027 of2020(c) between santhosh s/o dinakar achargi, aged about:41. years, r/o: adyapak nagar, beside vishwanath kalyan mantap, hubballi-580023. ...appellant (by sri. ravi b naik, senior counsel for sri. j.basavaraj, adv., for appellant) and the state of karnataka through ashoknagar police, hubballi, represented by its state public prosecutor, high court of karnataka, bench at dharwad. …respondent (by sri. m. h. patil, aga) 2 this criminal appeal is filed u/s374(2) of cr.p.c., praying to allow this appeal and set aside the order of conviction and sentence dtd:21/11/2019 and2511/2019.....
Judgment:

1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE21T DAY OF FEBRUARY, 2023 PRESENT THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY AND THE HON’BLE MR. JUSTICE C.M. JOSHI CRIMINAL APPEAL NO.100027 OF2020(C) BETWEEN SANTHOSH S/O DINAKAR ACHARGI, AGED ABOUT:

41. YEARS, R/O: ADYAPAK NAGAR, BESIDE VISHWANATH KALYAN MANTAP, HUBBALLI-580023. ...APPELLANT (BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR SRI. J.

BASAVARAJ, ADV., FOR APPELLANT) AND THE STATE OF KARNATAKA THROUGH ASHOKNAGAR POLICE, HUBBALLI, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENCH AT DHARWAD. …RESPONDENT (BY SRI. M. H. PATIL, AGA) 2 THIS CRIMINAL APPEAL IS FILED U/S374(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE

ORDER

OF CONVICTION AND SENTENCE DTD:21/11/2019 AND2511/2019 PASSED BY THE LEARNED I-ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD AT HUBBALLI IN SESSIONS CASE NO.92/2015 CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION302OF THE IPC AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE THE OFFENCE PUNISHABLE UNDER SECTION302AND TO PAY FINE IN A SUM OF `75,000/- AND SET HIM AT LIBERTY. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON2401.2023, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT

THIS DAY, C. M. JOSHI, J., DELIVERED THE FOLLOWING:

JUDGMENT

The accused-appellant aggrieved by the judgment dated 21.11.2019 in Sessions Case No.92/205 passed by the learned I- Additional District and Sessions Judge, Dharwad sitting at Hubbali, for the offence punishable under section 302 of the Indian Penal Code 1860 (for short “the IPC’), has filed this appeal challenging the same.

2. The brief facts of the case are as follows:

3. 3. The police inspector of Ashok Nagar Police Station, Hubballi filed the charge-sheet against the accused for the offence punishable under Section 302 of the IPC in Crime No.15/2015 of the said police station. It was alleged in the charge-sheet that on 07.03.2015 at about 12.30 p.m., while Ramadas Kudalkar (deceased) was in his Laxmi Jewelry shop at Bhavani Nagar, Hubballi, the accused with an intention to commit his murder came there in the guise of getting some silver ornaments polished and hit the deceased with a machete (Koyta), which is marked at M.O.2, over his head and in the result the deceased sustained head injury and his right thumb was also chopped in the incident. Immediately, he was shifted to KIMS Hospital and later to Balaji Hospital, where he succumbed to the injuries on the next day, i.e. on 08.03.2015 at about 2.35 p.m. The motive for the alleged offence is stated to be that the accused was indebted to the deceased to pay a sum of `60,000/- and when the deceased demanded the same repeatedly, the accused had a motive to commit the offence and therefore, entered the shop premises of the deceased and assaulted him with M.O.2 and committed crime. 4

4. According to the prosecution, the incident had taken place at about 12.30 p.m. on 07.03.2015 and adjoining Saloon owner Satish Hadapad (PW2) heard the screams of Ramadas and when he went to the shop of Ramadas, he saw the accused running away with the weapon and Ramadas coming out with bleeding injuries. When Satish raised hue and cry, the Kirana merchant i.e. CW10(PW7), Babe Naik, heard cries of Satish and came out and saw the deceased Ramadas coming out of his jewelry shop sustaining injuries to his head and hand and sat over the steps. Being informed by some bikers about the incident, an Assistant Sub-Inspector of police i.e. PW14- Ramachandra Niralgi, who was in the nearby came there and with the help of other people who were gathered at the spot, immediately shifted the deceased to the hospital in the auto- rickshaw of PW8/Basheer. In the meanwhile, the injured was enquired by them and he informed that the accused-Santosh Achari had hit him with machete and escaped. PW14- Ramachandra Niralgi remained at the spot and informed the incident to the City Police Control Room through walkie-talkie requesting Ashok Nagar Police to come to the spot which prompted the police inspector PW26and other staff to go to the 5 spot. By that time, PW5(CW9)-Shankarappa Ullagaddi, who was proprietor of a tea stall in the nearby, informed the complainant i.e. PW4/Prakash and he came to the spot and then having learnt that the injured was shifted to the hospital, he went to the KIMS Hospital. The PW6-Parashuram Nakod, who was running a garage infront of the Laxmi Jewelry came to know about the incident, informed the PW3-Deepa, who also came to the spot and having learnt about shifting the injured Ramadas to the hospital, went to the KIMS hospital. One of the police constables of Ashok Nagar Police Station i.e. PW11/CW16-Manjunath Enagi had arrived at the spot on receiving the information and at the instructions of the Police Inspector PW26-Pushpalatha N., went to KIMS hospital with a handycam. It is the case of the prosecution that while the deceased was being treated in Emergency Care Unit of KIMS hospital, the police inspector- PW26 and the DCP/Hanumantharaya were asking questions to the deceased-Ramadas and he had disclosed that the accused was due to pay him a sum of `60,000/- and he came with a machete and assaulted the deceased on his head and hands. The entire questioning and reply was recorded by PW11-Manjunath Enagi and it was later handed over to the Investigating Officer. 6 In the meanwhile, PW4 having learnt about the incident and having met the deceased at KIMS hospital, came to Ashok Nagar Police Station and lodged the complaint narrating the incident as per Ex.P28, which set the criminal law into the motion. The PW26Police Inspector of Ashoknagar PS took up the investigation and finally the PW27completed the investigation and filed the chargesheet.

5. On committal of case to the Sessions Court, the learned Sessions Judge heard both the sides and framed charge for the offence punishable under section 302 of the IPC for which the accused claimed to be tried. As such, the case entered into trial and the prosecution in order to prove the guilt of the accused examined 27 witnesses as PW1 to PW27 and got marked documents as per Ex.P1 to Ex.P28 and material objects as per M.O.1 to M.O.10. The statement of the accused under Section 313 of the Cr.P.C., was recorded and after hearing both the sides, the Sessions Court by impugned judgment convicted the accused for the offence punishable under section 302 of the IPC and sentenced him to undergo life imprisonment and pay 7 fine of `75,000/-. It is the said judgment, which is assailed before this Court by the accused.

6. We have heard the arguments by the learned senior counsel, Sri.Ravi B Naik, appearing for the appellant and the learned Additional Government Advocate, who has also filed his written arguments in the matter. We have perused the entire records of the case.

7. The points that arise for our consideration are as under: i) Whether the prosecution has proved that the death of decased-Ramadas Kudalkar due to injuries sustained on 07.03.2015 at about 12.30 p.m., is homicidal death and that the accused has caused the death of deceased- Ramadas Kudalkar on account of his enmity with him regarding money transaction and thereby committed the offence of culpable homicide amounting to murder, punishable under section 302 of the IPC?. ii) Whether the judgment under challenge calls for any interference by this Court?. 8 8. The case of the prosecution as it unfolds is that the accused was having enmity with the deceased-Ramadas Kudalkar owing to the financial transaction between them. The prosecution contends that the repeated demand by the deceased about the sum of `60,000/- was the motive for the accused to commit the offence. Further, the prosecution contends that PW14-Ramachandra Niralagi, PW3-Smt.Deepa, who happens to be the wife of the deceased, PW11-Manjunath, who is police constable and allegedly recorded the video wherein the deceased has given the dying declaration, PW13-Manjunath, who happens to be the nephew of the deceased, and lastly PW26-Pushpalatha, who happens to be police inspector had heard the statement made by the deceased. Therefore, it is the case of the prosecution that under Section 32 of the Evidence Act, what has been heard by these witnesses cannot be a hearsay but it amounts to dying declaration by the deceased. The Arguments:

9. The learned senior counsel appearing for the appellant has submitted that the deceased could not have made a dying declaration because of heavy dosage of medicines given 9 to him. He has submitted that the alleged dying declaration made by the deceased before the various witnesses is not believable as the condition of the deceased has not been properly established by the prosecution. He points out that on two occasions the doctors of Balaji Hospital had opined that the deceased was not in a condition to give his statement. This goes to show that the deceased was unable to give any statement and therefore, the alleged dying declaration made before PW3, PW4, PW13, PW14 and PW26 are not believable in any way.

10. Secondly, learned counsel for the appellant also submitted that the alleged video recording of the statement of the deceased-Ramadas Kudalkar is hit by the provisions of Section 65-B of the Evidence Act. The M.O.1, which are two CDs are not supported by a certificate as required under section 65-D of the Evidence Act and therefore, the said M.O.1 could not have been relied upon by the prosecution. It is submitted that the said evidence in the form of M.O.1 is liable to be eschewed from the admissible evidence and it cannot be relied in any way. In support of his contention, he places reliance on the decision of the Hon’ble Apex Court in the case of Ravinder singh alias 10 Kaku vs State of Punjab1 and Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal2.

11. The third prong of the argument is that even if the dying declaration is admissible, it is tutored and therefore it loses its sanctity. It is submitted that the deceased was first met by PW14 at the spot and later he sent the deceased to the hospital and therefore, whatever that has been stated before the PW3, PW4, PW13, PW26 cannot be admissible in evidence. He submits that the material witness is PW23-Dr.Radha Mallikarjunaswami, who had treated the deceased at KIMS hospital, who says that her permission was not obtained to record the statement of the deceased. It was the evidence of PW23, which could have thrown light on the ability of the deceased to make a statement. Under these circumstances, it is submitted that the entire alleged statement made by the deceased before the prosecution witness is suspicious and is not believable for the purpose of convicting the accused.

12. Apart from that, he also pointed out that the neighbours of the shop of the deceased have not supported the 1 (2022) 7 SCC5812 (2020) 7 SCC111 case of the prosecution and they have not identified the accused to be present at the spot or the deceased having informed them that the accused had assaulted him(deceased) on the date of the incident. Therefore, it is submitted that the prosecution has failed to prove the guilt of the accused. In support of his arguments, he relied on the decision in the case of Jayamma and another vs state of Karnataka3 wherein it was observed that when there was time to call a Judicial/Executive Magistrate to record a dying declaration; recording of the dying declaration by the police officer would not inspire the Court to believe the same. It was observed that it is a common knowledge that such officers like Judicial/Executive Magistrates are judicially trained to record the dying declarations after complying with the mandatory requisites, including certification or endorsement from the medical officer that the victim was in a fit state of mind to make statement. Therefore, he contends that the alleged dying declarations made before the PW14-Ramachandra Basappa Niralgi and other witnesses is not believable and moreover PW26-Puspalatha N., the Investigating Officer, had not taken permission of the medical officer while questioning the 3 (2021) 6 SCC21312 deceased. Therefore, he contends that in the absence of any material to show that the doctors had permitted PW26/Investigating Officer to question the deceased, the alleged dying declaration is of no value.

13. Per contra, learned AGA submitted that immediately after the incident, the deceased was enquired by PW14 and the revelations made by the deceased before PW14 are consistent with the statements made by the deceased before other witnesses in the hospital. He points out that immediately after the incident, before the deceased could slip into unconsciousness, he had made the statement before the witnesses. He points out that the Trial Court has perused M.O.1- CDs by playing it and ascertained that the deceased was in a condition to speak. It is submitted that clippings in CDs were recorded much prior to the registration of the FIR and therefore, they cannot be treated as a part of the investigation, but can be treated as a material piece of evidence as dying declaration of the deceased and it has been seized by the investigating officer subsequent to registration of the case under a Panchanama as per Ex.P1 on 1-6-2015. Therefore, it is submitted that the 13 deceased was capable of giving his statement when he was brought to KIMS hospital. He submits that there are two clippings of the video and the first clipping is prior to application of bandage to the head injury of the deceased and the second clipping is subsequent to application of bandages. He also submits that the statements made by the deceased before the prosecution witnesses i.e. PW3, PW4, PW13, PW14 and PW26 is admissible in evidence under Section 32 of the Evidence Act. Therefore, he submits that the prosecution has proved the guilt of the accused. In addition, he submits that PW3-Deepa, the wife of the deceased, PW4-the brother of the deceased and PW13 and PW14 have stated about the disclosure made by the deceased that there was financial transaction between the accused and the deceased and as such, the accused had an enmity against the deceased. Therefore, it is submitted that the motive has also been established by the dying declaration of the deceased himself and as such, there is ample material on record to show the involvement of the accused in the incident. It is pointed that though the witnesses have turned hostile, their hostility is only in respect of identifying the accused and not in respect of the alleged incident and assault on the deceased- 14 Ramadas Kudalkar. Therefore, what is required to be proved by the PW3, PW4 and other witnesses is the only involvement of the accused in the incident. Hence, he defends the findings given by the Trial Court in the matter. However, he maintained a stoic silence regarding the admissibility of the M.O.1 CDs for want of certificate u/s 65B of the Evidence Act. Homicide:

14. Keeping in view the contentions raised by the appellant and the State, we will examine the points raised for consideration.

15. The first aspect to be decided by the Court is whether the death of the deceased-Ramadas was a homicidal death. In fact, the question whether the deceased-Ramadas died a homicidal death or not is not much in dispute. Nowhere the defence contends that the deceased had suffered a death which was not homicidal. However, it is necessary for this Court to ascertain as to whether the death of the deceased is homicidal or not. The medical evidence in respect of injuries sustained by the deceased as well as cause of death of the deceased may be found from the medical records. 15

16. PW22-Dr.Aadam Ali Nadaf is the Associate Professor of KIMS Hospital. He states that on 09.03.2015 he received a requisition from the Police Inspector of Ashok Nagar Police Station to conduct the postmortem on the body of the deceased- Ramadas. Accordingly, he conducted the autopsy from 8.00 a.m to 9.00 a.m. and he had found the following eight injuries: “1. Surgical sutured wound measuring 26cms over back of head (nape of neck) extending from one mastoid process to another mastoid process. On removal of sutures the wound measures 26cmX2mX bone deep with beveling of upper margin and undermining of lower margin. Underlying skull bone is cut.

2. Surgical sutured wound measuring 7cms over right frontal region, 2cm above right eyebrow. On removal of sutures the wound measures 7cm X1m X bone deep. Underlying skull bone is cut.

3. Surgical sutured wound measuring 2cms over top of head, 2cm to inner to external injury No.2 On removal of sutures the wound measures 2cm X02cm X bone deep. Underlying skull bone is cut, 4. Surgical sutured wound measuring 3cms over top of head 7cm behind external Injury No.3 On removal of sutures the wound measures 3cm X1m X bone deep. Underlying skull bone is cut.

5. Surgical stapled wound measuring 8cms over outer side right hand with right thumb missing. On removal of staples the wound measures 8cm X15cm X bone deep. Underlying bone is cut.

6. Surgical stapled wound measuring 1cms over back of tip of right middle finger. On removal of staples the wound measures 1cm X05cm X bone deep. Underlying bone is cut. 16

7. Surgical stapled wound measuring 1.5cms over inner aspect of root of right little finger. On removal of staples the wound measures 1.5cm X05cm X bone deep. Underlying bone is cut.

8. Obliquely placed surgical stapled wound measuring 6cms over palmar aspect of left hand. On removal of staples the wound measures 6cm X1m X bone deep. Underlying bone is cut.” It is also stated that all the injuries were antemortem in nature and injuries No.1 to 8 are suggestive of chop injuries and since the injuries were surgically treated, original nature of the injuries could not be made out. Ultimately, he opines that the death is due to shock and hemorrhage due to injuries sustained. The postmortem report is marked at Ex.P66. In the cross-examination, he admits that he had not seen the medical records of the KIMS Hospital, wherein there was an endorsement stating that the deceased was taken to Balaji Hospital against the medical advice. It is elicited that in order to ascertain the nature of injuries sustained, he had advised the Investigating Officer to take opinion from the doctor, who had treated the deceased prior to his death. 17

17. PW23-Dr.Radha Mallikarjun Swami happens to be the Medical Officer, who had first seen the deceased in the casualty of KIMS hospital and she also had noticed the following seven injuries on the deceased: “1. Amputation of the right thumb.

2. Lacerated wound over the right palm 3x3x1cm with bleeding.

3. Lacerated wound over the right frontal region of the scalp 9x1x1 cm bleeding present 4. Lacerated wound over the right parietal region with the scalp 5x1x1cm bleeding present.

5. Lacerated wound over occipital region 5x1x1cm bleeding present.

6. Lacerated wound over left middle finger base 6x1x1cm bleeding present 7. Lacerated wound over dorsal aspect of neck 20x5x5cm bleeding present” She states about the nature of injuries and she has stated that they were aged less than six hours. Obviously, PW23 had seen the deceased at 1.40 p.m., on 07.03.2015 itself. Later, she states that on 20.05.2015 she had received a requisition along with the weapon from the Police Inspector attached to Ashok Nagar Police Station and she has given the opinion as per 18 Ex.P68. In Ex.P68 she states that injury No.1 to 7 could be caused if the assault was caused by using the weapon which was given for examination. She has also identified the weapon at M.O.2. The case sheet of the hospital is also marked at Ex.P.69. The OPD slip is at Ex.P.70. In the cross-examination, nothing is elicited in respect of the nature of injuries suffered by the deceased. An attempt is made to show that the CT scan was not done since the number of the CT scan report is not mentioned in the MLC register. It is obvious that the MLC register is written soon after the patient is brought to the casualty and the details of the investigation obviously cannot be found in the MLC register. She also admits in the cross-examination that the injuries were caused while the deceased was trying to defend himself. This elicitation in the cross-examination of PW23 clearly establishes that there was an assault on the deceased and the deceased tried to defend himself. This would definitely establish that the death of the deceased was a homicidal death.

18. PW24-Dr.Krantikiran happens to be the Neurosurgeon of Balaji Hospital. He states that the deceased was 19 brought to his hospital on 07.03.2015 at 4.30 p.m. and he died on the next day at around 2.35 p.m. He states that he had informed about the death of the deceased to the jurisdictional police. He also states that on examination of the patient, he was drowsy, restless and his right thumb was amputated in the incident. He also states that the CT scan done on the brain revealed the brain injury and accordingly the patient was treated but the treatment was not successful. In the cross-examination, there is nothing to show that the death of the deceased was not a homicidal death.

19. In addition to this, the report of PW25- Dr.Chayakumari, who was an expert from the RFSL, Davangere shows that the articles which were seized from the custody of PW4, which include the chopped thumb which was collected from the shop of the deceased were subjected to examination and they had stains of ‘B’ group blood. She had also examined the shirt which was allegedly seized at the instance of the accused pursuant to his voluntary statement and she states that the said shirt was not stained with blood. 20 In the cross-examination, it is elicited that the liquid blood samples were not sent for the examination and she states that M.O.2 also contained the bloodstains. It is significant to note that M.O.2 was seized from the spot of incident and obviously it contained the bloodstains of ‘B’ group. Therefore, her evidence clearly establishes that the weapon contained the bloodstains and the blood group was belonging to the blood group of the deceased-Ramadas.

20. PW12-Dayanand Hiremani happens to be the Village Accountant, who was present in the KIMS Hospital for the inquest mahazar. The said inquest mahazar is at Ex.P42. A perusal of the same discloses that the deceased had injuries on his head. Since the death of the deceased-Ramadas was in Balaji hospital, the evidence of PW-24 Dr.Krantikiran and other doctors who treated him gains importance.

21. Coupled with the above medical evidence available on record, the testimony of PW14 and other witnesses who had seen the deceased immediately after the incident and who had also talked to the deceased at KIMS Hospital establish the involvement of the accused. In other words, there cannot be any 21 doubt in respect of homicidal death of the deceased. It is not the case of the defence that the deceased had suffered any accidental injury which led to his death. It is the defence of the accused that he was not involved in the incident but some other person might have inflicted injuries on the deceased-Ramadas. Under these circumstances, the evidence on record clearly indicates and conclusively shows that the death of the deceased- Ramadas was a homicidal death.

22. Having come to the conclusion that the death of deceased was a homicidal death, we proceed to consider the evidence on record concerning the involvement of the accused. The Evidence:

23. PW2(CW2) - Satish Hadapad happens to be the owner of a haircutting salon which was situated adjacent to the shop of the deceased-Ramadas. According to the prosecution case, he had seen and heard the cries from the shop of the deceased-Ramadas and therefore, he came out from his shop and found that the accused was running away holding a bloodstained machete and behind the accused the deceased also came out screaming and his head, neck and hands were injured 22 and were oozing with blood and therefore, he also screamed. Though PW2 has turned hostile to the prosecution, he states that his shop is situated by the side of the shop of the deceased and he returned to his shop at about 1.00 p.m. and many people had gathered there along with the police. The deceased-Ramadas was also there and he had sustained injuries on his left hand, forehead, etc., and he did not speak to Ramadas and police had also come there and they were also not speaking to anybody. However, the police sent the deceased to the KIMS Hospital. He states that about 2.00 p.m. police had come to the shop and blood had splattered on the floor and also there was a machete which was fallen. He came to know that Ramadas died on the next day. Therefore, he was treated hostile by the prosecution. In the cross-examination, he admits that the police had conducted spot mahazar at Ex.P4 in his presence and M.O.2- machete, bloodstained swabs, etc., were seized from the spot. He states that though his signature appears on panchanama at Ex.P13, which was done on the next day i.e. 08.03.2015, he sates that it was prepared in Ashok Nagar Police Station. 23 He denies that the PW4-Prakash had produced the cloths of the deceased and the chopped thumb of the deceased Ramadas and they were seized under a mahazar as per Ex.P13. Though he admits his signatures on the mahazars which are at Ex.P13, Ex.P14, Ex.P20 and ExP23, he denies that the contents were read over to him and after knowing the contents he had signed these panchanamas. Thus, the evidence of PW2-Satish discloses that he had seen the deceased immediately after the incident, before the deceased was shifted to KIMS Hospital. His evidence sufficiently establishes that the police were also present at the spot. Though he does not say the name of PW14, his evidence is sufficient enough to show that the deceased had been assaulted by somebody and the machete which was used to assault the deceased had fallen at the spot and it was seized by the police in his presence.

24. PW3-Smt.Deepa Ramadas Kudalkar happens to be the wife of the deceased. She states that when she was in the house at about 12.45 p.m., PW6-Parashuram came to her house and informed that somebody had assaulted her husband and therefore called her to the shop. Immediately she also came to 24 the shop which was nearby and by the time she came to the shop, the deceased was shifted to the hospital. Immediately she went to the KIMS Hospital and the deceased had disclosed to her that accused had assaulted him. She states that her husband Ramadas informed her in the hospital that accused was due to pay a sum of `1,10,000/- to the deceased and only `50,000/- was refunded by him and the remaining amount was not refunded despite the deceased asking for the same. Therefore, the deceased came in the guise of getting certain silver ornaments polished and then the deceased was assaulted by the accused with a machete and then the accused had run away from the spot. She speaks about the treatment and shifting of the deceased to the Balaji Hospital. She states that there are no records to show that the accused had taken a sum of `1,10,000/- as a hand loan. In the cross-examination, she admits that the PW6 had informed her that somebody had assaulted the deceased. She emphatically denies that when she met the deceased in the hospital, he had lost consciousness. 25

25. PW4-Prakash Kudalkar happens to be the complainant and he states that he is also a goldsmith by profession and at about 12.45 p.m. on 07.03.2015 when he was in his house, tea stall owner Shankru i.e. PW5-Shankrappa Ullagaddi came to him and informed that somebody had assaulted Ramadas with a machete and the police had come to the spot and the deceased was shifted to the hospital. Therefore, he immediately went to the shop of the deceased i.e. Laxmi Jewelers and found that M.O.2 had fallen there, police and some people had gathered and blood was splattered. Then he went to KIMS Hospital, where the injured Ramadas informed him that the accused had assaulted him. He states that he enquired the deceased about the cause of assault and he was informed by the deceased that about 7-8 months back, the deceased had given a sum of `1,00,000/- as hand loan and only `50,000/- was refunded by the accused and when the remaining amount was demanded, the accused had assaulted him. He states that the doctors in the KIMS Hospital informed that the deceased to be shifted to some other hospital and therefore the deceased was shifted to Balaji Hospital. Thereafter, he came to Ashok Nagar Police Station and lodged the complaint as per Ex.P28. He states 26 that he was present when the panchanama and spot mahazar were prepared in the presence of PW2 and PW9 and the said panchanama is at Ex.P4. The articles seized from the spot including the mobile phone of the deceased, hair, cotton swabs of blood, machete are marked at M.O.2, M.O.5 to M.O.8. He states that on the next day while the shop of the deceased was being cleaned, he found the chopped thumb of the deceased and he informed the police and along with the bloodstained cloths of the deceased-Ramadas which he had obtained from the hospital, went to police station and they prepared a mahazar and seized them. The said mahazar is at Ex.P13. In the cross-examination, it is elicited that many people had gathered at the spot when he went to the spot. He denies that the deceased was not in a condition to speak at about 2.00 p.m. when he went to KIMS Hospital. He states that he does not remember whether the deceased was in ICU at KIMS Hospital. In the cross-examination, it is elicited that the police had come to the KIMS Hospital before he went to the hospital and he does not know what the deceased had spoken with police. He pleads ignorance that the doctors had administered sedatives to the 27 deceased-Ramadas. He states that the deceased was taken to the Balaji Hospital at about 3.30 p.m. He has denied the suggestion that the accused is in no way connected to the injuries sustained by the deceased.

26. PW5-Shankrappa Ullagaddi happens to be the tea stall owner and he has turned hostile to the prosecution and has denied that he had seen the accused. His cross examination has not yielded any useful information.

27. Similarly, PW6–Parashuram Nakod happens to be the owner of the garage in front of Laxmi Jewelers of the deceased Ramadas and also pleads ignorance about the incident and therefore, he has been treated hostile by the prosecution. His cross examination has not yielded any useful information.

28. PW7–Babinayak Siddanayak Nayak happens to be the kirana shop owner and he has also turned hostile to the prosecution. His cross examination has not yielded any useful information. These witnesses simply state that the deceased Ramadas was killed by assault by somebody. 28

29. PW8-Basheer happens to be the auto-rickshaw driver and he states that he was in the auto stand at Bhavani Nagar on the date of the incident. He states that the police and many people had gathered and they asked him to shift the injured to the KIMS Hospital. Accordingly, he took the injured Ramadas in his auto-rickshaw to the KIMS Hospital. He denies that he had talked with the deceased while he shifted the injured to the hospital and therefore, he was treated hostile. The fact that PW8 had shifted the injured to the hospital is spoken by him and this aspect is not in dispute. In the cross-examination by defence he denied that he had not taken the deceased to the hospital.

30. PW9-Satish Rayakar happens to be a goldsmith and he states that he was present at the time of spot mahazar at Ex.P4 on 07.03.2015. He also states that on 08.03.2015 he was present when PW4-Prakash handed over the clothes and the severed thumb of the deceased Ramadas to the police and a mahazar was prepared in his presence as per Ex.P13. He further states that on 08.03.2015 at 12.30 p.m. to 1.00 p.m. police had brought the accused to Laxmi Jewelers and at that time the accused was also present and a mahazar was prepared as per 29 Ex.P23. PW9 has identified the accused before the Court. He further states that later the accused led the police and the panchas to the place where he had thrown his shirt and therefore, they went near Mahila Vidya Peetha and there the accused produced the shirt. A mahazar was prepared as per Ex.P20 and the shirt was marked as M.O.10. He also states that after two months of the incident again the police had called him to the police station and the police seized two CD’s which were containing video recordings of statements of the deceased in the KIMS Hospital. He states that the CD was played before him in the police station and then under a mahazar as per Ex.P1 they were seized. His evidence is also supported by the evidence of PW1, who was the co-pancha at that time. The CD’s are at M.O.1 and they were played before him while his evidence was recorded by trial court. Elaborate cross-examination has been conducted on behalf of the accused and it is elicited that people had gathered and the panchanama was done at about 1.30 p.m. In the cross- examination, he states that he did not see clothes of the deceased had fallen at the spot which was not seized by the 30 police. Much has been elicited about the procedure which had been followed by the police at the time of spot mahazar. Much cross-examination is also in respect of the place from which the accused had produced his shirt. We do not intend to dwell much on the mahazar in respect of the seizure of shirt of the accused since the FSL report discloses that it did not contain any bloodstains.

31. PW10–Ravindragouda happens to be the Police Constable, who had accompanied the dead body of the deceased to the KIMS Hospital for autopsy and later handed over the same to the relatives of the deceased.

32. PW11-Manjunath Enagi is the Police Constable and he states that as per the information received, he went to the Prabhu Complex where Laxmi Jewelers is situated on 07.03.2015 and on arrival of his higher officers, as per their directions he went to KIMS Hospital with a handycam and recorded the conversation between PW26 and the deceased. He states that the said recording is in M.O.1-CD. In the cross-examination he denies the suggestion that the deceased was not in a condition to speak. 31

33. PW12-Dayanand Hiremani happens to be the Village Accountant, who was present in the KIMS Hospital for the inquest mahazar. The said inquest mahazar is at Ex.P42. There is nothing in the cross-examination which shows that he was not present for the inquest mahazar.

34. PW13-Manjunath Kudalkar happens to be the nephew of the deceased. He states that he knew the accused and he was often visiting the house of deceased-Ramadas. He states that PW6-Parashuram came to the house of the deceased and informed PW3-Deepa that somebody had assaulted the deceased in his shop and therefore, he also accompanied PW3. Having learnt that the deceased was shifted to the hospital, he also went to the KIMS Hospital. He also enquired the deceased in the hospital, who spoke about the hand loan given to the accused and the accused assaulting the deceased with a machete i.e. M.O.2. Since he stated that he had not given a statement to the police, he was treated hostile. However, in the cross-examination by the learned public prosecutor he has admitted that the accused had assaulted the deceased with an intention to kill him. In the cross-examination, 32 it is elicited that he received the information between 12.30 p.m. to 1.00 p.m. and the information was that somebody had assaulted the deceased-Ramadas. When it was suggested to him by the learned defence counsel that the deceased was kept in ICU at KIMS Hospital, he denies the same but says that the injuries were bandaged and the deceased was on the bed. He has denied the suggestion that the deceased was not in a position to speak.

35. PW14–Ramachandra Niralgi happens to be the Assistant Sub-Inspector of Police attached to Keshwapur Police Station. He states that on 07.03.2015 at 1.00 p.m. he was at Bhavani Nagar, Durga Bakery and was conducting inspection of suspected vehicles and at that time two persons who came on a motorcycle informed him that at Laxmi Jewelers someone has attacked the owner of the shop with a machete and he could not get more information from them as they went away. Therefore, he rushed to Laxmi Jewelers, where he saw that the deceased was sitting on the steps and crying that he has lost his hand. Ramadas informed him about his name and the name of the assailant i.e. accused herein and the dispute was in respect of a 33 financial transaction. He states that the deceased was shifted to KIMS Hospital in an auto-rickshaw of PW8-Basheer. He remained at the shop till the higher officers came pursuant to a wireless message flashed by him to the control room. In the cross-examination, an effort was made to elicit about the name of the bikers, who informed him and bike number, etc., for which he has pleaded ignorance. Denials have been elicited and there is nothing worth which renders his testimony unbelievable. He denies the suggestion that the walkie-talkie message also reflects the location.

36. PW15-Nagaraj Arakeri is the Police Constable and also the photographer and he states that as per the directions of the higher officers he has taken the photographs which are at Ex.P48 to Ex.P51 at the time of the spot mahazar and also photographs at the time of other mahazars which are at Ex.P2, Ex.P3, Ex.P5 to Ex.P12, Ex.P14 to Ex.P19, Ex.P21, Ex.P22, Ex.P24 to Ex.P26, Ex.P29, Ex.P43 to Ex.P46. In the cross- examination, he states that the photographs do not show the date and time. He also states that he had not produced the memory chip. 34

37. PW16-Manjunath Yallakkanavar happens to be the Police Constable and scribe of the mahazars which are at Ex.P1, Ex.P4, Ex.P13, Ex.P20 and Ex.P23. He has identified his handwriting in these mahazars and the cross-examination shows that he is not found in the photograph at Ex.P21 and Ex.P22.

38. PW17–Ekanath Megeri happens to be another Police Constable who states that he had carried the seized articles M.O.2 to M.O.10 to the FSL, Belagavi.

39. PW18–Ramappa Chapparamani happens to be the Head Constable of Ashok Nagar Police Station and he states that while he was on patrolling, he came to know that there was an assault on the owner of Laxmi Jewelers of Bhavani Nagar and therefore, he went to the spot and came to know that the accused Santosh Achari had assaulted the said Ramadas. The higher officers had informed him to search for the accused and with the help of the informants, he found the accused at Lokappana Hakkalu, Hubballi and along with his staff at about 7.15 p.m. he was apprehended and brought to the police station and produced before the Investigating Officer i.e. PW26. He gave report as per Ex.P54. 35 In the cross-examination, it is elicited that higher officers had given him the photo of the accused and therefore, he identified the accused. He admits that the accused had not tried to run away.

40. PW19–D.B.Basavaraj happens to be the Assistant Engineer of PWD and he states that he had prepared the spot sketch as per Ex.P56 at the request of the Investigating Officer.

41. PW20-Suresh states that he is a Police Constable and he had requested to secure the call details of the mobile number of the accused and the deceased and when he received the call details on 01.06.2015 from the Office of the Police Commissioner, he got print of the same and handed over to the Investigating Officer. He identifies them at Ex.P60, Ex.P61 and Ex.P62. Obviously, these documents are the computer outputs and they are not accompanied by the certificate as required under Section 65-B of the Evidence Act.

42. PW21–Raghavendra Achhalli happens to be the photographer and he states that as per the notice issued by the police he had come to the police station and he transferred the video from the handycam to a CD. He states the manner in 36 which the video was copied to the CD and states that a panchanama was also drawn as per Ex.P1. Much has been elicited about his competence to do the technical job and his experience as a photographer, for which he has answered with sufficient details.

43. PW26-Pushpalata N., was the police inspector of Ashok Nagar Police Station as on the date of the incident. She has deposed that on the bases of the message of ASI-Neralagi i.e. PW14 over wireless she rushed to the spot. On enquiring the PW14, she came to know that Ramadas Kudalkar had been shifted to KIMS hospital. Therefore, she went to KIMS hospital and verified the MLC report and visited the injured-Ramadas, who was undergoing treatment. She categorically states that he was in a position to speak and as such she enquired him and such conversation was recorded by PW11-Manjunath Enagi. She states that the deceased-Ramadas had stated that the accused- Santosh Achari was the cause for the injury and there were financial transactions between them. She had identified the clipping in M.O.1 as video recording made at that time. Obviously, she had not obtained permission of the medical 37 officer at that time. She states that PW4-Prakash Kudalkar was already present in the hospital and he stated that he would file a complaint. Later, for specialized treatment, the deceased- Ramadas was shifted to Balaji Hospital. On receiving the complaint by PW4, the case was registered by her and then she made an effort to record the statement of the deceased from competent authority but the doctors at the Balaji Hospital had informed her that the injured- Ramadas was not in a position to speak. Those documents are available at Ex.P78. Then she visited the spot of the incident, conducted mahazar as per Ex.P4 and seized M.O.2, 5 to 7. Again on 07.03.2015 she makes an effort to record the dying declaration of the deceased-Ramadas from the competent authority but on that day also, the medical officer of Balaji Hospital had informed that the injured-Ramadas was not in a condition to speak. The said endorsement is available at Ex.P79. Thereafter, she seized the cloths of the deceased and the severed thumb produced by PW4 as M.O.3, M.O.4 and M.O.9 under mahazar at Ex.P13. On the same day evening, she arrested the accused and recorded his voluntary statement. On 38 the next day i.e. on 08.03.2015, at about 4.00 p.m., she came to know that Ramadas had died in Balaji Hospital and therefore, a requisition was sent to include the offence punishable under Section 302 of IPC instead of Section 307 of IPC. Thereafter, she recorded the statements of the witnesses, sent the body for postmortem and also sent the seized articles for FSL examination. On 14.05.2015, in pursuance to the voluntary statement of the accused, his shirt was seized under a Mahazar at Ex.P20. This recovery is of no relevance as bloodstains were not discovered on the same. In the cross-examination, except denials, nothing worth is elicited.

44. PW27–Laxman Yallappa Shirakol is the Investigating Officer, who took up the further investigation of the case from PW26 on his transfer to Ashok Nagar Police Station and secured the documents in respect of the shop of deceased-Ramadas and the CDR of the mobile phones concerning the the accused and the deceased-Ramadas and after completing the investigation, he filed the charge sheet. 39 Admissibility of the Video Recordings:

45. Before analyzing the evidence, it is necessary to dwell on the admissibility of the electronic evidence in the form of M.O.1. It is the case of the prosecution that soon after the incident, PW14/ASI of Keshwapur Police station rushed to the spot being informed by two unknown bikers that the deceased was sitting on the stairs leading to his shop with injuries. He enquired deceased-Ramadas Kudalkar about the incident, who disclosed about accused having committed assault on him. Then PW14 shifted the injured Ramadas Kudalkar to the hospital in an autorickshaw of PW8 - Basheer Dharwad. Of course, PW8 has turned hostile to the prosecution to the extent that he had no conversation with deceased while going to KIMS hospital. However, his evidence that he shifted the deceased-Ramadas Kudalkar to the KIMS hospital is spoken to by him. Soon after the deceased was shifted to KIMS hospital, the investigating officer i.e. PW26-Pushpalatha had also rushed to the hospital along with her staff. PW11, police constable, also rushed to the spot at the instructions given by PW26 and he recorded the statement of the deceased-Ramadas Kudalkar while the medical 40 staffs were preparing him for further treatment. PW11- Manjunath says that the deceased was capable of giving statement and he recorded the video. It is such video, which was seized by PW26 under a mahazar as per Ex.P1 in the presence of PW1 and another witness. PW1 has supported the case of the prosecution by saying that the investigating officer had seized two CDs. The said CDs are marked as M.O.1 without any objection. The mahazar at Ex.P1 and his signature on the CDs are identified by him. He also states that in the police station, the M.O.1 CDs were played then they were seized by the investigating officer. In the cross-examination, PW1 has denied the suggestion that he does not know the contents of the CD.

46. It is to be noted that if the prosecution wants to rely on the contents of the CD or any other electronic document, the provisions of Section 65B of the Evidence Act are applicable. If a certificate as required under Section 65B of the Evidence Act is not accompanying the electronic document/electronic record, then such electronic record is not admissible in evidence. The first decision in this regard is the case of Anwar P.V. Vs. P.K. 41 Bashir and others4. Since another Bench of the Hon’ble Apex Court had expressed doubt about the ratio laid down in the said decision, the matter was again referred to a Full Bench. The decision in the case of Arjun Panditrao’s case (referred to supra) lays down that as of now the requirement of Section 65B(4) of the Act is mandatory though there is a need for re- look into the matter. The ratio laid down in the Anwar P.V. case (referred to supra) has been reiterated by the Hon’ble Apex Court. In the said decision, it is held as under: “61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. v. P. K. Basheer5, and incorrectly “clarified” in Shafhi Mohammed v. State of H.P.,6. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor7, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.” 4 (2014) 10 SCC4735 (2014) 10 SCC4736 (2018) 2 SCC8017 (1875) LR1Ch D42642 47. The above view of the Hon’ble Apex Court has been reiterated and followed in the case of Ravindra Singh v. State of Punjab8. In paragraph 21 of the said judgment the decision of the Hon’ble Apex Court Arjun Panditrao Khotkar has been reiterated.

48. In view of the above, M.O.1 cannot be relied by the prosecution in any way. With an objection, M.O.1 was played and perused by the Trial Court and it was only with the said object it was played before us. In view of the above position of law, the electronic evidence, which is bereft of certificate as required under Section 65B(4) of the Evidence Act is inadmissible in evidence. The prosecution could have produced such a certificate through PW11 and PW21, who had prepared the CDs from handy-cam. In the absence of any such certificate, the M.O.1 is to be eschewed from the evidence.

49. In view of the above analogy, it is not only M.O.1 which is bereft of certificate as required under Section 65B of the Evidence Act, but Ex.P60 and Ex.P61 which are the call records, are also bereft of certificate as required under law. 8 (2022) 7 SCC58143 Therefore, those call records regarding conversation between the accused and the deceased are also inadmissible in evidence.

50. It is relevant to note that the trial court has not placed any reliance on MO1CDs on the ground that the police are not permitted to conduct preliminary investigation in respect of cognizable offence without registration of case. It is not necessary for us to consider this aspect in as much as the CDs and other electronic records are not at all admissible in evidence for not producing the certificate as required under Sec 65B of the Evidence Act. Analysis of the Evidence and conclusions:

51. Among the 27 witnesses examined by the prosecution, the testimony of the complainant-PW4/Prakash, testimony of PW3-Deepa w/o deceased-Ramadas, the testimony of PW13-Manjunath, who is a nephew of the deceased, the testimony of PW14-ASI Ramachandra Neeralagi are material and important. The PW26-investigating officer was also present in the hospital when the deceased narrated the incident and her evidence would also be of importance. It was PW26, who was present when the entire narration by the deceased was 44 videographed. Apart from this, the evidence of PW23, the doctor, who treated the deceased at KIMS hospital, would be relevant.

52. PW4-Prakash Kudalkar happens to be the younger brother of deceased-Ramadas. He states that on 07.03.2015 when he was in his house at 12.45 p.m., PW5-Shankarappa, who was running a tea stall in front of jewelry shop of the deceased, came to him and informed that somebody had assaulted deceased-Ramadas and police had come and shifted they shifted him to hospital. Immediately, PW4 rushed to the spot and found that M.O.2-machet had fallen there and blood had splattered on the floor, the spectacle and mobile of deceased had also fallen. Then he went to the KIMS hospital after locking the shop. While he was in hospital, he enquired the deceased and deceased told him that a sum of `1,00,000/- had been given by the deceased as a hand loan to the accused and only a sum of `50,000/- has been repaid by the accused, when he demanded balance amount, the accused came to his shop at 12.30 p.m., and assaulted him and in the incident, the deceased lost his right thumb. Thus, he has shown that what was stated by the 45 deceased before him is clearly spoken by him before the court. Thereafter, deceased-Ramadas was shifted to Balaji hospital and then he(PW4) came to Ashoknagar police station and lodged the complaint. In the cross-examination, it is elicited that he had not mentioned the autorickshaw number and that he had locked the shop of the deceased etc., in the complaint. He has admitted the said suggestion. It is elicited that it was at about 2.00 p.m., he came to KIMS hospital. It was suggested that the deceased was in ICU but PW4 has replied that he does not know whether he was in ICU or not. The suggestion that the deceased was given a sedative injection has not been admitted by him and he pleads ignorance about the same. He also says that he does not remember that he had given any documents in respect of accounts of the shop of the deceased to IO.

53. PW3-Deepa happens to be the wife of deceased- Ramadas. In her testimony before the Court, she states that while she was in her house, which is near to the shop of the deceased, PW6(CW8)/Parashuram, who is a neighboring shop owner came to her house and informed that somebody had 46 assaulted deceased-Ramadas. Therefore, she rushed to the shop immediately and by that time, the deceased had been shifted to KIMS hospital. She also saw the bloodstains at the shop and immediately went to KIMS hospital in an autorickshaw. She says that the deceased was admitted to ICU in KIMS hospital but she adds that the deceased was capable of talking. She also stated about the nature of the injuries sustained by the deceased and that the injuries were covered with a bandage. She stated that she enquired the deceased and he told that he had lent a loan of `1,10,000/- to the accused and a sum of `50,000/- was returned and an amount of `60,000/- was in balance. She also states that the deceased told her that the accused came under the guise of getting polished some silver ornaments and when the deceased asked the balance amount of `60,000/- , the accused assaulted the deceased on his head with a machete. She also states that the deceased had stated that the accused had thrown the sickle at the spot and ran away. She states that usually she used to go to shop at about 1.00 p.m., to 1.30 p.m., after her household work and used to be there and that she had seen the accused on earlier occasions also. 47 In the cross-examination, the defence has tried to elicit from PW3 that the deceased was suffering with pain and was unconscious. These suggestions have been emphatically denied by her. She states that she has not seen the account books having been maintained by her husband regarding the loan transaction. An effort was made by the defence to show that the accused was not at all involved in the incident, but she has withstood the cross-examination and has categorically stated that the deceased had stated before her that the accused has committed the assault.

54. The next testimony is that of PW13-Manjunath Kudalkar, who happens to be a nephew of PW4-complainant and the deceased. He states that on the date of the incident, PW6 had informed PW.3 about the alleged assault on the deceased and therefore, PW13 went to the shop of the deceased and saw the bloodstains there and then he went to KIMS hospital. He states that the deceased had sustained injuries on the back and middle portion of the head and the thumb had been amputated. He enquired the deceased and the deceased had stated that Santosh Achari, i.e., accused had not returned the sum of 48 `60,000/- and when the amount was demanded back, he had assaulted the deceased. He pleads ignorance as to whether the accused had intention of looting the shop of the deceased. In the cross-examination, it is elicited that he and the deceased were living separately and their houses are separated by about 1 to 1½ km away. He states that he do not know about individual transactions and business of the deceased. He states that he got the information between 12.30 p.m. to 1.00 p.m. about the assault. He states that the police were there at the spot when he went there but he does not know their names. It was suggested that when he went to KIMS hospital, the deceased was kept in ICU but he denies the same and says that his injuries were bandaged and the deceased was made to sleep on a bed. The suggestion that the deceased was not in a condition to speak has been denied by him.

55. The next witness, who had seen the deceased speaking, is PW11-Manjunath Enagi. He happens to be a police constable at Ashok Nagar Police Station and he states that on 07.03.2015, he got the information from his police station and accordingly, he had been to Deepa Complex at Bhavani Nagar 49 and there he saw Laxmi Jewelry but the injured was not there, however blood was splattered on the floor, his higher officers came to the spot. As per the directions of his higher officers, he went to the police station and took a handy-cam and went to KIMS hospital, Hubli. In emergency casualty, he saw the injured- Ramadas, who had sustained injuries on the back of the head and blood was oozing. He states that the deceased was speaking and he started video recording. He states that PW26- Pushpalatha and the other police officials were present and PW26 was questioning the deceased and he was replying to the same. He says that DCP, Hanumantharaya was also present and he also enquired the deceased. The entire conversation was video recorded and thereafter the doctors took the injured inside for further treatment. He returned to the police station and produced the handy-cam before the Higher Officer. The CD has been identified by him. In the cross-examination, the competency of the PW11 to record video has been questioned. He states that he has not mentioned anything about the memory chip of video camera and he has denied that he do not have competency of video 50 recording. However, he has also denied the suggestion that the deceased was incapable to giving statement and was unable to answer the questions posed to him by the investigating officer and emphatically says that the deceased was capable of giving statement.

56. The depositions of PW3, PW4, PW11 and PW13 pertain to deceased disclosing about the incident while he was being treated in KIMS hospital, Hubballi. All these witnesses state that the deceased was capable of giving statement and was capable to speak while he was being prepared for further treatment in the hospital. Obviously, except PW3, the other witnesses have stated that the deceased was in emergency casualty. It is only PW3 who has stated that the deceased was in ICU. Obviously, it is evident that the deceased was not in ICU as per photograph which is at Ex.P29. Even if we hold that Section 65B certificate accompanying Ex.P29 is not furnished, the oral testimony of PW4, PW11, PW13 clearly depict that the deceased was not in ICU but he was in casualty ward, before being shifted to the minor Operation Theater for the treatment, as may be seen from the case sheet. 51

57. The PW23/Dr.Radha Mallikarjunaswami happens to be the medical officer who first saw the deceased at KIMS Hospital. She states that she was working in KIMS Hospital in OPD department on 07.03.2015 at 1.40 p.m. While she was on duty, she received information that deceased-Ramadas Kudalkar was brought to the hospital with a history of assault. She narrates about seven injuries suffered by the deceased-Ramadas Kudalkar and says that he was admitted to male surgical F unit. Thereafter at 3.35 p.m., the deceased was discharged against the medical advise. It is curious to note that nothing is elicited by PW23 regarding the ability of the deceased to make a statement. Even in the cross-examination of PW23, nothing is elicited regarding the ability of the deceased to give a statement. In the cross-examination, it was suggested that immediately after examining the patient, she had felt that the presence of an anesthetist was required. This feeling felt by PW23 about the presence of anesthetist does not make a sense. It is pertinent to note that PW23 was preparing the injured for further treatment and she had advised CT scanning etc., and the prosecution had not elicited anything about the capability of the 52 deceased to make a statement. The presence of an anesthetist or otherwise would not have made any difference. It was not suggested to PW23 that anesthetist had come and he administered sedative to the deceased. Therefore the evidence of PW23 is not helpful either to the prosecution or to the defence in any way. It would suffice to note that the in the case of head injuries, administering of sedative, particularly drugs inducing sleep, would be only under the guidance of a specialist. Therefore, when there is absolutely no suggestion to PW23 that the deceased was administered with sedative or any other drug, it is not possible to hold that the deceased was under the effect of sedatives and therefore he was unable to speak.

58. PW.14 (CW14) – Ramachandra Basappa Niralagi has stated in his testimony that he was the ASI attached to Keshwapur Police Station and on 07.03.2015 at 1.00 p.m. he was conducting inspection of the suspected vehicles near Durga Bakery, Bhavani Nagar and two persons came on a bike and informed him that at Laxmi Jewelers someone had attacked its owner with a koyta/machete. He could not get more information from them as they went away and therefore, he rushed to Laxmi 53 Jewelers shop and he saw a person there sitting on steps crying that he lost his hand and his clothes were full of blood and also his face and head were also covered with blood and people had surrounded him. He states in unequivocal terms that on enquiry the injured informed his name as Ramadas Kudalkar and on enquiry about the assailant, he informed that one Santosh Achari who is known to him had assaulted him in connection with financial dispute and after the assault the said Santosh Achari (Accused) ran away by leaving the machete at the spot. PW.14 further states that the right thumb of Ramadas Kudalkar was amputated due to the assault and it was bleeding and his condition was critical due to the injuries and therefore he felt that the said Ramadas Kudalkar was in urgent need of medical aid and therefore he called an autorickshaw bearing Reg.No.KA-25/A-2660 which was driven by one Basheer (PW8) and instructed him to take the injured to the casualty of KIMS Hospital for treatment. He further stated that the weapon used for causing the assault was lying on the passage, infront of the shop and both the doors of Laxmi Jewelers were closed but not locked and 54 therefore, to guard the scene of the crime he remained at the scene of crime. Since the place of the offence was coming within the jurisdiction of the Ashok Nagar Police Station, he flashed a message on its walkie-talkie and after hearing the information the police inspector and PSI and other staff came to the spot. In the meanwhile, PW4 - Prakash who was the brother of the injured also came to the spot. Rest of his say about the arrest of the accused and the death of the deceased at Balaji Hospital on 08.03.2015 is all hearsay. In the cross-examination he was enquired with the registration number of the bike on which the two persons who informed him about the incident, for which he pleaded ignorance. It is specifically suggested that he had not rushed to the place of the incident, but he denied it. The denials have been elicited which in greater length include that the injured had not disclosed the name of the assailant. Denials are also elicited regarding he sending the injured to the hospital in the autorickshaw of PW8. It is clearly elicited that when the injured was sent in autorickshaw, none else had accompanied the injured. Much is also elicited regarding the manner in which the 55 walkie-talkie works and that it contains a unique number and that the information would be available at city control room. He stated that though the device has a number, but it is not reflected in the messages flashed. Denials are also elicited regarding the motive, machete which was fallen in the passage and there is nothing which renders his testimony unbelievable.

59. The above evidence of PW14 coupled with the evidence of PW3, PW4, PW11 goes to show that PW3 had received the information from PW6 who went to her house and informed about the assault by somebody. Therefore, she came to the spot and then she rushed to the hospital, where she came to know about the assailant from none else than her husband, the deceased Ramadas Kudalkar. PW4 – Prakash was in his house when the incident happened and he was informed by PW5 and he came to the spot and learning that the deceased had been shifted to the hospital, he went to the hospital and he also got the information from deceased Ramadas Kudalkar that it was the accused who had assaulted the deceased with koyta. PW13 is a nephew of the deceased and he also got the information along with PW3 from PW6 and therefore, he went to the spot 56 and from there he went to the hospital where he also was told by the deceased Ramadas Kudalkar that it was the accused who had assaulted him. It is worth to note that the say of PW3, PW4 and PW13 goes to show that they had received the information about the assault by the accused from none else than the Ramadas Kudalkar while he was being treated at KIMS Hospital. Obviously, it was about 1.30 to 2.00 p.m. Much prior to the deceased Ramadas Kudalkar was shifted to the hospital, it was PW14 who had an occasion to enquire the injured within minutes of the occurrence of the crime. PW14 categorically has stated that he was near Durga Bakery and having got the information about the assault, he rushed to the Laxmi Jewelers where the deceased was sitting on the stares crying that he lost his hand and he had injuries on his head with blood oozing out. The act that the deceased was crying that he has lost his hand gains significance in view of the fact that the deceased was a goldsmith. It has come in the evidence that the deceased used to polish the silver articles in his shop and as such he was an artisan in his profession. Therefore, there is reason to believe 57 that the deceased was crying when his right thumb has been amputated. It is this evidence which gains importance and renders the evidence of PW14 natural and believable. It is not that PW14 is deposing in parrot like manner but his evidence appears to be natural and believable. Therefore, coupled with the evidence of PW14, the evidence of PW3, PW4 and PW13 clearly establish that the deceased has disclosed the name of the assailant as Sanotsh Achari who is none else than the accused herein. PW3 and PW4 have identified the accused as Santosh Achari. There is also reason to believe the say of PW3 since she has stated in her evidence that she use to sit in the shop everyday from 1.00 p.m. onwards. Moreover, the house of the deceased and PW3 was situated near to the place of the occurrence. Therefore, the evidence of PW3 and PW4 also appear to be natural and their action can be said to be spontaneous. The evidence of PW3, PW4 and PW13 corroborates the evidence of PW14 that they were present at the shop and then PW3, PW4 and PW13 went to the KIMS Hospital. It is not suggested to PW3, PW4 and PW13 that PW14 was already informed about the name of the assailant by the deceased, when they visited the spot. Therefore, the testimony of PW3, PW4, 58 PW13 and PW14 gains credence and appear to be in natural course of the events which happened.

60. Further, the evidence of PW23 as discussed supra discloses that the prosecution failed to elicit from her as to whether the deceased was capable of giving a statement when he was brought to the hospital. Even in the cross-examination also, this aspect has not been touched by the defence. The only aspect elicited in the cross-examination is that she (PW23) felt that the presence of an anesthetist would be required. There is no further elicitation as to whether anesthetist had come to casualty and had administered any sedative to the deceased. Therefore, the evidence of PW23 does not cast any doubt regarding the capability of the deceased to speak and give any statement.

61. Under these circumstances the contention of the learned Senior counsel for the appellant that the deceased could not have made a dying declaration because of the heavy dosage of the medicine cannot be accepted. There is absolutely no suggestion made to PW23 that there was heavy dosage of medicine administered and therefore, he was not capable of 59 giving any statement to the police or others. Even if we accept the contention of the learned counsel for the appellant/accused that the deceased was incapable of giving any statement on account of the heavy dosage administered, there is nothing on record to show that even prior to PW14 enquired the deceased, the injured was administered with any medicine. The argument of the learned counsel for the appellant does not hold water in respect of the testimony of PW14 in any way. Therefore, we are unable to accept the contention of the learned counsel appearing for the appellant that the deceased could not have made any dying declaration either before PW14 or PW3, PW4 and PW13.

62. Added to this, PW11 has stated that on being informed by PW26, he went to the spot and from there he was asked to go to the hospital with a handycam. Therefore, he went to Ashok Nagar Police Station and then to the KIMS Hospital with a handycam and recorded the statement of the deceased Ramadas Kudalkar. Though the videograph in the CD’s at M.O.1 are not admissible in evidence due to non-production of certificate as required under Section 65B(4) of the Evidence Act, the oral testimony of PW11 regarding the ability of the deceased 60 to speak and give a statement is admissible in evidence. There is no reason as to why PW11 would lie before the Court. His testimony has not been discredited in the cross-examination. Similarly, the testimony of PW14 who was not working under the Investigating Officer i.e. PW26 is also not discredited by virtue of cross-examination. There was no enmity between the police and the accused for any reason. Even a suggestion is also not forthcoming regarding the reason for hostile attitude of PW11 and PW14 as against the accused. Under these circumstances, the evidence of above witnesses though is hearsay, is admissible in evidence under Section 32 of the Evidence Act.

63. It is relevant to note that the law relating to acceptability of the dying declaration has been succinctly narrated in the case of Laxman vs. State of Maharashtra9. Later the same is reiterated by the Hon’ble Apex Court in the case of Parbin Ali vs. State of Assam10. In para No.3 of the decision in the case of Laxman it was held as below: “The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and 9 (2002) 6 SCC71010 (2013) 2 SCC8161 when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.

64. Further, the above view is fortified by the decision in the case of Prakash vs. State of M.P.11, wherein in para No.11 it was stated as below: “In the ordinary course, the members of the family including the father were expected to ask the victim the 11 (1992) 4 SCC22562 names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with.

65. Under these circumstances, we are unable to accept the argument of the learned counsel for the defence that the dying declaration of the deceased is inadmissible.

66. The second aspect contended by the learned counsel for the appellant is that the dying declaration is tutored. In this regard, he relies on the decision in the case of Sultan Vs State of UP12 where in it is held that it is necessary to guard and ensure that the statement made by the deceased is not a result of tutoring, prompting or imagination. There is absolutely no evidence on record to show that the deceased was tutored while he was on the way to KIMS Hospital. It has come in the evidence of PW14 - Ramachandra as well as PW8 - Basheer that the deceased alone was shifted to the hospital in the autorickshaw. 12 2022 AIAR (Criminal) 966 63 PW8 had no occasion to tutor the deceased. It is not the case of the prosecution that PW8 had any enmity with the appellant/accused. The PW8has stated that the deceased Ramadass did not tell anything to him and therefore he was treated hostile and he was cross examined by the prosecution. Therefore, it cannot be said that there was any occasion for anybody tutoring the deceased Ramadas Kudalkar. If at all there is any tutoring, it would have been by the family member who only met the injured in the hospital, much prior to which the deceased has disclosed about the assailant before PW14 at the place of occurrence itself. Therefore, this contention of the learned counsel for the accused that there was tutoring cannot be accepted.

67. In the case of Jayamma (referred to supra) the observation of the Hon’ble Apex Court do not lay down that the permission of the doctor is mandatory. In paragraph 22.8, of the said judgment, it was observed as below:

22. 8. ……… 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 64 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.

68. In the case on hand, the evidence of PW26 discloses that soon after the information of the incident was received, she rushed to the hospital and continuously followed to record the dying declaration of the deceased through a competent person, but by time she visited the Balaji Hospital, the doctors at Balaji Hospital did not permit her to record the dying declaration as the condition of the deceased had worsened. The evidence of PW24- Dr.Krantikiran depicts that the treatment was not successful and therefore, on the next day, Ramadas died. Therefore, whatever that had been heard by PW26 as PW3, PW4 and PW14 gains importance and this Court analyzed their evidence in arriving at the conclusions.

69. A perusal of the impugned judgment of the Trial Court discloses that all these aspects have been considered by it. It has rightly come to the conclusion that the deceased-Ramadas was capable of speaking when PW3 and PW4 visited him in the 65 KIMS Hospital. It has also considered that the testimony of the PW14, which corroborates with the say of PW3 and PW4. It has also considered the contentions raised before it by the defence in paragraph 143 of the judgment. Therefore, we do not find any reason to interfere with the conclusions reached by the learned Sessions Judge’s Court.

70. In view of the critical examination of the evidence on record and its thorough analysis, we have come to the conclusion that the prosecution has proved that the deceased was capable of speaking and he gave oral dying declaration before the PW14, PW3 and PW4 and their evidence cannot be discarded at all. For the foregoing reasons, the appeal is bereft of any merits. Hence, we proceed to pass the following:

ORDER

The appeal is dismissed as devoid of merits. The judgment of conviction convicting the accused for the offence punishable under section 302 of IPC and sentencing him to undergo life imprisonment as well as imposing fine of `75,000/- and ordering compensation of `70,000/- to be paid to the PW3-Smt.Deepa S/o. Ramadas Kudalkar is hereby confirmed. 66 The accused/appellant is entitled for a free copy of this judgment. The entire records along with a copy of this judgment be sent to the Sessions Judge’s Court. Sd/- JUDGE Sd/- JUDGE YAN/SH