ANJANAPPAversusSTATE OF KARNATAKA

                  (2013] 14 S.C.R. 803


                      ANJANAPPA                              A
                            v.
                 STATE OF KARNATAKA
           (Criminal Appeal No. 1223 of 2008)
                  NOVEMBER 12, 2013
                                                             B
           [RANJANA PRAKASH DESAI AND
               MADAN B. LOKUR, JJ.]

     Penal Code, 1860 - ss.498A, 302 and 304 Part fl -
Married woman died in hospital due to burn injuries - C
Deceased gave dying declaration implicating husband-
appellant to police official, PW5, which was endorsed by the
attending doctor, PW4 - Appellant charge-sheeted - But
acquitted by trial court- Conviction of appellant by High Court
u/s. 304-11 /PC - Justification - Held: Evidence of PW-4 D
establishes to the hilt that deceased was in a fit mental
condition to make statement in which she implicated the
appellant - PW4 stated that he made endorsement on the
deceased's statement recorded by PW-5 - PW-5
corroborated PW-4 - Both these witnesses were truthful and E
the trial court erred in rejecting their evidence - There was
motive too - Appellant wanted the property standing in the
name of the deceased to be transferred to his name, which
the deceased was not prepared to do - Besides, the conduct
of appellant speaks volumes - He was absconding and could F
be arrested only much later - Moreover, in his statement
recorded u/s.313 CrPC he did not explain how the deceased
received burn injuries - His silence on this aspect gives rise
to an adverse inference against him - It forms a link in the
chain qf circumstances which point to his guilt - When there G
is overwhelming evidence on record to establish that
kerosene was poured on deceased and she was set on fire, it
is abswrd to argue that the prosecution case should be
disbelieved because it is not mentioned ,in certain documents
                           803                               H
    804      SUPREME COURT REPORTS                 [2013) 14 S.C.R.


A that kerosene smell was emanating from her body - Further,
  there was no delay in recording the FIR - Similarly, there was
  no unexplained delay in forwarding FIR to the Magistrate -
  High Court perfectly justified in interfering with the trial court's
  order - Acquittal of appellant was wrongly recorded - Dowry
B Prohibition Act, 1961 - ss. 3 and 6.

       Evidence Act, 1872 - s. 32 - Dying declaration -
  Appreciation of- Certification by doctor- If necessary- Held:
  Certification by the doctor about the fitness of the declarant's
  mind is a rule of caution - Once the doctor who examined the
C deceased, himself states that the deceased was in a position
  to make a statement and that she was conscious, absence
  of his endorsement on the statement to that effect is of no
  consequence.

D       Evidence - Witness - Witness protection - Held: The
    reasons why witnesses so frequently turn hostile need to be
    ascertained - There is no witness protection plan in place -
    Unless the witnesses are protected the rise in unmerited
    acquittals cannot be checked.
E
          Appeal - Appeal against acquittal - Held: If the view taken
    by the trial court is a reasonably possible view, it is not to be
    disturbed - If two views are possible and if the view taken by
    the trial court is a reasonably possible view, then the appellate
    court should not disturb it just because it feels that another
F   view of the matter is possible - However, an order of acquittal
    will have to be disturbed if it is perverse - On facts, the High
    Court was justified in setting aside the order of acquittal as it
    was perverse.

G     The prosecution case was that the appellant poured
  kerosene on his wife and set her on her fire thereby
  causing her burn injuries which subsequently led to her
  death at the hospital. The deceased gave dying
  declaration implicating the appellant to a police official,
H PWS, which was endorsed by the attending doctor, PW4.
      ANJANAPPA v. STATE OF KARNATAKA                     805


The appellant was charged for offences under Sections             A
3 and 6 of the Dowry Prohibition Act, 1961 and under
Sections 498A and 302 of the IPC. Apart from the police
witnesses and the doctor, the prosecution examined PW-
2 and PW-3, mother and father of the deceased. The
parents of the deceased however turned hostile in the             B
court.

    The trial court acquitted the appellant inter a/ia
holding that the dying declaration could not be relied
upon because the doctor had not made any
endorsement as to whether the deceased was in a fit               C
condition to make a statement. The trial court held that
the deceased was given sedatives, therefore, in all
probability she was not in a fit condition to make a dying
declaration; and it is doubtful whether the doctor was
present when the dying declaration was being recorded.            D
The fact that the parents of the deceased did not support
the prosecution case weighed with the trial court. The
State carried an appeal to the High Court which set aside
the order of acquittal, and convicted the appellant under
Section 304 Part-II of the IPC and sentenced him to               E
undergo R! for six years. Hence the present appeal.

    Dismissing the ~ppe~I, the Court

     HELD:1. It is well settled that an order of acquittal is
                                                                  F
not to be set aside lightly. If the view taken by the trial
court is a reasonably possible view, it is not to be
disturbed. If two views are possible and if the view taken
by the trial court is a reasonably possible view, then the
appellate court should not disturb it just because it feels
that another view of the matter is possible. However, an          G
order of acquittal will have to be disturbed if it is perverse.
In the instant case, the High Court was justified in setting
aside the order of acquittal as it was perver-.. e. [Para 9]
[815-8-C]
                                                                  H
    806     SUPREME COURT REPORTS               [2013) 14 S.C.R.

A        2. What weighed with the trial court is the fact that
    the parents of the deceased turned hostile. They came
    out with a story which even the appellant did not have in
    mind. He merely denied the prosecution story. The
    parents stated that the deceased was heating water on
B   stove. She caught fire accidentally and sustained burn
    injuries. If this was true, the appellant would have stated
    so in his statement recorded under Section 313 of CrPC.
    The parents were either won over by the appellant or
    pressurized into supporting the appellant. Their evidence
c   is a tissue of lies. In any case, even if it is obliterated and
    kept out of consideration, there is sufficient other
    evidence on record to establish the appellant's guilt. [Para
    10] [815-0-F]
         3.1. Evidence of PW-4 inspires confidence. There is
D   no reason why he should make-up a story. There is
    nothing on record to show that he harboured any grudge
    against the appellant. He is an independent witness who
    has given his evidence in a forthright manner. His
    evidence establishes to the hilt that deceased was in a
E   fit mental condition to make a statement and she
    implicated her husband. He stated that he made an
    end6rsement on the deceased's statement recorded by
    PW.-5. The High Court noted that PW-4 made
    endorsement on Exhibit-P19 that deceased was in a fit
    condition to make a statement. The High Court also
F
    noted that in Exhibit-17, which is the case sheet of
    deceased, it is stated that she was conscious. But,
    assuming he has not made any endorsement on
    deceased's dying declaration that she was ih a fit state
    of mind to make a statement that does not affect the
G   credibility of the prosecution story. He stated on oath in
    the court that deceased was in a position to give
    statement and, therefore, he permitted PW-5 to record her
    statement. An independent professional like PW-4 must
    be trusted when he makes such a categorical statement
H   with a sense of responsibility. Moreover certification by
      ANJANAPPA v. STATE OF KARNATAKA                     807

the doctor about the fitness of the declarant's mind is a A
rule of caution. Once the doctor who examined the
deceased, himself states that the deceased was in a
position to make a statement and that she was
conscious, absence of his endorsement on the statement
to that effect is of no consequence. Besides, PW-4 stated s
that deceased had received 34% burns. She died about
five days after the incident. Therefore, it is not possible
to hold that she could not have made any dying .
declaration. [Para 13) [817-B-H; 818-A-B)

     3.2. PW-5 has corroborated PW-4. The evidence of             C
PW-4 is fully corroborated by this witness. Both these
witnesses are truthful and the trial court erred in rejecting
their evidence. [Para 14] [818-C-F]

    Laxman v. State of Maharashtra AIR 2002 SC 2973:              D
2002 Suppl. SCR 697 - referred to.

     4.1. PW-2 and PW-3 have turned hostile. It is apparent
that they have tried to help the appellant. In that effort they
have come out with the accidental death theory which
                                                                  E
was not even urged by the appellant. 'The appellant could
have very easily come out with it in his statement
recorded under Section 313 of the Code. PW-2 and PW-
are, therefore, completely exposed. It is sad that even
parents did not stand by their daughter. It is not
understandable how a woman, particularly a mother,                F
turned her back on the daughter. Possibly these
witnesses were bought over by the appellant. Such
conduct displays greed and lack of compassion. If they
were threatened by the appellant and were forced to
depose in his favour it is a sad reflection on our system         G
which leaves witnesses unprotected. The reasons why
witnesses so frequently turn hostile need to be
ascertained. There is no witness protection plan in place.
Unless the witnesses are protected the rise in unmerited
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    808     SUPREME COURT REPORTS             [2013] 14 S.C.R.


A acquittals cannot be checked. It is unfortunate that this
  important issue has not received necessary attention.
  [Para 15] [818-G-H; 819-A-B; 820-E-F]

      4.2. In any case, the trial court should have seen
  through the insincerity and dishonesty of PW-2 and PW-
8
  3 and having regard to the independent evidence of PW-
  4, which is corroborated by the evidence of PW-5 the trial
  court should have held that the deceased was in a fit
  mental condition to make a dying declaration and,
  therefore, her dying declaration can be relied upon. [Para
C 16] [820-F-G]

        Zahira Habibullah Sheikh (5) v. State of Gujarat (2006)
    3 SCC 37 4: 2006 (2) SCR 1081 - referred to.

0      5. It is well settled that a conviction can be bctsed on
  a dying declaration recorded properly when the declarant -
  is in a fit mental condition to make it. It should be truthful
  and voluntary. All these tests are satisfied in the present
  case. Inconsistency in. dying declaration is not a ground
E of attack in this case. In any case, there is consistency
  between the statement of deceased recorded by PW-4
  which is at Exhibit-P16(b), the history recorded in
  deceased's case sheet, which is Exhibit-P17 and
  statement of deceased recorded by PW-5, which is at
  Exhibit-P19. The doctor's evidence which is supported by
F the evidence of PW-5 and other attendant circumstances
  establishes that the dying declaration of deceased is
  truthful and it was voluntarily made by her when she was
  in a fit state of mind. [Para 17] [820-H; 821-A, 0-E, G-H]

G      Nal/apati Sivaiah v. Sub-Div. Officer, Guntur A.P. 2007
  (10) SCR 347: 2007 (15) SCC 465; Mehiboobasab Abbasabi
  Nadaf v. State of Karnataka 2007 (8) SCR 713~ 2007 (13)
  SCC 112; Kake Singh @ Surendra Singh v. State of M.P.
  (1981) Suppl. sec 25 and Rasheed Beg and ors. v. State
H of M.P. (1974) 4 SCC 264 - held inapplicable.
       ANJANAPPA v. STATE OF KARNATAKA                   809


    6. There is also no substance in the submission that         A
there is no motive. The appellant wanted the property
standing in the name of the deceased to be transferred
to his name, which the deceased was not prepared to do.
There is no reason to disbelieve PW-5 on this aspect.
[Para 18] [822-A-B]                                              B

       7. Besides, the conduct of the appellant speaks
  volumes. He was absconding and could be arrested only
  on 19/02/1992. Moreover, in his statement recorded under
  Section 313 of the Code he has not explained how the           C
  deceased received burn injuries. He did not set up the
  defence of alibi. It was obligatory on him to explain how
  the deceased received burn injuries in his house. His
. silence on this aspect gives rise to an adverse inference
  against him. It forms a link in the chain of circumstances
  which point to his guilt. [Para 19] [822-B-C]                  D

       8. Minor discrepancy in the time of recording of dying
 declaration creates no dent in the prosecution story
 which is, otherwise, substantiated by reliable evidence.
 Certain documents like inquest panchanama and post-             E
 mortem notes do not state that kerosene smell was
 emanating from the body qf deceased. When there is
 overwhelming evidence on record to establish that
 kerosene was poured on deceased and she was set on
 fire, it is absurd to argue that the prosecution case should    F
 be disbelieved because it is not mentioned in certain
 documents that kerosene smell was emanating from her
 body. [Para 20] [822-D-F]

      9. The submission that there is delay in lodging the
 FIR must be rejected. PW-5 recorded the dying                   G
 declaration at about 10.30 p.m. on 17/10/1991. He, then,
 presented Memo Exhibit-P18 to the Station House Officer.
 Thereafter, PW-6 ASI recorded the FIR at about 11.30 p.m.
 In the facts of this case, there is no delay in recording the
 FIR. Similarly, there is no unexplained delay in forwarding     H
    810      SUPREME COURT REPORTS              [2013] 14 S.C.R.


A FIR to the Magistrate. FIR was recorded at about 11.30
  p.m. on 17/10/1991. PW-6 ASI has explained that since the
  constable was going to the Court on the next day, he
  gave the FIR to him on the next day i.e. 18/10/1991 and it
  reached the Magistrate at about 4.30 p.m. on 18/10/1991.
B In the facts of this case this time lag can hardly be
  described as delay and, in any case, acceptable
  explanation is offered by PW-6 ASI. If the delay is
  reasonably explained no adverse inference can be drawn
  against the prosecution. (Paras 21, 22) [822-F-H; 823-A-
C B, DJ
         Meharaj Singh v. State of UP. (1994) 5 SCC 188 and
    Bijoy Singh and Anr. v. State of Bihar 2002 (3) SCR 179 -
    referred to.

D      10. In the ultimate analysis, the High Court was
  perfectly justified in interfering with the trial court's order.
  The acquittal of the appellant was wrongly recorded. The
  High Court, however, adopted a kindly approach and
  convicted the appellant under Section 304 Part-II of the
E IPC and sentenced him to six years RI because the
  incident is of the year 1991. The High Court was merciful.
  In the absence of State appeal, at this distance of time,
  the appeal is dismissed. [Para 23) [823-E-F; 824-A]

F        State of UP. v. Virendra Prasad (2004) 9 SCC 37: 2004
    (2) SCR 39 - held inapplicable.
                         Case Law Reference:
          2001 (15) sec 465       held inapplicable    Para 6
G         2001 (13) sec 112       held inapplicable    Para 6
          (1974) 4 sec 264        held inapplicable    Para 6
          (1981) Suppl. sec 25 held inapplicable       Para 6

H
       ANJANAPPA v. STATE OF KARNATAKA                      811


    2002 (3) SCR 179           referred to           Para 7        A
    (1994) s sec 188           referred to           Para 7
    2004 (2) SCR 39            held inapplicable     Para 7
                                                              I

    2002 Suppl. SCR 697 referred to                  Para 13
                                                                   8
    2006 (2) SCR 1081          referred to           Para 15
    CRIMINAL APPELLATE JURISDICTION : Crlminal Appeal
No. 1223 of 2008.

    From the Judgment & Order dated 11.07.2007 of the High         C
Court of Karnataka, Bangalore in Criminal Appeal No. 960 of
2000.

   Shekhar G. Devasa, A.K. Joseph, Vishnu (for Dinesh
Kumar Garg) for the Appellant.                                     D

    Anitha Shenoy for the Resondent.

    The Judgment of the Court was delivered by

     (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal,              E
once again like many other appeals, presents before us the
plight of a woman who is burnt to death by her husband. Sadly,
her parents turned hostile in the court. This raises the serious
question of witness protection which is not addressed as yet.
                                                               F
    2. Deceased Gowramma was married to the appellant on
17/04/1987. It is the prosecution case that at the time of
marriage the appellant demanded dowry and he received
Rs.5,000/-, a motor bike, one gold chain and clothes from
Hanumantharayappa, the father of Gowramma. After marriage
the appellant was harassing the deceased for bringing more G
dowry from her parents. The harassment was both physical and
mental. The appellant had caused burn injuries on the thighs .
of Gowramma to compel her to bring more dowry. He had kept
one Puttamma as his mistress, which caused mental agony to
Gowramma. On 17/10/1991 there was a quarrel between the H
    812      SUPREME COURT REPORTS                  [2013) 14 S.C.R.


A appellant and Gowramma on the question of transferring
  Gowramma's property in the appellant's name. At about 6.00
  p.m. the appellant poured kerosene on her and set her on fire.
  Gowramma was taken to the Victoria hospital. At about 7.00
  p.m. PW-4 Dr. Parthasarathy admitted her for treatment of burn
B injuries. When PW-4 Dr. Parthasarathy asked her about the
  burn injuries she told him that on the same day at about 6.30
  p.m. the appellant had poured kerosene on her and set her on
  fire. He recorded the said occurrence in the Accident Register.
  Gowramma's statement recorded by him is at Exhibit-P16(b).
c He reported the matter to the police. PW-5 HC Ramachari of
  Vijayanagara Police Station came to the hospital on 17/10/
  1991 at about 10.30 p.m. and sought permission to record the
  statement of Gowramma from PW-4 Dr. Parthasarathy. As
  Gowramma was in a position to give statement PW-4 Dr.
D Parthasarathy permitted PW-5 HC Ramachari to obtain her
  statement. Thereafter, PW-5 HC Ramachari recorded her
  statement in Burns Ward, which is Exhibit P-19. She stated that
  her husband had poured kerosene on her and set her on fire.
  PW-4 Dr. Parthasarathy put an endorsement on the said
E statement and signed it. After recording the statement of
  Gowramma, PW-5 HC .Ramachari presented the memo
  Exhibit-P18 and statement Exhibit-P19 before the Station
  House Officer. PW-6 S. Nanjundappa, who was at the relevant
  time, working as ASI, Vijayanagara Police Station, recorded
  the FIR at about 11.30 p.m. on 17/10/1991 on the basis of
F Gowramma's statement Exhibit-P19. The appellant came to be
  arrested and charged for offences under Sections 3 and 6 of
  the Dowry Prohibition Act, 1961 and under Sections 498A and
  302 of the IPC.

G        3. The prosecution examined eight witnesses. Apart from
    the police witnesses and the doctor, the prosecution examined
    PW-2 Chikkaeeramma, mother of Gowramma and PW-3
    Hanumantharayappa, father of Gowramma.

       4. The trial court acquitted the appellant. The trial court inter
H alia held that the dying declaration could not be relied upon
         ANJANAPPA v. STATE OF KARNATAKA                      813
            [RANJANA PRAKASH DESAI, J.]
 because the doctor has not made any endorsement as to                A
 whether the deceased was in a fit condition to make a
 statement. The trial court held that the deceased was given
 sedatives, therefore, in all probability she was not in a fit
 condition to make a dying declaration. In the opinion of the trial
 court it is doubtful whether the doctor was present when the         B
 dying declaration was being recorded. The fact that the parents
 of the deceased did not support the prosecution case wi:iighed
 with the trial court.

      5. The State of Karnataka carried an appeal to the High         C
 Court. The High Court by the impugned order set aside the
 order of acquittal, convicted the appellant under Section 304
 Part-II of the IPC and sentenced him to undergo RI for six years
 and to pay a fine of Rs.1,000/-, in default, to undergo further
 sentence ofthree months. The said judgment and order is
 challenged in this appeal.                                           D

        6. We have heard learned counsel for the parties. We
   have read written submissions filed on behalf of the appellant.
   Mr.Shekhar Devasa, learned counsel for the appellant
-- submitted that the prosecution case that the appellan_t poured     E
   kerosene on the deceased and set her on fire is not supported
   by the parents of deceased Gowramma. They stated that the
   death of Gowramma was accidental. This affects the veracity
   of the prosecution case. Counsel submitted that the dying
   declaration of deceased Gowramma cannot be relied upon             F
   because PW-4 Dr. Parthasarathy has stated that he had given
   sedatives to the deceased. The deceased, therefore, could not
   have been in a fit condition to make a dying declaration.
   Besides, the doctor has not made any endorsement to that
   effect on the dying declaration. The doctor has not stated that    G
   kerosene smell was emanating from the body of the deceased.
   This is also not mentioned in Exhibits P16, 17 and 19. There
   is a serious doubt about the doctor's presence when the dying
   declaration was being recorded. Counsel submitted that in the
   circumstances the dying declaration must be rejected. In support
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    814        SUPREME COURT REPORTS            [2013] 14 S.C.R.

A   of this submission he relied on Na/lapati Sivaiah v. Sub-Div.
    Officer, Guntur A.P. 1 , Mehiboobasab Abbasabi Nadaf v. State
    of Kamataka 2 , Rasheed Beg and ors. v. State of M.P. 3 and
    Kake Singh @ Surendra Singh v. State of MP. 4 .

B      7. Counsel submitted that there is a delay in recording FIR.
  Counsel further submitted that the FIR was recorded at 10.30
  p.m. on 17/10/1991. But, it reached the Magistrate at 4.30 p.m.
  on 18/10/1991. This delay casts a shadow of doubt on the FIR.
  In this connection he relied on Bijoy Singh and Anr. v. State
  of Bihar6 and Meharaj Singh v. State of U.P. 6 . Counsel further
C submitted that motive is not proved. There is also discrepancy
  in the timing of the dying declaration. Counsel submitted that
  the conviction of the appellant under Section 304 Part-II of the
  IPC is not maintainable as his case does not come within the
  purview of Section 300 of the IPC. It, therefore, cannot fall in
D the exceptions thereto. Besides, no reasons are assigned for
  convicting the appellant under Section 304 Part-II of the IPC
  which renders the order of conviction unsustainable. In this
  connection he relied on State of UP. v. Virendra Prasad7.
  Counsel submitted that in the circumstances the impugned
E judgment and order deserves to be set aside.

      8. Ms. Anita Shenoy, learned counsel for the State of
  Karnataka, on the other hand, submitted that parents of the
  deceased were won over by the appellant. However, the
F prosecution story is established by the independent evidence
  of PW-4 Dr. Parthasarathy and PW-5 HC Ramachari, who
  have deposed about the dying declaration of the deceased. In

    1.    c2007) 15 sec 465.
G   2.    c2007)13 sec 112.
    3.    (1974) 4 sec 264.
    4.    (1981) Suppl. sec 25.
    5.    c2002) 9 sec 147.
    6.   (1994) 5 sec 188.
H   7.   (2004) 9 sec 37.
       ANJANAPPA v. STATE OF KARNATAKA                            815
          [RANJANA PRAKASH DESAI, J.]
her dying declaration the deceased has implicated the                     A
appellant. Counsel submitted that the dying declaration inspires
confidence and, therefore, the appeal deserves to be
dismissed.

      9. It is well settled that an order of acquittal is not to be
                                                                          B
set aside lightly. If the view taken by the trial court is a reasonably
possible view, it is not to be disturbed. If two views are possible
and if the view taken by the trial court is a reasonably possible
view, then the appellate court should not disturb it just because
it feels that another view of the matter is possible. However,
an order of acquittal will have to be disturbed if it is perverse.
                                                                          c
We have examined the trial court's order of acquittal in light of
above principles. We are of the considered opinion that the
High Court was justified in setting it aside as it is perverse.

      10. What has weighed with the trial court is the fact that          D
t:ie parents have turned hostile. They came out with a story
which even the appellant did not have in mind. He merely
denied the prosecution story. The parents stated that the
deceased was heating water on stove. She caught fire
accidentally and sustained burn injuries. If this was true, the           E
appellant would have stated so in his statement recorded under
Section 313 of the Code of Criminal Procedure ("the code").
We have perused the evidence of the parents. We have no
doubt that they were either won over by the appellant or
pressurized into supporting the appellant. Their evidence is a            F
tissue of lies. In any case, even if it is obliterated and kept out
of consideration, there is sufficient other evidence on record
to establish the appellant's guilt.

     11. PW-4 Dr. Parthasarathy is an independent witness. He
stated that on 17/10/1991 at 7.00 p.m. he admitted deceased               G
Gowramma in the Victoria Hospital. Her husband and mother
had accompanied her. On a query made by him, she told him
that on the same day at 6.30 p.m. the appellant had poured
kerosene on her and set her on fire. He, then, recorded the
occurrence in the Accident Register. The relevant pages of the            H
    816     SUPREME COURT REPORTS              [2013) 14 S.C.R.


A Accident Register are on record at Exhibit-P16(a). The
  statement of the deceased is at Exhibit-P16(b) and the
  signature of the witnesses is at Exhibit-P(c). According to PW-
  4 Dr. Parthasarathy, Gowramma had received 34% burn
  injuries. Exhibit-P17 is the case sheet of Gowramma. He stated
B that Gowramma died on 21/10/1991 at 7.30 p.m. He reported
  the case to the police vide Memo dated 17/10/1991, which is
  at Exhibit-P18. PW-4 Dr. Parthasarathy further stated that at
  11.00 p.m. on the same day PW-5 HC Ramachari of
  Vijayanagara Police Station came to the hospital and sought
c permission to record Gowramma's statement. As Gowramma
  was in a position to give statement he permitted PW-5 HC
  Ramachari to record her statement. Thereafter, PW-5 HC
  Ramachari recorded Gowramma's statement in Burns Ward. ·
  PW-4 Dr. Parthasarathy reiterated that even at that time
  Gowramma repeated the story that her husband poured
D kerosene on her and set her on fire. He stated that 'he made
  endorsement on that statement. The said statement is at
  Exhibit-19, the endorsement is at Exhibit-P19(a) and his
  signature is at Exhibit-P19(b).

E      12. PW-4 Dr. Parthasarathy's cross-examination has not
  yielded any material which could be said to be favourable to
  the defence. In the cross-examination he stated that on 17/10/
  1991 he was on duty from 2.00 p.m. to 8.00 p.m. After he
  attended the last patient at 8.00 p.m. another doctor relieved
F him. He added that after 8.00 p.m. he was working in the ward.
  He stated that till morning of 18/10/1991 he was on duty in the
  Burns Ward. He stated that Gowramma was admitted in
  Casualty Ward. He advised that she should be taken to Burns
  Ward but before sending her to Burns Ward he recorded her
G statement. He further stated that he started Gowramma's
  treatment in Burns Ward. He gave her sedatives but he has
  categorically denied the suggestion that when he recorded the
  statement of Gowramma she was not in a position to give
  statement. He denied the suggestion that she was not
H
         ANJANAPPA v. STATE OF KARNATAKA                     817
            [RANJANA PRAKASH DESAI, J.]
 conscious. This shows that when Gowramma gave statement           A
 she was not under the effect of sedatives.

       13. Evidence of. PW-4 Dr. Parthasarathy inspires
  confidence. There is no reason why he should make-up a story.
  There is nothing on record to show that he harboured any B
  grudge against the a~pellant. He is an independent witness who
  has given his evidence in a forthright manner. His evidence
  establishes to the hilt that Gowramma was in a fit mental
  condition to make a statement and she implicated her husband.
  He stated that he made an endorsement on the Gowrarrima's
  statement recorded by PW-5 HC Ramachari. The High Court C
  has noted that PW-4 Dr. Parthasarathy has made endorsement
  on Exhibit-P19 that Gowramma was in a fit condition to make
  a statement. The High Court has also noted that in Exhibit-17,
  which is the case sheet of Gowramma, it is stated that shewas
  conscious. But, assuming he has not made any endorsement D
  on Gowramma's dying declaration that she was in a fit state of
  mind to make a statement that does not affect the credibility of
  the prosecution story. He stated on oath in the court that
- Gowramma was in a position to give statement and, therefore,
  he permitted PW-5 HC Ramachari to record her statement. An E
  independent professional like PW-4 Dr. Parthasarathy must be
  trusted when he makes such a categorical statement with a
  sense of responsibility. Moreover, in Laxman v. State of
  Maharashtra 6 this Court has made it clear that certification by
  the doctor about the fitness of the declarant's mind is a rule of F
  caution. But, if the doctor certifies that the patient was
  conscious, but does not certify that he was in a fit state of mind,
  the dying declaration is not liable to be rejected if the Magistrate
  who records the statement deposes about the fit state of mind
  of the declarant. That would be sufficient to give the dying G
  declaration legal acceptability. On the same analogy once the
   doctor who examined the deceased, himself states that the
  deceased was in a position to make a statement and that she
   was conscious, absence of his endorsement on the statement
 8.   AIR 2002 SC 2973.                                             H
    818     SUPREME COURT REPORTS                 [2013) 14 S.C.R.


A to that effect is of no consequence. Besides, PW-4 Dr.
  Parthasarathy stated that Gowramma had received 34% burns.
  She died about five days after the incident. Therefore, it is not
  possible to hold that she could not have made any dying
  declaration. It is argued that PW-4 Dr. Parthasarathy's
B presence in the hospital is doubtful. It is true that PW-4 Dr.
  Parthasarathy stated that he was relieved from Emergency
  Ward at 8.00 p.m. But, he has Clarified that he was in Burns
  Ward till morning of 18/10/1991. There is no reason to doubt
  his statement.
c      14. PW-5 HC Ramachari has corroborated PW-4 Dr.
  Parthasarathy. He stated that on 17/10/1991 when he received
  the information he went to the Victoria Hospital. He requested
  PW-4 Dr. Parthasarathy to allow him to record the statement
  of Gowramma. PW-4 Dr. Parthasarathy told him that he could
D record her statement and accompanied him to Burns Ward. He
  found that Gowramma was in a position to talk. He, then,
  recorded her statement which is at Exhibit-P19. He further
  stated that Gowramma told him that at 6.00 p.m. the appellcint
  demanded that house property should be transferred to his
E name and then he poured kerosene on her and set her on fire.
  He, then, presented Memo Exhibit-P18 to the Station House
  Officer. Thus, evidence of PW-4 Dr. Parthasarathy is fully
  corroborated by this witness. We have no hesitation to record
  that both these witnesses are truthful and the trial court erred
F in rejecting their evidence.

        15. As we have already noted, PW-2 Chikkaeeramma and
  PW-3 Hanumantharayappa have turned hostile. It is apparent
  that they have tried to help the appellant. In that effort they have
G come out with the accidental death theory which was not even
  urged by the appellant. The appellant could have very easily
  come out with it in his statement recorded under Section 313
  of the Code. PW-2 Chikkaeeramma and PW-3
  Hanumantharayappa are, therefore, completely exposed. It is
  sad that even parents did not stand by their daughter. We do
H not understand how a woman, particularly a mother, turned her
        ANJANAPPA v. STATE OF KARNATAKA                     819
           [RANJANA PRAKASH DESAI, J.]
back on the daughter. Possibly these witnesses were bought          A
over by the appellant. Such conduct displays greed and lack
of compassion. If they were· threatened by the appellant and
were forced to depose in his favour it is a sad reflection on our
system which leaves witnesses unprotected. The reasons why
witnesses so frequentl~; turn hostile need to be ascertained.       B
There is no witness protection plan in place. In Zahira
Habibullah Sheikh (5) v. State of Gujarat9 this Court spoke
about importance of witnesses and their protection. The relevant
paragraphs read as under:

     " "Witnesses" as Bentham said: are the eyes and ears of C
     justice. Hence, the importance and primacy of the quality
     of trial process. If the witness himself is incapacitated .from
     acting as eyes and ears of justice, the trial gets putrefied
     and paralysed, and it no longer can constitute a fair trial.
     The incapacitation may be due to several factors, like the D
     witness being not in a position for reasons beyond control
     to speak the truth in the court or due to negligence or
      ignorance or some corrupt collusion. Time has become
      ripe to act on account of numerous experiences faced by
     the courts on account of frequent turning of witnesses as E
      hostile, either due to threats, coercion, lures and monetary
      considerations at the instance of those in power, their
      henchmen and hirelings, political clouts and patronage and
      innumerable other corrupt practices ingeniously adopted
      to smotlier and stifle the truth and realities coming out to F
      surface rendering truth and justice, to become ultimate
      casualties. Broader public and societal interests require
      that the victims of the crime who are not ordinarily parties
      to prosecution and the interests of the State represented
      by their prosecuting agencies do not suffer even in slow G
      process but irreversibly and irretrievably, which if allowed
      would undermine and destroy public confidence in the
       administration of justice, which may ultimately pave way for
       anarchy, oppression and injustice resulting in complete
9.   (2006) 3 sec 374.                                              H
    820       SUPREME COURT REPORTS                  [2013] 14 S.C.R.


A         breakdown and collapse of the edifice of rule of law,
          enshrined and jealously guarded and protected by the
          Constitution. There comes the need for protecting the
          witness. Time has come when serious and undiluted
          thoughts are to be bestowed for protecting witnesses so
B         that the ultimate truth is presented before the court and
          justice triumphs and that the trial is not reduced to a
          mockery.



c
          The State has a definite role to play in protecting the
          witnesses, to start with at least in sensitive cases involving
          those in power, who have political patronage and could
D         wield muscle and money power, to avert trial getting
          tainted and derailed and truth becoming a casualty. As a
          protector of its citizens it has to ensure that during a trial
          in the court the witness' could safely depose the truth
          without any fear of being haunted by those against whom
          he had deposed .......... "
E
          We share the above sentiments. Unless the witnesses are
    protected the rise in unmerited acquittals cannot be checked.
    It is unfortunate that this important issue has not received
    necessary attention.
F
       16. In any case, the trial court should have seen through
  the insincerity and dishonesty of PW-2 Chikkaeeramma and
  PW-3 Hanumantharayappa and having regard to the
  independent evidence of PW-4 Dr. Parthasarathy, which is
G corroborated by the evidence of PW-5 HC Ramachari the trial
  court should have held that the deceased was in a fit mental
  condition to make a dying declaration and, therefore, her dying
  declaration can be relied upon.

       17. It is well settled that a conviction can be based on a
H dying declaration recorded properly when the declarant is in a
        ANJANAPPA v. STATE OF KARNATAKA                         821
           [RANJANA PRAKASH DESAI, J.]
  fit mental condition to make it. It should be truthful and voluntary. A
  All these tests are satisfied in the present case. Judgments on
  which reliance is placed by the appellant's counsel are not
  applicable to the case on hand. In Na/lapati the medical
  evidence on record and other attendant circumstances were
  altogether ignored and dying declaration was relied upon. In B
  those circumstances this Court while reiterating its view in
  Laxman rejected the dying declaration in the peculiar facts of
  the case. In Mehiboobasab the deceased wife had made four
  dying declarations in which she had taken contradictory stands.
  This Court was primarily dealing with inconsistent dying c
  declarations. While observing that a conviction can indisputably
   be based on a dying declaration if it is voluntarily and truthfully
   made this Court set aside the conviction based on the dying
   declarations on the ground of their inconsistency. Inconsistency
   in dying declaration is not a ground of attack in this case. In D
   any case, there is consistency between the statement of
   Gowramma recorded by PW-4 Dr. Parthasarathy, which is at
   Exhibit-P16(b), the history recorded in Gowramma's case
   sheet, which is Exhibit-P17 and statement of Gowramma
'
   recorded by PW-5 HC Ramachari, which is at Exhibit-P19. This E
   judgment is, therefore, not applicable to the present case.
   Rasheed Beg also turns on its own facts. There in the second
   dying declaration two additional names were added. This Court
   found it not safe to rely on the dying declarations. This judgment
   must be restricted to its own facts and has no application to
    the present case. In Kake Singh a good part of the brain of F
   the deceased was burnt. The doctor had not categorically
   stated that the deceased was conscious when he made the
   dying declaration. Hence, no reliance was placed on it. In the
    present case the doctor has categorically stated that the
    deceased was in a position to make a statement. No parallel G
    can, therefore, be drawn from Kake Singh. The doctor's
    evidence which is supported by the evidence· of PW-5 HC
    Ramachari and other attendant circumstances establishes that
   .the dying declaration of Gowramma is truthful and it was
    voluntarily made by her when she was in a fit state of mind.         H
    822      SUPREME COURT REPORTS                [2013] 14 S.C.R.

A        18. There is also no substance in the submission that there
    is no motive. The appellant wanted the property standing in the
    name of the deceased to be transferred to his name, which the
    deceased was not prepared to do. There is no reason to
    disbelieve PW-5 HC Ramachari on this aspect.
B
        19. Besides, the conduct of the appellant speaks volumes.
  He was absconding and could be arrested only on 19/02/1992.
  Moreover, in his stat~ment recorded under Section 313 of the
  Code he has not explained how the deceased received burn
C injuries. He did not set up the defence of alibi. It was obligatory
  on him to explain how the deceased received burn injuries in
  his house. His silence on this aspect gives rise to an adverse
  inference against him. It forms a link in the chain of
  circumstances which point to his guilt.

D      20. Minor discrepancy in the time of recording of dying
  declaration creates no dent in the prosecution story which is,
  otherwise, substantiated by reliable evidence. Certain
  documents like inquest panchanama and post-mortem notes
  do not state that kerosene smell was emanating from the body
E of Gowramma. When there is overwhelming evidence on record
  to establish that kerosene was poured on Gowramma and she
  was set on fire, it is absurd to argue that the prosecution case
  should be disbelieved because it is not mentioned in certain
  documents that kerosene smell was emanating from her body.
F       21. The submission that there is delay in lodging the FIR
  must be rejected. PW-5 HC Ramachari recorded the dying
  declaration at about 10.30 p.m. on 17/10/1991. He, then,
  presented Memo Exhibit-P18 to the Station House Officer.
  Thereafter, PW-6 ASI S. Nanjudappa of Vijayanagara Police
G Station recorded the FIR at about 11.30 p.m. In the facts of this
  case, we find that there is no delay in recording the FIR. Hence,
  it is not necessary to refer to Meharaj Singh which is relied
  upon on this aspect.

H         22. Similarly, we find that there is no unexplained delay in
       ANJANAPPA v. STATE OF KARNATAKA                          823
          [RANJANA PRAKASH DESAI, J.]
forwarding FIR to the Magistrate. FIR was recorded at about             A
11.30 p.m. on 17/10/1991. PW-6 ASI S Nanjudappa has
explained that since the constable was going to the Court on
the next day, he gave the FIR to him on the next day i.e. 18/10/
1991 and it reached the Magistrate at about 4.30 p.m. on 18/
10/1991. In the facts of this case this time lag can hardly be          B
described as delay and, in any case, acceptable explanation
is offered by PW-6 ASI S Nanjudappa. It is, therefore, not
 necessary to refer to Bijoy Singh where this Court was dealing
with a case where FIR was registered on 25/08/1991 at about
2.30 a.m. and copy thereof was received by the Magistrate on            c
27/08/1991. It is pertinent to note that even in that case this
Court observed that sending copy of the special report to the
 Magistrate under Section 157 of the Code is the only external
 check on the working of the police agency imposed by law
 which is to be strictly followed. But, that delay by itself does not
                                                                        0
 render the prosecution case doubtful. If the delay is reasonably
 explained no adverse inference can be drawn against the
 prosecution.

      23. In the ultimate analysis, therefore, we are of the view
that the High Court was perfectly justified in interfering with the     E
trial court's order. The acquittal of1he appellant was wrongly
recorded. The High Court, however, adopted a kindly approach
and convicted the appellant under Section 304 Part-II of the IPC
and sentenced him to six years RI because the incident is of
the year 1991. Surprisingly, the appellant has made a grievance         F
about this and stated that the appellant's case does not fall
under Section 300 of the IPC and, therefore, it cannot fall under
any of its exceptions and that the High Court has not assigned
any reasons for convicting the appellant under Section 304 Part-
11. This submission deserves to be rejected. Besides, the High          G
Court has given reasons. So, it is wrong to say that no reasons
are assigned by the High Court. Since the State has not
approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from
commenting on this argument. Judgment of this Court in State            H
    824       SUPREME COURT REPORTS               [2013] 14 S.C.R.


A of UP. v. Virendra Prasad1° is not at all applicable to this "base
  and hence, it is not necessary to discuss it. The High Court was
  merciful. In the absence of State appeal, at this distance of time,
  we are inclined to simply dismiss the appeal. The appeal is,
  therefore, dismissed. The appellant is on bail. His bail bonds
B stand cancelled. He shall surrender before the concerned court.

    Bibhuti Bhushan Bose                            Appeal dismissed.




   10.    (2004) 9 sec 37.