1

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH
R
DATED THIS THE 21ST 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 OF 2020 (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)

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THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,

PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE ORDER
OF CONVICTION AND SENTENCE DTD:21/11/2019 AND
25/11/2019 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 SECTION 302 OF THE IPC AND
SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE THE
OFFENCE PUNISHABLE UNDER SECTION 302 AND TO PAY FINE
IN A SUM OF `75,000/- AND SET HIM AT LIBERTY.

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND

RESERVED ON 24.01.2023, 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 PW 26 and 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 PW

26 Police Inspector of Ashoknagar PS took up the investigation

and finally the PW 27 completed 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 SCC 581
2
(2020) 7 SCC 1
 11

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 SCC 213
 12

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.

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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 26cmX 2cmX 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 X 1cm 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 X 0.2cm 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 X 1cm 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 X 1.5cm 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 X 0.5cm 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 X 0.5cm 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 X 1cm 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.

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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.

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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 SCC 473
5
(2014) 10 SCC 473
6
(2018) 2 SCC 801
7
(1875) LR 1 Ch D 426
 42

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 SCC 581
 43

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 MO 1 CDs 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 SCC 710
10
(2013) 2 SCC 81
 61

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 SCC 225
 62

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 PW 8 has 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