IMPORTANT POINT
Dying declaration – There is no specific or specified statutory form for recording of statement and what evidential value or weight has to be attached to such statement necessarily depends on facts and circumstances of each particular case.

JUDGMENT

B.A. Patil, J.—This appeal is directed against the Judgment of conviction and order of sentence passed by the Court of Fast Track, Jamakhandi in Sessions Case No.77 of 2010 dated 28.02.2011.

2. I have heard the learned counsel appearing for the appellant-accused and the learned Additional S.P.P. appearing for the respondent-State.

3. The genesis of the case of the prosecution in brief is that, about 15 to 16 years ago deceased got married with the accused. They were residing along with their children at Rabakavi. Subsequently, the accused addicted to bad vices and he used to drink arrack and assault his wife and thereby he used to give physical and mental torture. On 13.11.2009, the deceased had been to mason work and came back in the afternoon. Accused also came to the house by consuming the arrack and abused his wife in filthy language and also stated that she is having an illicit relationship with the person where she has gone to mason work and assaulted with hands. When he went out of the house, the deceased because of the physical and mental torture, poured the kerosene on her body and lit fire. By hearing the said cry of the deceased, accused rushed back along with neighbours, they doused the fire and shifted her to Banahatti Government Hospital for treatment. From there, she has been shifted to the District Hospital, Bijapur. When she was in the Banahatti Hospital, the statement of the injured was recorded as per Ex.P.7 and subsequently she was shifted to the District Hospital, Bijapur and there she succumbed to the burn injuries on 21.11.2009 at about 2.20 p.m. Thereafter, on the basis of the complaintEx.P.7, a case has been registered in Crime No.146 of 2009. After investigating the charge sheet was filed. The learned J.M.F.C. Banahatti took the cognizance and committed the case to the Sessions Court. Sessions Court took the cognizance and transferred the case to the Fast Track Court, Jamakhandi. The learned Fast Track Judge after securing the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for the accused, charge was prepared and read over and explained to the accused, accused pleaded not guilty and he claimed to be tried and as such the trial was fixed.

4. In order to prove the case of the prosecution, prosecution got examined 12 witnesses and got marked 09 documents and 02 material objects. Thereafter, the statement of accused under Section 313 of the Code of Criminal Procedure was recorded by putting the incriminating materials as against him, accused has not led any defence evidence and got marked any document. After hearing the learned counsel for the accused and the learned Public Prosecutor, the trial Court came to the conclusion that the material produced is sufficient to bring home the guilt of the accused and accordingly, accused was convicted. Challenging the legality and correctness of the Judgment of conviction and order of sentence appellant-accused is before this Court.

5. The main grounds urged by the learned counsel for the appellant are that the Judgment of conviction and order of sentence are contrary to law, evidence and material placed on record, the same are liable to be set aside. It is his submission that the learned trial Court has failed to appreciate the fact that the deceased has suffered with more than 80 to 85% of burn injuries and she was not capable of giving any statement. Ex.P.7 does not contain the certification of the doctor with regard to the fitness to give the statement. The statement which has been recorded by P.W.9 is not acceptable when the victim has suffered with the burn injuries. Under such circumstances, one can infer that she was not in a position to make any kind of statement much less the dying declaration. It is his further submission that though she died in the hospital on 21.11.2009, and the alleged incident has taken place on 13.11.2009, there was sufficient opportunity to record further statement or furthe