The State Of Karnataka vs Kishore S/O Shivaji Rao Rajolli
2021 Latest Caselaw 6228 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 16 TH DAY OF DECEMBER 2021

                          PRESENT

           THE HON'BLE MR.JUSTICE R. DEVDAS
                            AND
    THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


            CRIMINAL APPEAL No. 3573/2013

BETWEEN:

The State of Karnataka
Through Konchavaram Police Station,
Rep. by its Addl.State Public Prosecutor.
                                            ... Appellant
(By Sri.Prakash Yeli, Additional SPP)
AND:
Kishore S/o: Shivaji Rao Rajolli,
Age: 27 Years, Occ: Driver,
R/o; Jilwarsha, Tq; Chincholi,
Dist: Gulbarga.                             ......Respondent

(By Smt.Anuradha M.Desai, Advocate)

      This Criminal Appeal is filed under Section 378(1) &
(3) of Cr.P.C. by the State Public Prosecutor praying to
grant leave to appeal against the judgment and order
dated 04.01.2013 passed by the I Addl. Sessions Judge,
Gulbarga in S.C.No.279/2010 thereby acquitting         the
respondent for the offences punishable under Sections
498-A, 302, 504 & 506 of IPC and under Sections 3 & 4 of
Dowry Prohibition Act, set aside the aforesaid judgment
and order of acquittal and etc.
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      This Criminal Appeal having been heard and reserved
for   Judgment     on   03.12.2021,     coming   on    for
'Pronouncement of Judgment' this day, Rajendra
Badamikar, J., delivered the following:

                       JUDGMENT

This appeal is filed by the State challenging the

judgment of acquittal dated 04.01.2013 passed in S.C

No. 279/2010 by the I Addl. Sessions Judge,

Gulbarga, whereby the learned Sessions Judge has

acquitted the accused/respondent herein for the

offences punishable under Sections 498-A, 302, 504 &

506 of IPC and Sections 3 and 4 of Dowry Prohibition

Act.

2. The brief facts leading to the case are that,

the accused is the husband of deceased Shilpa. That

the marriage of deceased and accused-respondent

was performed one year prior to her death and during

the marriage one tola gold and amount of Rs.50,000/-

was given to accused as gift. That the accused was

working as car driver at Hyderabad and after the

marriage the deceased went to the house of her

husband situated in Jilwarsha village and she was

staying there along with her husband and her mother-

in-law. Few days after the marriage, the accused

started suspecting her fidelity and she has also

brought it to the notice of her mother. The accused

had sold the gold and spent the cash given in the

marriage to meet his bad vices. That three months

prior to the incident, the accused returned to Jilwarsha

village from Hyderabad and started staying there

itself. He used to ill-treat the deceased with a

demand to bring money from her parents house. It is

also the case of the prosecution that on one occasion

an amount of Rs.7,000/- was paid, which was also

spent by accused to meet his bad vices. It is alleged

that on 02.05.2010, afternoon the accused and

deceased were in the house and accused started

abusing the deceased in filthy language with a

demand to bring money from her parents house.

When the deceased asked the accused not to abuse

her, the accused suddenly took kerosene oil can lying

nearby and poured kerosene on her body and ignited

a match stick and set her on fire. Then the deceased

came out of the house crying and it was raining at

that time. The incident occurred between 2.00 to

2.30 p.m. and then the accused along with Kamalabai

took her to Konchavaram Hospital in an ambulance.

It is also alleged by the prosecution that on the way to

the hospital, the accused asked the deceased to give

statement before the doctor that she caught fire

accidentally while she was filling kerosene in chimney,

failing which, she will not be admitted in the hospital

for treatment. Accordingly, in the hospital, she has

given statement before the concerned doctor and

police. Later on, in the evening she was shifted to

District Hospital, Bidar and MLC was sent to District

Hospital, wherein the then Executive Magistrate

visited the spot and recorded her statement. In the

statement the accused was implicated alleging that he

set her on fire. Later on, the SHO has also visited the

hospital and recorded the statement of deceased and

registered it as complaint. On the basis of the said

complainant, the case was registered in Konchavaram

Police Station in Crime No.27/2010, for the offences

punishable under Sections 498-A, 307, 504 and 506 of

IPC and Sections 3 and 4 of Dowry Prohibition Act.

During the treatment, on 25.10.2010, the injured

Shilpa succumbed in the hospital because of the

injuries suffered by her while undergoing treatment in

the Government Hospital. Then, the Investigating

Officer has submitted requisition to incorporate the

offence punishable under Section 304-B of IPC and

subsequently after completing the investigation,

charge sheet came to be submitted for the offence

punishable under Sections 498-A, 302, 504 and 506 of

IPC and Sections 3 and 4 of Dowry Prohibition Act.

The accused was arrested on 05.05.2010 and

remanded to judicial custody.

3. After submission of the charge sheet, the

learned Magistrate has taken cognizance and he has

also furnished the copies of the prosecution papers to

the counsel appearing for accused under Section 207

of Cr.P.C. Then, he has committed the matter to the

Sessions Court by exercising his powers under Section

209 of Cr.P.C., and matter was placed before the I

Addl. District and Sessions Judge, Gulbarga. The

matter came to be registered in S.C.No.279/2010 on

the file of the I Addl. Sessions Court, Gulbarga.

4. The learned Sessions Judge, after hearing

the prosecution and the defence counsel, has framed

the charges under Sections 498-A, 302, 504 and 506

of IPC and Sections 3 and 4 of Dowry Prohibition Act.

Accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of accused, the

prosecution has examined in all 30 witnesses as

PWs.1 to 30 and also placed reliance on 16 documents

marked at Exs.P1 to 16. Further, MOs.1 to 28 were

also marked for prosecution. After completion of the

evidence of prosecution, the statement of accused

under Section 313 of Cr.P.C., is recorded to enable the

accused to explain the incriminating evidence

appearing against him in the case of the prosecution.

The case of accused was of total denial. However, he

has got examined DW.1-Dr.Shivasharanappa, who

first attended on the victim in Konchavaram

Community Health Centre and in whose presence,

DW.2 who is head constable has recorded first dying

declaration of the victim. The defence has also got

marked in all 5 documents at Exs.D1 to D5.

6. After hearing the arguments, the learned

Sessions Judge by his judgment dated 04.01.2013,

found that the prosecution has failed to bring home

the guilt of accused beyond all reasonable doubt and

as such acquitted the accused-respondent.

7. Being aggrieved by this judgment of

acquittal, the State has filed this appeal under Section

378(1) and (3) of Cr.P.C.

8. Heard the arguments advanced by the

Addl. State Public Prosecutor (for short, 'Addl. SPP')

and the defence counsel at length. We have also

perused the impugned judgment as well as the

documentary evidence placed before us in the form of

the records of trial Court.

9. Now, the following point would arise for our

consideration:-

(a) Whether the judgment of acquittal passed by the trial Court is erroneous, illegal, arbitrary and capricious so as to call for interference by this Court?

10. To prove the guilt of the accused, the

prosecution has examined in all 30 witnesses. PW.1,

Secretary of Gram Panchayat, who has issued khata

extract as per Ex.P1. PW.2, is the police constable,

who has produced Mos.1 and 2 before the FSL

Bengaluru. PWs.3 and 4 are the panch witnesses for

Ex.P2-seizure panchanama pursuant to seizure of

Mos.3 to 28 and other household articles from the

house of accused. PWs.5 and 11 are the panch

witnesses for Ex.P3-scene of offence mahazar. While

PWs.6 and 8 are the inquest mahazar witnesses.

Though PW.7, is claimed to be an eyewitness, the

evidence disclose that he is not an eyewitness. PW.9,

is an Engineer, who has drawn sketch of the scene of

offence as per Ex.P5. While, PW.10 is the medical

officer who conducted post mortem on the dead body

as per Ex.P6. PW.12 is brother PW.13 is mother,

PW.14, is the cousin brother while PW.16 is the sister

of deceased and PW.15 is the husband of PW16 while

PW.17 is relative. PW.18, is neighbour. These

witnesses have supported the case of the prosecution

to some extent regarding demand of dowry. PW.19

Taluka Executive Magistrate, Bidar has recorded dying

declaration as per Ex.P.10. It is interesting to note

here that original of Ex.P.10 is not available and what

is produced before the Court is a photocopy. PWs.24

to 27 are the relatives of accused while PW.28, the

Scientific Officer, FSL. PW.30, is the doctor who has

given treatment to the injured and other witnesses

are the Investigating Officers. DW.1, is the doctor of

Konchavaram Community Health Centre, wherein the

deceased was first admitted and who has given

primary treatment and sent MLC requisition to

Konchavaram Police Station and on the basis of which

DW.2, visited the hospital and recorded the dying

declaration of deceased as per Ex.D5.

11. It is an undisputed fact that accused is the

husband of deceased Shilpa and their marriage was

solemnized just one year prior to her death. It is also

not disputed that deceased Shilpa died due to burn

injuries sustained by her. The evidence of PW.10 and

post mortem-Ex.P6, clearly establishes that death was

due to burn injuries. Though, PW.7 claims to be an

eyewitness in the instant case, his cross examination

reveals that he is not an eyewitness. Admittedly, the

incident has occurred within the 4 walls of the house

of accused and deceased and after the deceased

caught fire, she came running out of the house and

then the neighbours rushed to her and she was shifted

to the hospital. So, it is evident that there are no

eyewitnesses to the case of the prosecution and entire

case of the prosecution is based on dying declaration.

At the same time, it is also important to note here

that there are 3 dying declarations recorded and

interestingly prosecution has concealed the first dying

declaration recorded as per Ex.D5.

12. It is an undisputed fact that the deceased

caught fire on 02.05.2010 in between 2.00 to 2.30

p.m. and immediately she was shifted to

Konchavaram hospital. After getting treatment there

late night, she was shifted to District Hospital, Bidar.

The evidence of DW.1, the doctor who treated the

injured first clearly discloses that on 02.05.2010 at

4.30 p.m., the deceased was brought by accused and

Kamalabai to the hospital with the history of burn and

deceased has given history that when she was about

to lit fire to chimney, she caught fire and as such, he

issued MLC and sent to the police station. Then,

DW.2, who is head constable of Konchavaram Police

Station, came to the hospital and in presence of

DW.1, he recorded the dying declaration of the

deceased. Ex.D3 is the MLC register and Ex.D3(a) is

relevant entry in the MLC. Further, the evidence of

DWs.1 and 2, establish that the deceased has given

statement before DW.2 in presence of DW.1, as per

Ex.D5 stating that she sustained burn injuries

accidentally while filling kerosene in chimney and both

DWs.1 and 2 have certified that the deceased was in

conscious state of mind while giving statement.

However, the evidence clearly discloses that DW.1 has

sent MLC as per Ex.D1 at 5.15 p.m. on 02.05.2010

and Ex.D4, is the entry regarding in-patient register,

which discloses that the deceased was admitted in

Konchavaram Community Health Centre, initially.

13. But quite contrary, the prosecution has

tried to make up a case that PW.21-ASI on

03.05.2010 at 12.00 noon received MLC report from

the District Hospital, Bidar at 4.30 p.m. or 5.30 p.m.

He visited the District Hospital and after ascertaining

her condition, he sent requisition to Taluka Executive

Magistrate for recording dying declaration of injured

Shilpa. PW.21, when received requisition at 12.00

noon, his conduct itself establishes negligence as he

visited hospital around 4.30 p.m. or 5.30 p.m. and he

did not bother to visit hospital immediately.

14. Further, PW.21, deposes that Taluka

Executive Magistrate has recorded the dying

declaration and he recorded her statement as per

Ex.P7 and registered the crime. Further, PW.19 has

recorded the dying declaration as per Ex.P.10, as such

in the instant case, there are 3 dying declarations.

They are one at Ex.P5, second is at as per Ex.P.10 and

third is as per Ex.P7, which is complaint.

Interestingly, Ex.P.10, is the photocopy produced by

PW.19, but his evidence discloses that after recording

the dying declaration and after obtaining the thumb

mark of the deceased, he put it in an envelope, sealed

it and handed over to ASI i.e. PW.21. However, later

on, he further deposed that the same was missing and

he produced the photocopy alleged to have been kept

in his file which is at Ex.P.10. But, PW.21, nowhere

claims that after recording dying declaration as per

Ex.P.10, the same was handed over to him by the

Taluka Executive Officer. Hence, there is ambiguity as

to who was the custodian of Ex.P.10, whether PW.19

or PW.21.

15. The allegations made in Ex.P7, dying

declaration/complaint discloses that while deceased

was being shifted to the hospital, the accused has

requested her to report to the police that she caught

fire accidentally, failing which, she will not be

admitted in the hospital for treatment and as such,

she alleged to have given a false statement before the

police as per Ex.D5. As such the complaint assertions

in Ex.P7, itself discloses that there was a reference

regarding earlier dying declaration but the prosecution

for the best reasons has not made attempts to

produce the first dying declaration before the Court as

per Ex.D5.

16. Further, Ex.P10, is the dying declaration

recorded by the Taluka Executive Magistrate prior to

recording of Ex.P7. But, there she did not refer that

initially, she has given a false statement before the

police. This material assertion which is made in Ex.P7,

is found missing in Ex.P10. Very interestingly, in

Ex.P10, there is another assertion by the end of

second paragraph that due to accidental fire, she

suffered burn injuries on her chest, face, both arms

and other parts of the body. These stands are quite

inconsistent and contrary.

17. Apart from that Ex.P7, is not attested by

Medical Officer who was on duty. PW.21, though

admits the presence of Medical Officer, he did not

bother to obtain the signature/ certification of the

Medical Officer regarding fitness of the victim to give

such statement. Further, though in Ex.P7, there is a

reference of earlier statements given by the victim,

PW.21 all along pleads ignorance in this regard. Even

in Ex.P10, there is no certification that the victim was

in a sound state of mind to give such a statement

except a signature of alleged doctor. Even the doctor

is also not examined. Ex.P10, is a secondary evidence

and no concrete foundation was laid for relying the

secondary evidence as the evidence of PWs.19 and 21

is inconsistent as to who was the custodian of original

Ex.P10 and who lost it. On the contrary, the first

dying declaration recorded under Ex.D5, discloses that

the deceased has given statement that she caught fire

accidentally. Further, it is again supported by

DW.1/doctor in whose presence it was recorded and

DW.2, who has recorded it. All the 3 dying

declarations are contrary to each other and hence it is

not safe to rely the inconsistent dying declaration to

base the conviction.

18. Learned counsel for the respondent has

placed reliance on a decision reported in AIR 2021 SC

2399 (Jayamma and Another Vs. State of

Karnataka), wherein the Hon'ble Apex Court had

occasion to deal with the appreciation of the dying

declaration, has observed that the endorsement of the

Medical Officer regarding fit state of mind of the victim

to make the statement has been made not before the

statement but after the statement was recorded. It is

essential that such certification is necessary before the

commencement of recording statement. In the

instant case no such certification from medical officer

is found on Ex.P.10 & Ex.P7. Further, the dying

declaration is also not in a question answer format,

which also creates suspicion regarding existence of

Ex.P10. As observed above, the original Ex.P10 is not

available and the prosecution has relied on Ex.P10

which is secondary evidence. A similar view is taken

by the Hon'ble Apex in a decision reported in 2019

(4) SCC 739 (Sampat Babso Kale and Another

Vs. State of Maharshtra). Apart from that, it is

evident from the records that Kamalabai i.e. PW.27

had accompanied the accused in shifting the deceased

to hospital. She did not support the case of the

prosecution and there is no suggestion to PW.27 on

behalf of prosecution that while she was travelling

along with accused and deceased in ambulance,

accused has influenced deceased. There is no

explanation coming from the prosecution, as to why

the prosecution has tried to conceal recording of

Ex.D5. If, at all accused had an intention to cause the

death of deceased, he would not have taken lead in

shifting injured wife to the hospital. Apart from that,

PW.12, is the brother of deceased and in his cross

examination, he has clearly admitted that the accused

had paid amount of Rs.1 Lakh to him for medical

treatment of deceased Shilpa. When, this evidence is

taken into consideration, then question of demand of

dowry is not substantiated as accused himself has

spent lot of amount for treatment of his wife.

19. PWs.7 and 12 to 18, have deposed

regarding payment of Rs.50,000/- and one tola gold

being given in the marriage, but none of these

witnesses deposed regarding demand by the accused.

The gift given in the marriage does not come under

the purview of dowry as per definition under Section 2

of Dowry Prohibition Act, 1961.

20. The evidence clearly discloses that there is

no cogent evidence regarding payment of additional

dowry and if at all PWs.7 and 12 to 18 had received

this information and had knowledge regarding the

accused setting fire to deceased from her then they

could have or anyone of them could have lodged the

complaint immediately but that was not the case. The

evidence on record clearly disclose that the

prosecution has suppressed the genesis of the

incident. Further, DWs.1 and 2 being the material

witnesses were not cited as charge sheet witnesses by

the prosecution. Even the prosecution has not made

any attempt to secure the case sheet of the deceased

to ascertain her condition at the time of recording

Exs.P7 and 10. Though, Ex.P10, bears a signature of

the doctor alleged to have recorded in his presence,

the said medical officer was not examined and as

observed above, there is no certification regarding the

state of mind of the victim to give such statement.

21. The learned Addl. SPP has argued that

even if the dying declarations are ignored the offences

under Section 3 & 4 of the Dowry Prohibition Act, are

proved by the evidence of PWs.7 and 12 to 18. But, as

observed above, the evidence is not convincing as to

when and where the amount of Rs.7,000/- was paid to

accused. On the contrary, the evidence discloses that

the accused himself admitted the victim to the

hospital and paid certain sum to PW.12 for treatment

of the deceased. Hence, the said arguments by the

learned Addl. SPP holds no water.

22. Hence, on assessment of entire oral and

documentary evidence, it is evident that the

prosecution has miserably failed to bring home the

guilt of the accused beyond all reasonable doubt. The

learned Sessions Judge has appreciated the oral and

documentary evidence in detail and arrived at just

decision. Looking to the evidence on record, the

dying declaration at Exs.P7 and P10 cannot be relied

on. Further, when the trial Court has exercised the

discretion by proper reasonings and the conclusion of

the trial Court is reasonable and plausible, as such

question of interference in this finding on ground that

another view is possible does not arise, in view of the

decision reported in AIR 2021 SC 2399 (supra).

Further, in the decision reported in AIR 2016 SC

5231(Mahavir Singh Vs. State of Madhya

Pradesh), the Hon'ble Apex Court has dealt with the

power of the Appellate Court while interfering with the

finding of the trial Court on acquittal by observing that

it is not permissible, when two conclusions are

possible based on the evidence on record. Further, in

the decision reported in AIR 2016 SC 2045

(V.Sejappa Vs. State by Police Inspector

Lokayukta, Chitradurga), the Hon'ble Apex Court

has clearly held that there is a presumption of

innocence in favour of accused person and such

presumption is strengthened by an order of acquittal

passed by the trial Court. It is further observed that

accused person is entitled to the benefit of reasonable

doubt when it deals with the merit of the appeal

against acquittal. Similar, view is also taken by the

Hon'ble Supreme Court in the decision reported in

AIR 2015 SC Crl.L.J.139 (Murlidhar Shivram

Patekar and Another Vs. State of Maharashtra),

and AIR 2014 SC 2200 (Muralidhar alias Gidda

and Another Vs. State of Karnataka).

23. Hence, considering all these aspects and

considering the weak circumstantial evidence lead by

the prosecution and conduct of the prosecution in

suppressing Ex.D5, the evidence lead by the

prosecution is not trustworthy to bring home the guilt

of the accused. The learned Sessions Judge is justified

in acquitting the accused considering the evidence on

record and it does not call for any interference by this

Court. The judgment of acquittal passed by the

learned Sessions Judge is neither perverse or

capricious or arbitrary nor illegal, so as to call for

interference by this Court. Accordingly, we answer

the point under consideration in the negative and

proceed to pass the following:-

ORDER

The appeal stands dismissed.

The judgment of acquittal dated 04.01.2013

passed in S.C No. 279/2010 by the I Addl. Sessions

Judge, Gulbarga, whereby the learned Sessions Judge

has acquitted the accused/respondent herein for the

offences punishable under Sections 498-A, 302, 504 &

506 of IPC and Sections 3 and 4 of Dowry Prohibition

Act, is hereby confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

msr