Kobbari Basavaraj S/O Late ... vs The State Of Karnataka
2022 Latest Caselaw 3280 Kant

            IN THE HIGH COURT OF KARNATAKA,

                       DHARWAD BENCH

       DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                            PRESENT

   THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

                               AND

          THE HON'BLE Mr. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL No.100305 OF 2019

BETWEEN:

Kobbari Basavaraj
S/o Late Kobbari Katte Basappa
Age:35 years, Occ:labourer
R/o: Banagara Camp
Yattina Budhihal Village,
Tq and Dist Ballari
Ballari Dist.
                                              .. Appellant
(By Sri. Anwar Basha B., Advocate)

AND:

The State of Karnataka
(Through Ballari Rural Police Station),
Represented by
State Public Prosecutor,
High Court of Karnataka,
Dharwad.
                                            .. Respondent

(By Sri. V.M. Banakar, Additional State Public Prosecutor)

                               ***
                                                  Crl.A.No.100305/2019
                                     2




       This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure, 1973, praying to set aside the
impugned judgment of conviction dated:25.09.2018 and order
on sentence dated 26.09.2018 passed in Sessions Case
No.58/2016 by the Hon'ble II Addl. District and Sessions Judge,
Ballari and to acquit the appellant/accused for the offences
punishable under Sections 302 and 498A of the IPC, in the
interest of justice.

      This Criminal Appeal having been heard and reserved on
17-02-2022, coming on for pronouncement of judgment this
day, Dr.H.B. Prabhakara Sastry J. delivered the following:

                         JUDGMENT

The present appellant who is accused in Sessions Case

No.58/2016, in the Court of the learned II Additional District and

Sessions Judge at Ballari, (hereinafter referred to as `the

Sessions Judge's Court' for brevity), has challenged the

impugned judgment of conviction dated 25-09-2018 and order

on sentence dated 26-09-2018, convicting him for the offences

punishable under Sections 498A and 302 of the Indian Penal

Code, 1860 (hereinafter referred to as `the IPC' for brevity) and

sentencing him accordingly. It is against the said judgment of

conviction and order on sentence, the appellant/accused has

preferred this appeal.

2. The summary of the case of the prosecution is that,

based upon a MLC information, PW-21 - then Police Sub-

Crl.A.No.100305/2019

Inspector of the complainant Police Station visited Vijayanagara

Institute of Medical Sciences (VIMS) Hospital and ascertaining

the condition of the injured Laxmi (Lakshmi) from the Doctor,

about her fitness to give statement, recorded the statement of

the injured Laxmi, who had sustained burns, as per Ex.P-18.

The summary of the statement of injured Laxmi was that,

she was given in marriage to the accused Basavaraj on

17-07-2001. Out of their wedlock, they got two sons and one

daughter. Her husband Basavaraj was quarrelling with her on

trivial matters and used to abuse and assault her and also

subjecting her to cruelty. In that connection, a year back, she

had lodged a complaint against her husband and started living in

with her elder brother Sri.Venkatesh at Toranagallu. However,

the elders held a panchayat and got the matter compromised

and based upon the assurance given by her husband that he

would take care of her properly, she was sent back to her

marital home at Yettinabudihala, on 29-02-2016. Since then,

her husband was suspecting her character and fidelity and was

abusing her, stating that she had established extra-marital

relationships with other persons. On 04-03-2016, since morning,

her husband (accused) had initiated quarrel with her and was Crl.A.No.100305/2019

abusing her stating that she had established extra-marital

relationship with various other people and was insulting her. He

once again on the same day, stating that, since the panchayat

held was at her behest and he was insulted, he would put an end

to her life. Stating so, at about 9:30 a.m., he poured kerosene

which was in a plastic Can there. When she ran away from

home, he chased her out side the home and put fire to her saree

by litting a matchstick. On account of the same, all of a sudden,

the flames of the fire engulfed her body and she cried for help

holding the hand of her husband. However, he pushed her aside

and ran way and left the place. Hearing her yelling noise, the

neighbours rushed to her and put off the fire and shifted her to

the Hospital by summoning an ambulance. She also said to have

stated in her statement that it was with an intention to kill her,

her husband had poured kerosene upon her and lit fire to it.

After registering the said complaint statement in their

Station Crime No.140/2016 against the accused for the offences

punishable under Sections 498A, 307, and 326 of the IPC, the

complainant Police initiated investigation in the matter. After

getting the medical report that injured Laxmi succumbed to the

burn injuries on 08-03-2016, while under treatment, the Police Crl.A.No.100305/2019

substituted Section 307 of the IPC with Section 302 of the IPC.

After completion of the investigation, they filed the charge sheet

against the accused for the offences punishable under Sections

498A and 302 of the IPC.

3. Since the accused pleaded not guilty, in order to prove

the allegations made against the accused, the prosecution got

examined in all twenty-two (22) witnesses from PW-1 to PW-22

and got marked documents from Exhibits P1 to P-20 and Material

Objects from MO-1 to MO-3.

Neither any witnesses were examined nor any documents

were marked from the side of the accused.

4. After hearing both side, the learned Sessions Judge's

Court by its impugned judgment, convicted the accused for the

offences punishable under Sections 498A and 302 of the IPC and

sentenced him accordingly. It is against the said judgment of

conviction and order on sentence, the accused has preferred this

appeal.

5. The complainant - State is being represented by

learned Additional State Public Prosecutor.

Crl.A.No.100305/2019

6. The records from the Sessions Judge's Court were

called for and the same are placed before this Court.

7. Perused the materials placed before this Court,

including the memorandum of appeal, impugned Judgment and

the records from the Sessions Judge's Court.

8. For the sake of convenience, the parties would be

referred to as per their rank before the Sessions Judge's Court.

9. After hearing the learned counsels from both side, the

points that arise for our consideration in this appeal are:

[i ] Whether the prosecution has proved beyond all reasonable doubts that, the accused being the husband of deceased Laxmi, prior to 04-03-2016, subjected her to cruelty by harassing her physically and mentally by suspecting her chastity and fidelity, in the house situated at Bangara Camp, Yettinabudihal village, Ballari, by accusing her in filthy language, poured kerosene on her saree and lit fire with a match stick, causing her burn injuries, and thereby committed the offence punishable under Section 498A of the Indian Penal Code, 1860?

[ii] Whether the prosecution has proved beyond all reasonable doubts that, on 04-03-2016, at about 9:30 a.m., in his house at Yettinabudhihala, the accused, suspecting the chastity and fidelity of his wife Laxmi, with Crl.A.No.100305/2019

an intention to take away her life, poured kerosene upon her saree and put fire to it by litting a match stick, due to which fire, deceased Laxmi sustained burns, which resulted in her death on 08-03-2016, in VIMS Hospital, at Bellari and thereby has committed the offence punishable under Section 302 of the Indian Penal Code, 1860?

[iii] Whether the Judgment of conviction and Order on sentence under appeal deserves any interference at the hands of this Court?

10. Learned counsel for the appellant/accused in his

argument submitted that the alleged eye witnesses to the

incident have not supported the case of the prosecution and so

also the panch witnesses. He further submitted that, PW-10 and

PW-11 are relatives of the deceased Laxmi, as such, they are

interested witnesses. He also submitted that, the alleged timing

of the Taluka Executive Magistrate recording the dying

declaration of the deceased Laxmi is also at variance from the

statement of PW-10 and PW-11 with that of the Taluka

Executive Magistrate, who was examined as PW-18. With this,

he submitted that the alleged recording of dying declaration by

the Taluka Executive Magistrate does not inspire any confidence

to believe in it. Stating that the non-examination of the children

of the deceased also creates doubt in the case of the Crl.A.No.100305/2019

prosecution, learned counsel for the appellant/accused submitted

that the learned Sessions Judge's Court was at an error in not

considering the discrepancies in the case of the prosecution, as

such, the appeal deserves to be allowed.

11. Per contra, the learned Additional State Public

Prosecutor appearing for the respondent- State, in his argument

submitted that, except few prosecution witnesses, who were

projected as neighbours of the deceased and few panchas, all

other important witnesses have supported the case of the

prosecution. Merely because PW-10 and PW-11 are relatives of

the deceased, that itself is not sufficient to disbelieve the

supporting evidence of PW-10 and PW-11. He further submitted

that, recording of the statement of the deceased Laxmi by Police

Sub-Inspector (PW-21) and recording of the dying declaration of

the deceased by the Taluka Executive Magistrate (PW-18) shows

that the deceased Laxmi has given a uniform statement in front

of both the Police Officer as well the Taluka Executive Magistrate.

Both the statements inspire confidence to believe in them, as

such, the case of the prosecution has been proved beyond all

reasonable doubts. Thus, the impugned judgment of conviction Crl.A.No.100305/2019

and order on sentence do not warrant any interference at the

hands of this Court.

12. Among twenty-two(22) witnesses examined by the

prosecution, to prove the charge framed against the accused,

PW-1 to PW-9 and PW-15 to PW-17 have not supported the case

of the prosecution. Among these witnesses, PW-1 and PW-2

were shown as the witnesses for scene of offence panchanama at

Ex.P-1. PW-3, PW-4 and PW-9 were projected as Mahazar

witnesses for inquest panchanama as per Ex.P-2. PW-5, PW-6,

PW-7 and PW-8 were shown as the neighbours of the house,

where the deceased was residing with the accused and who had

the knowledge of the deceased Laxmi being ill-treated by her

husband (accused) and also it was those witnesses among

others, who, after hearing the hue and cry of the deceased

Laxmi, had rushed to the place and put off the fire and also

shifted the injured Laxmi to the Hospital. However, all these four

witnesses did not support the case of the prosecution. Among

them, PW-5 and PW-6 went to the extent of stating that they did

not know who the deceased was. But PW-7 and PW-8, though

stated that they knew the accused and his wife who is the

deceased, but they expressed their ignorance about the marital Crl.A.No.100305/2019

life of the deceased and also about the alleged incident of the

deceased sustaining burns.

13. PW-15 - Nagesh, PW-16- Hodrappa, PW-17- Shekar

were examined by the prosecution as the witnesses who were

aware of the deceased being subjected to cruelty by the accused

and also had conducted a panchayat before the deceased was

sent back to her matrimonial home, at the request of the

accused, few days prior to the alleged incident. It was also the

case of the prosecution that, on the date of the incident, these

people having heard the yelling noise of the deceased, had

rushed to the spot and seen the accused in the place. However,

all these three witnesses, though have stated that the accused

and deceased were husband and wife, but pleaded their

ignorance about the alleged cruelty said to have been meted by

the accused upon the deceased and also the alleged incident of

deceased sustaining burns.

Even after getting all these witnesses treated as hostile,

the prosecution could not able to elicit any statements in its

favour from them even after subjecting them to cross-

examination.

Crl.A.No.100305/2019

14. The other witnesses have given their evidence

supporting the case of the prosecution. Among them PW-10 -

Venkatesh and PW-11 - Renukamma are undisputedly the elder

brother and sister-in-law of the deceased Laxmi. Both these

witnesses, in their evidence though have stated that, the

deceased Laxmi was given in marriage to the accused about

seventeen years back and out of the wedlock they have got two

sons and a daughter and that they were leading a happy marital

life in the beginning, also stated that, later on, her husband

(accused) started subjecting the deceased to cruelty and

harassment. On one such occasion, the accused had assaulted

the deceased with a sickle, in which connection, she had been to

their house to give a police complaint. Thereafter, she was

residing with them. One year thereafter, the accused himself

had gone there (house of brother of deceased Laxmi) and

assuring that he would not quarrel with his wife and would take

care of her properly, had taken her back to his house. Within

three to four days after such return of the deceased to her

marital home, they heard a news from one Thimmappa over

phone that, the accused had set fire to his wife (deceased

Laxmi). Immediately after hearing the said news, both of them Crl.A.No.100305/2019

(PW-10 and PW-11) went to VIMS Hospital and saw the injured

Laxmi, who had sustained burns all over her body. Both the

witnesses have stated that they enquired the injured Laxmi

about the incident, for which she told them that, her husband

(accused) questioning her as to how many paramours she had,

poured kerosene upon her and put fire to it, even though she

had ran out of the house immediately after accused pouring

kerosene upon her. Even though she held the hands of the

accused, begging him to rescue her, the accused pushed her

aside and left the place.

PW-11- Renukamma proceeded further by stating that her

sister-in-law, i.e. the deceased was telling her frequently that

the accused was subjecting her to cruelty by suspecting her

character and fidelity, however, she was pacifying her and

advising her to manage the family and was sending her back to

her home. The witness also stated that the deceased was not

willing to go back to her husband's house, as such, she was

staying with them (PW-11) for one year and ten days.

However, the accused going there (house of PW-10) by himself

and promising that he would take care of his wife in a better

manner had taken her back to his house. Both PW-10 and Crl.A.No.100305/2019

PW-11 have also stated that when they had been to Hospital to

see the injured Laxmi, the Tahsildar had also visited the Hospital

and recorded the statement of the injured Laxmi.

Even though both these witnesses were subjected to a

detailed cross-examination from the accused's side, however, the

evidence given in their examination-in-chief could not be shaken

in their cross-examination. The denial suggestions made to

them were not admitted as true by these witnesses. The

suggestion made to them that, the fire was accidental and the

deceased had sustained burn injuries while cooking food, was not

admitted by those witnesses as true. In this manner, both

PW-10 and PW-11 contended that, it is none else than from the

mouth of the deceased herself, they have come to know the

cause for the burns sustained by the deceased Laxmi.

15. The next set of witnesses upon whom the prosecution

relied upon are PW-12 - Nagappa and PW-22 - Sunkanna, who,

according to the prosecution, were the persons known and close

to the family of the deceased and also have advised the accused

to lead a peaceful martial life.

PW-12 - Nagappa has stated that, the deceased was given

in marriage to accused about fifteen years back and that out of Crl.A.No.100305/2019

the said wedlock, they begot three children born to them. CW-8

(PW-10) has informed him that the accused was subjecting his

sister (deceased Laxmi) to cruelty and therefore, the deceased

was living with him. The witness further stated that one year

thereafter the accused along with his mother came to the house

of PW-10 and promising the deceased and her elder brother that

he would take care of the deceased properly and would not

subject her to cruelty, had taken back his wife (deceased Laxmi)

with him. It is in that connection, himself (this witness) joined

by one Sri. Shekar, Sunkanna and Prasanna have held a

Panchayat and had sent the deceased Laxmi with the accused.

Three days thereafter, PW-10 informed him that the accused had

poured kerosene upon his sister Laxmi, who sustained burns and

succumbed to it. Even in his cross-examination, the said

witness adhered to his original version.

PW-22 - Sunkanna also stated about the marriage of the

deceased with the accused and also regarding the three children

born to them, by name Thippamma, Venkatesh and Jairaj. The

witness stated that though the accused was taking care of his

wife properly in the beginning, but later on, he started assaulting

her and abusing her. The same was being told to him by none Crl.A.No.100305/2019

else than the deceased herself. In that connection, he had

advised the accused to maintain his family properly. However,

the accused did not take care of his wife properly. The witness

also stated that after getting the information over telephone that

the accused had quarreled with his wife and had set her ablaze,

he had rushed to the Hospital joined by one Sri.Venkatesh and

three four other people and saw that the deceased Laxmi had

sustained burns all over her body, however, she was talking little

bit. He also stated that the Police and other officials came to the

said Hospital and recorded her statement. After three days, she

died in the Hospital. The said evidence of this witness could not

be shaken in his cross-examination from the accused's side.

16. From the evidence of the above witnesses, it is clear

that the deceased is the wife of accused having been married to

him about seventeen years back and the deceased has got three

children i.e. two sons and one daughter born to her from the

accused. All these witnesses have stated that though for some

time the accused was taking care of his wife properly, however,

subsequently, he started subjecting her to cruelty suspecting her

character and fidelity. All these witnesses have also stated that

due to unbearable cruelty meted to her by the accused, the Crl.A.No.100305/2019

deceased Laxmi had returned to her brother's house (PW-10),

however, the accused going over there (house of PW-10) after

one year had taken his wife back by promising that he would

take care of her properly in future. All these witnesses have also

stated that, within three to four days after the incident, the

deceased Laxmi sustained burns.

Among these witnesses PW-10 and PW-11 have

categorically and specifically stated that the deceased Laxmi

herself had told them that it was her husband (accused) who

poured kerosene upon her and put fire to her, as such, she

sustained burns. The said evidence of these two witnesses

gives no scope to disbelieve them or doubt any portion of their

evidence. Thus, PW-10 and PW-11, though are relative to the

deceased, but their evidence that they have heard the details

from the mouth of the deceased herself, which has not been

specifically denied from the accused's side, does not create any

doubt to disbelieve their statements.

17. The next set of material witnesses upon whom the

prosecution has relied upon are, PW-13, PW-14, PW-18, PW-20

and PW-21.

Crl.A.No.100305/2019

Among these witnesses, PW-13 - B. Padmachari has stated

that being a Panchayat Development Officer, he, at the request

of the Investigating Officer in the case has issued a house

extract as per Ex.P-7 of the house where the incident has taken

place.

PW-21 - Chandan Gopal V., the then Police Sub-Inspector

of the complainant Police Station has stated in his evidence that,

on 04-03-2016, while he was in-charge of the Ballari Rural Police

Station, he received an information that, one Smt. Laxmi has

been admitted to VIMS Hospital, with the history of burns. On

the same day, he visited the said Hospital and requested the

Chief Medical Officer (CMO) to ascertain the fitness of the patient

to give her statement, by submitting the requisition to him as

per Ex.P-17. The said CMO assigned the said work to the Doctor

on duty, who, after examining the patient, endorsed on the

request form at Ex.P-17(c), stating that the patient was fit to

give her statement. It is thereafter he proceeded to record the

statement of the injured Laxmi in the presence of the Doctor

which statement he has identified at Ex.P-18. He also stated

that he took the signature of injured Laxmi on Ex.P-18 at

Ex.P-18(c) and so also the endorsement of the Doctor as per Crl.A.No.100305/2019

Ex.P-18(a). Having returned to the Police Station, he registered

the said complaint in their Station Crime No.104/2016 against

the accused for the offences punishable under Sections 498A,

307, and 326 of the IPC and submitted the FIR as per Ex.P-20 to

the Court. The witness has further stated that on the same day,

he also requested the Tahsildar as per Ex.P-12 to record the

dying declaration of the injured Laxmi. He further stated that

on 05-03-2016, he visited the scene of offence and in the

presence of PW-1 and PW-2, drew a scene of offence

panchanama as per Ex.P-1 and seized a kerosene Can and a

match stick box and burnt cloths from the spot under the same

panchanama, which articles he has identified at MO-1 to MO-3.

He further stated that, on the same day, he apprehended the

accused in Yattinabudhihal Village and produced him before the

Court. He also stated that he recorded the statement of PW-7

as per Ex.P-5, on 08-03-2016. He received information from the

Hospital that deceased Laxmi succumbed to the injuries and

therefore, requested the Court to incorporate Section 302 of the

IPC in the matter. Stating that he also sent seized articles for

their examination to the Forensic Science Laboratory (FSL), Crl.A.No.100305/2019

handed over further investigation to PW-19. The witness has

identified the accused in the Court.

PW-18 - D. Pramodh, the then Tahsildar and Taluka

Executive Magistrate of Ballari has stated that, based upon the

requisition letter as per Ex.P-12 submitted by the complainant

Police on 04-03-2016, he went to VIMS Hospital on the same day

evening at 7:00 p.m. and requested the duty Doctor through his

requisition letter at Ex.P-13 to ascertain and confirm the

condition of the injured Laxmi to give her statement. The Doctor

examined the injured and endorsed on the requisition at

Ex.P-13(b), stating that the patient was in a fit condition to give

her statement. It is thereafter, he proceeded to record the

statement of the injured Laxmi in the presence of the Doctor at

7:15 p.m. and completed the recording of her statement at 7:40

p.m. The witness after getting the sealed cover opened took out

the statement recorded by him and got it marked as Ex.P-14.

He stated that he questioned the injured Laxmi and recorded her

answers as it is. He stated that he has put questions to her in

Kannada language and the injured Laxmi also answered in

Kannada language only, as such, in the very same language and

in the same manner how the questions and answers were Crl.A.No.100305/2019

exchanged, he has recorded them at Ex.P-14. The witness

further stated that after recording the statement of injured

Laxmi, he gave that statement to CW-7 - Doctor, who was

present there and, at his (PW-18) request, has read over the

statement in Kannada language to the injured and after the

injured stated that the statement has been recorded correctly,

he obtained the signature of the injured Laxmi on the statement,

which signature the witness has identified at Ex.P-14(a). He also

stated that thereafter, he obtained the signature of the Doctor

also as per Ex.P-14(b), who has affixed his signature by stating

that "statement taken before me", after his (PW-18) signature at

Ex.P-14(c). The witness specifically stated that from the

commencement of recording of the dying declaration of the

injured till its completion, the condition of the injured Laxmi was

stable to give her statement. He also stated that at the time of

recording the statement, it was only the injured Laxmi, himself

and the Doctor alone were there in that place. The denial

suggestions made to him in his cross-examination were not

admitted as true by this witness.

PW-20 - Ravikumar Reddy, the Medical Officer at VIMS

Hospital has stated that the complainant Police had given a Crl.A.No.100305/2019

requisition to the Chief Medical Officer of the Hospital to certify

the condition and fitness of the injured Laxmi to give her

statement, which is at Ex.P-17. Accordingly, since the CMO has

directed him to examine the injured, as per Ex.P-17, he

examined the injured and made his endorsement as per

Ex.P-17(b), endorsing that the injured was in a fit condition to

give her statement. It was at the same time, CW-26(PW-21) the

Police Sub-Inspector recorded the statement of the injured in his

presence. The witness stated that, the injured gave her

statement to the Police Sub-Inspector PW-21 as per Ex.P-18 in

his presence. Thereafter at 7:15 p.m. the Tahsildar (CW-25)

(PW-18) recorded the statement of the injured in his presence.

He stated that, at that time, himself, injured and the Tahsildar

alone were present. The witness also stated that the Tahsildar

was questioning to the injured in Kannada language and injured

Laxmi was understanding the questions and giving her answers

in Kannada language only. Nearly 27 questions were put by

Tahsildar, all of which were answered suitably by the injured

Laxmi. After those questions and answers were read over to

the injured Laxmi, her signature was obtained on the statement

as per Ex.P-14(a) by the Tahsildar. The witness has identified Crl.A.No.100305/2019

his signature in the said document at Ex.P-14(b) and signature

of the Tahsildar at Ex.P-14(c). The witness stated that, the

injured Laxmi has answered in her dying declaration stating that

it was her husband who poured kerosene upon her and lit fire to

it. In the cross-examination of this witness, though the witness

has stated that there is possibility of injured sustaining those

injures accidentally while cooking, however, adhered to his

original version that injured was in a fit condition to give her

statement and Tahsildar as well the Police Sub-Inspector have

recorded the statements of the injured, in his presence only.

Lastly, PW-14 (CW-18) - Dr. Ravishankar has stated that

while working as Lecturer in VIMS, Bellari, he has conducted

autopsy on the body of the deceased Laxmi, at the request of the

complainant Police on 09-03-2016. He has stated that he

noticed the following external injuries upon the deceased :

"infected burns over face, neck front of chest, upper ½ of front and sides of abdomen, both upper limb, right leg and left thigh amounting to 55% to 60% body surface area. Burnt area is covered with foul smelling yellowish slough at places"

He has stated that, after dissecting the body of deceased

Laxmi, he found all the internal organs intact. He noticed anti Crl.A.No.100305/2019

mortem burns to an extent of 55% to 60%. He opined that the

death was due to septicemia shock as a result of infection

consequent to burns sustained. In that regard, he issued a post-

mortem report, as per Ex.P-8. In his cross-examination, at one

place, he has stated that while cooking food by sitting on the

floor, due to accidental catching of fire, the injuries suffered by

the deceased are possible to be caused.

18. In the light of the above evidence, the undisputed

facts remain that the death of deceased Laxmi was un-natural.

Though the defence of the accused was that, it was an accidental

catching of fire, however, the evidence of PW-10, PW-11, PW-18,

PW-20, PW-21 and PW-22 speaks differently.

19. As analysed above, PW-10 and PW-11 being brother

and sister-in-law of the deceased Laxmi have uniformly stated

that they have heard from the mouth of none else than the

deceased herself that, it was her husband (accused), who had

poured kerosene upon her and lit fire to it, with an intention to

kill her. Corroborating the same, the evidence of PW-12 and

PW-22 also goes to show that the deceased was subjected to

cruelty by the accused and they had the knowledge about the Crl.A.No.100305/2019

same. It is not in dispute that, PW-22 has stated that he knows

both the accused and the deceased and that he also held a

panchayat with respect to the alleged ill-treatment of the

deceased by accused wherein he had advised the accused to

take care of his wife properly.

20. The evidence of PW-18, PW-20 and PW-21 are the

strong evidence placed by the prosecution to prove its case

against the accused.

PW-18 - the Tahsildar cum Taluka Executive Magistrate,

in unequivocal terms has stated about he getting the request to

record the statement of injured Laxmi from the complainant

Police and proceeding to the Hospital to record her statement.

He has also stated the manner in which he proceeded to record

the statement of injured Laxmi. Stating that before recording

the statement of injured Laxmi, he got her condition examined

by the Doctor and got confirmed that she was in a fit state to

give her statement. By putting her some preliminary questions,

he ascertained that she can understand and give rational

answers to them. It is only thereafter he has proceeded to put

her questions regarding the incident which has led her to sustain Crl.A.No.100305/2019

burns. He has stated as to what answers she gave to the

questions put by him. Moreover, he has further stated that he

put the questions in Kannada language and the injured also gave

her answers in Kannada language only. Thus, he confirmed that

the injured understood his questions which were put in her own

language and elicited answers from her. Apart from the same,

the witness has further confirmed that the injured had

understood the answers given by her, by giving the questions

and answers statement to CW-7 - Doctor, who read over to the

injured in Kannada language and only after she admitted that

the questions and answers recorded are correct, the witness has

obtained her signature on the dying declaration at Ex.P-14.

Thus, the Taluka Executive Magistrate has followed the proper

procedure in recording the dying declaration of injured Laxmi.

The said evidence of the Taluka Executive Magistrate is

further corroborated by the evidence of Doctor i.e. PW-20, who

also has stated that before the Taluka Executive Magistrate

proceeded to record the dying declaration of the injured, at his

request, he had examined the injured Laxmi and confirmed to

the Taluka Executive Magistrate that she was in a fit condition to

give her statement. Apart from the same, the Doctor has clearly Crl.A.No.100305/2019

stated that he too was present when the Taluka Executive

Magistrate was recording the dying declaration of the injured

Laxmi. Stating that he has endorsed the said dying declaration,

he has identified his endorsement with signature in the dying

declaration at Ex.P-14(b). Even this witness (PW-20) also has

stated that the Tahsildar was putting the questions to the injured

Laxmi in Kannada language and injured was answering to those

questions in Kannada language only, after understanding the

questions put to her. The doctor also stated that for all the

twenty-seven questions put to her, the injured has given

rational answers after understanding the said questions. The

Doctor has further stated that the injured has stated that it was

her husband who poured kerosene upon her and lit fire to it.

The said evidence of either Taluka Executive Magistrate

(PW-18) or the Doctor (PW-20) could not be shaken in their

cross-examination. Thus, the dying declaration comes out to be

a reliable document in the form Of the statement of none else

than the injured Laxmi, who later succumbed to the burns

sustained by her.

The evidence of PW-21 - the then Police Sub-Inspector

further corroborates the prosecution case. Apart from the Taluka Crl.A.No.100305/2019

Executive Magistrate, he also has recorded the statement of the

injured Laxmi, that too, after getting her medically examined by

the very same duty Doctor (PW-20) and after getting

confirmation by him that the injured was in a fit condition to give

her statement. Even in the said statement also, which is at

Ex.P-18, the injured has clearly and specifically stated that it was

her husband (accused) who poured kerosene upon her and lit fire

to her by suspecting her character and fidelity.

PW-20 - Doctor also has stated that even prior to PW-21,

the Police Sub-Inspector recorded the statement of the injured

Laxmi, at his request, he had examined the injured and made his

endorsement on the requisition as per Ex.P-17(b), confirming

that the patient was fit to give her statement. The witness

stated that it is only after he certifying about the fitness of the

injured to give her statement, the Police Sub-Inspector

proceeded to record her statement. The Doctor also has

identified the said statement of the injured in the form of

complaint at Ex.P-18 and his signature therein at Ex.P18(a).

While putting his signature at Ex.P-18(a), the Doctor has

endorsed that the statement was taken before him. Thus,

PW-20 - Doctor had examined the injured Laxmi at both the Crl.A.No.100305/2019

times i.e. before the Taluka Executive Magistrate recording her

statement and also before the Police Sub-Inspector recording the

statement of the injured Laxmi. Further, the Doctor (PW-20)

was present when both the statements were being recorded by

the respective officials. Thus, there is no reason to suspect the

correctness and trustworthiness of the dying declaration at

Ex.P-14 and also the complaint statement of the very same

injured at Ex.P-18.

21. The Hon'ble Apex Court in the case of Purshottam

Chopra and another Vs. State (Government of NCT of Delhi)

reported in (2020) 11 Supreme Court Cases 489, after referring

to its several previous judgments, has summed up some of the

principles relating to recording of dying declaration and its

admissibility and reliability in paragraph 21 of its judgment,

which is extracted here below:

"21. For what has been noticed hereinabove some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

Crl.A.No.100305/2019

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eye witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

Crl.A.No.100305/2019

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

The above principles also are required to be borne in mind

while analysing the evidence placed in this case.

22. Our Hon'ble Apex Court in the case of State of Uttar

Pradesh Vs. Veerpal and another reported in 2022 SCC OnLine

SC 129, while appreciating the evidentiary value of dying

declaration under Section 32 (1) of the Evidence Act, has

reiterated the principles laid down by it in the case of Khushal

Rao Vs. State of Bombay [AIR 1958 SUPREME COURT 22] as to

the circumstances under which a dying declaration may be

accepted, without corroboration, in the following lines:

"(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of Crl.A.No.100305/2019

surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

The dying declaration at Ex.P-14, in the instant case, which

is coupled with the statement of the deceased Laxmi at Ex.P-18,

which was recorded by PSI (PW-21), both in the presence of the

Doctor (PW-20) answers all the requirements or fulfils the

principles reiterated in Veerpal's case (supra).

Crl.A.No.100305/2019

Thus, the dying declaration can also form the sole basis of

conviction and it stands on the same footing as another piece of

evidence. Since the dying declaration at Ex.P-14 in the instant

case has been recorded by a competent Taluka Executive

Magistrate in the proper manner, i.e. in the form of questions

and answers and in the language and words of the maker of the

dying declaration, it stands at a much higher footing than a

dying declaration which depends upon the oral testimony which

may suffer from some infirmities of human memory and human

character.

23. In the instant case, apart from the dying declaration

at Ex.P-14, the statement of none else than the injured Laxmi at

Ex.P-18 further corroborates the case of the prosecution. Added

to the same, the evidence of PW-10, PW-11, PW-12 and PW-22

further goes to show that recently the accused had started

suspecting the character and fidelity of his wife (deceased Laxmi)

and was subjecting her to cruelty. PW-12 and PW-22 being

independent witnesses have also stated that, in that regard, they

had advised the accused appropriately. The evidence of PW-10

that once the accused had assaulted the deceased with a sickle,

as such, she had been to his (witness) house to lodge a Crl.A.No.100305/2019

complaint against her husband and thereafter, she started

residing in his house only, remained un-denied from the

accused's side. All these trustworthy evidence makes it very

clear that prior to the death of deceased Laxmi, the accused was

subjecting her to constant cruelty both physical and mental and

also he was suspecting her character and fidelity. It is the said

suspicion of the accused which made him to decide to kill her,

which intention behind his act of pouring kerosene and litting fire

has been clearly stated by none else than the injured Laxmi

herself, both before the Taluka Executive Magistrate and also

before the Police Sub-Inspector. Thus, it is clearly established

that it is the accused and accused alone, who, by suspecting the

character and fidelity of his wife, with an intention of putting an

end to her life, poured kerosene upon her in their house and lit

fire to it on 04-03-2016, which caused severe burns to deceased

Laxmi, due to which, by septicemia, she succumbed to burns

while under treatment on 08-03-2016. Thus, the prosecution

has proved the alleged guilt of the accused beyond all reasonable

doubts.

24. The defence of the accused that the burns sustained

by deceased Laxmi were accidental, was taken up before the Crl.A.No.100305/2019

Court in the form of suggestions made to PW-10, PW-11, PW-14

and PW-20 in their cross-examinations. But PW-10 and PW-11

have denied that the burns were accidental. However, though

PW-14 and PW-20 have stated that such burns can also be

caused accidentally, but mere such a possibility cannot be taken

as a fact in the circumstances of the case, unless the accused

shows that it was purely an accidental one.

25. As analysed above, the accused mere making

suggestion to these witnesses, could not place any corroborative

material in that regard. On the other hand the material

prosecution witnesses i.e. PW-10 and PW-11, who heard about

the incident from the mouth of the deceased herself and the

dying declaration of the injured Laxmi at Ex.P-14 and her

complaint statement at Ex.P-18 proves it beyond all reasonable

doubts that, the burns sustained by her were not due to

accidental catching of fire, but it was an intentional pouring of

kerosene and litting of fire by the accused and the motivated

act of accused and accused alone.

Crl.A.No.100305/2019

26. Since the learned Sessions Judge's Court, after

analysing the evidence placed before it in its proper perspective

has arrived at a proper conclusion, holding the accused guilty of

the offences punishable under Sections 498A and 302 of the IPC,

we do not find any reasons to interfere in it.

27. The learned Sessions Judge Court, for the offence

punishable under Section 498A of the IPC, has sentenced the

accused to undergo simple imprisonment for a period of three

years and to pay a fine of `10,000/-, and in default of payment

of fine, to undergo simple imprisonment for ten days; and for

the offence punishable under Section 302 of the IPC, it has

sentenced the accused to undergo life imprisonment and to pay a

fine of `50,000/- and in default, to undergo simple imprisonment

for two years.

28. It is the sentencing policy that the punishment

imposed should not be either exorbitant or for name-sake, for

the proven guilt. It must be proportionate to the gravity of the

guilt for which the accused is found guilty of.

Crl.A.No.100305/2019

29. Since the sentence of imprisonment, fine and default

sentence ordered by the learned Sessions Judge's Court for the

proven guilt of the accused being proportionate to the gravity of

the proven guilt, we do not find any reason to interfere in the

impugned order on sentence also.

Accordingly, we proceed to pass the following:

ORDER

[i] The appeal is dismissed.

           [ii]   The   judgment      of   conviction   dated

     25-09-2018      and   order     on    sentence     dated

     26-09-2018, passed by         the learned II Additional

District and Sessions Judge at Ballari, in Sessions

Case No.58/2016, holding the accused/appellant

guilty of the offences punishable under Sections

498A and 302 of the Indian Penal Code, 1860, is

confirmed.

The Registry is directed to transmit a copy of this judgment

to the learned Sessions Judge's Court, to enable it to proceed

further in the matter for issuance of warrant of conviction, if

necessary and proceed in accordance with law.

Crl.A.No.100305/2019

A copy of this judgment also be furnished to the

respondent/accused immediately, free of cost.

Sd/-

JUDGE

Sd/-

JUDGE

BMV*