Shettaiah vs State Of Karnataka
2022 Latest Caselaw 5507 Kant

                         1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF MARCH, 2022

                      PRESENT

        THE HON'BLE MR. JUSTICE B. VEERAPPA

                        AND

        THE HON'BLE MR. JUSTICE S. RACHAIAH

          CRIMINAL APPEAL NO.252 OF 2018
                       C/W
          CRIMINAL APPEAL NO.1110 OF 2016

IN CRIMINAL APPEAL NO.252 OF 2018

BETWEEN:

SRINIVASA @ SEENA,
S/O SANNAIAH,
NOW AGED ABOUT 41 YEARS,
R/O. MALLYUR VILLAGE - 571 124,
T.NARASIPURA TALUK.
                                        ... APPELLANT
(BY SRI DR. J.S.HALASHETTI, ADVOCATE)


AND:

STATE OF KARNATAKA,
R/BY BANNUR POLICE STATION,
NOW R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
                                  ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
                          2


     THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED
27.05.2016 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, MYSURU IN S.C.NO.249/2012 - CONVICTING
THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 AND 498(A) OF IPC
AND ETC.,

IN CRIMINAL APPEAL NO.1110 OF 2016

BETWEEN:

1.     SHETTAIAH,
       AGED ABOUT 49 YEARS,
       S/O LATE SANNAIAH,

2.     SMT. MAHADEVAMMA,
       AGED ABOUT 69 YEARS,
       W/O LATE SANNAIAH,

3.     SMT. MANGALAMMA,
       AGED ABOUT 39 YEARS,
       W/O HUTHCHAIAH,

4.     HUTCHCHAIAH,
       AGED ABOUT 49 YEARS,
       S/O LATE PAKSATTE KUNTAIAH,

       ALL ARE R/AT MALLYUR VILLAGE,
       T.NARASIPURA TALUK,
       MYSURU DISTRICT - 571 124.
                                       ... APPELLANTS
(BY SRI P. NATARAJU, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY BANNUR POLICE STATION,
MYSURU DISTRICT,
                            3


REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
                                       ... RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE ADDL.SPP)


     THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED
27.05.2016 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, MYSURU IN S.C.NO.249/2012 - CONVICTING
THE    APPELLANT/ACCUSED    FOR   THE   OFFENCE
PUNISHABLE UNDER SECTION 498(A) OF IPC AND ETC.,


     THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J, DELIVERED THE
FOLLOWING:

                   JUDGMENT

Criminal Appeal No.252/2018 is filed by accused

No.1/Husband and Criminal Appeal No.1110/2016 is

filed by accused Nos.2 to 5 i.e. brother-in-law, mother-

in-law, sister-in-law of the deceased respectively and

husband of accused No.4.

2. These two appeals are filed by the accused

persons against the impugned judgment of conviction

and order of sentence dated 27.05.2016 made in

S.C.No.249/2012 on the file of II Additional Sessions

Judge, Mysuru, convicting accused No.1 under the

provisions of Section 302 of IPC and sentencing him to

undergo for simple imprisonment for life; convicting

accused No.1 under the provisions of Section 498A of

IPC and sentencing him to undergo simple

imprisonment for a period of 6 months with a fine of

Rs.2,000/-; convicting accused Nos.2 to 5 under the

provisions of Section 498A of IPC and sentencing them

to undergo simple imprisonment for a period of three

months with a fine of Rs.10,000/- each with a default

clause and accused No.2 is acquitted for the offence

punishable under Sections 114/302 of IPC.

3. It is the case of the prosecution that on the

basis of the victim's statement dated 16.01.2012, after

her death, which was called as dying declaration, the

Jurisdictional Police registered a case in Crime

No.13/2012 for the offences punishable under Sections

498A, 307, 114 read with Section 34 of IPC. After her

death, the original provision under Section 307 of IPC

was converted into Section 302 of IPC along with other

provisions.

4. It is further case of the prosecution that

about 10 years ago, the deceased was married to

accused No.1-Srinivas @ Seena. At the time of

marriage, the parents of the deceased had given a sum

of Rs.10,000/-as dowry and had gifted ear studs and

hangings to the deceased. After the marriage, they

lived as husband and wife cordially for more than 9

years. Out of their wedlock, one male and one female

children were born. Since one year, the sister of

accused No.1 i.e. Mangalamma-accused No.4 used to

pick up quarrels on petty issues and she assaulted the

deceased on her head. When it was reported to the

Police, they were advised to live cordially. Thereafter,

accused No.1 used to get enraged for every talk and

having consumed alcohol, he used to assault her daily

and she was leading a life by suffering with pain. Since

in the Village, Beereshwara fare was about to

commence i.e, three days prior to the incident, accused

No.1/Husband demanded a sum of Rs.3,000/- for

playing cards. When she refused to give, accused No.1

complained the same to his brother-accused No.2, for

which his brother provoked him to kill her. Thereafter,

accused No.3- mother-in-law of the deceased, accused

No.4-sister of accused No.1 and her husband-accused

No.5 had assaulted the deceased and demanded to get

the land transferred into her name from her parents,

she refused for the same. On 16.01.2012 at about 7-00

a.m., when the deceased was not keeping well, accused

No.1 came and pestered her to give money. When she

refused, he poured kerosene on her and lit the fire. She

was burnt in the fire. Thereafter, she had been shifted

to the hospital. On the basis of the above, a complaint

came to be registered. After the death of the deceased,

the Jurisdictional Police took up investigation and after

investigation, filed a charge sheet against accused

Nos.1 to 5.

5. On the matter being committed to the

learned Sessions Judge, the learned Sessions Judge

secured the presence of the accused persons and

framed the charges for the offences punishable under

Sections 498A, 114 and 302 read with Section 34 of IPC

and explained them in the language known to them,

who pleaded not guilty and claimed to be tried.

6. In order to prove the case of the

prosecution, the prosecution examined PW.1 to PW.21

and got marked material documents as per Ex.P1 to

Ex.P22 and material objects at MO.1 and MO.2. After

completion of evidence of the prosecution witnesses,

the statement of the accused persons were recorded as

contemplated under Section 313 of Cr.P.C., who denied

the incriminating evidence adduced by the prosecution

witnesses and not adduced any evidence.

7. Based on the aforesaid pleadings, the

learned Sessions Judge framed three points for

consideration, which read as under:

1. "Whether the prosecution proves beyond all reasonable doubt that the accused No.1 has committed the murder

of his wife and thereby committed the offence punishable under Section 302 of IPC?

2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 to 5 in furtherance of their common intention subjected the deceased to cruelty and thereby committed the offence punishable under Section 498(A) read with 34 of IPC?

3. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 abetted the accused No.1 to murder the deceased and thereby committed the offence punishable under Section 114/302 of IPC?"

8. Considering both the oral and documentary

evidence on record, learned Sessions Judge answered

point Nos.1 and 2 in the affirmative and point No.3 in

the negative, holding that the prosecution has proved

beyond all reasonable doubt that accused No.1 has

committed the murder of his wife, thereby, committed

an offence punishable under Section 302 of IPC. The

prosecution has further proved beyond reasonable

doubt that accused Nos.1 to 5 in furtherance of their

common intention subjected the deceased to cruelty

and harassment, thereby committed the offence

punishable under Section 498A read with Section 34 of

IPC and also held that the prosecution has failed to

prove beyond all reasonable doubt that accused No.2

abetted accused No.1 to murder the deceased and

thereby, committed the offence punishable under

Section 114/302 of IPC. Accordingly, the learned

Sessions Judge proceeded to convict the accused

persons for the aforesaid offences. Hence, the present

criminal appeals are filed by the accused persons.

9. The respondent-State has not filed any

appeal against non-imposition of fine amount for the

offence punishable under the provisions of Section 302

of IPC as well as acquitting the accused No.2 for the

offences punishable under Sections 114/302 of IPC

10. We have heard the learned counsel for the

parties.

11. Dr. J.S.Halashetti, learned counsel for the

appellant-accused No.1 in Crl.A.No.252/2018 contended

with vehemence that the impugned judgment of

conviction and order of sentence passed by the learned

Session Judge, convicting accused No.1 and sentenced

him to undergo simple imprisonment for life for the

offence punishable under Section 302 of IPC is

erroneous, contrary to the material on record and

cannot be sustained. He would further contend that the

trial Court committed a serious error relying on the

evidence of PW.1 and PW.13. Though PW.1 was treated

as hostile, the evidence of PW.13, who is the Doctor, is

untrustworthy to be taken into consideration for

appreciation of evidence.

12. He further contended that the dying

declaration is said to have been made before the Taluka

Magistrate by the deceased in the hospital is highly

suspicious one, as initially, the deceased was admitted

to Cauvery hospital and at the time, no declaration was

given by her. Admittedly, the deceased was suffered

more than 60% burnt injuries and she was not in a

position to depose anything. Ex.D2 is high risk consent

which shows that the patient was unconscious. The

Doctor was examined and admitted that he does not

know, who has written Ex.D2. There is no seal of the

hospital on Ex.D16 which is the dying declaration.

13. He further contended that all panch

witnesses including relatives of the deceased have

turned hostile except official witnesses. Thereby,

benefit of doubt ought to have been given to accused

No.1 and he ought to have been acquitted.

Alternatively, he further contended that the accused and

the deceased were very cordial as admitted by the

deceased in her dying declaration and out of their

wedlock, they had two children. Only one year prior to

the incident, accused No.1 started demanding money of

Rs.3,000/- for consuming alcohol and playing cards.

When she refused, he complained to his brother-

accused No.2. Thereafter, again he demanded to get

the land transferred into her name from her parents,

when she refused, he was provoked, poured kerosene

and lit the fire. It was due to sudden provocation which

made the accused No.1 to lost his self control.

Unfortunate incident had occurred due to only sudden

provocation and the same is not done with any

intention. Thereby, it is a clear case falls under the

provisions of Section 304 Part I and not under the

provisions of Section 302 of IPC. The said aspect is not

considered by the learned Session Judge. Therefore, he

sought to allow the appeal filed by accused No.1.

14. In support of his contention, learned counsel

for the appellant-accused No.1 relied upon the dictum of

the Hon'ble Supreme Court in the case of Surinder

Kumar Vs. State of Haryana reported in 2011(10)

SCC 173 at paragraph-14, which reads as under:

"Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co-tenants in the same premises, their statements were not recorded which means that nobody supported the version the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in

basing conviction on it, without corroboration. It is the duty of the court to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal."

15. Sri P.Nataraju, learned counsel for the

appellants-accused Nos.2 to 5 in Crl.A.No.1110/2016

contended with vehemence that the impugned

judgment of conviction and order of sentence passed by

the learned Session Judge, convicting accused Nos.2 to

5 to undergo simple imprisonment for a period of three

months with fine for the offence punishable under

Section 498A of IPC, is erroneous, contrary to the

material on record and cannot be sustained. He further

contended that the trial Court proceeded to convict

accused Nos.2 to 5 based on inconsistent and unreliable

testimony of official witnesses, is improper. Absolutely,

none of the independent witnesses have supported the

case of the prosecution. He further contended that the

accused persons were residing separately from accused

No.1 and they have not at all involved in the alleged

offence. The prosecution has failed to prove beyond all

reasonable doubt that the involvement of the accused

Nos.2 to 5 in the homicidal death of the deceased and

there are omissions and contradictions in the

prosecution witnesses, thereby, absolutely, there is no

material on record as against accused Nos.2 to 5 for the

offence punishable under the provisions of Section 498A

of IPC as accused Nos.2 to 5 were residing separately.

Accused No.1 and the deceased were residing

separately from accused Nos.2 to 5 and they were lived

cordially more than 9 years. When the unfortunate

incident had occurred, accused Nos.2 to 5 were not

staying together along with accused No.1 and the

deceased. They have been falsely implicated, thereby,

the learned Session Judge has not justified in convicting

accused Nos.2 to 5 under the provision of Section 498A

of IPC. He further contended that all the witnesses to

the Mahazar and the relatives of the deceased especially

PWs.11, 12, 15 and 16 who are the sister, brother and

father of the deceased were turned hostile. Therefore,

he sought to allow the appeal filed by the accused Nos.2

to 5.

16. Per contra, Sri Vijayakumar Majage, learned

Additional SPP, appearing for the respondent/State

while justifying the impugned judgment of conviction

and order of sentence passed by the learned Session

Judge, contended that PW.1 in categorical terms

deposed about the torture given by accused Nos.1 to 5

to the deceased and in Ex.P16-dying declaration, she

has specifically stated with regard to the involvement of

accused Nos.1 to 5 in the crime on the date of incident

and the assault made by them on the deceased. The

trial Court considering both oral and documentary

material on record as well as medical evidence has

rightly come to the conclusion that accused No.1, who is

the husband of the deceased has committed the offence

under the provisions of Section 302 of IPC and accused

Nos.2 to 5 have committed the offence under the

provisions of Section 498A of IPC. Though the learned

Session Judge, while convicting accused No.1 under

Section 302 of IPC has not imposed the fine amount as

it was mandatory and the State has not filed any appeal

for non-imposition of fine amount, thereby, he has

sought to dismiss both the appeals.

17. In view of the aforesaid rival contentions

urged by the learned counsel for the parties, the points

that would arise for our consideration in the present

appeals, are:

1. "Whether accused No.1-Srinivasa @ Seena, the husband of the deceased in Crl.A.No.252/2018 has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused No.1 for imprisonment of life under the provision of Section 302 of IPC, in the peculiar facts and circumstances of the present case?

2. Whether accused Nos.2 to 5 in Crl.A.No.1110/2016 have made out a case to interfere with the impugned

judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused Nos.2 to 5 for imprisonment for a period of three months under the provision of Section 498A of IPC with a fine of Rs.10,000/- each, in the peculiar facts and circumstances of the present case?"

18. We have given our anxious consideration to

the arguments advanced by learned counsel for the

parties and perused the entire material including the

original records carefully.

19. This Court being the Appellate Court in

order to re-appreciate the entire evidence on record, it

is relevant to consider the evidence of prosecution

witnesses and material documents relied upon:-

a) PW.1 - Kenchaiah, the maternal uncle of the

deceased, who is residing at Malliyuru Village,

where the incident occurred, deposed that about 3

to 4 months prior to the incident, accused No.4

had assaulted the deceased on her head and

caused injuries. After hearing about the present

incident through Lakshmamma, he went to the

house of the deceased and shifted the deceased to

K.R.Hospital, Mysuru. The Thasildar came and

enquired about the deceased Jyothi and recorded

the statement of the deceased before the doctor.

The said statement is called the dying declaration.

But, in examination-in-chief, he did not support

the fact. He was cross examined by the Public

Prosecutor and he was treated as hostile. It is

admitted that the prosecution case in its entirety

and vital suggestions are admitted by him. He

supported the case of the prosecution.

b) PW.2 - Annapurna, the neighbour of the deceased

failed to support the case of the prosecution,

thereby, she was treated as hostile.

c) PW.3 - Dollaiah, who is a villager and witness to

Ex.P3 - Spot Mahazar and Ex.P4-Inquest Report,

PW.4-Yajaman Dollaiha and PW.5-Siddaiah also

witness to Ex.P4-Inquest report, did not support

the case of the prosecution and turned hostile.

d) PW.6 - Shivanna, who deposed that he knows the

accused and the deceased. He further stated that

he does not know the facts of the case and does

not advise the accused to look after the deceased

properly. The police had not recorded his

statement, and thereby he turned hostile.

e) PW.7 - Battaiah, who deposed that he knows the

accused and the deceased but he did not know

the facts of the case and did not advise the

accused. He denied the police statement and did

not support the case of the prosecution and

turned hostile.

f) PW.8 - Doddaiah and PW.9 - Dollaiah also

deposed the same and did not support the case of

the prosecution and turned hostile.

g) PW.10 - Dr.Ravi N., who is the doctor, has

conducted the postmortem examination of the

deceased and has issued the PM report as per

Ex.P11. In his examination-in-chief, he deposed

that with regard to the injuries noticed by him on

the deceased. In cross examination by the

defence, it was elicited that he did not notice any

residue of kerosene and the deceased had

suffered first degree burns and supported the case

of the prosecution.

h) PW.11 - Kempamma, the sister of the deceased

who is also residing in the same village where the

incident had occurred. She is a lady who has

scant respect of truth deposed falsely that the

deceased was burnt due to the falling of kerosene

lamp. She further stated that the police had not

recorded her statement. Thereby, she has

supported the case of the prosecution.

i) PW.12 - Thimmaiah the brother of the deceased

who deposed that both the accused No.1 and the

deceased were happily leading life and did not

support the case of the prosecution and turned

hostile.

j) PW.13 - Dr.B.S.Madhu, who is the Medical Officer,

K.R.Hospital, Mysuru, who deposed that on

16.01.2012 at about 4-15 p.m., the Thahasildar,

Sri Manjunath Swamy came to the hospital and

sought report as to whether the injured was in fit

condition to give a statement. Accordingly, the

doctor examined her and gave a report that she

was fit to give a statement. The Tahsildar-PW.17

recorded the statement of the injured as per

Ex.P16 during 4-30 to 5-00 p.m., at that time, he

was also present there. Thereafter, he certified

that injured Jyothi was in a fit state of sound mind

and conscious at the time of giving the statement

and he supported the case of the prosecution.

k) PW.14 - Rajamma one of the panch witnesses to

the Inquest Panchanama as per Ex.P4, has

deposed that she does not know the content of

Ex.P4 and not supported the case of the

prosecution.

l) PW.15 - Puttaswamy, who is the father of the

deceased and deposed that he does not know the

cause of the death of the deceased-Jyothi as

accused No.1 treated his daughter well. Thereby,

he has not supported the case of the prosecution

and turned hostile.

m) PW.16- Sudeep, the brother of the deceased, did

not support the case of the prosecution and was

treated as hostile.

n) PW.17 - Dr. B.S.Manjunathaswamy, the Tahsildar,

who recorded the statement of the deceased in

the hospital at Mysuru and supported the case of

the prosecution.

o) PW.18 - H.P.Raviprasad, the Deputy Tahsildar,

who deposed that he went along with the

Tahsildar on 16.01.2012 to K.R.Hospital burnt

ward and supported the case of the prosecution.

p) PW.19 - M.Mahadevaiah M., PSI, who received

dying declaration as per Ex.P16 at about 6.30

p.m. and registered FIR in Crime No.13/2012 as

per Ex.P21 FIR for the offence under the

provisions of Sections 498A, 114, 307 read with

Section 149 of IPC and conducted the Spot

Mahazar as per Ex.P3 and Ex.P4 and supported

the case of the prosecution.

q) PW.20 - Shivanna, who is the Head Constable of

Bannur Police Station, deposed that he received

the MLC Report and later received the dying

declaration as per Ex.P16 and supported the case

of the prosecution

r) PW.21 - Sundar Raj, the Investigating Officer,

who has conducted further investigation and

recorded a statement of PW-1 and the statement

of CWs.2, 3, 11 to 14, 15 and 16 and secure the

assessment Extract as per Ex.P14, sketch of the

spot as per Ex.P15 and the report as per Ex.P22.

      Thereby,        he    supported      the     case       of        the

      prosecution.

Based on the aforesaid oral and documentary

evidence on record, the learned Sessions Judge has

proceeded to convict accused No.1 under the provisions

of Section 302 of IPC and accused No.2 to 5 under the

provisions of Section 498A of IPC.

20. It is an undisputed fact that the case was

registered in Crime No.13/2012, initially, for the

offences punishable under Sections 498A, 307, 114 read

with Section 34 of IPC, based on the statement of the

deceased. Subsequently, after the death of the

deceased, the said statement is called as dying

declaration as per Ex.P16 wherein, it is specifically

stated by the deceased that she was married to accused

No.1-Srinivasa @ Seena about 10 years back. They

were lived happily for more than 9 years and out of

their wedlock they had two children (male and female).

One year prior to the incident, accused No.4-

Mangalamma used to pick-up quarrels on petty issues

and assaulted the deceased on her head. The same was

informed to the Police, they advised them to live

cordially. Thereafter, accused No.1 used to get enraged

for every talk and having consumed alcohol and used to

assault daily. Hence, the deceased was leading a life

suffering with pain. Three days prior to the incident,

Beereshwara fair was about to commence. When

accused No.1 demanded a sum of Rs.3,000/- for playing

cards, the deceased refused to give money and he

complained the same to his brother-accused No.2, who

provoked accused No.1 to kill her. Thereafter, the

mother-in-law of the deceased-accused No.3, the sister-

in-law of the deceased-accused No.4 and the husband

of the sister of accused No.1-accused No.5, assaulted

her and demanded to get the land transferred in the

name of deceased from her parents. She refused, on

16.01.2012 at 7.00 a.m., when she was sleeping as she

was not feeling well, accused No.1 came and pestered

her to give the money again, for which she refused. This

provoked him to kill her, thereby, he poured kerosene

over her and lit the fire and she was burnt.

21. The dying declaration as per Ex.P16 was

recorded by the Tahsildar-PW.17 on confirming that the

victim was in a 'fit state of mind' to give her statement.

On the basis of requisition made, PW.13-the Doctor,

who gave a fitness certificate on the very same day

certifying that the deceased was in a 'fit state of sound

mind', she was conscious and she was capable of giving

a statement. Accordingly, the statement of the victim

was recorded. Thereafter, she died due to burn injuries.

Thereby, the provisions of Section 307 of IPC were

converted into the provisions of Section 302 of IPC

along with the other provisions made in the charge.

22. Except the dying declaration, there is no

other corroborative evidence to prove that accused

Nos.2 to 5 were residing along with accused No.1 and

deceased. Even, Ex.P16-dying declaration does not

depict accused Nos.2 to 5 were residing together. The

evidence of the prosecution witnesses depicts that

accused Nos.2 to 5 residing separately, except accused

No.3-the mother-in-law of the deceased, who was

residing along with accused No.1 and the deceased. All

the witnesses, in categorical terms, deposed that the

accused No.1 and the deceased were happily living

more than 9 years and they have got two children out of

their wedlock,. PW.13-Doctor, who issued fitness

certificate, has specifically stated that on 16.01.2012,

the deceased was in K.R.Hospital, Burnt ward, at about

4.30 p.m. by that time, PW.17- the Tahsildar has also

come to the hospital and enquired about the fitness of

the deceased-Jyothi to give statement. After examining

her, the Doctor certified that she was in a 'fit state of

sound mind'. Accordingly, PW.17-Tahsildar recorded

her statement from 4.30 p.m to 5.00 p.m in the

presence of the Doctor. Subsequently, it became a

dying declaration. Nothing has been elicited in the cross

examination to believe that the statement was not

recorded by PW.17-Tahsildar on that day and she was

not subjected to fit state of sound mind to give the

statement.

23. The Doctor issued a postmortem report as

per Ex.P11 wherein he has opined that the cause of

death was due to specticaemia. As a result of burns

sustained to an extent of 55% to 60%. PW.1, PW.11,

PW.12, PW.15 and PW.16, the sister, brothers, and

father of the deceased turned hostile and did not

support the prosecution case. Though the contention

raised by the learned counsel for the appellant-accused

No.1 that the deceased sustained 55% to 60% of burnt

injuries and was unable to give the dying declaration as

alleged, it cannot be accepted in view of the categorical

statement made by PW.13-the doctor, which

corroborates the dying declaration as per Ex.P16 and PM

report as per Ex.P11. Even though, the burnt injuries

sustained by the deceased were to an extent of 55% to

60%, she was still capable of giving dying declaration as

per the statement of PW13-the Doctor, who issued the

fitness certificate. In Ex.P16-dying declaration, and

PW.17-the Tahsildar, who recorded the statement-cum-

dying declaration, our view is fortified by the dictum of

the Hon'ble Supreme Court in the case of Supreme

Court in the latest judgment in the case of

Purshottama Chopra Vs. State (Govt. of NCT Delhi)

reported in AIR 2020 SC 476 wherein at paragraphs-

21 and 23.2, it is held as under:

"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:--

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

ii) 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.

iii) 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.

iv) 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.

v) 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

vi) 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.

vii) 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.

viii) If after careful scrutiny, the Court finds he 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."

"23.2. It is also noteworthy that in Ex.PW-8/A, the doctor PW-8 Sushma mentioned all other features relating to the medical condition of the patient and recorded that he had suffered burn injuries involving whole of the body surface area-100% deep burn'. However and even while mentioning that the general condition of the patient was 'critical', it was also recorded in Ex. PW-8/A that the patient was 'conscious, oriented'. It is but clear from the contents of Ex. PW-8/A about the condition of the victim Sher Singh that though the doctor found him to be in critical condition with 100% deep burns yet, he was conscious and oriented. In other words, he was neither unconscious nor disoriented. In yet other words, he was neither insensate nor confused. Such significant noting about the mental faculties of the victim at the time of giving out the narratives to the doctor makes it clear that even when he was suffering from the agony of 100% deep burns, he was not in an unfit state of mind; and there appears no reason to disbelieve his first version as recorded in Ex. PW-8/A.

Testimony of PW-16 and the contents of Ex. PW- 16/B"

24. Thereby the contention of the learned

counsel for the appellant-accused No.1 that she

sustained burnt injuries and was not in a fit state of

sound mind and consciousness and fully oriented to give

statement, cannot be accepted. In view of the dying

declaration as per Ex.P16 made by the deceased-Jyothi

and recorded by PW.17-Tahsildar in the presence of

PW.13-Doctor, who certified that the deceased was in fit

state of sound mind and conscious to give statement

and most of the prosecution witnesses including PW.1,

PW.11, PW.12, PW.15 and PW.16, the sister, brothers

and father of the deceased turned hostile and did not

support the prosecution case, the facts remains that in

the absence of any other collaborative evidence, there

can be conviction relying upon the dying declaration. If

the Court is satisfied that dying declaration is true and

valid and it can be basis of conviction without any

corroborative evidence, our view is fortified by the

dictum of the Hon'ble Supreme Court in the case of

State of UP Vs. Veerpal and Another reported in

2022 SCC online SC 129 at paragraph-24, it is held

as under:

"24. Now, on the aspect, whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in the case of Munnu Raja & Anr. (supra) and the subsequent decision in the case of Paniben (Smt) V. State of

Gujarat, (1992) 2 SCC 474 are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in the cases of State of Uttar Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211. Therefore, there can be a conviction solely based upon the dying declaration without corroboration. Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958 SCR 552 is a watershed judgment on the law on the evidentiary value of dying declarations. This Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without Corroboration."

25. It is also well settled that the statement of

victim consisting of her last words before her death is

presumed to be truthful and not inflicted any motive

against her husband, who were living cordially for more

than nine years and had two children out of their

wedlock. The dying declaration is therefore admissible in

evidence on principle of necessity as there is very little

hope of survival for the maker and if found reliable, it

can certainly form the basis of conviction. It is stated in

the dying declaration by the deceased that the deceased

refused to pay the money demanded by accused No.1,

he provoked and poured kerosene and lit the fire. PW.1

has also deposed very curiously about the presence of

accused No.1 and accused No.1 has taken defence that

he went to Beemeshwara fair, whereas, the dying

declaration made by the deceased clearly depicts that

the Beemeshwara fair would commence after three days

from the date of the unfortunate incident, thereby, he

has taken alibi, once the prosecution proved its initial

burden, it governs the accused to discharge the plea of

alibi taken as defence under Section 313 of Cr.PC

statement, in view of Section 103 of the Indian

Evidence Act, 1872 as held by the Hon'ble Supreme

Court in the case of State of Hariyana vs. Sher Singh

and others reported in AIR 1981 SC 1021 at

paragraph-4, it is held as under:

"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

26. When the material on record clearly depicts

that accused No.1 and the deceased lived happily as

husband and wife for more than nine years and had two

children out of their wedlock, it is the duty of the

accused-husband, to offer explanation under Section

313 of Cr.PC statement as to how his wife died, but he

denied all the incriminating circumstances in toto having

not offered the explanation, thereby, an adverse

inference has to be drawn against the accused. Our

view is fortified by the dictum of the Hon'ble Supreme

Court in the case of Prahlad vs. State of Rajasthan

reported in (2020)1 SCC Crimes 381 at paragraph 11,

wherein, it is held as under:

"No explanation is forthcoming from the statement of

the accused under section 313 Cr.P.C as to when he

parted the company of the victim. Also, no explanation

is there as to what happened after getting the

chocolates for the victim. The silence on the part of the

accused, in such a matter wherein he is expected to

come out with an explanation, leads to an adverse

inference against the accused."

Thereby the prosecution proved beyond all

reasonable doubt with regard to the involvement of the

accused in the homicidal death of the deceased.

27. A careful consideration of Ex.P16 is the

basis for initiation of the crime against accused Nos.2 to

5 which becomes a complaint. Except, the statement

that accused Nos.2 to 5 assaulted her and accused

No.2, provoked accused No.1, nothing has been placed

on record by the prosecution to show that the constant

harassment of the deceased by accused Nos.2 to 5 i.e.

the mother-in-law and the sister-in-law of the deceased,

sister of the accused No.1 and husband of accused

No.4. Admittedly, accused Nos.2 to 5 and the deceased

were residing separately. Ex.P16-dying declaration

does not depict that they were residing together except

the mother-in-law-accused No.3. The deceased

categorically deposed in her statement before PW.17-

the Tahsildar and PW.13-the doctor that she refused to

give money as demanded by her husband, who

provoked, poured kerosene and lit the fire. There is no

other material to prove that the involvement of accused

Nos.2 to 5 against whom the charge framed under

Section 498A of IPC. None of the prosecution witnesses

including the relatives of the deceased, i.e. PW.1,

PW.11, PW.12, PW.15 and PW.16, the sister, brothers

and father of the deceased, though turned hostile,

whispered anything about the cruelty and harassment

by accused Nos.2 to 5. Learned Session Judge has

proceeded to convict accused Nos.2 to 5 only based on

the dying declaration as per Ex.P16 even though all the

prosecution witnesses including mahazar witnesses

turned hostile. Though charge was framed against

accused No.2 under the provisions of Section 114 of

IPC, the trial Court has acquitted accused No.2 for the

said offence. Admittedly, the State has not filed any

appeal against the said acquittal order. Even the State

has not filed any appeal for an enhancement of

punishment against accused Nos.2 to 5 imposing

punishment under the provisions of Section 498A of

IPC.

28. It is not in dispute that while convicting

accused No.1 under the provisions of Section 302 of

IPC, the learned Session Judge ought to have to impose

fine which is mandatory. Unfortunately, the learned

Session Judge has not imposed any fine and the State

also not filed any appeal for non imposition of fine

amount under the provisions of Section 302 of IPC.

29. On re-appreciation of the entire material on

record, both oral evidence and documentary evidence

which clearly depicts that accused No.1 and the

deceased were leading a happy life for more than 9

years, the unfortunate incident occurred three days

prior to Bheemeshwara fair in their village. Accused

No.1 is none other than the husband of the deceased,

who demanded a sum of Rs.3,000/- but the deceased

refused to give. Again, he demanded the same, when

she refused, he provoked and poured the kerosene and

lit the fire, thereby, she burnt about 50% to 60%. The

facts remains that for more than nine years, there was

no complaint against accused No.1 or accused Nos. 2 to

5 about the harassment or cruelty. The unfortunate

incident occurred only when accused No.1 demanded

money for playing cards and consume alcohol, when she

refused, the accused No.1 he provoked and the

unfortunate incident occurred, thereby, it is a clear case

falls under Exception 1 of Section 300 of IPC, which

reads as under:-

"Exception 1: When culpable homicide is not murder.

Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."

30. A careful reading of the said provision

makes it clear that the culpable homicide is not murder,

when an offender, while deprived of the power of self-

control, by grave and sudden provocation, causes the

death of the person who gave the provocation or causes

the death of any other person by mistake or accident is

not amount to murder. Admittedly, in the present case,

the deceased was a wife, who refused to pay money to

the accused demanding of Rs.3,000/- for playing cards

and to consume alcohol, thereby, she provoked accused

No.1, who lost self control and poured kerosene and lit

the fire.

31. In view of the peculiar facts and

circumstances of the case, it is clear case falls under the

provisions of Section 304 Part I of IPC and not under

the provisions of Section 302 of IPC. The said aspect of

the matter has not at all been considered by the learned

Sessions Judge. As already stated supra, absolutely,

there is no material on record to show about

harassment made by accused Nos.2 to 5 from the

beginning till the occurrence of the unfortunate incident

except her statement-cum-dying declaration as per

Ex.P16 wherein it is stated that accused Nos.2 to 5

assaulted her. None of the witnesses supported the

case of the prosecution about the cruelty and

harassment by accused Nos.2 to 5 to the deceased.

Admittedly, there is no complaint for more than 10

years against accused Nos.2 to 5. The said aspect of

the matter has not at all been considered by the learned

Session Judge, thereby, erroneously convicting accused

Nos.2 to 5 under the provisions of Section 498A of IPC,

which cannot be sustained.

32. It is the duty of the husband to take care of

his wife, who came from the other family with great

expectations and a voluminous dream in her life. It is

also the duty of the husband to take care her in all

fairness. Accordingly, the accused and deceased were

living happily for more than 9 years and having two

children out of their wedlock. Absolutely, there is no

whisper about prior antecedents and it was duty of the

husband to ensure there should not be any cruelty and

harassment to his wife who gave oath (Saptapadhi) at

the time of marriage. In this case, accused No.1 being

husband of the deceased, has not done his duty as a

dutiful husband, thereby, he involved in the homicidal

death of the deceased due to sudden provocation after

nine years of marriage.

33. For the reasons stated above, the first point

raised in the present appeals is answered partly in the

affirmative holding that the accused has made out a

case to interfere with the impugned judgment of

conviction and order of sentence passed by the learned

Sessions Judge, convicting accused No.1 for rigorous

imprisonment for life under the provisions of Section

302 of IPC and has made out a case to modify the said

Section into Section 304 Part I of IPC. Consequently,

accused No.1 has not made out any ground to interfere

with the impugned judgment of conviction and order of

sentence passed by the trial Court under the provisions

of Section 498A of IPC.

34. The second point raised in the present

appeals is answered in the affirmative holding that

accused Nos.2 to 5 have made out a case to interfere

with the impugned judgment of conviction and order of

sentence passed by the learned Sessions Judge,

convicting the accused for simple imprisonment for a

period of three months under the provisions of Section

498A of IPC.

35. In view of the above, we pass the following:

OPERATIVE PORTION OF THE JUDGMENT

I - In Criminal Appeal No.252/2018

(i) The Appeal filed by the appellant/accused No.1 is hereby allowed in part.

(ii) The impugned judgment of conviction and

order of sentence dated 27.05.2016 passed

by learned II Additional Sessions Judge,

Mysuru, made in S.C.No.249/2012,

convicting accused No.1 under the

provisions of Sections 302 of IPC is hereby

modified.

(iii) Accused No.1 is convicted for rigorous

imprisonment for a period of 10 years under

the provisions of Section 304 Part I of IPC

with a fine of Rs.50,000/-, in default, he has

to undergo further rigorous imprisonment

for a period of 2½ years.

(iv) The conviction of accused No.1 under the

provisions of Section 498A of IPC is hereby

confirmed.

(v) Both the sentences shall run concurrently.

(vi) In view of the provisions of Section 357(3)

of Cr.P.C., it is directed that, out of the fine

amount realized from accused No.1, a sum

of Rs.25,000/- (Rupees Twenty Five

Thousand only) shall be deposited in the

names of each of the children of the

deceased and accused No.1, in any

nationalized Bank for a period of five years

or till they attain the majority, which ever is

earlier.

(vii) In view of the provisions of Section 357(A)

of Cr.P.C., we deem it appropriate to refer

the matter to the District Legal Service

Authority to award compensation of

Rs.1,00,000/- each in favour of children of

the deceased-Jyothi, if not already

deposited.

II - In Criminal Appeal No.1110/2016

(i) The Appeal filed by the appellants/accused

Nos.2 to 5 is hereby allowed.

(ii) The impugned judgment of conviction and

order of sentence dated 27.05.2016 passed

by II Additional Sessions Judge, Mysuru,

made in S.C.No.249/2012, convicting

accused Nos.2 to 5 under the provisions of

Section 498A of IPC and sentencing them to

undergo simple imprisonment for a period of

three months with fine of Rs.10,000/- each

is hereby set aside.

(iii) Accused Nos.2 to 5 are hereby acquitted for

the offence under the provisions of Section

498A of IPC, and the bail bonds, if any, shall

stand cancelled.

(iv) If the fine amount already deposited, the

same shall be returned to accused Nos.2 to

5, with a hope and trust with the accused

Nos.2 to 5 shall invest the said amount to

the children of the deceased and accused

No.1.

Sd/-

JUDGE

Sd/-

JUDGE KTY