State Of Karnataka vs Bheemraju
2022 Latest Caselaw 7406 Kant

                             1
                                                R

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 25TH DAY OF MAY, 2022

                        PRESENT

        THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                          AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR


          CRIMINAL APPEAL NO.308 OF 2015
BETWEEN:
State of Karnataka
By Kunigal Police Station-572130.
                                              ...Appellant
(By Smt. Rashmi Jadhav - HCGP)

AND:
1.   Bheemraju
     S/o. Bhhemaiah
     Age: 28 years
     Occ: Auto Driver
     R/o: Uppara Beedhi
     Kunigal Town-572130.

2.    Prema
      W/o. Srinivasa
      Aged 34 years
      Occ: Coolie
      R/o: Uppara Beedhi
      Kunigal Town-572130.
                                           ...Respondents

(By Sri. Vikhyath .B - Advocate for
    Sri. S. Shankarappa - Advocate for R-1 & R-2)
                              2


      This Criminal Appeal filed under Sec.378(1) and (3) of
Criminal Procedure Code, praying to i) grant leave to
appeal against the judgment and order dated 11.09.2014
passed by the Fast Track Judge, Tumkur in Sessions Case
No.141 of 2012 acquitting the Respondents for the offence
punishable under Sections 498A, 304B, 302 r/w 34 of IPC
and under Sections 3 & 4 of D.P. Act r/w Section 34 of
IPC; ii) set aside judgment and order dated 11.09.2014
passed by the Fast Track Judge, Tumkur in Sessions Case
No.141 of 2012 acquitting the Respondents for the offence
punishable under Sections 498A, 304B, 302 r/w 34 of IPC
and under Sections 3 & 4 of D.P. Act r/w Section 34
of IPC.


      This criminal appeal coming on for further argument
this day, K. Somashekar .J delivered the following:


                     JUDGMENT

The State has preferred this appeal challenging the

judgment of acquittal rendered by the Trial Court in

S.C.No.141/2012 dated 11.09.2014 acquitting the accused

for offences punishable under Sections 498-A, 302, 304B

read with Section 34 of the IPC, 1860, besides Sections 3

and 4 of the Dowry Prohibition Act, 1961. This appeal is

filed by the State seeking to consider the grounds urged

and to set aside the judgment of acquittal rendered by the

Trial Court and consequently to convict the respondents /

accused for the aforesaid offences.

2. Heard the learned HCGP Smt. Rashmi Jadhav for

the State / appellant and so also learned counsel Shri

Vikhyath B on behalf of learned counsel Shri S.

Shankarappa for Respondent Nos.1 and 2. Perused the

judgment of acquittal rendered by the Trial Court in

S.C.No.141/2012 dated 11.09.2014 and the evidence

adduced by the prosecution in respect of PW-1 to PW-15

and documents at Exhibits P1 to P16 inclusive of MO-1 to

MO-3.

3. Factual matrix of this appeal is as under:

It transpires from the case of the prosecution that

Accused No.1 / Bheemraju is none other than the

husband of the deceased Rashmi. The marriage of

Bheemraju and Rashmi was performed as on 10.04.2006

as per the customs prevailing in their society. During their

marriage, Rashmi's parents had provided dowry in terms of

gold jewellery. Subsequent to their marriage, both of them

are said to have led a happy marital life for a period of two

years. Accused No.1 / Bheemraju is none other than her

husband and Accused No.2 / Prema, W/o. Srinivasa is her

sister-in-law. It is stated that both Accused Nos.1 and 2

had insisted Rashmi to bring dowry in terms of money

from her parental home. Also they were ill-treating her on

the ground that she did not beget a male child. On both

the counts, it is stated that Accused Nos.1 and 2 were

extending physical as well as mental harassment to

deceased Rashmi. It is stated that as on 19.09.2011 at

around 11.00 p.m., when the deceased was staying along

with her husband and child in a rented house, accused

No.1 had extended physical as well as mental harassment

to her on the ground that she did not beget a son and did

not fulfill his demand to bring money from her parents

house. Hence, with an intention to take away her life,

Accused No.1 / Bheemraju is said to have doused

kerosene over her person and lit the fire. As a result,

Rashmi sustained burning injuries over her person.

Firstly she was admitted to Kunigal Government Hospital

and was later shifted to Victoria Hospital, Bengaluru for

further treatment. However, while she was under

treatment in Victoria Hospital, she had succumbed to the

injuries as on 20.09.2011 at around 4.00 a.m. in the wee

hours.

4. In pursuance of the complaint filed by the

complainant, a case was registered and consequently FIR

was recorded as per Exhibit P9 by PW-13 being the

Investigating Officer in part. Subsequent to registration of

the crime, the I.O. had taken up the case for investigation

and thoroughly investigated the case and during the

course of investigation, the I.O. recorded the statement of

witnesses and also conducted seizure mahazar as well as

spot mahazar in the presence of panch witnesses and such

other material documents and complied with the

provisions of Section 173(2) Cr.P.C. and accordingly laid

the charge-sheet against the accused before the Committal

Court in C.C.No.1172/2011 for offences punishable under

Sections 498-A, 302, 304B read with Section 34 of the IPC,

1860, besides Sections 3 and 4 of the DP Act.

Subsequent to committing the case by the Committal

Court to the Sessions Court for trial, the case in

S.C.No.141/2012 was registered and assigned to the Fast

Track Court, Tumkur. The accused was secured by the

Trial Court and thereafter heard the arguments of the

learned Public Prosecutor and the defence counsel relating

to framing of charges whereby on prima facie material

being found against accused persons, charges were framed

against the accused, whereby the accused did not plead

guilty but claimed to be tried. Accordingly, it was also

recorded.

5. Subsequent to framing of charge by the Trial

Court, the prosecution was put on trial by subjecting to

examination PW-1 to PW-15 and got marked several

documents at Exhibits P1 to P16 and so also got marked

material objects, that is MO-1 to MO-3. Subsequent to

closure of the evidence of the prosecution, incriminating

statements appearing against the accused had been

recorded as contemplated under Section 313 Cr.P.C.,

whereby the accused had denied the truth of the evidence

of the prosecution adduced so far. Subsequently, the

accused were called upon to adduce the defence evidence

as contemplated under Section 233 Cr.P.C. But the

accused did not come forward to adduce any defence

evidence on their side.

Subsequent to closure of the evidence of the part of

the prosecution as well as the defence side, the Trial Court

heard the arguments advanced by the learned Public

Prosecutor and the learned defence counsel. On going

through the evidence of PW-6 being the Doctor in whose

presence the statement of the deceased Rashmi was

recorded as per Exhibit P3 while she was under treatment

in Kunigal Government Hospital and subsequent to her

death in Victoria Hospital, her statement has been termed

as 'Dying declaration', which is marked as Exhibit P3 and

based upon her statement, PW-13 / Channaiah S.

Hiremath being the I.O. in part, registered the case by

recording the FIR as per Exhibit P9. PW-11 / Arunkumar

being the Police Constable had recorded the statements of

deceased Rashmi as per Exhibit P3 and subsequent to her

death, the said statement has been treated as 'Dying

declaration'.

6. PW-14 being an I.O. in part, had conducted

investigation thoroughly by recording the statements of

witnesses and so also conducted mahazar in the presence

of Panch witnesses. Exhibit P1 is the spot panchanama

which was conducted by PW-14 in the presence of PW-1

and also PW-2 who have subscribed their signatures.

PW-15 being an I.O. had laid the charge-sheet against the

accused after completion of the investigation. These are

the evidence facilitated by the prosecution in order to prove

the guilt of the accused, whereby the Trial Court had

appreciated the aforesaid evidence in respect of those

material witnesses and rendered an acquittal judgment for

the offences under Sections 498A, 304B and 302 read with

Section 34 of the IPC and also Sections 3 and 4 of the DP

Act, whereby points for consideration have been raised by

the Trial Court relating to the aforesaid offences in respect

of the death of the Rashmi who had sustained burning

injuries over her person, which is indicated in the P.M

report at Exhibit P8 conducted by the Doctor being

examined as PW-12. These are all the evidence which have

been appreciated by the Trial Court after having gone

through the contents in Exhibit P1 of the spot

panchanama, contents in Exhibit P2 of the Inquest

mahazar drawn in the presence of PW-3 and also the dying

declaration at Exhibit P3 signed by deceased Rashmi. Her

statement was recorded by PW-11 in the presence of PW-6

being a Doctor and after her death, the same has been

treated as 'Dying Declaration'. Whereas in the said Exhibit

P3, PW-6 being the Doctor had made an endorsement

relating to physical as well as mental status of the victim

who had given statement as per Exhibit P3. But the

prosecution did not facilitate worthwhile evidence for

consideration relating to the ingredients of the offences

under Sections 498A, 304B and even alternatively Section

302 read with Section 34 of the IPC inclusive of Sections 3

and 4 of the DP Act that with a common intention, both

Accused Nos.1 and 2 had given physical as well as mental

harassment to the deceased Rashmi who is none other

than the wife of Accused No.1 / Bheemraju. However,

prior to her marriage with the accused Bheemraju, that

there was love affair in between Rashmi and accused

Bheemraju. But subsequently their marriage was got

arranged by elders and was performed as per the customs

prevailing in their society. Whereas Bheemraju was by

avocation an autorickshaw driver to eke out his livelihood.

The deceased Rashmi, her husband and child were staying

for rent in the house of PW-1 Lokesha. Accused No.2 /

Prema was the sister of Accused No.1 and also the sister-

in-law of deceased Rashmi. In her statement, the name of

Accused No.2 was also stated by the declarant namely

Rashmi, in view of which fact the said Prema was also

arraigned as the accused. Despite of criminal prosecution

being set into motion based upon her statement at Exhibit

P3 which is termed as dying declaration and recording FIR

at Exhibit P9 and in spite of the contents in the FIR and

mahazar at Exhibits P1 and P2, the Trial Court felt that

the prosecution had miserably failed to establish the guilt

against the accused beyond all reasonable doubt and

consequently has rendered an acquittal judgment by

assigning sound reasons, which is termed as justifiable

reasons in S.C.No.141/2012. It is this judgment which is

under challenge in this appeal by the State by urging

various grounds.

7. Learned HCGP for the State, namely Smt. Rashmi

Jadhav has taken us through the evidence of PW-6 being a

Doctor and PW-11 being a Police Constable and PW-13

being an Investigating Officer in part who recorded the FIR

as per Exhibit P9 who was also present along with PW-11

in Kunigal Government Hospital, when deceased Rashmi

was under treatment for having sustained burning injuries

as indicated in the PM report. But the deceased had given

statement as per Exhibit P3 while she was under

treatment in Government Hospital, Kunigal during

treatment provided by PW-6 / Doctor. However, she was

shifted to Victoria Hospital, Bangalore for further

treatment. While she was under treatment in Victoria

Hospital, the said Rashmi succumbed to the burn injuries.

Subsequent to the death of Rashmi, the statement

recorded at Exhibit P3 while she was under treatment in

Kunigal Government Hospital, has been termed as 'dying

declaration', since the same had been given by Rashmi in

the presence of PW-6 Doctor and also in the presence of

PW-13 being an I.O. in part. It is the contention of the

learned HCGP that their evidence has not been properly

appreciated by the Trial Court and moreover, that the Trial

Court has failed to consider the dying declaration contents

at Exhibit P3 given by the deceased in the Government

Hospital, Kunigal. PW-11 / Police Constable had recorded

the said statement at Exhibit P3 which is treated as 'Dying

Declaration' after her death. The same was recorded by

him in the presence of PW-6 / Doctor who was also

examined before the Trial Court to prove the guilt of the

accused. More so, speaks about the contents of the dying

declaration at Exhibit P3. These are all the evidence which

find place on the part of the prosecution. But the Trial

Court has failed to consider the contents at Exhibit P3 of

the dying declaration. However, the aforesaid evidence

finds corroborated with the evidence of PW-9 who is an

independent witness and who supports the case of the

prosecution. Despite of the material evidence, the same

was not considered by the Trial Court which had

ultimately rendered an acquittal judgment giving more

credentiality upon minor discrepancies, which has resulted

in a substantial miscarriage of justice.

8. The second limb of arguments advanced by the

learned HCGP for the State is by referring to the evidence

of PW-6 Doctor in Kunigal Government Hospital, in whose

presence deceased Rashmi, had given statement as per

Exhibit P3. Based upon her statement, criminal law was

set into motion by recording an FIR as per Exhibit P9. But

her statement has been treated as dying declaration after

her death in Victoria Hospital. In respect of offences under

Sections 498A, 304B, 302 of the IPC, points have been

formulated by the Trial Court based upon the charge-

sheeted material and also based upon the evidence

facilitated by the Trial Court. But Trial Court had given

more credentiality upon minor discrepancies and extended

the benefit of doubt in favour of the accused. Deceased

was firstly taken to Kunigal Government Hospital and

thereafter they had shifted her to Victoria Hospital for

further treatment to save her life. These are the evidence

which find place on the part of the prosecution. But the

Trial Court has misread the evidence and misinterpreted

the evidence on the part of the prosecution and has

rendered an acquittal judgment, which has resulted in a

substantial miscarriage of justice. Therefore, in this

appeal, it requires for consideration of the grounds urged

in this appeal and also requires for re-appreciation of the

evidence. If the same is not interfered, certainly the

gravamen of the deceased who had given statement as per

Exhibit P3 which has been treated as dying declaration

even tested under Section 32 of the Indian Evidence Act,

1872 with the truthful statement which has been given by

the deceased Rashmi who is none other than the wife of

Accused No.1 / Bheemraju and also sister-in-law of

Accused No.2 / Prema. Prema is the sister of the accused

No.1. Both these accused had given physical as well as

mental harassment to the deceased insisting her to bring

additional dowry from her parents house, despite of receipt

of gold jewellery during her marriage. These are the

contentions made by the learned HCGP for the State in

this appeal seeking for intervention by considering the

grounds urged and to set aside the judgment of acquittal

rendered by the Trial Court and consequently convict the

accused for offences punishable under Sections 498A,

304B or alternatively Section 302 read with Section 34 of

the IPC and so also for offences under Sections 3 and 4 of

the DP Act, 1961.

9. Learned counsel Shri Vikhyath for Respondent

Nos.1 and 2, had argued counter to the arguments

advanced by the learned HCGP for the State who had

referred to the evidence of PW-6 being the Doctor in whose

presence, the deceased Rashmi had given statement

marked as Exhibit P3 when she was under treatment in

Kunigal Government Hospital who was later shifted to

Victoria Hospital for further treatment, whereby she had

succumbed to the burn injuries sustained. Even taking

into consideration the evidence of PW-1 who had been

subjected to examination and taking into consideration the

contents of Exhibit P3 of the dying declaration and the

scenario mentioned in Exhibit P1 of the spot mahazar, it

does not mention anything about food being served.

Neither at Exhibit P13 property form or the spot mahazar

at Exhibit P1 and even Seizure mahazar it is nowhere

mentioned about the food being served and concerned

materials or even articles which found place in the scene of

crime during conducting the spot mahazar at Exhibit P1 in

the presence of PW-1 by the Investigating Agency, when

Exhibit P1 was purportedly conducted. It means that the

incident had not allegedly taken place as narrated as per

the statement given by the deceased Rashmi as per Exhibit

P3 which after her death has been termed as dying

declaration and even the test under Section 32 of the

Indian Evidence Act, but the prosecution did not facilitate

worthwhile evidence and even before the Trial Court has

facilitated several citations which are referred to as under:

i) 2014 (1) Crimes 195 (SC) in the case of Joshinder

Yadav vs. State of Bihar

ii) (2010) (14) SCC 444 in the case of China Shivaraj

vs. State of Andhra Pradesh

iii) 2012 Crl.L.J 3877 (SC) in the case of M. Sarvana

@ K.D. Sarvana vs. State of Karnataka.

Further, several citations have been referred to by

the Trial Court in paragraphs 108 to 116. These citations

have been facilitated by the prosecution to support their

evidence to prove the guilt of the accused. But the

prosecution did not facilitate worthwhile evidence. This

contention has been taken by the learned counsel for the

respondent / accused. Whereas the prosecution has

banked upon the evidence of PW-6 Doctor in whose

presence deceased Rashmi had given statement as per

Exhibit P3 and subsequent to her death, her statement

has been termed as dying declaration and evidence of

PW-11 being a Police Constable who recorded the

statement even in the presence of PW-13 being a P.S.I. who

is an I.O. in part whereby based upon her statement,

criminal law was set into motion by recording an FIR as

per Exhibit P9. PW-14 being the I.O. had thoroughly

investigated the case by recording the statement of

witnesses and also conducted the spot mahazar at Exhibit

P1 and conducted the inquest over the dead body by

responsible Taluk Executive Magistrate as per Exhibit P2

who was examined as PW-10.

10. PW-8 / Kumara and PW-9 / Gangappa have been

subjected to examination. But they did not support the

case of the prosecution and they have turned hostile and

thereafter have been subjected to cross-examination,

which finds place in their evidence itself. More so, their

evidence runs contrary to the evidence of PW-11 /

Arunkumar who had subscribed his signature to Exhibit

P3 who was by avocation as a Police Constable who

recorded her statement at Exhibit P3. PW-13 being an I.O.

in part who recorded an FIR as per Exhibit P9. But the

evidence of PW-11 and PW-13 runs contrary to the

contents at Exhibit P3 of the statement initially given by

the deceased Rashmi. But dying declaration has to be

carefully and meticulously scrutinized whether truthful

facts have been narrated. It is the inference under the

relevant provisions of the Indian Evidence Act, 1872. But

no worthwhile evidence has been facilitated by the

prosecution and the evidence of those witnesses have been

considered by the Trial Court and rendered an acquittal

judgment. Though several witnesses have been subjected

to examination on the part of the prosecution, merely

because of examination of certain witnesses cited in the

charge-sheet, it cannot be said that each and every

evidence is gospel truth on the part of the prosecution.

But evidence has to be weighed in a golden scale in respect

of each of the offences. But in the instant case, Sections

498A of IPC relating to physical as well as mental

harassment wherein death had occurred within 7 years

from the date of marriage and alternatively Sections 302

and 304B of the IPC and also for offences under Sections 3

and 4 of the DP Act were lugged against the accused. But

no ingredients have been established by the prosecution to

prove that the deceased Rashmi had been meted with

physical as well as mental harassment by her husband

Accused No.1 / Bheemaraj and also with the assistance of

her sister-in-law Prema who is arraigned as Accused No.2.

Subsequent to the marriage of the deceased Rashmi,

Bheemraju who is arraigned as Accused No.1 and by

avocation an autodriver were residing in the house of

PW-1. The said PW-1 being the owner, had entered into

the scene of crime, i.e., to their rented house when Rashmi

caught fire. At that time Bheemraju also had entered into

the house and PW-1 had informed him to go to the police

station and give information about the incident.

Accordingly, Bheemraju had been to the jurisdictional

police to inform the incident. But Accused No.1

Bheemraju who is none other than the husband of

deceased Rashmi had also sustained burn injuries on his

person, which indicates at Exhibit P14 of the Wound

Certificate issued by the Doctor. The same is collected by

PW-14 by laying the charge-sheet against the accused.

But PW-15 being an I.O. who laid the charge sheet

whereby he collected the photographs at Exhibit P15 and

marriage invitation card at Exhibit P16. Merely because

the aforesaid material documents have been secured by

the I.O. during the course of investigation, it cannot be

said that the prosecution has proved the guilt of the

accused beyond all reasonable doubt. But the Trial Court

has rightly come to the conclusion by appreciating the

evidence and assessing the entire evidence of the

prosecution which are material evidence stated supra, and

rightly rendered an acquittal judgment. The grounds

urged by the State by preferring an appeal by banking

upon the dying declaration at Exhibit P3 recorded in the

presence of PW-6 need not be considered unless there is

worthwhile evidence. The declaration given by the

declarant namely deceased Rashmi cannot be considered

to be gospel truth. On all these premise, learned counsel

for the respondents / accused emphatically submits that

the said grounds urged in this appeal do not have any

substance and there is no bone of contention in order to

re-visit the impugned judgment of acquittal rendered by

the Trial court and thus seeks for dismissal of this appeal

as being devoid of merits by confirming the acquittal

judgment rendered by the Trial Court. It is also contended

that there are no warranting circumstances even in respect

of the grounds urged by the learned HCGP for the State

who has preferred this appeal. Hence, learned counsel for

the respondents / accused seeks for dismissal of this

appeal as being devoid of merits.

11. Whereas keeping in view the contention made

by the learned HCGP by referring to the aforesaid

witnesses such as PWs.6, 11, 13 and 14 but the entire

case has been revolving around the evidence of those

witnesses. Criminal law was set into motion based upon

the statement of deceased - Rashmi as per Ex.P3 and

thereafter the crime came to be registered and the

investigating officer took up the case for investigation and

thoroughly investigation has been done and laid the charge

sheet against the accused in C.C.No.1172/2011. Whereas

deceased - Radha who died by sustaining burn injuries

over her person where accused No.1 Bheemaraju doused

kerosene on her person on the fateful day of 19.09.2011 at

around 11. p.m. whereby accused No.1 - Bheemaraju

alleged to have extended physical as well as mental

harassment to the deceased on the ground that she did not

beget the male child and she did not fulfill his demand to

bring additional dowry from her parents house. But

accused No.1 - Bheemaraju alleged to have doused

kerosene on her person and lit fire and as a result of that

she had sustained burn injuries over her person. But she

initially took treatment in Kunigal Government Hospital

and she gave statement as per Ex.P3. The same has been

recorded by PW.11 being the police constable in the

presence of PW.6 being a Doctor and also even in the

presence of PW.13 being the IO in part and whereby

recorded the FIR at Ex.P9. But deceased Rashmi was

shifted to Victoria Hospital for further treatment and while

she was on treatment in the said hospital she succumbed

to the injuries on 29.09.2011 at around 4.00 p.m. in the

wee hours. The reports of PW.13 has been marked as

Ex.P10 dated 12.11.2011 and P11 dated 27.11.2011.

PW.14 being the investigating officer who has done the

investigation thoroughly and he has secured the report as

per Ex.P12 whereby he has subscribed his signature and

even PF.No.140/2012 has been got it marked at Ex.P13

whereby PW.14 has subscribed his signature.

12. Ex.P14 is the wound certificate of accused No.1

- Bheemaraju whereby he made an endeavourance to save

his wife - Rashmi where she was in fire flames in the scene

of crime. PW.1 - Lokesha is the landlord wherein his

house was obtained on rental basis whereby deceased -

Rashmi and her female child inclusive of her husband -

Bheemaraju were residing there. But PW.1 - Lokesha who

got information that smoke was coming out from the

rented house whereby accused No.1 and his family

consisting of his wife and female child were staying. But

for the information from the wife of PW.1 - Lokesha and

that Lokesha who had been to the house noticed that

deceased - Rashmi was on fire flames and he also made

endeavourance to put off fire and in the meanwhile,

accused No.1 - Bheemaraju who is none other than the

husband of deceased - Rashmi had also entered and also

made endeavourance to put off the fire frame found on the

person of deceased - Rashmi. While at that time, he also

sustained injuries as per Ex.P14 injury certificate. PW.15

being the investigating officer who laid the charge sheet

against accused by securing photographs at Ex.P15 and

marriage invitation card at Ex.P16 relating to marriage of

deceased - Rashmi with accused No.1 - Bheemaraju. But

accused No.1 and deceased had fallen in love with each

other and even that deceased - Rashmi eloped with him

but specifically there was some arrangement of their

marriage and accordingly their marriage was performed on

10.04.2006 as per the customs prevailing in their society.

But during her marriage with him that her parents had

provided dowry in terms of golden jewellaries such as gold

ear studs, hangings and finger ring and subsequent to

their marriage that she had been to her husband's house

whereby she lead happy marital life with him for two years.

But subsequently that her husband and also her sister-in-

law who is arraigned as accused No.2 has given physical

as well as mental harassment on account of the fact that

she did not beget a male child and also she did not fulfill

their demand relating to additional dowry from her parents

house and accordingly, both accused Nos.1 and 2 had

given physical as well as mental harassment to deceased -

Rashmi. Accused No.1 by avocation was a Auto driver and

they were staying in a rented house of PW.1 - Lokesha at

Kunigal. The same finds place in the materials which

collected by the investigating officer during the course of

investigation and even deceased - Rashmi has given

statement as per Ex.P3 while she was under treatment in

Kunigal Government Hospital for having suffered with

burn injuries over her body. A person who is suffering

burn injuries on entire body will not scientifically have

stamina or even mentally prepared to give statement as

stated to have been recorded as per Ex.P3. Even at a

cursory glance of Ex.P3 of the statement given by

deceased- Rashmi while she was on treatment in

Government Hospital, Kunigal it was recorded by PW.11 -

police constable whereby he was accompanied with PW.13.

But it appears that she has not been specifically stated or

narrated how she sustained burn injuries or even dousing

kerosene over her person and fire got lit. Even she has not

stated in her statement anything that her husband -

Bheemraju who is arraigned as accused No.1 after setting

fire on her was running away from the scene of crime.

Even after committing such an offence that too dousing

kerosene over her person and setting ablaze and she has

also stated the presence of accused No.2 who is none other

than her sister-in-law. But one can infer that a person

who is suffering from burn injuries over the body will not

scientifically have stamina or even mentally prepared to

give statement continuously as she has stated in her

statement at Ex.P3. Even at a cursory glance of statement

of deceased - Rashmi which is termed as dying declaration

Ex.P3 and even after her death, but it has to be tested as

under Section 32 of the Indian Evidence Act where a

prudent man can infer that if the statement has been given

as per Ex.P3, nothing prevented the police agency from

securing the responsible Taluka Executive Magistrate to

record her statement even in the presence of Doctor - PW.6

as expeditiously. Even nothing prevented the police

agency from arraigning Bhagya also as a co-accused.

These are all the evidence that has been appreciated by the

trial Court while rendering the acquittal judgment. But

the reasons assigned by the trial Court are sound and also

justifiable. Even accused No.2 who is none other than the

sister of accused No.1 she was married and she lead her

happy marital life with her husband. Even at a cursory

glance of the post mortem report at Ex.P8 whereby it

indicates there were blue ink marks on both plantar

surfaces of big toes. Needle mark on dorsum of right

hand. But it does not speak of any ink on the left thumb.

If deceased - Rashmi had given a statement as per Ex.P3

in Government Hospital, Kunigal and affixed her LTM as

per Ex.P3 and even at the time of post mortem conducted

by the Doctor who conducted autopsy over the dead body

must have found the blue ink mark on her left thumb.

However, her left thumb mark has been got it marked as

Ex.P3(c). But there is no mentioning specifically of such

blue ink mark on the left thumb at Ex.P8 of the report

issued by the Doctor. These are all the material evidence

appreciated by the trial Court by considering the evidence

of PW.6 being the Doctor and in her presence PW.11 who

recorded statement of deceased as per Ex.P3 and

subsequent to her death it has been termed as dying

declaration.

13. PW.13 being the investigating officer in part

who recorded FIR as per Ex.P9 but he has stated in his

evidence as good as recorded the statement of Rashmi as

per Ex.P3 in the presence of PW.6. But having gone

through the evidence of PW.6, 11 and 13 in respect of

statement of deceased - Rashmi at Ex.P3 and whereby it

has to be termed as dying declaration but the LTM of

Rashmi at Ex.P3, it does not appears to be of a highly

educative person but below the endorsement of Ex.P3(d)

but PW.6 being Doctor who affixed her signature at

Ex.P3(b) it is her signature and she has written her name,

date and time. However, the entire case has been revolving

around the evidence of PW.6 and in her presence deceased

- Rashmi has given statement as per Ex.P3 and the same

has been recorded by PW.11 being the Police Constable

but subsequent to her death it is termed as dying

declaration and the same was recorded by PW.11 in the

presence of PW.6 - Doctor, PW.13 who had also

accompanied PW.11 to the Government Hospital, Kunigal

whereby deceased - Rashmi was got admitted in the

hospital by shifting in 108 van secured by PW.1 - Lokesha

who is the landlord. However, at a cursory glance of

evidence of PW.1 in respect of Ex.P1 and even the contents

in Ex.P2 - inquest mahazar which is conducted in the

presence of PW.3 who is the panch witness but PW.4 -

Ramakrishna H.R. is the father of deceased and PW.5 -

Renukamma is the mother of the deceased. But at a

cursory glance of evidence of PWs.4 and 5 coupled with the

evidence of PW.6 in respect of dying declaration at Ex.P3 it

founds to be inconsistent and contradictory to each other.

14. PW.10 - S.R.Krishnaiah is the Taluka Executive

Magistrate who conducted inquest over the dead body of

deceased. But PW.11 is the police constable whereby he

subscribed his signature at Ex.P3. But PW.12 being

Doctor who conducted autopsy over the dead body and

issued post mortem report as per Ex.P8 and indicates the

burn injuries inflicted over the person of deceased -

Rashmi. Whereas at Ex.P8 - PM report issued by the

Doctor who conducted autopsy over the dead body.

Though the burn injuries over her person are no doubt

said to be first and second degree burns but it is said to

present all over the body sparing the soles of the feet.

Therefore, a prudent man can infer that it is not the LTM

of deceased on Ex.P3. When it is not LTM of deceased on

Ex.P3 then it also means that deceased has not given such

kind of statement as per Ex.P3 and the same is recorded

by PW.11 being the police constable. But subsequent to

her death it is termed as dying declaration which has to be

tested under Section 32 of the Indian Evidence Act. PW.6

being the Doctor namely Manjula in her presence deceased

- Rashmi had given statement as per Ex.P3. She made an

endorsement stating that she was in a fit state of affairs to

give her statement and based upon questioning the injured

Rashmi as she had sustained burn injuries and those

witness noted down her statement which has been got it

marked at Ex.P3. Even the contents of Ex.P3 has been

read over to declarant - Rashmi who affixed her LTM on

Ex.P3. PW.11 being the police constable and PW.6 being

Doctor and in their presence statement of deceased -

Rashmi has been recorded as per Ex.P3 and thereafter, the

deceased was shifted to Victoria Hospital for further

treatment. The police constable who examined as PW.11

and accompanied by PW.13 being the PSI and in his

presence also Ex.P3 has been recorded. But the contents

of Ex.P3 are found to be and whereby she sustained

extensive burn injuries where she was not fit physically as

well as mentally to give statement by narrating as to how

she sustained injuries and how fire flame was found and

her husband Bheemaraj who had sustained burn injuries

over his body which indicated at Ex.P14. After information

of death of Rashmi her statement was termed as dying

declaration. Though the aforesaid material witnesses have

been subjected to thorough examination on the part of the

prosecution relating to elicitation of ingredients of Section

498A in respect of physical as well mental harassment and

also dowry death within a span of seven years from the

date of marriage with accused No.1 - Bheemaraju. But the

same has been raised by the trial Court alternatively for

Section 302 of IPC. Even Section 302 is concerned the

mensrea and actusrea are required to be acted upon and

required to be considered in respect of offence under

Section 302 of IPC. It is relevant to refer that credibility of

dying declaration that there cannot be no dispute that

dying declaration can be the sole basis for conviction,

however, such a dying declaration has to be proved wholly

reliable, voluntary, and truthful and further that the

maker thereof must be in a fit medical condition to make

it. The same has been extensively addressed by the

Hon'ble Supreme Court in a decision reported in Waikhom

Yaima Singh v. State of Manipur, JT 2011 (6) SC 355

equivalent decision reported in 2011 Crl.LJ.2673.

15. With regard to reliability of dying declaration, if

the dying declaration has been recorded in accordance

with law, is reliable and gives a cogent and possible

explanation of the occurrence of the events, then the dying

declaration can certainly be relied upon by the Court and

could form the sole piece of evidence resulting in the

conviction of the accused. The said issue has been

extensively addressed by the Hon'ble Supreme Court

reported in Bhajju vs. State of Madhya Pradesh (2012) 4

SCC 327.

16. Whereas Section 3 of the Indian Evidence Act,

1872 the domain vested with the trial Court relating to

appreciation of evidence facilitated by the prosecution and

even on the part of the defense side in respect of proved,

disproved and not proved. It is well-known principle of law

the reliance can be based upon even solitary statement of

witness if the Court comes to the conclusion that the said

statement is the true and correct version of the case of the

prosecution. This issue has been extensively addressed by

the Hon'ble Supreme Court in the case of Raja v. State

(1997) 2 Crimes 175 (Del).

17. Further in the case of State of Uttar Pradesh

v. Kishanpal, 2008 (8) JT 650 it is held that credentiality

must be given to the quality of evidence. It is the quality of

evidence and not quantity which is required to be judged

by the court to place credence on the statement of

witnesses. Further regarding plurality of witnesses in the

matter of appreciation of evidence of witnesses, it is not the

number of witnesses but the quality of their evidence

which is important, as there is no requirement in law of

evidence that any particular number of witnesses is to be

examined to prove/disprove a fact. It is a time-honoured

principle, that evidence must be and not counted. The test

is whether the evidence has a ring of trust, is cogent,

credible and trustworthy or otherwise. The legal system

has laid emphasis on value provided by each witness,

rather than the multiplicity or plurality of witnesses. It is

quality and not quantity, which determines the adequacy

of evidence as has been provided by Section 134 of the Act.

The same has been observed by the Hon'ble Supreme

Court reported in AIR 2013 SC 1204 of Laxmibai (Dead)

through LRs v. Bhagwantbura (Dead) through LRs.

18. In the instant case, even various grounds has

been urged by learned HCGP for State and whereby the

State has preferred appeal by challenging the acquittal

judgment rendered by the trial Court. Keeping in view the

evidence of witnesses such as PWs. 6, 11, 13 and 14, but it

is relevant to refer reliance of the Hon'ble Supreme Court

reported in Lalit Kumar Sharma And Ors. vs Superintendent

And Remembrancer of Legal affairs, State of West Bengal

(AIR 1989 SC 2134). The power of an appellate Court to

review evidence in appeal against acquittal is as extensive

as its power in appeal against conviction but appellate

Court should be slow in interfering with the order of

acquittal.

19. It is also relevant to refer the judgment of

Hon'ble Supreme Court reported in Sharad Birdhi Chand

Sarda vs State of Maharashtra reported in (1984) 4 SCC

116 wherein it is extensively addressed the issues insofar

as Indian Evidence Act, 1872 and so also, circumstantial

evidence and even benefit of doubt in detail. In para 162 it

is held as under:

"Moreover, in M.G.agarwal case this Court while reiterating the principles enunciated in Hanumant case observed thus:

If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.

In Shankarlal this Court reiterated the same view thus : [ SCC para 31, p.44: SCC (Cri) p. 322]

In para 163, the Hon'ble Supreme Court held as under:

"We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

20. Therefore, keeping in view the aforesaid

reliances and so also, keeping in view the reasons assigned

in the acquittal judgment rendered by the trial Court by

referring the aforesaid witnesses and also material

documents at Ex.P3 which is stated as dying declaration

as made by deceased -Rashmi who is no other than the

wife of accused No.1 - Bheemaraju, though the

prosecution has relied upon several reliances but having

gone through the evidence of those material witnesses and

whereby the prosecution has given more credentiality and

bank upon the evidence of those witnesses but the trial

Court has cautiously and meticulously appreciated the

evidence and come to the conclusion that there was

inconsistencies and contradictions in the theory of

prosecution and the prosecution has miserable failed to

prove the guilt against the accused with beyond all

reasonable doubt that accused No.1 - Bheemaraju doused

kerosene over the person of deceased - Rashmi and lit fire

by scratching match stick and causing death and it is to

be termed as dowry death within a span of seven years and

also extending physical as well as mental harassment and

also demanding additional dowry from her parents house

even after receipt of considerable dowry relating to

Sections 3 and 4 of the Dowry Prohibition Act. But in fact,

the prosecution has miserable failed to prove the guilt

against the accused by facilitating the worthwhile evidence

relating to ingredients of the aforesaid offences. Therefore,

in this appeal we are of the opinion that the trial Court has

rightly come to the conclusion by appreciating those

evidence and also assigning sound reasons and justifiable

reasons and rendered the acquittal judgment. In this

appeal even it requires revisiting the impugned judgment

of acquittal rendered by the trial Court and even for re-

appreciation of the evidence but there are no warranting

circumstances to interfere with the judgment of acquittal

rendered by the trial Court. Consequently, the appeal

deserves to be rejected being devoid of merits. Accordingly,

we proceed to pass the following:

ORDER

The appeal preferred by the appellant / State under

Section 378 (1) and (3) of Cr.P.C. is hereby rejected.

Consequently, the judgment of acquittal rendered by the

trial Court in S.C.No.141/2012 dated 11.09.2014 is hereby

confirmed.

Bail bond, if any, executed by the accused shall

stands cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

KS/DKB