The State Of Karnataka vs Sri Chinnappa
2023 Latest Caselaw 7262 Kant

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                                       CRL.A No.274 of 2017


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF OCTOBER, 2023
                             PRESENT
  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                               AND
         THE HON'BLE MR. JUSTICE ANIL B. KATTI


          CRIMINAL APPEAL NO.274 OF 2017 (A)


BETWEEN:
The State of Karnataka,
By K.R.Puram Police Station,
Bengaluru.

Represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru-1.                               .. Appellant

(By Sri. B.N. Jagadeesha, Addl. SPP)

AND:

Sri Chinnappa
S/o Nagappa,
Aged about 26 years,
R/at Church Road,
Swathantra Nagar,
K.R.Puram,
Bengaluru-560 049.

Native Place:
Peddagollahalli Grama,
Gudapalli Post,
Kuppam Taluk,
Chithoor District-516 259.                 .. Respondent

(By Sri. Basavaraju, T.A. Advocate)
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                                         CRL.A No.274 of 2017


      This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order dated 07.09.2016, passed by
the learned XLV Additional City Civil and Sessions Judge,
Bengaluru City in S.C.No.149/2015, thereby acquitting the
accused/respondent for the offences punishable under Sections
498A and 302 of IPC and set aside the judgment and order
dated 07.09.2016 passed by the learned XLV Additional City
Civil and Sessions Judge, Bengaluru City in S.C.No.149/2015,
thereby, acquitting the accused/respondent for the offences
punishable under Sections 498A and 302 of IPC, convict the
sentence the accused/respondent for the offences punishable
under Section 498A and 302 of IPC., by allowing the appeal in
accordance with law, in the interest of justice and equity.

     This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
22.09.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :


                         JUDGMENT

The present appellant as the State/complainant had

initiated a criminal proceedings against the respondent

arraigning him as accused for the offences punishable

under Sections 498A and 302 of the Indian Penal Code,

1860 (hereinafter for brevity referred to as 'IPC') in the

Court of learned XLV Additional City Civil and Sessions

Judge, Bengaluru City (hereinafter for brevity referred to

as 'the Sessions Judge's Court') in S.C. No.149/2015. After

the trial, the accused was acquitted of all the alleged

offences. Seeking setting aside of the impugned judgment

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dated 07.09.2016, the State has preferred the present

appeal under Sections 378(1) & (3) of the Code of Criminal

Procedure, 1973 (hereinafter for brevity referred to as

'Cr.P.C.).

2. The summary of the case of the prosecution

before the Sessions Judge Court was that, the accused,

who is the present respondent herein, is the husband of

deceased one Smt.Kavitha, (hereinafter referred to as 'the

deceased') whose marriage was performed on 09.11.2011.

After their marriage with each other, the accused was

subjecting 'the deceased' to physical and mental cruelty.

He was consuming alcohol everyday and used to quarrel

with the deceased. He was assaulting her and also was

abusing her in filthy language. That being the case, on the

date 20.09.2014, the accused after consuming liquor came

to his house and initiated quarrel with the deceased.

While quarreling he poured kerosene on his wife and

set fire on her. After some time, the accused himself shifted

his wife to Victoria Hospital, Bengaluru, where she

was admitted as an inpatient. While under

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treatment, on 26.09.2014, at 3.45 a.m. injured succumbed

to the injuries in the hospital.

It is also the prosecution case that after the injured

was admitted to Victoria Hospital at Bengaluru, based upon

MLC information received by them, the complainant-Police

visited the hospital on 21.09.2014 at 2.15 a.m. and

recorded the statement of the injured through its Assistant

Sub-Inspector of Police (PW-13), however, it was

registered in the complainant - Police Station in NCR

No.402A/2014. Thereafter, the Special Tahasildar of K.R.

Puram recorded one more statement of the injured on

22.09.2014, at 7.45 p.m. where, the injured was shown to

have stated that it was her husband i.e., the accused who

poured kerosene on her and put fire. As such, the said

statement of the injured was registered in complainant -

Police Station in their Station Crime No.544/2014 under

Section 307 of IPC against the accused. Later, after the

death of 'the deceased' as aforesaid, the complainant police

recorded the statement of one Sri. Keshavamurthy Son of

Narayanappa (PW-3), who is said to be the elder brother of

the deceased on 26.09.2014 and included the same in their

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Station's existing Crime No.544/2014, which was for the

offence punishable under Section 307 of the IPC and

substituted the offence from Section 307 IPC to Section

302 of IPC and proceeded with investigation. After

completing the investigation, the complainant police filed

charge sheet against the sole accused (respondent herein)

for the offence punishable under Sections 498A and 302 of

IPC.

3. Since the accused pleaded not guilty, the trial was

held, wherein, in order to prove the alleged guilt against the

accused, the prosecution got examined sixteen (16)

witnesses as P.W.1 to P.W.16 and got marked twentyone

documents from Exs.P.1 to P.21(a) and one Material object

M.O.1 was marked. Statement of the accused under Section

313 of Cr.P.C. was recorded. From the accused side, neither

any witness was examined nor any document was produced

as an Exhibit.

4. After hearing both sides, the learned Sessions

Judge's Court, by its impugned judgment dated 07.09.2016,

acquitted the accused of the offences charged against him.

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Challenging the same, the appellant-State has preferred the

present appeal.

5. The appellant -State is being represented by the

learned State Public Prosecutor and respondent is being

represented by his learned counsel.

6. The Sessions Judge's Court records were called

for and the same are placed before this Court.

7. Heard the arguments from both side. Perused

the materials placed before this Court and also the

Sessions Judge's Court records.

8. Learned Additional State Public Prosecutor for

the appellant in his argument submitted that there is no

dispute that the death of the deceased, which was on

26.09.2014, in the afternoon, was homicidal. The

evidence of PWs-7, 8 and 14 and Ex.P.8 proves that

deceased has given her dying declaration, which was

recorded by the Tahasildar, wherein, the deceased has

stated that she sustained burns due to accused pouring

kerosene upon her and lighting fire to it. The said dying

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declaration of the deceased was further corroborated by

the evidence of PWs-1, 2, 4, 5 and 6. Therefore, it stands

proved beyond doubt that it was the accused who had

intentionally caused the death of his wife (Smt.Kavitha)

and thus, has caused her murder.

9. Learned Additional State Public Prosecutor

further submitted that all the six witnesses from PWs-1 to

6 have uniformly stated that, prior to her death, the

deceased was being subjected to cruelty by the accused

regularly and repeatedly. Thus, it also stands proved that

the deceased was subjected to cruelty by the accused.

However, the Sessions Judge's Court without appreciating

the evidence in their proper perspective, has disbelieved

the second dying declaration at Ex.P.8 and held that there

was no sufficient evidence to prove the alleged guilt of the

accused, which has resulted it in passing an erroneous

judgment. With this, he prayed for allowing the appeal.

10. Per contra, learned counsel for the respondent

in his argument submitted that immediately after the

incident when the injured was admitted in the hospital, the

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police have recorded her statement which is her first dying

declaration. In the said dying declaration, at the earliest

point of time, the deceased has stated that being

disappointed, she herself has soaked with kerosene oil and

put fire to it. As per the doctor, the deceased when was

taken to hospital for treatment, has stated that it was she

who put fire to herself resulting in she sustaining burn

injuries. Thus, the alleged second dying declaration said to

have been recorded on the next day creates a serious

doubt and shows that the deceased was tutored by her

parents and family members. With this, he submitted that

the impugned judgment does not warrant any interference

at the hands of this Court.

11. After hearing the learned counsels from both

sides, the points that arise for our consideration are that:

1) Whether the prosecution has proved beyond reasonable doubt that the accused after his marriage with deceased Smt. Kavitha and till she sustaining burns on 20.09.2014 was subjecting her to both physical and mental cruelty and thereby has committed an offence punishable under Section 498A of IPC?

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2) Whether the prosecution has proved beyond reasonable doubt that the death of Smt. Kavitha which is said to have taken place on 26.09.2014, at 3.45 a.m. was homicidal?

3) Whether the prosecution has proved beyond reasonable doubt that the accused in his house located at Church Street of Swathanthra Nagar, K.R. Puram, Bengaluru, within the limits of complainant - Police Station, on 20.09.2014 at 9.30 p.m. having returned to home by consuming liquor, knowingly and with an intention to kill his wife Smt. Avitha, dowsed her with kerosene and lit fire to her with matchstick, due to which, she sustained burn injuries and succumbed to the same on 26.09.2014 at 3.45 a.m. while under treatment in Victoria Hospital at Bengaluru and thus, having committed the murder of said Smt. Kavitha has committed an offence punishable under Section 302 of IPC?

4) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

12. Before proceeding further in analysing the

evidence led in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of the

accused from the alleged offences punishable under

Sections 302 , and 498A of IPC. Therefore, the accused has

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primarily the double benefit. Firstly, the presumption under

law that, unless his guilt is proved, the accused has to be

treated as innocent in the alleged crime. Secondly, the

accused has already enjoying the benefit of judgment of

acquittal passed under the impugned judgment. As such,

bearing the same in mind, the evidence placed by the

prosecution in the matter is required to be analysed.

(a) Our Hon'ble Apex Court, in its judgment in the

case of Chandrappa and others -vs- State of

Karnataka, reported in (2007) 4 Supreme Court Cases

415, while laying down the general principles regarding

powers of the Appellate Court while dealing in an appeal

against an order of acquittal, was pleased to observe at

paragraph 42(4) and paragraph 42(5) as below:

" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme

Court Cases 666, while referring to Chandrappa's case

(supra), the Hon'ble Apex Court at Paragraph 31 of its

Judgment was pleased to hold that, it is the cardinal

principle in criminal jurisprudence that presumption of

innocence of the accused is reinforced by an order of

acquittal. The Appellate Court, in such a case, would

interfere only for very substantial and compelling reasons.

(c) In the case of Jafarudheen and others -vs-

State of Kerala, reported in (2022) 8 Supreme Court

Cases 440, at Paragraph 25 of its judgment, the Hon'ble

Apex Court was pleased to observe as below:

" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively

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slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The above principle laid down by it in its previous

case was reaffirmed by the Hon'ble Apex Court, in the case

of Ravi Sharma -vs- State (Government of NCT of

Delhi) and another reported in (2022) 8 Supreme

Court Cases 536.

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

13. The relationship between the accused -

Chinnappa and deceased - Smt. Kavita that they were the

husband and wife is not in dispute. The evidences given to

that effect by PW-1 (CW-2) Narayanappa father of the

deceased, PW-2 (CW-3) Smt. Lakshmidevamma, mother of

the deceased, PW-3 (CW-1) Keshavamurthy, elder brother

of the deceased, PW-4 (CW-7) Srinivas, PW-6 (CW-9) K.V.

Venkatesh, the maternal uncles of deceased, PW-5 (CW-8)

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Ganapathi, the uncle of the deceased, have not been

denied or disputed from the accused side in their cross-

examination. Furthermore, PW-1, has also produced before

the Investigating Officer, identified and got marked

Marriage Invitation Card at Ex.P.1 and two marriage

photographs at Exs. P.2 and P.3 respectively. The same

further corroborates the evidence of PW-1 that the

deceased was married to accused N. Chinnappa on the

date 09.11.2011, however, the reception of the marriage

was performed one day in advance i.e., on 08.11.2011.

Thus, the undenied fact stands reconfirmed that deceased

Kavita is the wife of the present respondent Chinnappa,

having married to him on 09.11.2011. The contention of

the prosecution that deceased died an unnatural death due

to burns, which was sustained by her on the date

20.09.2014 and succumbed to the burn injuries on

26.09.2014, while under treatment in Victoria Hospital,

Bengaluru, is also not in dispute. PWs - 1, 2, 3, 4, 5 and 6

have uniformly stated that they came to know that

deceased sustained burn injuries in her house on

20.09.2014 and was admitted to Victoria Hospital on the

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same day. These six witnesses visited the injured - Kavitha

in the hospital and the said Smt.Kavitha succumbed to the

burns on 26.09.2014.

14. Though PW-1 has stated that within two to three

days after sustaining burns, Smt.Kavitha died, but, PW-2

stated that she does not remember as to how long injured

was in hospital, however, she assumed that she must have

been in the hospital for about eight days and succumbed to

the injuries. PW-3 stated that his sister Smt.Kavitha was

under treatment in the hospital for about five to six days.

PW-4, stated that deceased was in hospital for about four

to five days. PW-6 stated that deceased was in hospital for

five days and then she succumbed to the injuries. Their

evidences as to how long the deceased was under

treatment in the hospital has not been specifically denied

in their cross-examination.

15. PW-9 (CW-15) Uma D.S., the Women Police

Constable at the complainant - Police Station in her

evidence has stated that deceased succumbed to the

injuries on 26.09.2014 at 3.45 a.m. and she was deputed

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to watch the said dead body. Accordingly, she was

watching the dead body and after its postmortem

examination, she handed over the dead body to the family

of the deceased.

This witness was not cross-examined from the

accused side. As such, the date, time and place of the

death of deceased remains undisputed.

16. PW-14 (CW-19) - Melvin Francis, Investigating

Officer also has stated that on 26.09.2014, he received a

memo from Victoria Hospital reporting the death of

injured-Smt. Kavitha. Thus, he obtained permission from

the Court to incorporate Section 302 of IPC also in the

crime. The witness has identified the said memo said to

have been sent to him by the hospital at Ex.P.20.

Therefore, the date and time of the death of the deceased

as 26.09.2014 at 3.45 a.m. stands established.

17. According to the prosecution, the place of the

incident of deceased sustaining burn injuries was her house

at Church Street, K.R. Puram, Bengaluru. The accused has

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not disputed the said place of incident in the cross-

examination of any of the witnesses.

PWs -1, 2 and 4 in their evidence have shown that

the alleged incident of deceased sustaining burns was in

her house, where she and her husband, i.e., accused, were

residing together. Thus, in spite of PW-3 stating that he

was not present when the Police visited the spot and drew

the scene of offence panchanama, the evidence of PWs-1,

2 and 5 shows that the place of incident of deceased

sustaining burns was her house at Bengaluru. The say of

PW-3 that Police visited the spot and drew the scene of

offence panchanama at Ex.P.7 and identified his signature

at Ex.P.7(a), is further corroborated by the evidence of

PW-14 (CW-19) - Melvin Francis the then Police Sub-

Inspector of complainant-Police Station that, he visited the

spot and drew the scene of offence panchanama on

23.09.2014 as per Ex.P.7, stands corroborated. The place

of incident of fire was the house of Smt.Kavitha, Church

Street, K.R. Puram, Bengaluru, stands established.

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18. Even though the date and time of death of

deceased was proved as 26.09.2014 at 3.45 a.m. at

Victoria Hospital, Bengaluru, however, neither PW-14 who

received the memo regarding the death of the deceased by

the hospital and incorporated Section 302 of IPC in the

crime, nor PW-16 (CW-20) Sanjeevarayappa, Police

Inspector of the complainant - Police Station, who took up

further investigation in the matter from PW-14, have

stated about conducting inquest panchanama on the dead

body of the deceased. None of the Investigating Officers

speak about conducting inquest panchanama in the matter.

The inquest panchanama was also not marked as Exhibit in

the case for the reasons best known to the prosecution.

Therefore, one of the primary and important document,

which should have thrown light on the nature of the death

of the deceased has remained unavailable for its

consideration.

In the absence of inquest panchanama the only other

evidence which is available to ascertain the nature of the

death of deceased is the evidence of PW-15 (CW-13)

Dr. Padeep Kumar M.P., who conducted postmortem

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examination on the dead body of the deceased and issued

the postmortem report at Ex.P.24. PW-15 - the doctor

has stated that, he conducted postmortem examination on

the dead body of deceased on 26.09.2014, between 7:30

p.m. and 8:30 p.m. and noticed the following external

injuries on the dead body:

"Infected burns present over face, neck, in patches over front and back of chest and abdomen, both upper limbs including palms, in patches over both lower limbs excluding soles. Most of the burnt areas show greenish yellow foul smelling pus and slough at places."

He opined that death of the deceased was due to

septicemia, as a result of burn injuries sustained. Stating

so, the witness has identified the Postmortem Report at

Ex.P.24 as the one issued by him. The said observation of

PW-15 has not been denied in his cross - examination. As

such, the evidence of PWs-1 to 6 that deceased died due to

the burns is further corroborated by the medical evidence,

which shows that the death of the deceased was unnatural.

However, the medical opinion through the evidence of PW-

15 and Ex.P.24 does not say whether the death was

accidental, suicidal or homicidal. Therefore, it is once again

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the oral evidence of prosecution witnesses, coupled with

the alleged two dying declarations said to have been given

by the deceased, are required to be analysed as to whether

the death of the deceased was homicidal and was it a

murder committed by none else than the accused.

19. The prosecution mainly depends upon the two

dying declarations, one of which, is in the form of a

statement, said to have been given by the deceased to

PW-13 (CW-18) Sri.Shivashankar, Assistant Sub-Inspector

of the complainant - Police Station who visited the Victoria

Hospital at the instance of PW-12 (CW-17)

Sri.Shivarudrappa the another Assistant Sub-Inspector of

the same Police Station on 21.09.2014. The second

statement of the deceased is said to have been recorded as

dying declaration by the Tahasildar (PW-8/ CW-14)

Sri.N. Nagaiah on 22.09.2014.

PW-12 - Shivarudrappa, Assistant Sub-Inspector of

the complainant - Police Station in his evidence has stated

that while he was on the night duty, on the date

21.09.2014, based upon the telephonic information

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received from Victoria Hospital about a memo and upon

the orders of his Police Sub-Inspector, he sent Sri.

Shivashankar, Assistant Sub-Inspector to Victoria Hospital,

Bengaluru. At about 3.45 a.m. on that day, the said

Shivashankar produced before him a statement of the

injured, which he registered in their Station NCR

No.1402/2014 and has identified the said statement of

injured at Ex.P.18 and his signature as Ex.P.18(c). He

identified the memo said to have issued by the hospital at

Ex.P.16.

PW-13 - Shivashankar, another Assistant Police

Sub-Inspector of the complainant - Police Station in his

evidence has stated that on the date 21.09.2014, while he

was in the night patrolling duty, based upon a request

made by Sri.Shivarudrappa, Assistant Sub-Inspector

(PW-12), he went to Victoria Hospital on the same night,

received the memo and submitted a request to the doctor

to ascertain whether the injured was in a fit condition to

give her statement. The doctor examined the patient and

endorsed on the memo that patient was in a fit condition to

give her statement. It is thereafter, he recorded the

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statement of the injured and obtained left-hand thumb

impression of the injured and also the signature of the

doctor and having returned to the Police Station, produced

the same before Sri.Shivarudrappa, Assistant Sub-

Inspector (PW-12). He has stated that doctor who was

present at the time of recording the statement of injured

was Dr. Rajareddy. He identified the memo of request

given by the doctor at Ex.P.17 and the statement of the

injured at Ex.P.18 and the doctor's endorsement thereupon

at Ex.P.18(a). However, he has not identified alleged left

hand thumb impression of the injured on her alleged

statement.

PW-12 - Sri.Shivarudrappa in his evidence has stated

that after receiving the statement of the injured, which was

produced before him by PW-13 - Sri.Shivashankar, he has

registered the same in their Police Station in NCR

No.1402/2014. He has also identified said statement of the

injured at Ex.P.18.

In the cross-examination of PW-12, as well PW-13,

their evidence that Ex.P.18 is the statement given by none

else than the deceased while she was under treatment in

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Victoria Hospital has not been denied. On the other hand,

in the cross-examination of PW-13, it was suggested to the

witness that the deceased has stated in the statement that

she herself has poured kerosene upon her, put fire to it

and nobody is responsible for the same. The witness has

admitted the said suggestion as true.

20. PW-11(CW-11) Dr. Rajareddy, Senior Specialist

at Victoria Hospital, Bengaluru has stated in his evidence

that at about 11:20 p.m. on 20.09.2014, the injured with

the history of burns came to the Casualty Department of

their hospital. When he enquired her about the cause of

burns, the injured stated that she poured kerosene upon

her and put fire to it and she has sustained burns on her

body. He made an entry in that regard and sent the injured

to the ward and the memo to the Police. Stating so, he has

identified the memo at Ex.P.16.

The said witness has further stated that on

21.09.2014, Sri. Shivashankar, Assistant Sub-Inspector

from the complainant - Police Station came to him and

gave a request letter as per Ex.P.17 for recording the

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statement of the injured. He examined the patient and

certified on the memo with his signature, which he has

identified at Ex.P.17(a). The said Assistant Sub-Inspector

recorded the statement of the injured in his presence. On

the said statement he has certified and put his signature

by writing "before me". Stating so, the witness has

identified the said statement of the injured at Ex.P.18 and

his signature at Ex.P.18(a).

In his cross-examination from the accused side,

except suggesting to the witness that even in the Register

maintained by the hospital, it is mentioned that injured put

kerosene by herself and lit fire to it and also suggesting to

the witness that till the process in Ex.P.17 and Ex.P.18

were completed, he was present there itself, nothing more

was elicited. The witness has admitted both the said

suggestions as true.

21. The second alleged dying declaration of

deceased according to prosecution is said to have recorded

by the Tahasildar on the date 22.09.2014. PW-12

Sri.Shivarudrappa, Assistant Sub-Inspector has stated that

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on 21.09.2014 he submitted a request letter to the

Tahasildar as per Ex.P.9 requesting him to record the

statement of the injured who was under treatment due to

burns. On the same day (22.09.2014), at about 7:30 p.m.

Tahasildar visited the Victoria Hospital and recorded the

statement of the injured and submitted the same to him,

which in turn he produced the said statement of the injured

to his Police Sub-Inspector. Stating so, the witness has

identified the said statement of the injured at Ex.P.18. In

his cross-examination he admitted a suggestion as true

that he was not present when the statement of the injured

was recorded by the Tahasildar.

PW-8 (CW-14) Sri. N. Nagaiah, Special Tahasildar at

K.R. Puram Taluk has stated that, upon the request by the

complainant - Police Station as per Ex.P.9 on 22.09.2014

to record the statement of injured Smt.Kavitha, who was

at Victoria Hospital, he visited the said hospital at 7:00

p.m. in the evening and met Dr. Varalakshmi, who was

Casualty Medical Officer and told her about requirement to

record the statement of injured - Kavitha. He also gave

her the requisition to verify the fitness of the injured to

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give statement. The said doctor in his presence examined

the injured and confirmed that the patient was in a fit

condition to give her statement and is in a position to

understand. She endorsed as 'permitted' on the requisition

memo given to her. Thereafter, he, in the presence of the

doctor, questioned the injured as per the Format and

recorded the answer given by the injured. The witness

stated that the questions put to her and answer given by

the injured which include, when he enquired the injured as

to how she sustained burns, in turn, injured stated that her

husband now and then used to consume liquor and quarrel

with her, stating that he would kill her, he had poured

kerosene upon her and lit the fire to it and thus, attempted

to kill her. It is thereafter, her husband admitted her to

hospital. The witness further stated that, after recording

her statement, since all other parts of her body except her

leg, had sustained burns and hands were covered with

bandage, he took her left toe mark on her statement,

which he had identified at Ex.P.8 and identified the left-toe

mark of the injured on the said statement, however, the

same was not marked as Exhibit. He has identified his

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signature, as well, that of the signature of the doctor in his

further examination-in-chief. He has identified the copy of

the requisition said to have been given by him to the

doctor at Ex.P.10 and stated that it is of that requisition,

on which, the doctor has written as 'permitted'.

In his cross-examination few questions were put

about the format of the dying declaration. He expressed his

ignorance to the suggestions that the answer given by the

injured to the questions put to her were tutored. He denied

the suggestions that while he recording the statement of

the injured as per Ex.P.8, the relatives of the injured were

present and their influence was there upon her.

22. PW-7 (CW-10) Smt. Varalakshmi, Chief Medical

Officer at Victoria Hospital, in her evidence has stated that,

on the date 22.09.2014, while she was on duty in casualty,

she has examined the fitness of the injured at the request

of the Tahasildar, who had given a request memo in that

regard. After examining the injured, she has stated that

injured was in a fit condition to give her statement and

permitted to record her statement. Thereafter, the

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Tahasildar, in her presence put questions to injured,

recorded the answers given by the injured. The witness

has stated that the injured stated in her statement that her

husband poured kerosene and put fire. Stating so, she

identified the statement of the injured at Ex.P.8 and her

signature at Ex.P.8(a). She also stated that while the

Tahasildar was recording the statement of the injured, she

alone was with them.

In her cross-examination, she stated that she has not

issued any separate Fitness Certificate and denied the

suggestion that she was not present while Tahasildar was

recording the statement of the injured as per Ex.P.8.

PW-14(CW-19) - Melvin Francis, the Police Sub-

Inspector of the complainant - Police Station has stated

that on 22.09.2014 at 9:30 p.m., Sri. Shivarudrappa,

Assistant Sub-Inspector (PW-12) produced before him a

dying declaration of injured, based upon which, he

registered it in their Station's Crime No.544/2014, for the

offence punishable under Section 307 of IPC and submitted

Express Report to his superiors and FIR as per Ex.P.9 to

the Court. He has identified the dying declaration at Ex.P.8.

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23. The above evidence of the prosecution

witnesses would go to show that there are two dying

declarations of deceased. The first dying declaration is said

to have been recorded as per Ex.P.18 on 21.09.2014,

whereas, the second dying declaration as per Ex.P.8 is said

to have been recorded on the next day i.e., on 22.09.2014.

In the first dying declaration it is shown that injured

Kavitha had stated that she herself dowsed with kerosene

and lit fire to it, whereas, in the second dying declaration it

is shown that it is her husband i.e., accused who dowsed

her with kerosene and put fire to it. The accused has not

denied the recording of the dying declaration at

Ex.P.18.

24. With respect to second dying declaration,

though the accused has not specifically denied the dying

declaration recorded by the Tahasildar, however, they

suggested to the witness that her statement in second

dying declaration was tutored one and that, at the time of

recording her second dying declaration, her relatives were

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present near her, as such, being influenced by them, she

has made her statement as per Ex.P.8. In this manner, the

accused has not denied that injured was not in a condition

to speak and that she has given her statement, otherwise,

the accused would not have accepted the alleged

statement of the injured at Ex.P.18 and would not have

suggested to the Tahasildar that statement given by the

injured before him was tutored one. Further, the evidence

of PW-11 - Dr. Rajareddy and PW-7 - Varalakshmi

corroborates that injured was in a fit condition to give her

statement on both the times i.e., on 21.09.2014 and on

22.09.2014, when her statement as per Ex.P.18 and Ex.P.8

respectively were recorded. Thus, there are two dying

declarations before the Court to analyse.

25. Our Hon'ble Apex Court in Purshottam Chopra

and Another Vs. State (Government of NCT of Delhi)

reported in (2020) 11 SCC 489 was pleased to

summarise the principles relating to recording of dying

declaration and its admissibility and reliability which are as

follows:

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

(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.

(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.

(4) When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

(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.

(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.

(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.

(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.

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In the case, where there are multiple dying

declarations and in the earlier dying declaration accused is

not sought to be roped in, but, in the later dying

declaration, a somersault is made by the deceased, as in

the case on hand, recording its appreciation the Hon'ble

Apex Court was pleased to observe in Jagbir Singh Vs.

State (NCT of Delhi) reported in (2019) 8 SCC 779,

that the case must be decided on the facts of each case,

the court will not be relieved of its duty to carefully

examine the entirety of materials, as also, the

circumstances surrounding the making of different dying

declarations. It is the compatibility with the remaining

evidence/circumstantial evidence, that will be vital in

determining which dying declarations are to be believed. It

is, keeping the above principles in mind, the two dying

declarations at Ex.P.18 and Ex.P.8 are required to be

analysed.

26. As observed above, the prosecution could able

to show that the injured was in a fit condition to give her

statement while recording both the statements at Ex.P.18

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and Ex.P.8 respectively, shown to be recorded in the

presence of the medical doctor and after the injured

getting examined by the doctor about her fitness to give

statement. The first dying declaration at Ex.P.18 is

recorded by the Assistant Sub-Inspector of Police and

second dying declaration at Ex.P.8 is recorded by the

Special Tahasildar. The first dying declaration at Ex.P.18 is

in the form of a continuous statement given by the injured,

whereas, the second dying declaration at Ex.P.8 is in the

form of questions and answers. Merely because the first

dying declaration is said to have been recorded by the

police officer and not in a formatised manner, the same

cannot be discarded. Further, PW-13 - Assistant Sub-

Inspector of the complainant - Police Station has stated

that he recorded the first statement of the injured as per

Ex.P.18 and after recording her statement as per Ex.P.18,

he obtained left hand thumb mark of the injured on her

statement, however, the witness has not stated in his

evidence that he is seeing the said left hand thumb mark

of the injured in Ex.P.18 and has not got marked the said

thumb mark as Exhibit, though the impression/mark

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was found in the document. On the other hand, PW-8 -

Tahasildar has stated that, since the entire portion of the

body, except her leg, were burnt and hands were covered

with bandages, he took her left toe impression on her

statement at Ex.P.8. He has also stated that he is seeing

the left toe mark at Ex.P.8.

PW-15 (CW-13) Dr. Pradeep Kumar who conducted

postmortem examination on the dead body of the

deceased, in his evidence has stated that the deceased had

sustained burns on her face, neck, front side of the chest,

on her back portion, front side of abdomen, both the hands

and some portion of both the legs, including both foot.

Even in the postmortem report at Ex.P.24, he has

mentioned the same. Therefore, the evidence of PW-15-

doctor corroborates with the evidence of PW-8 -Tahasildar

that deceased had sustained injuries on entire portion of

her body and both the hands, excluding legs. Further, his

evidence that the injured had sustained burns on both the

hands and they were covered with bandage has not been

denied in his cross-examination. In such a case, when

injured was found sustained burns on both the hands, it

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becomes doubtful as to how come PW-13 - Assistant Sub-

Inspector could get left thumb impression at Ex.P.18,

which creates a doubt about the correctness of the

statement shown to have been made by the injured as per

Ex.P.8. No doubt, PW-11 the doctor, has stated that

injured stated that she dowsed herself with kerosene and

lit fire to it, however PW-17, the Casualty Medical Officer,

has also stated that it was in her presence the Tahasildar

has recorded the dying declaration of the injured and

injured has stated that it was her husband who dowsed her

with kerosene and lit fire to it. The said Tahasildar PW-8

has denied the suggestion that at the time of he recording

the dying declaration of injured, her relatives were there

with her and that she was under their influence. Therefore,

when both the dying declarations are shown to have been

recorded by the responsible officers, that too, after getting

the injured medically examined about her fitness to give

statement and contents of the statements also have

corroborated, then, it is not safe to chose either of them as

only believable dying declaration in the case. Under this

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circumstance, the other evidence available is required to

be analysed.

26. The other evidence regarding the manner of

deceased sustaining burns in her house is about oral dying

declaration made before her relatives and other persons,

who were said to have visited her while she was in

hospital. In that regard, the prosecution has relied upon

evidences of PWs-1, 2, 4, 5 and 6.

PWs 1 to 6 in their evidence have stated that all of

them visited the deceased in the hospital while she was in

burns ward and collected the details about the incident

which resulted in deceased sustaining burns, from the

mouth of the injured (later deceased). PWs-1 and 2 the

parents of the deceased, PWs-4 and 5 the maternal uncles

of the deceased, PW-5 the uncle of the deceased, have

uniformly stated in their evidence that the deceased told

them that it was her husband i.e., accused, who dowsed

her with kerosene and lit fire to it. PW-1 stated that his

daughter Kavitha told him that accused after pouring

kerosene upon her and lighting fire to it, took their child

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with him and left the house by closing the door from

outside. However, he came again, put-off the fire with the

help of neighbours and with their help, shifted her to the

hospital.

PW-2 did not speak in that aspect in her evidence.

She has only stated that, at the time of incident, the

deceased was mother of a boy child and was a pregnant of

eight months, however, the postmortem report does not

speak about the pregnancy of the deceased. PWs-4, 5 and

6 have stated that at their enquiry the deceased told them

in the hospital that it was the accused who poured

kerosene upon her and lit fire to it. However, none of these

witnesses stated as to who shifted her to the hospital.

Thus, from the evidences of PWs-1, 2, 3, 4, 5 and 6,

it can be inferred that the claim that it was the deceased who

told that it was her husband who poured kerosene upon her and

lit fire to it. However according to PW-1, the father of the

deceased, it is the very same accused who put-off the fire and

shifted her to hospital with the help of the neighbours.

According to him, the said statement also was made to him by

none else than the deceased herself. Therefore,

if, according to PW-1, deceased told him that it

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was the accused who put off the fire and shifted her to the

hospital, then, the same makes it clear that accused did

not have any intention of killing his wife, on the other

hand, he made efforts to rescue her.

27. On the contrary, PW-3 the elder brother of the

deceased has stated that when enquired about the cause

of his sister Kavitha sustaining burns, she told him that

since the accused was in the habit of consuming liquor and

was quarrelling with her, she herself dowsed with kerosene

and lit fire to it. This witness nowhere has whispered that it

was the accused who poured kerosene upon his sister

Kavitha and lit fire to it. Since the prosecution was

expected him to say that it was the accused who poured

kerosene upon the deceased, the witness was treated as

hostile. The prosecution was permitted to cross-examine

him, however, in his cross-examination also the witness

did not support the case of the prosecution. He denied the

suggestion that deceased told to him that it was her

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

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Therefore, though on one hand parents of the deceased

say that deceased told them that it was her husband who

poured kerosene upon her and put fire to it, however, the

elder brother of the deceased says that, it was a self-

immolation as told by the very same deceased. Thus,

according to the very same family members, there are two

contrary views as to the cause of deceased sustaining

burns.

28. In the above circumstance, the evidence of PW-

11 - the doctor, who had first attended the deceased, when

she was brought to the casualty of Victoria Hospital with

the history of burns, is of great significance.

The said witness has stated that, he enquired the

injured Kavitha about the cause of burns for which she

stated that, it was herself, who poured kerosene upon her

and put fire to it. Thus, according to the doctor, who also

claims to have heard from the mouth of none else than the

injured, it was the deceased who herself poured kerosene

upon her and put fire to it.

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Even though PW-7 -Varalakshmi Casualty Medical

Officer has stated that in her statement before the

Tahasildar, injured Kavitha stated that it was her husband

who poured kerosene upon her, but, the said statement

was on the second day of alleged incident of burn, that too,

after the parents and relatives of the deceased had met

and talked with the injured in the hospital. Whereas, the

enquiry of PW-11, the doctor, with the injured was within

the hours after the incident that took place on the date

20.09.2014.

Thus, at the earliest point of time, the injured is said

to have stated before none else than the doctor, who

enquired about history of burns, as self-immolation.

Further, her first statement after the incident at Ex.P.18,

which was also recorded in the presence of doctor, also

mentions that the injured stated that it was herself who

poured kerosene upon her and put fire to it. Therefore,

when at the first instance, the injured is said to have

stated that it was she who poured kerosene upon her and

put fire to it, both before the doctor as well before the

police and even the elder brother of the deceased also says

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that his injured sister told him that it was herself who

poured kerosene upon her and put fire to it, her

subsequent statement made before her parents and uncles

and also before Tahasildar as per Ex.P.8 creates some

doubt in the mind of the Court. When injured was not

visited by any of her relatives is shown to have stated that

it was herself who poured kerosene upon her and put fire

to it, however, later, after she was visited by her paternal

family members and relatives has changed her version,

then, it is not safe to rely upon her second alleged dying

declaration at Ex.P.8 and hold that it was the accused who

poured kerosene upon her and put fire to it. As such, when

the accused is already enjoying the benefit of acquittal,

and has got a double presumption of his innocence in this

appeal, it is not safe to rely upon Ex.P.8 ignoring similarly

standing dying declaration at Ex.P.18 and to conclude that

it was the accused who caused the death of his wife.

Therefore, it has to be held that the prosecution could not

able to prove that it was the accused who poured kerosene

upon his wife Kavitha, put fire to it, inflicting burns upon

her, due to which, she succumbed to injuries in the

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hospital and thus, has committed the homicidal death of

his wife Kavitha.

Thus, the death of deceased though proved to be an

unnatural death, however, there is no evidence to hold that

it is a homicide, as such, there is no evidence to hold that

it was the accused who caused the death of deceased. As

such, we find no reason to interfere in the finding of the

Sessions Judge's Court in acquitting the accused of the

offence punishable under Section 302 of IPC.

29. The prosecution has also alleged that accused

was subjecting his wife Kavitha to cruelty. The other

charge leveled against the accused is the offence

punishable under Section 498A of IPC. It is nobody's case

that prior to the death of his wife, accused was demanding

her or coercing her to bring money or any property and

valuable security from her parents. On the other hand, it is

the case of the prosecution that the accused was

subjecting the deceased to cruelty and was assaulting her

under the influence of liquor, for which, he was addicted

to. PW-1 though has stated that accused was complaining

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that the money given to him during the marriage was

insufficient and was pestering his wife to get some money,

however, the same was not the case of the prosecution

and other witnesses of the prosecution have not

complained that the accused was demanding any money or

valuable to be brought by his wife from her parents.

30. PWs-1, 2, 3, 4, 5 and 6 have all stated in their

evidence that accused while living with his wife Kavitha at

Bengaluru, developed the habit of consuming liquor and he

used to quarrel with his wife and both of them were

quarreling. In that regard, they had advised the accused.

Even though, all these witnesses have stated that accused

was consuming liquor and was quarreling with is wife,

however, none of those witnesses have given any instance

of such quarrel or the accused assaulting his wife and

subjecting her to cruelty. Mere the husband and wife

quarreling cannot be considered as cruelty meted to the

wife. In fact, PW-3 has stated that it was not the just

accused alone who was quarreling with his wife, but, it was

both the accused and deceased were quarreling with each

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other. Thus, from none else than the very elder brother of

the deceased, it was elicited that the quarrel alleged was,

not taking place only unilaterally from the side of the

accused, but ,the reciprocity of his sister i.e., deceased

was also there. Moreover, as observed above, none of the

witnesses have given any instance of the alleged cruelty

said to have been meted by the accused to the deceased.

If there were any repetitive acts of cruelty practiced by the

accused upon the deceased, then, atleast any one of these

witnesses, who were none else than the parents, family

members and close relatives of the deceased, could have

given any such instance of cruelty for which they were the

witnesses. However, except their statement that they heard

from the deceased that she was subjected to ill-treatment by

her husband, who was in the habit of drinking, no further

evidence has been given by any of these witnesses. As such, in

the absence of any convincing evidence in that regard, it is not

safe to hold that the prosecution has proved the alleged guilt of

cruelty against the accused. As such also, the fact that the

finding of the Sessions Judge's Court that the prosecution

failed to prove the alleged guilt against the accused

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for the offence punishable under Section 498 A of IPC,

cannot be found fault with. For these reasonings, we do

not find any reason to interfere in the impugned judgment

of the acquittal.

Accordingly, we proceed to pass the following order.

ORDER

The Criminal Appeal filed by appellant/State stands

dismissed as devoid of merits.

Registry to transmit a copy of this judgment along

with Sessions Judge's Court records to the concerned

Sessions Judge's Court immediately for their needful in the

matter.

Sd/-

JUDGE

Sd/-

JUDGE BVK