Karnataka High Court
Sangamesh S/O Ganganna vs The State Of Karnataka on 24 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100336 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100336 OF 2019
BETWEEN:
SANGAMESH S/O. GANGANNA
AGE: 25 YEARS,
R/O: NEAR RAMULAMMA TEMPLE,
ERANNA ONI, BANDIHATTI,
COWL BAZAAR, BALLARI.
...APPELLANT
(BY SRI. B. ANWAR BASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(THROUGH COWL BAZAAR POLICE STATION),
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
Digitally signed by HIGH COURT OF KARNATAKA, DHARWAD.
YASHAVANT
NARAYANKAR ...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
Date: 2024.07.27
11:37:45 +0530
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION DATED 23.08.2019 AND SENTENCE DATED 26.08.2019
PASSED IN S.C.NO.59/2015 PASSED BY THE II-ADDL. DISTRICT AND
SESSIONS JUDGE, BALLARI AND TO ACQUIT THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 304-B, 201 R/W SEC. 34 OF IPC AND 3 AND 4 OF DOWRY
PROHIBITION ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100336 of 2019
JUDGMENT
The judgment and order dated 23.08.2019 passed by
the Court of II Addl. District and Sessions Judge, Ballari in
SC No.59/2015 is assailed in this appeal filed by the
accused.
2. We have heard the learned counsel for the
appellant/accused, learned Addl. SPP for the respondent-
State and perused the evidence and material on record.
3. Charges came to be framed against accused Nos.1 to
3 by the Trial Court for offences punishable under Sections
304B, 201 r/w 34 of IPC and Sections 3 and 4 of Dowry
Prohibition Act.
4. In order to establish the charges, the prosecution in
all examined 19 witnesses and got marked 25 documents
and material objects 1 and 2. The defence of the accused
was one of total denial. However, they did not choose to
lead evidence on their behalf.
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5. Learned Sessions Judge vide impugned judgment
was pleased to acquit accused Nos.2 and 3 of all the
charges. However, convicted appellant/accused No.1 for
the offence punishable under Sections 304B and 201 of
IPC and Sections 3 and 4 of Dowry Prohibition Act.
For the offence punishable under Section 304B of
IPC, accused No.1 was sentenced to undergo life
imprisonment and to pay a fine of Rs.50,000/- and in
default, to undergo simple imprisonment for two years.
For the offence punishable under Section 201 of IPC,
he was sentenced to undergo simple imprisonment for a
period of three years and to pay a fine of Rs.1,000/-, in
default, to undergo simple imprisonment of three months.
For the offence punishable under Section 3 of DP Act,
he was sentenced to undergo imprisonment for a period of
three years and to pay a fine of Rs.15,000/-, in default, to
undergo simple imprisonment for one year, and
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For the offence punishable under Section 4 of DP act,
he was sentenced to undergo imprisonment for two years
and to pay a fine of Rs.5,000/-, in default, to undergo
simple imprisonment for three months.
6. At the outset, it is pertinent to mention that the trial
Court was not justified in awarding less than the minimum
sentence prescribed for Section 3 of DP Act, having
convicted accused No.1 for the said offence.
7. Brief facts of the case of prosecution are that,
deceased Sharada was given in marriage to accused No.1
and their marriage was solemnized on 19.03.2014 in
Hudubande village of Uravakonda Taluk of Andra Pradesh.
After the marriage, she started to reside in her
matrimonial home situated in Bhandihatti, Ballari, along
with her husband, mother-in-law and brother-in-law. For
sometime, she was looked after properly by them,
however, later they started subjecting her to physical and
mental cruelty demanding additional dowry and a
motorcycle. On 17.11.2014, during Moharam festival, she
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was sent to her parental home to get additional dowry.
Her parents requested the accused persons to wait till
harvest. Thereafter once again she returned to the house
of her husband, but accused No.1 continued to demand for
money and motorcycle. Hence, on 21.11.2014 at 00.30
hours, unable to bear the physical and mental torture, she
poured kerosene and set fire to herself. She succumbed to
the injuries while undergoing treatment at VIMS hospital,
Ballari at 3.00 a.m. on 22.11.2014. It is the further case
of prosecution that, after the incident, accused No.1 white
washed and cleaned the wall, to cause disappearance of
evidence.
8. Regarding admission of the victim at VIMS Hospital,
Ballari, an intimation was received at Cowl Bazaar Police
Station. On that basis, the police requested the Taluka
Executive Magistrate as per Ex.P-21, to record the dying
declaration of the victim. Accordingly, PW-12-Taluka
Executive Magistrate visited VIMS Hospital and after
certifying from the concerned doctor, regarding her fit
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condition to give statement, recorded the dying
declaration, marked as Ex.P-11(P-22). On that basis, a
case was registered against accused Nos.1 to 3 and
investigation was taken up. On completion of
investigation, charge sheet was filed.
9. Assailing the impugned judgment, learned counsel
for appellant has contended as under:
(i) The victim had studied up to SSLC and she was
intending to study further, however, her parents
performed her marriage and therefore, she has committed
suicide as she was not permitted to continue her studies.
(ii) There is also possibility that victim might have
sustained accidental burns while she was cooking.
(iii) The statements in the alleged dying declaration Ex.P-
11(P-22) are not made by the deceased, on the other
hand, the police as well as the relatives of the victim have
colluded with each other and concocted the said document
to suit the case of the prosecution.
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(iv) There is discrepancy in the date mentioned in the
dying declaration, as according to the prosecution, dying
declaration was recorded on 21.11.2014 at about 10.15
a.m. whereas, doctor and the Tahasildar have made an
endorsement in the dying declaration mentioning the date
as 22.11.2014.
(v) One of the witnesses i.e., PW-13 has stated that
incident has occurred at Gonal village, which is the
parental village of the deceased and therefore, the case of
the prosecution that the incident occurred in the house of
the accused is doubtful.
(vi) The deceased sustained 95% to 100% burn injuries
and in the absence of medical records/case sheets
produced by the prosecution, it cannot be said that victim
was in a sound state of mind to give her statement.
(vii) Both PW-3 and PW-4 have admitted that no one was
allowed inside the burns ward and therefore, their claim
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that deceased made oral dying declaration to them is
unacceptable.
(viii) It has come on record that the victim was not in a fit
condition to speak initially and it is not forthcoming as to
when she gained consciousness to give the statement.
10. The learned counsel for appellant has contended that
the trial Court has not gone into the above aspects in the
proper perspective and came to an erroneous conclusion,
by convicting the appellant/accused No.1 and therefore,
sought to set aside the impugned judgment and acquit the
appellant.
11. Per contra, learned Addl. SPP has contended that,
(i) Incident has occurred in the house of the accused
during odd hours wherein, only the deceased and the
accused were present.
(ii) The dying declaration is recorded by none other than
the Taluka executive Magistrate, who is an independent
witness and he has categorically deposed that he recorded
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the statement of the deceased, after confirming from the
doctor about her fit condition to give the statement.
(iii) The discrepancy in mentioning the date in the dying
declaration has been clarified by the doctor as well as the
Taluka Executive Magistrate in the chief-examination itself
and even otherwise, the FIR was registered on the basis of
the dying declaration on the same day i.e., on 21.11.2014.
(iv) PW-19 is the doctor who has endorsed on the dying
declaration that the patient is in fit condition to give the
statement.
12. The learned Addl. SPP contended that the trial Court
having appreciated the entire evidence and material on
record in its proper perspective has rightly convicted the
appellant/accused No.1 for the charged offences. He
therefore, sought to dismiss the appeal.
13. According to the prosecution, after the marriage of
deceased Sharada with accused No.1, she started living
along with her husband, mother-in-law and brother-in-law
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at Bandihatti village, Ballari. For sometime she was
looked after properly and thereafter the accused started
subjecting her to cruelty to bring additional dowry and
motorcycle. During Moharam, she went to her parental
home and stayed there for about 15 days and once again
returned to the house of the accused and about 3 days
after returning to the house, the incident in question took
place.
14. The death of the deceased Sharada on account of
burn injuries is not seriously disputed. The prosecution has
got examined the doctor-PW-11, who conducted autopsy.
The postmortem report is marked as Ex.P-9, as per which,
the death is on account of hypervolumic shock as a result
of 100% burns. On receiving the FSL repot, the doctor
opined that inflammable material that caused burns on the
body of the deceased is kerosene. In the cross
examination, PW-11 has denied that such burn injuries
could be possible accidentally while cooking using
kerosene oil stove.
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15. PW-1 is the panch witness to the spot mahazar-Ex.P-
1 and PW-2 to the inquest mahazar-Ex.P-2. The said
witnesses have supported the case of the prosecution.
16. A perusal of the evidence of PW-1 goes to show that
the incident occurred in the house of accused No.1
Ganganna and the spot was in the middle of hall. MOs.1
and 2 i.e., plastic can and match box were seized from the
spot.
17. From the above evidence, we have no hesitation to
hold that the deceased died due to burn injuries sustained
by her. Further, there is no cross-examination to PW-1
denying the said fact that the incident did not occur in the
house of accused No.1. Hence, contention of the learned
counsel for the appellant that the incident has not taken
place in the house of the accused, cannot be accepted.
18. The prosecution is mainly relying on the dying
declaration of the deceased as well as the evidence of PW-
3 and PW-4 namely, the father and elder brother of the
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deceased. The dying declaration at Ex.P-11 was recorded
by the Taluka Executive Magistrate, PW-12 on 21.11.2014
at about 10.17 a.m. The learned counsel for appellant has
contended that when the deceased has sustained nearly
100% burn injuries, she could not have given any
statement and therefore, the dying declaration is
concocted, particularly, in view of the endorsement made
in Ex.P-10, the letter addressed by the Tahasildar to the
hospital wherein, it is mentioned by the duty doctor that
the patient is drowsy, patient condition is poor and she is
not fit to give any statement. Nextly, it is his contention
that in the dying declaration the doctor as well as
Tahasilar have mentioned the date as 22.11.2014, by
which time, the victim was no more and therefore, the
dying declaration is fabricated.
19. We have carefully perused the evidence of doctor-
PW-19 and Tahasildar-PW-12 as well as the dying
declaration which is marked as Ex.P-11(P-22) and Ex.P-10
letter addressed by Tahasidar to the concerned hospital.
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20. PW-19 has deposed that on 21.11.2014, he received
a letter from the CMO of the Hospital regarding the
admission of the victim at the hospital on account of burn
injuries and requesting to record her statement. He has
further stated that he went to burns ward, where the
deceased was admitted, at about 10.00 a.m., at that time
the Tahasildar was present, who enquired him as to
whether the victim was in a fit condition to give her
statement. He examined her and at about 10.15 a.m., he
informed the Tahasildar that the victim is in a fit condition
to give her statement. The said endorsement made by
PW-19 is marked as Ex.P-11(b). After confirming about
the condition of the patient, PW-12-Tahasildar recorded
her statement as per Ex.P-11. PW-19 has stated that at
that time, the Tahasildar and himself were present and
they sent others out of the ward.
21. Similar is the evidence of PW-12, who recorded the
dying declaration. PW-12 has identified his signature on
Ex.P-10, marked as Ex.P-10(a). He has stated that the
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doctor endorsed on Ex.P-11 as per Ex.P-11(b) stating that
the victim is in a fit condition to give her statement.
Thereafter, he recorded the statement of the victim from
10.17 a.m.
22. PW-12 has narrated the contents of Ex.P-11 as told
by the victim wherein, she has stated that the accused
were demanding money and motorcycle and picking up
quarrel with her and therefore, she set herself ablaze and
though her husband was very much present, did not try to
put off the fire. Further, that her husband was liking other
girls and he has told 3 times that she should die and
therefore, she has poured kerosene on herself and match
box was given by her husband himself.
23. In the dying declaration, deceased has made a
remark against her mother-in-law and brother-in-law
saying that they too have ill-treated her. Admittedly, the
said accused were not present in the house when the
incident took place, even according to prosecution. The
trial Court has found insufficient material to convict them
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and accordingly, they were acquitted of the charges
leveled.
24. A perusal of the dying declaration goes to show that
there is an endorsement made by the Doctor and the
Tahsildar by mentioning the date as 22/11. Both the said
witnesses in their chief examination itself have clarified
that the said date was put by oversight. They have stated
that the dying declaration was recorded on 21.11.2014
25. Admittedly, on the basis of the dying declaration, FIR
was registered as per Ex.P-23 and sent to the
jurisdictional Court. A perusal of Ex.P-23 clearly shows
that said FIR was registered at about 3:20pm on
21.11.2014 and the same was forwarded to the
jurisdictional Magistrate at about 4:20pm on the same
day. The endorsement made by the learned Magistrate on
the FIR goes to show that the FIR was received by him on
the same day i.e. on 21.11.2014 at 8:40pm. When there
is no dispute that the FIR was registered on the basis of
the dying declaration of the deceased and when the said
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FIR reached the Magistrate on 21.11.2014 itself by
8:40pm, the contention of the learned counsel for the
appellant that the dying declaration is concocted to suit
the prosecution case, cannot be accepted.
26. Further, the letter addressed by PW-12 to the
hospital, which is marked as Ex.P-10 was received by the
hospital at about 8:15am on 21.11.2014. The same was
referred to the duty Doctor. We find from Ex.P-10 that
initially an endorsement was made by the duty Doctor that
the general condition of the patient is poor, patient is
drowsy and not fit to give any statement. The dying
declaration was recorded by PW.12 at 10:15am on
21.11.2014. We find an endorsement in Ex.P-10 made by
PW.19 at 10:15am on 21.11.2014 that the patient is fit to
give statement. He has also made an endorsement on the
dying declaration stating that the patient is conscious, co-
operative and she is not under the effect of sedation and
fit to give statement. Hence, we find no reasons to raise
any doubt about the credibility of the dying declaration or
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to hold that the deceased was not in a fit condition to give
her statement as per Ex.P-11(Ex.P-22).
27. The learned counsel for the appellant has contended
that the deceased sustained 95 to 100% burn injuries and
therefore, she could not have given the statement.
However, we find that PW.19 has categorically stated that
the victim was in a fit condition to give her statement. In
the cross-examination, he has denied that when the victim
had sustained 100% burn injuries, her entire body will be
burnt. He has stated that only the upper layer of the skin
will be burnt and he has denied that if patient sustains
100% burn injuries, the entire nerves will also get
damaged. He has denied the suggestion put to him that
since deceased was not in a position to talk, on the next
day i.e., on 22.11.2014, the statement was recorded.
There is nothing elicited in the cross-examination of either
PW.12 or PW.19 so as to discard their evidence or to hold
that the deceased was not in a fit condition to give her
statement as per Ex.P-11. The defence has not put any
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question to the Doctor who conducted the postmortem
examination, to elicit that with 100% burn injuries, patient
will not be in a position to talk or give statement.
28. PWs.3 and 4 are the father and elder brother of the
victim. PW-3 has stated that deceased was looked after
properly only for a period of 2 to 3 months. PW.4 has
stated that the accused were looking after the deceased
properly only for about 15 days. They have stated that
thereafter they started ill-treating her for the sake of
additional dowry and a two wheeler. PW.3 has stated that
he brought his daughter to his house during Moharam
festival and his daughter told him that the accused were
ill-treating her physically and mentally and accused No.1
was assaulting her and forcing her to bring money to
purchase a two wheeler. He consoled the accused stating
that after getting the crop, he will meet their demand.
After completion of Moharam festival and after a lapse of
15 days, she went back to her husband's house. After
about 3 days, he received a phone call from accused No.3
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and therefore, himself, his wife and son went to the
hospital where they saw his daughter with complete burn
injuries. Both PWs.3 and 4 have stated that when they
enquired the deceased, she told that she set herself ablaze
as the accused was forcing for additional dowry and a two
wheeler.
29. The learned counsel for the appellant has pointed out
from the cross-examination of the above witnesses that
according to them nobody was allowed into the burns ward
and therefore the deceased could not have made a oral
dying declaration to them. However, it is not elicited from
the mouth of PWs.3 and 4 that even the said witnesses
who are none other than the father and brother of the
deceased were also not allowed to the burns ward. Be
that as it may, we have held that the dying declaration,
which is marked as Ex.P-11(Ex.P-22) is the statement
given by the deceased and therefore the contention of the
learned counsel to deny the case of the prosecution,
cannot be accepted. Both PWs.3 and 4 have stated that
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the husband of the deceased was demanding additional
dowry and a motorcycle. From the dying declaration, we
find that the incident has taken place in the house of the
accused and accused No.1 was very much present in the
house. The contention that he was not at all present in
the house and the deceased sustained accidental burn
injuries are not substantiated.
30. It was also contented by the learned counsel for the
appellant that the deceased had studied up to SSLC and
thereafter her parents discontinued her studies and
performed her marriage with the appellant and therefore,
she has poured kerosene and set herself ablaze. However,
there is no material placed on record to show that the
marriage of the deceased with accused No.1 was
performed against her wishes or that she was not
interested in the marriage. It is not forthcoming as to why
the deceased has taken the extreme step of setting herself
ablaze during mid night. As we have accepted the dying
declaration, we do not find any substance in the
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arguments advanced by the learned counsel for the
appellant. Further, we find that though accused was very
much present in the house, no material is placed to show
that he accompanied the victim to the hospital. He has
completely denied the prosecution case in his statement
recorded under Section 313 of the Code of Criminal
Procedure. If the dying declaration is perused, we find that
the deceased was subjected to cruelty for the purpose of
dowry, soon before her death.
31. In State of Uttar Pradesh v Veerpal and another1
the Apex Court has held that there is neither a rule nor of
prudence to the effect that the dying declaration cannot be
acted upon without corroboration and if it is found true
and voluntary, dying declaration can be made basis for
convicting the accused without any corroboration.
Similarly, in Rajendra s/o Ramdas Kolhe v State of
Maharashtra , it is held that once dying declaration is
(2022) 4 SCC 741
2024AIAR (Criminal) 540
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found to be authentic inspiring the confidence of the
Court, then, the same can be relied upon and can be sole
basis for conviction without any corroboration. However,
before accepting such a dying declaration, Court must be
satisfied that it was rendered voluntarily, it is consistent
and credible and devoid of any tutoring.
32. We find from the dying declaration that it is rendered
voluntarily and credible and devoid of any tutoring. The
dying declaration is consistent with the medical evidence
as to the burn injuries.
33. The learned trial Judge has sentenced the
appellant/accused No.1 to imprisonment for life for the
offence punishable under Section 304B of IPC with fine of
Rs.50,000/- and default sentence of two years.
34. It is not the case of the prosecution that there was
any demand or acceptance of dowry by the
appellant/accused No.1 at the time of marriage. The
specific case of the prosecution is that, after the marriage,
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accused No.1 started to demand a two wheeler. It has
come on record that he was demanding money to
purchase a two wheeler. Hence, to convict a person under
Section 3 of the Dowry Prohibition Act, the ingredients of
the said section have to be fulfilled. It shall be established
that he has taken dowry. Admittedly, no dowry was given
and no such material is placed. On the other hand, case
of the prosecution itself is that he was demanding dowry,
which attracts Section 4 of DP Act. Hence, conviction and
sentence of appellant/accused No.1 for the offence
punishable under Section 3 of DP Act is liable to be set
aside.
35. There is no evidence adduced by the prosecution to
show that the appellant has tried to destroy evidence by
cleaning the wall with white lime. The prosecution is
relying on the evidence of PW.1, the panch witness to the
spot mahazar to establish that the spot was cleaned and
also it was white washed. However, the said evidence
cannot be accepted to hold that accused No.1 cleaned the
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spot and white washed the wall after the incident in
question. No material used for white washing the wall has
been seized from the spot. Hence, the conviction of
appellant No.1 for the offence punishable under Section
201 of IPC is not proper.
36. The incident is of the year 2014. 10 years have
lapsed. Accused No.1 was in custody from 21.11.2014 till
the date of judgment i.e., 23.08.2019. Again he
continued to be in custody till 27.02.2020, i.e. the date of
suspension of his sentence by this Court. Hence, accused
No.1 was in custody for a total period of 5 years 3 months.
He was aged about 20 years at the time of incident. It is
submitted that he has remarried and having two minor
children. Hence, we are of the considered view that the
sentence imposed against the appellant for the offence
punishable under Section 304B of IPC can be modified.
37. Accordingly, the following:-
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ORDER
Appeal is allowed in part. The judgment and order
dated 23.08.2019 and 26.08.2019 passed by the Court of
II Additional District and Sessions Judge at Ballari, in
Sessions Case No.59/2015 convicting the
appellant/accused No.1 for the offence punishable under
Section 304B of IPC and Section 4 of the DP Act is
confirmed.
The conviction of the appellant/accused No.1 for the
offence punishable under Section 201 of IPC and Section 3
of DP Act is hereby set aside and he is acquitted of the
said offences.
The sentence imposed against the appellant/accused
No.1 for the offence punishable under Section 304B of IPC
is modified and he is sentenced to undergo rigorous
imprisonment for a period of 7 years. The fine and default
sentence imposed by the trial Court for the said offence is
confirmed.
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The sentence imposed against appellant/accused No.1
for the offence punishable under Section 4 of DP Act is
confirmed.
Both the sentences imposed against accused No.1
shall run concurrently. He shall be entitled for the benefit
of set off under Section 428 of the Cr.P.C.
Appellant/accused No.1 shall surrender before the
trial Court within a period of thirty days to undergo the
remaining part of sentence.
Sd/-
JUDGE
Sd/-
JUDGE
HMB- Upto para 5
NAA-Para 6 to 21
kmv- from para 22 to end
Ct:vh
