Karnataka High Court

Sri Raghavendra Gupta vs State Of Karnataka on 25 July, 2024

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                                                             NC: 2024:KHC:29527
                                                          CRL.A No. 455 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 25TH DAY OF JULY, 2024

                                              BEFORE
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
                             CRIMINAL APPEAL NO. 455 OF 2014 (C)
                   BETWEEN:

                   1.    SRI. RAGHAVENDRA GUPTA
                         @ RAGHU.G,
                         S/O G. GOPALA KRISHNA SHETTY,
                         AGED ABOUT 32 YEARS,
                         OCC: CLOTH BUSINESS.

                   2.    SMT.LAKSHMI
                         W/O G. GOPALA KRISHNA SHETTY,
                         AGED ABOUT 63 YEARS,
                         OCC:HOUSE WIFE,

                         BOTH ARE RESIDING AT
                         C/O BADRINATHS HOUSE,
                         NO.16, S.K.LANE,
                         CHIKKAMAVALLI,
                         BANGALORE- 560 004.
                                                                    ...APPELLANTS
                   (BY SRI MURARI MOUNI K.M, ADVOCATE)
Digitally signed
by SHAKAMBARI
Location: HIGH     AND:
COURT OF
KARNATAKA
                   STATE OF KARNATAKA
                   THROUGH P.S.I
                   SARJAPURA POLICE STATION
                   SARJAPURA,
                   BANGALORE (R) DISTRICT
                   BANGALORE.
                                                                   ...RESPONDENT
                   (BY SRI K. NAGESHWARAPPA, H.C.G.P)

                        THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET
                   ASIDE THE ORDER DATED:27.5.14 PASSED BY THE III ADDL. DIST.
                   AND S.J., BANGALORE RURAL DIST., SIT AT ANEKAL IN
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                                          NC: 2024:KHC:29527
                                       CRL.A No. 455 of 2014




S.C.NO.365/11 - CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE P/U/S 498A R/W 34 OF IPC.
      THIS APPEAL, COMING ON FOR DICTATING ORDERS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:



CORAM:   HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR


                     ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

Appellants - accused nos.1 and 2 have filed this

appeal being aggrieved by the judgment of conviction and

order of sentence dated 27.5.2014 passed by the III Addl.

District and Sessions Judge, Bengaluru Rural District

sitting at Anekal. The learned trial Court, by passing the

impugned judgment, found the accused nos. 1 and 2 not

guilty for the offences punishable under Section 506, 306

read with Section 34 of IPC whereas, found the accused

nos. 1 and 2 guilty for the offence punishable under

Section 498A read with Section 34 of IPC and sentenced

them as under:

"The accused no.1 and 2 are hereby sentenced to undergo imprisonment for 2 years each and to pay a fine of Rs.5000/- each in default to undergo SI for 3 months each for the offence punishable U/s.498A R/w 34 of IPC".

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2. Parties to this appeal are referred to as per

their rank before the trial Court for the purpose of

convenience.

Facts of the case:

3. That, deceased Kalashri is the wife of accused

no.1. Her marriage with accused no.1 was performed on

8.5.2011 at Kannikaparameshwari Kalyana Mantapa at

Benguluru. Accused no.2 is the mother of accused no.1. It

is stated that, after marriage, deceased started her

matrimonial life in the house of accused nos. 1 and 2 and

stayed there for a period of 20 days. It is alleged in the

complaint that, during her stay with the accused in her

matrimonial home, both the accused harassed and ill-

treated the deceased mentally and physically. Even they

gave a life threat to her. They used to give threat stating

that, they are going to set fire on her by pouring

kerosene. It is stated that, the deceased was unable to

tolerate this mental and physical cruelty. On 3.8.2011, at

5.00 p.m. when she was in her parents house, in the

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absence of inmates of house, got poured the kerosene oil

in the bathroom and set fire for herself. Because of this,

she sustained burn injuries and was admitted to Victoria

Hospital for treatment. But, she succumbed to the injuries

at 2.40 a.m. on 4.8.2011 in the aforesaid Hospital.

4. It is the case of the prosecution that, one

S.V.Shantharaju S/o.late S.P.Venkatesh Shetty, the father

of deceased went to the Sarjapura Police Station at 9.00

a.m. on 4.8.2011 and lodged a written complaint as per

Ex.P1 before PW.15, one Sri M.Raghavendra, the then PSI

of Sarjapura Police Station. Based upon Ex.P1 he

registered a crime in the Crime No.107/2011 and set the

criminal law in motion by sending F.I.R. as per Ex.P11 to

the Court and to his superior officers.

5. PW.15 requested the Taluka Executive

Magistrate to conduct inquest Panchanama on the dead

body of deceased and went to the Victoria Hospital. After

completion of inquest Panchanama, he sent the dead body

for post mortem and thereafter, handed over the dead

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body to her legal heirs. Thereafter, he went to scene of

offence and conducted Panchanama in the presence of

Panchas as per Ex.P4, seized MO Nos.1 to 3. Recorded the

statement of witnesses. After collecting necessary

documents and after completion of investigation, he filed

charge sheet against accused persons for the offences

punishable under Section 498A, 306, 506 R/w.34 of IPC.

6. To substantiate the allegations made against

the accused persons, prosecution in all examined 15

witnesses as PWs. 1 to 15 and got marked Ex.P1 to P13

with respective signatures and also MO NOs.1 to 3. During

the course of cross-examination, the portions of

statements of PW.3 and 4 were marked as Ex.D1 to D3.

7. On evaluation of the evidence and on hearing

the arguments of both the side, the learned trial Court,

passed the impugned judgment which is under challenge

in this appeal by the appellants. So far as acquittal of the

accused for the offences under Section 506, 306 read with

Section 34 of IPC, the State has not preferred any appeal.

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Thus, the judgment of acquittal of accused for the said

offences has become final.

8. The learned counsel for the appellants-accused

with all force submits that, it is a case of suicide by the

deceased. Deceased stayed in her matrimonial home just

for 20 days. She had made allegations as per the

complaint allegations that, during her stay in her

matrimonial home, these accused nos. 1 and 2 used to ill

treat and harass her. The witnesses so examined in this

case are not the eye witnesses to any of alleged

ill-treatment or harassment. Though the IO has collected a

chit during the course of investigation making allegations

against accused but, the said handwriting of the deceased

was not subjected to scientific examination. There is

suppression of material facts by the IO There is no

evidence placed on record so as to bring home the guilt of

the accused to prove the ingredients of the offences

alleged against him. It is his submission that, as per the

PM report and medical records, deceased had sustained

95% of the burn injuries. When she has suffered such

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injuries, it was not possible to give any statement as per

Ex.P5. Therefore, he submits that, the said Ex.P5 cannot

be termed as `dying declaration'. The evidence so placed

on record is not convincing and never attracts the

ingredients of offence so alleged against the accused. This

Ex.P5 has no evidentiary value.

9. In support of his submission, he relied upon the

evidence spoken to by the witnesses and also the reasons

assigned by the trial Court. He submits that, the reasons

for conviction so assigned by the trial Court are not based

upon the evidence placed on record by the prosecution.

There are material contradictions, omissions and

improvements so as to rope the accused persons in the

commission of crime. In addition to the grounds urged in

the appeal memo, he submits that, accused are entitled

for acquittal and hence, prayed to allow the appeal.

10. As against this submission, the learned HCGP

supported the reasons assigned by the trial Court. He

submits that, considering the evidence placed on record,

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the learned trial Court has rightly come to the conclusion

that accused are guilty of committing the offences under

Section 498A of IPC. Such a well-reasoned judgment

cannot be interfered with. Supporting the trial Court

judgment, he prays to dismiss the appeal.

11. On hearing the arguments of both the side and

on evaluation of the evidence so placed on record by both

the side, the following point arises for my consideration:

"Whether the trial Court has committed any factual or legal error in appreciating the evidence in finding the accused guilty for the offence under Section 498A read with Section 34 of IPC?"

12. So far as death of deceased Kalashri because of

burn injuries, prosecution relies upon the contents of

complaint Ex.P1, scene of offence Panchanama Ex.P4,

inquest Panchanama as per Ex.P6, PM report as per Ex.P7

and also the evidence of inquest Panchas.

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13. On reading of all these documents, they do

reveal that, deceased Kalashri had sustained 95% of burn

injuries and it was opined by the doctor who conducted

the post mortem that "death was due to shock as a result

of burn injuries sustained". The doctor has noted the

nature of external injuries on the person of the deceased.

Even the photographs produced to show the burn injuries

on the person of the deceased at Ex.P8 to P10. These

documents do demonstrate that, by setting fire for herself,

deceased succumbed to burn injuries so sustained by her.

The FSL certificate collected by the IO as per Ex.P13

shows that, she sustained the burn injuries by pouring

kerosene. Therefore, if this oral and documentary

evidence is cumulatively read, it can be stated that, the

prosecution is able to prove the suicidal death of the

deceased.

14. The allegation of the prosecution is that, after

marriage of deceased with accused no.1 on 8.5.2011 at

Kannikaparameshwari Kalayana Mantap, Bengaluru,

deceased stayed in her matrimonial home for 20 days. She

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returned to her parents house to perform the "Ashadha

Masa". It is alleged by the prosecution that, during her

stay in her matrimonial home, deceased was ill-treated

and harassed both mentally and physically by accused

nos. 1 and 2. Even they used to suspect the deceased and

used to put restrictions on the deceased not to speak with

any of her relatives on telephone.

15. Ex.P1 is the complaint filed by PW.1 narrating

the so called harassment and ill-treatment by the accused

persons. Though he reiterates the contents of the

complaint in his evidence on oath, but in the chief-

examination, there is lot of improvement with regard to

alleged harassment and ill treatment. Evidently he is not

an eye witness to any of these allegations. According to

his complaint allegations and evidence spoken in

examination-in-chief, his daughter informed him about the

so called ill-treatment and harassment by the accused

persons. When the incident of setting fire for herself took

place in his house either himself or his wife were present.

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On getting information he went to the hospital and noticed

the injuries on the person of the deceased.

16. This PW.1 has been thoroughly cross-examined

by the defence. For the first time, without responding to

the abuse of accused persons, they brought their daughter

to their house. It is an improvement brought on record in

the cross-examination. It has come in the evidence of

PW.1 that, his relatives are doing business. Near his

house, there exists a telephone etc., There is no evidence

spoken to by PW.1 that, during the stay of deceased in the

house of accused, she called her parents and informed

about the so called harassment and ill-treatment by the

accused persons. PW.1 states that, it was one Nagaraj

Shetty his friend wrote the complaint. He lodged a

complaint before the ASI. He says, his wife and his

younger daughter were taking care of deceased at Victoria

Hospital. He states that, there was a Diary which was

found in the bathroom and it was given to police at the

time of Panchanama. He denied the suggestion that he

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has concocted Ex.P2, i.e., the handwriting of the

deceased.

17. On reading the evidence of PW.1 complainant,

except the bald allegations of ill-treatment and

harassment, that too hearsay evidence, there is no

concrete evidence to prove that, really the deceased was

harassed and ill-treated by accused persons in the manner

stated in the complaint. If such evidence is placed on

record through the complainant, it requires corroboration.

18. PW.2 S.V.Prashanth was a neighbour of PW.1.

According to him, on 3.8.2011, when he was in his shop,

he heard the noise and when he went to the house of

complainant, he came to know that, deceased Kalashri set

fire for herself. People gathered there were making

attempt to shift her to Town Hospital and thereafter, she

was shifted to Victoria Hospital. It has come in the

evidence of PW.2 that, his shop is situated at a distance of

two furlongs from the house of complainant. As per his

evidence, deceased Kalashri was shifted to the hospital in

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Auto Rickshaw. On reading the evidence of PW.2, on

hearing the sound of hue and cry in the house of the

complainant he went to the house and noticed that

Kalashri sustained burn injuries. To that extent, the

evidence of this witness is to be believed.

19. Likewise, PW.3 Smt.Mohanapriya also was a

neighbour. She too rushed to the house of the

complainant and noticed the burn injuries on the person of

the deceased and she accompanied the deceased to the

Victoria Hospital. She had attended the marriage of the

deceased. It has come in her evidence that, after

marriage, deceased was not visiting her house. Her house

is situated at a distance of 1 km. from the house of the

complainant. So the evidence of PW.3 can be believed to

the extent that, she rushed to the house of the

complainant on hearing the sound of setting fire by the

deceased and went to the said place.

20. PW.4 S.A.Kishorekumar is the relative of

deceased. He went to the house of the complainant only

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on hearing the news of this fire mishap with the deceased.

He went to the hospital for seeing the deceased. He

speaks about death of deceased in the hospital in the early

morning hrs of 4.8.2011. According to him, because of the

harassment by the husband of the deceased, she died.

But, he is a hearsay witness as per his evidence. He has

been cross-examined by the defence, According to his

statement, he has not stated before police as per Ex.D3.

Therefore, the evidence would not help the case of the

prosecution.

21. P.W.5 Rajeshwari W/o.Shantharaju is none else

than the mother of the deceased. She corroborates the

evidence of PW.1 in material particulars and speaks with

regard to performing of marriage of deceased with

accused no.1 by giving Rs.7,00,000/- towards dowry

though there was a demand to pay Rs.10,00,000/-. She

too states about the so called ill-treatment and

harassment by the accused persons to her daughter. She

has been cross-examined at length. According to her

evidence, her parents by name Satyanarayana Shetty and

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Padmavathamma took lead to perform the marriage of

deceased with accused. All her relatives had too much love

and affection towards deceased including herself.

According to her, when the incident took place, she was

not in the house and came to know the incident through

telephone. She rushed to the hospital. For the first time,

she states that, she has informed her parents and sisters

about the harassment and ill-treatment done by the

accused on her daughter.

22. The prosecution much relies upon a document

collected during the course of investigation by the IO

marked at Ex.P2. As per the prosecution, this was the

letter addressed by the deceased before her death on

3.8.2011. For immediate reference, it is just and proper to

incorporate the said handwriting so noticed in Ex.P2 in this

judgment:

"CªÀÄä ¤£Àß ¥ÀæPÀgÀ £Á£ÀÄ CAzÀgÀ PÀ Á²æÃ NªÀð ¸ÀÄ¼ÀÄîUÁw, ªÉÆ¸ÀUÁw PÀ½î, ¤£Àß ªÉÄ É ºÀuÉªÀiÁr ªÀiÁvÀÄÛ vÀ¦àzÀÝªÀ¼ÀÄ. CªÀÄä £À£Àß£ÀÄß PÀë«Ä¸ÀÄ £À¤ßAzÀ ¤£ÁßUÁ°è, vÀAzÉÃUÁ°è, £ÀªÀÄä PÀÄlÄA§zÀªÀjUÁUÀ°è £ÉªÀÄä¢AiÀÄ£ÀÄß PÉÆqÀ°®è. £À£Àß£ÀÄß PÀë«Ä¹ £À£Àß fÃªÀ£À ºÁ¼ÁV ºÉÆÃ¬ÄvÀÄÛ. £À£ÀßUÉ §zÀÄPÀ®Äè EµÀé«®è. CzÀjAzÀ £À£Àß£ÀÄß PÀë«Ä¹ £À£Àß C°è £ÉªÀÄä¢ E®è. E°èAiÀÄÆ £À£ÀßUÉ £ÉªÀÄä¢AiÀÄ£ÀÄß ºÀ¼ÀÄªÀiÁqÀ®Ä EµÀé«®è CzÀjAzÀ £Á£ÀÄ F ¤zÀðgÀPÉÌ PÉÊ ºÁQzÉ.

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CªÀÄä, C¥Àà JA¢UÀÆ £À£Àß£ÀÄß ªÀÄgÉAiÀÄ¨ÉÃr.

EAw ¤ªÀÄä PÀ Á²æÃ

£À£Àß£ÀÄß J®èjVAvÀ ¦æw¬ÄAzÀ £ÉÆrPÉÆAqÀ £À£Àß vÁvÁÛ£Àß ªÀÄ£ÉAiÀÄªÀgÀ, £À£Àß zÉÆqÀØªÀÄä£À ªÀÄ£ÉAiÀÄªÀgÉÃ, ºÁUÀÆ J®ègÀÆ £À£Àß PÀë«Ä¹ö

Bye I LOVE MY FAMILY Pls don't forgot me in your life pls

Over leaf

£À£ÀßUÉ ªÀÄzÀÄªÉAiÀiÁzÀgÀÆ ¸ÀºÀ £Á£ÀÄß E£ÀÆß PÀ£ÀåAiÀiÁVAiÉÄÃ E½¢zÉÃ£É. CzÀPÉÌ PÁgÀt £À£Àß CvÉÛ ºÁUÀÆ £À£Àß UÀAqÀ CªÀgÀÆ PÉÆlÖ QgÀÄPÀÄ¼À ºÁUÀÆ CªÀgÀÄ ºÁrzÀ ªÀiÁvÀÄÛUÀ¼À£ÀÄß PÉÃ¼ÀÄªÀÅzÀPÉÌ CUÀÄwÛgÀ°®è. CzÀjAzÀ £À£Àß F ¤zÀðgÀªÀ£ÀÄß vÉUÉzÀÄPÉÆAqÉÃ".

23. On reading the entire text of this Ex.P2, she has

apologized for her mistake to her mother. It is stated by

her that, because of her mistakes, the reputation of the

family has been damaged. She has stated that, nobody in

the house should forget her. On the overleaf of Ex.P2, it is

stated that, though she is married, she is still virgin and

for this, the accused are the cause. The accused ill-treated

her and used to harass her by abusing her etc. Therefore,

she has taken such drastic decision.

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24. The learned trial Court, commenting on Ex.P2

has come to the conclusion that, the contents of this Ex.P2

never constitute an offence of abetment to commit suicide

and rightly acquitted the accused persons. Even on

re-appreciating the contents of the same, it can never be

stated that, such handwriting really belongs to the

deceased or not. To get confirmation of the same, the

investigation officer has not ventured to send Ex.P2 for

scientific examination to get comparison of the

handwriting of the deceased to that of admitted

handwritings as the defence has seriously disputed the

contents of this Ex.P2.

25. In the cross-examination directed to PW.1 it is

suggested that, this Ex.P2 is created but, he denied the

suggestion. So also, it is suggested to PW.5 that, when

PW.5 left Bengaluru on 3.8.2011, she abused Kalashri as a

cheater, thief, liar etc., But, she denied the suggestion.

But, contents of this Ex.P2 shows that, it was PW.5 who

had abused deceased as stated in Ex.P2. But on the

overleaf of Ex.P2 certain allegations are made.

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26. It is submitted by the counsel for the defence

that, on going through the face page of Ex.P2 and

overleaf, it is noticed that, the ink so used for writing this

Ex.P2 on the face sheet as well as on the overleaf is not

identical or one and the same. By submitting so, he

submits that, the contents of this overleaf handwriting are

written after demise of deceased so as to implicate these

accused persons. There is some substance in his

submission for the simple reason that, the IO had not

taken any steps to send this Ex.P2 for scientific

examination for comparison of the hand writing. It is a

clear case of lacuna or lapse on the part of the IO.

27. Evidently this PW.5 is not an eye witness to any

of the allegations made in the complaint. Therefore, her

evidence would not help the case of the prosecution to

prove the contents of the complaint.

28. PW.6 Raghavendra Shetty is a person who went

to the hospital to see the deceased and came to know

about death of deceased because of burn injuries on

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account of ill treatment by her husband. This PW.6 was

not further examined by prosecution. Therefore, this

evidence of PW.6 remained without any further

examination or cross-examination hence, it can be stated

the evidence of PW.6 is non-est in the eyes of law.

29. PW.7 Hamsashri is sister of deceased.

According to her evidence, her sister stayed in her

matrimonial home for 20 days. When her parents and

herself went to bring Kalashri to her parental house at that

time, accused made galata by stating that, they are not

going to send her. But, even then, they brought her. The

accused did not come to the house to see the deceased.

Even her husband did not call her on telephone. For the

first time, she states that, as per the say of deceased, her

husband accused no.1, used to sleep in a separate room

and never slept with deceased. There is no such statement

given by her before the Police. She too is hearsay witness

to the said witness. According to her, on 3.8.2011, she

was sitting in the shop and came to the house at 4.30

p.m. for the purpose of going some where. At that time,

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she heard the noise from bathroom. She rushed to the

bath room and noticed burn injuries on the person of

deceased. The neighbours gathered there shifted her to

the hospital.

30. She admits in the cross-examination that,

whatever her sister had told her with regard to the

sleeping of her husband separately, she has not stated the

same before the Tahsildar when recorded her statement

while conducting inquest Panchaanama. As she is not an

eye witness to the said incident, her evidence would not

help the case of the prosecution except proving her

relationship with the deceased.

31. PW.8 Dr.Manjula C., was the doctor on duty on

3.8.2011 at V.H at 11.30 p.m. She was taking care of

emergency ward on that day. It is her evidence that, at

11.30 p.m. on 3.8.2011, the PSI of Sarjapura P.S., came

to hospital and sought her permission to record the

statement of the deceased Kalashri. Accordingly at 11.40

p.m. she issued a certificate and permitted PSI to record

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her statement. It is her evidence that, the PSI recorded

the statement of Kalashri in her presence and he took her

thumb impression on the said statement. It is her further

evidence that, when she gave a statement till completion

of statement, Kalashri was physically and mentally sound.

To that effect, PW.8 has issued endorsement. According to

her, the PSI completed the recording of statement at

00.20 a.m. on 04.08.2011. She identified the statement as

per Ex.P5 and her signature as per Ex.P5(a) and

endorsement as per Ex.P5(c).

32. She has been cross-examined at length by the

defence. She deposes that, she does not know, at what

time, deceased Kalashri was admitted to Victoria Hospital.

She admits that when a patient with burn injuries is

admitted to Victoria Hospital., such patient would be first

admitted to Emergency Ward. With regard to admission,

patient's name will be entered in MLC register and a memo

will be sent to the Out-Post situated at Victoria Hospital.

According to her, she has not inspected the said MLC

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p.m. on 03.08.2011 in the emergency ward and completed

at 8.00 a.m. on 04.08.2011. She states in the said

emergency ward, herself and another doctor were on duty

on that day. She states that, any of the wards in

emergency section were not under her responsibility. She

states that, in the burn ward, a separate sheet is

maintained with regard to burn injuries sustained by the

patients. She has not seen the case sheet pertaining to

the deceased on that day. She is unable to state that, how

many burn injuries were sustained by the deceased.

According to her, she might have sustained 30 burn

injuries. In unequivocal terms, she states that, she was

not deputed to treat the burn injury patients and unable to

say who was the duty doctor in the burn injury ward on

that day. It is her evidence that, the doctors were very

much available in the said ward and they were treating

her. But, she does not know their name. According to her,

when PSI Sarjapura P.S came to record the statement of

Kalashri, duty treating doctor had not come to the said

ward. Even she has not made any attempt to call the

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duty-treating doctor. There was one Nurse on duty on that

day. She has not stated who was that nurse on duty on

that day in her certificate. She does not know who were

present on that day while taking the signature of Kalashri

on the statement.

33. On reading the evidence of PW.8, though she

states that, she has certified about the physical, mental

and medical condition of Kalashri to give a statement to

the police but, she was not the duty doctor at that time.

The duty-treating doctors were present would have been

the best doctors to speak about physical and mental

condition of Kalashri. Even she has not made an attempt

to call them. As per the 'PM Report' and evidence of other

witnesses, including PW.8, deceased had sustained 95% of

burn injuries on her person. Whether, a patient having

suffered 95% burn injuries was capable of giving

statement is not stated by this PW.8 either in the

examination-in-chief or in cross-examination. She was not

a duty doctor, not a treating doctor and she was deputed

to emergency ward. So what was the competency of this

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PW.8 to certify about the condition of Kalashri is not

explained by the prosecution. Even the evidence of IO is

also very much silent to that effect.

34. Under the medical jurisprudence a patient

having suffered more than 80 to 90% burn injuries may

be capable of giving statement. As per the contents of

Ex.P5, the statement of deceased was recorded by the

PSI. This Ex.P5 shows that, the statement of the deceased

was recorded at 12.20 a.m. From what time to what time,

deceased gave her statement is not mentioned in this

Ex.P5. The very certification of PW.8 about the mental

condition, in view of her evidence spoken to in her

evidence both in examination-in-chief and cross-

examination creates a doubt.

35. In Ex.P2, certain allegations are made by the

deceased against her own mother alleging that her mother

has abused her and she has sought apology for her

conduct. If really, the deceased was really harassed and ill

treated by the accused persons in the manner stated in

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Ex.P5, nothing prevented her to say the similar allegations

in Ex.P2 when she was quite hale and healthy before

pouring kerosene and setting fire for herself. But, she

gave a statement as per Ex.P5 making allegations against

accused persons when she suffered 95% of burn injuries.

Thus, the contents of Ex.P5 are doubtful that, whether

such a statement was really given by the deceased or not

in the hospital as alleged by the prosecution. Even

evidence of PW.8, the doctor also does not inspire

confidence that, her certification of condition of the

deceased was really true or not. Therefore, evidence of

PW.8 never helps the case of the prosecution to prove the

statement of deceased per Ex.P5.

36. PW.9 Pradeep Kumar is the scene of offence

Pancha who was very much present when the Police came

to the scene of offence and conducted Pancahnama on

4.8.2011. No effective cross-examination is directed to

this witness. Therefore, in view of evidence of PW.9, it can

be stated the scene of offence Panchanama is proved.

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37. PW.10 Ravindranath and PW.11 Prasanna are

the inquest Panchaas who were present when the inquest

Panchanama was conducted by Taluka Executive

Magistrate (Tahsildar) as per Ex.P6. They speak about

their presence and preparation of inquest Panchanma by

Taluka Executive Magistrate. Except denial, nothing is

elicited from their mouth. Even the defence also does not

dispute the contents of Panchanama. Therefore, Ex.P6 is

proved by the prosecution.

38. PW.12 Dr. Jeralden Sanjay was the doctor who

conducted the PM on the dead body of deceased and

issued Ex.P7. He has been cross-examined by the defence.

With regard to the death of deceased because of burn

injuries, he admits. He states that, if the burn injuries are

more than 50%, they are dangerous to the life. All the

injuries so sustained by the deceased were serious burn

injuries. He states that, lady doctor has not conducted the

Post Mortem. The evidence of PW.12 can be believed to

the extent that, he has conducted the post mortem on the

dead body of deceased Kalashri and issued Ex.P7. She had

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sustained 95% burn injuries on her person. PW.13

Santhosh Dali was the police constable. He carried 10 litre

can to FSL for the purpose of FSL examination. No cross-

examination is directed to him. Therefore, evidence of

PW.13 can be accepted to the extent, he carrying said 10

litres can to the FSL.

39. PW.14 H.N.Shivegowda was Taluka Executive

Magistrate (Tahsildar) of Anekal at the relevant time who

conducted the inquest Panchanama on the dead body of

the deceased in the presence of Panchas and recorded the

statement of witnesses therein and issued Ex.P6.

Conducting of inquest Panchanama is not disputed by the

defence. He being the hearsay witness, certain irrelevant

questions were asked to this PW.14 by the defence which

are not at all warranted with regard to alleged

harassment, ill-treatment etc. Though he recorded the

statement of witnesses but, his evidence can be accepted

to the extent of preparing of inquest Pancahama.

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40. PW.15 M.Raghavendran, is the IO having

received the complaint, conducted the investigation,

recorded the statement of witness and after completion of

investigation filed charge sheet against the accused. It is

elicited in the cross-examination that, when he went to the

hospital deceased Kalashri was taking treatment at burn

Ward in Victoria Hospital. But, PW.8 states that she was

taking treating at emergency ward. He has not noticed any

other doctor other than Dr.Manjula in the said hospital on

that day. According to him, during the lifetime of

deceased, she gave a statement as per Ex.P5. He denied

suggestion that, he has created Ex.P5.

41. In view of evidence of PW.8, as there is no

evidence spoken to by this with regard to mental and

physical condition of deceased and getting certificate from

duty doctor, it creates doubt as to recording of statement

by this IO. Even the witnesses so spoken before the trial

Court have not stated as per Ex.D1 to D3 as per their

evidence before the Court. Though marriage of deceased

Kalashri is admitted with accused but, the very ill

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treatment and harassment is not proved in accordance

with law.

42. No doubt, the offence under Section 498A is a

serious offence against married women. When such an

offence is leveled against the accused persons, it is the

bounden duty of prosecution to prove all ingredients of

offence. No doubt, the deceased died within 20 days of her

marriage. A presumption is very much available with

regard dowry demand, ill treatment harassment under the

Indian Evidence Act, 1872. But, however, in a case of

present nature, it is the duty of the prosecution to prove

all the ingredients of the offence. Here, the deceased

herself poured kerosene on her in the bathroom of her

parent's house in the absence of any of the inmates of the

house by writing Ex.P2, making certain assertions about

her mother and sought apology. The very contents of

Ex.P2 and P5 are doubtful. Except the hearsay evidence of

witnesses, there is no connecting link to establish guilt of

the accused.

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43. Though accused nos. 1 and 2 were charged and

convicted for the offence under Section 498A of IPC but, it

is for the prosecution to prove the connecting ingredients

of the said offence. It is stated by the Tahsildar that, when

he was recording the statement, he came to know that

accused no.1 is impotent etc. and there was no

consummation of marriage. Either PW.1 or PW.5 being the

parents of the deceased never speak about the said fact.

In view of Section 113 A of evidence Act, no doubt a

presumption may be drawn, if victim commits suicide. But

in this case, the trial Court has acquitted the accused

persons for abetting to commit suicide. When abetment to

commit suicide is not proved, then assertions about the

harassment and ill-treatment by accused persons on the

person of deceased has to be established by the

prosecution by leading acceptable evidence.

44. As per the provisions of IPC to attract the

provisions of 498A of IPC, the prosecution is under

obligation to prove the ingredients of offence under

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Section 498A of IPC. The said ingredients or requirement

read as under:

"a) The women must be married.

b) she must be subjected to harassment and cruelty.

c) such harassment and cruelty must be by her husband and his relatives.

d) that means there must be a clear allegation that, the accused no.1 being the husband in this case harassed the deceased because of his willful conduct, beaten her, insulted her etc., soon before her death".

45. In this case, such ingredients are missing.

Contents of Ex.P2 and P5 falsify the very allegations as

both are contradictory in nature. If one is believed, the

other cannot be believed at all. The learned trial Court has

not appreciated the evidence with regard to proof of

offence under Sec.498A of IPC. By not appreciating the

evidence properly has wrongly come to the conclusion

that, the prosecution is able to prove offence under

Section 498A read with Section 34 of IPC. In view of

non-fulfillment of ingredients of offence under Section

498A of IPC which are not forthcoming from the testimony

of the witnesses, it can be stated that, prosecution has

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utterly failed to prove its case with legal and acceptable

evidence. Therefore, such a judgment of conviction and

order of sentence require interference by this Court.

46. In view of the foregoing reasons, the appeal

deserves to be allowed. Accused nos. 1 and 2 are to be

acquitted of the charges under Section 498A read with

Section 34 of IPC. Accordingly the aforesaid point is

answered in favour of the appellant and against he

prosecution. Resultantly, I pass the following:

ORDER

(i) Appeal is allowed. The judgment of conviction and order of sentence passed in SC No.365/2011 dated 27.05.2014 by the III Addl. District and Sessions Judge, Bengaluru Rural District sitting at Anekal, is hereby set aside.