deposed in their evidence as to the respective investigation
conducted by them.
33. CW20-Dr. Vishalakshi, the additional witness who is
not shown in the charge-sheet, is examined as PW25. She has
deposed in her evidence as to the treatment extended to the
accused-Umesh who came to the hospital with the history of
burn injury on both hands on 15th February 2017. She has
deposed that the injured was discharged on 16th February 2017
and she has issued report as per Exhibit P36.
34. On careful scrutiny of the entire evidence placed on
record and keeping in mind the decisions of Hon'ble Apex
Court, we are of the considered a view that the prosecution has
failed to prove the guilt of the accused for commission of
offence punishable under Sections 498A and 302 of Indian
Penal Code for the following:
Reasons as to Offence punishable under Section 498A
IPC:
35. It is the case of the prosecution that the accused
addicted to alcohol was demanding money from his wife
deceased-Lakshmi and was mentally harassing and physically
ill-treating by assaulting her when she refused to give him
- 26 -
money for consuming alcohol. That on 15th February 2017 at
about 8:30 am in the Kitchen, the accused demanded money
from his wife for consuming alcohol, and when she refused to
give him the money, he kicked her, and when she fell down, he
poured kerosene on her and lit fire. When she started
screaming, the neighbours came to rescue her and immediately
she was shifted to Jindal Sanjeevini Hospital at Toranagal.
With regard to the offence under Section 498A of IPC is
concerned, the prosecution has relied on the eye-witness-
Shivashankar, who is examined as PW6. He has not supported
the case of the prosecution. Even in his cross-examination, he
has categorically denied the statement recorded by the
Investigating Officer under Section 161 of Code of Criminal
Procedure as per Exhibits P8 and P9.
35.1. Other material witnesses PWs5 and 7, who are the
parents of the deceased, have also not supported case of the
prosecution. They have not whispered anything as to the
alleged ill-treatment said to have been meted out by the
accused to her daughter.
35.2. PW8-Hanumantha, PW9-Rathnamma and PW10-
Huligemma said to be the eye-witnesses, have also not
- 27 -
supported the case of prosecution. They have not whispered
anything as to the physical or mental ill-treatment or the
assault made by the accused to the deceased. Even in their
cross-examination, prosecution has failed to elicit any
favourable answers from them. Accordingly, prosecution has
failed to prove the guilt of the accused for the offence
punishable under section 498A of IPC.
Reasons as to Offence punishable under Section 302 IPC:
36. As regards, offence punishable under Section 302 of
Indian Penal Code is concerned, it is the case of the prosecution
that on 15th February, 2017 at 8:30 am in the kitchen, accused
demanded money from the deceased for consumption of
alcohol and when she refused to give money, he kicked her and
as a result, she fell down. Accused poured kerosene on her and
lit fire with the help of a matchbox. When the victim started
screaming, the neighbours came to rescue her and immediately
she was shifted to Jindal Sanjeevini Hospital at Tornagal. To
prove this fact, prosecution has relied on the complaint filed by
the victim which is marked as Exhibit P28. On the basis of this
complaint, Toranagal Police have registered the case in crime
No.16 of 2017 for commission of offence, punishable and
Sections 498A and 302 of Indian Penal Code. Though the
- 28 -
statement was recorded on 15th February 2017 at 9:30 am, the
Investigating Officer has not submitted the first information report
to the Court at the earliest point of time. Column No.13 of Exhibit
P23-First Information Report, reveals that the Investigating Officer
has sent the first information report on 15th February 2017 at
11:30 hours. The endorsement on Exhibit P23 reveals that the
jurisdictional Magistrate has received the FIR on 16th
February 2017 at 3:30 pm. In Exhibit P28-Mohammed Rafi,
Police Sub-Inspector has put his signature and the said
Mohammed Rafi is examined as PW24. The scribe of Exhibit P28
has not been examined by the prosecution.
37. CW22-Kotresh who is examined as PW17, has deposed
that he has submitted FIR-Exhibit P23 to the Court on 16th
February 2017, and he has not deposed anything as to delay in
submitting the FIR to the Court. Even he has not deposed
anything in his evidence that he has received the FIR on 15th
February, 2017 at 11:30 hours as shown in FIR. On the contrary,
he has clearly deposed that he has received the FIR on 16th
February 2017 at 9.00 am from his higher officer. The
prosecution has not explained anything as to delay in submitting
the FIR to the Court. This evidence clearly establishes that ante-
date and ante-time is mentioned in First Information Report.
- 29 -
38. In the case on hand, Complaint-Exhibit P28 is the
origin and Genesis and is the prime document for the reason
that after registration of this case, the victim/complainant
passed away on 21st February 2017; and secondly, the dying
declaration recorded by the Tahsildar on the date of incident
i.e. on 15th February, 2017.
39. Before analyzing the evidence as to submission of FIR
to the Court, it is relevant to mention here as to the provisions
of Section 157 of Code of Criminal Procedure. The
Investigating Officer has violated the provisions of Section 157
of Code of Criminal Procedure, which requires that the copy of
the FIR to be sent forthwith to the Magistrate concerned. The
interpretation of Section 157 of Code of Criminal Procedure is
no longer res-integra. The Hon'ble Supreme Court, in the case
of BRAHM SWAROOP v. STATE OF UTTAR PRADESH reported in
(2011)2 SCC Crl.923, has observed that the purpose of the
"forthwith" communication of a copy of the FIR to the
Magistrate is to check the possibility of its manipulation.
Therefore, a delay in transmitting the special report to the
Magistrate is linked to the lodging of the FIR. If there is no
delay in lodging an FIR, then any delay in communicating the
special report to the Magistrate would really be of little
- 30 -
consequence, since manipulation of the FIR would then get
ruled out. Nevertheless, the prosecution should explain the
delay in transmitting the special report to the Magistrate.
40. In another decision rendered by the Hon'ble Apex
Court in Criminal Appeals No.361-362 of 2018 decided on 28th
September, 2022 rendered in CHOTKAU v. STATE OF UTTAR
PRADESH, analyzing the importance of promptitude, both in the
registration of the FIR and in the transmission of the same to
the Court, the Hon'ble Supreme Court relying on its decision
rendered in MEHRAJ SINGH v. STATE OF UTTAR PRADESH
reported in (1994) 5 SCC 188, has held that on account of the
infirmities, the FIR loses its value and authenticity and it
appears that the same has been ante-timed and had not been
recorded till the inquest proceedings were over at the spot.
Further, it is observed that unexplained inordinate delay in
sending the copy of FIR to the Magistrate may affect the
prosecution case adversely. An adverse inference may be
drawn against the prosecution when there are circumstances
from which an inference can be drawn that there were chances
of manipulation in the FIR by falsely roping in the accused
persons after due deliberations. Delay provides legitimate basis
for suspicion of the FIR, as it affords sufficient time to the
- 31 -
prosecution to introduce improvements and embellishments.
Thus, a delay in dispatch of the FIR by itself is not a
circumstance which can throw out the prosecution's case in its
entirety, particularly when the prosecution furnishes a cogent
explanation for the delay in dispatch of the report or
prosecution case itself is proved by leading unimpeachable
evidence.
41. With regard to First Information Report is concerned,
Karnataka Police Manual Part No.1224 reads as under:
"1224. Crime Register in Form No. 20 will be
maintained in each Police Station wherein entries will be
made as per instructions given in the form. This is a
continuous record for all First Information Reports
registered and will be written up in the order of register of
the First Information Report. This will be in two volumes,
one for professional property offences and the other for
other cognizable offences. Attention is drawn to S.O. 646.
COMMENTS
Maintenance of public order and prevention and
detection of offences are considered the core functions of
police. Whatever has been studied so far like beats,
preservation of peace etc., pertain to the maintenance of
public order and prevention of offences. The Chapter on
"First Information to the Police" introduces the concept of
investigation of offences, Commencing with this chapter,
the Manual systematically proceeds to explain in the
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succeeding chapters the legal provisions contained in the
Criminal Procedure Code and the Indian Evidence Act and
the powers of the police in the investigation of offences."
42. It is stated that FIR is a very valuable document
and it has utmost importance both from the point of view of
prosecution and from point of view of evidence. On receipt of
such information, the Station House Officer of the Police
Station is legally required to draw up regular First
Information Report in the Form prescribed by the State
Government vide Section 154 of the Code of Criminal
Procedure. When an information concerning cognizable
offence is laid before an officer-in-charge of a police station
satisfying the requirements of Section 154(1) of the Criminal
Procedure Code, the said police officer has no other option
except to enter the substance thereof in the pre- scribed form,
that is to say, to register a case on the basis of such
information. The same is also observed by the Hon'ble
Supreme Court in the case of STATE OF HARYANA AND OTHERS
v. CH. BHAJAN LAL AND OTHERS reported in AIR 1992 SC 604.
43. Karnataka Police Manual also has given guidelines
as to the important issues concerning the First Information
Report. The same read thus:
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"Following are the important issues concerning a FIR
which should be remembered while making the FIR
• FIR should be lodged immediately.
• It should be recorded in first person.
• Have an empathetic attitude towards the victim and
the informer.
• Avoid using technical words and as far as possible use
the language of the informer.
• A written complaint should be taken but it should bear
the signature of the person giving the information.
• FIR is only in respect of a cognizable offence.
• Place, Date & Time of occurrence should be mentioned
in the FIR.
• FIR should clarify the delay, if any, in registering the
case.
• In respect of property value should be mentioned and
the value should not be reduced.
• Telephone number, if any, of the informant can be
mentioned in the FIR.
• A copy of FIR should be sent to the concerned court.
• A copy of FIR should be provided to the complainant
free of cost.
DO NOT
• Confuse the informant.
• Use Hearsay language.
• Be aggressive.
• Enter unnecessary details.
• Over-write or score off words.
• Reduce the gravity of the offence.
• Forget to take thumb impression or signature of the
informer."
- 34 -
44. In the case on hand, the complaint-Exhibit P28,
which is recorded by the police constable who is not examined
before the Court, will create reasonable doubt on the following
grounds:
1) The alleged incident took place on 15th February
2017 at 8:30 am;
2) The injured admitted to the Jindal Sanjeevini
Hospital at Toranagal on 15th February 2017 at
9:30 am.
3) PW 24, Mohammed Rafi, Police Sub-Inspector who
has put his signature on Exhibit P28 has deposed
in his evidence that he visited the hospital along
with PC 392 Anandgouda, who is a scribe and he
has obtained the statement of victim in the
presence of the medical officer. The medical
officer C.K.N. Chandru examined a PW20, has put
his seal and signature on exhibit P 28. He has
deposed that he has received requisition from the
police as per Exhibit P27 on 15th February 2017,
and he has endorsed Exhibit P27 that patient can
give statement. He has stated that the police have
recorded the statement of the victim at 10:30 am.
He has not endorsed on Exhibit P28 as to the
condition of the victim, but he has only put his
signature and seal.
- 35 -
4) Exhibit P30 the OPD case sheet reveals that the
victim-Lakshmi aged 30 admitted to the hospital
with the history of burns on 15th February 2017 at
8:45 am. Exhibit P30 OPD sheet reveals that at
the time of admission of injured to the hospital,
her BP was 90/60. The operation notes which is
attached to the case sheet reveals that the burns
is to the extent of second to third degree and
injury is 90%.
5) PW24-Mohammed Rafi has deposed in his
evidence that on 15th February 2017, he has
received MLC report from Jindal Sanjeevani
Hospital Toranagal as to the admission of victim
to the hospital with history of burns. Then he
proceeded to the hospital along with PC 392. But
the said MLC report is not produced by the
prosecution.
45. It is submitted by the learned Counsel for the
complainant that Modi Medical Jurisprudence and Toxicology
speaks about post-mortem appearance of burn injuries. It
states that the burn caused by kerosene oil are usually very
severe and the body would be exposed to great heat, it gets
cooked and becomes so rigid and a person who has sustained
burn injury from kerosene oil, will not be in a position of
surviving the said injury. In the case on hand, the victim has
- 36 -
suffered 90% burn injuries from Kerosene oil and the post-
mortem report also says that from neck to waist the victim has
sustained grievous injuries and was covered with bandage.
This shows that the victim was not in a position to give her
statement before the Police. Further, he would submit that in
the decision of Supreme Court in the Case of UTTAM (supra),
the Supreme Court has made observation that, "...as per
medical evidence, deceased sustained burn injuries on both
arms and legs, chest, abdomen, back, head, neck and face to
the extent of 93%. Requisite medical certificate as to mental
and physical condition of the deceased not obtained from the
doctor prior to recording statement of deceased dying
declaration also not recorded in seclusion and there also appear
probability of deceased being promoted/tutored due to the
presence her relatives resultantly, there held sufficient reasons
for doubting the truthfulness of the dying declaration."
46. It is submitted by the Counsel for the appellant that it
has come in the evidence of prosecution witnesses, including
the parents of the deceased who has deposed that the
deceased is from Andhra Pradesh and she does not know
Kannada language. However, Exhibit P28 is in Kannada
language and even the scribe has not been examined by the
- 37 -
prosecution. The contents of Exhibit P28 itself reveals that it is
a concocted and created document. In the written statement
filed by the accused on 05th October, 2021 under Section 313
of Code of Criminal Procedure, the accused has stated that his
wife did not know Kannada language and the parents of the
deceased also stated the same before the court on oath. This
evidence placed before this Court reveals that though the
deceased does not know Kannada language, the Police have
recorded her statement as per Exhibit P28, will create doubt as
to the statement said to have been given by deceased.
47. It is the further case of the prosecution that on the
date of incident itself i.e. on 15th February 2017 at 6.00 pm at
the request of the Police, PW22-Nagaraj the Tahsildar, has
recorded the dying declaration as per Exhibit P29. The
Tahsildar has not taken the LTM or the signature of the
deceased on this document. He has deposed on oath that on
15th February 2017 at 6.00 pm when he visited the hospital, he
has not taken the LTM or fingerprint of the injured, as her both
hands were burnt. However, Exhibit P28-complaint said to have
been given by the victim which was reduced to writing by the
police officials marked as Exhibit P28, reveals that the victim
has put her LTM, which is also marked as Exhibit P28(c).
- 38 -
Though the victim was not in a position to put her LTM or
signature on dying declaration recorded by the Tahsildar, how
she has put her LTM on Exhibit P28 has not been explained by
the prosecution. If injured had put LTM on Exhibit P28 as per
Exhibit P28(c), the police would have taken signature or LTM of
the complainant in Column No.12 of the FIR which is marked as
Exhibit P23. But the Column No.12 in Exhibit P23 as to
signature/LTM of the complainant is left blank. What needs to
be noted is that Column 7 of Exhibit P15 inquest Panchama
reveals that there had been injuries on head and on both
cheeks and lips and further it reveals that both the hands are
tied with bandage. Though post-mortem report-Exhibit P24
states that body, except head and face, was fully burnt,
however, the postmortem report reveals that blaster has
ruptured both cheeks and chin. Exhibit P17 photo of the
deceased also reveals that injured sustained burn injuries on
both cheeks, lips, chin, and forehead. Exhibit P15-inquest
panchanama reveals that deceased has sustained burn injuries
on head, both cheeks, chin and lips and her both hands were
completely burnt and tied with bandage. In this regard, the
Investigating Officer has not explained anything. The
inconsistent evidence as to the health condition of the deceased
- 39 -
at the time of recording the statement will create reasonable
doubt in the minds of the Court about Exhibit P29-the alleged
dying declaration of the deceased.
48. As already discussed above, the parents of the
deceased have clearly deposed in their evidence that they are
from Andhra Pradesh and the deceased did not know Kannada
language. However, Tahsildar PW22 has recorded the answers
in vernacular language. Considering the facts and
circumstances of the case, it is necessary to mention here as to
the importance of dying declaration. In Points 1267 to 1277 of
Karnataka Police Manual, it is mentioned as to recording of
dying declaration. The same reads as under:
"1267. The statement made by a person as to the
cause of his death or as to any of the circumstances of
the transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question, is admissible in evidence under Clause (1) of
Section 32 of the Indian Evidence Act. Such statement is
relevant whether the person who made it was or was not,
at the time when it was made, under expectation of
death, and whatever may be the nature of the proceeding
in which the cause of his death comes into question.
1268. The dying declaration should ordinarily be
got recorded by the Executive Magistrate; when however
an Executive Magistrate is not readily available for one
- 40 -
reason or the other, a Police Officer may get the dying
declaration recorded by the Judicial Magistrate.
1269. Such person shall, if possible, be examined
by a Medical Officer, with a view to ascertaining that he is
in a sufficiently fit condition to make his statement.
Where for any reason, the presence of a Medical Officer
cannot be procured without delay, the Magistrate or the
Officer recording the dying declaration should satisfy
himself that the declarant is in a sufficiently fit condition
to make a statement and record the fact.
1270. If no Magistrate can be secured, such
statement shall be recorded by the Investigating Officer
in the presence of two or more witnesses.
1271. If no such witnesses can be obtained without
risk of such person's death before his statement can be
recorded, it shall be recorded by the Investigating Officer
in the presence of one or more Police Officers.
1272. The declaration may be recorded by any
person. Even if the declaration is made to a Police Officer,
it is admissible in evidence and its use is not barred by
Section 162, Cr.PC. Even if it has been made orally in the
presence of any per person, it may be proved in court by
the oral evidence of that person. The declaration becomes
admissible, if the declarant subsequently dies. If he
survives, it will be useful, if made before a Magistrate, or
any one other than a Police Officer, to corroborate his oral
evidence as a witness in court. If it was made before a
Police Officer, it will be treated as a statement under
Section 162. Cr.PC.
- 41 -
1273. The declaration must, as far as possible, be
complete by itself, the person making the declaration
must be speaking from personal knowledge of the facts.
If reduced to writing by the police, the declaration should,
as far as possible, be in the form of questions and
answers and in the very words of the declarant. The
signature of the declarant should invariably be taken on
the dying declaration; but if the declarant is an illiterate
or is incapaciated from signing for any reason, such as his
hand being maimed, his thumb impression should be
taken. A note should be made in the dying declaration
giving reasons why the signature of the declarant was not
taken.
1274. If any person is accused by the person
whose statement is to be recorded, of having been
concerned in the transaction which threatens to result in
his death, the accused person should be invited to be
present while the statement is being taken down, or if he
is already in custody, should be taken to the spot and
allowed to cross-examine or question the declarant, the
questions and answers being recorded in full. The Police
Officer recording a dying declaration shall secure the
signature or thumb mark of the declarant and also of the
accused, if present.
1275. When the declarant, being in a serious
condition and unable to speak makes signs by hand or
head, the person recording the dying declaration must
record the precise nature of the signs which the declarant
made.
- 42 -
1276. When the dying declaration is recorded by a
person other than a Magistrate, it should be forwarded
forthwith retaining a copy, to the court having jurisdiction
to inquire into or try the case under investigation. If the
dying declaration is recorded by a Magistrate, a copy
thereof should be obtained for purposes of further
investigation.
1277. Incomplete dying declarations are not by
themselves inadmissible in law. Though a dying
declaration is incomplete by reason of the deceased not
being able to answer further questions in his then
condition, yet the statement, so far as it goes to implicate
the accused, could be relied upon by the prosecution,
provided it is quite categoric in character and complete by
itself so far as the implication of the accused is
concerned. If there is corroboration for the dying
declaration, it is so much the better, as the incomplete
dying declaration would then be invested with the stamp
of truth."
49. Exhibit P28-statement of victim was recorded as
complaint on 15th February 2017 at 10:30 am. On the same
day, at 6.00 pm, Tahsildar has recorded the dying declaration
of the deceased. It has come in the evidence of PW17
Kotresha, who has deposed that he has received the FIR from
the higher officer on 16th February, 2017 at 9.00 am. The
endorsement made on Exhibit P23 reveals that Magistrate has
received the FIR on 16th February 2017 at 3:30 PM. It has
- 43 -
come in the evidence that they have sent the FIR on 15th
February, 2017 at 11:30 hours. Though FIR was submitted
before the jurisdictional magistrate on 16th February, 2017 at
3:30 pm, the Investigation Officer has not submitted this dying
declaration said to have been recorded by the Tahsildar, along
with the first information report. He has submitted the dying
declaration only at the time of filing the charge-sheet. This
conduct of the Investigating Officer will create reasonable doubt
as to the recording of complaint-Exhibit P28 as well as dying
declaration-Exhibit P29.
50. With regard to mental condition of the deceased to
make a dying declaration, PW20-Dr. C.K.N. Chandru has
deposed that he has endorsed as per exhibit P29(c) on Exhibit
P29 that the patient is in a position to give statement. During
the course of cross-examination, he has deposed that the
injured was in a fit position to put LTM or signature. Whereas
PW22 has clearly deposed that the deceased was not in a
position to put her LTM or signature, as both of her hands were
burnt. Even Complaint-Exhibit P28 and dying declaration-
Exhibit P29, will not disclose that the scribe of Exhibit P28
Mohammed Rafi, Police Sub-Inspector, who was present at the
time of recording statement of victim as per Exhibit P28 or the
- 44 -
medical officer PW20, the Tahsildar PW22 have not entered on
Exhibit P28 and Exhibit P29 that they have read over the
contents of the complaint to the victim in the language known
to the victim. Even Exhibit P29 dying declaration said to have
been recorded by PW22-Nagaraju and PW20-Dr Chandru who
has said that the patient was fit to give statement, has also not
endorsed that the answers given by the victim was read over to
the victim in the language known to her. Apart from this, the
investigating officer has not collected any material to show that
the victim was acquainted with Kannada language. But it is an
admitted fact that the victim was from Andhra Pradesh. The
parents of the victim have clearly deposed that their daughter
does not know Kannada language. Given the circumstance, the
case of prosecution will create doubt as to the recording of
statement of victim as per Exhibits P28 and P29.
51. On a careful scrutiny of the case sheet, the same
does not reveal as to the condition of the deceased on 15th
February 2017 at 6.00 pm. Same is missing and not noted by
the medical officer PW20-Dr.Chandru who has treated the
injured. In this regard, PW20 has not explained anything in his
evidence. This also creates doubt as to the recording of dying
- 45 -
declaration said to have been recorded by the Tahsildar as well
as Police Sub-Inspector Mohammed Rafi.
52. Apart from this medical evidence, the witnesses
who are examined before the Court, including the parents of
the deceased, have clearly admitted in their evidence that
when they have witnessed the victim in the hospital, she was
not in a position to speak. The prosecution has not placed any
material to discard this evidence of the prosecution witnesses.
Under the given set of circumstances, the delay in submitting
the FIR to the Court; the fact that the deceased does not know
Kannada language; the non-examination of scribe-Exhibit P28;
no endorsement by PW20 on Exhibit P28 as to the condition of
the patient; and the delay in submitting dying declaration said
to have been recorded by the Tahsildar before the Court, all will
create doubt about the alleged act of the accused and also
exhibit P28 complaint and Exhibit P29-dying declaration.
Conduct of the accused:
53. The prosecution alleges that the accused attempted
to extinguish the fire engulfing his wife and, in the process,
sustained burn injuries on his hands. It is further contended
that after the incident, the accused, with the assistance of
- 46 -
others, transported his wife to the hospital for medical
treatment. He too was admitted to the General Hospital at
Toranagal for his injuries. To substantiate this claim, the
prosecution examined PW25-Dr.Vishalakshi, who treated the
accused. In her testimony, she unequivocally stated that on
15th February 2017, the accused Umesh was brought to the
hospital by his parents for a medical examination. Upon
examining him, she observed burn injuries on both of his
hands, with more severe burns on his left hand, as well as
additional burns on his nose and right leg. She confirmed that
he was admitted to CHC Toranagal on the same day and that
his wounds were extensive, causing severe pain and burning
sensations. She provided primary treatment and subsequently
referred him to a higher medical center for further
management. He was later discharged from the hospital on 16th
February 2017 at 11:00 AM, as documented in the wound
certificate marked as Exhibit P36.
54. Notably, the prosecution has not produced any
further medical records regarding the continued treatment of
the accused beyond this initial hospitalization. This lack of
documentation raises questions regarding the extent of his
injuries and the nature of the incident. Had the accused truly
- 47 -
poured kerosene on his wife and set her ablaze, it is unlikely
that he would have made efforts to save her from the fire or
rushed her to the hospital for medical attention. His immediate
response to the situation, including his attempt to douze the
flames and his willingness to seek medical help for his wife,
contradicts the prosecution's assertion of his culpability.
Furthermore, there is no evidence to suggest that the accused
absconded following the alleged incident, which would have
been expected if he were indeed guilty of the heinous act
attributed to him. Despite these crucial aspects, the
Investigating Officer has not provided any explanation
regarding the burn injuries sustained by the accused at the
time of the incident. This omission further weakens the
prosecution's case and raises reasonable doubts regarding the
actual sequence of events.
55. It is the case of the prosecution that the accused
used to demand money from his wife for consuming alcohol and
when she refused to pay the money, he used to ill treat her
mentally and physically prior to alleged incident. On the
unfortunate day of 15th February 2017 at 8:30 am in the
kitchen, the accused asked for money from his wife for
consuming alcohol and when she refused to give the money,
- 48 -
the accused kicked her with legs. But, this accusation made by
the prosecution has not been proved by the prosecution. The
material witnesses PW5 and 7-parents of the deceased, have
not deposed anything as to the alleged, mental and physical ill-
treatment said to have been meted out by the accused on their
daughter. On the contrary, during their cross-examination
made by the Public Prosecutor after treating them as hostile
witnesses with the permission of the Court, they have
categorically denied the statement said to have recorded by the
Investigating Officer regarding the mental and physical ill-
treatment given by the accused to their daughter. PW6-
Shivashankar eye-witness to the incident and the neighbour,
PW8-Hanumantha, PW9-Rathnamma, PW10-Huligemma and
PW14-Marekka, have not stated anything as to the alleged ill-
treatment meted out by the accused to the deceased. On the
contrary, they have clearly stated in their examination-in-chief
that the accused and the victim were well known to them and
they got married about 7 to 8 years back and have gotten two
children out of their wedlock and they were leading a happy
married life. The prosecution has not elicited any favourable
answers from these material witnesses as to the alleged ill-
treatment as alleged by the prosecution. Accordingly, the
- 49 -
prosecution has failed to prove that prior to the alleged
incident, accused was ill-treating the deceased mentally and
physically.
56. Further, panch witnesses PW1-Hanumanthappa,
PW2-Swamy, PW3-Gavisiddappa, PW4-Shanmukha, who are
said to be attesters to seizure panchanama, have also not
supported the case of prosecution. Prosecution has failed to
place cogent, convincing, corroborative, clinching, believable or
trustworthy evidence before the Court. Additionally, the
Investigation Officer has failed to comply with the mandatory
provisions of Criminal Procedure Code 1973, Karnataka Police
Manual and also the guidelines issued by the Hon'ble Apex
Court regarding prior and after recording of dying declaration
and submitting the First Information Report to the Court.
57. Viewed from any angle, the case of the prosecution
will create doubt at each and every stage for the reasons stated
supra. Considering the facts and circumstances of the case,
the procedure to be followed prior and after recording the dying
declaration, so also, while recording dying declaration and the
guidelines given to the Investigating Officers as per Karnataka
Police Manual and the procedures regarding submission of FIR
- 50 -
to the Court under section 157 of Code of Criminal Procedure,
and keeping in mind the aforesaid decisions of Hon'ble
Supreme Court, we are of the considered view that the entire
case of prosecution will create reasonable doubt. Accordingly,
in view of the Criminal jurisprudence, the benefit of doubt shall
be given to the accused. For the aforesaid reasons, we are of
the view that the prosecution has failed to prove the guilt of the
accused beyond all reasonable doubts. In the result, we
answer Point No.1 in the affirmative.
58. Insofar as victim compensation is concerned, in the
case on hand, prosecution has failed to prove that the accused
has committed the offence under Sections 498(A) and 302 of
the Indian Penal Code. In view of the provisions of Section
357A of Code of Criminal Procedure, 1973 and also the Circular
issued by this Court in No.4 of 2019 dated 23rd September,
2019, all the Judicial Officers in the State are to follow the
guidelines issued in the Judgment rendered the case of STATE
OF KARNATAKA v. VISHWANATHA DEVADIGA AND ANOTHER
rendered in Criminal Appeal No.770 of 2013 decided on 29th
August, 2019 and to comply with the object and intent of
Sections 357 and 357A of Code of Criminal Procedure while
- 51 -
awarding compensation to the victims under Victim
Compensation Scheme.
Regarding Point No.2:
59. For the aforesaid reasons and discussions, we
proceed to pass the following:
ORDER
(i) Appeal is allowed;
(ii) The judgment of conviction and order on
sentence 30th September 2022 passed in SC
No.30 of 2017 by the II Additional District and
Sessions Judge, Ballari is set aside;
(iii) Accused is acquitted of the offence punishable
under Sections 498A and 302 of Indian penal
code;
(iv) Registry is directed to send the copy of this
judgment along with the trial Court records to
the concerned Court as also to the Member
Secretary, District Legal Services Authority,
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Bellary to take necessary to award suitable
compensation to the children of the deceased;
(v) The Member Secretary, DSLA, Ballari is
directed to award suitable compensation to the
minor children of the deceased within three
months from the date of receipt of certified
copy of this Judgment, in accordance with
victim compensation scheme.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G. BASAVARAJA)
JUDGE
lnn / CT-CMU
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