Karnataka High Court

Devaraju vs State Of Karnataka on 5 February, 2025

                                                 -1-
                                                            NC: 2025:KHC:5104-DB
                                                          CRL.A No. 2297 of 2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 5TH DAY OF FEBRUARY, 2025

                                             PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                AND
                            THE HON'BLE MR JUSTICE K. V. ARAVIND
                              CRIMINAL APPEAL NO. 2297 OF 2018
                   Between:

                   Devaraju
                   S/o Late Eraiah,
                   Aged about 48 years,
                   R/at Lower Primary School,
                   Doddabyadarahalli,
                   Hoovina Beedi, II Cross,
                   Pandavapura, Pandavapura Taluk,
                   Mandya District - 571426.
                                                                        ...Appellant
                   (By Sri Pratheep K.C., Advocate)
Digitally signed
by VEERENDRA       And:
KUMAR K M
Location: HIGH     State of Karnataka
COURT OF           By Pandavapura Police Station,
KARNATAKA
                   Rep By Public Prosecutor,
                   High Court Complex,
                   Bengaluru-560 001.
                                                                     ...Respondent
                   (By Sri Vijaykumar Majage, SPP-II)

                         This Criminal Appeal is filed u/s.374(2) Cr.P.C praying to
                   set aside the judgment and order of conviction and sentence
                   dated 04.09.2018 passed by the III Additional District and
                   Sessions Judge, Mandya (sitting at Srirangapattana) in
                   S.C.No.5006/2017- convicting the appellant/accused for the
                   offence p/u/s 498A and 302 of IPC.
                             -2-
                                      NC: 2025:KHC:5104-DB
                                    CRL.A No. 2297 of 2018




     This Criminal Appeal, coming on for hearing, this day,
judgment was delivered therein as under:

CORAM:    HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
          and
          HON'BLE MR JUSTICE K. V. ARAVIND


                    ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)

This appeal is by the accused who has stood

convicted and sentenced for the offences under Sections

498A and 302 of IPC.

2. The accused is the husband of the deceased

namely Rajamma, their marriage having taken place

about 20 years prior to 31.1.2016, the date of incident.

PW3-Shalini is their daughter. They had a son, but he

died when he was a child of 3 ½ years old. It is alleged

that the accused was addicted to liquor, and wanted to

contract second marriage to beget a male child. Therefore

in this regard there used to take place quarrels between

them very often. It is alleged that the accused was

harassing his wife physically and mentally. On 29.1.2016,

NC: 2025:KHC:5104-DB

deceased went to Pandavapura police station and made a

complaint against the accused being unable to bear the

torture. Her relatives advised the accused not to harass

like that. The accused having thought that his wife

maligned his reputation in front of her relatives and

keeping in mind the enmity against her due to frequent

quarrels, again got into altercation with her at 5.00 p.m on

31.1.2016, poured kerosene on her and set her ablaze.

She succumbed to injuries in the hospital at 6.45 p.m. on

1.2.2016. The deceased made a dying declaration as per

Ex.P14 in between 3.20 and 3.45 p.m on 1.2.2016. Based

on this, FIR was registered in the first instance for the

offences under Sections 307 and 498A of IPC. After her

death, the offence under Section 302 of IPC was invoked

in the FIR in the place of Section 307 of IPC. He faced

trial for these two offences.

3. The prosecution examined 17 witnesses to

establish its case. Exhibits P1 to P27 are the documents

and MOs 1 to 13 are the material objects marked during

NC: 2025:KHC:5104-DB

trial. For convicting the accused, the trial court has

recorded reasons that the dying declaration as per Ex.P14

is fully believable. The doctor examined as PW14 certified

that deceased was in a fit condition to give statement

before the Tahsildar-PW13 to record the dying declaration.

In the dying declaration it is clearly stated that her

husband poured kerosene and lit fire to her. She has

given the reason for that incident to take place. In

addition the evidence of PW-3, the daughter clearly shows

that the accused was harassing the deceased in drunken

state. She has also stated that the accused was

suspecting the fidelity of her mother. She was very much

present when the accused set fire to the deceased. There

are no reasons to discard her testimony. The defence has

made an attempt that she spoke against her father

deliberately as the latter did not provide her with a smart

phone. The defence cannot be accepted at all. PW4 is the

mother and PW5 is the brother of the deceased. Though

they were not present at the time of incident, their

evidence as regards ill-treatment by the accused to the

NC: 2025:KHC:5104-DB

deceased cannot be discarded. Their evidence finds

support from PW10, PW11 and PW12. In this view the

prosecution has been able to prove its case beyond

reasonable doubt.

4. Assailing the findings recorded by the trial court,

Sri K.C.Pratheep, learned counsel for the accused, argued

that the dying declaration should not have been acted

upon by the trial court in as much as by the time

statement was recorded, the close relatives of the

deceased were very much present in the hospital and they

might have influenced her to make a statement against

the accused. He argued that this inference is possible to

be drawn because when the deceased was admitted to

hospital soon after the incident on 31.1.2016, the doctor

sent an MLC note to the police as per Ex.P20 in which the

history is clearly written as attempt to commit suicide.

This history was given by PW3. Of course the accused

also gave the history that his wife caught fire due to stove

burst. Whatever may be the history given by the accused,

NC: 2025:KHC:5104-DB

one thing becomes clear that the history recorded in

Ex.P20 leads to doubt the veracity in Ex.P14. Another

reason to disbelieve Ex.P14 is that the death occurred at

6.45 p.m on 1.2.2016. She did not live long after giving

dying declaration. This indicates that her health condition

was deteriorating. The doctor-PW14 has clearly admitted

that the health condition of the deceased was not

mentioned in the case sheet at the time when the

declaration was recorded and she was deteriorating

physically and mentally. PW10 has stated that when he

went to the hospital deceased was not able to speak. In

this view of the matter it is highly impossible that

deceased was able to give a statement as per Ex.P14.

4.1. Sri Pratheep put forth another point of

argument that as soon as MLC was forwarded to the police

as per Ex.P20, an FIR should have been registered as it

was the first information about a cognizable offence having

taken place. PW3 has stated that on 1.2.2016, the police

recorded a statement at 2.00 p.m. This statement is not

NC: 2025:KHC:5104-DB

forthcoming and if she had given a statement, FIR could

have been registered based on it. Instead Ex.P14 was

based to register FIR. By that time there was a gathering

of the close relatives of the deceased and for this reason

there were chances that they might have given a distorted

version to the police for registration of FIR against the

accused. There is no explanation for delay in registration

of FIR and this itself is enough to reject the entire

prosecution case.

4.2. The third point of argument of Sri K.C.Pratheep

was that the motive projected by the prosecution cannot

be accepted at all. The main allegation is that the accused

wanted to marry again to beget a male child. This cannot

be believed because his son died at the age of 3 ½ years.

If really he wanted to have a male child and the deceased

was an obstruction for the second marriage, he would not

have waited for twenty long years, either he would have

married or taken a decision to eliminate his wife from his

way some time long back. If he was still insisting for the

NC: 2025:KHC:5104-DB

second marriage, it is something highly impossible to be

believed and therefore the motive is weak. The accused

might be taking liquor and there might have taken place

some quarrels between the couples. The deceased had

lodged a complaint against the accused about two days

before the incident occurred and the accused was

summoned to the police station. While returning from

police station, he brought chicken and asked his wife to

cook it. The police have mentioned in the spot mahazar

that they found chicken in the kitchen. If this is seen, it is

not possible to arrive at a conclusion that the accused had

an intention to kill her. These are all the circumstances

that stare at the prosecution case to make it not

believable. The trial court has ignored all these vital

aspects of the matter. There is no proof beyond

reasonable doubt and therefore appeal deserves to be

allowed.

5. Sri Vijaykumar Majage, learned SPP-II, argued

that complaint as per Ex.P6 was made by the deceased

NC: 2025:KHC:5104-DB

against the accused two days before the incident. In that

complaint it is clearly narrated the way in which deceased

was being ill-treated. There is an allegation that the

accused had illicit relationship with another woman. It is

also written that the accused had put a threat to the

deceased that he would kill her in case she went to police

station. Intention to kill her becomes writ large from

Ex.P6. In this view, the contents of dying declaration

cannot be disbelieved. The doctor has clearly endorsed

that the deceased was able to speak and in a fit condition

to make statement. It is only after this certification the

Tahsildar recorded the dying declaration. There was no

reason for the deceased to unnecessarily implicate the

accused. The trial court has rightly appreciated the

evidence and therefore appeal deserves to be dismissed.

6. We have considered the points of arguments. At

the outset it may be stated that the trial court appears to

have ignored certain vital evidence while appreciating

evidence. It is true that a greater weight is attached to

- 10 -

NC: 2025:KHC:5104-DB

the dying declaration on the assumption that a person

anticipating death does not lie. But whenever absolute

reliance is to be placed on the dying declaration, all other

attending circumstances must appear to be free from

suspicion.

7. In this case, PW3 is the main witness. In her

examination-in-chief she has stated that her father was

suspecting her mother's fidelity and scolding her. He used

to come home late night in drunken state and shout at her

mother. Therefore her mother gave a complaint to the

police on 29.1.2016. In regard to incident her evidence is

that since 10.O' clock in the morning of 31.1.2016, he was

quarrelling having consumed liquor and by taking

objection that her mother called her brother and others for

giving advise to him and thereby he felt insulted. That

day afternoon around 12 O' clock he received a call from

the police to come to police station for enquiry in relation

to her mother's complaint. For this reason he got enraged

and went to police station. Around 5.O' clock he returned

- 11 -

NC: 2025:KHC:5104-DB

home and then set fire to her mother who was in the

kitchen. She and the neighbours put off the fire and then

shifted her mother to the hospital. She also gave

information to her grand mother and uncles. She has

spoken about the mahazar in connection with seizure of a

kerosene pump stove, broken bangle pieces, burnt hair,

burnt pieces of saree and other clothes. If her cross-

examination is seen, it appears that an effort was made to

discredit her testimony in examination-in-chief from the

angle of a kind of hatred she had developed against her

father for the reason that he did not provide her a smart

mobile phone and that he was insisting her to study

science discipline in the college. She has denied these

suggestions, but she admitted one suggestion that she

herself told the doctor at Government Hospital,

Pandavapura, that her mother committed suicide. She

also stated that the police obtained her statement at about

2.O' clock on 1.2.2016. The effect of these answers would

be discussed later.

- 12 -

NC: 2025:KHC:5104-DB

8. PW4 is the mother of the deceased. Her

testimony shows that the accused was unhappy that he

had no male issue and therefore wanted to contract

second marriage. For this reason quarrel used to take

place between him and the deceased and she (PW4) used

to advise both of them. As regards incident she stated

that when she and others went to K.R.Hospital, Mysuru,

she came to know that accused had set fire to her

daughter. PW5 is the brother of the deceased and he has

also stated almost on lines with PW4. The neighbours of

the accused and the deceased did not implicate the

accused in particular, but they stated that deceased

caught fire and died.

9. Exhibit P14 is the dying declaration in which it is

recorded that accused started scolding and beating the

deceased after death of male child, and that from there

onwards he was desirous of having a male child. He was

also suspecting the character of the deceased and that she

came to know from others that accused was having

- 13 -

NC: 2025:KHC:5104-DB

relationship with another woman. Being unable to bear

the torture, first she made a complaint with Mahila Sahaya

Kendra and when she did not find reformation in her

husband, she went to police station on 29.1.2016 and

gave a complaint against her husband. The police

summoned him for enquiry. He became angry and started

harassing her and then at about 5.00 p.m he poured

kerosene and lit fire. This statement was recorded on

1.2.2016 around 3.50 p.m. FIR was registered based on

this statement. Though the argument of Sri K.C.Pratheep

that the Tahsildar-PW13 did not obtain certification from

the doctor about fitness of the deceased to make a

statement, cannot be accepted as Ex.P14 shows

certification by the doctor that the deceased was conscious

and mentally fit to make a statement, the reason why the

police did not register FIR soon after obtaining MLC report

as per Ex.P20 has not been explained. If Ex.P20 is seen,

at 5.40 p.m. on 31.1.2016 itself the doctor who examined

the deceased sent information to police. This was the first

information and since a cognizable offence was brought to

- 14 -

NC: 2025:KHC:5104-DB

the notice of the police nothing prevented them from

registering an FIR. As is forthcoming from the evidence of

PW3, the police obtained her statement on 1.2.2016 at

2.00 p.m. If PW3 had given such a statement that could

have been at least based to register an FIR. There is no

explanation by the investigating officer or the police officer

who registered the FIR. This delay assumes importance in

the sense that it gives scope for doubting the veracity of

the statement of the deceased in Ex.P14. To make it more

clear, Ex.P20 which is the earliest document contains two

histories. If the accused stated that deceased caught fire

due to stove blast, PW3 stated that her mother attempted

to commit suicide. PW3 admitted in the cross-examination

that she informed the doctor in the hospital that her

mother tried to commit suicide. It is also very pertinent to

mention here that by the time Ex.P14 was recorded, the

mother and the brother of the deceased were all present in

the hospital. Because of delay in registration of FIR and a

different history given by PW3 in the hospital, a doubt

- 15 -

NC: 2025:KHC:5104-DB

arises whether the deceased came up with true version or

not.

10. As regards motive, the prosecution version is

that accused wanted to have a male child and in that

connection he was ill-treating his wife. But this appears to

be a very weak motive for the reason that the male child

of the accused died at the age of 3 ½ years, nearly twenty

years before date of occurrence. It is highly impossible

and improbable to believe that since then accused was

harassing his wife for this reason. There is no nexus

between the alleged motive and the occurrence. All the

above aspects put together weaken the prosecution case

as regards the offence under Section 302 of IPC.

11. However, there is ample material for sustaining

the conviction for the offence under Section 498A of IPC.

PW3 has given a clear account of the manner in which her

mother was being ill-treated by the accused. Though the

neighbours of the accused have not supported, the

complaint made by the deceased to Mahila Sahaya Kendra

- 16 -

NC: 2025:KHC:5104-DB

as per Ex.P5 and another complaint given by her to

Pandavapura police as per Ex.P6 indicate that the accused

was ill-treating not only his wife but also the daughter.

The deceased also suspected that the accused had

relationship with another woman and probably this was

the reason for frequent quarrels and the deceased being

harassed. It is to be stated here that accused was

summoned to police station after the deceased made a

complaint to the police as per Ex.P6. After return of the

accused from police station a quarrel again erupted

between them. There are allegations that accused was

scolding and beating the deceased. This shows the cruel

conduct of the accused. All these circumstances are

sufficient to infer that the deceased was being harassed by

the accused. Explanation (a) to Section 498A of IPC

states that wilful conduct of the husband or the relative of

the husband driving a woman to commit suicide is one

kind of cruelty amongst others. On account of this kind of

harassment, if she committed suicide by burning herself

- 17 -

NC: 2025:KHC:5104-DB

an offence under Section 306 of IPC can be said to have

been proved.

12. From the above discussion we come to a

conclusion that the accused cannot be punished for the

offence under Section 302 of IPC and therefore the

findings of the trial court as regards this offence cannot be

sustained. Instead the accused can be punished for

offences under Sections 498A and 306 of IPC.

13. The records show that the accused has spent 5

years 10 months in the jail. He was in custody for a

period of 2 years 7 months during trial and for a period of

3 years 3 months after conviction was recorded and till he

was released on bail by this court on 04.12.2021.

Therefore the period of 5 years 10 months can be set off

for the sentence to be imposed on the accused for the

offence under Section 306 of IPC. However, the sentence

imposed by the trial court under Section 498A of IPC can

be sustained. Now the following :

- 18 -

NC: 2025:KHC:5104-DB

ORDER

(a) Appeal is partly allowed.

(b) Conviction of the accused for the offence under

Section 302 of IPC is set aside, instead he is

convicted for the offence under Section 306 of

IPC and sentenced to imprisonment for the

period he has already spent in the jail. He is

also directed to pay fine of Rs.10,000/-, in

default of which he shall undergo simple

imprisonment for three months.