Karnataka High Court

Tukaram Reddy vs The State Of Karnataka on 27 January, 2025

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

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                                                        CRL.A No.200316 of 2023




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 27TH DAY OF JANUARY, 2025

                                              PRESENT

                          THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                                  AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                               CRIMINAL APPEAL NO.200316 OF 2023
                                     (374(Cr.PC)/415(BNSS)
                      BETWEEN:

                      TUKARAM REDDY
                      S/O GUMPU REDDY TONNE,
                      AGE: 37 YEARS,
                      OCC: AGRICULTURIST,
                      R/O: YADALAPUR VILLAGE,
                      TALUKA BASAVAKALYAN,
                      DISTRICT BIDAR - 585 401.
                                                                    ...APPELLANT

                      (BY SRI SANJAY A.PATIL, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ              AND:
DHUTTARGAON
Location: HIGH
COURT OF              THE STATE OF KARNATAKA
KARNATAKA
                      THROUGH,
                      POLICE BASAVAKALYAN TOWN POLICE STATION,
                      TALUKA BASAVAKALYAN,
                      DISTRICT BIDAR - 585 401.
                      REPRESENTED BY ADDL. SPP,
                      HIGH COURT OF KARNATAKA BENCH
                      AT KALABURAGI.
                                                             ...RESPONDENT

                      (BY SRI SIDDALING P. PATIL, ADDL.S.P.P.)
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                                         CRL.A No.200316 of 2023




      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C PRAYING TO ADMIT THE APPEAL, CALL FOR
RECORDS OF TRIAL COURT IN S.C NO.265/2016 ON THE FILE
OF II ADDL. DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING
AT BASAVAKALYAN, TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION AND DATED 09.10.2023 AND ORDER ON
SENTENCE DATED:12.10.2023 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING AT
BASAVAKALYAN IN S.CNO.265/2016 ON ITS FILE, THEREBY
CONVICTING THE APPELLANT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 323, 504, 498(A), 302 OF IPC AND ACQUIT
THE APPELLANT OF ALL CHARGES IN S.C.NO.265/2016.

    THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:

CORAM:       HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
             AND
             HON'BLE MR. JUSTICE RAJESH RAI K


                         ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

This Appeal by the convicted appellant/accused No.1 is

directed against the judgment of conviction and order of

sentence dated 09.10.2023 passed in S.C.No.265/2016 by the

II Addl. District and Sessions Judge, Bidar, Sitting at

Basavakalyan (hereinafter referred to as the 'learned Sessions

Judge') whereby, the learned Sessions Judge convicted the

appellant/accused No.1 for the offences punishable under

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Sections 323, 504, 498-A and 302 of IPC and acquitted the

accused Nos.2 and 3 for the said offences.

2. The abridged facts of the case are as follows:

The marriage between the accused No.1 and Pooja @

Narasamma i.e., the deceased in this case was solemnized on

16.06.2014 at the Office of the Registrar, Basavakalyan. On the

following day, accused No.4-Parvati got paralyzed. Two months

into the marriage, the appellant/accused No.1 relocated to

Pune (Maharashtra) on finding a job and he occasionally visited

his hometown. After four months of marriage, owing to accused

No. 4 being paralyzed, the accused Nos.2 to 4-in-laws of the

deceased harassed her both physically and mentally, stating

that she was an ill omen to the family. Three months prior to

the incident the parents of the deceased visited her

matrimonial home to advise the accused No.1 and his parents

to shed ill-will against their daughter and to take good care of

her. Against this backdrop, on 23.09.2015, when the accused

No.1 visited from Pune, he had a row with the deceased and

reiterated that since she was an ill omen to the family she must

leave her matrimonial residence the following morning failing

which he threatened her she would be forcefully evicted. The

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following day i.e., on 24.09.2015, the accused No.1 had a fresh

row with the deceased, he verbally abused and physically

assaulted her to forcefully leave the matrimonial home. When

she opposed to quit her matrimonial home, the accused brutally

assaulted her, owing to which the deceased poured kerosene

on herself with an intent to set herself ablaze, however, while

she searched for a matchbox, the accused set her ablaze.

Thereafter, he fled the spot, the neighbours rescued the

deceased and admitted her to a Government Hospital, at

Basavakalyan. Immediately, upon her admission to the

Hospital, a Medico-Legal Case was received by P.W.26-the then

ASI of the respondent-Police and he visited the Hospital,

recorded the statement of the injured as per Ex.P22 and

registered a case against the accused for the offences

punishable under Sections 504, 323, 498-A and 307 r/w

Section 34 of IPC in Crime No.125/2015 dated 24.09.2015 as

per Ex.P23. Subsequently, the Tahsildar-P.W.19 also visited the

Hospital and recorded the dying declaration of the injured as

per Ex.P16. Later, she was readmitted for higher treatment to

Kalaburagi Government Hospital. During the course of

treatment, on 25.09.2015 at about 03:00 a.m., she succumbed

to the injuries. Following the demise of the injured, P.W.26

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sent a requisition before the jurisdictional Magistrate to invoke

Section 302 of IPC. On obtaining permission from the

Magistrate, Section 302 of IPC was invoked in Crime

No.125/2015 dated 24.09.2015 against the accused.

3. After the death of deceased, P.W.27 conducted

further investigation by recording the statement of all the

witnesses and apprehended the accused. They conducted

recovery mahazars and thereafter, on obtaining necessary

documents from the concerned authorities, he laid the charge

sheet against the accused No.1 and two others i.e., accused

Nos.2 and 3 for the offences punishable under Sections 498-A,

323 and 302 r/w Section 34 of IPC before the committal Court.

4. After committal of the case before the Sessions

Court, the learned Sessions Judge framed the charges against

the accused for the aforementioned offences and the same was

read-over verbatim to them. However, the accused denied the

charges levelled against them and claimed to be tried.

5. In order to prove the charges levelled against the

accused, the prosecution in total examined 27 witnesses as

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PW.1 to PW.27, marked 29 documents as Ex.P1 to Ex.P29 and

identified 7 material objects as M.O.1 to M.O.7.

6. Following the assessment of oral and documentary

evidence placed before the Sessions Court, the learned

Sessions Judge acquitted accused Nos.2 and 3 and convicted

the appellant/accused No.1 for the charges levelled against him

and sentenced him as stated supra. The said judgment is

challenged in this appeal.

7. We have heard the learned counsel Sri. Sanjay Patil

for the appellant and learned Addl. State Public Prosecutor Sri.

Siddaling P. Patil for the respondent-State and we have also

perused the records made available before us.

8. The primary contention of the learned counsel for

the appellant is that the learned Sessions Judge erred while

convicting the appellant/accused No.1 for the charges levelled

against him without appreciating the evidence in right

perspective. He further contended that the learned Sessions

Judge convicted the accused solely based on Ex.P22 i.e., the

purported statement of the deceased before P.W.26-ASI in the

hospital and Ex.P16-alleged dying declaration recorded by

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P.W.19-the Tahsildar. According to the learned counsel, P.W.26

and P.W.19 recorded the statement of the injured without

obtaining any fitness certificate by the duty Doctor to

substantiate that the injured was in a lucid state of mind to

give such statement. He further contended that the neighbours

who are the alleged eyewitnesses to the incident i.e., P.Ws.13,

14 and 16 have collectively turned hostile to the prosecution

case. Though the family members of the deceased i.e., P.Ws.6,

7, 8 and 10, before whom the injured made her statement in

the Hospital, initially supported the prosecution case, however,

there neither are evidences nor documents forthcoming that

establish the injured was fit to depose before them in the

Hospital. He also contended that the co-accused Nos.2 and 3

are the parents of the accused who have already been

acquitted by the learned Sessions Judge by relying on the

evidence of P.Ws.6, 7, 8 and 10. In such circumstances, there

is no such additional evidence placed by the prosecution

against these accused. Hence, the conviction and sentence

imposed by the learned Sessions Judge is liable to be set-aside.

With these submissions, he prays to allow the appeal.

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9. Refuting the above submission, learned Addl. SPP

Sri. Siddaling P. Patil, for the respondent-State submitted that

the judgment does not suffer from perversity or illegality as the

learned Sessions Judge has convicted the accused on

meticulously examining the evidence available on record in a

well-reasoned judgment. He contended that the parents and

other relatives of the deceased i.e., P.Ws.6, 7, 8 and 10 have

categorically deposed in evidence that owing to accused No.4

being paralysed, the accused/appellant ill-treated the deceased

ever since she was married accusing her of being bad omen.

Further, P.W.26-ASI relying on the Medico-Legal Case,

recorded Ex.P22 i.e., the statement of the injured in the

hospital forthwith and P.W.16-the Tahsildar recorded Ex.P16-

dying declaration of the deceased, both these documents

clearly establish the guilt of the accused No.1 that he harassed

the deceased physically, mentally and murdered her by setting

her ablaze. The Learned Addl. SPP further contended that there

are no hard and fast rules that the dying declaration cannot be

relied without being accompanied by a fitness certificate issued

by the Doctor. With these submissions, he prays to dismiss the

appeal by affirming the impugned judgment.

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10. Having heard the learned counsel for the respective

parties and upon perusing the entire evidence and documents

placed before us, the points that arise for our consideration

are:

(i) "Whether the judgment under this appeal suffers from perversity or illegality?

(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused No.1 for the offences punishable under Sections 323, 504, 498-A and 302 of IPC?"

11. In order to prove the homicidal death of the

deceased, the prosecution predominantly relied on the evidence

of P.W.21 and P.W.22 the Doctors who conducted the autopsy

on the corpse of the deceased. On careful perusal of the post-

mortem report-Ex.P17, the Doctor has opined the cause of

death as: "the death is due to 'hypovolemic shock due to 80%

burns'. Further, the prosecution also relied on the inquest

panchanama conducted on the corpse of the deceased as per

Ex.P1 and the panch witnesses i.e., P.W.1 and P.W.2 deposed

that they identified the burn injuries on the dead body.

Moreover, the prosecution also relied on Ex.P-24 the case sheet

of the Government Hospital, Basavakalyan which revealed that

on the date of incident i.e., on 24.09.2015 at about 6.35 p.m.,

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the injured Pooja was admitted to the hospital for the burns she

sustained. In such circumstances, we are of the view that the

prosecution has proved the death of the deceased as burn

injuries and that her death was unnatural.

12. To connect the accused with the unnatural death of

the deceased-Pooja, the prosecution significantly relied on the

evidence of P.Ws.6, 7, 8 and 10 who are the parents and other

relatives of the deceased. On careful examination of the

evidence of these witnesses, they have categorically stated that

after the incident on 24.09.2015, they were intimated by the

neighbours of the deceased being sustained burn injuries and

that she was admitted at the Government Hospital,

Basavakalyan. Thereafter, she was readmitted to Kalaburagi

Government Hospital for higher treatment. Subsequently, all

these witnesses visited the Hospital at Kalaburagi late at night

roughly about 01:00 a.m. and upon their arrival the deceased

divulged to them about the incident, where the accused had a

row with her, following which she poured kerosene on herself

and that the accused set her ablaze. These witnesses have also

deposed the same in their 161 statement that the deceased

called them through mobile phone and informed about the

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harassment meted out by the accused by demanding amount

and forcing her to leave the matrimonial home. However,

before testing the veracity of the evidence of these witnesses,

it is necessary to examine whether the deceased was physically

fit and mentally lucid to make such oral statements to them.

13. As it can be gathered from the records, according to

the prosecution immediately after the incident, based on the

MLC, P.W.26-ASI visited the Government Hospital at

Basavakalyan and recorded the statement of the injured as per

Ex.P22. In the said statement, the deceased stated that ever

since her marriage, her in-laws i.e., the accused Nos.2 to 4

incessantly harassed her, also, whenever the accused visited

home from Pune, he harassed her physically and mentally. On

the evening of 23.09.2015, the accused had a row with the

deceased and assaulted her, subsequently on 24.09.2015

following another row she poured kerosene on herself and the

accused set her ablaze. This statement of the deceased was

recorded by P.W.26 on 24.09.2015 at about 7.00 to 8.00 p.m.

According to P.W.26 after recording Ex.P22 he gave a

requisition to the Tahsildar P.W.19 to record the dying

declaration of the deceased. Accordingly, the Tahsildar P.W.19

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visited the Hospital at about 8.15 p.m. and recorded Ex.P16.

However, at the time of recording both these statements,

neither P.W.26 and P.W.19 obtained fitness certificate from the

Doctor nor was any Doctor present at the time of recording the

same. It is settled principle of law that there are no such hard

and fast rule that the dying declaration must be recorded in the

presence of a Doctor and there shall be a fitness certificate

from the Doctor to that effect. The only aspect that has to be

considered is whether the deceased was conscious to give such

statement and whether there were possibilities of tutoring her

by any one of the family members.

14. On careful examining of the evidence and records

placed by the prosecution, Ex.P24 i.e., the case sheet produced

by the prosecution depicts that the deceased Pooja was

admitted to Basavakalayan Government Hospital on

24.09.2015 at about 6.35 p.m. with the history of accidental

burns. Further, it is also stated that she had sustained 90%

burns on the body. The history of present illness has been

enumerated in Ex.P24 as "alleged history of accidental burns on

24.09.2015 at about 5.30 p.m". The physical signs and

conditions of the injured reveals that she was drowsy, her BP

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and pulse were not readable. Ex.P24 further depicts that at

about 7.00 p.m. the injured was readmitted to Government

Hospital, Kalaburagi for higher treatment.

15. On corroborating the contents of Ex.P24 with the

evidence of P.W.26 and P.W.19 and with the contents of Ex.P22

and Ex.P16, P.W.26 has stated that he visited the hospital i.e.,

Government Hospital, Basavakalyan at about 7.00 p.m. and

recorded the statement of the injured at 7.00 to 8.00 p.m.

Further, the Tahsildar P.W.19 also stated that he visited the

same Hospital at about 8.15 p.m. and recorded Ex.P16. As per

Ex.P24, at the stipulated time the patient had to be readmitted

to the Government Hospital at Kalaburagi. Also, it is imperative

to note that she had sustained 90% burn injuries and was in a

drowsy condition and unable to give statement. Hence, the

evidence of P.W.26, P.W.19, the veracity of Ex.P22 and Ex.P16

stem doubts in the mind of this Court for the reason that

Ex.P24 is the document which was recorded by the Senior

Medical Officer of Basavakalayan Government Hospital at the

earliest. The contents of Ex.P24 clearly differs from the

contents of Ex.P16 and Ex.P22 and also with the evidence of

P.W.26 and P.W.19.

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16. Against this backdrop, on an evaluation of the

evidence of the family members i.e., P.Ws.6, 7, 8 and 10, it

once again create doubts regarding the testimony of these

witnesses that the deceased gave statement before them at

about 1.00 a.m. in the Hospital, as the injured succumbed to

the burn injuries immediately thereafter at about 3.00 a.m.

Also, she was in a drowsy state at the time of relocating her

from Basavakalyan Primary Health Centre to Government

Hospital, Kalaburagi. In such circumstances, much evidentiary

value cannot be attached to the evidence of P.Ws.6, 7, 8 and

10.

17. Further the neighbours-the alleged eyewitnesses to

the incident, who admitted the injured to the Hospital i.e.,

P.Ws.13, 14, 16 and 23 have collectively turned hostile to the

prosecution case. In such circumstances, there is no material

evidence available on record to connect the accused for the

unnatural death of the deceased. It is appropriate to mention

that Ex.P24 clearly depicts that the injured sustained accidental

burn injuries. Ex.P22 also reveals that she poured kerosene on

herself and thereafter accused set her ablaze. In such

circumstances, the alleged dying declaration made by the

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deceased as per Ex.P16 and P22 cannot be solely relied on

without any corroborative evidence. The Hon'ble Apex Court in

the case of Irfan @ Naka vs. State of Uttar Pradesh in

Criminal Appeal Nos.825-826 of 2022 dated 23.08.2023,

while summarizing the law in respect of the dying declaration,

held at paragraph No.62 as under:

"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

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(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"

18. Further, the Hon'ble Apex Court in the case of

Abhishek Sharma vs. State (Govt. of NCT of Delhi)

reported in AIR 2023 SC 5271 also summarized the law

relating to multiple dying declarations. The Hon'ble Apex Court

in paragraph No.9 to 9.7 held as under:

"9. Having considered various pronouncements of this Court, the following principles emerge, for a Court to consider when dealing with a case involving multiple dying declarations:

9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind.

9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;

9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.

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9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

9.5 Each declaration must be scrutinized on its own merits. The Court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc."

19. Further, the Hon'ble Apex Court in the case of

Phulel Singh vs. State of Haryana reported in (2023) 10

SCC 268 has held that ahead of basing convictions solely on

dying declaration, the Court must come to a conclusion that the

dying declaration is trustworthy, reliable and one which instils

confidence.

20. Applying the findings of the Hon'ble Apex Court in

the above judgments to the facts and circumstances of this

case, as discussed supra, on careful perusal of the contents of

Exs.P16 and P22, coupled with Ex.P24, we are of the

considered view that these two dying declarations cannot be

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relied on without any such corroborative evidence. Further,

though the prosecution placed the evidence of P.Ws.6, 7, 8 and

10, their evidence is also untrustworthy for the reason that the

injured was not in a position to make any

declaration/statement before them as claimed by them. In such

circumstances, the prosecution has failed to place material and

cogent evidence to prove the guilt of the accused beyond all

reasonable doubts. Accordingly, we are of the considered view

that the Sessions Court erred while convicting the accused for

the charges levelled against him. Accordingly, interference is

required in the impugned judgment passed by the Sessions

Court. In that view of the matter, we answer point No.(i) in the

affirmative and point No.(ii) in the negative and proceed to

pass the following:

ORDER

(i) The Criminal Appeal filed the appellant/ accused No.1 is allowed.



     (ii)   The   judgment of       conviction and           order    of
            sentence    dated       09.10.2023            passed      in

S.C.No.265/2016 by the II Additional District and Sessions Judge, Bidar, sitting at Basavakalyan is hereby set aside insofar as convicting the appellant/accused No.1 and the