Karnataka High Court

Vinod S/O Shankar Sagar vs The State Through on 25 June, 2025

Author: V Srishananda

Bench: V. Srishananda

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                                                    CRL.A No. 200041 of 2020


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                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                            DATED THIS THE 25TH DAY OF JUNE, 2025

                                           BEFORE

                       THE HON'BLE MR. JUSTICE V. SRISHANANDA


                             CRIMINAL APPEAL NO.200041 OF 2020
                                   (374(Cr.PC)/415(BNSS))
                   BETWEEN:

                   VINOD S/O SHANKAR SAGAR,
                   AGE: 35 YEARS, OCC:DRIVER,
                   R/O. KANKATTA, TQ. HUMNABAD,
                   DIST. BIDAR-584101.
                                                                ...APPELLANT
                   (BY SRI SHIVAKUMAR MALIPATIL, ADVOCATE)

                   AND:
Digitally signed
by SUMITRA
SHERIGAR           THE STATE,
Location: HIGH     THROUGH MANTHAL POLICE STATION,
COURT OF           (CRIME NO.92/2015)
KARNATAKA
                   REPRESENTED BY STATE SPP,
                   HCK KALABURAGI BENCH,
                   KALABURAGI-585103.
                                                              ...RESPONDENT

                   (BY SRI JAMADAR SHAHABUDDIN, HCGP)

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
                   (2) OF CR.P.C., PRAYING TO ALLOW THE APPEAL, CALL FOR
                   THE RECORDS IN S.C. NO.286/2017 AND SET ASIDE THE
                   JUDGMENT PASSED BY THE II ADDL. DISTRICT AND SESSIONS
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                                     CRL.A No. 200041 of 2020


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JUDGE, BIDAR, SITTING AT BASAVAKALYAN, ON 25.02.2020,
CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498-A, 304-B R/W SECTION 149 OF IPC
AND APPELLANT BE SET AT LIBERTY.

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

CORAM:      HON'BLE MR. JUSTICE V. SRISHANANDA


                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE V SRISHANANDA)

1. Appellant is the accused, who suffered an order

of conviction in S.C. No.286/2017 dated 25.02.2020 by

the District and Sessions Judge, Bidar, for the offences

punishable under Section 498-A and 304-B of IPC.

2. For the offence under Section 498-A appellant

has been sentenced to undergo simple imprisonment for a

period of one year and to pay Rs.50,000/- fine with default

sentence of six months simple imprisonment. Likewise,

for the offence under Section 304-B appellant was

sentenced to undergo imprisonment for a period of 7 years

and both the sentences were ordered to run concurrently.

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3. Facts in brief, which are utmost necessary for

disposal of the present appeal are as under:

3.1 Bhagyashree (Hereinafter referred to as

'deceased') was married to the first accused (Hereinafter

referred to as 'appellant') on 10.02.2013 as per the Hindu

rites and customs. Necessary customary articles were

given in the marriage. After the marriage deceased joined

the matrimonial home and she was looked after in good

manner for a brief period.

3.2 After the marriage, the appellant lost his job of

Conductor. On that pretext, all the accused persons

started blaming deceased stating that because of her ill-

luck appellant lost the job and that she does not know how

to discharge household works.

3.3 Unfortunately, in the matrimonial tie there were

no issues and on that pretext also deceased was being

scolded repeatedly. On that score also the physical and

mental harassment to deceased was in an aggravated

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form. Unable to bear with the conduct of the accused

persons, deceased reported the same to her relatives.

3.4 Therefore, relatives of the deceased, Mahadev,

Ishwaramma, Kanthareddy, Chandrakanth, Mahapuri

Suryavanshi visited the Kankatta Village twice and

convened panchayat and requested the accused persons

to look after deceased in a proper manner. Despite such

advice, harassment continued.

3.5 When the matter stood thus, on 02.08.2015

there was a quarrel, wherein, appellant abused the

deceased in a filthy language and demanded

Rs.1,00,000/- to be brought as dowry and sent her home.

3.6 Because of these physical and mental ill-

treatment, deceased had a stomach pain and she

requested necessary assistance to visit the hospital. But

all the accused persons abused her in filthy language and

they told that she should go and die somewhere.

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3.7 Left with no alternative, Bhagyashree came

back to her parental house in Manthal Village. When she

was in her parental house, on 07.08.2015 at about 7.30

p.m., the appellant called deceased over telephone and

abused her in filthy language. Being unable to bear the

insult caused by such conversation, Bhagyashree poured

kerosene on her and self immolated.

3.8 Unable to bear with the pain she raised alarm.

In-mantes of parental house having seen her in ablaze

extinguished fire and took her to Basavakalyan

Government Hospital. After the first aid, she was referred

to District Hospital, Kalaburagi, for higher treatment.

3.9 When she was in the District Hospital,

Kalaburagi, Police visited her and enquired her about the

incident. Whatever that has been stated by Bhagyashree

has been reduced into writing and since she had sustained

burn injuries to the extent of 85 to 90%, her left thumb

impression was taken into the complaint. Despite best

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treatment, Bhagyashree lost her life on 12.08.2015 at

about 10.00 a.m. Thereafter, Police invoked Section 304-

B in the incident. After thorough investigation, charge-

sheet came to be filed by the Police against six accused

persons including appellant.

4. Learned trial Magistrate committed the matter

to the Sessions Court for trial and the learned Sessions

Judge after securing the presence of the accused persons,

after completion of Section 307 of Cr.P.C., framed charges

for the offences under Section 498-A, 504 and 304-B read

with Section 149 of IPC. All the accused persons pleaded

not guilty, therefore, trial was held.

5. In order to bring home the guilt of the accused,

prosecution proceeded to examine 16 witnesses as PW1 to

PW16 and placed on recorded 25 documents, which were

exhibited and marked as Exs.P1 to P25.

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6. Prosecution also placed on record three material

objects comprising of yellow colour plastic can, matchbox

and half burnt cloth pieces.

7. On conclusion of recording of prosecution

evidence, learned Trial Judge recorded the statement of

the accused as is contemplated under Section 313 of

Cr.P.C. All the accused persons have denied the

incriminating circumstances found against them in the

evidence of the prosecution of the witnesses.

8. There was no defence evidence nor any written

statement on behalf of the accused as is contemplated

under Section 313(4) of Cr.P.C. Thereafter, learned Trial

Judge heard the arguments of the parties in detail and by

impugned judgment, acquitted accused Nos.2 to 6 and

convicted accused No.1/appellant (husband) and

sentenced as referred to supra.

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9. Being aggrieved by the same,

accused/appellant is before this Court in this appeal on the

following grounds.

That, the impugned judgment convicting the accused by the trial court is illegal and contrary to law, facts and evidence on record.

That, the learned II Addl District and Sessions Judge, Bidar has not applied judicious mind in considering the evidence of the witnesses whose evidence is not convincing and not believable there are numerous contradictions and omissions but the trial court has failed to take notice of the same and landed in error of judgment and thereby caused miscarriage of justice, hence the impugned judgment is liable to be set-aside by acquitting the accused/appellant.

That, the incident has occurred in the parental house of the deceased and the deceased herself committed suicide by putting kerosene and setting fire to body. Therefore there is no direct or circumstantial evidence to connect the accused with the guilt. The trial court has passed impugned judgment on imaginary

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grounds. Hence impugned judgment is not sustainable.

That, the alleged ill treatment by the husband/appellant is through mobile phone on the faithful day the I.O. has collected Data of the mobile phone and there is no evidence to whom the said mobile is belonging as I.O. was not collected documents in regarding ownership of the mobile. Therefore there is no direct or indirect evidence of ill treatment at the parental house of the deceased. Therefore the appellant is not at all responsible for the suicide of deceased. Hence the impugned judgment is liable to be set aside.

That, Ex-P-11 is statement that, the complaint recorded by PW-13 at Basavakalyan Hospital on 07-08-2015 which does not bear any endorsement regarding the fitness and state of mind of the victim to give statement and the said statement has been considered lateron as dying declaration as the victim succumbed to burn injuries on 12-08-2015 at about 10:00AM so the victim was alive was 5 days but the 1.0. has failed to get the dying declaration recorded by the Taluka Executive Magistrate which is the requirement for dying declaration, this important aspect of the case has not been

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considered by the trial court seriously and failed to find out that, the dying declaration is full of truth and without any suspicious. Therefore the conviction cannot be based on the such dying declaration without any corroboration hence the impugned judgment is liable to be set aside.

That, the statement made by the victim and other evidence of other witnesses were all same for all the accused but the trial court has not believed the evidence as against the accused No. 2 to 6 and acquitted them and same evidence is believed for convicting the appellant which is arbitrary excise of the discretion and thereby landed in error of judgment. Therefore the impugned judgment is not in accordance with the evidence and records of the case. Hence the same is not sustainable.

That, the 1.0. has not conducted the investigation in fair and proper manner and has failed to produce cogent and believable evidence to prove the guilt of the accused and it very clear from the charge sheet papers that, the investigation is conducted casually without application of mind and the trial court has failed to consider the defence in right

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perspective and hence the impugned judgment is liable to be set aside.

That, the evidence of the doctor i.e. PW-1 and 11 is also not worth believable and it is clearly admitted by the doctor that, there is no endorsement of fitness of the victim to give statement and the MLC which is sent to police station does not bear the official out ward number from the hospital. So the I.O. has manipulated and prepared the prosecution papers so as to file the charge sheet against the accused. The victim has not put LTM on Ex.P11 on all the limbs were completely burnt.

10. Learned counsel for the appellant reiterating the

grounds urged in the appeal memorandum, contended

that demand of dowry is not established in the case. As

such, at the most material on record would only be

sufficient enough to maintain the conviction of the

appellant for the offence punishable under Section 498-A

of IPC and sought for allowing the appeal.

11. He would further contend that except the

complaint averments, there is no other material on record,

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which would be sufficient enough to record an order of

conviction for the offences punishable under Sections 498A

and 304B of IPC, which has not been properly appreciated

by the learned Trial Judge in the impugned judgment,

which has resulted in miscarriage of justice and thus,

sought for allowing the appeal.

12. Alternatively, learned counsel for the appellant

would contend that in the event this Court is upholding the

order of conviction, the impugned judgment may be

modified by maintaining the conviction of the appellant

only for the offence punishable under Section 498A of IPC

and by imposing the fine, suitable orders be passed.

13. Per contra, learned High Court Government

Pleader supports the impugned judgment. He would

further contend that since the de-facto complainant

namely, Bhagyshree lost her life, the contents of the

complaint itself is to be treated as dying declaration as per

the settled principles of law and thus, conviction of the

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appellant is just and proper and sought for dismissal of the

appeal.

14. He would further contend that the incident has

taken place within seven years of the marriage of

Bhagyshree with the appellant; therefore, prosecution

enjoyed the presumption, which has been rightly

appreciated by the learned Trial Judge in the impugned

judgment and thus, sought for dismissal of the appeal.

15. Alternate submission canvassed on behalf of the

appellant cannot also be countenanced in law, inasmuch

as, in the complaint there is a mention as to the statement

dowry. Therefore, conviction for the offence punishable

under Section 304B of IPC is to be maintained and sought

for dismissal of the appeal in toto.

16. Having heard the arguments of both sides, this

Court perused the material on record meticulously.

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17. On such perusal of the material on record,

following points would arise for consideration:

1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offences punishable under Sections 498-A and 304-B of IPC?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

3. Whether the sentence is excessive?

4. What order?

Regarding point Nos.1 and 2:-

18. In the case on hand, marriage of Bhagyshree

with the appellant is not in dispute. Likewise, in the

marital tie, there were no issues is not in dispute.

Admittedly, Bhagyshree lost her life on 12.08.2015 in the

hospital with burn injuries.

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19. The postmortem report depicts that death of

Bhagyshree has taken place on account of cardio

respiratory failure as a result of 85% to 90% burns. The

diagram that is shown would depict the burn injuries on

the entire body on both sides. The mahazar conducted by

the Investigation Officer is depicted in the photograph vide

Ex.P2. Yellow colour plastic can said to have contained the

kerosene marked at MO.1 is seized under Ex.P1.

Admittedly, deceased being unable to bear the

harassment, she left the matrimonial home and joined the

parental house on 02.08.2015. After five days, in the

evening hours, there was a telephone call from the

appellant to Bhagyshree. According to the complaint

averments, the appellant abused Bhagyshree in filthy

language, which resulted in committing the act of self

humiliation by Bhagyshree at about 9.30 p.m. When she

raised hue and cry, the inmates of the parental house and

others came to the rescue of Bhagyshree and they

extinguished the fire and took her to Basavakalyan

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Government Hospital at the first instance. The doctors,

who saw the condition of Bhagyshree with the burn

injuries all over the body, after according to the firs aid,

directed the relatives of Bhagyshree to shift her to District

Hospital, Kalaburagi.

20. In the District Hospital, Kalaburagi, she has

been made as an inpatient and information was sent to the

police. Pursuant to the such information, police visited the

hospital at Kalaburagi and enquired Bhagyshree. Before

enquiring Bhagyshree, Ashokbabu, Head Constable of

Manthal police station contacted the doctor and enquired

about the health condition and thereafter, enquired

Bhagyshree. The oral statement given by Bhagyshree was

reduced in writing in the presence of the doctor and

thereafter, LTM of Bhagyshree was taken on the said

statement after reading the contents thereof. It has been

mentioned in the said complaint that there was

harassment imparted to Bhagyshree on account of the fact

that she could not conceive to deliver the child.

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21. The complaint marked before the Court as

Ex.P.11 and endorsement as Ex.P.11 (b) and (c) would be

sufficient enough to treat Ex.P.11 as dying declaration, in

view of the fact that Bhagyashree lost her life on

12.08.2015.

22. It is settled principles of law and requires no

emphasis that when an injured who has given complaint or

statement before the police loses the life, such statement

or complaint can be treated as dying declaration.

Therefore, the principles of law that governs the validity of

dying declaration could be made applicable to the case on

hand.

23. In this regard, Sri Shivakumar Malipatil, learned

counsel for the appellant, however contended that having

regard to 80 to 90% burn injuries sustained by

Bhagyashree, she was not in a fit condition to state before

the Police about the incident.

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24. It is pertinent to note that endorsement at

Ex.P.11(b) would be sufficient and the Doctor who certified

the condition of the injured would quell such an

apprehension expressed on behalf of the appellant.

25. Dr. Tajuddin who accorded first aid to the

injured is examined as P.W.10. MLC report was sent to

the police and Head Constable-Ashok Babu of Mantala

police station, came to the hospital and enquired about the

incident. In the presence of Dr.Tajuddin-P.W.10

statement of the victim was recorded.

26. In the cross-examination of P.W.10, the Doctor

who has given the mental fitness of the deceased it has

been elicited that immediately after Bhagyashree was

brought to the hospital, he has sent the MLC and police

have visited the hospital within 10 to 15 minutes. Further

he admits that there was no written request given by the

Head Constable as to the mental fitness.

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27. He also admits that Bhagyashree did not

mention about the history of burn injuries and therefore, it

was not recorded in MLC register. He admits that in

Ex.P.13 he has not mentioned about history of burn

injuries. He also admits that he has not mentioned in

Ex.P.11 as to the time that was taken for recording the

contents of Ex.P.11.

28. However, he has answered that Bhagyashree

had sustained burn injuries on the face, neck, chest, both

hands and legs. He denied the suggestion that LTM found

in Ex.P.11 is not belonging to Bhagyashree.

29. P.W.13-Ashok Babu is the Head Constable who

wrote Ex.P.11. He deposed that based on MLC report

received by him on 07.08.2015 at about 10.15 pm, he

visited the Government Hospital, Basava Kalyana and as

per Ex.P.20 gave a written request. He identified the

written request at Ex.P.20 which has been acknowledged

by P.W.10 in his examination-in-chief. Thereafter, he has

identified the endorsement made by him as Ex.P.11(b)

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and (c). In his cross-examination, it has been elicited that

he had brought Police Constable-Anil Rathod who is the

writer and as per his directions, said Anil Rathod wrote the

contents of Ex.P.11.

30. He has stated that along with Bhagyashree, her

father and other 4 to 5 persons were present. He denied

having concocted Ex.P.20. He also admits that there is no

mention in Ex.P.11 as to when writing of Ex.P.11 was

commenced and when it ended.

31. He further admits in the cross-examination that

he obtained left leg thumb impression on Ex.P.11, but he

has not made any endorsement to that effect. He denied

the suggestion that Ex.P.11 is concocted.

32. The other material evidence available on record

sufficiently corroborates the case of the prosecution in

establishing that there was physical and mental

harassment imparted to Bhagyashree and convening of

panchayat earlier and despite the same, Bhagyashree had

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to come back to her parental house on account of physical

and mental harassment.

33. It is pertinent to note that prosecution did enjoy

the presumption under Section 113-A and 113-B of the

Indian Evidence Act. But, appellant and other accused

persons, for the reasons best known to them, did not

chose to place any rebuttal evidence on record nor they

have furnished any statement as is contemplated under

Section 313(4) of the Code of Criminal Procedure with

regard to incriminatory material found against the

appellant and others in the prosecution evidence.

34. Since the incident has taken place within seven

years of marriage and the sequence of events has been

consistently deposed by the prosecution witnesses coupled

with the contents of Ex.P.11 which would inspire

confidence of this Court in accepting the veracity thereof

following the settled principles of law enunciated by the

Hon'ble Apex Court in catena of judgments while

appreciating the dying declaration, this Court has no

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hesitation whatsoever to accept that the contents of

Ex.P.11 has been established by the prosecution by

placing cogent and convincing evidence on record.

35. The learned Trial Judge has also formed the

same opinion and even on re-appreciation, this Court has

no iota of doubt as to the veracity of contents of Ex.P.11.

36. Further, a person who is seeing death in the

near future, why would such person falsely implicate a

person in the incident is a question that needs to be

answered by the defense.

37. P.W.13 is total stranger to the accused as well

as deceased. In the absence of any previous enmity or

animosity, what is the reason for P.W.13 to concoct

Ex.P.11 is again a question that remains unanswered.

38. Minor discrepancies in either recording the

dying declaration of necessary endorsements are to be

ignored in view of the authoritative principles of law

enunciated by the Hon'ble Apex Court in the case of Irfan

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@ Naka vs. The State of Uttar Pradesh, reported in

2023 SCC Online SC 1060.

39. Thus, even after re-appreciation of the material

evidence on record, this Court has no hesitation

whatsoever in accepting the truthfulness of the contents of

Ex.P.11.

40. Learned trial Judge rightly appreciated the

material evidence on record and for want of necessary

material evidence, acquitted accused Nos.2 to 6. The State

for the reasons best known to it, did not choose to

challenge the order of acquittal for the accused Nos.2 to 6.

Therefore, in the impugned Judgment this Court is unable

to find any illegality or legal infirmities and therefore, it

cannot be termed as perverse in nature.

41. In view of foregoing discussion, point Nos.1 and

2 are answered in the affirmative and negative

respectively.

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Regarding Point No.3:-

42. Learned trial Judge has granted minimum

punishment of seven years for the offence punishable

under Section 304B of IPC. He has also not imposed any

fine for the said offence. However, a sum of Rs.50,000/- is

imposed as fine for the offence under Section 498A of IPC.

Since the sentence of one year imprisonment for the

offence under Section 498A of IPC is ordered to run

concurrently, hardly there is any scope for altering the

sentence in any manner. In fact, if the State had preferred

any appeal or revision seeking enhancement of the

sentence, case deserves that, such an enhancement

should have been ordered in the facts and circumstances

of the case.

43. Likewise, an appeal filed by the accused,

normally the enhancement of sentence should not be

ordered. In this regard, view of this Court is fortified by

the Judgment of the Hon'ble Apex Court in the case of