Karnataka High Court
The State Of Karnataka vs Sri Konanti Tayanna And Ors on 21 March, 2025
Author: K Natarajan
Bench: K Natarajan
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CRL.A No. 200166 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE K NATARAJAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.200166 OF 2016
(378(Cr.PC)/419(BNSS))
BETWEEN:
THE STATE OF KARNATAKA
THROUGH CPI OF YARAGERA POLICE STATION,
RAICHUR
REPRESENTED BY
THE ADDITIONAL STATE PUBLIC PROSECUTOR,
KALABURAGI.
...APPELLANT
Digitally signed (BY SRI. SIDDALING P. PATIL, ADDL. SPP,)
by NIJAMUDDIN
JAMKHANDI
AND:
Location: HIGH
COURT OF
KARNATAKA 1. SRI. KONANTI TAYANNA
S/O KONANTI HUSENI
AGE: 32 YEARS, OCC: AUTO DRIVER
2. SRI. KONANTI HUSENI
S/O SANNA NARASAYYA,
AGE: 62 YEARS, OCC: AGRICULTURE
3. SRI. NARASIMHA S/O KONANTI HUSENI,
AGE: 38 YEARS, OCC: AGRICULTURE
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CRL.A No. 200166 of 2016
4. SRI. BAJARI S/O KONANTI HUSENI
AGE: 28 YEARS, OCC:COOLIE WORK,
5. SMT.DODDA SHIVANAMMA W/O TAYANNA
AGE: 30 YEARS, OCC:COOLIE WORK
ALL ARE R/O: GUNJALLI VILLAGE
TQ & DIST:RAICHUR.
...RESPONDENTS
(BY SRI. SANJAY A. PATIL, ADVOCATE FOR R1, R3, R-5;
V/O DATED 17.01.2018 APPEAL AGAINST R-2 IS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (B) OF CR.P.C. PRAYING (A) TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT DATED: 22.06.2016 PASSED BY THE
PRL. DISTRICT AND SESSIONS JUDGE, RAICHUR, IN
S.C.NO.134/2014 THEREBY ACQUITTING ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498-A AND 302
READ WITH SECTION 34 OF IPC. B) SET ASIDE THE JUDGMENT
OF ACQUITTAL DATED: 22.06.2016 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, AT RAICHUR, IN S.C.NO.
134/2014 AND C) CONVICT THE RESPONDENTS - ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A
AND 302 READ WITH SECTION 34 OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 200166 of 2016
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE K NATARAJAN)
This appeal is filed against the judgment of acquittal
passed against the respondents by the Prl. District and
Sessions Judge, at Raichur, in S.C.No.134/2014 dated
22.06.2016.
02. We have heard the learned Addl. SPP. for the
appellant - State and the learned counsel for the
respondents.
03. During the pendency of the appeal, the
respondent No.2 said to be died. Hence, the appeal
against the respondent No.2 abated.
04. For the sake of convenience, the ranks of the
parties are referred to as per their ranking before the Trial
Court.
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05. The CPI, Yaragera Police Station, Raichur, filed
a charges-sheet against the accused Nos.1 to 5 for the
offences punishable under Sections 498(A) and 302 read
with Section 34 of IPC. It is alleged in the complaint by the
PW.1 - Smt. Urukundamma the mother of the deceased
that the accused No.1 said to be married with the
deceased - Smt. Shivamma and having a child. The
accused said to be harassing the deceased by abusing her
that she does not know how to cook proper food and also
harassed. Accordingly, prior to the date of incident the
deceased - Smt. Shivamma went to her mother's house.
The accused No.1 came to there and quarreled and
forcible took her on his motorcycle in the midnight. After a
day, on 02.06.2014, she received a phone call from PW.7
- Sri. Induvasi Bheemesh that her daughter was said to be
set the fire herself and she was admitted to the
Dhanvantri Hospital, Raichur. Accordingly, she went to the
Hospital and saw the injured - daughter and she had
lodged the complaint as per Ex.P.1 alleging that the
accused No.1 said to be ablaze on her by quarreling with
her daughter. Though, the FIR was registered against the
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accused No.1 for the offence punishable under Section 307
of IPC, in the first instance. Later during the investigation
the police have implicated the accused Nos.2 to 5. The
injured succumbed in the Hospital. The police have filed
the charge-sheet for the offences punishable under
Sections 498(A) and 302 read with Section 34 of IPC.
06. After filing of the charge-sheet, the learned
Magistrate took the cognizance for the offences and
committed the case to the Court of Sessions for trial.
07. After receipt of the records, the Trial Court
secured the presence of the accused Nos.1 to 5 and
framed the charges of the alleged offences. The accused
persons denied the charges and claimed to be trial.
Accordingly, the prosecution called upon to adduce the
evidence. The prosecution to support its case in all
examined 19 witnesses and got marked 18 documents and
four material objects marked as M.O.1 to 4. The accused
persons did not choose to examine any witnesses on their
behalf.
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08. After closing the evidence of the prosecution
witnesses, the learned Sessions Judge read-over the
incriminating evidence of material witnesses to the
accused as contemplated under Section 313 of Cr.P.C. The
case of the accused persons is one of total denial, but not
lead any defence evidence, except cross-examining the
prosecution witnesses.
09. After hearing the arguments, the learned
Sessions Judge, found that the accused Nos.1 to 5 not
guilty and acquitted for the charges leveled against them.
Feeling aggrieved by the same, the State is before this
Court.
10. The learned Addl. SPP. for the appellant - State
has strenuously contended that the Sessions Court
committed error in disbelieving the evidence of PWs.7 and
9 who are eyewitnesses to the said incident. He also
contended that the deceased - Smt. Shivamma given
dying declaration before the PW.16 - Tahasildar which was
marked as Ex.P.14. The evidence of PW.18 - Dr. Tanveer
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reveals that the dying declaration was recorded in the
presence of the doctor. All these four witnesses' evidence
and Ex.P.14 was discarded by the Sessions Court. It is
also contended that even without corroborative evidence,
the dying declaration can be sole base for the conviction of
the accused persons. There are two eyewitnesses who had
saw the incident, who shifted the deceased to the Hospital.
Though, at the fist instance, the deceased was not in a
position to give her statement. The Ex.P.1 which was
obtained from the mother of the deceased, but the
deceased - Smt. Shivamma was survived for 14 days and
she died on only 16.06.2014, which clearly reveals that
she was in a fit condition to give her statement before the
Tahasildar. There is no material or rebuttal evidence from
the accused to disbelieve the evidence of the PW.15 and
18 for discarding the dying declaration at Ex.P.14.
Therefore, it is contended that even if it is not considering
the evidence of PW.7 and 9, but the evidence of PW.15
and 18 and Ex.P.14 is sufficient to held the guilty of the
accused persons. Hence, prayed for reversing the
judgment and to convict the accused persons.
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11. Per contra, the learned counsel appearing for
the respondents - accused has supported the judgment of
the Sessions Court and contended that the evidence of
PWs.7 and 9 are unbelievable, as it is not probable to
accept their evidence. Wherein PW.7 who is said to be an
auto-driver has stated that he shifted the injured in his
autorickshaw to the Primary Health Centre (PHC),
Gunjahalli Village. But there is no evidence produced to
show that PW.7 took the injured to the hospital. Whereas
in dying declaration, the deceased has stated that she was
shifted to the hospital in ambulance. There is inconsistency
in the evidence of PW.7. Therefore, the Trial Court rightly
discarded and disputed his evidence.
12. It is further contended that PW.9 who is said to
be examined as an eyewitness to the incident has stated
that he saw the quarrel between accused No.1 and
deceased, where accused No.3 poured kerosene on the
deceased and accused No.1 lighted fire on the deceased.
It is further contended that the PW.7 has stated that there
was challenge between the deceased and accused No.1,
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where accused No.1 told the deceased that if she had love
on him, she should commit suicide and both of them
poured kerosene but accused No.1 lit fire on the deceased
and he did not fire himself. It is contended that when
PW.7 is from some other place, there is no chance of
passing through the house of accused No.1 in the midnight
12.30 a.m. Therefore, his evidence is also doubtful and not
acceptable and there is inconsistency in his evidence.
Therefore, the trial Court has rightly discarded his
evidence. Therefore, there is no question of considering
their evidence does not arise.
13. The learned counsel also contended as regards
the dying declaration. The evidence of PW.18 - Dr.Tanveer
has clearly revealed that he has endorsed his signature on
the dying declaration recorded PW.16, but he has not
stated that he was present during the time of recording
the dying declaration. As per the evidence of the
Tahasildar and doctor, two to three relatives of the
deceased were also present prior to recording the dying
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declaration. There is a chance of tutoring the same. Even
in the statement, it is stated that only accused No.1
lighted fire, whereas the evidence of PW.9 is altogether
different and accused Nos.2 to 5 were implicated by the
police that they have poured kerosene and lit the fire.
There is inconsistency of the statement of eyewitnesses
and dying declaration of the deceased.
14. That apart, it is also contended that the family
members including the mother and sister of the deceased
turned hostile except these four witnesses. Therefore, the
Trial Court rightly acquitted the accused persons. It is also
contended by the learned counsel that normally the
accused in a criminal trial is having a fundamental right of
presumption of innocence till his guilt is proved. Once the
accused is acquitted, the accused is having double decree
of presumption of innocence in favour of the accused.
Therefore, there is no need to interfere with the sound and
well reasoned judgment of the Trial Court in acquitting the
accused persons. Hence, prays for dismissal of the appeal.
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15. In support of his contention, learned counsel for
the respondents has relied upon the judgments of the
Hon'ble Supreme Court in the case of M.C. Ali and another
vs. State of Kerala reported in (2010) 4 SCC 573 and in
the case of Phulel Singh vs. State of Haryana reported in
(2024) 1 SCC (Crl.) 64.
16. Having heard the learned counsel appearing for
the parties and perused the documents, the points that
would arise for our consideration are:
i) Whether the prosecution proves beyond
all reasonable doubt that the deceased -
Shivamma said to be harassed
continuously by accused Nos.1 to 5 and
due to the harassment that on
02.06.2014 at 1.00 a.m., the accused
persons poured kerosene and lit fire on
the deceased and due to which she
sustained injuries and died in the
hospital on 16.06.2014 and thereby the
accused persons committed offences
punishable under Sections 498(A) and
302 read with Section 34 of IPC?
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ii) Whether the judgment of the Trial Court
in acquitting the accused persons calls
for interference by this Court?
iii) What order?
17. We have perused the records and the evidence
adduced before the Trial Court by the prosecution. Before
re-appreciating the evidence on records, it is worth to
mention the evidence adduced by the prosecution before
the Trial Court.
18. We have already observed above that the
prosecution as examined 19 witnesses as PW.1 to PW.19
and got marked 18 documents as Ex.P.1 to Ex.P.18 and 4
material objects were also marked. PW-1
Smt. Urukundamma, the mother of the deceased who
lodged a complaint to the police as per Ex.P.1 was turned
hostile except admitting the relationship. PW.2 -
Thayamma aged about 7 years, who was younger sister of
the deceased said to be residing with the deceased in her
matrimonial house, informed to PW.1 that the accused
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persons committed murder by lighting fire on her sister.
But she also turned hostile and did not support the case of
the prosecution. PWs.3 and 4 are the elder sister and
brother of the deceased, they also turned hostile.
Therefore, their evidence was not useful to the prosecution
to prove the case. PW.5 - uncle of the deceased and PW.6
an independent witness also turned hostile and did not
support the case of the prosecution. PW.8 - Sharanappa
another eyewitness also did not support the case of the
prosecution case.
19. PW.7 - Sri. Induvasi Bheemesha, an auto driver
who said to have shifted the injured- Shivamma to the
PHC, Gunjahalli Village and PW.9 - Bheemanna who also
said to be accompanied the deceased in the autorickshaw,
supported the case of the prosecution. PW.10 - Sri.
S.Nagram Gouda, Junior Engineer, who prepared the spot
sketch as per the instructions of the Investigating Officer
is a formal witness. PW.11 - Police Constable who carried
FIR to the Court is also a formal witness. PW.12 -
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Shivappa, Police Constable who was present with the
Investigating Officer while conducting inquest and took
photographs of the dead body as per Ex.P.12. PW.13 -
Abdul Bashid, Police Constable who carried sealed articles
to the FSL is also a formal witness. All these witnesses
have supported the case of the prosecution.
20. PW.14 - Venkat Swamy, ASI, registered the FIR
by obtaining complaint from PW-1. According to his
evidence, he has tried to record the statement of the
deceased-Shivamma when she was admitted in
Dhanvanthari Hospital, but she was not in a fit condition to
give statement. Therefore, he has obtained statement of
PW-1 as per Ex.P.1 and registered the FIR to set the law
into motion. Though he has stated that he has registered
the FIR on the basis of statement of PW.1 the mother of
the deceased, the PW-1 did not support the case of the
prosecution. According to his evidence, the deceased was
not in a fit state of mind to give statement. His evidence
should be considered along with considering the evidence
of PWs.16 and 18.
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21. PW.15 - Dr. Wasim Miya who conducted the PM
examination as per his evidence, the deceased was dead
due to the septicemia as a result of ante-mortem burns
leading to cardio respiratory. He also deposes that there
was 75 to 80% of burned injuries found on the body. But
as per the evidence of PW.18, 35 to 40% of burned
injuries were found on the body. The death due to burned
injuries is not in dispute.
22. PW.16 - Tahasildar who recorded the dying
declaration of the deceased-Shivamma as per Ex.P.14,
PW.17 - Suresh, C.P.I., was the investigating officer who
filed the charge sheet and PW.18 - Dr. Tanveer is a PG
student, who treated the deceased and was present at the
time of recording the dying declaration of the deceased by
PW.16, gave evidence and supported the case of the
prosecution. PW.19 - Kalappa, P.S.I., who also conducted
the part of investigation and prepared the spot
panchanama and after the death of the deceased, handed
over the investigation to PW.17 - Suresh, C.P.I.
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23. We have perused the evidence and material
witnesses examined by the prosecution. The maximum
witnesses of the prosecution were turned hostile including
the relatives, brother, sister, mother and uncle of the
deceased except PWs.7 and 9 who were said to be the
eyewitnesses to the incident, PW.16 - Tahsildar and
PW.18 - Dr.Tanveer in whose presence alleged dying
declaration was recorded. Based upon this evidence, the
Trial Court found accused persons not guilty and acquitted.
24. Before appreciating the evidence of PWs.7, 9,
16 and 18 on record, we bear in mind the principle laid
down by the Hon'ble Supreme Court in the case of M.C. Ali
and another (supra). The relevant paragraphs No.57 and
58 are extracted herein below:
"57. This settled proposition of law has been
reiterated by this Court in Chandrappa v. State of
Karnataka1. In this case, the provisions of Section
378 of the Code of Criminal Procedure, 1973 were
critically examined. After adverting to numerous
decisions of this Court, it was observed as follows:
(SCC p. 432, para 42)
(1979) 1 SCC 79 : 1979 SCC (Cri) 147
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"42. From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while
dealing with an appeal against an order of
acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court on
the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial
and compelling reasons', 'good and sufficient
grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes' etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
'flourishes of language to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear
in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be
innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having
secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
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(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the finding
of acquittal recorded by the trial court."
From the above, it becomes evident that if two
reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should
not disturb the findings of acquittal. The acquittal
reinforces and reaffirms the presumption of
innocence of the accused.
58. The High Court, in fact, makes a
reference to the judgment of this Court in Kali
Ram v. State of H.P.2, wherein this Court has
observed: (SCC p. 820, para 25)
"25. Another golden thread which runs
through the web of the administration of justice in
criminal cases is that if two views are possible on
the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted."
Having noticed the aforesaid principle, the High
Court reviewed the entire evidence. It reached the
conclusions which are opposite to the conclusions
recorded by the trial court. We are unable to
accept the opinion of the High Court that findings
recorded by the trial court are perverse and
manifestly erroneous."
(1973) 2 SCC 808 : 1973 SCC (Cri) 1048
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25. Another judgment of the Hon'ble Supreme
Court in the case of Phulel Singh (supra) is also required to
be considered. The relevant paragraphs No.19, 20 and 22
are extracted herein below:
"19. With the assistance of the parties, we have
perused the evidence and materials placed on
record.
20. The present case mainly rests on the dying
declaration of the deceased. No doubt, that a
conviction can be solely recorded on the basis of
dying declaration. However, for doing so, the
court must come to a conclusion that the dying
declaration is trustworthy, reliable and one which
inspires confidence. In the present case, the
dying declaration is recorded by Shri Sadhu Singh
(PW 5), Executive Magistrate. He stated that he
obtained the certificate from the doctor regarding
the fitness of the deceased to make the
statement. He further stated that he recorded the
statement of the deceased and thereafter it was
read over and explained to her. He further states
that she had thumb-marked the same after
admitting its contents to be correct.
22. It is relevant to note that the deceased
received burn injuries on 5-11-1991 but the dying
declaration came to be recorded on 8-11-1991
after an application was made by the relatives of
the deceased to the SDM, Ludhiana. Shri Sadhu
Singh (PW 5), Executive Magistrate, in his
evidence, admitted that the boys, who had
brought the application containing the order of
the SDM, Ludhiana had told him that the
statement of the deceased should be recorded
and that she was in a position to make the
statement. He further admitted that those boys
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had told him that whatever they had to tell the
deceased, they had told her and that he should
accompany them to record her statement. He has
further admitted that those 2-3 boys were related
to the deceased and some other persons were
also in the room in which he recorded the
statement of the deceased."
26. On keeping the principles laid down by the
Hon'ble Supreme Court in mind, now coming to the
evidence adduced by the prosecution in order to re-
appreciate the evidence of PWs- 7, 9, 16 and 18.
27. As per the evidence of PW.7 - Induvasi
Bheemesha, he has stated that about one year back, a day
in a morning hours 4 to 5 a.m., accused persons poured
kerosene on the deceased-Shivamma and lit fire and
committed murder. At that time all the accused were
present and he himself while proceeding in his auto, he
saw the incident and shifted the deceased to the hospital.
He also stated that accused No.1 told to deceased
Shivamma that if she is loving accused No.1 she should
pour kerosene, lit fire and commit suicide. Both of them
poured kerosene on them and accused No.1 lit fire on
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Shivamma and committed murder. After the deceased
sustained burned injuries, he took her to the PHC at
Gunjahalli Village. He also stated that accused No.1 after
lighting fire on the deceased, he ran out from the spot and
thereafter, the deceased was shifted to Dhanvanthari
Hospital from PHC hospital. He has identified the kerosene
can and match-sticks as M.O.1 and 2, burnt sari of the
deceased as M.O.3 and blouse as M.O.4. It is stated that
there are two houses of one Narasimha and Bangi
Narasanna present on the western side of the house of the
deceased. The presence of this witness on the spot is
disputed.
28. Learned counsel for the respondents has
contended that the incident allegedly took place at 12.30
to 1.00 a.m. midnight, there is no occasion for this witness
to come to that place. It is also contended that, if at all he
viewed the incident and stated that accused No.1 ran out
from the spot, whereas the dying declaration of the
deceased states that accused No.1 was accompanied to
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the hospital for the purpose of admitting the deceased to
the hospital. Looking into the evidence of this witness,
though he has stated there was challenge between the
deceased and accused No.1 that accused No.1 told the
deceased that she should commit suicide if she is having
affection with him and he will also commit suicide by
pouring kerosene on him, if he is having affection with the
deceased, but this fact of challenge made by accused No.1
and deceased is not deposed by any of the witnesses in
the case. Even there is no investigation on this part to say
that accused No.1 and deceased were desired to self-
immolation by pouring kerosene and lighting fire by each
other. As per the information received by PW.1 through
this witness and PW.9 that her daughter has sustained
burned injuries but it was not stated that accused persons
poured kerosene and lit fire at the first instance while
recording the first information by the police.
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29. Apart from that, if at all PW.7 accompanied the
deceased in his autorickshaw and took her to the PHC
hospital, Gunjahalli, the investigating officer for the best
reason known to him, he has not collected the MLC
register extract from PHC hospital, Gunjahalli to show
whether PW.7 has actually shifted the deceased to PHC,
Gunjahali.
30. That apart, as per Ex.P.14 - dying declaration,
the deceased was shifted to hospital by accused No.1 and
family members in an ambulance. The deceased has
stated that she was shifted to the hospital by ambulance,
but PW.7 says that he has shifted the deceased by his
autorickshaw. Therefore, the evidence of PW-7 does not
inspire confidence to believe that he was present at the
spot and shifted the deceased to the hospital. That apart
he was made as an eyewitness that he has stated that he
saw the quarrel between the deceased and accused No.1.
Whereas the deceased has stated that accused No.1
accompanied her to the hospital in the ambulance.
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Therefore, the evidence of PW.7 does not inspire any
confidence that he was present and viewed the incident at
12.30 a.m. midnight and he has deposed that he has
shifted the deceased at 4 a.m. to 5 a.m. in the morning.
There is inconsistency in his evidence. Therefore, the Trial
Court rightly disbelieved his evidence and discarded from
accepting the evidence for the prosecution.
31. As regard to the evidence of PW.9 who is to be
a relative of the deceased and PW.1, he has stated that
while he was going to his house through the house of
accused No.1, he saw accused persons quarrelling. He
being the very close relative of the deceased, he could
have stopped or prevented the quarrel or he could have
intimated same to the mother of the deceased. But he has
stated that on 02.06.2014 at 12.30 a.m., when the
incident took place, he received the phone call and he
went to Gunjahalli, where he saw accused No.1 dragging
the deceased outside from the house and all the accused
persons were present and accused No.3 poured kerosene
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by holding 5 liter kerosene can and accused No.1 lit fire
and other accused persons moved away. Thereafter
himself and another Sharanappa said to extinguished the
fire and took the deceased in autorickshaw to the hospital.
Thereafter, the injured was shifted to Dhanvanthari
hospital, where PSI came to the hospital and recorded the
voice and he has also identified M.O.1 and 2 in the Court.
During the cross examination, he has admitted that he
used to run the tractor and he came to know about the
incident and that he went to Yeragera Village at 12.00
midnight. He further stated that after the incident, he
never met the police and only he came to the Court after
issuance of summons and the suggestion made by the
counsel for accused was denied.
32. On careful reading of evidence of this witness,
this witness's evidence is inconsistent with his own
examination-in-chief, where at one stretch he has stated
that he came to know about the incident at 11.00 p.m.
and he was passing through the house of the accused and
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saw the quarrel between the accused persons and
deceased, where all accused persons dragged the
deceased from outside the house and accused No.3 poured
kerosene and accused No.1 lit fire. Whereas, the evidence
of PW.7 is concerned, it is stated that there was challenge
between the deceased and accused No.1 and both of them
poured kerosene on themselves and accused No.1 lit fire
on deceased but did not lit fire on him. It is altogether a
different story narrated by this witness. That apart, this
witness being closed relative of deceased and mother of
the deceased and the presence of this witness at 12.30
a.m. said to be passing through the house of the accused
is unbelievable as his house is situated in different place
and there is no occasion for him to pass through the house
of the accused. If at all this witness along with the PW.7
shifted the injured-deceased to the hospital, the deceased
might have stated before PW.16 - Tahasildar that she was
shifted by PW.7, but she has stated that she was shifted
by accused No.1 and family members. Therefore, the
evidence of this witness does not inspire any confidence
and it is improbable to accept the presence of this witness,
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also is not believable. Therefore the Trial Court has rightly
disbelieved the evidence of PW.9 as well.
33. The remaining evidence of PW.16 and PW.18
should be considered in respect of Ex.P.14 - the alleged
dying declaration, as it is held by the Hon'ble Apex Court
that the dying declaration can be sole basis for laying
conviction and sentence. Therefore, the Court is required
to be very careful in accepting the dying declaration.
34. On perusal of the evidence of PW.16, Balraj
Devarakadra, the then Tahasildar, who has deposed that
on 02.06.2014 he has received requisition from Yeragera
Police Station for recording the dying declaration of Smt.
Shivamma who was admitted in Dhanvanthari hospital,
Raichur with burned injuries. He has received the
requisition at 5.15 p.m. and visited the hospital. A police
constable took him to the burns ward where the patient
was admitted. He has enquired the patient whether she
was in a position to talk. She told her name and stated
that she was in Dhanvanthari. When he questioned her
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about the cause for burned injuries, she told him that on
01.06.2014 in the midnight, her husband Tayanna set her
on fire. She gave the address of her husband and she also
said that kerosene was poured on her body and she was
set on fire in the house of her husband, Gunjahalli Village.
She also showed her burned injuries and she also stated
that on 01.06.2014 in the morning she has gone to the
house of her aunt at Rajolli village and on the same day at
11.00 pm., her husband brought her to his house on
motorcycle, quarreled with her and then poured kerosene
and lit fire. She has further stated that he picked up
quarrel with her stating as to why she has gone to the
house of her aunt and he used to pick up quarrel
frequently. She also told him that she has given complaint
to the police to take action against her husband for the
said incident.
35. The Tahasildar further says that he read over
the contents of the statement in Kannada language and
obtained her LTM on the statement. The duty doctor in the
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hospital has made an endorsement on the statement that
the Tahasildar has recorded the statement - dying
declaration. Though statement was in the format, doctor
has stated he obtained his signature after recording the
statement. He has identified the dying declaration as per
Ex.P.14 and his signatures as Ex.P.14(a) to Ex.P.14(c).
Further he deposes that before proceeding to record the
dying declaration, he gave requisition to the duty doctor
and obtained his endorsement that patient can give
statement. He has identified the requisition as Ex.P.15 and
the endorsement of Dr.Tanveer. After recording the dying
declaration, he has put the same in the cover and sealed
the cover. He further stated that he intimated the police
that he would produce the dying declaration before the
Court and sent a letter addressed to Yeragera Police as per
Ex.P.16.
36. During the cross examination, he has admitted
that he cannot say how many endorsements were made
by him on Ex.P.14 and Ex.P.15 without looking into the
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documents. He further admits that he has obtained the
endorsement of Dr.Tanveer i.e., PW.18 only after
recording the statement on Ex.P.14. He further denied the
suggestion that the deceased was not in a position to talk
and the deceased has not given any answer to the
questions recorded by him. He has stated that there is no
idea under what provision of law, he retained the dying
declaration in his possession.
37. The evidence of PW.18 - Dr.Tanveer which
reveals that on 02.06.2014 at 5.00 a.m., a patient by
name Shivamma was brought to his hospital and she was
found 35 to 40% of burned injuries on the right side of the
body. He started treating her and informed the consultant
doctor. The police approached him and gave requisition to
know whether the patient was in a position to give
statement. He has seen the requisition Ex.P.15 and made
an endorsement on Ex.P.15 that patient can give
statement as per Ex.P.15(a). Then he further says that the
Tahasildar came to the hospital at 5.00 p.m. and recorded
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the statement of Shivamma in his presence. He has
identified Ex.P.14 is the statement of deceased -
Shivamma and also his signature as Ex.P.14(d). During his
cross examination, he has denied that he was not the
head of the Dhanvanthari hospital and further says that he
do not know who brought the injured to the hospital at
5.00 am. and who had issued the MLC to the police. He
further says that on 03.06.2014, the said patient was
discharged from their hospital on request. He further
admitted to the suggestion that whenever he has to give
opinion, it would be issued on the letter head of the
hospital. Further he denied the suggestion that
endorsement is not in his handwriting. He further admits
the suggestion that the Tahasildar prepared the statement
in the format and obtained his signature and denied the
suggestion that Tahasildar did not record the statement in
his presence.
38. We have perused the evidence of both the
witnesses. The Tahasildar in his evidence has stated that
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prior to recording the statement of the deceased, he has
directly spoken to the deceased to know whether she is in
a position to give statement or not and thereafter, he has
recorded the statement. After that, he has given
requisition as per Ex.P.15 to the doctor for getting the
opinion of the doctor. PW.18 - Dr.Tanveer has not stated
that prior to recording the dying declaration, PW.16 has
requested him to verify the position of the deceased that
whether she is in a fit state of mind for giving the
statement before PW.16. As per the evidence of PW.16, he
has directly spoken to the deceased and recorded the
statement and as a formality, he has given requisition to
the doctor as per Ex.P.15 and obtained the endorsement
that the deceased is in fit state of mind. On careful perusal
of evidence of PW-18, there is no requisition prior to the
recording the statement and there is no evidence to show
he has clinically and medically examined the injured before
giving permission to record the statement of the deceased.
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39. It is also brought to the notice of the Court by
the learned counsel for the respondents that as per the
evidence of PW.14 Venkat Swamy, ASI, who visited the
hospital at 12.00 noon with MLC report, where the patient
was not in a position to give statement, therefore, he has
obtained the statement of PW.1 - mother of the victim for
registering the FIR. Within 4 to 5 hours, PW.18 was said to
be given permission to record the statement without
ascertaining whether the patient was in a condition to give
statement or not, or whether she was provided any
treatment thereby she was able to give statement at 5.00
p.m., which was not forthcoming from the evidence of the
prosecution. If the injured was seriously admitted to the
hospital with burned injuries, normally the doctor used to
provide seduction painkiller to avoid the feeling of pain,
which would make the patient drowsy and would not be in
a position to give statement.
40. Apart from that, it is evident from the record
that two to three relatives of the injured were already
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present when the Tahasildar came to the hospital to record
the statement. Even on perusal of Ex.P.14, she has stated
that accused No.1 poured kerosene on her and lit fire in
the house. Whereas the evidence of PWs.7 and 9 state
that deceased was dragged outside the house and in the
presence of the eyewitnesses, accused No.3 poured
kerosene and accused No.1 lit fire. There is totally
inconsistency between the evidence of the eyewitnesses
and the dying declaration said to be recorded by PW.16.
41. As held by the Hon'ble Supreme Court, while
accepting the dying declaration, the Court is required to be
cautious in accepting the same. The judgment relied by
the learned counsel for the respondents, the Hon'ble Apex
Court has disbelieved the dying declaration and acquitted
the appellants on the finding that before recording the
dying declaration, the relatives of the injured were present
along with the deceased.
42. The police who was present along with the
Tahasildar gave the requisition to PW.18. The Tahasildar
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before recording the statement never meets PW.18 to
ascertain the fit state of mind of the deceased to give
statement, but he directly recorded the statement and
obtained the thumb impression of the deceased and
thereafter obtained signature of the doctor in Ex.P.14. The
very chances of recording statement by PW.16 and
obtaining endorsement from PW.18 is not ruled out.
Therefore, recording of the evidence i.e., dying declaration
Ex.P.14 creates doubt in the mind of the Court.
Considering the same, the Trial Court has rightly
disbelieved the alleged dying declaration - Ex.P14 is not
recorded as per the satisfaction of PW.16 in the presence
of PW.18 and this dying declaration do not inspire any
confidence of the Court to accept for convicting the
accused persons solely on the basis of dying declaration.
43. In view of the judgment of the Hon'ble Apex
Court as stated above, in a criminal trial the fundamental
right of the accused presumed to be innocence till he is
proved guilty. Once the accused is acquitted by the Trial
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Court, double standard of presumption of innocence is
available to the accused. Such being the case, the Court
do not find any evidence or sufficient material to reverse
the judgment of acquittal and to lay conviction on the
accused persons. Therefore, we are of the view that the
prosecution has failed to prove the charges leveled against
the accused persons that they committed murder by
lighting fire on the deceased due to which she died.
44. Consequently, the judgment of the Trial Court
considering all the evidence on record, rightly disbelieved
the dying declaration and acquitted the accused persons
for the charges leveled against them. Therefore, we do not
find any illegality committed by the Trial Court to reverse
the same and to found the accused guilty in this case.
Accordingly, the appeal filed by the State deserves to be
dismissed.
45. For the aforementioned reasons, we proceed to
pass the following:
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ORDER
i) The appeal filed by the State under
Section 378 of Cr.P.C. is hereby
dismissed.
Send the copy of this judgment to the Trial Court
along with the Trial Court records, forthwith.
Sd/-
(K NATARAJAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
KJJ/MCR
CT:SI
