[Cites 20, Cited by 0]
Karnataka High Court
Jayamma vs State Of Karnataka on 21 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2026 R
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1975/2019
C/W.
CRIMINAL APPEAL NO.1870/2019
IN CRIMINAL APPEAL NO.1975/2019:
BETWEEN:
1. VENKATESHA @ VENKATGOWDA
S/O RANGEGOWDA
AGED ABOUT 30 YEARS
R/O K.HOSAHALLI VILLAGE,
KUNDRU HOBLI, ALURU TALUK
HASSAN DISTRICT-573214. ... APPELLANT
(BY SRI. GIREESHA J.T., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ALURU P.S
REPRESENTED BY SPP
HIGH COUT BUILDING
BENGALURU-560001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 22.08.2019
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, HASSAN IN S.C.NO.80/2015 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498-A, 302 AND 304-B OF IPC AND
SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.
IN CRIMINAL APPEAL NO.1870/2019:
BETWEEN:
1. JAYAMMA
W/O. RANGEGOWDA
AGED ABOUT 63 YEARS
R/O. K. HOSAAHALLI VILLAGE
KUNDURU HOBLI, ALURU TALUK
HASSAN DISTRICT-573214. ... APPELLANT
(BY SRI. GIREESHA J.T., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ALURU P.S.,
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560 001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 22.08.2019, PASSED BY
THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
IN S.C.NO.80/2015 (WITH CLUBBED S.C.NO.149/2015)
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498A R/W SECTION 109 OF IPC
AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.02.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. These two appeals are filed by accused No.1 and
2. Accused No.1 in Crl.A.No.1975/2019 has questioned the
conviction and sentence for the offence punishable under
Section 498-A, 302, 304-B of Indian Penal Code
(hereinafter referred to as 'IPC') and Section 3 and 4 of the
Dowry Prohibition Act (hereinafter referred to as DP Act).
The accused No.2 in Crl.A.No.1870/2019 questioned the
conviction and sentence for the offence punishable under
Section 498-A r/w Section 109 of IPC and Section 3 and 4
of DP Act.
2. The factual matrix of case of prosecution is that
accused No.1 is the husband of the deceased Vani @
Puttalakshmi and accused No.2 is the mother of accused
No.1. Marriage of accused No.1 with the deceased took
place on 13.12.2009 and at the time of marriage, it was
agreed to pay Rs.40,000/- cash and 8 tholas of gold to be
given and given Rs.40,000/- cash and 6 tholas of gold at
the time of marriage. There was a balance of 2 tholas of
gold to be given. After marriage, accused No.1 and the
deceased lived happily for about 1 year and thereafter,
accused No.1 and 2 have started giving ill-treatment and
giving her physical and mental torture. On coming to know
about this, father of the deceased spoke to accused No.1
and 2 and also panchayaths were held and inspite of it,
continued the harassment. The deceased had gone to her
parents house and about one week back, she came back to
the house of the accused. The accused No.1 and 2 have
committed the offences of taking away the life under
Section 302 of IPC and other offences and hence, case was
registered by recording dying declaration and Police have
investigated the matter and filed the charge sheet. The
accused persons were secured and they did not plead guilty
and claims trial. Hence, prosecution examined P.W.1 to
P.W.35 and also got marked Ex.P.1 to Ex.P.56 and MO.1 to
MO.19. The trial judge after closure of the evidence of the
prosecution, recorded 313 statement of the accused and
denied the incriminating evidence and accused did not
choose to lead any evidence. The trial judge having
considered both oral and documentary evidence convicted
the accused No.1 for all the charges levelled against him
and the accused No.2 is convicted only for the offence of
Section 498A r/w Section 109 of IPC and Section 3 and 4 of
DP Act. Hence, these two appeals are filed before this
Court.
3. The main contention of the counsel appearing for
the appellant/accused No.1 in Crl.A.No.1975/2019 that the
Trial Court committed an error in appreciating the evidence
and fails to take note of admissions on the part of P.W.1
during the course of cross-examination that the marriage
was done according to customs and further there is no
specific allegation with regard to who demanded dowry or
who received the dowry amount. The P.W.2 and P.W.3 who
are mother and sister also admitted with regard to
performing of marriage as per the customs. There are
contradictions in the evidence of P.W.1 to P.W.3 and
P.W.11 regarding demand of dowry and payment of dowry.
The witnesses P.W.4 to P.W.6 and PW9 who are the
neighbors and eyewitnesses to the incident have not
supported the case of prosecution. The witness P.W.5
himself had been to the farmland to get accused No.1 to his
house, informing him about the incident and hence, the
presence of accused No.1 at the spot is doubtful.
4. The witnesses P.W.7 and P.W.8 are the villagers of
the complainant and they have not supported the case of
the prosecution. It is contended that there is no allegation
in Ex.P.45 and Ex.P.48 which are dying declaration and
Ex.P.45 is allegedly recorded by Tahasildar and no
allegation is made against this appellant. Further Ex.P.48 is
recorded by the Police and the same is inconsistent with
Ex.P.45. The trail judge has committed an error in relying
upon Ex.P.45 and Ex.P.48. The counsel also would submits
that Ex.P.47-PM report reflects that burns more than 90%.
The witness P.W.31 who conducted autopsy, during the
course of examination, admitted that eyes, face, hands,
fingers, toes and palms were fully burnt. Further, the sole
and palms of the deceased were fully burnt. There is no
endorsement regarding the fitness of the deceased to give
statment in Ex.P.45 and Ex.P.48. The counsel also would
contend that accused No.2 has been falsely implicated in
the case and ought not to have invoked the offence under
Section 498-A r/w Section 109 of IPC and Section 3 and 4
of DP Act when the demand and acceptance is not proved
and with regard to subjecting her for cruelty also, no
evidence before the Court.
5. The counsel also reiterated the grounds which
have been urged in the connected appeal. The counsel
would vehemently contend that when there is no
independent evidence before the Court regarding alleged
demand and acceptance and the admissions on the part of
witnesses is very clear that marriage was performed as per
the financial capacity of the parents of the deceased and
hence, there was no demand and acceptance and also
subjecting her for cruelty and the deceased came back one
week prior to the incident that too after giving birth to a
child and when such being the case, ought not to have
convicted the appellant No.2.
6. Per contra, the counsel appearing for the State
would contend that the victim made the statement before
the Police as well as before the Tahasildar in terms of
Ex.P.45 and Ex.P.48 and the statement is consistent and
Doctor evidence is also very clear that cause of death on
account of severe burn injury and burn injuries which led to
the death. The counsel also submits that though the other
witnesses have turned hostile, but the evidence available on
record, particularly the evidence of P.W.1 to P.W.3, P.W.10,
P.W.11, P.W.12, P.W.17 and P.W.19 is very clear to prove
the charges and the same has been considered by the Trial
Court and properly appreciated the evidence available on
record and hence, it does not require interference.
7. Having heard the learned counsel for the appellant
and also the learned counsel for the respondent-State and
considering the oral and documentary evidence, the points
that would arise for the consideration of this Court are:
(1) Whether the Trial Court committed an error
in convicting the accused for the charges
levelled against him and sentencing and it
requires interference of this Court?
(2) Whether the accused No.2 made out the
ground that Trial Court committed an error
in convicting the accused for the offence
punishable under Section 498A r/w Section
109 of IPC and Section 3 and 4 of DP Act
and whether it requires interference of this
Court?
(3) What order?
Point Nos.(1) and (2):
8. Both the points were taken together for
consideration and similar charges are framed against
accused No.1 and 2 and we have given our anxious
consideration to both oral and documentary evidence
available on record. Having perused the material available
on record, it is not in dispute that marriage was held in the
year 2009 and incident was taken place on 17.12.2014 and
that too in the matrimonial house of the deceased, but
whether the prosecution proved the charges levelled
against the accused to be re-considered by this Court by
appreciating the evidence available on record. The charge
against both accused No.1 and 2 that marriage was
performed on 13.12.2009 and demand of dowry was made
to Rs.60,000/- and 100 grams of gold and after the
negotiation, it was agreed to give Rs.40,000/- cash and 8
tholas of gold and after the marriage, they were cordial for
sometime, but later on, at the instance of the accused No.2,
deceased was subjected to cruelty and also accused No.1
and 2 have taken the life of the deceased by pouring
kerosene and setting the fire at the instigation of accused
No.2 and so also committed the offence of dowry death and
having accepted the dowry before marriage and subsequent
to the marriage and hence, the accused persons were
registered for the above offences.
9. The prosecution mainly relies upon the evidence of
P.W.1 to P.W.35. The witnesses P.W.4 to P.W.9 have
completely turned hostile and so also P.W.6 to P.W.7,
P.W.13 to P.W.15 have also turned hostile and they
categorically says that they do not know anything about the
harassment or ill-treatment given by the accused persons
with respect to the demand for remaining dowry.
10. The other witness is P.W.16 - goldsmith who
prepared the gold at the time of marriage and his evidence
is not necessary since who had prepared the gold ornament
at the time of marriage is not relevant.
11. The other witness is P.W.18 also turned hostile and
she do not know anything about the harassment or ill
treatment.
12. The witness P.W.21 who is the inquest mahazar
witness drawing of mahazar in terms of Ex.P.41 and this
witness turned hostile except admitting the signature in the
mahazar and so also P.W.22 seizure witness and drawn the
seizure mahazar in terms of Ex.P.2, but this witness is
hearsay witness and says that accused No.1 had doused
the kerosene on the deceased and lit her with fire and
thereby killing her but in the cross-examination, he admits
that concerned Police had not called him to witness as a
panch witness. The witness volunteers that he was along
with the complainant. So also P.W.23 is seizure mahazar
witness of Ex.P.2 i.e., seizure of half burnt nighty, saree,
petticoat, kerosene can and this witness in the cross-
examination says that he do not remember the date on
which the said mahazar was drawn, but had visited the
hospital.
13. The witness P.W.24 is the Taluk Executive
Magistrate who had called for conducting the inquest
mahazar and says that he came to know that the deceased
died due to dousing of kerosene and litting fire on the
victim by accused No.1 and 2 and he is hearsay witness.
14. The witnesses P.W.25 and P.W.26 who are
witnesses who seized cloth and gold and they have turned
hostile and the witness P.W.27 also turned hostile in
respect of Ex.P.42 and Ex.P.43 respectively.
15. Having considered these witnesses who have not
supported the case of prosecution and turns hostile and
they are also the hearsay witnesses, this Court has to
consider the remaining evidence before the Court.
16. The witnesses P.W.1 to P.W.3 who are father,
mother and sister of the deceased. The witness P.W.12 is
the brother of the deceased. The evidence of P.W.1 to
P.W.3 is similar with regard to the demand and acceptance
before the marriage and also deposes that panchayath was
held in view of harassment, but says that daughter was
provided with medical treatment and came to know about
the incident, but P.W.1 says that both the accused tied her
legs and lit the fire and the same was revealed by the
victim herself and she died at around 10:30 and identify the
signature in Ex.P.14 and Ex.P.15 and so also identifies MO.1
to MO.4 and MO.10 to MO.13 and also identifies the
photographs and Ex.P.16 to Ex.P.22. This witness in the
cross-examination admitted that the accused persons at the
time of marriage, requested that to perform the marriage
as per the customs and as per the customs, performed the
marriage. However, volunteers that they demanded dowry
and categorically admits that he was the only earning
member in the family and he has to maintain entire family
and categorically admits that he was not in a position to
give dowry and also categorically admits that accused
persons are well of that financially sound and they are
landlord.
17. The witness P.W.2- mother in her chief evidence
she re-iterated the evidence of P.W.1, but in the cross-
examination, she also admits that in the year 2013, her
daughter came to their house for delivery of second child
and also admits that 10 days back she went to the house of
accused and also categorically admits that she was also
present at the time of marriage talk and directly came and
gave the proposal and also categorically admits that they
requested to perform the marriage as per the customs. She
also admits that her husband is the only earning member in
the family and very difficult to manage the family out of his
income and categorically admits that due to the above
reasons, they have agreed to perform the marriage and
they were unable to perform the marriage in choultry and
the said talks were held during the time of the negotiation
and also given admission that as per their version, date was
fixed and performed the marriage. She admits that father
of the accused having two wives and both the wives have
children.
18. The evidence of P.W.3-sister though reiterates
the evidence of P.W.1 and P.W.2 in her chief evidence and
categorically admits in the cross-examination that they
performed the marriage of the deceased as per their
financial capacity and accused persons are also agreed for
the same. Though denied that they have not demanded the
dowry, she also categorically admits that father is the only
earning member in the family and not having financial
sound condition and difficult to save the money. It is also
elicited that as per Hindu customs, at the time of marriage,
even though no demand of dowry, provide chain, ear ring
and other gold ornaments as per their financial condition
and also admits that they gave gift at the time of marriage.
She categorically admits that they were not affordable to
perform the marriage in Choutri. They performed the
marriage in their house itself. She also admits that accused
persons are well of. The P.W.3 also admits that prior to this
incident, they have not given any complaint with the Police
for harassment.
19. The other witness is P.W.10 and though this
witness says that accused persons had demanded 120 gram
of gold and Rs.40,000/- cash as dowry at the time of
marriage negotiations, finally it was agreed to Rs.40,000/-
cash and 10 grams of gold, but the evidence of P.W.10 is
contrary to the evidence of P.W.1 to P.W.3. This witness
says that demand is 120 grams of gold, but P.W.1 to P.W.3
says that demand was 100 grams of gold and agreed to
give 100 grams of gold, but P.W.1 to P.W.3 says 8 tholas of
gold. In the cross-examination, though he says that he was
present at the time of negotiation before the marriage, but
he do not remember the date on which the said
negotiations had taken place. This witness is the relative of
the deceased that is deceased was daughter of his aunt.
But, in the cross-examination, he says that at the time of
negotiation, his father, mother and elder uncle and aunt
were present. He also categorically admits that accused
persons had requested the parents of the deceased to
celebrate the marriage in accordance with their traditions
and customs and accordingly the marriage was celebrated.
20. The other witness P.W.11 knows the complainant
and the deceased and he also reiterates in the line of
evidence of P.W.10 and he says that 60 grams of gold was
agreed, not as 8 tholas of gold, but he says that
Rs.40,000/- cash, but he says that the deceased was
subjected for physical and mental harassment to bring the
balance dowry of 20 grams of gold, but he says that he
came to know that deceased had poured kerosene on
herself and had got lit the fire on herself. But, in the cross-
examination, though he says that complainant is not related
to him, he was not present at the time of marriage
negotiation in the house of the complainant and do not
know personally about the deliberations that had taken
place with respect to the marriage and hence, this evidence
is also not helpful to the prosecution since he was not
present though he deposes with regard to demand of
dowry.
21. The P.W.12 who is the brother and he also
reiterates the evidence of P.W.1 to P.W.3 like father,
mother and sister regarding demand and the balance of
giving of dowry of 20 grams of gold, but in the cross
examination, he categorically admits that at the time of
marriage negotiation he was residing in Mysore and he do
not know anything about the marriage negotiation that had
taken place prior to the marriage since he was residing at
Mysore and he do not know who were present at the time
of marriage negotiation and also he has not attended any
panchayath conveyed regarding harassment. This evidence
also not helpful to the prosecution.
22. The other evidence available before the Court is
evidence of P.W.17. This witness says that negotiations had
taken place about 3 years back and the marriage was
celebrated after 1 month from the date of negotiation and
he reiterates the evidence of accepting to pay the
Rs.40,000/- cash and 8 tholas of gold and paid the
Rs.40,000/- in cash and 6 tholas of gold. This witness says
that an attempt was made to kill the deceased by pouring
kerosene on her and came to know about the same. But, in
cross examination, he admits that complainant is his uncle.
He do not remember the date on which the marriage
negotiation had taken place. He further admits that he was
not called for the marriage negotiation that had taken place
at the house of the complainant and also admits that since
he had not attended the marriage negotiation, he do not
know anything about the incident. This evidence also will
not comes to the aid of the prosecution to prove the
charges levelled against the accused.
23. The other witness P.W.19 says that during the
time of negotiation, accused No.1 and 2, his father and
other persons were present from their side and settled for
Rs.40,000/- cash and 60 grams of gold and also speaks
about the incident and deceased died due to burn injury
which she had sustained due to the act of accused No.1 and
came to know that accused No.2 was not in her house and
she was present at the Hospital. This witness also subjected
to cross-examination and in the cross-examination, he says
that he cannot remember the date when the marriage
negotiations had taken place and further admits that
accused persons had requested the complainant and his
family members to get the marriage celebrated in
accordance with their financial capacity and further
admitted that at the time of marriage deliberations as per
the traditions and customs prevailing in the Hindu
community, the bride will be gifted with gold ornaments
even though demand is not made. Further, he admits that
complainant and his family members have celebrated the
marriage in accordance with their financial conditions and
hence, this evidence also very clear that marriage was
performed as per Hindu customs. He categorically says that
he had not participated in any of the Panchayaths conveyed
by the complainant with accused persons. He do not know
about the incident.
24. Now, the evidence remains before the Court is
P.W.29-Tahasildar who had visited the hospital at about
7:30 p.m., and in the presence of the Doctor, recorded the
statement of the victim and medical officer had examined
the victim and certified that she was in a condition to give
her statement. At the time of recording the statement, put
the questions and satisfied with regard to the condition of
the victim and she was in a position to give her statement.
The statement of the victim was recorded from 7:30 p.m.,
and in the form of questionnaire till 9:00 p.m., and also put
preliminary questions to the victim in order to satisfy
himself. However, he had noticed that the face of the victim
and her hands and the body was burnt, even then she was
conscious and was attentive to his questions and given the
statement. It is also the evidence that both the hands of
her were burnt and she was unable to affix her signature to
the same and obtained the thumb impression of her left
foot to the said dying declaration and identified Ex.P.45 -
dying declaration. This witness was subjected to cross-
examination and it is suggested that victim was
unconscious when she had visited the hospital and the
same was denied. When she had visited the ward, she was
sleeping, but however, she was in a condition to give the
statement. In the cross-examination, it is elicited that when
he had enquired her, who was responsible for her condition
and who had brought her to the hospital, she had stated
that she was brought in an ambulance to the hospital by
her husband himself.
25. The other witness is P.W.31-Doctor who
conducted autopsy and taken note of injuries and sustained
the injuries to the extent of 90%. He opined that the death
was caused due to neurogenic shock and as a result of burn
injuries and issued the certificate in terms of Ex.P.47. In the
evidence of P.W.31, when the suggestion was made that if
a person douses with kerosene and lits fire with an
intention to kill, there is a chances of sustaining the
abovementioned injuries and it is likely that death may be
caused due to the said burn injuries. This witness was
subjected to cross-examination. In the cross-examination,
suggestion was made that she had suffered 100% burns
and the same was denied. But he says that sustained more
than 90% burn injuries in his autopsy report and admits
that generally if a person sustained more than 90% burns,
then the chances of sustaining complete burn injuries on his
eyes, face, hands, fingers, toes and palm is correct. It is
also suggested that there would be chances of sustaining
the above mentioned burn injuries as mentioned by him in
the autopsy report that if a person catches accidental fire
by bursting of kerosene stove and the same was denied.
26. The other witness is P.W.32 who was present in
the Hospital and request was made to him to state about
the victim's condition to give statement. He examined her
at 6:25 p.m., and endorsed on the said requisition that
patient was capable of giving her statement and also affixed
his signature to the said letter, after that the concerned PSI
had recorded the statement of the injured in his presence
along with the staff, he identified Ex.P.48 and signature as
Ex.P.48(a). It is also his evidence that after the intimation
sent to the Executive Magistrate, she had visited the
concerned ward at 7:30 p.m., and once again Executive
Magistrate had enquired about him with regard to the
condition of the injured and on examination and
confirmation that she was able to give statement. The
Executive Magistrate also recorded the statement of the
injured as per Ex.P.45. In the cross-examination, he admits
that when the information was received, he was in the
casualty department and received the intimation at 6:25
p.m., and within a span of 2 or 3 minutes after receiving
the intimation, he had examined the victim in burns ward
and he doesn't remember who exactly were present along
with the injured, but there were 2 to 3 persons and sent
them outside while recording the statement. The Police
started recording the statement within 5 to 10 minutes
after issuing the intimation at 6:25 p.m., the statement was
recorded for 15 minutes. It is elicited that injured has
sustained burn injuries on her face, mouth, eyes and other
parts of the body and it was burnt completely. The
suggestion was made that she was not in a condition to
give any statement due to the severe burn injury and the
same was denied. It is suggested that if a person sustained
burn injuries to an extent of 50%, he cannot be in a
position to speak and give statement and the same was
denied. But witness says that he was present when the
Executive Magistrate had visited the hospital and recorded
the statement. But, Executive Magistrate has not given any
requisition to record the statement of the injured, likewise
he has not issued any certificate about the physical
condition and fitness of the injured to give statement.
However, he has certified in the printed format on which
the Executive Magistrate had recorded the statement of
injured.
27. The other witnesses is P.W.33 who had
conducted the inquest mahazar in the presence of
witnesses and recorded the statement of Smt.Rathnamma,
Mohankumari, Smt.Sannamma, Devaraju and Swamy at
the time of inquest and inquest is marked as Ex.P.41. In
the cross-examination, it is elicited that at the time of
conducting the inquest mahazar, the eyes, face, Head,
mouth, hands and legs including fingers and toes of the
deceased were burnt.
28. The other witness is P.W.34-PSI. In his evidence,
he says that he had received the requisition from the
Hassan Govt. Hospital at 5:30 p.m., and visited the hospital
at 6:30 p.m., and collected the intimation. Intimation is
marked as Ex.P.30. It is his evidence that immediately he
had visited the burn spot and injured was admitted and
requested the duty Doctor by name Prashanth to give his
opinion about the injured and being capable of giving her
statement, Doctor certified the same, then sent a
requisition to the Executive Magistrate to record the dying
declaration of the injured. He had recorded the statement
of injured in the presence of medical officer Dr.Prashanth
between 7:50 p.m., to 8:20 p.m., and he identifies Ex.P.48
and signature of this witness is marked as Ex.P.48(b) and
also it is his evidence that he was directed by the DYSP to
apprehend the accused persons and accused No.1 was
arrested and produced before him. This witness was
subjected to cross examination and in the cross
examination, he admits that injured had sustained burn
injuries on her body and deposes that he cannot say
whether she had sustained burn injury all over the body
and all other suggestions made that she was not in a
position to give any statement was denied.
29. The other witness is P.W.35-Police
Superintendent. In his evidence, he says that he had
received the intimation of death of the injured at about
10.30 a.m., and immediately sent the requisition to the
Executive Magistrate to conduct the inquest and also visited
the place of incident and conducted the mahazar at the
place of incident as per Ex.P.2 in the presence of panch
witnesses and identifies the signature in Ex.P.2 and also
seized the MO.1 to MO.4 and rough sketch is also prepared
as per Ex.P.54 and signature of this witness is marked as
Ex.P.54(a) and also photographs were taken in terms of
Ex.P.16 to Ex.P.22 and mahazar was conducted regarding
seizure of the cloth and also identifies MO.10 to MO.16 and
also enquired the accused person and had recovered one
shirt, pant and one match box from the accused person by
drawing the mahazar as per Ex.P.43 and also gold
ornaments and cash as per Ex.P.46 by drawing the
mahazar in the house of the accused when the complainant
had taken them and identifies MO.5 to MO.9 and also says
that statements of witnesses are recorded on different
dates and also requested to prepare the sketch and also
received the FSL as per Ex.P.55 and autopsy document and
after completion of investigation, filed the charges sheet.
This witness was subjected to cross-examination. In the
cross-examination, he admits that he mentioned the date
on the document in which he affixed his signature. Further
admits that he affixed his signature to the document along
with date on the date of preparing the said document. He
issued the notice to the panch witnesses at the time of
conducting the mahazar at Ex.P.2 and visited the place of
incident. It is suggested that he did not visit the place of
incident nor he had drawn any mahazar as per Ex.P.2 and
neither he had recovered MO.1 to MO.4. In the cross-
examination suggestions are made that he has not done
Ex.P.2, Ex.P.54 and not collected MOs and also the
photographs and also not drawn the mahazar in terms of
Ex.P.43 and the said suggestions are denied. However, he
admits that he had not mentioned the denomination of the
currency notes which he had recovered under the mahazar
Ex.P.46 and all other suggestions are denied.
30. Having considered both oral and documentary
evidence in detail, this Court has to examine whether the
Trial Court has rightly appreciated the evidence available on
record in convicting and sentencing accused Nos.1 and 2.
31. The law was set in motion by recording the
statement of injured victim and this Court has to consider
the evidence of P.W.34, who recorded the statement. The
P.W.34 says that he received a requisition from the Hassan
Government Hospital at about 5.30 p.m. through wireless
message, wherein he was intimated that a person was
admitted to the hospital with the history of burn injury. He
had visited the hospital at about 6.00 p.m. and had
collected the intimation in the police outpost at the hospital
which is marked as Ex.P50. It is his evidence that he had
visited the Burns Ward where the injured was admitted and
had requested the duty doctor P.W.32 to give his opinion
about the injured being capable of giving her statement.
The duty doctor certifies that she is in fit condition to give
statement. At the same time, he also sent a requisition to
the Executive Magistrate to record the dying declaration of
the injured. Since, the doctor had given the opinion that
injured is capable to give statement and recorded the
statement of the injured in the presence of Medical Officer
P.W.32 between 7.50 p.m. to 8.20 p.m. and the same is
marked as Ex.P48 and identified his signature as Ex.P48(a).
Thereafter, issued FIR and sent the same to the Court and
on account of death of the injured invoked Sections 302
and 304(B) of IPC sending the requisition Ex.P52 and
thereafter accused No.1 was arrested and produced before
the Deputy Superintendent of Police. In the cross-
examination, P.W.34 says that having received the
intimation, reached the Burns Ward and when he visited the
Burns Ward, the Medical Officer was very much present and
hospital staff and his staff were also present while getting
the permission from the doctor. But, it is an admitted fact
that injured had sustained burn injuries on her body. The
witness deposes that he cannot say whether she had
sustained burn injuries all over the body. Hence, this Court
has to take note of the evidence of P.W.32.
32. P.W.32-Doctor says that he had examined the
patient at 6.25 p.m. having received the letter from the PSI
and endorsed on the said requisition that patient is capable
to give statement and PSI recorded the statement in his
presence. But, the evidence of P.W.34 is that the doctor
was present when he had visited the Burns Ward. But,
P.W.32 says that when he received the information from
the concerned police, he was in the Casualty Department
and was not in the Burns Ward. It has to be noted that
P.W.32 says that he received requisition at 6.25 p.m. and
police started recording the statement of the injured within
5 to 10 minutes after receiving the intimation at 6.25 p.m.,
then it would be around 6.30 to 6.40 p.m. But, the
evidence of P.W.32 is that he recorded the statement of the
injured in the presence of Medical Officer at 7.50 to 8.20
p.m. Hence, very recording of statement of the injured
itself is doubtful and it ought to have been only before 7.00
p.m. as per the evidence of the Doctor.
33. It also important to note that P.W.34 says that he
sent a requisition to the Magistrate at 6.30 p.m. and this
Court has to peruse the evidence of P.W.29-Magistrate i.e.
Tahsildar, who recorded the statement of the injured from
7.30 p.m. onwards having visited the hospital at 7.30 p.m.
The evidence of P.W.29 is that he recorded the statement
from 7.30. p.m., that too in the form of a questionnaires till
9.00 p.m. i.e., from 7.30 to 9.00 p.m. Hence, it creates
doubt in the mind of the Court with regard to recording the
statement by PSI in between 7.50 p.m. to 8.20 p.m. and
the timings of recording the statement of injured overlaps
with each other. No doubt, the second dying declaration
was recorded by P.W.29 is from 7.30 to 9.00 p.m., there is
no endorsement for having certified the same. P.W.32-
Doctor in his evidence regarding recording of dying
declaration by the Magistrate categorically admits that
Executive Magistrate had not given any requisition to record
the statement of the injured. Likewise, he has not issued
any certificate about the physical condition and fitness of
the injured to give her statement. However, claims that
certified in the printed format on which the Executive
Magistrate had recorded the statement of the injured.
34. It has to be noted that on perusal of Ex.P45,
except making the signature, there is no such endorsement
and only says that her statement was recorded at 7.30 p.m.
and there is no endorsement that she is fit to give
statement and not certified the document at Ex.P48. But,
on perusal of Ex.P45-second dying declaration, she only
says that husband made galata in respect of the morning
breakfast that she has put more salt and also says that
quarrel had taken place regarding demand of dowry. The
first dying declaration was recorded by P.W.34-PSI, wherein
detailed statement was made regarding her marriage was
solemnized 6 years ago and her parents gave 6 tholas of
gold and not given 2 tholas of gold and when she came
back, objected that she came late and continuously made
galata and on that day also, he abused regarding breakfast
and also she did not bring dowry amount and questioned
why she did not bring the bed. But, the fact is that in the
very statement it is made clear that marriage was
solemnized 6 years ago and question of bringing the bed
after 6 years is also doubtful.
35. It is also important to note that specific
statement is made that husband poured the kerosene which
was lying in the kitchen and set fire and mother-in-law
came and extinguished the fire by pouring water. But, the
P.W.1 in his chief evidence regarding the statement made
by the victim says that accused Nos.1 and 2 i.e., husband
and mother-in-law quarreled with the victim and tied her
legs and both of them poured kerosene and set the fire.
P.W.1 says that on enquiry, her daughter revealed the
same. There are material contradictions with regard to
making such statement before the Tahsildar, PSI as well as
before the father and these material contradictions were
not taken note of by the Trial Court while appreciating the
evidence. The timings mentioned by P.W.33, P.W.29 and
P.W.32-Doctor overlaps with each other. P.W.32-Doctor
says that he was in Casualty Department when he received
the intimation and requisition and P.W.33 says that he
directly went to Burns Ward, wherein doctor was present
and recorded the dying declaration. Hence, it is very clear
that the case of the prosecution is not definite and
trustworthy with regard to recording of dying declaration.
36. No doubt, if any statement is recorded by the
police under Section 161 of Cr.P.C and based on that
statement, FIR is registered, the Court can look into the
same as held by the Division Bench judgment of Allahabad
High Court in GULAB SINGH vs. STATE Of U.P. reported
in 2003 (47) ACC 161 (ALL) (DB). But, the Court has to
only see the statements of victim under Section 161 of
Cr.P.C was found worthy to be relied upon as dying
declaration. The Court also taken note of dying declaration
recorded by police in the presence of other prosecution
witnesses is valid and the same is reliable and cannot be
doubted on the ground that the statement is not produced
to police, but produced before the Court directly in the
judgment in DORYODHAN vs. STATE OF MAHARASHTRA
reported in 2003 (1) JIC 184 (SC).
37. It is also to be noted that when there are
multiple dying declarations, the Court has to see the
evidentiary value of the same and the duty of Court is that
each dying declaration should be considered independently
on its own merits. One cannot be rejected because of
contents of other in cases where there is more than one
dying declarations, it is the duty of the Court to consider
each one of them in its correct perspective and satisfy itself
that which one of them reflects the true state of affairs as
held in the three Judge Bench judgment of the Apex Court
in MUKESH vs. STATE FOR NCT OF DELHI & OTHERS
reported in AIR 2017 SC 2161.
38. In the judgment of the Apex Court in RAJU
DEVADE VS. STATE OF MAHARASHTRA reported in AIR
2016 SC 3209, the Apex Court held with regard to
successive dying declaration and their appreciation where
there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred and
also held that, of course, if the plurality of dying declaration
could be held to be trustworthy and reliable and then only,
it has to be accepted as held in the judgment in MUKESH
vs. STATE FOR NCT OF DELHI & OTHERS reported in
AIR 2017 SC 2161 as well as MOHANLAL GANGARAM
GEHANI vs. STATE OF MAHARASHTRA reported in
(1982) 1 SCC 700.
39. In the case on hand, it has to be noted that foot
print was taken and evidence also emerges that all over the
body, there were burn injuries and entire body was burnt
including foot of the victim as admitted by P.W.33. The PM
report also discloses burn injuries to the extent of 90% and
external injury is also very clear that there were number of
injuries i.e., six in number and entire body was burnt and
PM report is also clear that injuries are ante mortem and
surface area burn injuries sustained more than 90%. When
such being the evidence before the Court and entire body
was burnt, again it creates doubt in the mind of the Court
whether the injured can make such statement. The opinion
of the doctor for cause of death was due to neurogenic
shock, as a result of burn injuries sustained. When the
death is due to neurogenic shock as a result of burn injuries
all over the body and having taken note of material
contradictions available on record, the very presence of the
doctor and recording of statement of the injured-victim is
doubtful and timings of recording the evidence of the victim
also overlaps with each other of two statements and the
same not inspires the confidence of the Court and the Trial
Court has not considered the dying declaration which is not
reliable having noted the material contradictions.
40. Now coming to the aspect of harassment and
demand of dowry is concerned, the Court has to take note
of evidence available on record, particularly father, who has
been examined as P.W.1, mother who has been examined
as P.W.2, sister who has been examined as P.W.3 and
brother of the deceased was examined as P.W.12.
Admittedly, at the time of marriage talk, brother was not
present and his evidence cannot be relied upon and he also
categorically admits that he is the resident of Mysuru and
he was not present at the time of negotiation. But, in the
cross-examination of P.W.1 to P.W.3, though they have
deposed with regard to demand and acceptance of dowry of
Rs.40,000/- and 6 thola of gold, P.W.1-father categorically
admitted in the cross-examination that family members of
the accused requested to perform the marriage as per
Hindu customs and the witness also volunteers to state that
accused demanded dowry. But, the admission is very clear
that he was the only earning member in the family and he
was having the responsibility to maintain the family.
Further, he admits that he was not in a position to give
dowry and accused persons were well-off and they are the
landlords. It is also admitted that while performing the
marriage, usually both the families will put gold i.e., bride's
side and also bridegroom. But, he claims that dowry
amount was given 2 days earlier and no complaint was
given prior to this incident. He also admits that in the said
wedlock, there were two children, one is aged about 4 years
and another one is 2 years. He also admits that husband is
taking care of one child and he is taking care of another
child. It is elicited that she went to matrimonial home 1
month earlier. Though it is suggested that she went ten
days earlier and no doubt, the amount of Rs.40,000/- was
recovered from the house of accused, but the same is not
the dowry amount which they have allegedly given 6 years
ago.
41. The evidence of P.W.2 is also in line of P.W.1
that usually both families will put gold ornaments at the
time of marriage and she also admits that her husband was
the only earning member taking the responsibility of the
family and he was a coolie. It is categorically admitted that
they were in poor condition and at the time of marriage
talk, they told the accused that they are going to perform
the marriage as per their financial capacity and they also
agreed to perform the marriage and even they were not
capable to perform the marriage in choultry and hence,
marriage was performed in the residence itself. She also
admits that in the year 2013, the daughter came to her
house for delivery of second child and she says that she
went ten days prior to this alleged incident.
42. The admission on the part of sister of victim
P.W.3 is also in line with the admissions given by P.W.1 and
P.W.2 that they had told the accused that they are going to
perform the marriage as per their financial capacity and
accused persons had also agreed for the same. She also
admits that her father is the only earning member and the
accused persons are well-off and they were having difficulty
to save money and also admits that while performing
marriage, both the families will put gold arguments. She
also admits that marriage was performed in the house,
since they were not able to perform the same in the
choultry and accused are well-off. She also categorically
admits that they have not given any complaint about the
harassment against the family of the accused.
43. No doubt, the prosecution relies upon the
evidence of P.W.10 regarding negotiation. But, his evidence
is that agreed to give 100 grams. But, others say that it
was 80 grams and reiterates with regard to harassment is
concerned. But, in the cross-examination, categorically
admits that at the time of negotiation, his father, mother
and elder uncle were present and also admits about
performing the marriage in accordance with their traditions
and customs.
44. The other witness is P.W.11, who says about
demand of dowry of Rs.40,000/- and agreed to give
Rs.40,000/-. But, others say that accused demanded
Rs.60,000/- and agreed to give Rs.40,000/-. This witness
also say that agreed to give 60 grams of gold and his
evidence is also contradictory and it is very clear that he
was not present at the time of marriage negotiation. Hence,
the evidence of P.W.11 also cannot be relied upon.
45. No doubt, P.W.16-Goldsmith says about
preparation of gold at the time of marriage and the same
will not come to the aid of prosecution to prove the cruelty
and harassment.
46. P.W.17 says marriage negotiation had taken
place about 3 years back and the marriage was celebrated.
But, marriage was held 6 years ago. Admittedly, this
witness says that dowry was given. But, in the cross-
examination admits that complainant is her uncle and she
does not remember the date on which the negotiation had
taken place and she was not called for the marriage
negotiation and the marriage had taken place at the house
of the complainant and she had not attended the marriage
negotiations and she does not know anything. This
admission takes away the case of prosecution.
47. The other witness is P.W.19, who also says that
she does not know how many months prior to the marriage
the marriage negotiations had taken place. At the time of
negotiation, accused Nos.1 and 2, his father and mother
were present from their side. But, in the cross-examination,
this witness also cannot say the date when the marriage
negotiation had taken place and admits that accused
persons had requested the complainant and his family
members to get the marriage celebrated in accordance with
their financial capacity. She further admits that at the time
of marriage celebrations as per the traditions and customs
prevailing in Hindu community, the bride will be gifted with
gold ornaments, even though no demand is made and the
complainant's family celebrated the marriage in accordance
with their financial conditions. This witness also states that
she had not participated in any of the panchayath convened
by the complainant with the accused persons.
48. Having reassessed both oral and documentary
evidence available on record, it is very clear with regard to
demand of dowry is concerned and no independent
witnesses support the case of the prosecution and even the
evidence of related witnesses' also not inspires the
confidence of the Court that the accused demanded dowry
and dowry was given and none of the witnesses say that in
their presence dowry was given. The Trial Court failed to
take note of all these evidence available before the Court
with regard to demand and acceptance of dowry and even
subsequent demand of dowry and harassment is concerned.
Having reassessed both oral and documentary evidence, we
do not find any ground to accept the reasoning of the Trial
Court having considered the admission of P.W.1 to P.W.3
with regard to their capacity and marriage was performed
as per their financial capacity and the same is agreed by
the witnesses and Trial Court committed an error and lost
sight of all these evidence available on record while
appreciating the evidence. While convicting the accused,
prosecution must prove the case beyond reasonable doubt
and the same is not proved.
49. The other circumstance relied upon by the
prosecution is seizure of cloth of the accused and there is
an acknowledgement in terms of Ex.P55 and also FSL
report in terms of Ex.P56. If really, the accused had poured
kerosene and set fire, there would have been kerosene
smell in the cloth belonging to accused and item Nos.10
and 11 i.e., shirt and pant of the accused is very clear that
it was not burnt, no specific smell observed, packed in a
plastic cover and FSL report also not supports the case of
the prosecution and this report is also not properly taken
note of by the Trial Court, while appreciating the evidence
available on record. No doubt, PM report Ex.P47 is very
clear that cause of death is an account of neurogenic shock,
but none of the witnesses say that accused himself poured
kerosene.
50. This Court has already taken note of the fact
that evidence of P.W.1 is contrary and Ex.P45 and Ex.P48
only points out the role of the accused pouring kerosene
and setting the fire. The very case of the prosecution is that
mother-in-law extinguished the fire by pouring water. But,
there is an improvement in the case of the prosecution as
per the evidence of P.W.1 and there are material
contradictions and the same was not taken note of and also
the dying declarations Ex.P45 and Ex.P48 cannot be
believed in view of 90% burn injuries and PM report also
discloses 90% burn injuries all over the body. Though, it is
categorically suggested to the witnesses that no such dying
declaration was recorded and though the same was denied,
but having considered factual aspects and circumstances
under which both the documents came into existence, the
same cannot be reliable.
51. This Court has also taken note of the principles
laid down in the judgment of the Apex Court referred
(supra) when there are suspicious dying declarations. The
Apex Court in the judgment in RASHEED BEG vs. STATE
OF M.P. reported in (1974) 4 SCC 264 held that when
dying declaration is suspicious, it should not be acted upon
without corroborative evidence. In the case on hand, there
is no corroborative evidence.
52. The Apex Court also in the judgment in KAKE
SINGH vs. State of M.P. reported in 1981 Supp SCC 25
held that when maker of dying declaration is unconscious,
where the deceased was unconscious and could never make
any dying declaration, the evidence with regard to it is to
be rejected. Though, P.W.32 says that he was conscious
and capable, but no certificate is given. When the dying
declaration was recorded by P.W.29-Tahsildar and there is
no such endorsement, except made the signature and with
regard to injured was conscious, nothing is placed on record
that injured was capable to make such statement and no
such separate certificate is issued.
53. Even having perused the document of dying
declaration also, except the doctor making counter
signature, nowhere he has certified that able to make
statement. Though P.W.32 says that gave the separate
certificate before recording of statement by PSI, no such
separate certificate is also placed before the Court. When
such being the case, the case of prosecution even in respect
of dying declaration cannot be accepted.
54. No doubt, the Apex Court in Five Judge Bench
judgment in LAXMAN vs. STATE OF MAHARASHTRA
reported in (2002) 6 SCC 710 held that presence of
Magistrate at the time of recording the dying declaration is
also not necessary, although to assure authenticity it is
usual to call a Magistrate, if available to record dying
declaration. Person who records dying declaration must
essentially be satisfied that the deceased was in a fit state
of mind and the same is not found in the case on hand.
Even in the very same judgment, the Apex Court held that
no statutory form for recording dying declaration is
necessary. Though, P.W.29 records the dying declaration in
a questionnaire form and the same is not warranted, a
dying declaration can be made verbally or in writing and by
any method of communication like signs, words or
otherwise provided the indication is positive and definite.
Even verbal dying declaration also could be made reducing
the dying declaration to writing is not mandatory. In the
very same judgment, the Apex Court discussed in detail
with regard to validity of dying declaration. The Apex Court
in the very same judgment held that certificate by the
doctor regarding mental fitness of the deceased is not
necessary because certificate by doctor is only a rule of
caution and voluntary and truthful nature of the declaration
can be established otherwise also. But, the fact is that the
very recording of dying declaration in the case on hand is
contrary to each other as well as timing of recording the
statement of victim overlaps with each other and there
cannot be two dying declaration in the very same time
between 7.30 to 9.00 p.m. by PSI as well as by Tahsildar.
55. The Apex Court also in the judgment in RAJU
DEVADE vs. STATE OF MAHARASHTRA reported in AIR
2016 SC 3209 held that mere absence of a certificate of
doctor would not render the dying declaration unreliable
particularly, when the doctor was not present in the
hospital at the relevant time. But, the Court has to take
note of contradictory dying declaration and their
appreciation as held in the judgment in SANJAY vs. STATE
OF MAHARASHTRA reported in AIR 2007 SC 1368,
where there are different contradictory dying declarations,
the accused is entitled to benefit of doubt and acquittal. In
the case on hand, it has to be noted that when PSI has
recorded dying declaration in detail, but in the second dying
declaration, statement was made with regard to dowry
harassment. It has to be noted that specific case of the
defence is that accused was not present at the time of the
incident and he was in the garden land. But, witnesses
categorically admit that accused himself admitted her to the
hospital along with her brother and there are material
contradictions and the same goes to the very root of the
case of the prosecution. When such being the case, we are
of the opinion that the Trial Court committed an error in
relying upon the dying declaration as well as oral evidence
of interested witnesses and failed to take note of material
contradictions which creates doubt in the mind of the Court
and the evidence of prosecution is not reliable and there are
inconsistencies and infirmities in the order of the Trial Court
while appreciating the evidence and the Trial Court not
considered the legal evidence while convicting the accused.
Hence, we answer point Nos.(1) and (2) as 'affirmative'.
Point No.(3):
56. In view of the discussion made above, we pass
the following:
ORDER
(i) The criminal appeals are allowed.
(ii) The judgment of conviction and sentence
passed in S.C.No.80/2015 dated
22.08.2019 is set aside. Consequently, the
accused No.1 is acquitted for the offence
punishable under Sections 498-A, 302 and
304-B of IPC and Sections 3 and 4 of the
DP Act and accused No.2 is acquitted for
the offence punishable under Section 498-A
read with Section 109 of IPC and Sections
3 and 4 of the DP Act.
(iii) If any bail bond is executed by the
appellants, the same shall stand cancelled.
(iv) If appellants/accused have deposited any
fine amount, the same shall be refunded to
the appellants/accused on proper
identification.
(v) If the appellants are undergoing sentence,
the jail authorities are directed to set at
liberty, forthwith, if they are not required in
any other case.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
RHS/ST
