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Gundappa S/O Veershetty … vs State Of Karnataka on 12 July, 2019

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY-2019
PRESENT
THE HON’BLE MR.JUSTICE K.N.PHANEENDRA
AND
THE HON’BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

CRIMINAL APPEAL NO.3707/2011
BETWEEN:

Gundappa S/o Veershetty Bhootpure,
Aged about 27 years, Occ: Boral Village,
Tq: Humnabad, Bidar District.
… Appellant
(By Sri.Arunkumar Amargundappa, Advocate

AND:
State of Karnataka,
By Police, Mannaekelli Police Station,
Rept. By Public Prosecutor.
… Respondent
(By Sri. Prakash Yeli, Addl. SPP)

This Criminal Appeal is filed under Section 374(2) of
of Cr.PC, praying that the judgment and order dated
30/08/2011 passed by the learned Principal Sessions
Judge, Bidar in S.C.No.27/2010 to the effect that accused
appellant Guddappa who is convicted for commission of
offence punishable under Sectionsection 498-A Section302 of I.P.C.
and is sentenced to undergo imprisonment for a period of
one year and fine of Rs.5,000/- for the offence U/s 498-A
of SectionIPC. In default to undergo further R.I. for a period of
three months. And imprisonment for life and also to pay
fine of Rs.50,000/- for the offence punishable U/s 302 of
SectionIPC, in default to undergo rigorous imprisonment for a
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period of two year, be set aside and the appellant be
acquitted holding that the appellant has not committed
any offence as alleged and dismiss the complaint in
S.C.No.27/2010, on the file of the Principal Session,
Judge, Bidar, in the interest of justice and equity.

This appeal having been heard and reserved on
11.06.2019 and coming on for pronouncement of
judgment this day, ASHOK G. NIJAGANNAVAR J.,
delivered the following:
JUDGMENT

This appeal is preferred by the accused-

appellant against the judgment dated 30.08.2011 in

Sessions Case No.27/2010 convicting for the offences

punishable under Sections 498-A and Section302 of Indian

Penal Code (herein after referred to as SectionIPC for short).

The trial court has sentenced the appellant to

undergo rigorous imprisonment for a period of one

year and to pay a fine of Rs.5,000/- for the offence

under Section 498-A IPC. In default to undergo

rigorous imprisonment for a period of three months.

The accused is also sentenced to undergo

imprisonment for life and to pay a fine of Rs.50,000/-

for the offence punishable under Section 302 of IPC.
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In default to undergo rigorous imprisonment for a

period of two years.

2. The facts in brief are that the deceased

Mahadevi was the second daughter of the

complainant and she was given in marriage to the

accused Gundappa about two years back. After six

months of marriage, the accused namely the husband

Gundappa, mother-in-law Susheelamma, father-in-

law Veershetty and brother-in-law Prabhu started

harassing the complainant’s daughter Mahadevi on

the grounds that she does not know cooking or

washing clothes. On 07.07.2009 morning hours, the

complainant got the information from her daughter

Mahadevi that her husband Gundappa has picked up

quarrel with her and has assaulted. Therefore, the

complainant and his wife Siddamma and his brother-

in-law Gurappa went to Boral village to meet his

daughter, but the accused refused to send Mahadevi
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with them. Thereafter on 08.07.2009, the

complainant Ghalappa received information over the

phone that his daughter Mahadevi had sustained

burn injuries and she was admitted to Humnabad

Hospital for medical treatment and from there she

was taken to District Hospital, Bidar. On receiving

the said information, the complainant Ghalappa and

his wife Siddamma and their relatives Rajkumar and

Gunavatha came to the District Hospital and noticed

that the complainant’s daughter Mahadevi has

sustained burn injuries all over the body. On enquiry

Mahadevi informed that her husband, mother-in-law,

father-in-law and brother-in-law Prabhu have poured

kerosene and lit fire and thereafter, her husband

Gundappa and father-in-law Veershetty have brought

her to District Hospital, Bidar in a ambulance. On

receiving the complaint, the Mannaekhelli Police have

registered the case at P.S.Crime No.109/209 for the

offence under Section 498-A, 307 R/w 34 of SectionIPC.
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During the course of investigation, the dying

declaration of the victim was recorded by the

Tahasildar, Taluka Executive Magistrate. The victim

died in the hospital. Therefore, in view of death of the

victim Section 302 IPC was inserted.

3. The accused was apprehended in

connection with this case. After completion of the

investigation and committal of the case to the

Sessions Court, the charges were framed for the

offences punishable under Section 498A and Section

302 R/w 34 SectionIPC.

4. In order to prove its case, the prosecution

has examined 21 witnesses as PW1 to PW21. The

documents are marked at Ex.P1 to Ex.P14, Ex.C1,

C1A and C2. The material objects are marked as

MO1 MO2. The defense evidence was led. Three

witnesses were examined as DW1 to DW3. After

recording of the evidence, the statement under
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Section 313 Cr.PC was recorded. On hearing the

argument and appreciating the evidence, the accused

was held guilty for the aforesaid offences and

sentenced him accordingly. It is this judgment

assailed before this Court.

5. We have heard the learned counsel for the

appellant and the learned Addl. S.P.P. Perused the

judgment and records.

6. The learned counsel for the accused taking

us through the material on record and submits that

the trial court is not justified in convicting the

accused for the alleged offences. The evidence placed

on record do not make out a definite case that the

accused has committed the murder by pouring

kerosene and setting ablaze. There is no cogent

evidence to prove the harassment whatsoever by the

accused, his parents and brother-in-law. The

prosecution has failed to prove the offences alleged
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against him. Thus, the impugned judgment of

conviction and sentence needs to be set aside.

7. Per contra, the learned Addl. S.P.P. for the

State has argued in support of the judgment of the

Court below and submitted that even though there

are minor discrepancies nevertheless the prosecution

is able to establish the dying declaration recorded by

Taluka Executive Magistrate. When the dying

declaration is proved beyond reasonable doubt, there

is no need for any corroboration. The dying

declaration itself is sufficient to convict the person.

In addition to that the parents, other relatives and

family friends have consistently stated about the

harassment caused by the accused. As such, there

are no valid grounds to interfere with the judgment

passed by the court below.

8. In view of the rival contentions, the point

that arises for consideration is
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“Whether the conviction of the appellant

has been rightly recorded by the trial

court?

9. The present case rests mainly on the dying

declaration of the deceased Mahadevi and the

evidence of the parents, relatives of the deceased and

the family friends, who have stated about the

harassment.

10. As for as dying declaration is concerned,

the court has to be on guard that the statement of the

deceased was not a result of a either tutoring,

prompting or product of imagination. The court must

be further satisfied that the deceased was in a fit

state of mind. In all cases, the court cannot rely on

the dying declaration as the sole basis for conviction

unless its is corroborated.

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11. Before adverting to evidence on record and

the dying declaration which is prime material

available in this case, it is necessary to have a

cursory look at the evidence of prosecution witnesses.

12. PW1 is the complainant who is the father

of the deceased. PW2 and PW3 are the spot panch

witness, who have stated about the recovery of MO1

and MO2 and drawing of mahazar as per Ex.P2. PW4

is the paternal aunt of the deceased Mahadevi and

inquest mahazar witness, who has stated about burn

injuries over the dead body. PW5 is the relative of

the accused, but he has not stated about the quarrel

between accused and the deceased Mahadevi on the

previous date of the incident in connection with

missing of cash Rs.250/-. PW6, PW7 and PW8 are

the neighbours of the accused and deceased

Mahadevi. They have not stated about the quarrel

between the accused and the deceased Mahadevi on
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the previous date of the incident. PW9 is said to be

independent witness, who had conversation with the

injured victim Mahadevi in the Hospital. PW10 and

PW11 are the son-in-law of the complainant and

paternal uncle of the deceased, who have stated

about the conversation with the deceased at Hospital

and presence of Tahasildar and other relatives in the

Hospital. PW12 is said to be the person who had

acted as a mediator for the marriage of accused and

deceased. PW13 is the daughter of complainant and

sister of the deceased who has stated about dispute

between accused and deceased and also the

conversation with the deceased at the Hospital.

PW14 is the independent witness who speaks about

the dispute between accused and deceased. PW15,

the medical officer has stated about the autopsy

conducted over the dead body, percentage of burn

injures and cause of death. PW16 is the mother of

the deceased and wife of the complainant. PW17 who
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has prepared the spot sketch. PW18 is the Circle

Inspector who has conducted the investigation and

filed charge sheet. PW19 is the PSI who has

registered the case after receiving the MLC. PW20 is

the Tahasildar who has recorded the dying

declaration of the deceased. PW21 is another medical

officer who has stated about the mental condition of

the victim to give declaration.

13. The accused has led defense evidence to

prove alibi by examining three witnesses who have

stated about presence of the accused in a hotel with

them when deceased Mahadevi sustained burn

injuries in the house.

14. In the present case, the independent

witness namely PW6, PW7 and PW8 who are the

neighbours of accused and deceased Mahadevi have

not supported the case of the prosecution. All these

witnesses have stated in the examination in chief that
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they do not know about the quarrel between the

accused and his wife Mahadevi. PW6, PW7 and PW8

have stated that on the date of incident they have not

gone to the house of the deceased and she has not

informed anything about harassment done by the

accused. All these three witnesses, denied the

suggestion about the statement given before the

police. These witnesses were treated as hostile. PW5

is the relative of the accused. He has not supported

the prosecution case and has turned hostile.

15. In the cross examination PW6, PW7 and

PW8 have denied the suggestion that they have given

statement about quarrel between the accused and his

wife and on 08.07.2009 afternoon at about 3.00 p.m.

they saw Mahadevi rolling on floor in her house

because of burn injuries on her body and she was

shouting that her husband has set fire and at that

time, then accused and his parents went out of the
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house. They have also denied the suggestion that all

of them namely PW6 Padmavathi, PW7 Basamma and

PW8 Chittramma poured water on her body and

thereafter they took Mahadevi to Hospital in a

ambulance. PW6 has admitted that his house is

adjacent to the house of the accused.

16. The prosecution has tried to make out a

case that on 08.07.2009 afternoon at 3.00 p.m. All

neighbours namely PW6, PW7 and PW8 had gone to

the house of injured victim Mahadevi and they saw

the injured victim shouting that her husband had set

fire and the clothes on her body were burnt. At that

time these witnesses along with some other

neighbours poured water on her body to put off the

fire, but this version is not at all supported by the

independent witnesses namely PW6, PW7, PW8 who

are the neighbours.

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17. In the cross examination by learned

prosecutor, PW5 has denied the suggestion that on

06.07.2009, he came to know about the quarrel

between the accused Gundappa and his wife in

connection with missing of cash Rs.250/- and he

advised the accused not to quarrel with his wife and

also denied the arrival mother and brother-in-law of

Mahadevi to the house of accused and request made

by them to accused Gundappa to send Mahadevi to

their house. Further he has denied the suggestion

about the statement given as per Ex.P4.

18. Other witnesses namely PW1, PW4, PW10,

PW11, PW13 and PW16 are close relatives of deceased

Mahadevi. Thus, it is necessary to scan their

evidence carefully in order to ascertain whether the

evidence of these witnesses goes to prove the ill-

treatment caused by the accused to his wife Mahadevi

and murder committed by setting the fire.
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19. In a decision reported in ILR 2018 Kar

5138 in the case of SectionDevidas and Others vs. The

State through Mahila P.S., Gulbarga, held that:

“68. The appreciation of evidence must be in
such a manner that the Court must impartially decide
the case irrespective of the nature, status, relationship
between the parties. It is the fundamental basic
principles of criminal jurisprudence that the Court
should normally start with the presumption that the
accused is innocent and he is not guilty unless the
prosecution proves the case beyond reasonable doubt.
Whenever the doubt that may arise if it is mere a
doubt, it would not be sufficient to topple the entire
case of the prosecution, such minor discrepancies can
be ignored by the Court. Where the doubt created in
the entire evidence after appreciation which goes to the
root of the prosecution which shakes the very origin of
the case and also shakes the basic structure of the
case of the prosecution in such an eventuality, the
benefit of doubt always should be given to the
accused”.

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20. “In a murder case when evidence is given

by near relatives of the victim and the murder is

alleged to have been committed by the enemy of the

family, criminal courts must examine the evidence of

the interested witnesses, like the relatives of the

victim, very carefully….. But where the witness is a

close relation of the victim and is shown to share the

victim’s hostility to his assailant, that naturally

makes it necessary for the criminal courts examine

the evidence given by such witness very carefully and

scrutinise all the infirmities in that evidence before

deciding to act upon it. In dealing with such

evidence. Courts naturally begin with the enquiry as

to whether the said witnesses were chance witnesses

or whether they were really present on the scene of

the offence….. If the criminal Court is satisfied that

the witness who is related to the victim was not a

chance witness, then his evidence has to be examined

from the point of view of probabilities and the account
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given by him as to the assault has to be carefully

scrutinized.”

21. PW1 is the father of the deceased victim

and complainant which is marked at Ex.P1. In the

complaint PW1 has stated that his daughter told him

in the hospital that on the date of the incident at

about 3.00 PM. Accused No.1 his mother, father,

brother-in-law have set fire by pouring kerosene. But

in the oral evidence, PW1 has given different version

in his examination-in-chief and has stated that his

daughter told about assault done by his husband and

fire set by him by pouring kerosene. He has further

stated that the accused has set fire by suspecting that

she has stolen Rs.250/-. In the cross examination,

he has stated that they were sitting out side the ward

in the Hospital till her death, which is contrary to his

complaint Ex.P1. He has further stated that when

they came to Bidar Hospital, Doctors did not allow
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either the accused or them to go inside the ward to

meet injured. Further he has stated that accused

and his parents and his brother were not in the

hospital when the injured was admitted in the

hospital, but other witnesses PW10, PW11, PW13 and

PW16 have stated that injured was brought by the

accused, his father, father-in-law. Even the injured

has also stated the same.

22. PW4 is the sister-in-law of the injured

victim and witness to inquest panchanama Ex.P3.

She has only stated that she has seen the burn

injures on the body of Mahadevi and police have

conducted the inquest panchanama in her presence.

23. PW10 is the maternal uncle of injured

victim. He has stated about the ill-treatment and

harassment done by the accused. Further he has

stated that he along with PW1 had gone to the house

of the accused to advise the accused. Further he has
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stated that on 08.07.2009, he had gone to the

hospital and on enquiry, the injured victim Mahadevi

informed that her husband assaulted by accusing

that she has stolen Rs.250/- and thereafter when she

was on the cot, the accused poured kerosene and lit

fire. Meanwhile his father-in-law and mother-in-law

came and put of the fire. This version is contrary to

contents of complaint, spot panchanama and

evidence of PW9. In the cross examination, he has

admitted that when injured victim Mahadevi was

brought in a ambulance, her husband namely the

accused and father-in-law and brother-in-law were

there along with her. Thus it is evident that

averments made in complaint are not true and

correct. He has denied the suggestion that Mahadevi

sustained burn injuries on account of accidental fire

while making the tea.

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24. PW11 is the maternal brother-in-law of

deceased (i.e. mother’s brother) who had gone to the

house of accused on previous day of the incident to

invite Mahadevi for panchami festival and also

discussed about ill-treatment by the accused. He has

stated that, he saw Mahadevi in the hospital. Her

face and front portion of the body were burnt. This

version is again contrary to medical evidence and

other witnesses. He admits that when accused and

his wife were in Kollar and Naubad, there was a

cordial relationship between them. Further, he has

stated that on previous day, when they gone to the

house of the accused, the injured had told about the

assault done with the back portion of the axe. But no

steps were taken by them as it was simple injury and

they have not done any enquiry about theft of

Rs.250/-. Further he states that he do not know as

to when PW1 spoke to his injured daughter. In the

cross examination, he has admitted that when injured
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victim was brought to the hospital in ambulance,

accused and his parents were there. While bringing

the injured from the ambulance she was speaking

and she was not unconscious. He has also admitted

that when they were standing near her, there was no

smell of kerosene from her body. He has denied the

suggestion that when injured was brought to the

Bidar Hospital, she was unconscious and she did not

speak to any one. He has also denied the suggestion

that Mahadevi sustained the burn injuries on account

of accidental fire while cooking in her house and

thereafter, the accused who was in the hotel came

home and took his wife to Humanabad hospital.

25. PW13 is the sister of the deceased, she

speaks about the harassment by the accused and

also dying declaration given by her sister that

accused has set fire by pouring kerosene. In the

cross examination, she has stated that her mother
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has told about the harassment done by the accused

and further stated that on getting the information

about burn injuries sustained by his sister, they went

to the hospital at Bidar. Thereafter, the van/

ambulance came in which the accused his father,

uncle and others were there. She spoke to her sister

in the ward, at that time her parents were also there.

26. PW16 is the mother of the injured victim.

She has stated about the harassment, but admits

that they had not given two tolas of gold or

Rs.50,000/- at the time of marriage and she has not

stated about the dowry harassment. In the

examination-in-chief, she has stated that accused

was quarreling with his wife on the reason that she

doesn’t know cooking and she cannot even do the

house hold works properly. In the cross examination,

she has stated that on the previous day to the

incident when she had gone to the house of the
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accused along with her brother, the injured had

informed about the assault done by the accused. As

such she had sustained injuries on legs and back,

but they did not take her daughter to the hospital.

Which creates a doubt about the said incident of

assault. Further she has stated that when the

daughter was brought in a ambulance, accused, his

father, uncle and his brothers were there. After

taking the injured in the room, the doctors have not

allowed them inside. Further in cross examination

she has stated that she has told before the police that

on account of dowry harassment, her daughter’s

death was caused for which husband, father-in-law,

mother-in-law, brother-in-law and sister-in-law and

aunt of accused are responsible, which is contrary to

her statement. There are several inconsistencies in

the evidence of relatives of deceased.
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27. As far as evidence of these relatives of the

deceased are concerned, there is no consistent

version regarding the murder of the Mahadevi by

setting fire and pouring kerosene. The complainant

reveals that victim Mahadevi informed her father

namely PW1 that her husband, father-in-law, mother-

in-law and brother-in-law have poured kerosene and

lit fire. Thereafter, the husband and father-in-law

have brought her to the hospital. But in oral evidence

PW1 has given a different version. There are several

contradictions and inconsistencies.

28. Some of the independent witnesses

namely PW9, PW12 are also examined by the

prosecution. PW9 is also panch to inquest mahazar

Ex.P3. he has stated that he spoke to injured victim

Mahadevi and she told that accused set fire by

pouring kerosene suspecting that she has stolen

Rs.250/-. In the cross examination, he has stated
25

that four persons namely PW10 Kanteppa, PW1

Galappa, Basawaraj and PW14 Gunavatha spoke to

injured. There are variations between evidence of

PW9 and other relatives.

29. PW12 is the mediator for the marriage, he

has spoken about the marriage talks and the

discussions held about giving two tolas of gold and

dowry of Rs.50,000/-. But PW16 Sidamma who is

the mother of the victim has stated that gold and

dowry was not given to the accused and none of the

witnesses have stated anything about dowry

harassment or dispute regarding payment of dowry to

the accused. In the cross examination PW12 has

stated that he had gone to the house of the accused.

Prior to his visit PW1 and Sidamma PW16 had also

gone to the house of the accused. But Mahadevi did

not tell him about assault or injuries caused by

accused. Further he has stated that accused
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informed him that his wife has stolen Rs.100/- and

Rs.1,000/- and accused abused her. The evidence of

this witness is not of much to relevance as for as

dying declaration is concerned.

30. In the present case, there is no consistent

evidence regarding place of incident. The accused

has taken specific defense that Mahadevi has

sustained burn injuries on account of accidental fire

while she was cooking in the kitchen. Ex.P2 is the

spot mahazar wherein it is stated that sister-in-law of

Mahadevi has shown the place which is the middle

room in the house. As far as place of incident there is

some variation between the evidence of spot mahazar

witnesses namely PW2 and PW3. PW2 has stated

that police have conducted the spot mahazar in the

kitchen room which was shown by CW17 Nagamma

and have collected the burnt bags containing jawar,

safflower. In the cross examination, he has denied
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the suggestion that the police have conducted the

panchanama in another room which is contrary to

Ex.P2. According to this witness, the panchanama

was conducted in the kitchen room and not in any

other place. Another panch witness namely PW3 has

stated that the police have conducted the

panchanama in the room where the bags containing

jawar and cooking provision were there. The evidence

of these witnesses is contrary to Ex.P2 spot

panchanama.

31. PW20 is the Tahasildar who has recorded

the dying declaration. He has stated that on

08.07.2009, he reached the hospital at 9.35 PM and

visited burns ward where injured was admitted. Then

he enquired the doctor about her mental condition to

give the dying declaration. Thereafter, he asked few

questions in Kannada language and she has given

proper reply. Further stated that he has recorded the
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dying declaration as per Ex.P13 and has taken the

signature of the injured victim twice as per Ex.P13A

and Ex.P13B. He has further stated that while

recording Ex.P13 dying declaration, the injured was

enquired as to how she sustained the burn injuries

for which the injured informed that her husband

assaulted with the handle of the axe by abusing that

she has stolen Rs.250/-. When she told the accused

to send her to father’s house, the accused refused by

saying that her father shall perform another marriage

for him. In the cross examination, he has stated that

the recording of dying declaration was commenced at

9.40 PM. Further, he has stated that while recording

dying declaration except the injured victim and the

medical officers all others were sent out, injured has

told that her husband, father-in-law and mother-in-

law have brought to the hospital and injured did not

tell directly about dowry harassment.
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32. Another important doubtful circumstance

is with regard to physical condition of the injured

victim at the time of giving dying delcaration. It is

pertinent to note that PW9 is the PSI of Mannaekhelli

who has stated that on 08.07.2009 in the evening at

5.00 PM, he received information that a lady from

Boral village is admitted to Hospital for treatment as

she has sustained burn injuries. Therefore, he visited

the Humnabad Hospital. By the time he reached the

hospital, the injured victim was taken to Bidar

Hospital for treatment. Therefore, he directly went to

Bidar Hospital and obtained the MLC intimation as

per Ex.P11. Further he has stated that injured victim

Mahadevi had sustained burn injuries all over the

body as such she was not in a position to speak.

Therefore, he received written complaint from her

father namely PW1 Galappa as per Ex.P1. He was

there in the Bidar Hospital till 7.00 PM, but the

injured victim was not in a position to speak, as such
30

he gave a requisition to Tahasildar for recording her

statement. Thereafter, he registered the FIR as per

Ex.P12. On the same night at about 10.30 PM, the

injured victim has expired. Thereafter on 09.07.2009

as per instructions of CPI, he brought Tahasildar to

the Hospital and inquest mahazar was conducted. In

the cross examination, he has admitted that in

Ex.P11, it is mentioned that injured victim was in

semiconscious state. Further he has stated that

when he had come to Bidar at 7.00 PM, the injured

victim was unconscious, he was there in the hospital

till 8.30 PM, till then the injured victim had not

regained consciousness. But he did not know as to

when she regained consciousness, but where as the

complainant PW1, mother of the injured PW16 and

sister PW12 and other relatives have stated that the

injured victim was conscious and she spoke to her

parents relatives and other witnesses about pouring

of kerosene and fire lit by the accused. Thus, there is
31

a clear contradiction between the evidence of PW9

police official who had met the injured victim in the

hospital and the evidence of the relatives. When the

relatives had come to the hospital there was every

chance or possibility of creating a story by tutoring

the injured victim to falsely implicate / involve the

accused in the dying declaration.

33. Ex.P13 is the dying declaration which is in

a printed form in English language, the answers are

recorded are in Kannada language where in she has

stated that her husband, her father-in-law and

brother-in-law had brought her to the hospital.

Further she has stated that her husband is the

assailant and has narrated the reasons for sustaining

injuries stating that she was assaulted by accused

with the wooden handle of the axe. She informed her

father about the same for which her father told that

he will take her to his house. The accused informed
32

her father should bring another wife for him, if he

intends to take his daughter to his house. The

accused has informed this to everyone in the hospital.

Thereafter on 08.07.2009 her husband poured

kerosene and lit fire. Further she has stated about

motive for assault that her husband has done this act

on reason, that she has stolen Rs.250/- and her

husband always complained frequently.

34. PW18 is the CPI who has conducted the

investigation Further he has stated about the inquest

panchanama, the spot panchanama and recovery of

the articles. He has given requisition to Tahasildar

for recording dying declaration and further recorded

of statement of the witnesses namely PW11, PW12,

PW13, PW14 and further statement of complainant

and his wife PW16. After completion of the

investigation, he has submitted the charge sheet. In

the cross examination, he has stated that there are
33

five rooms in the house of the accused, but he did not

go to any other rooms except kitchen room and there

were semi burnt bags. He has clearly stated that he

did not notice kerosene tin or match box at the spot.

In the cross examination, he has admitted that he

has recorded the statement of Abed Ali DW2,

Chandrakanth DW1 and Mohamad Dastagir DW3.

35. It is pertinent to note that DW4, DW2 and

DW3 were charge sheet witnesses, but these charge

sheet witnesses are not examined by the prosecution.

These witnesses are examined as defense witnesses

DW1, DW2 and DW3. These three witnesses have

clearly stated that on the date of the incident i.e.

08.07.2019. The accused was in the hotel and he

was having tea with them. DW1 is the Head Master

of the school. He has stated that when he was

returning to the school after having lunch at his

house. The accused invited him to have tea as such
34

he went in the hotel and had tea with him. He was

sitting there with him at about 10 minutes.

Thereafter, he came to school. Later he heard the

screaming voice. Once again he has stated that when

they were sitting in the hotel, they heard screaming

voice from the house of the accused. Further he has

stated that he might have gone to hotel at about 3.00

PM. In the cross examination by learned P.P. he has

stated that the house of the accused is at distance of

40-50 mtrs. from the hotel. He has admitted that he

has not given the statement as per Ex.D2. He has

denied the suggestion that he is deposing false

evidence about sitting with the accused in the hotel at

3.00 PM.

36. DW2 has stated that on the date of

incident, he had gone to hotel at about 2.30 PM for

having tea, At that time, the accused Gundappa,

Chandrakanth Master and DW3 Dastagir were there.
35

Thereafter, he left the hotel, the accused was sitting

with Chandrakanth Master and he was having tea.

Later he came to know that the wife of Gundappa has

sustained burn injuries while cooking in the kitchen.

In the cross examination, he has stated that after he

left the hotel, he do not know who came to the hotel

and who else were sitting in the hotel.

37. DW3 Mohamad Dastagir has stated that

on the date of the incident, he was in the hotel. On

the same day, after noon at about 2.30 or 3.00 PM,

the accused DW1 Chandrakanth Master and DW2

Abed Ali had come to his hotel for drinking tea and

DW1 Head Master paid the bill. They were sitting at

about 10 to 15 minutes in the hotel. After they had

the tea, he closed the hotel. He has given the

statement before the police after 2-3 days. In the

cross examination, the learned P.P. he has stated that

the house is the distance of 200 mtrs. from the hotel.
36

He has denied the suggestion that he is giving false

evidence in order to help the accused.

38. The aforesaid defense witnesses have

clearly stated that on 08.07.2009 afternoon at about

2.30 or 3.00 PM, they were having tea in the hotel

belonging to DW3 Dastagir. The court has to give

equal importance to the evidence of these defense

witnesses equally as that of evidence of prosecution

witnesses.

39. Another important aspect to be considered

here that DW1, DW2 and DW3 are the prosecution

witnesses. The investigating officer PW18 has

admitted that he has recorded the statement of DW1

Chandrakanth on 09.07.2009 and recorded the

statement of DW2 Abidali. DW3 is also said to be the

charge sheet witnesses. According to the prosecution

on 08.07.2009 at about 3.00 PM, the accused poured

kerosene and lit fire to his wife. But the evidence of
37

DW1, DW2 and DW3 clearly goes to show that at

point of time he was not at home. But he was with

the DW1 and DW2 in the hotel belonging to DW3.

This circumstance creates a serious doubt about the

presence of the accused at home which is the place of

incident. When there is no satisfactory evidence to

prove the presence of the accused at the spot, the

case projected by the prosecution that the accused

has committed the murder of his wife cannot be

believed.

40. It is pertinent to note that the majority of

the witnesses who have spoken about the information

said to have been given by the injured victim

Mahadevi about pouring kerosene and liting fire by

the accused are all close relatives of the deceased. It

is duty of the court to consider the trustworthiness of

evidence of these relatives. All though there is no

absolute rule that the evidence of related witnesses is
38

to be corroborated by independent witnesses. It

would be, trite in law to have independent witnesses.

As already stated above, there are some glaring

contradictions between the evidence of the relatives

and independent witnesses and also the police official

namely PW19 regarding the physical condition of the

victim at the time, when she was brought to the

Hospital for treatment.

41. On analyzing and meticulous evaluation of

evidence the prosecution witnesses. We are of the

opinion that there is consistent evidence as far as ill-

treatment or the harassment done by the accused.

On one or the other silly reasons and created by him.

The accused being the husband instead of taking care

of his wife has frequently quarreled and assaulted his

wife on one or two occasions as narrated by the

injured victim and her parents and close relatives.
39

Probably this kind of harassment might be the reason

which instigated injured victim for self immolation.

42. It is pertinent to note that there is no clear

medical evidence to show that the burn injuries

caused were on account fire by pouring kerosene.

The independent witnesses and medical officer have

admitted that there was no smell of kerosene from the

injuries.

43. Next question arises for consideration

would be whether the deceased herself tried to

immolate herself by pouring kerosene, and for what

reason she committed such an act of self immolation.

In the present case all the relatives and two

independent witnesses have consistently stated about

the ill-treatment and harassment caused by the

accused Mahadevi probably for the said reason, she

might have been driven to commit the suicide. In

that event, the accused would be liable for having
40

abetted his wife to commit suicide and for the offence

punishable under Section 306 IPC. On meticulous

evaluation of the evidence on record, we are of the

opinion that the prosecution is able to show that

there was ill-treatment and harassment and cruelty

meted out by all the accused persons, but there is no

cogent evidence to prove that the accused has

committed the murder of his wife.

44. For the foregoing reasons, we are of the

opinion that it is a fit case to set right the anomaly

committed by the Trial Court. Hence, we proceed to

pass the following…

ORDER

The Criminal Appeal is partly allowed. .

The judgment of conviction and sentence
passed by the Trial Court against accused for
the offence punishable under Section 302 of
IPC is hereby set aside. However, the accused
is convicted for the offence punishable under
Section 498A of IPC which is the lesser offence
41

than that of Section 302 and Section306 of IPC. even
in the absence of framing of any charge by the
Trial Court, the accused can be convicted for
the said offence.

Considering the nature and gravity of the
offence, we are of the opinion that accused
shall be sentenced to undergo imprisonment for
a period of three years and shall also pay a fine
of Rs.10,000/-. In default, to undergo further
period of six months simple imprisonment for
offence under Section 498A of IPC.

The set off is given to the accused under
Section 428 of Cr.PC., for the period of
punishment or imprisonment already
undergone by him. If the accused has already
served the sentence as noted above, accused
shall be released forthwith if he is not required
in any other case.

Office is hereby directed to send the copy
of this judgment to the concerned jail
authorities forthwith to take appropriate steps
42

in this regard, and also return the records to
the trial Court with a copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

SMP

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