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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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in this regard, and also return the records to
the trial Court with a copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
