1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF JUNE 2018

PRESENT

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

AND

THE HON’BLE MR. JUSTICE B.A. PATIL

CRIMINAL APPEAL NO.566/2013
C/W
CRIMINAL APPEAL NO.194/2013
C/W
CRIMINAL APPEAL No.181/2013

IN CRL.A.NO.566/2013

BETWEEN:

State by Women Police Station
Davangere. …APPELLANT

(By Smt. B.G.Namitha Mahesh, HCGP)

AND:

1. B.V.Kumar
S/o Eerojirao @ B.Veerappa
40 years

2. Smt.Shanthamma @ Shantabai
W/o Eerojirao, 64 years

3. Eerojirao @ B.Veerappa
S/o B.Somanna, 69 years

All are r/o 3rd Main
2

9TH Cross, Vinobhanagara
Davangere – 577 001. …RESPONDENTS

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

This Criminal Appeal is filed under Section 377 Cr.P.C.,
praying to modify the judgment and order of conviction of
sentence dated 23.01.2013 passed by the II Additional District
and Sessions Judge, Davanagere in S.C. No.16/2009 and
impose adequate sentence against the respondents/accused for
the offence p/u/s 3 of the Dowry Prohibition Act and etc.

IN CRL.A. NO.194/2013

BETWEEN:

1. Smt.Shanthamma
Aged about 65 years
W/o Sri Eeroji Rao

2. Sri Eeroji Rao @ Veerappa
Aged about 70 years
S/o Somanna

Both are residents of the premises
Bearing No.1631/3
9th Cross, III Main
Vinobhanagara
Davanagere. …APPELLANTS

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

AND:

The State of Karnataka
By the Station House Officer
Women Police Station
3

Davanagere …RESPONDENT

(By Smt. B.G.Namitha Mahesh, HCGP)

This Criminal Appeal is filed under Section 374 (2)
Cr.P.C., praying to set aside the judgment dated 23.01.2013
passed by the II Additional District and Sessions Judge,
Davanagere in S.C. No.16/2009 – convicting the
appellants/accused for the offence p/u/s 498A R/W 34 of IPC
and Sec.3, 4 6 of D.P.Act and etc.

IN CRL. A. NO.181/2013

BETWEEN:

Sri B.V.Kumar
Aged about 40 years
S/o Eerojirao
Merchant by Profession
Resident of the premises
Bearing No.1631/3
9th Cross, Vinobhanagara
Davanagere. …APPELLANT

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

AND:

The State of Karnataka
By the Station House Officer
Women Police Station
Davanagere. …RESPONDENT

(By Smt. B.G.Namitha Mahesh, HCGP)

This Criminal Appeal is filed under Section 374(2)
Cr.P.C., praying to set aside the judgment dated 23.01.2013
passed by the II Additional District and Sessions Judge,
4

Davanagere in S.C. No.16/2009 – convicting the
appellant/accused for the offence p/u/s 498A, 304(B), 302,
506 and 201 R/W 34 of IPC and Sec.3, 4 6 of D.P.Act and
etc.

These Criminal Appeals having been heard and reserved
for judgment on 12.06.2018 and coming on for pronouncement
of judgment this day, BUDIHAL R.B. J., delivered the
following:-

JUDGMENT

Since the above three appeals are against the same

judgment and order of conviction and sentence dated

23.1.2013 passed by the II Additional District and

Sessions Judge, Davanagere in S.C. No.16/2009 and

since the common questions of law and facts are involved

in all the appeals, they are taken up together to dispose of

them by this common judgment, in order to avoid the

repetition of facts and law.

2. Criminal Appeal No.181/2013 is preferred by the

appellant-accused No.1 being aggrieved by the judgment

and order dated 23.1.2013 passed by the II Additional

District and Session ad Judge in S.C. No.16/2009
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convicting him for offences punishable under Sections

498A, 304(B), 302, 506, 201 read with Section 34 of IPC

and under Sections 3, 4 and 6 of Dowry Prohibition Act

and sentencing him to undergo rigorous imprisonment for

a period of one year and to pay a fine of Rs.5,000/- and in

default of payment of fine, to undergo rigorous

imprisonment for a period of two months on the first

count; sentencing him to undergo further rigorous

imprisonment for a period of seven years and to pay a fine

of Rs.10,000/- and in default of payment of fine, to

undergo further rigorous imprisonment for a period of one

year on the second count; sentencing him to undergo

rigorous imprisonment for life and to pay a fine of

Rs.20,000/- and in default of payment of fine, to undergo

rigorous imprisonment for a period of two years on the

third count; sentencing him to undergo rigorous

imprisonment for a period of one year on the fourth count;

and sentencing him to undergo rigorous imprisonment for

a period of two years and to pay a fine of Rs.2,000/- and
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in default of payment of fine, to undergo further rigorous

imprisonment for a period of one month on the fifth count;

and sentencing him to undergo rigorous imprisonment for

a period of five years and to pay a fine of Rs.5,000/- and

in default of payment of fine, to undergo further rigorous

imprisonment for a period of one year for the offence

punishable under Section 3 of the DP Act; sentencing him

to undergo rigorous imprisonment for a period of six

months and to pay a fine of Rs.5,000/- and in default of

payment of fine, to undergo rigorous imprisonment for a

period of two months for the offences punishable under

Sections 4 and 6 of the DP Act and the above sentences

shall have to run concurrently.

3. Criminal Appeal No.194/2013 is preferred by

accused Nos.2 and 3 being aggrieved by the judgment and

order dated 23.1.2013 passed by the II Additional District

and Sessions Judge, Davanagere in S.C. No.16/2009

convicting the appellants-accused Nos.2 and 3 for offences
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punishable under section 498A read with Section 34 of

IPC and under Sections 3, 4 and 6 of Dowry Prohibition

Act and sentencing each one of them to undergo simple

imprisonment for a period of six months and to pay a fine

of Rs.2,000/- and in default of payment of fine, to

undergo further simple imprisonment for a period of

fifteen days for the offence punishable under Section 498A

of IPC and sentencing each one of them to under go simple

imprisonment for a period of six months and to pay a fine

of Rs.5,000/- and in default of payment of fine, to undergo

simple imprisonment for a period of one month for the

offences under sections 3, 4 and 6 of the DP Act and the

above sentences shall have to run concurrently.

4. Criminal. Appeal No.566/2013 is preferred by the

State as against the respondents-accused Nos.1 to 3

praying this Court to modify the judgment and order of

conviction and sentence dated 23.1.2013 passed by the II

Additional District and Sessions Judge, Davanagere, in
8

S.C. No.16/2009 and to impose adequate sentence on the

respondents-accused for the offences punishable under

Section 3 of the Dowry Prohibition Act (for short ‘the DP

Act’).

5. Brief facts of the case of prosecution as per the

complaint averments is that the father of the deceased

filed a complaint as per Ex.P.1 on 9.9.2008 stating that he

is having one male and three female children. His last

daughter the deceased Mamatha was given in marriage to

one Kumar – accused No.1, the son of Eeroji Rao, in the

year 2003. One month earlier to the marriage, there were

marriage talks. On the side of the bride Kubendroji Rao,

Chennaveeroji Rao, Shivaji Rao, Ningoji Rao were present

and on the side of the accused, accused No.1, his mother

Shantha Bai, his father EerojiRao and others were

present. The accused demanded Rs.2.00 lakh cash and

15 tolas of gold as dowry and the complainant has to

perform the marriage on his own expenses. For that, the
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people on the complainant side told that it is not possible

to pay the said amount presently, they will pay Rs.1.00

lakh cash, 10 tolas of gold and clothes and perform the

marriage and in future, they will pay the cash of

Rs.50,000/-. The accused persons agreed for the same.

On that day, Rs.1.00 lakh was given into the hands of

Eeroji Rao, the father of accused No.1 and on the day of

the marriage, 10 tolas of gold ornaments were given. After

the marriage, Mamatha was taken to her husband’s house

and she was residing along with her husband, in-laws and

sister-in-law (accused Nos.1 to 4) together in the same

house. For about six months, Mamatha was looked after

well. Thereafterwards, the accused persons started

insisting Mamatha to bring the remaining amount of

Rs.50,000/- and on that ground, they started to give ill

treatment, both physical and mental and when it became

intolerable, she came to Chennagiri and informed them of

the harassment. Thereafter, the complainant and

Kubendroji Rao brought back Mamatha to Davanagere. At
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that time, the accused persons i.e. the in-laws of the

deceased and her husband complained that she must

listen to their words in their house. At that time, the

complainant advised deceased and asked the accused to

treat her properly. One month thereafter, Mamatha alone

came to the house of the complainant and told that her

husband and in-laws driven her out from the house and

she also told that for petty things, they are assaulting her

and giving ill treatment. Then, the complainant allowed

her to stay in his house. Then the deceased Mamatha

filed a case in Davanagere Court seeking maintenance.

Six months thereafter, accused No.1 compromised the

matter before the Court by giving an undertaking that he

will look after Mamatha properly and thereafter, they got

one house at Vinoba Nagar and the couple was leading

their life. One year thereafter, the deceased was carrying

pregnancy and she gave birth to twins at Davanagere

Bapuji hospital. For about one year three months back,

the complainant brought his daughter for postnatal
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period. Even for one year, on the side of her husband,

nobody did come to see the children or for naming

ceremony. Thereafter, about three months back, accused

No.1 phoned them and told that he has arranged a

separate house and he will look after the deceased

properly. He made galata stating that let the complainant

keep Mamatha in their house and provide her food.

Because of that reason, the complainant and his wife took

the deceased Mamatha to the rented house at

Vinobanagar, Davanagere and the complainant left his

wife Padma in the house of the accused. The wife of the

complainant came back to Davanagere for Gowri festival.

Then, the daughter of the complainant phoned to them

and informed that her husband continued the earlier ill

treatment and harassment and he has not discontinued

his old habits. She has also told them that at the instance

of his parents and his sister, he was giving ill treatment by

assaulting her. On 8.9.2008, at 10.15 p.m., accused No.1

phoned the complainant stating that there are burn
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injuries nearby the thigh of the deceased and it would be

alright and told that the complainant can come in the

morning. As the complainant became panic and

immediately, arranged one vehicle and himself, his wife,

his son Shivaji Rao and the complainant nephew one

Shivaji Rao and Kubendrojio Rao and member Revanna

came to Davanagere hospital in the mid-night. The

deceased Mamatha was admitted in ward No.73 and her

entire body was burnt and the skin was peeled off. She

was not in a position to speak and she was struggling. On

9.9.2008 at 7.30 a.m., they again went to see the deceased

Mamatha and enquired as to what had happened to her.

The deceased told that her husband, mother in law

Shanthamma, father-in-law Eeroji Rao and Sister-in-law

Gunavathi, by insisting her to bring the dowry amount

from her parental place, gave mental and physical ill

treatment and when became untolerable, the previous day

i.e. on 8.9.2008 at 9.00 p.m. she poured kerosene on her

body and lit fire to herself. Hence, the complainant
13

requested the police to take action against the accused,

who insisted his deceased daughter Mamatha to bring the

dowry amount and gave the physical and mental ill

treatment to her.

On the basis of the said complaint, the case came to

be registered in Crime No.44/2008 for the offences

punishable under Section 498A of IPC and Sections 3 and

4 of the DP Act.

6. After the completion of investigation, the

investigation officer filed the charge sheet against the

accused persons for the offences punishable under

Sections 498A, 304B, 302, 506, 201 read with Section 34

of IPC and Sections 3, 4 and 6 of the DP Act.

7. After hearing both sides, the learned Sessions

Judge, framed the charges as against the accused persons

for the said offences and when the charges were read over

and explained to the accused, the accused pleaded not
14

guilty and claimed to be tried and accordingly, the matter

was set down for recording the evidence.

8. The prosecution in support of its case, examined

33 witnesses and produced 51 documents and got marked

material objects M.Os.1 and 2.

On the side of the defence, no witnesses were

examined, but the documents, Exs.D.1 to D.7 got marked.

The accused were examined under Section 313 of

Cr.P.C. and their statements came to be recorded.

9. After hearing the arguments of both sides and

after considering the materials on record, the learned

Sessions Judge held accused No.1 guilty for the offences

punishable under Sections 498A, 304B, 302, 506, 201

read with section 34 of IPC and Sections 3,4 and 6 of the

DP Act and held accused Nos.2 and 3 guilty for the

offences punishable under Section 498A read with Section

34 of IPC and sections 3, 4 and 6 of the DP Act and he has
15

acquitted accused Nos.2 and 3 for the offences punishable

under section 304B, 302, 506 and 201 read with section

34 of IPC. Accused No.4 is acquitted from all the charges.

10. Being aggrieved by the judgment and order of

conviction and the sentence for the said offences, the

appellants-accused have preferred Crl. Appeal

Nos.181/2013 and 194/2013 challenging the legality and

correctness of the said judgment and order of conviction

on the grounds as mentioned in the appeal memorandum

of their respective appeals. The State has also filed Crl.A.

No.566/2013 to modify the impugned judgment and order

of conviction and sentence and to impose adequate

sentence on the respondents-accused for the offence

punishable under Section 3 of the DP Act.

11. We have heard the arguments of the learned

Senior Advocate appearing on behalf of the learned

counsel on record for the appellants-accused in respect of
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their appeals and also we have heard the learned HCGP

for the State.

12. Learned Senior Advocate appearing for the

appellants-accused made submission that the learned

Sessions Judge is not right in convicting the appellant-

accused No.1 for the offence punishable under Section

302 of IPC so also for the offence punishable under

Section 304B of IPC. If the learned Sessions Judge was of

the opinion that it was the case of suicidal death for dowry

harassment as contended by the prosecution, then it rules

out the possibility of committing the murder of the

deceased Mamatha. If the learned Sessions Judge was of

the opinion that the material indicates that it was accused

No.1 who committed the murder of the deceased and held

that it was the homicidal death, then in that case, it rules

out the possibility of offence punishable under Section

304B of IPC. There are four types of deaths. They are

(i) natural, (ii) homicidal, (iii) suicidal death, and
17

(iv) accidental death. The learned Senior Advocate, taking

us through the materials of the case through the paper

book as well as the original records, submitted that the

death of the deceased was not at all the homicidal death.

In this connection, he brought to our notice that there are

more than one dying declaration said to have been left by

the deceased. So far as the oral dying declarations are

concerned, there is no consistency in the said declarations

said to have been made by the deceased before P.Ws.1 to

3, 13 and also before P.W.9. He submitted that looking to

the materials produced on the side of the prosecution,

they clearly show that the said oral dying declarations

relied upon by the prosecution to the effect that it was the

accused who committed the murder of the deceased by

pouring kerosene and lit fire to her, are totally

inconsistent and contradictory of each other. The learned

Senior Advocate also submitted that it is an admitted case

of the prosecution itself that when the deceased was taken

to the hospital, the Taluka Executive Magistrate (P.W.26)
18

recorded her dying declaration (Ex.P.20) in the hospital in

the presence of the doctor. Drawing our attention to the

said dying declaration (Ex.P.20) so also our attention to

the oral evidence of P.Ws.13 and 26, he submitted that

these materials clearly go to show that it is not the case of

homicidal death. The dying declaration (Ex.P.20) and the

oral evidence of P.Ws.13 and 26 also rules out of the

possibility that it is a suicidal death. So far as the oral

evidence of P.Ws.13 and 26 is concerned, there is nothing

on record to believe their oral evidence so also the

contents of Ex.P.20. The prosecution has not at all

treated these two witnesses as hostile for the purpose of

making suggestion that they colluded with the accused

persons and giving false evidence to the effect that the

deceased gave the dying declaration as per Ex.P.20 and

that she never gave such declaration as per contents of

Ex.P.20 and it is a concocted document prepared by

P.Ws.13 and 26 in collusion with the accused persons.

The learned Senior Advocate also submitted that looking
19

to the contents of the dying declaration (Ex.P.20) and the

oral evidence of the other witnesses to which he has

drawn our attention so also the other documents at

Exs.P.32, 33, 50 and the oral evidence of P.Ws.13, 14, 20,

26, 27, 28, they show that it is not a suicidal death.

Learned Senior Advocate referring to these materials

submitted that the oral evidence of the said witnesses as

well as the contents of the documents Exs.P.20, 32, 33, 50

clearly show that it was a case of accidental death. The

dying declaration that too in the written form under

Ex.P.20 is at the earliest point of time which is supported

by the other materials like the oral evidence of the

prosecution witnesses so also the documents produced by

the prosecution itself. Hence, the learned Senior Advocate

submitted that there is nothing on record to show that the

dying declaration under Ex.P.20 is a concocted document

and in reality, it is a case of suicidal death and homicidal

death as observed by the learned Sessions judge. When

the oral dying declarations relied upon by the prosecution
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are more than one in number and there are so many

inconsistencies and contradictions, in such oral dying

declarations, it cannot be held that they are trust worthy

and truthful and can be relied upon by the Court. In this

connection, the learned Senior Advocate for the appellant-

accused relied upon the following judgments of the

Hon’ble Apex Court:

1. (1993) 1 SCC 1 – KAMLA (SMT.) Vs. STATE OF

PUNJAB.

2. (2007) 13 SCC 112 – MEHIBOOBSAB ABBASABI

NADAF Vs. STATE OF KARNATAKA

3. (2004)12 SCC 244 – CHINNAMMA Vs. STATE OF

KERALA

4. (2007)9 SCC 148 – SANJAY VS. STATE OF

MAHARASHTRA

13. The learned Senior Advocate submitted that the

prosecution has tried to book a false case against the
21

appellants-accused falsely implicating them stating that it

is a case of suicidal death on the allegation that the

deceased was subjected to ill treatment and harassment in

connection with the dowry amount of Rs.50,000/-. He

drew our attention to the document Ex.P.21 and

submitted that so far as the history of the case is

concerned the word ‘accidental’ has been scored out and

in its place; it is written as ‘suicidal’ one. There is no

initial of anybody to this correction made. He also

submitted that it is a mistake through over sight while

making mention in the said document and it can be

accepted by the Court, if there is proper explanation to

that effect. The learned Senior Advocate submitted that

the same mistake cannot be carried out in the other

documents also. Even in Ex.P.32-OPD Slip of Chigteri

District hospital Davanagere, wherein, in the history

column, the word ‘accidental’ is scored out and above

that, it is mentioned as ‘suicidal’ and there also no initial

of anybody is formed. Regarding this correction scoring
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out the word ‘accidental’ and writing as ‘suicidal’, it is for

the prosecution to explain as to at what point of time this

was made, by whom it was made, why it was corrected

like that and what is the basis for the said correction.

Looking to the evidence of the prosecution witnesses, it is

not explained during the course of trial. In connection

with the said material, the learned Senior Advocate drew

our attention to one more document Ex.P.50 and the sub

marking under Ex.P.50A wherein in the column, history of

the case, the word ‘accidental burn’ is still appearing and

in this document, there is no mention of suicidal burns as

it is seen in other two documents at Exs.P.21 and P.32.

Hence, referring to this document and the other two

documents Exs.P.21 and P.32, learned Senior Advocate

made submission that the prosecution tried to meddle

with the Courts of justice which is a serious matter to be

taken judicial notice about the same. Hence, all these

materials coupled with the oral evidence of the

prosecution witnesses more particularly, the evidence of
23

P.Ws.1 to 3, 9, 10, 13 and 26, there is no consistency in

the case of prosecution for establishing the alleged

offences under Sections 302 and 304B of IPC and that the

entire materials clearly show that it was an accidental

death. Learned Senior Advocate also made submission

that looking to the evidence of Head Constable (P.W.23), it

goes to show that during night on 8.9.2008 itself, even

earlier to recording the dying declaration under Ex.P.20,

the women police visited the hospital and recorded the

statement of the deceased Mamatha and obtained her

signature to the said statement, but the same has not

been produced before the Court along with the charge

sheet material. It has been suppressed from producing

before the Court. Therefore, it raises a reasonable doubt

as to the case of prosecution that the alleged offence is

either under Section 302 of IPC or under Section 304B of

IPC that it is a suicidal death. Therefore, because of non-

production of the said document, an adverse inference has

to be drawn as against the case of prosecution. The
24

learned Senior Advocate also submitted that the

investigation officer (P.W.33) deposed in his evidence that

though he verified the investigation file, the said statement

was not available in the said file. As the said statement

was not favourable, the prosecution suppressed the said

material.

The learned Senior Advocate further made the

submission that during the course of the trial, the

prosecution set up a new case that, as accused No.1

posed threat to the deceased Mamatha that in case, she

tells before anybody that it was the accused who poured

kerosene and lit fire to her, then he will not spare her

children and because of that reason, she made the

statement under Ex.P.20 falsely making a mention that

she herself poured kerosene and lit fire herself. So far as

this contention of the prosecution is concerned, learned

Senior Advocate made submission that P.W.8 is the driver

of the auto rickshaw and the materials goes to show that

in the said auto, the injured Mamatha and accused No.1
25

only were travelled and nobody else. He also made the

submission that P.W.8 has not at all made any such

statement before the Court on oath that while such

travelling in his auto rickshaw, accused No.1 posed the

threat to the deceased. No witnesses have deposed that

the deceased made such statement due to the threat

posed by accused No.1 and for that reason, she gave false

statement and hence, it is mentioned as accidental death.

Learned Senior Advocate further submitted that such

contention of the prosecution is not supported by any

material. Hence, the entire materials, if we peruse

properly, they will not make out the case either under

Section 302 of IPC or under Section 304B of IPC that is

either homicidal death or suicidal death, but they go to

show that it is an accidental death.

With regard to the offence under Section 498A of IPC

is concerned, the learned Senior Advocate submitted that

if the wife who has been subjected to cruelty or ill

treatment and if she is alive, then in that case, the first
26

part of Section 498A would be made applicable. Drawing

our attention to the relevant paragraphs in the judgment

of the Hon’ble Supreme Court in the case of GIRIDHAR

SHANKAR TAWADE Vs. STATE OF MAHARASHTRA

reported in 2002 SCC (Cri) 971, at para Nos. 16 to 18, he

submitted that the factual story in the reported decision is

aptly made applicable to the case on hand. Hence,

looking to the said judgment of the Hon’ble Apex Court, it

cannot be said that the prosecution has proved the alleged

offence under Section 498A of IPC. He also drew our

attention to the evidence of P.Ws.1, 2 and 9 regarding the

alleged negotiation in the house of P.W.1 in respect of the

marriage between the deceased and accused No.1. But,

referring to the evidence of P.Ws.2 and 3, he made

submission that their evidence goes to show that the said

negotiations or talks took place in the house of accused

and not in the house of P.W.1. Regarding the ornaments

of 10 tolas of gold said to have been given by the parents

of the deceased to the accused, the learned Senior
27

Advocate drew our attention to the evidence of P.Ws.1 and

3 and made the submission that these witnesses have

admitted that there is such a customary practice in their

community to give the gold ornaments to the bride as well

as the bride groom. Even regarding the 10 tolas of gold

ornaments, again there is no consistency in the case of

prosecution as to whether they were given to the accused

No.1 or they were given to the bride or some ornaments to

accused and some ornaments to the bride.

Learned Senior Advocate drew our attention to the

evidence of P.W.1 and made submission that P.W.1 is a

retired employee and earlier to this marriage, he

performed the marriage of his two daughters also.

Therefore, it is for the prosecution to show the source of

income of P.W.1 to perform the marriage of his other two

daughters and the financial capacity of P.Ws.1 and 3 to

pay such amount of Rs.1.00 lakh at a time to the accused

persons. Hence, he submitted that regarding the source

of income and the actual payment of Rs.1.00 lakh, there is
28

no acceptable and worth believable material placed on

record by prosecution.

So far as the case filed between the couple as

against each other, learned Senior Advocate submitted

that the case was filed in the year 2005 i.e., three years

earlier to the alleged incident. There is no material to

show that immediately prior to her death, the deceased

was subjected to the ill treatment and harassment so as to

abet her to commit suicide. He also submitted that, at

this stage, the possibility of the deceased committing

suicide has been ruled out in view of the evidence of the

witnesses already referred above. Drawing our attention

to the documents i.e., the undertaking given before the

police and referring to the contents of the said documents,

the learned Senior Advocate submitted that the deceased

Mamatha was also advised by her parents as well as by

the police so also accused No.1 was advised to treat her

properly henceforth. Therefore, only on this basis, it

cannot be said that the prosecution has established the
29

fact that there was ill treatment and harassment as

defined under section 498A of IPC. Hence, he submitted

that the judgment and order of conviction passed by the

learned Sessions Judge as against accused Nos.2 and 3

for the offence under section 498A of IPC is also not

sustainable in law.

Lastly, the learned Senior Advocate submitted that

the entire material is to be considered and appreciated by

the Court to see the cumulative effect emerging out of the

said material. In this connection, he relied upon the

decision of the Hon’ble Supreme Court in case of STATE

OF PUNJAB VS. PARVEEN KUMAR reported in 2006(2)

SCC (Criminal) 146 and submitted that the judgment

and order of conviction for the offences of murder and

dowry death and the other offences against accused No.1

and also against accused Nos.2 and 3 are illegal and not

sustainable in law. Hence, he submitted to allow both the

appeals by acquitting accused Nos.1 to 3 for the said

offences. He also submitted that as there is no merit in
30

the appeal preferred by the State and hence, the same is

to be dismissed.

14. Per contra, learned High Court Government

Pleader appearing for the State submitted that the dying

declaration under Ex.P.20 is not the declaration made by

the deceased on her free will and volition. She submitted

that as accused No.1 threatened her that if the deceased

made disclosure of accused pouring kerosene and litting

fire to her, then he will not spare her children and because

of that reason, she made such a declaration. Therefore,

the said dying declaration under Ex.P.20 cannot be relied

upon by the Court.

The learned HCGP also made submission that

materials show that when P.Ws.1, 2, 3 and 10 came to the

hospital where the injured was admitted, it was crossing

the mid night and it was on 9.9.2008, in the early

morning. As the deceased was not in a position to speak

and give the statement, again at 7.30 a.m., they went back
31

to the hospital and enquired her, at that time, the

deceased made statement that it was the accused person

who poured kerosene and lit fire to her. Hence, the

learned HCGP made submission that the contention of the

other side that the aforesaid witnesses went to the

hospital during the night on 8.9.2008 itself is not correct.

She drew our attention to the contents of Ex.P.1 and made

submission that it clearly goes to show that P.Ws.1, 2, 3

and 10 went to the hospital in the morning at about 7.30

on 9.9.2008.

Learned HCGP further submitted that earlier, the

deceased filed maintenance case against accused No.1

wherein the maintenance of Rs.1,700/- per month was

already granted to the deceased. Looking to the evidence

of P.Ws.1 to 3 and 10, all the witnesses have spoken about

the payment of dowry amount and even the independent

witnesses have also spoken about the demand and

acceptance of the dowry amount by the accused. She

made submission that the father of the deceased (P.W.1)
32

in his evidence has deposed that he was having the

capacity to pay the dowry amount and the ornaments.

Hence, with the help of the evidence of P.Ws.1 to 3 and 10,

the prosecution was able to prove even the offences

punishable under Sections 3, 4 and 6 of the Dowry

Prohibition Act.

It is also the contention of learned HCGP that P.Ws.1

to 3 have spoken about the cruelty meted out by the

accused to the deceased Mamatha. In this connection,

she drew our attention to the complaint (Ex.P.3) filed by

the deceased Mamatha to the CPI, Chennagiri, wherein it

was stated that the accused assaulted the deceased and

she has taken the treatment. In that connection also, the

learned HCGP made submission that the document

Ex.P.29 clearly goes to show that the injuries were

sustained by the deceased Mamatha.

It is also the submission of the learned HCGP that if

it is the contention of the accused that the death is

accidental death and as the kerosene oil was leaking out
33

from the kerosene stove and there was accidental fire to

the saree of the deceased Mamatha, then the investigation

officer could have mentioned in the spot mahazar (Ex.P.2)

about the material object – kerosene stove. But in the spot

mahazar (Ex.P.2), there is no mention that there was

kerosene stove in the house of the accused No.1. This has

been noticed by the learned Sessions Judge and hence,

the learned Sessions Judge has not relied upon Ex.P.20 to

hold that it is an accidental death.

Drawing our attention to the statements of the

deceased as well as accused No.1 before the police in the

year 2005 and the evidence of the doctor (P.W.18) who

treated the deceased in the year 2005, and Ex.P.29 and

the history furnished in Ex.P.29, the learned HCGP

submitted that it is important for appreciating the case of

prosecution as well as the defence of the accused and

hence, there was cruel treatment meted out to the

deceased. It is also the submission of the learned HCGP

that if the burns are accidental burns, then there could
34

not have been the burns on the entire body. The post

mortem report goes to show that the entire body was

burnt and it is 80% burns.

The learned HCGP further submitted that there was

only one dying declaration of deceased stating that

accused No.1 poured kerosene on her and lit fire to her

and there are no more than one dying declarations as

contended by the other side. She submitted that the oral

dying declaration implicating accused NO.1 is consistent

and no explanation has been offered by the accused as to

how the accident has taken place. Hence, all these

aspects were considered by the learned Sessions Judge

and he rightly came to the conclusion in holding that the

accused persons are guilty for the respective offences

mentioned above.

Lastly, the learned HCGP submitted that there is no

merit in both appeals of the accused and submitted to

dismiss the appeals preferred by them. She further

submitted that the learned Sessions Judge has also held
35

that the prosecution has proved the offences punishable

under Sections 3, 4, and 6 of Dowry Prohibition Act.

Therefore, the punishment imposed as against the

accused for the said offences is inadequate and not

proportionate to the gravity and nature of the offences.

Hence, she submitted that the appeal preferred by the

State seeking enhancement of the sentence may be

allowed.

15. In reply to the arguments of the learned HCGP

that the spot mahazar (Ex.P.2) does not contain that there

was kerosene stove in the house, learned Senior Advocate

counsel for the appellants made submission that looking

to the statement of the witnesses, it shows that when the

deceased sat on the floor by taking the plate for having the

food, at that time, accused No.1 came, poured kerosene

and lit fire to her. The investigation officer has also not

mentioned in the spot mahazar (Ex.P.2) about the plate

used for taking the meals by the deceased which was said
36

to have been lying at the said place. He also made

submission that one of the witnesses has spoken that

even there was one plastic bucket at the said place. The

said plastic bucket has also not been mentioned by the

investigation officer in Ex.P.2. Therefore, it is the

contention of learned Senior Advocate that if the

investigation officer has not mentioned in Ex.P.2 about

some of the articles that does not mean that those articles

were not there. Hence, he submitted that the said

contention of the learned HCGP has no force and the same

may be rejected.

16. We perused the grounds urged in the appeal

memorandum in all the three appeals, judgment and order

of conviction passed by the learned Sessions Judge in

respect of accused Nos.1 to 3 wherein accused No.4 has

been acquitted and also the grounds in the appeal

memorandum of the appeal preferred by the state seeking

enhancement of the sentence, the oral evidence of the
37

prosecution witnesses and the documents produced and

also the documents marked on behalf of the defence, the

decisions relied upon by learned Senior Advocate on

behalf of accused Nos.1 to 3 in the respective two appeals

and also considered the oral submissions made by the

learned Senior Advocate for the appellants so also the

learned HCGP for the State.

17. It is the contention of the learned Senior

Advocate Sri C.V. Nagesh that the learned Sessions Judge

has wrongly convicted the appellant-accused No.1 for the

offences punishable under Sections 302 and 304B of IPC.

It is his contention that the death is neither homicidal nor

suicidal, but it is accidental death. Therefore, it is his

contention that the findings recorded by the learned

Sessions Judge holding that accused No.1 committed the

offences under Sections 302 and 304B of IPC are totally

illegal and not sustainable in law. In respect of the said

contention, let us examine the materials placed on record.
38

18. The prosecution has relied upon the dying

declaration in the written form produced under Ex.P.20.

We have perused the said document Ex.P.20, which was

given by the deceased Mamatha recorded by the Taluka

Executive Magistrate, Davanagere. Looking to this

document, on the top of the said document, the doctor

(P.W.13) has endorsed that the injured is competent to

give the statement. Below that, he has put his signature

dated 8.9.2008 and time is also mentioned by the Doctor

as 11.45 p.m. Perusing Ex.P.20, in answer to column

No.14 on the over leaf of Ex.P.20, it is mentioned that

Mamatha W/o. Kumar, married about four years back and

they are having two children and in the house, her

husband, children together leading happy life. The

relationship between the couple is cordial. The mother-in-

law and father-in-law are residing separately. After the

meals, she went to boil the milk and curry (saaru). She

went to start the kerosene stove and from the hole of the

kerosene stove, the kerosene oil came out and she was
39

caught with the fire. As the child was weeping, it was not

come to her knowledge that there was fire to her.

Thereafterwards, it extended to her whole body.

Thereafter, her husband came and tried to extinguish the

fire. Her husband and no other persons are responsible

for the same. This incident took place accidentally.

Therefore, for this situation, no other persons are

responsible and she is telling these things. Below that, it

is signed in English as CS Mamatha. It also bears an

endorsement of the Taluka Executive Magistrate,

Davanagere. The date is put as ‘8.9’. It also bears

endorsement ‘in my presence, the said statement is

recorded’ and below that, it is signed by the doctor which

is marked as per Ex.P.20(d). So this document-Ex.P.20

goes to show that the said incident is accidental in nature.

Let us examine the oral evidence of the doctor

(P.W.13) and also the evidence of Taluka Executive

Magistrate (P.W.26), in whose presence the dying

declaration (Ex.P.20) is said to have been recorded.
40

P.W.13 is Doctor N.G. Jayaprakash, Senior Medical

Officer, CG Hospital, Davanagere. He has deposed in his

evidence that since two and a half years, he is working in

the said hospital as a Senior Medical Officer. In all, there

are 28 medical officers. It is a big hospital. Many medico

legal cases will be reported from the said hospital. He

further deposed that on 8.9.2008, it was his turn to be

present at the time of recording the dying declaration. At

about 11.15 p.m., from the OPD section, within the

premises of their hospital, he received the phone call

informing him that in one MLC case, Tahsildar is coming

to record the dying declaration and he was informed to

come to the hospital. By the time, he reached the

hospital, the Tahsildar and Taluka Executive Magistrate

Sri Nagahanumayya of Davanagere came to their hospital.

When enquired with the Tahsildar, Tahsildar told him that

he has to record the dying declaration of one Mamatha

C.S. who is admitted in the burns ward in the said

hospital. Then they all went to the burns ward. The
41

injured Mamatha having the burn injuries was getting

treatment in the said ward. After going there, he talked to

Mamatha and enquired with her and he has ascertained

from her that whether she is mentally able to answer the

questions and whether she is capable to talk and answer

to his questions. Mamatha gave the answers properly and

perfectly. From her answers, he got it confirmed that she

is capable to give her statement. Then he informed to the

Tahsildar that Mamatha is capable to give her statement

and the Tahsildar can record her statement. Before the

Taluka Executive Magistrate proceeding to record the

statement, he made an endorsement on the said proforma

which was brought by the Tahsildar that the injured is

capable to give the statement and below that, he put his

signature. Then the Tahsildar enquired with the injured

and recorded the statement given by the injured. P.W.13

has deposed that he has seen the said statement which is

under Ex.P.20. His signature with the endorsement on

the top of Ex.P.20 is as per Ex.P.20(a). He further
42

deposed that in his presence, Mamatha gave the

statement before the Tahsildar as to what was stated

below column No.14. In para Nos.8 and 9 of his

deposition, P.W.13 has also deposed in detail as to what

was stated by the deceased at column No.14 of Ex.P.20.

The said portion of the statement is together marked as

Ex.P.20(b) and he has identified the signature of Mamatha

as per Ex.P.20(c) and for that, the Tahsildar put

endorsement that in his presence the statement is

recorded and he identified it as Ex.P.20(d). P.W.13 has

further deposed that at the end of page Nos.2 and 3, the

Tahsildar has put his signature by placing the seal there

as per Exs.P.20(e) and (f). Looking to the cross

examination on behalf of the accused, it was submitted

that there was no cross examination.

Let us come to the evidence of P.W.26 – one Sri

Nagahanumaiah G.H., who is the Tahsildar and Taluka

Executive Magistrate. He has deposed in his evidence in

the examination in chief that from 11.4.2008 to
43

21.11.2008, he worked as Tahsildar and Taluka Executive

Magistrate, Davanagere. While he was so working, he

received the requisition letter dated 8.9.2008 from

Davanagere City Extension Police Station. The said letter

is as per Ex.P.36 and his signature is as per Ex.P.36(b).

By the said letter, the police requested him to record the

dying declaration of Mamatha, wife of Kumar who is

getting treatment in the Chigteri District hospital because

of the burn injuries. Accordingly, on the same day in the

morning, he went to the said hospital and enquired

Mamatha from 11.45 a.m. up to 12.00 noon and he

recorded her statement. He called the duty doctor

Jayaprakash and enquired him as to whether the injured

is capable to give the statement. After examining the

injured, the doctor confirmed him that she is capable to

give the statement. He recorded the statement of

Mamatha as per Ex.P.20. In the beginning, Dr.

Jayaprakash made an endorsement as per Ex.P.20(a).

Then P.W.26 recorded the statement of Mamatha in his
44

own hand writing and he read over the same to Mamatha

and obtained her signature and he also put his signature

to the same. Dr. Jayaprakash, at the end, again made an

endorsement that in his presence, the statement was

recorded. The statement given by Mamatha is already

marked as per Ex.P.20(b) and her signature is Ex.P.20(c)

and signature of the doctor is Ex.P.20(d) and his

signature is Ex.P.20(e).

In the cross examination by the accused person,

P.W.26 has deposed that looking to the statement of

Mamatha under Ex.P.20(b), it is contrary to the statement

of Chinnojirao and Gopalakrishna recorded during the

inquest mahazar proceedings. He has further deposed

that he recorded the statement of Mamatha in the form of

dying declaration on 8.9.2008 in the night from 11.45 to

12.00 hours. When the document at Exs.P.30, P.32 and

P.36 were shown to P.W.26, after seeing those documents,

he said ‘yes’. It was suggested that the inquest mahazar

(Ex.P.4) was not prepared correctly, but the said
45

suggestion has been denied by the witness. The witness

has also denied that Ex.P.4 was prepared mechanically.

He has further denied the suggestion that in order to

falsify the truth of the statement of the injured Mamatha

given under Ex.P.20(b) and to defeat the same,

thereafterwards, Ex.P.4 has been created.

19. Even looking to the oral evidence of the Doctor

(P.W.13) and the Taluka Executive Magistrate (P.W.26), it

is consistently deposed that the statement of the deceased

Mamatha was recorded by Taluka Executive Magistrate

(P.W.26) in the presence of the doctor (P.W.13) and even

before the commencement of recording of the said

statement, P.W.26 obtained the opinion of P.W.13 as to

whether the deceased Mamatha was capable to give such

statement or not. P.W.13 after examining the deceased

Mamatha confirmed that she was capable to give such

statement and the same he had informed to the witness

P.W.26 and to that extent; there is endorsement on the
46

right top corner of Ex.P.20. Therefore, this goes to show

that every care has been taken by the Taluka Executive

Magistrate (P.W.26) before recording the statement of the

deceased under Ex.P.20.

Looking to the cross examination, doctor (P.W.13)

was not at all cross examined as the counsel submitted

that there is no cross examination. Therefore, the

evidence deposed by the doctor (P.W.13) remains

unchallenged. Even so far as the cross examination of

Taluka Executive Magistrate (P.W.26), he has consistently

deposed about he recording the statement of the deceased

Mamatha on 8.9.2008 at 11.45 p.m. to 12.00 mid night.

It is no doubt true that in his examination in chief though

P.W.26 has deposed that he went to the hospital in the

morning and recorded the statement at 11.45 a.m. to

12.00 noon but when the documents were shown to the

witness in the cross examination, he has confirmed that it

was on 8.9.2008 in between 11.45 p.m. to 12.00 mid

night. Therefore, with regard to the day and time of
47

recording of the dying declaration of the deceased

Mamatha has also been established with satisfactory and

cogent material produced by the prosecution. Therefore,

there is nothing on record to disbelieve the document

Ex.P.20, the oral evidence of P.Ws.13 and 26 in

connection with the dying declaration of deceased

Mamatha.

20. No doubt, during the course of arguing the case,

the learned HCGP submitted that the dying declaration

under Ex.P.20 given by Mamatha was not at all given on

her free will and volition and it is induced by the threat

posed by accused No.1 while taking her to the hospital in

an auto rickshaw of P.W.8 that she has to tell that the

incident is accidental in nature and she should not tell

that it is he who poured the kerosene and lit fire to her.

In case, she tells before anybody that it was accused No.1

who poured kerosene and lit fire to her, then in that case,

he will not spare her daughter and going to kill the
48

daughter also and because of the said fear, the deceased

Mamatha made such a statement before the Tahsildar

under Ex.P.20. But to support this contention, the

prosecution has not placed any material, even the

prosecution has not treated P.Ws.13 and 26 as hostile

witnesses at least to make the suggestion that the dying

declaration under Ex.P.20 is not of the free will and

volition of the deceased Mamatha and it is because of the

said threat induced to her by accused No.1 and the

document Ex.P.20 is a concocted document. Unless and

until, there is some material brought on record to show

that the dying declaration under Ex.P.20 is the result of

such inducement, the contention of the learned HCGP

cannot be accepted at all.

21. Regarding the contention that the dying

declaration (Ex.P.20) of the deceased was the out come of

the threat given to her by accused No.1 as contended, let

us examine the oral evidence of the driver of the auto
49

rickshaw (P.W.8) in whose auto rickshaw, the injured sent

to the hospital accompanied by accused No.1. It is no

doubt true that it is the contention of the prosecution that

one Hanumanthappa (P.W.11) also travelled in the said

auto rickshaw and he has heard accused No.1 giving the

threat to the deceased to give the statement in such a

fashion as it is recorded under Ex.P.20.

One Venkatesh (P.W.8), who is the driver of the auto

rickshaw, has deposed in his evidence that by the side of

his house, the accused Kumar along with his wife and

children was staying in a rented house. The deceased

Mamatha is the wife of Kumar and on the date of the

incident at 10.00 p.m., when he slept in his house, he was

made to woke up stating that in the neighbouring house,

there was incident of burns. He came outside and the

accused Kumar after covering the body of his wife with the

rug brought her outside. She sustained burn injuries.

P.W.8 has further deposed that in his auto rickshaw,

accused No.1 took deceased to Davanagere C.G. Hospital.
50

He was the driver of the auto. People gathered there were

talking that because of the stove burst, there was fire to

her. The police recorded his statement. He does not know

that before the incident, accused Nos.2 to 4 coming to the

house of accused No.1 and picking up quarrel with

deceased Mamatha. This witness was treated as hostile

and when cross examined by the Public Prosecutor, he

denied the suggestion that on the date of the incident at

about 8.00 p.m. accused Nos.2 to 4 came to the house of

accused No.1 and along with accused No.1, they picked

up quarrel with the deceased Mamatha stating that she

made them to attend to the Court. He denied the further

suggestion that by making such galata, accused Nos.2

and 3 went out of the house. He has further deposed that

he does not know that after they went out, there was

quarrel going on between the husband and wife. He

denied the suggestion that after hearing the said galata

and after some time, they heard the screaming voice of

Mamatha and went there and knocked the door and
51

forcibly they pushed and made the door to open. He

denied the further suggestion that at that time, himself,

his son Raju and one Hanumanthappa were present, he

denied the further suggestion that thereafter when the

door was tapped, Mamatha came out having the flames on

her body and it is they who extinguished the fire. He

denied the suggestion that though he has given his

statement before the COD investigation officers under

Ex.P.16, but at the instance of the accused, he is giving

false evidence. He also deposed that he has not gone

inside the house of the accused in order to ascertain

about the bursting of the stove. He denied further

suggestion that at the instance of the accused persons, he

is falsely deposing that the fire to Mamatha is because of

the stove burst.

22. So looking to the evidence of the driver of auto

rickshaw (P.W.8) in whose auto, the deceased was taken

to the hospital by accused No.1 Kumar he never stated in
52

his evidence that while so going accused No.1 posed life

threat to the injured Mamatha that she has to give

statement that the fire is an accidental fire to her and not

to tell before anybody that it is he poured kerosene and lit

fire to her. And further he threatened her that incase she

tells the truth before anybody he will not spare the

daughter and he will kill the daughter also.

23. Another witness as per the prosecution case in

this regard is one Hanumanthappa (P.W.11), the

neighbour, who is also said to have traveled in the auto

rickshaw of P.W.8. Perusing the evidence of the said

Hanumanthappa, he has deposed in his evidence that he

knows all the four accused persons. His house is at 2nd

main 9th Cross, Vinoba nagar, Davanagere. About three

years back, the accused persons took the said house on

mortgage. In the said house, accused No.1 Kumar and his

wife and children were staying. Accused Nos.2 to 4

coming to the said house often and going back. When the
53

couple was staying in the house, they were alright. But on

8.9.2008 at 8.00 p.m. there was galata going on in the

house of accused No.1. The injured Mamatha was

screaming. The neighbours went there and tapped the

door. Accused No.1 Kumar came and opened the door.

They saw the fire on the whole body of the wife of accused

No.1 and the body was burning. They extinguished the

fire with the help of the bed sheet. Then they sent the

injured in an auto rickshaw to the government hospital.

In the said auto, Venkatesh (P.W.8), his son and another

Manjunath also went. In the meantime, accused No.3

Eeroji Rao came there. Then himself and said Eeroji Rao

went to the hospital. Then they and accused persons

phoned to the father of the deceased and informed about

the same calling him to come immediately. Accused No.1

was in the hospital. After some time, the family members

of the deceased came and he consoled them. Then, he

came back to his house. When the fire took place,

accused No.1 Kumar, his wife and two children were
54

inside the house. After the door was opened by accused

No.1, they have seen the fire. While getting the treatment

and after 2-3 days after the incident, Mamatha expired in

the hospital. He has further deposed that as the door was

closed, it was not known to them as to whether Mamatha

set fire to herself or accused No.1 set fire to her. When

CID police enquired him, he gave the statement. Prior to

that when other accused persons came to the said house,

he has not seen any galata going on. The prosecution

requested the Court to treat this witness as hostile

witness. Accordingly, he was treated as hostile witness

and cross examined by the Public Prosecutor.

In the cross examination, P.W.11 has deposed that

he has not given the statement before the police as per

Ex.P.18 and P.18(a). He has also deposed that he has not

stated before the police that at that time, himself and his

neighbour Venkatesh and husband of Mamatha by name

Kumar, all together took Mamatha in the auto rickshaw of

Venkatesh (P.W.8) and went to C.G. Hospital at
55

Davanagere and on the way, accused No.1 threatened

Mamatha that she should not tell before anybody that

accused No.1 poured kerosene and lit fire to her and in

case, she tells as such, then he will set fire to her

daughter also and burn her. P.W.11 has further deposed

that he has also not stated before the police that accused

told deceased that she should tell that when she was

starting the kerosene stove, at that time, the fire caught

her and stating so, the accused threatened her and

thereafter, they took the deceased to C.G. hospital and

admitted”. He has not stated so before the investigation

officer as per Ex.P.18(b). Therefore, looking to this

evidence of Hanumanthappa (P.W.11), the neighbour, he

has also not supported the case of prosecution that in his

presence, accused No.1 threatened the deceased while

traveling in the auto rickshaw. But on the contrary, the

evidence of P.W.11 goes to show that he has not at all

traveled in the said auto rickshaw. Therefore, the

contention of the prosecution that because of such threat
56

posed by accused No.1 to deceased, she gave the

statement under Ex.P.20 before the Taluka Executive

Magistrate. Therefore, it is not her dying declaration given

voluntarily and of her free will and volition and it is not

supported by any such material. Therefore, the argument

of the learned HCGP in respect of the written dying

declaration (Ex.P.20) and the evidence of P.Ws.8, 11, 13

and 26 are against the prosecution case itself. Therefore,

the contention of HCGP cannot be acceptable.

24. It is also the case of prosecution as per the

evidence of one of the witnesses i.e., Hanumanthappa

(P.W.11) that in the auto rickshaw, the injured was sent

along with Venkatesh (P.W.8-the driver of the auto), his

son and another Manjunath. Therefore, it is necessary to

refer to the evidence of P.W.6-Manjunath and P.W.7-Raju,

the son of driver of the auto rickshaw-Venkatesh. Looking

to the evidence of Manjunath (P.W.6), he has deposed that

during that night, when they were having the dinner, at
57

that time, there was galata going on and after hearing the

same, he came out. In front of his house, there was the

house of the accused. When they saw, the accused

Kumar and his wife came, and the entire body of deceased

was burnt. While coming out, they themselves put the

bed sheet on the body of the deceased. He has further

deposed that the accused Kumar took the deceased to the

hospital in an auto rickshaw. He also went on his bike.

When enquired, he came to know that because of the

burst of the stove, there were the burn injuries. The

police have not recorded his statement. So this witness

was also treated as hostile. When examined by the Public

Prosecutor, he denied the suggestion that he extinguished

the fire and he also traveled in the auto rickshaw of

Venkatesh (P.W.8).

Coming to the evidence of Raju (P.W.7), he has

deposed in his evidence that by the side of his house, the

accused was staying in a rented house with his wife and

children. He does not know as to how the husband and
58

wife were living when so staying. He does not know that

there used to be quarrel between them. On the date of

the incident, at about 10.30 p.m., there was galata in the

house of Kumar. When he went to the said house, the

door was being tapped. 4-5 persons were present there.

Then he went back inside his house. Later, he came to

know that it was the case of burning. The police as well

as COD police enquired and recorded his statement. At

the request of the Public Prosecutor, this witness was also

treated as hostile and when cross examined, nothing has

been elicited from his mouth to show that he had also

traveled in the auto rickshaw of his father (P.W.8) along

with injured and accused No.1, and at that time, accused

No.1 gave threat to deceased that she should not tell that

he poured kerosene and lit fire to her and she should say

before the others that it was the case of accidental burns.

Therefore, these are all the materials so far as the dying

declaration under Ex.P.20 recorded by the Taluka
59

Executive Magistrate (P.W.26) in the presence of doctor

(P.W.13).

25. We have also referred to the relevant material in

the evidence of the witnesses with regard to the contention

of the prosecution that the dying declaration given under

Ex.P.20 is not voluntary and not because of free will and

volition. The contention of the prosecution is against

their own material that the dying declaration under

Ex.P.20 is not voluntary and because of free volition.

Therefore, such contention cannot be accepted.

26. Apart from the written dying declaration, there

is more than one oral dying declaration of the deceased,

even according to the case of prosecution. Let us refer to

the materials placed on record in this regard.

Siddoji Rao (P.W.1), is the complainant and father of

the deceased. He has deposed in his evidence in the

examination in chief that on the date of the incident
60

during night at 9.45 hours, accused No.1 came to his

house and at that time, his wife Anitha called him for the

meal and accused No.1 told the deceased Mamatha that

he already had the meal and asked the deceased Mamatha

to have the meal. When the deceased sat to have the

meal, at that time, the accused poured kerosene on her

body and lit fire to her. This was told by Mamatha when

he enquired with his daughter.

Kubendroji Rao (P.W.2), who is the relative of P.W.1

and the deceased, has deposed in his evidence in the

examination in chief, at para No.10 of his deposition, that

at that time, they spoken to the deceased and she was in a

position to talk and she spoke to them and told before

them that the family members of her husband poured

kerosene oil on her body and set fire to her. When they

enquired as to what had happened further, she told that

her husband Kumar, father-in-law Eeroji Rao, mother-in-

law Shantha Bai and sister-in-law Gunavathi, they all

burnt her.

61

Smt. Padma (P.W.3), the mother of the deceased

Mamatha, has deposed in her evidence in the examination

in chief at para Nos.16 and 17 that during the night itself,

Kubendroji Rao (P.W.2), Chennaveeroji Rao, Shivaji Rao,

herself and her husband (P.W.1) came to C.G. Hospital at

Davanagere. They saw Mamatha was getting treatment in

the said hospital for the burn injuries sustained and she

was not having the consciousness. After one hour, she

talked with them properly. P.W.3 has further deposed

that Mamatha also told that during the night when she sat

for having the meal, at that time, her husband poured

kerosene on her body and lit fire to her. Two days

Mamatha was alive and thereafter, while getting the

treatment, she succumbed to the burn injuries in the

hospital.

Ningoji Rao (P.W.9) has deposed in his evidence in

the examination-in-chief that in the year 2008, he came to

know that husband of the deceased set fire to her.
62

C.K. Revanna (P.W.10) has deposed in his evidence

in the examination-in-chief that after the mother-in-law,

father-in-law and the sister-in-law of the deceased went

from the house of the deceased; the deceased called her

husband to have the meal and at that time, accused No.1

told her that he had the meal and asked her to have the

meal. At that time, the deceased went inside and she put

the food in the plate and sat for having the meal. At that

time, accused No.1 brought kerosene oil in a plastic bottle

poured on the body of the deceased and then, set fire to

her. In para No.10, P.W.10 has also deposed that they

were informed that at about 8.30 p.m., galata was going

on in the house of Kumar. Therefore, they had the

suspicion that accused No.1-Kumar might have poured

the kerosene and lit fire to the deceased Mamatha.

In addition to the oral evidence of the above said

prosecution witnesses, the prosecution has also relied

upon the documentary evidence, Ex.P.27 and Ex.D.1,

wherein on page No.2 of the said document in the last
63

paragraph, it is mentioned that immediately, the

complainant went nearby the house and enquired with the

neighbours and came to know that accused No.1 Kumar,

his parents and his sister, together poured kerosene and

lit fire to the deceased Mamatha.

This is all the evidence of the prosecution in support

of the contention of the prosecution that it is the

homicidal death.

27. It is also the contention of the prosecution that

it is a suicidal death. There is a charge under Section

304-B of IPC that because of the ill treatment meted out to

the deceased Mamatha in connection with the payment of

remaining dowry amount of Rs.50,000/-, she committed

suicide and hence, it is a dowry death as per the

contention of the prosecution. In support of this

contention that it is the suicidal death, the prosecution

has led the evidence.

64

Ningoji Rao (P.W.9) has deposed in his evidence in

the cross examination at para No.4 that he has not stated

before the investigation officer that the previous day night

at 9.00 p.m., the deceased informed that she poured

kerosene on herself and lit fire to herself. He has not

stated accordingly as per Ex.D.6.

C.K.Revanna (P.W.10) has deposed in his evidence in

the cross examination at para No.3 that he has not stated

before the police that as the ill treatment becomes

untolerable, the previous day at about 9.00 p.m., the

deceased poured kerosene on herself and lit fire to herself

and he has not stated that the deceased Mamatha told

before him as such, as per Ex.D7.

28. The prosecution also wanted to rely upon the

documentary evidence regarding the suicidal death i.e.,

Ex.P.21 – the MLC register extract. In the said document,

in front of H/o – it is mentioned suicidal burn. So also,
65

the another document at Ex.P.32 wherein also, in front of

H/o, it is mentioned as suicidal burn.

But it is the contention of the defence that the

incident in question is neither homicidal nor suicidal but

it is the accidental in nature.

29. Before proceeding to appreciate the evidence of

the prosecution witnesses regarding the oral dying

declaration of the deceased so also some documents

produced by the prosecution, let us have the clear idea

about the dying declaration.

The basis of the rule as to dying declaration was

explained in the early case of R Vs. WOOD COCK (1789 1

Leach 500: 168 E.R.352 (page No.160). The brief facts

of the case in the said reported decision are that, the

prisoner was charged with the murder of the wife. Her

statement as to circumstance of death was recorded by a

magistrate. Death came 48 hours after this. She

consistently and rationally repeated the circumstances of
66

the ill treatment meted out to her. But she remained

conscious till the last moment and did not seen at all to be

aware of her approaching dissolution.

Holding the statement to be relevant Eyre C.B. first

explained the general principle;

The general principal on which this species of

evidence is admitted is that they are declarations made in

extremity, when the party is at the point of death, and

when every hope of this word is gone; when every motive

to falsehood is silenced and the mind is induced by the

most powerful considerations to speak the truth.

So this is the general principle explained by Eyre

C.B. Therefore, solemnity is the basis that the court can

rely upon the dying declaration. Therefore, the dying

declaration if satisfactorily proved that it is truthful,

voluntary and reliable, then it can be the sole basis for

conviction without seeking any corroboration as laid down

in Section 32(1) of the Indian Evidence Act. But at the

same time, the Court has to keep in mind that dying
67

declaration is a statement made by the declarant not on

oath and the person making the dying declaration not

subjected to cross examination also. Therefore, the Court

will have to be cautious before accepting the dying

declaration that it is worth believable. Keeping these

principles in mind, let us examine the oral evidence led by

the prosecution to which we have already made our

reference above.

Regarding the said oral dying declarations, even with

regard to the contention of the prosecution that it is the

homicidal death of deceased Mamatha, there is no

consistency, one witness is deposing that it is accused

No.1 Kumar, the husband of Mamatha poured kerosene

and lit fire to her. The another witness is deposing that it

is all the four accused persons poured kerosene on

Mamatha and lit fire to her. Looking to the evidence of

P.Ws.9 and 10 as per Exs.D.6 and D.7, it goes to show

that the deceased made the statement before the said

witnesses that it is she herself poured kerosene and lit fire
68

on her. No doubt P.Ws.9 and 10 have deposed in the

cross examination that they have not given a statement

before the investigation officer as per Exs.D.6 and D.7.

But looking to the evidence of the investigation officer, the

defence has not confronted those portions of evidence

under Exs.D.6 and D.7 to know from the investigation

officer that whether the witnesses have stated so or not.

But apart from that, looking to the very evidence of

P.W.1, the complainant who is the father of the deceased,

in the oral evidence he has deposed that when he

enquired his daughter Mamatha, she told him that when

she was having the meal, her husband poured kerosene

and lit fire to her. Whereas, in the complaint Ex.P.1,

P.W.1 has deposed that on 8.9.2008, at 10.15 p.m., his

son-in-law accused No.1 phoned and informed him that

there is a small burn injury at the thigh portion to

Mamatha and he need not worry and he can come in the

morning. But as he was afraid, he immediately arranged

one vehicle and himself and his wife and his son Shivaji
69

Rao and his nephew another Shivaji Rao and Kubendroji

Rao and member Revanna (P.W.10), came in the midnight

to C.G. hospital Davanagere. Mamatha was admitted in

ward No.73, the entire body was burnt, skin was peeled off

and she was not in a position to speak and she was

struggling. It is also mentioned in the complaint (Ex.P.1)

that on 9.9.2008 at 7.30 a.m., they went to see Mamatha

and asked as to what had happened to her. She told

before them that her husband, mother-in-law

Shanthamma, father-in-law Eeroji Rao and Sister-in-law

Gunavathi insisted her to bring the dowry amount and

gave physical and mental ill treatment to her. When it

became intolerable, on the previous day at 9.00 p.m., she

poured kerosene on herself and lit fire to herself.

Ex.P.27/Ex.D.1 is the complaint about which we

have already made the reference that it is all the four

accused persons poured kerosene and lit fire to the

deceased. Looking to these materials by P.W.1 himself,

there are three versions and there is no consistency and
70

totally, they are contradictory of each other. So also

looking to the evidence of P.Ws.2, 3, 4, 9 and 10, again

there is inconsistency with the oral evidence of P.W.1 so

also the contents of Ex.P.1 the complaint and Ex.P.27,

another complaint submitted before the office of the

Tahsildar.

30. Apart from this, if we look into the documents,

MLC register extract (Ex.P.21) so also the MLC card

(Ex.P.32) issued from Chigteri District Hospital

Davanagere, in both these documents, in front of the

column H/o. originally, it was written as accidental. But

the word ‘accidental’ has been scored out and above that,

it is mentioned as ‘suicidal burns’. For making such

corrections, there is no initial of anybody. There is no

explanation offered by the prosecution as to who made

such corrections, why it was made and at what point of

time, the said correction was made. Absolutely, no

material has been placed by the prosecution. Therefore,
71

this itself raises a doubt in the mind of the Court as to

why such a correction has been made scoring the word

‘accidental’ and above the same making a mention as

‘suicidal burn’. If it is presumed that in Ex.P.21, the MLC

extract, through over sight it is written so, but the said

mistake cannot be in all the other documents also.

When the investigation officer was asked about this

correction, during the course of cross examination, the

witness though admitted that there were such corrections

made, but he has not investigated as to who made such

correction and why the correction was made. Looking to

the evidence of P.W.33-investigation officer it is clear that

he verified Ex.P.21, after recording the evidence of Dr.

Ganesh Babu. The investigation officer has further

deposed that while writing the history, Dr. Ganesh Babu,

originally written as ‘accidental’ and then, he scored it and

above that, he has written ‘suicidal burns’. The witness

admitted it as true. Similarly in Ex.P.32, while writing

about the history, the witness admitted that firstly it was
72

written as ‘accidental’ and then it was scored out and

above that, it was mentioned as ‘suicidal burns’ as per

Ex.P.32(c). In Ex.P.33 on page No.1, at the downwards,

at the complaint column in front of H/o. it is written as

‘suicidal burn’. Therefore, the documents Exs.P.21 and

P.32 so also P.33 go to show that the corrections are made

in the said documents and in place of ‘accidental’ it is

mentioned as ‘suicidal burn’.

As per the evidence of P.W.33-investigation officer

during the course of cross examination, he has also

deposed and admitted that in Ex.P.50 in front of H/o., it is

written as ‘accidental burns’ and it is still as it is.

Therefore, the documents Exs.P.21, P.32 and P.50 are

consistent with Ex.P.20-the dying declaration and the oral

evidence of the doctor (P.W.13) and Taluka Executive

Magistrate (P.W.26) who recorded the dying declaration

under Ex.P.20. We have also perused the decision relied

upon by the learned Senior Advocate in case of SANJAY
73

Vs. STATE OF MAHARASHTRA reported in (2007) 9 SCC

148. In para No.16, Their Lordships have held as under:

“In our opinion, in view of the different
dying declarations, it would not be safe to
uphold the conviction of the appellant and we
have to give him the benefit of doubt. It cannot
be said in this case that the prosecution has
proved the appellant’s guilt under section 306
IPC of abetting the suicide beyond reasonable
doubt.”

31. We have also perused the decision in case of

CHINNAMMA Vs. STATE OF KERALA reported in

(2004)12 SCC 244. In para No.6 of the said decision,

Their Lordships have held as under:

“6. We will now examine the contents of
the second dying declaration, Ex. P-10 recorded
by the Magistrate on 14.7.1989. It should be
noted here that this was a statement recorded
about six days after the incident in question
during which time she was being looked after in
the hospital by her father and other relatives.

This statement of the deceased was recorded in
74

the presence of the Duty Doctor who had
certified her to be conscious and coherent to
give a statement. In this statement which is in
the form of questions and answers, the
deceased told the Magistrate that on last
Saturday (8.7.1989), she took food for piglings
from the kitchen of her husband’s house, and
as soon as she entered the kitchen, she got a
beating on the back of her head. That was by
her sister-in-law whose name is Chinnamma.
She then fell down and became unconscious.

She then states that while she was
unconscious, the flames started and there was
smell of kerosene. To a question asked by the
Magistrate, she states that it was her sister-in-
law who beat her, therefore, she suspects that
her sister-in-law set her body on fire. While
answering a question as to who all were
attending on her, she said that her father,
mother, two brothers, two sisters and her
husband were attending on her. In regard to
the reason for the attack, she states that there
was some talk that she had done some evil
magic on her husband; therefore, her husband
was not loving his sister (the appellant) after
75

their marriage. A careful consideration of this
dying declaration made about fourteen days
before her death, shows that in this statement
she states that when she entered the kitchen,
she was struck on the back of her head which
she assumes was by her sister-in-law (the
appellant). She then states that she became
unconscious thereafter and when she regained
consciousness, she saw flames and smelt
kerosene. She also says that she suspected her
sister- in-law of having set her on fire. The
motive given for this attack by the appellant in
this dying declaration was that the appellant
had suspected the deceased of having cast
certain evil magic on her husband because of
which he stopped loving his sister, the
appellant. A comparison of these two dying
declarations, in our opinion, shows certain
glaring contradictions. In the first dying
declaration, we have noticed that there was an
incident on the previous day when she desired
to go to her mother’s house and got dressed up
for the same. Her husband did not allow her to
go to her mother’s house. But the next day,
when she got dressed again to go to her
76

mother’s house, the appellant came and
standing behind her, hit her on the back of her
head when she fell on the floor and she saw the
appellant taking kerosene which was kept in
the room and pouring it on her chest and
thereafter she felt the heat and ran outside the
house and fell unconscious. The factum of she
having seen the appellant taking out the
kerosene from the room and pouring the same
on her was not spoken to by her in her second
dying declaration. This fact has some relevance
while appreciating the correctness of the two
dying declarations because if really she was
conscious and had seen the appellant take the
kerosene and pouring the same on her, she
would not have forgotten to mention it again in
her second dying declaration. Again, while she
was certain that it was her sister-in-law (the
appellant) who poured the kerosene on her and
set her on fire as per her first dying declaration;
in the second dying declaration, she was not so
sure because she says that she only suspected
the appellant of having set her on fire. This is
because she had earlier stated in that
statement that she became unconscious when
77

her sister-in- law had hit her on the head. Even
the motives given in the two dying declarations
are entirely different. These contradictions, in
our opinion, create grave suspicion in our
minds whether the injury suffered by the
deceased was really because of the act of the
appellant or was a figment of the imagination of
the deceased. This suspicion of ours becomes
all the more stronger if we notice the evidence
of PW-11 who treated her in the first instance
when she was taken to Kanjirappally Hospital.
It is seen from the wound certificate Ext. P-11
given by this doctor that when he examined the
deceased for the first time at Kanjirappally
Hospital, she stated that she suffered the injury
due to accidental burning while preparing food
for the piglings. This very important aspect of
the case was rejected by both the courts below
on the ground that the entry made in the
wound certificate might not have been a correct
entry because the witnesses who took her to
the hospital, had stated that she was not in a
fit condition to talk. But then we should
remember that this is an entry made in a
document regularly maintained and the doctor
78

had no reason whatsoever to make an incorrect
entry, and no question was asked to this doctor
when he was in the witness box as to the
correctness of the entry, therefore, due weight
should be given to the contents of this wound
certificate and the courts below ought not to
have rejected the same on the basis of oral
evidence given by certain witnesses. It is also
very relevant to mention here that the deceased
was prevented from going to her mother’s
house by her husband on 7.7.1989 and the
deceased being adamant in spite of protest
from her husband, had decided to go to her
mother’s house again on 8.7.1989 which
indicates that there may be reasons other than
the alleged enmity entertained by the appellant
for suffering by the burn injuries which
ultimately led to her death. From the material
on record, we are also unable to find any strong
motive which would have induced the appellant
to commit such a heinous crime of burning her
sister-in-law to death. The conduct of the
appellant in being present with the deceased
right through the journey to the hospital also
indicates otherwise. There is another important
79

aspect of the case which was not considered by
the two courts below properly i.e. it is the case
of the deceased that she was beaten on the
back of her head with a firewood, consequent to
which she fell down and had lost her
consciousness. Though during the course of
inquest of the dead body, it was noticed that
there was a contusion on the head, the doctor
who examined the deceased before she died as
also the doctor who conducted the post
mortem, did not notice any such injury on the
head which indicates that the first part of the
attack on the deceased by the appellant could
be concocted. At any rate, the prosecution has
failed to establish the first part of the attack by
the appellant on the head of the deceased.
Learned counsel appearing for the State,
however, contended that because of the burn
injuries, the doctors might not have noticed the
head injury caused by the attack with a
firewood on the head of the deceased. We have
perused the medical report which shows that
all the burn injuries suffered by the deceased
were below the neck and on the limbs and so
far as the head is concerned, there was no burn
80

injury. The absence of any injury at the back of
the head of the deceased as also non-recovery
of the firewood which was used in the assault
on the deceased indicates that the first part of
the dying declaration is not true. In this
background, the second part of the dying
declaration that she fell down and became
unconscious also cannot be believed. These
discrepancies would indicate that her
statement made to the doctor, PW-11 that she
suffered burn injuries accidentally while
cooking becomes more probable. Be that as it
may, the abovementioned facts create a doubt
in our mind as to the truthfulness of the
contents of the dying declaration as also the
possibility of she being influenced by her
parents in making the dying declaration cannot
be ruled out”.

32. We have also perused another decision relied

upon by the learned Senior Advocate in case of

MEHIBOOBSAB ABBASABI NADAF Vs. STATE OF

KARNATAKA reported in (2007)13 SCC 112, the relevant
81

paragraph is para No.7, wherein Their Lordships have

held as under:

“Conviction can indisputably be based on
a dying declaration. But before it can be acted
upon, the same must be held to have been
rendered voluntarily and truthful. Consistency
in the dying declaration is the relevant factor
for placing full reliance there upon. In this
case, the deceased herself had taken
contradictory and inconsistent stand in
different dying declarations. They, therefore,
should not be accepted on their face value,
caution, in this behalf, is required to be
applied.”

33. We have further perused another decision of the

Hon’ble Supreme Court in case of KAMLA VS. STATE OF

PUNJAB reported in (1993)1 SCC 1. Para No.8 of the said

decision is relevant, which reads as under:

“8. If we examine all these dying
declarations one by one we notice glaring
inconsistencies as to who exactly poured
kerosene oil ad set fire or whether she caught
82

fire accidentally. Suicide however is ruled out.
In Ex. PB/2 recorded by P.W. 2 the deceased
stated that her mother-in-law sprinkled
kerosene from behind and burnt her. In the
next statement Ex. DA recorded by Dr. Jaison
Chopra, C.W. 1, she is alleged to have stated
that her clothes got burnt catching fire from the
stove, thereby indicating that it was an
accident. In the third statement Ex. PJ
recorded by C.W. 2 she was rather vague as to
who exactly poured kerosene and set fire on her
and she only stated that it could be possible
that her mother-in-law and father-in-law might
have set the fire after pouring kerosene oil. On
September 30, 1979 Ex.PD was recorded in the
presence of three doctors, P.W. 7, P.W. 3 and
C.W.I wherein she stated that she turned to the
store and she heard her mother-in-law and
father-in-law talking behind her and suddenly
they poured kerosene and they set her on fire.
The trial court and the High Court discarded
the other statements and relied only on
Ex.PB/2 recorded by P.W. 2 wherein she
implicated only her mother-in-law. So far Ex.
DA recorded by C.W.I is concerned, the High
83

Court pointed out that C.W. 1 was also present
when Ex.PD was recorded and that at any rate
there was no occasion for C.W. 1 to record such
statement and that he must have done the
same at the instance of the accused. After
having carefully examined the record and facts
and circumstances, we do not think that a
remark of this nature against C.W. 1, a
responsible doctor is called for. The mere fact
that C.W. 1 Dr. Jaison Chopra was present
when Ex. PD was recorded on the next day
does not necessarily mean that he could not
have recorded Ex. DA-on the previous day. As a
matter of fact, even in Ex. PD recorded by a
team of doctors, she implicated both mother-in-
law and father-in-law whereas in Ex.PB/2 she
implicated only her mother-in-law. This itself
shows that she was bent upon implicating both
of them at a later stage. In this context it is also
noteworthy that D.W. 2, the husband of the
deceased supported the plea of the accused. He
deposed that both the accused namely his
mother and father were away to Dandi Swami
Mandir on the day of occurrence and that at
about 8.15 A.M. he heard the shrieks raised by
84

the deceased from the kitchen. He picked up a
blanket and went running into the kitchen
apprehending that she might have caught fire
due to busting of the gas cylinder. He covered
her with the blanket and brought her out and
his clothes also caught fire and he became
unconscious and regained consciousness in the
hospital. In the cross-examination by the
prosecution he denied the suggestion that he
made a false statement with a view to save his
parents. The deceased in all her dying
declarations has clearly stated that her
husband namely D.W. 2 came and rescued her.
Therefore, D.W. 2’s evidence cannot simply be
brushed aside on the ground that he might
have given such a version to save his parents
and his evidence further shows that the
occurrence could be due to accident. Viewed
from this angle also the version given in the
statement made before C.W. 1 in Ex. DA that it
was due to accident, is not improbable. In Ex.
PJ she only expressed a suspicion against both
her mother-in-law and father-in-law. The
accused examined D.W. 1 Satpal an attesting
witness of the statement Ex. PJ. He supported
85

the defence version. Thus it can be seen that
there are glaring inconsistencies in these dying
declarations. Both the courts below, however,
held that P.W. 2 Dr. Rupinder Singh is a
reliable and independent witness, therefore the
statement recorded by him has to be accepted
and accordingly convicted the appellant. We
must observe that P.W. 2 simply recorded the
statement of the deceased but the contents of
that statement have to be subjected to a close
scrutiny in the light of many other
circumstances since the conviction has to be
based on the sole dying declaration Ex.PB/2. A
dying declaration should satisfy all the
necessary tests and one such important test is
that if there are more than one dying
declaration they should be consistent
particularly in material particulars. Just like
P.W. 2, P.W. 7, P.W. 3 and C.W.I are also
respectable doctors and independent witnesses
who spoke about the contents of Ex. PD in
which she implicated both her father-in-law
and mother-in-law specifically as having
participated in the crime. Under these
circumstances, the irresistible conclusion is
86

that the dying declarations are inconsistent
and in such a situation we just cannot pick out
one statement namely Ex.PB/2 and base the
conviction of the appellant on the sole basis of
such a dying declaration. The courts have
cautioned that in view of the fact that the
maker of the statement cannot be cross-

examined, the dying declaration should be
carefully scrutinised. In the instant case the
deceased was wavering for the reasons best
known to her. The inconsistency between
Ex.PB/2 and Ex. PD is enough to manifest the
same. That being so, we do not think that
either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya
Sagar, C.W. 2 who claimed to have recorded Ex.
DA and Ex. PJ should be blamed. Having given
our earnest consideration, we feel that under
these circumstances it is highly unsafe to
convict the appellant on the sole basis of the
dying declaration Ex.PB/2 recorded by P.W. 2.
In the result the conviction and sentence
passed against the appellant are set aside and
the appeal is allowed. If she is on bail, her bail
bonds shall stand cancelled”.

87

34. We have also perused one more decision

reported in case of STATE OF PUNJAB VS. PARVEEN

KUMAR reported in 2006(2) SCC (Criminal) 146. The

relevant paragraph is para No.10, which reads as under:

“While appreciating the credibility of the
evidence produced before the court, the Court
must read the evidence as a whole and come to
a conclusion as to its genuineness and
truthfulness. The mere fact that two different
versions are given but one name is common in
both of them cannot be a ground for
convicting the named person. The Court must
be satisfied that the dying declaration is
truthful. If there are two dying declarations
giving two different versions, a serous doubt is
created about the truthfulness of the dying
declarations. It may be that if there was any
other reliable evidence on record, this Court
could have considered such corroborative
evidence to test the truthfulness of the dying
declarations. The two dying declarations,
however, in the instant case, stand by
themselves, there is no other reliable evidence
on record by reference to which their
88

truthfulness can be tested. It is well settled
that one piece of unreliable evidence cannot be
used to corroborate another piece of unreliable
evidence. The High Court while considering the
evidence on record has rightly applied the
principles laid down by this Court in
Thurukanni Pompiah Vs. State of Mysore and
Kushal Rao Vs. State of Bombay. “

35. Therefore, looking to the above referred

decisions of the Hon’ble Apex Court cited by the learned

Senior Advocate and also the principles enunciated in the

above said decisions, after perusing the material, we are of

the opinion that so far as the oral dying declarations, said

to have been made by the deceased Mamatha in front of

the prosecution witnesses referred above, there is total

inconsistency, they are self contradictory and they are not

said to be truthful and not worth believable. The said oral

dying declarations will not inspire confidence of this

Court. Therefore, they cannot be relied upon in convicting

the accused persons. The written dying declaration under
89

Ex.P.20, coupled with the oral evidence of P.Ws.13 and 26

so also the documents Ex.P.21 and P.32, is reliable that it

is the dying declaration made by the deceased Mamatha,

wherein it is stated that she caught fire accidentally to her

saree when she was boiling the milk and curry and as the

boy was weeping and attention was drawn towards him,

the fire covered her entire body. There is no reason for us

to disbelieve the evidence of P.Ws.13 and 26 as the

prosecution itself has relied upon their evidence. Ex.P.20

has been proved with the help of worth believable material

and it rules out the possibility of the death either as

homicidal or suicidal but it is because of the accidental

burns.

36. We have perused the evidence of C.K. Revanna

(P.W.10). In his examination in chief, at para No.12,

P.W.10 has deposed that from there, at 11.30 a.m., P.W.1

came to women’s police station and he lodged one

complaint. The PSI after receiving the said complaint,
90

asked P.W.1 that he can wait nearby the hospital and he

will send his staff. Thereafter, at about 12.30 noon, two

police constables came to hospital. At that time, Mamatha

stated before the police in detail as to what had happened.

To the said statement, the police obtained her signature

and went back to the police station. Therefore, this is

another dying declaration said to have been given by the

deceased Mamatha in detail and her signature is also

obtained to the said statement. But it has not been

produced before the Court to make it clear to the Court to

know as to what had been stated by the deceased

Mamatha in the said statement. In this connection, the

defence has also cross examined the investigation officer

(P.W.33) who has deposed in his evidence that when he

took up the file of the investigation, the women police

station diary and the statement of the deceased were not

at all in the file. Therefore, the oral evidence of the

investigation officer also makes it clear that the statement

given by the deceased before the women police which was
91

in detail and which was signed by her has been ultimately

suppressed by the police and not produced before the

Court. Therefore, it raises a reasonable doubt in the mind

of the Court as to the case of the prosecution that it is

either homicidal death or suicidal death. Apart from that,

an adverse inference has to be drawn against the case of

prosecution under the provisions of Indian evidence Act

that had they produced the said statement, the contents

of the statement of Mamatha would have gone against the

case of prosecution and that was the reason, they have

withheld the said document.

37. There is also charge against the appellant-

accused No.1 that he along with that all the other

accused persons including accused No.4 Gunavati who

has been acquitted from the case were giving physical and

mental harassment to deceased Mamatha in connection

with the additional dowry amount of Rs.50,000/-.
92

38. Let us examine the material produced by the

prosecution to ascertain whether the prosecution has

placed cogent and acceptable material in proof of the

charge and whether the learned Sessions Judge is correct

in relying on such material and coming to the conclusion

that prosecution proved the charge for the offence under

Section 498A of IPC.

P.W.1 Siddojirao is the father of deceased Mamatha

and father-in-law of accused No.1. He has deposed that

accused persons are the native of Davangere and he is the

native of Channagiri. Earlier to the marriage, accused

persons came to his house and they liked his daughter

Mamatha. One month prior to the marriage, talks were

held in the house of complainant at Channagiri wherein

accused persons and some other persons from the side of

the accused were also present. At that time, from the side

of bride P.W.2, Kubendroji Rao-C.W.2, Shivaji Rao and his

relative Ningoji Rao were also present. At the time of

marriage talks, accused demanded Rs.2 lakhs cash and
93

15 tholas of gold as dowry. The complainant told that it is

not possible to pay that much amount and gold. Then his

relatives and other family members asked him to agree for

Rs.1.5 lakhs cash and 10 tholas of gold by way of dowry,

for which, both the parties have agreed. As decided, he

kept ready Rs.1 lakh cash and 10 tholas of gold. On the

date of marriage, as told by accused persons, he put 10

tholas of gold ornaments on his daughter and handed over

Rs.1 lakh cash to the hands of accused No.3 Eeroji Rao

and told the accused that remaining Rs.50,000/- he will

pay little later on the ground that he has some financial

problem, for which, accused also agreed. He further

deposed that for about three months after the marriage

his daughter was happy in the house of the accused.

Complainant also used to visit the house of the accused.

After some time, alleging that remaining Rs.50,000/- as

agreed was not given to the accused, they started giving

ill-treatment and harassment to her. Once the accused

persons had assaulted her and sent her out of the house.
94

Deceased Mamatha told before him that for the remaining

amount, accused were giving ill-treatment to her. When

accused assaulted his daughter, she had come to his

house. They advised her and sent her back to the house

of accused persons and also advised the accused persons

not to give ill-treatment to her and went back to

Channagiri. After that, for about 25 days her daughter

was looked after well by the accused, thereafter again

accused started assaulting her and sent her back to his

house. Then she was staying in his house. One or two

months thereafter accused No.1 filed the case seeking

divorce against Mamatha in the family Court at

Davangere. His daughter also filed maintenance case

wherein an amount of Rs.1,700/- per month was ordered

by the Court as against accused No.1. Then the accused

came for compromise. At that time, complainant told that

if accused No.1 arranges for separate house to Mamatha

and accused No.1, he will send his daughter. Accordingly,

accused No.1 took a separate house at Vinobhanagar, 9th
95

cross, and accused No.1 and his daughter were staying in

the said house. Thereafter, his daughter became pregnant

and for some days, complainant asked his wife P.W.3 to

stay along with Mamatha in the house of accused No.1.

After one month, he brought his wife back as there was

nobody in the house of P.W.1. 2-3 days thereafter

Mamatha called them and informed that accused Nos.2

and 3 came to their house and abused her that she has

not brought the remaining amount and asked her to bring

the same. Thereafter, on 8.9.2008 at about 9.45 p.m,

accused No.1 called them and informed that Mamatha has

sustained some injuries and is admitted to the hospital

and asked him to come in the morning and then they went

to the hospital wherein his son-in-law accused No.1

Kumar and his father were present in the hospital.

39. In the cross-examination, he deposed that he

does not remember when he joined the service, but he

retired in the year 2002. He worked as ‘D’ Group
96

employee in the Agriculture department. When he retired

he was working as Attender. He cannot say what his total

salary was when he joined the service. So also, he cannot

say what his salary was at the time of his retirement. He

has deposed that four years prior to the marriage of

Mamatha he had performed the marriage of his daughter

Suma and six years earlier to that he performed the

marriage of another daughter Prema. He admitted the

suggestion that in Maratha community there is a

customary practice to give gold ornaments to the bride as

well as to the bridegroom. He does not know the

goldsmith who prepared the ornaments for the marriage of

Mamatha. Even he cannot say the year in which he got

the ornaments ready. He voluntarily deposed that to

perform the marriage of their daughters, out of his salary,

he got the ornaments ready in advance and he used to pay

to the goldsmith every month in connection with the said

ornaments. When he got prepared the ornaments, the

value of the gold for one savaran was Rs.10,000/-. He
97

admitted the suggestion that one week prior to the

marriage of accused No.1, the marriage of accused No.4

Gunavathi was performed and witness shown ignorance to

the next suggestion that after the marriage accused No.4

is staying at Gokak in the house of her husband. Witness

shown his ignorance to the fact that the house of sister-in-

law of accused No.4 is in Poona and her name is Tulasa

Bai and Talasa Bai’s husband is one Suresh Rao

Kasbekar. He even shown his ignorance to the fact that he

does not know that because of ailments said Suresh Rao

Kasbekar has expired in the year 2006 and due to his

death, accused No.4 and her husband was staying at

Poona to look after her sister-in-law. P.W.1 further

deposed that in Ex.D1 there is no mention about payment

of the dowry amount, but on the date mentioned in the

seal, they made payment of dowry amount. He denied the

suggestion that he was not capable to pay the dowry in

the form of cash or kind out of his salary. He is having

landed property, house property, buffaloes and his wife is
98

doing agriculture and dairy farming. But he has not given

any documents to show that there was land and dairy

farming. It is deposed that on the date of the marriage,

they put gold ornaments on Mamatha and eight days prior

to that, they have given Rs.1 lakh. He has deposed that

when COD police came for investigation he came to know

that the women police have got changed his complaint.

He has admitted that when his daughter was staying

separately at 9th cross house, there were no complaints.

P.W.2 Kubendroji Rao has deposed that the marriage

talks took place in the house of P.W.1 at Channagiri and

on the side of the bride, himself, Channa Veeroji Rao,

Shivaji Rao, Ningoji Rao and parents of bride were

present. On the side of accused, four accused persons

were present. In the marriage talks, accused No.3 Eeroji

Rao demanded Rs.2 lakhs cash and 15 tholas of gold and

also to perform the marriage. But P.W.1 did not agree for

the same. Then after negotiations, it was agreed to give

Rs.1.5 lakhs cash and 10 tholas of gold and also
99

performance of marriage by P.W.1. Accused also agreed for

the same. Before marriage P.W.1 gave Rs.1 lakh to the

hands of Eeroji Rao, father of accused No.1 and at the

time of marriage, 10 tholas of gold ornaments were put on

bride and bridegroom. After the marriage, Mamatha was

staying in the house of her husband. They were living

happily for about one year. Thereafter, Mamatha started

to come to Channagiri often. The accused were insisting

her to bring further amount Rs.50,000/- which was

agreed at the time of marriage.

In the cross-examination, he deposed that he has

not stated as per Ex.D3 and D4. Earlier to the marriage,

he had not gone to the house of the accused. He does not

know who visited the house of the accused. Earlier to the

marriage, when the accused came to the house of P.W.1,

P.W.1 gave Rs.1 lakh cash into the hands of accused No.3

and at the time of marriage, 4 tholas of gold ornaments

were put on accused No.1 and 6 tholas of gold ornaments

to bride.

100

P.W.3 Smt.Padma, mother of deceased Mamatha has

deposed in her evidence that one month prior to the

marriage, there were marriage talks. The said talks took

place in the house of Eeroji Rao at Davangere and earlier

to that accused came to Channagiri to their house and

after seeing her daughter they said that the alliance is

agreeable to them. She further deposed that, at the

marriage talks, accused No.3 and his family members

demanded Rs. 2 lakhs cash and 15 tholas of gold and to

bear the marriage expenses. Her husband told that it is

not possible to pay that much and the elders gathered

there negotiated to give Rs. 1.5 lakhs cash and 10 tholas

of gold in the form of ornaments to be put on bride. She

has further deposed that Rs.1 lakh cash was given by her

husband at the time of marriage into the hands of accused

No.3 Eeroji Rao.

In the cross-examination she has deposed that

during marriage talks, Basoji Rao was not present. Her

husband does not know which goldsmith has prepared 10
101

tholas of gold ornaments. She admitted the suggestion

that in their community there is a customary practice to

give gold ornaments and clothes to bride and bridegroom

according to ones capacity. Witness voluntarily deposed

that accused forcibly got the said things. When the

marriage talks took place in the house of Eeroji Rao,

herself and her husband were present. The cash and gold

were given at the time of marriage itself. She has admitted

the suggestion that accused No.1 was getting treatment to

her daughter at Mruthyunjay hospital for her pregnancy.

She admitted that one week prior to the marriage of

deceased Mamtha, marriage of accused No.4 was

performed. She also admitted that accused No.4’s sister-

in-law Tulasa Bai and her husband Surya Kumar were

staying in the house of Surya Kumar. But she has shown

ignorance that Surya Kumar has expired in the year 2006.

She denied the further suggestion that as Surya Kumar

expired, in order to look after the family affairs of Tulasa

Bai, accused No.4 Gunavati was staying at Poona.
102

Ningoji Rao (P.W.9) has deposed in his evidence that

he knows P.W.1-complainant and his daughter Mamatha.

About 5-6 years back, the marriage of Mamatha was

performed with Kumar. Before the marriage, there was an

engagement talk and he was present in the engagement

talks, which took place in the house of P.W.1 at

Chennagiri. He knows accused Nos.2 to 4. Accused Nos.2

and 3 are the parents of accused No.1 and accused No.4 is

the younger sister of accused No.1. Accused Nos.1 to 3

were present in the marriage engagement talks. The

persons on the side of the accused demanded 15 tolas of

gold and Rs.2.00 lakh cash as dowry. P.W.1 told that it

was not possible for him to pay the said amount. After

discussions between both parties, it was agreed that the

cash of Rs.1.00 lakh and 10 tolas of gold is to be given to

accused persons. It was further agreed that the same was

to be given in the form of dowry. Before the marriage,

P.W.1 gave the amount that was agreed and the gold was

given in the form of ornaments at the time of marriage.
103

P.W.1 told that remaining amount of Rs.50,000/- will be

paid later. After the marriage, Mamatha was alright for

about six months. Thereafterwards, quarrel started

between Mamatha and her husband for the remaining

amount of Rs.50,000/-. For the said remaining amount,

the husband of Mamatha and his parents were

presurrising Mamatha. Presurrise means they were

making attempts to compulsorily bring the same by

Mamatha. In the cross examination, he has deposed that

himself and the complainant belongs to the same caste

and in their caste, there is a practice/custom that the

persons on the side of bride groom to give varopachara to

the bridegroom. In his presence, there was a talk for the

payment of said varopachara. When the witness was

asked whether there were talks to give anything to the

bride, the witness answered that out of 10 tolas of gold,

one golden chain was to be given to Mamatha and

remaining 5 tolas of gold to be given to bride groom. The

marriage engagement talks took place 20 days before the
104

marriage. After the marriage, he did not go to the house

where Mamatha was staying. He cannot say the day,

date, month and the year of payment of Rs.1.00 lakh by

P.W.1. Even he cannot say on which day, whether it was

full moon day or it was a new moon day (amavasya day),

the payment was made. He denied the suggestion that

there were no such talks for payment of dowry amount

and he is deposing falsely. So except the oral talks, there

is no list prepared in writing.

40. Coming to the oral evidence of P.Ws.1 to 3 and 9

whose evidence we have already referred, we do not find

any consistency in their evidence. P.W.9 has deposed in

his evidence that it was agreed to pay Rs.1.00 lakh and 10

tolas of gold, whereas P.Ws.1 to 3 have deposed that it

was agreed to pay Rs.1,50,000/- cash and 10 tolas of

gold. Regarding the payment of cash of Rs.1.00 lakh,

again there is no consistency. The complainant (P.W.1)

has deposed in his evidence that Rs.1.00 lakh as well as
105

the gold ornaments were given at the time of marriage.

P.W.9 has deposed that it was given earlier to the

marriage. P.W.2 has deposed that Rs.1.00 lakh was paid

earlier to the marriage. P.W.3, the mother of the

deceased, has deposed that Rs.1.00 lakh cash was given

by her husband at the time of marriage into the hands of

accused No.3-Eerojirao. Regarding the place of marriage

engagement talks, the evidence of P.Ws. 1 and 2 shows

that it was taken place in the house of Channagiri,

whereas P.W.3 has deposed that it was in the house of

accused at Davanagere. There is no consistency as to

whether the agreed amount to be payable in the form of

cash is Rs.1.00 lakh or Rs.1,50,000/-. As per the case of

prosecution, the main reason for giving the ill treatment to

the deceased Mamatha by the accused is the non payment

of remaining dowry amount of Rs.50,000/- and for that

reason, they were insisting and giving the ill treatment,

both physical and mental. If the evidence of P.W.9 is

taken into consideration, the agreed amount itself is
106

Rs.1.00 lakh. When that is so, the question of the

accused demanding the further amount of Rs.50,000/-

does not arise.

41. When it is the case of prosecution that the

complainant (P.W.1) gave Rs.1.00 lakh cash and 10 tolas

of gold by way of dowry which fact is denied by the

defence, the burden is on the prosecution to show the

sources of income for P.W.1. For that it is elicited during

the course of cross-examination of P.W.1 that he was

working as peon in the agricultural department and when

he retired, he was the attender. When he was asked

about the salary at the time of joining and retirement, he

has deposed that he is not able to say the same. He has

admitted that four years earlier to this incident, he

performed the marriage of daughter Prema. Six years

earlier to this incident, he performed the marriage of

another daughter Suma. Though P.W.1 has deposed that

they are having the agricultural property and his wife
107

P.W.3 is doing dairy farming, vending of milk, but it was

seriously challenged in his cross examination and

admittedly, no documents were produced to show that

there was landed property and they were also doing dairy

farming.

Regarding the ornaments, when P.W.1 was asked, he

was not able to give the name of the goldsmith that from

whom they got prepared the ornaments nor they have

produced any receipts showing that the gold ornaments

were purchased in the shop. Therefore, looking to these

materials and as we have already observed, there is no

consistency in the evidence of the prosecution witnesses

and the evidence is not worth believable.

42. It is also the prosecution case that the deceased

Mamatha made the statement before her parents about

the demand for the remaining amount of Rs.50,000/- and

in that connection, the accused giving the ill treatment

both physical and mental and because of that reason
108

when the ill treatment was untolerable, she committed

suicide or the accused must have committed murder by

pouring the kerosene. When the death itself is because of

accidental fire, which we have already answered while

considering the dying declarations, it goes to the root of

the matter so far as the charge under Section 498A of IPC

is concerned.

43. Apart from that the conduct of accused No.1 is

very important in appreciating the case of the prosecution

as well as the defence of the accused. It has come in the

evidence of prosecution witnesses that it is the accused

who covered the body of the deceased Mamatha with the

bed sheet when they came out of the house and he

accompanied her taking her to the hospital in the auto

rickshaw of Venkatesh (P.W.8). It has also come in the

evidence of P.W.1 himself when they went to the hospital,

accused No.1 was present in the hospital and it has also

come through the mouth of another witness that when
109

they went to the hospital, accused No.1 was applying the

ointment to the body of Mamatha. This conduct of

accused No.1 goes to show that immediately after the

incident, he took her to the hospital for immediate

treatment. If it was his real intention to commit the

murder of the deceased Mamatha because of dowry

amount of Rs.50,000/-, he could not have been assisted

the deceased by immediately attending and taking her to

treatment. Even it has come in the evidence of police

witnesses that they have apprehended accused Nos.1 and

3, in the house of accused No.3. This also goes to show

that accused No.1 never absconded. So this conduct of

accused No.1 is relevant under the provisions of Section 8

of the Indian Evidence Act. The learned Senior Advocate

has also relied upon one decision of the Hon’ble Supreme

Court in case of GIRIDHAR SHANKAR TAWADE Vs.

STATE OF MAHARASHTRA reported in 2002 SCC (CRI)

971. Para Nos.16 to 18 of the decision is relevant. They

read as under:

110

“16. We have already noted Section 498-A
herein before in this judgment and as such we
need not delve into the same in greater detail
herein excepting recording that the same
stands attributed only in the event of proof of
cruelty by the husband or the relatives of the
husband of the woman. Admittedly, the finding
of the trial Court as regards the death negated
suicide with a positive finding of accidental
death. If suicide is rule out then in that event
applicability of Section 498-A can be had only
in terms of Explanation (b) thereto which in no
uncertain terms records harassment of the
woman and the Statute itself thereafter clarifies
it to the effect that it is not every such
harassment but only in the event of such a
harassment being with a view to coerce her or
any person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand- there is
total absence of any of the requirements of the
Statute in terms of Section 498-A. The three
letters said to have been written and as noticed
earlier cannot possibly lend any credence to the
111

requirement of the Statute or even a simple
demand for dowry.

17. As regards the core issue as to
whether charges under Sections 306 and 498-
A of the Indian Penal Code are independent of
each other and acquittal of one does not lead to
acquittal on the other, as noticed earlier, there
appears to be a long catena of cases in
affirmation thereto and as such further dilation
is not necessary neither we are included to do
so, but in order to justify a conviction under
the later provision there must be available on
record some material and cogent evidence.
Presently, we have on record two inconsistent
versions of the brother and the cousin, as such
no credence can be attributed thereon – the
documentary evidence (namely, those three
letters), in our view, falls short of the
requirement of the Statute: even on an
assumption of the fact that there is no
contradiction in the oral testimony available on
record, the cousin goes to the unfortunate girl’s
in-laws’ place and requests the husband to
treat her well-at best some torture and a
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request to treat her well. This by itself would
not bring home the charge under Section 498-
A. Demand for dowry has not seen the light of
the day.

18. A faint attempt has been made during
the course of submissions that Explanation (a)
to the section stands attracted and as such, no
fault can be attributed to the judgment. This, in
our view, is a wholly fallacious approach to the
matter by reason of the specific finding of the
trial Court and the High Court concurred
therewith that the death unfortunately was an
accidental death and not suicide. If suicide is
left out, then in that event question of
applicability of Explanation (a) would not arise –
neither the second limb to cause injury and
danger to life or limb or health would be
attracted. In any event the willful act or
conduct ought to be the proximate cause in
order to bring home the charge under Section
498-A and not dehors the same. To have an
event sometime back cannot be termed to be a
factum taken note of in the matter of a charge
under Section 498-A. The legislative intent is
113

clear enough to indicate in particular reference
to Explanation (b) that there shall have to be a
series of acts in order to be a harassment
within the meaning of Explanation (b). The
letters by themselves though may depict a
reprehensible conduct, would not, however,
bring home the charge of Section 498-A against
the accused. Acquittal of a charge under
Section 306, as noticed hereinbefore, though
not by itself a ground for acquittal under
Section 498-A, but some cogent evidence is
required to bring home the charge of Section
498-A as well, without which the charge cannot
be said to be maintained. Presently, we have no
such evidence available on record”.

44. The factual matrix of this case is squarely made

applicable to the facts of the present cases also. As we

have already observed that regarding the demand for

dowry amount and payment of Rs.1.00 lakh towards

dowry amount and 10 tolas of gold, there is no

consistency in the evidence of prosecution witnesses and

on the contrary, their evidence is contradictory of each
114

other. Therefore, the question of giving the ill treatment

and harassment to the deceased in connection with the

remaining dowry amount does not arise at all, that too

when it is established by the defence with acceptable and

cogent material that the death is the result of accidental

burns. Therefore, the contention of the prosecution that

the deceased was subjected to ill treatment and

harassment in connection with the dowry of Rs.50,000/-

and that was the main reason for her to take such a

drastic step, cannot be accepted.

45. No doubt, the prosecution has produced the

document Ex.P.3 which is the complaint by the deceased

Mamatha to the office of CPI, Chennagiri. It is dated

7.3.2005. The prosecution has also produced the other

document i.e., Ex.P.29. By this document, the

prosecution has relied upon the entry regarding the

history of assault that deceased Mamatha said to have

been assaulted by Kumar, then Eeroji Rao and
115

Shanthamma on 6.3.2005 at 11.00 a.m. manhandling.

No doubt perusing the said document Ex.P.29, there are

five injuries said to have been sustained by her. The

prosecution has also relied upon the documents i.e., the

statements under Exs.P.39, 40, 41, 42 and 43. We have

perused the said statements given by accused Nos.1,

deceased Mamatha and the statement of Siddoji also. They

are the statements in connection with the incident in the

year 2005 i.e., three years earlier to the present incident.

Perusing the contents of the statements, no doubt, the

accused persons have undertaken that as decided

henceforth, they will treat Mamatha properly and they will

see that no ill treatment will be meted out to her. Looking

to the statement of the complainant (P.W.1), who is the

father of deceased Mamatha, he has also mentioned in his

statement that as decided, they will advise their daughter

and they will take her to the house of her husband and

they will give full co-operation for the understanding and

lead the happy life of couple. Ex.P.42 goes to show that it
116

is an endorsement issued by the police to the deceased

Mamatha wherein it is stated that for the compromise as

both were agreed and as both sides gave the statements

not to continue the enquiry, it was closed. Therefore,

these documents would show that the said incident was

closed by advising both the parties. Therefore, only

because of that incident, it cannot be contended by the

prosecution now that it also goes to prove the charge

under section 498A of IPC. There is no proximity of the

time to have the connection of previous incident with the

present incident. Apart from that, the advice was on both

sides. Even in the statement of P.W.1, it is mentioned

that he advised his daughter also and the matter was

accordingly closed. Under such circumstances, it cannot

be said that those materials go to show and go to prove

the charge under section 498A of IPC.

46. Another contention raised by the prosecution

during the course of arguments is that though in their
117

dying declaration (Ex.P.20), it is stated that as there was a

hole in the kerosene stove, the oil came out, caught fire to

the saree of the deceased Mamatha. But looking to the

contents of Ex.P.2, the spot mahazar, it shows that there

was a gas stove and there is no mention in Ex.P.2 about

the kerosene stove. Therefore, it is the contention of the

prosecution as argued by the learned HCGP that Ex.P.20

is not the dying declaration said to have been given by the

deceased Mamatha and therefore, it cannot be relied upon

by the Court. In this regard, we have perused the

contents of Ex.P.2-spot mahazar dated 10.9.2008, wherein

it is mentioned that towards southern side, from the store

room, there is a kitchen and the daily used provision was

kept there. The measurement of the said room is East-

West 10 ft. and North-South 6 ft. There is a gas stove and

cylinder. From the gas stove, at the distance of 1½ ft.,

there was one plastic bisleri bottle of the capacity of two

litres and at the bottom of the said bottle; there is blue

colour kerosene oil. There was also one match box
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manufactured by Key Company and there were match

sticks. The match sticks and the bisleri bottles were

packed separately. The incident took place on 8.9.2008 at

about 9.00 – 9.30 p.m. Therefore, two days after the

incident, the spot mahazar (Ex.P.2) was conducted by the

police. It was not made clear as to who gave the key of the

house to the police and how the police entered into the

said house. If the house was already opened, then

whether the police deputed any police official to keep till

the spot mahazar was conducted. There is no proper

evidence on the side of the prosecution. We have also

perused the evidence of witnesses in this connection.

P.W.1 has deposed in para No.26 that after lodging the

complaint, the police came and enquired with them.

During investigation, the police asked him to show the

residential house of deceased Mamatha. He has shown

the house. The police conducted the mahazar. At that

time himself, P.W.2 and Shjivaji Rao were present. There

was gas stove in the house. Two liters bottle having ½
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liter kerosene oil was also there. They all put signature to

the said mahazar (Ex.P.2). The police have seized the

kerosene bottle. The police had also seized one small

bucket. He has further deposed that whatever he had

stated before the Daffedar of the women police station was

also reiterated before the Court.

P.W.10, at para No.6 of his deposition in the

examination in chief, he has deposed that when mother-

in-law, father-in-law and sister-in-law of the deceased

went from the house, the deceased called her husband for

the meal. Accused No.1 told the deceased that he already

had the meal and asked her to go and have the same. At

that time, the deceased was sitting in the house having

the meals plate. At that time, the accused Kumar brought

the kerosene oil in a plastic bottle poured it on her and lit

fire to her.

Referring to these materials, in reply, it was

contended that as there was no mention of the kerosene

stove in the kitchen of the said house, Ex.P.20 cannot be
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disbelieved which is proved with cogent and satisfactory

evidence. It is also the contention that in the evidence of

P.Ws.1 and 10, it has come on record that police have also

seized one small bucket and when the incident occurred,

the deceased had the meals plate with food and she was

sitting to have the said food and at that time, accused

No.1 committed the said incident. If that is so, then the

spot mahazar (Ex.P.2) also should have contained about

the presence of lying of the small bucket so also the plate

with the food, which was lying on the floor of the house in

the kitchen, for which there is no mention in spot

mahazar (Ex.P.2). Therefore, the learned Senior Advocate

for the defence is justified in contending that it cannot be

believed that there was no kerosene stove, small plastic

bucket and the meals plate as it was not mentioned in

Ex.P.2. Hence, perusing these materials, both oral and

documentary, we are the opinion that the contentions of

the prosecution that there was no kerosene stove in the

house cannot be accepted only because that there is
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omission to mention about the same in spot mahazar

(Ex.P.2).

47. When the prosecution has failed to prove its case

beyond all reasonable doubt, then under such

circumstances considering the contentions of the learned

HCGP for enhancement of the sentence, does not survive

for consideration.

48. We have also perused the impugned judgment

and order passed by the learned Sessions Judge. Looking

to the reasons adopted by the learned Sessions Judge in

coming to the conclusions in convicting the appellants

accused Nos.1 to 3, it clearly goes to show that the learned

Sessions Judge has not at all considered the important

and materials aspects, both oral and documentary, while

coming to such conclusion. There was wrong reading of

the prosecution material and learned Sessions Judge has

wrongly come to the conclusion in convicting the
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appellant- accused Nos.1 to 3. Though it is the contention

of the prosecution that all the four accused together

poured kerosene and lit fire to the deceased Mamatha, on

the very evidence, accused No.4 Gunavathi has been

acquitted and her acquittal has not been challenged by

the prosecution. Hence, we are of the opinion that looking

to the entire material, both oral and documentary, and on

re-appreciating the same, the judgment and order of

conviction passed by the learned Sessions Judge is not

sustainable in law.

49. Hence, we pass the following order:

(i) The appeal preferred by accused No.1 in Criminal

Appeal No.181/2013 and the appeal preferred by accused

Nos.2 and 3 in Criminal Appeal No.194/2013 are hereby

allowed.

(ii) The judgment and order of conviction impugned

herein is set aside.

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(iii) Accused Nos.1 to 3 are acquitted of all the

charges leveled against them.

(iv) The jail authorities are hereby directed to release

the appellant-accused Nos.1 to 3 forthwith, if not required

in any other case.

(v) Criminal Appeal No.566/2013 preferred by the

State seeking enhancement of the sentence as prayed for

in the said appeal, is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE
Cs/bkp
Ct-Mhp/-