Karnataka High Court
Shettaiah vs State Of Karnataka on 28 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.252 OF 2018
C/W
CRIMINAL APPEAL NO.1110 OF 2016
IN CRIMINAL APPEAL NO.252 OF 2018
BETWEEN:
SRINIVASA @ SEENA,
S/O SANNAIAH,
NOW AGED ABOUT 41 YEARS,
R/O. MALLYUR VILLAGE - 571 124,
T.NARASIPURA TALUK.
... APPELLANT
(BY SRI DR. J.S.HALASHETTI, ADVOCATE)
AND:
STATE OF KARNATAKA,
R/BY BANNUR POLICE STATION,
NOW R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED
27.05.2016 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, MYSURU IN S.C.NO.249/2012 - CONVICTING
THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 AND 498(A) OF IPC
AND ETC.,
IN CRIMINAL APPEAL NO.1110 OF 2016
BETWEEN:
1. SHETTAIAH,
AGED ABOUT 49 YEARS,
S/O LATE SANNAIAH,
2. SMT. MAHADEVAMMA,
AGED ABOUT 69 YEARS,
W/O LATE SANNAIAH,
3. SMT. MANGALAMMA,
AGED ABOUT 39 YEARS,
W/O HUTHCHAIAH,
4. HUTCHCHAIAH,
AGED ABOUT 49 YEARS,
S/O LATE PAKSATTE KUNTAIAH,
ALL ARE R/AT MALLYUR VILLAGE,
T.NARASIPURA TALUK,
MYSURU DISTRICT - 571 124.
... APPELLANTS
(BY SRI P. NATARAJU, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY BANNUR POLICE STATION,
MYSURU DISTRICT,
3
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 5600 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED
27.05.2016 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, MYSURU IN S.C.NO.249/2012 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A) OF IPC AND ETC.,
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J, DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Appeal No.252/2018 is filed by accused No.1/Husband and Criminal Appeal No.1110/2016 is filed by accused Nos.2 to 5 i.e. brother-in-law, mother- in-law, sister-in-law of the deceased respectively and husband of accused No.4.
2. These two appeals are filed by the accused persons against the impugned judgment of conviction and order of sentence dated 27.05.2016 made in 4 S.C.No.249/2012 on the file of II Additional Sessions Judge, Mysuru, convicting accused No.1 under the provisions of Section 302 of IPC and sentencing him to undergo for simple imprisonment for life; convicting accused No.1 under the provisions of Section 498A of IPC and sentencing him to undergo simple imprisonment for a period of 6 months with a fine of Rs.2,000/-; convicting accused Nos.2 to 5 under the provisions of Section 498A of IPC and sentencing them to undergo simple imprisonment for a period of three months with a fine of Rs.10,000/- each with a default clause and accused No.2 is acquitted for the offence punishable under Sections 114/302 of IPC.
3. It is the case of the prosecution that on the basis of the victim's statement dated 16.01.2012, after her death, which was called as dying declaration, the Jurisdictional Police registered a case in Crime No.13/2012 for the offences punishable under Sections 498A, 307, 114 read with Section 34 of IPC. After her death, the original provision under Section 307 of IPC 5 was converted into Section 302 of IPC along with other provisions.
4. It is further case of the prosecution that about 10 years ago, the deceased was married to accused No.1-Srinivas @ Seena. At the time of marriage, the parents of the deceased had given a sum of Rs.10,000/-as dowry and had gifted ear studs and hangings to the deceased. After the marriage, they lived as husband and wife cordially for more than 9 years. Out of their wedlock, one male and one female children were born. Since one year, the sister of accused No.1 i.e. Mangalamma-accused No.4 used to pick up quarrels on petty issues and she assaulted the deceased on her head. When it was reported to the Police, they were advised to live cordially. Thereafter, accused No.1 used to get enraged for every talk and having consumed alcohol, he used to assault her daily and she was leading a life by suffering with pain. Since in the Village, Beereshwara fare was about to commence i.e, three days prior to the incident, accused 6 No.1/Husband demanded a sum of Rs.3,000/- for playing cards. When she refused to give, accused No.1 complained the same to his brother-accused No.2, for which his brother provoked him to kill her. Thereafter, accused No.3- mother-in-law of the deceased, accused No.4-sister of accused No.1 and her husband-accused No.5 had assaulted the deceased and demanded to get the land transferred into her name from her parents, she refused for the same. On 16.01.2012 at about 7-00 a.m., when the deceased was not keeping well, accused No.1 came and pestered her to give money. When she refused, he poured kerosene on her and lit the fire. She was burnt in the fire. Thereafter, she had been shifted to the hospital. On the basis of the above, a complaint came to be registered. After the death of the deceased, the Jurisdictional Police took up investigation and after investigation, filed a charge sheet against accused Nos.1 to 5.
5. On the matter being committed to the learned Sessions Judge, the learned Sessions Judge 7 secured the presence of the accused persons and framed the charges for the offences punishable under Sections 498A, 114 and 302 read with Section 34 of IPC and explained them in the language known to them, who pleaded not guilty and claimed to be tried.
6. In order to prove the case of the prosecution, the prosecution examined PW.1 to PW.21 and got marked material documents as per Ex.P1 to Ex.P22 and material objects at MO.1 and MO.2. After completion of evidence of the prosecution witnesses, the statement of the accused persons were recorded as contemplated under Section 313 of Cr.P.C., who denied the incriminating evidence adduced by the prosecution witnesses and not adduced any evidence.
7. Based on the aforesaid pleadings, the learned Sessions Judge framed three points for consideration, which read as under:
1. "Whether the prosecution proves beyond all reasonable doubt that the accused No.1 has committed the murder 8 of his wife and thereby committed the offence punishable under Section 302 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 to 5 in furtherance of their common intention subjected the deceased to cruelty and thereby committed the offence punishable under Section 498(A) read with 34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 abetted the accused No.1 to murder the deceased and thereby committed the offence punishable under Section 114/302 of IPC?"
8. Considering both the oral and documentary evidence on record, learned Sessions Judge answered point Nos.1 and 2 in the affirmative and point No.3 in the negative, holding that the prosecution has proved beyond all reasonable doubt that accused No.1 has committed the murder of his wife, thereby, committed an offence punishable under Section 302 of IPC. The prosecution has further proved beyond reasonable doubt that accused Nos.1 to 5 in furtherance of their common intention subjected the deceased to cruelty and harassment, thereby committed the offence punishable under Section 498A read with Section 34 of 9 IPC and also held that the prosecution has failed to prove beyond all reasonable doubt that accused No.2 abetted accused No.1 to murder the deceased and thereby, committed the offence punishable under Section 114/302 of IPC. Accordingly, the learned Sessions Judge proceeded to convict the accused persons for the aforesaid offences. Hence, the present criminal appeals are filed by the accused persons.
9. The respondent-State has not filed any appeal against non-imposition of fine amount for the offence punishable under the provisions of Section 302 of IPC as well as acquitting the accused No.2 for the offences punishable under Sections 114/302 of IPC
10. We have heard the learned counsel for the parties.
11. Dr. J.S.Halashetti, learned counsel for the appellant-accused No.1 in Crl.A.No.252/2018 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned 10 Session Judge, convicting accused No.1 and sentenced him to undergo simple imprisonment for life for the offence punishable under Section 302 of IPC is erroneous, contrary to the material on record and cannot be sustained. He would further contend that the trial Court committed a serious error relying on the evidence of PW.1 and PW.13. Though PW.1 was treated as hostile, the evidence of PW.13, who is the Doctor, is untrustworthy to be taken into consideration for appreciation of evidence.
12. He further contended that the dying declaration is said to have been made before the Taluka Magistrate by the deceased in the hospital is highly suspicious one, as initially, the deceased was admitted to Cauvery hospital and at the time, no declaration was given by her. Admittedly, the deceased was suffered more than 60% burnt injuries and she was not in a position to depose anything. Ex.D2 is high risk consent which shows that the patient was unconscious. The Doctor was examined and admitted that he does not 11 know, who has written Ex.D2. There is no seal of the hospital on Ex.D16 which is the dying declaration.
13. He further contended that all panch witnesses including relatives of the deceased have turned hostile except official witnesses. Thereby, benefit of doubt ought to have been given to accused No.1 and he ought to have been acquitted. Alternatively, he further contended that the accused and the deceased were very cordial as admitted by the deceased in her dying declaration and out of their wedlock, they had two children. Only one year prior to the incident, accused No.1 started demanding money of Rs.3,000/- for consuming alcohol and playing cards. When she refused, he complained to his brother- accused No.2. Thereafter, again he demanded to get the land transferred into her name from her parents, when she refused, he was provoked, poured kerosene and lit the fire. It was due to sudden provocation which made the accused No.1 to lost his self control. Unfortunate incident had occurred due to only sudden 12 provocation and the same is not done with any intention. Thereby, it is a clear case falls under the provisions of Section 304 Part I and not under the provisions of Section 302 of IPC. The said aspect is not considered by the learned Session Judge. Therefore, he sought to allow the appeal filed by accused No.1.
14. In support of his contention, learned counsel for the appellant-accused No.1 relied upon the dictum of the Hon'ble Supreme Court in the case of Surinder Kumar Vs. State of Haryana reported in 2011(10) SCC 173 at paragraph-14, which reads as under:
"Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co-tenants in the same premises, their statements were not recorded which means that nobody supported the version the prosecution. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in 13 basing conviction on it, without corroboration. It is the duty of the court to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction. All these principles have been fully adhered to by the trial Court and rightly acquitted the accused and on wrong assumption the High Court interfered with the order of acquittal."
15. Sri P.Nataraju, learned counsel for the appellants-accused Nos.2 to 5 in Crl.A.No.1110/2016 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Session Judge, convicting accused Nos.2 to 5 to undergo simple imprisonment for a period of three months with fine for the offence punishable under Section 498A of IPC, is erroneous, contrary to the material on record and cannot be sustained. He further contended that the trial Court proceeded to convict accused Nos.2 to 5 based on inconsistent and unreliable testimony of official witnesses, is improper. Absolutely, 14 none of the independent witnesses have supported the case of the prosecution. He further contended that the accused persons were residing separately from accused No.1 and they have not at all involved in the alleged offence. The prosecution has failed to prove beyond all reasonable doubt that the involvement of the accused Nos.2 to 5 in the homicidal death of the deceased and there are omissions and contradictions in the prosecution witnesses, thereby, absolutely, there is no material on record as against accused Nos.2 to 5 for the offence punishable under the provisions of Section 498A of IPC as accused Nos.2 to 5 were residing separately. Accused No.1 and the deceased were residing separately from accused Nos.2 to 5 and they were lived cordially more than 9 years. When the unfortunate incident had occurred, accused Nos.2 to 5 were not staying together along with accused No.1 and the deceased. They have been falsely implicated, thereby, the learned Session Judge has not justified in convicting accused Nos.2 to 5 under the provision of Section 498A 15 of IPC. He further contended that all the witnesses to the Mahazar and the relatives of the deceased especially PWs.11, 12, 15 and 16 who are the sister, brother and father of the deceased were turned hostile. Therefore, he sought to allow the appeal filed by the accused Nos.2 to 5.
16. Per contra, Sri Vijayakumar Majage, learned Additional SPP, appearing for the respondent/State while justifying the impugned judgment of conviction and order of sentence passed by the learned Session Judge, contended that PW.1 in categorical terms deposed about the torture given by accused Nos.1 to 5 to the deceased and in Ex.P16-dying declaration, she has specifically stated with regard to the involvement of accused Nos.1 to 5 in the crime on the date of incident and the assault made by them on the deceased. The trial Court considering both oral and documentary material on record as well as medical evidence has rightly come to the conclusion that accused No.1, who is the husband of the deceased has committed the offence 16 under the provisions of Section 302 of IPC and accused Nos.2 to 5 have committed the offence under the provisions of Section 498A of IPC. Though the learned Session Judge, while convicting accused No.1 under Section 302 of IPC has not imposed the fine amount as it was mandatory and the State has not filed any appeal for non-imposition of fine amount, thereby, he has sought to dismiss both the appeals.
17. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present appeals, are:
1. "Whether accused No.1-Srinivasa @ Seena, the husband of the deceased in Crl.A.No.252/2018 has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused No.1 for imprisonment of life under the provision of Section 302 of IPC, in the peculiar facts and circumstances of the present case?
2. Whether accused Nos.2 to 5 in Crl.A.No.1110/2016 have made out a case to interfere with the impugned 17 judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused Nos.2 to 5 for imprisonment for a period of three months under the provision of Section 498A of IPC with a fine of Rs.10,000/- each, in the peculiar facts and circumstances of the present case?"
18. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material including the original records carefully.
19. This Court being the Appellate Court in order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon:-
a) PW.1 - Kenchaiah, the maternal uncle of the deceased, who is residing at Malliyuru Village, where the incident occurred, deposed that about 3 to 4 months prior to the incident, accused No.4 had assaulted the deceased on her head and caused injuries. After hearing about the present incident through Lakshmamma, he went to the 18 house of the deceased and shifted the deceased to K.R.Hospital, Mysuru. The Thasildar came and enquired about the deceased Jyothi and recorded the statement of the deceased before the doctor.
The said statement is called the dying declaration. But, in examination-in-chief, he did not support the fact. He was cross examined by the Public Prosecutor and he was treated as hostile. It is admitted that the prosecution case in its entirety and vital suggestions are admitted by him. He supported the case of the prosecution.
b) PW.2 - Annapurna, the neighbour of the deceased failed to support the case of the prosecution, thereby, she was treated as hostile.
c) PW.3 - Dollaiah, who is a villager and witness to Ex.P3 - Spot Mahazar and Ex.P4-Inquest Report, PW.4-Yajaman Dollaiha and PW.5-Siddaiah also witness to Ex.P4-Inquest report, did not support the case of the prosecution and turned hostile. 19
d) PW.6 - Shivanna, who deposed that he knows the accused and the deceased. He further stated that he does not know the facts of the case and does not advise the accused to look after the deceased properly. The police had not recorded his statement, and thereby he turned hostile.
e) PW.7 - Battaiah, who deposed that he knows the accused and the deceased but he did not know the facts of the case and did not advise the accused. He denied the police statement and did not support the case of the prosecution and turned hostile.
f) PW.8 - Doddaiah and PW.9 - Dollaiah also deposed the same and did not support the case of the prosecution and turned hostile.
g) PW.10 - Dr.Ravi N., who is the doctor, has conducted the postmortem examination of the deceased and has issued the PM report as per Ex.P11. In his examination-in-chief, he deposed 20 that with regard to the injuries noticed by him on the deceased. In cross examination by the defence, it was elicited that he did not notice any residue of kerosene and the deceased had suffered first degree burns and supported the case of the prosecution.
h) PW.11 - Kempamma, the sister of the deceased who is also residing in the same village where the incident had occurred. She is a lady who has scant respect of truth deposed falsely that the deceased was burnt due to the falling of kerosene lamp. She further stated that the police had not recorded her statement. Thereby, she has supported the case of the prosecution.
i) PW.12 - Thimmaiah the brother of the deceased who deposed that both the accused No.1 and the deceased were happily leading life and did not support the case of the prosecution and turned hostile.
21
j) PW.13 - Dr.B.S.Madhu, who is the Medical Officer, K.R.Hospital, Mysuru, who deposed that on 16.01.2012 at about 4-15 p.m., the Thahasildar, Sri Manjunath Swamy came to the hospital and sought report as to whether the injured was in fit condition to give a statement. Accordingly, the doctor examined her and gave a report that she was fit to give a statement. The Tahsildar-PW.17 recorded the statement of the injured as per Ex.P16 during 4-30 to 5-00 p.m., at that time, he was also present there. Thereafter, he certified that injured Jyothi was in a fit state of sound mind and conscious at the time of giving the statement and he supported the case of the prosecution.
k) PW.14 - Rajamma one of the panch witnesses to the Inquest Panchanama as per Ex.P4, has deposed that she does not know the content of Ex.P4 and not supported the case of the prosecution.
22
l) PW.15 - Puttaswamy, who is the father of the deceased and deposed that he does not know the cause of the death of the deceased-Jyothi as accused No.1 treated his daughter well. Thereby, he has not supported the case of the prosecution and turned hostile.
m) PW.16- Sudeep, the brother of the deceased, did not support the case of the prosecution and was treated as hostile.
n) PW.17 - Dr. B.S.Manjunathaswamy, the Tahsildar, who recorded the statement of the deceased in the hospital at Mysuru and supported the case of the prosecution.
o) PW.18 - H.P.Raviprasad, the Deputy Tahsildar, who deposed that he went along with the Tahsildar on 16.01.2012 to K.R.Hospital burnt ward and supported the case of the prosecution. 23
p) PW.19 - M.Mahadevaiah M., PSI, who received dying declaration as per Ex.P16 at about 6.30 p.m. and registered FIR in Crime No.13/2012 as per Ex.P21 FIR for the offence under the provisions of Sections 498A, 114, 307 read with Section 149 of IPC and conducted the Spot Mahazar as per Ex.P3 and Ex.P4 and supported the case of the prosecution.
q) PW.20 - Shivanna, who is the Head Constable of Bannur Police Station, deposed that he received the MLC Report and later received the dying declaration as per Ex.P16 and supported the case of the prosecution
r) PW.21 - Sundar Raj, the Investigating Officer, who has conducted further investigation and recorded a statement of PW-1 and the statement of CWs.2, 3, 11 to 14, 15 and 16 and secure the assessment Extract as per Ex.P14, sketch of the spot as per Ex.P15 and the report as per Ex.P22. 24
Thereby, he supported the case of the
prosecution.
Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge has proceeded to convict accused No.1 under the provisions of Section 302 of IPC and accused No.2 to 5 under the provisions of Section 498A of IPC.
20. It is an undisputed fact that the case was registered in Crime No.13/2012, initially, for the offences punishable under Sections 498A, 307, 114 read with Section 34 of IPC, based on the statement of the deceased. Subsequently, after the death of the deceased, the said statement is called as dying declaration as per Ex.P16 wherein, it is specifically stated by the deceased that she was married to accused No.1-Srinivasa @ Seena about 10 years back. They were lived happily for more than 9 years and out of their wedlock they had two children (male and female). One year prior to the incident, accused No.4- 25 Mangalamma used to pick-up quarrels on petty issues and assaulted the deceased on her head. The same was informed to the Police, they advised them to live cordially. Thereafter, accused No.1 used to get enraged for every talk and having consumed alcohol and used to assault daily. Hence, the deceased was leading a life suffering with pain. Three days prior to the incident, Beereshwara fair was about to commence. When accused No.1 demanded a sum of Rs.3,000/- for playing cards, the deceased refused to give money and he complained the same to his brother-accused No.2, who provoked accused No.1 to kill her. Thereafter, the mother-in-law of the deceased-accused No.3, the sister- in-law of the deceased-accused No.4 and the husband of the sister of accused No.1-accused No.5, assaulted her and demanded to get the land transferred in the name of deceased from her parents. She refused, on 16.01.2012 at 7.00 a.m., when she was sleeping as she was not feeling well, accused No.1 came and pestered her to give the money again, for which she refused. This 26 provoked him to kill her, thereby, he poured kerosene over her and lit the fire and she was burnt.
21. The dying declaration as per Ex.P16 was recorded by the Tahsildar-PW.17 on confirming that the victim was in a 'fit state of mind' to give her statement. On the basis of requisition made, PW.13-the Doctor, who gave a fitness certificate on the very same day certifying that the deceased was in a 'fit state of sound mind', she was conscious and she was capable of giving a statement. Accordingly, the statement of the victim was recorded. Thereafter, she died due to burn injuries. Thereby, the provisions of Section 307 of IPC were converted into the provisions of Section 302 of IPC along with the other provisions made in the charge.
22. Except the dying declaration, there is no other corroborative evidence to prove that accused Nos.2 to 5 were residing along with accused No.1 and deceased. Even, Ex.P16-dying declaration does not depict accused Nos.2 to 5 were residing together. The 27 evidence of the prosecution witnesses depicts that accused Nos.2 to 5 residing separately, except accused No.3-the mother-in-law of the deceased, who was residing along with accused No.1 and the deceased. All the witnesses, in categorical terms, deposed that the accused No.1 and the deceased were happily living more than 9 years and they have got two children out of their wedlock,. PW.13-Doctor, who issued fitness certificate, has specifically stated that on 16.01.2012, the deceased was in K.R.Hospital, Burnt ward, at about 4.30 p.m. by that time, PW.17- the Tahsildar has also come to the hospital and enquired about the fitness of the deceased-Jyothi to give statement. After examining her, the Doctor certified that she was in a 'fit state of sound mind'. Accordingly, PW.17-Tahsildar recorded her statement from 4.30 p.m to 5.00 p.m in the presence of the Doctor. Subsequently, it became a dying declaration. Nothing has been elicited in the cross examination to believe that the statement was not recorded by PW.17-Tahsildar on that day and she was 28 not subjected to fit state of sound mind to give the statement.
23. The Doctor issued a postmortem report as per Ex.P11 wherein he has opined that the cause of death was due to specticaemia. As a result of burns sustained to an extent of 55% to 60%. PW.1, PW.11, PW.12, PW.15 and PW.16, the sister, brothers, and father of the deceased turned hostile and did not support the prosecution case. Though the contention raised by the learned counsel for the appellant-accused No.1 that the deceased sustained 55% to 60% of burnt injuries and was unable to give the dying declaration as alleged, it cannot be accepted in view of the categorical statement made by PW.13-the doctor, which corroborates the dying declaration as per Ex.P16 and PM report as per Ex.P11. Even though, the burnt injuries sustained by the deceased were to an extent of 55% to 60%, she was still capable of giving dying declaration as per the statement of PW13-the Doctor, who issued the fitness certificate. In Ex.P16-dying declaration, and 29 PW.17-the Tahsildar, who recorded the statement-cum- dying declaration, our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Supreme Court in the latest judgment in the case of Purshottama Chopra Vs. State (Govt. of NCT Delhi) reported in AIR 2020 SC 476 wherein at paragraphs- 21 and 23.2, it is held as under:
"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:--
i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.
ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.30
iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court finds he statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."31
"23.2. It is also noteworthy that in Ex.PW-8/A, the doctor PW-8 Sushma mentioned all other features relating to the medical condition of the patient and recorded that he had suffered burn injuries involving whole of the body surface area-100% deep burn'. However and even while mentioning that the general condition of the patient was 'critical', it was also recorded in Ex. PW-8/A that the patient was 'conscious, oriented'. It is but clear from the contents of Ex. PW-8/A about the condition of the victim Sher Singh that though the doctor found him to be in critical condition with 100% deep burns yet, he was conscious and oriented. In other words, he was neither unconscious nor disoriented. In yet other words, he was neither insensate nor confused. Such significant noting about the mental faculties of the victim at the time of giving out the narratives to the doctor makes it clear that even when he was suffering from the agony of 100% deep burns, he was not in an unfit state of mind; and there appears no reason to disbelieve his first version as recorded in Ex. PW-8/A. Testimony of PW-16 and the contents of Ex. PW- 16/B"
24. Thereby the contention of the learned counsel for the appellant-accused No.1 that she sustained burnt injuries and was not in a fit state of sound mind and consciousness and fully oriented to give statement, cannot be accepted. In view of the dying 32 declaration as per Ex.P16 made by the deceased-Jyothi and recorded by PW.17-Tahsildar in the presence of PW.13-Doctor, who certified that the deceased was in fit state of sound mind and conscious to give statement and most of the prosecution witnesses including PW.1, PW.11, PW.12, PW.15 and PW.16, the sister, brothers and father of the deceased turned hostile and did not support the prosecution case, the facts remains that in the absence of any other collaborative evidence, there can be conviction relying upon the dying declaration. If the Court is satisfied that dying declaration is true and valid and it can be basis of conviction without any corroborative evidence, our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of UP Vs. Veerpal and Another reported in 2022 SCC online SC 129 at paragraph-24, it is held as under:
"24. Now, on the aspect, whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in the case of Munnu Raja & Anr. (supra) and the subsequent decision in the case of Paniben (Smt) V. State of 33 Gujarat, (1992) 2 SCC 474 are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in the cases of State of Uttar Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211. Therefore, there can be a conviction solely based upon the dying declaration without corroboration. Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958 SCR 552 is a watershed judgment on the law on the evidentiary value of dying declarations. This Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without Corroboration."
25. It is also well settled that the statement of victim consisting of her last words before her death is presumed to be truthful and not inflicted any motive against her husband, who were living cordially for more than nine years and had two children out of their wedlock. The dying declaration is therefore admissible in evidence on principle of necessity as there is very little hope of survival for the maker and if found reliable, it 34 can certainly form the basis of conviction. It is stated in the dying declaration by the deceased that the deceased refused to pay the money demanded by accused No.1, he provoked and poured kerosene and lit the fire. PW.1 has also deposed very curiously about the presence of accused No.1 and accused No.1 has taken defence that he went to Beemeshwara fair, whereas, the dying declaration made by the deceased clearly depicts that the Beemeshwara fair would commence after three days from the date of the unfortunate incident, thereby, he has taken alibi, once the prosecution proved its initial burden, it governs the accused to discharge the plea of alibi taken as defence under Section 313 of Cr.PC statement, in view of Section 103 of the Indian Evidence Act, 1872 as held by the Hon'ble Supreme Court in the case of State of Hariyana vs. Sher Singh and others reported in AIR 1981 SC 1021 at paragraph-4, it is held as under:
"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:35
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
26. When the material on record clearly depicts that accused No.1 and the deceased lived happily as husband and wife for more than nine years and had two children out of their wedlock, it is the duty of the accused-husband, to offer explanation under Section 313 of Cr.PC statement as to how his wife died, but he denied all the incriminating circumstances in toto having not offered the explanation, thereby, an adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2020)1 SCC Crimes 381 at paragraph 11, wherein, it is held as under:
"No explanation is forthcoming from the statement of the accused under section 313 Cr.P.C as to when he 36 parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
Thereby the prosecution proved beyond all reasonable doubt with regard to the involvement of the accused in the homicidal death of the deceased.
27. A careful consideration of Ex.P16 is the basis for initiation of the crime against accused Nos.2 to 5 which becomes a complaint. Except, the statement that accused Nos.2 to 5 assaulted her and accused No.2, provoked accused No.1, nothing has been placed on record by the prosecution to show that the constant harassment of the deceased by accused Nos.2 to 5 i.e. the mother-in-law and the sister-in-law of the deceased, sister of the accused No.1 and husband of accused No.4. Admittedly, accused Nos.2 to 5 and the deceased were residing separately. Ex.P16-dying declaration does not depict that they were residing together except 37 the mother-in-law-accused No.3. The deceased categorically deposed in her statement before PW.17- the Tahsildar and PW.13-the doctor that she refused to give money as demanded by her husband, who provoked, poured kerosene and lit the fire. There is no other material to prove that the involvement of accused Nos.2 to 5 against whom the charge framed under Section 498A of IPC. None of the prosecution witnesses including the relatives of the deceased, i.e. PW.1, PW.11, PW.12, PW.15 and PW.16, the sister, brothers and father of the deceased, though turned hostile, whispered anything about the cruelty and harassment by accused Nos.2 to 5. Learned Session Judge has proceeded to convict accused Nos.2 to 5 only based on the dying declaration as per Ex.P16 even though all the prosecution witnesses including mahazar witnesses turned hostile. Though charge was framed against accused No.2 under the provisions of Section 114 of IPC, the trial Court has acquitted accused No.2 for the said offence. Admittedly, the State has not filed any 38 appeal against the said acquittal order. Even the State has not filed any appeal for an enhancement of punishment against accused Nos.2 to 5 imposing punishment under the provisions of Section 498A of IPC.
28. It is not in dispute that while convicting accused No.1 under the provisions of Section 302 of IPC, the learned Session Judge ought to have to impose fine which is mandatory. Unfortunately, the learned Session Judge has not imposed any fine and the State also not filed any appeal for non imposition of fine amount under the provisions of Section 302 of IPC.
29. On re-appreciation of the entire material on record, both oral evidence and documentary evidence which clearly depicts that accused No.1 and the deceased were leading a happy life for more than 9 years, the unfortunate incident occurred three days prior to Bheemeshwara fair in their village. Accused No.1 is none other than the husband of the deceased, 39 who demanded a sum of Rs.3,000/- but the deceased refused to give. Again, he demanded the same, when she refused, he provoked and poured the kerosene and lit the fire, thereby, she burnt about 50% to 60%. The facts remains that for more than nine years, there was no complaint against accused No.1 or accused Nos. 2 to 5 about the harassment or cruelty. The unfortunate incident occurred only when accused No.1 demanded money for playing cards and consume alcohol, when she refused, the accused No.1 he provoked and the unfortunate incident occurred, thereby, it is a clear case falls under Exception 1 of Section 300 of IPC, which reads as under:-
"Exception 1: When culpable homicide is not murder.
Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
30. A careful reading of the said provision makes it clear that the culpable homicide is not murder, 40 when an offender, while deprived of the power of self- control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident is not amount to murder. Admittedly, in the present case, the deceased was a wife, who refused to pay money to the accused demanding of Rs.3,000/- for playing cards and to consume alcohol, thereby, she provoked accused No.1, who lost self control and poured kerosene and lit the fire.
31. In view of the peculiar facts and circumstances of the case, it is clear case falls under the provisions of Section 304 Part I of IPC and not under the provisions of Section 302 of IPC. The said aspect of the matter has not at all been considered by the learned Sessions Judge. As already stated supra, absolutely, there is no material on record to show about harassment made by accused Nos.2 to 5 from the beginning till the occurrence of the unfortunate incident except her statement-cum-dying declaration as per 41 Ex.P16 wherein it is stated that accused Nos.2 to 5 assaulted her. None of the witnesses supported the case of the prosecution about the cruelty and harassment by accused Nos.2 to 5 to the deceased. Admittedly, there is no complaint for more than 10 years against accused Nos.2 to 5. The said aspect of the matter has not at all been considered by the learned Session Judge, thereby, erroneously convicting accused Nos.2 to 5 under the provisions of Section 498A of IPC, which cannot be sustained.
32. It is the duty of the husband to take care of his wife, who came from the other family with great expectations and a voluminous dream in her life. It is also the duty of the husband to take care her in all fairness. Accordingly, the accused and deceased were living happily for more than 9 years and having two children out of their wedlock. Absolutely, there is no whisper about prior antecedents and it was duty of the husband to ensure there should not be any cruelty and harassment to his wife who gave oath (Saptapadhi) at 42 the time of marriage. In this case, accused No.1 being husband of the deceased, has not done his duty as a dutiful husband, thereby, he involved in the homicidal death of the deceased due to sudden provocation after nine years of marriage.
33. For the reasons stated above, the first point raised in the present appeals is answered partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting accused No.1 for rigorous imprisonment for life under the provisions of Section 302 of IPC and has made out a case to modify the said Section into Section 304 Part I of IPC. Consequently, accused No.1 has not made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court under the provisions of Section 498A of IPC.
43
34. The second point raised in the present appeals is answered in the affirmative holding that accused Nos.2 to 5 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting the accused for simple imprisonment for a period of three months under the provisions of Section 498A of IPC.
35. In view of the above, we pass the following:
OPERATIVE PORTION OF THE JUDGMENT I - In Criminal Appeal No.252/2018
(i) The Appeal filed by the appellant/accused No.1 is hereby allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 27.05.2016 passed by learned II Additional Sessions Judge, Mysuru, made in S.C.No.249/2012, convicting accused No.1 under the 44 provisions of Sections 302 of IPC is hereby modified.
(iii) Accused No.1 is convicted for rigorous imprisonment for a period of 10 years under the provisions of Section 304 Part I of IPC with a fine of Rs.50,000/-, in default, he has to undergo further rigorous imprisonment for a period of 2½ years.
(iv) The conviction of accused No.1 under the provisions of Section 498A of IPC is hereby confirmed.
(v) Both the sentences shall run concurrently.
(vi) In view of the provisions of Section 357(3) of Cr.P.C., it is directed that, out of the fine amount realized from accused No.1, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) shall be deposited in the names of each of the children of the 45 deceased and accused No.1, in any nationalized Bank for a period of five years or till they attain the majority, which ever is earlier.
(vii) In view of the provisions of Section 357(A) of Cr.P.C., we deem it appropriate to refer the matter to the District Legal Service Authority to award compensation of Rs.1,00,000/- each in favour of children of the deceased-Jyothi, if not already deposited.
II - In Criminal Appeal No.1110/2016
(i) The Appeal filed by the appellants/accused Nos.2 to 5 is hereby allowed.
(ii) The impugned judgment of conviction and order of sentence dated 27.05.2016 passed by II Additional Sessions Judge, Mysuru, made in S.C.No.249/2012, convicting 46 accused Nos.2 to 5 under the provisions of Section 498A of IPC and sentencing them to undergo simple imprisonment for a period of three months with fine of Rs.10,000/- each is hereby set aside.
(iii) Accused Nos.2 to 5 are hereby acquitted for the offence under the provisions of Section 498A of IPC, and the bail bonds, if any, shall stand cancelled.
(iv) If the fine amount already deposited, the same shall be returned to accused Nos.2 to 5, with a hope and trust with the accused Nos.2 to 5 shall invest the said amount to the children of the deceased and accused No.1.
Sd/-
JUDGE Sd/-
JUDGE KTY