State By vs Vasudev S/O Fakirappa Doddamani on 13 December, 2021

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Karnataka High Court

State By vs Vasudev S/O Fakirappa Doddamani on 13 December, 2021

Bench: Suraj Govindaraj

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

 DATED THIS THE 13th/23rd DAY OF DECEMBER, 2021

                          PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                            AND
         THE HON'BLE MS. JUSTICE J.M.KHAZI
            CRIMINAL APPEAL No.100156/2017

BETWEEN:

STATE OF KARNATAKA,
REP. BY THE BAILHONGAL P.S.
THROUGH THE ADDL. SPP
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                              ... APPELLANT

(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND:

1.     VASUDEV S/O. FAKIRAPPA DODDAMANI,
       AGE 32 YEARS, OCC: EMPOYEE IN SUGAR FACTORY,
       R/O. NATH RAI CIRCLE,
       SHAHAPUR, BELAGAVI.

2.     FAKIRAPPA S/O. GIREPPA DODDAMANI,
       AGE 68 YEARS, OCC: COBLER,
       R/O. NATH PAI CIRCLE,
       SHAHAPUR, BELAGAVI.

3.     DEEPAK S/O. FAKIRAPPA DODDAMANI,
       (ABATED)
                               2


4.   HIRABAI D/O. GIREPPA DODDAMANI,
     AGE 70 YEARS, OCC: HOUSEHOLD,
     R/O. NATH PAI CIRCLE,
     SHAHAPUR, BELAGAVI.

5.   BHARMANNA S/O. RAYAPPA DODDAMANI,
     AGE GANDHI NAGAR, RAMDURG,
     BELAGAVI DISTRICT.
                                    ... RESPONDENTS

(BY SRI. VIJAY NAIK, ADVOCATE FOR R1, 2, 4 & 5;
APPEAL AGAINT R3 IS ABATED)

      THIS APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
22.11.2016 PASSED BY THE VI ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI IN S.C.NO.401 OF 2011 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 109, 504, 498-A, 304-B AND 302 READ WITH
SECTIONS 149 OF IPC.

     THIS APPEAL COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.11.2021,
THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:

                          JUDGMENT

1. This Criminal Appeal is filed by the State challenging the Judgment dated 22.11.2016 passed by the VI Addl. District and Sessions Judge, Belagavi, in Sessions Case No.401/2011 (for short 'the trial Court'). The case having been abated 3 against accused No.3 on account of his death on 31.05.2016, the trial Court acquitted accused Nos.1, 2, 4 & 5 for the offences punishable under Sections 143, 147, 109, 504, 498-A, 304-B, 302 read with Section 149 of IPC and Sections 3 and 4 of Dowry Prohibition Act.

2. The case of the prosecution is that the marriage of the deceased Padmavathi was performed with the accused No.1 who is the son of accused No.2, brother of accused No.3 and 4, as well as the brother's son of accused No.5.

3. On 26.03.2011 at about 7.30 p.m., all the accused formed an unlawful assembly with an intention to murder the deceased Padmavathi, accused Nos.3 and 5 who were standing outside the house instigated the accused Nos.1, 2 and 4 to set the deceased on fire on account of her not bringing 4 money and gold, they abused her in filthy language, accused No.1 poured kerosene on Padmavathi, while accused No.4 held both her hands and the accused No.2 set her ablaze. Thereafter, she was admitted to BIMS Hospital, Belagavi at 10.20 p.m.

4. A complaint came to be filed on 01.04.2011 alleging that:

4.1. On 14.02.2005 during the engagement ceremony it had been agreed between the parties that one gold ring weighing 5 grams, utensils and Rs.20,000/- in cash would be given to accused No.1 at the time of marriage as dowry.

4.2. At the time of marriage on 14.02.2005, the above items were indeed given to the accused No.1. After the marriage, the 5 deceased Padmavathi started to live in the house of the accused Nos.1 to 4. Accused No.5 was occasionally visiting their house.

4.3. Initially, for the first six months of the marriage, Padmavathi led a happy married life. Thereafter, when she visited the house of her sister Kasturi Kamble, [P.W.5], she had informed that accused Nos.1 to 5 had told that sufficient dowry was not given at the time of marriage and therefore, they asked her to get more money. Accused Nos.1 to 4 along with accused No.5 used to harass the deceased mentally and physically by ill-

treating her. She was repeatedly sent to her parents' house to get gold and money. 4.4. Many a time the family of the deceased acceded to the said demand and gave gold 6 and money to the accused. The complainant who is her brother had visited the house of the accused along with his relatives and discussed the matter with the accused and requested the accused not to ill-treat his sister, he would try to give as much money as possible with his limited capacity, despite which there was a continued demand for gold and money.

4.5. It is alleged that the deceased was sent out of the house of accused Nos.1 to 3 demanding an amount of Rs.10,000/- towards the purchase of gas stove as also a sum of Rs.50,000/- towards the purchase of a motorcycle. The family members of the deceased were unable to make such payment, but however, continued to give small amounts of money and requested the 7 accused to take care of the deceased properly.

4.6. On 26.03.2011 the accused sought for immediate payment of Rs.10,000/- towards the purchase of a gas stove and cylinder. The deceased, therefore, went to the house of his sister P.W.5 requesting her for money, who was able to give her Rs.7,500/-. The deceased took the said sum of Rs.7,500/- to the house of the accused, but the accused got enraged.

4.7. On 26.03.2011 at about 7.30 p.m., all the accused formed an unlawful assembly with an intention to murder the deceased Padmavathi, accused Nos.3 and 5 who were standing outside the house instigated the accused Nos.1, 2 and 4 to set the deceased 8 on fire on account of her not bringing money and gold, they abused her in filthy language, accused No.1 poured kerosene on Padmavathi, while accused No.4 held both her hands and the accused No.2 set her ablaze. Thereafter, she was admitted to BIMS Hospital, Belagavi at 10.20 p.m. 4.8. The accused had sought to cause the death of Padmavathi which came to be registered as Crime No.10/2011 by the Mahila Police Station, Belagavi at 22.30 hours.

5. In the meanwhile Padmavathi succumbed due to the burn injuries on 03.04.2011 at 2.30 a.m.

6. On completion of the investigation a charge sheet has been filed and the accused were sent to judicial custody. After hearing both sides, charges were framed against accused Nos.1 to 5, since 9 they pleaded not guilty and claimed to be tried, a trial was conducted.

7. The prosecution in all led the evidence of 25 witnesses (P.W.1 to P.W.25), marked 54 documents as exhibits P.1 to P.54 and three material objects as MO 1 to 3.

8. The accused were examined under Section 313 of Cr.P.C. when they denied all the allegations against them and have led evidence of two witnesses namely D.W.1 and D.W.2.

9. The trial Court after the trial, acquitted the accused of the offences alleged against them namely under Sections 143, 147, 109, 504, 498-A, 304-B, 302, read with Section 149 of IPC and Sections 3 and 3 of Dowry Prohibition Act. Aggrieved by the same, the State has preferred the present appeal. 10

10. Sri. V.M.Banakar, learned Addl. SPP submitted that, 10.1. the evidence on record has not been considered properly by the trial Court, and the Judgment is contrary to the law. 10.2. The depositions/testimony of P.W.1 the brother, P.W.4 the mother, P.W.5 the Sister, P.W.6 another brother and P.W.17 the paternal uncle of the deceased has not been considered by the trial Court, more so, when they have categorically deposed as regards the marriage talks, demand for dowry, payment of dowry at the time of marriage, further demands from time to time for the need of the family of the accused, continuous physical and mental harassment caused by the accused to the deceased Padmavathi, the 11 final demand having been made for Rs.10,000/- which having not been satisfied resulted in death of the deceased, this aspect has not been considered and appreciated by the trial Court in a proper perspective resulting in an erroneous acquittal of the accused.

10.3. The trial Court has not considered the dying declaration of the deceased which is also supported and corroborated by the evidence of P.W.6 who has recorded the statement of the deceased as per Ex.P.13 in the presence of P.W.21, the Doctor on 29.03.2011, as also the statement recorded by P.W.10 as per Ex.P.24 in the presence of medical Doctors namely P.W.20 and 21.

10.4. The dying declaration of the deceased though being two in numbers, the first dying declaration also makes reference to the harassment meted out by the accused to the deceased calling upon her to bring gold and money from her paternal home. The second dying declaration clearly and categorically implicates the accused in the murder of the deceased, inasmuch as she has categorically stated that the accused had poured kerosene on her and set her on fire.

10.5. The contradictions if any insofar as the first dying declaration and second dying declaration is concerned, is only on account of the deceased at that point of time being of the opinion that she may survive and wanting to get back to her life with the accused No.1- husband, had given such a statement. This 13 also being for the reason that, as per the testimony of P.W.1, the accused had begged for forgiveness and repented at their actions and in that background the first dying declaration did not implicate the accused. However, later on the deceased on coming to know of her impending death as also the false statement made by the accused has given a true and proper dying declaration which ought to have been considered by the trial Court.

10.6. The dying declaration recorded by the P.W.6 at Ex.P.13 on 29.03.2021 as also dying declaration recorded by the same P.W.6 on 02.04.2011 as per Ex.P.15 corroborate each other as regards the material particulars except for the above contradiction which would not come in the way of establishing the 14 complicity of the accused as regards the offences alleged.

10.7. The trial Court not having given proper and sufficient reasons for discarding the evidence of the material witnesses namely P.Ws.1, 4, 5, 6, 12, 13, 17, 20 and 22, has resulted in miscarriage of justice, the accused are guilty of the offences alleged against them and as such the order of acquittal is required to be reversed and the accused have to be convicted for the offences as regards which they were charge-sheeted.

10.8. In regard to the above, he refers to the decision of the Apex Court in the case of Ashabai and another Vs. State of Maharashtra, reported in 2013 (2) SCC 224, more particularly paragraph Nos.15, 16, 15 19 and 20 thereof, which are reproduced hereunder for easy reference:

"15. About the evidentiary value of the dying declaration of the deceased, it is relevant to refer to Section 32(1) of the Evidence Act, 1872, which reads as under:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant .- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death .-

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in 16 dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.

16. We have already noted that in the present case, the prosecution relied on four dying declarations of the deceased. We have also noted 17 that at the time of recording of these statements, medical officers on duty had certified that the deceased was fully conscious and was in a fit state of mind to make the same. As a matter of fact, the deceased has given proper replies to the questions put to her by various authorities. Further, it is not in dispute that the incident occurred on 5-3-2003 and she sustained 54% burns and, ultimately, she died only on 18-4-2003. In other words, she survived for about 1,1/2 (one and-a-half) months which speaks for the fitness of the declarant to make a statement. The persons who recorded the four dying declarations were examined as PWs 14, 7 and 6 and they were also cross-examined about the statement made by the deceased and recorded by them. In such circumstances, we fully endorse the view expressed by the trial court and affirmed by the High Court about the acceptability of four dying declarations implicating the mother-in-law and sisters-in-law (the appellants herein).

19. Apart from the above witnesses, the prosecution has also examined the doctors who certified her fitness while making the statement, the doctor who conducted her post-mortem and IOs, who completed the investigation and filed charge-sheet.

20. The above analysis clearly shows that the deceased was in a fit state of mind to make dying declarations and her statements in those dying declarations are consistent and truthful. In addition to the same, the prosecution also examined PWs 1, 2 and 11 as well as the doctors, IOs, and other witnesses in support of their claim. We do not find any infirmity in the order of conviction and sentence recorded by the trial Judge and affirmed by the High Court."

10.9. He also refers to a decision of the Apex Court in the case of Laxman Vs. State of Maharashtra, reported in AIR 2002 SC 2973 more particularly paragraph No.3, 4 and 5 thereof, which are reproduced hereunder for easy reference:

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental 19 condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or has to be attached to such statement necessarily depends on the facts and circumstances of particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka 20 Rosamma and others v. State of Andhra Pradesh, 1999 (7) SCC 695 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and another v. State of Gujarat, 1999 (9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander v. State of Punjab, 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

5. The court also in the aforesaid case relied upon the decision of this Court in Harjeet Kaur v.

State of Punjab, 1999 (6) SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and others v. State of Andhra Pradesh, 1999 (7) SCC 695 to the effect that "...............in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka and others v. State of Andhra Pradesh, 1999 (7) SCC 695 must be held to be not correctly and we affirm the law laid down by this in Koli Chunilal Savji and another v. State Gujarat, 1999 (9) SCC 562 case."

10.10. He refers to and relies upon a decision of the Apex Court in the case of Harjit Kaur Vs. 22 State of Punjab, reported in 1999 (6) SCC 545, more particularly paragraph No.6 and 7 thereof, which are reproduced hereunder for easy reference:

"6. It was further submitted by the learned counsel that the statement of Parminder Kaur was not recorded by the witness in question and answer form. The evidence of the witness is that she narrated the incident and therefore the dying declaration is not in the question-answer form. It was then contended by the learned counsel that the dying declaration bears her thumbmark but according to the medical evidence, the skin over the two thumbs was burnt and, therefore, the SDM could not have obtained her thumb impression on it. Whatever impression could be taken was taken by the SDM. The medical evidence in this case does not disclose that she could not have put her thumbmark on the dying declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or genuineness of the dying declaration. PW 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the dying declaration was manufactured by him after her death, we do not find anything in his cross-examination as would create any doubt regarding the truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the dying declaration was PW voluntarily made by Parminder Kaur and that it was correctly recorded by PW7.

7. It was then contended by the learned counsel that this dying declaration should not be 23 accepted as true because in her first dying declaration made to the police officer on 30-4- 1992, Parminder Kaur had stated that she had received burns as a result of an accident and that no one else was responsible for the same. Both the courts below after considering this inconsistency have thought it fit to rely upon the second dying declaration. It has been rightly held as an attempt on her part to save her husband and the in-laws. The circumstance clearly indicates that she was not a free person then. The reasons given by the trial court and the High Court for not considering the first dying declaration as voluntary and true are quite convincing and we see no reason to differ from them. Therefore, the second dying declaration cannot be regarded as untrue merely because it is contrary to her statement made earlier. What she has stated in the second dying declaration appears to be more probable and natural. If she had really received injuries at 2.00 a.m ., because of bursting of stove, then her in-laws would have taken her to the hospital immediately and would not have waited till 7.30 a.m. They would have informed the parents of Parminder Kaur as early as possible. They were not informed for two days in which hospital their daughter was admitted. All the circumstances indicate that the first dying declaration made before the police officer was not a correct one. As we find that the appellants have been rightly convicted, both these appeals are dismissed."

10.11. He submits that, when there is a contradiction in a dying declaration each of the dying declarations has to be considered 24 independently. The first dying declaration was given immediately after the hospitalization of the deceased when she was under the belief that she would survive the injuries. The second dying declaration being supported by all other factual circumstances, he submits that the second dying declaration which has to be considered.

10.12. He relies upon a decision of the Apex Court in the case of Lakhan Vs. State of Madhya Pradesh, reported in 2010 (8) SCC 514, more particularly paragraph Nos.9, 10, 12, 16, 21, which are reproduced hereunder for easy reference:

9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as "the Evidence Act") as an exception to the general rule contained in Section 60 of the Evidence Act, 25 which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-

examined. Such statements themselves are relevant facts in certain cases.

10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.

6. In Sher Singh v. State of Punjab, a case of bride burning, three dying declarations had been recorded. In the first dying declaration, the deceased had denied the role of the accused persons. In the second dying declaration the deceased attributed a role to the accused but the 26 said declaration did not contain the certificate of the doctor that the deceased was in a fit state of mind to make a declaration, however, the Magistrate, who recorded the declaration, certified that the deceased was in a conscious state of mind and was in a position to make the statement to him. The third dying declaration was recorded by a police officer after the doctor certified that she was in a fit state of mind to give the statement. This Court held that the conviction could be based on the third dying declaration as it was consistent with the second dying declaration and the oral dying declaration made to her uncle, though with some inconsistencies. First declaration was made immediately after she was admitted in the hospital and was under threat and duress by her mother-in- law that she would be admitted in hospital only if she would give a statement in favour of the accused persons.

21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/ prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

10.13. The recordal in the case history as regards the reason for the incident and or injuries is not material since the same was not given by the injured but by the person accompanying her, in the present case by the Accused, therefore the accused cannot take advantage of the statement made by them to the hospital authorities, in this connection he relies upon the decision of the Apex court in Rakesh and another Vs. State of Haryana, reported in 2013 (4) SCC 69, more particularly paragraph No.14, which is reproduced hereunder for easy reference:

"14. Dr S.P. Chug, Casualty Medical Officer, PGIMS, Rohtak was examined as PW 11. In his evidence, he deposed that on 15-5-1998 at about 1.30 a.m ., he examined Kailash w/o Rakesh and on examination he found that the patient was conscious, pulse and BP were unrecordable. He further stated that there were superficial to deep burns involving almost all the body except the legs 28 below the knees. There was approx. 85% burns which were subjected to surgeon's opinion and was kept under observation. Though it was pointed out that while recording the history of the patient, he noted that it was the accidental fire while cooking food, in view of the categorical statement by the deceased in her dying declaration the reference made by PW 11 while recording the history of the patient would not affect the prosecution case."

10.14. Based on the above he submits that the order of acquittal is required to be reversed and the accused/respondents required to be convicted for the aforesaid offences by allowing the appeal.

11. Sri. Vijay Naik, learned counsel appearing for the accused would however submit that:

11.1. The endorsement of the medical case sheet at Ex.P.46 of the deceased, it is stated that the deceased is stated to be in a precarious condition inasmuch as her pulse was stable, but her blood pressure was not recordable.

She was dizzy and delirious and also under medication.

11.2. The deceased having suffered nearly 90 percent burnt injuries was in no position to give any statement or declaration. Both the dying declarations which have been recorded are concocted and fabricated and on this ground, he submits that the dying declaration cannot be relied upon.

11.3. When the Doctor had endorsed that the deceased was fit and competent to give statement, he neither examined the case sheet, nor the deceased and as such the certification by the Doctor itself is improper and no dying declaration could have been recorded.

11.4. The witnesses have deposed that the deceased and her husband-accused No.1 along with other children were living separately from accused Nos.2, 3 and 4, the entire allegations made cannot be accepted. 11.5. The accused No.1 himself had brought the deceased to the hospital which would indicate that the accused No.1 had no reason to hide or run away, as such the statement given by the accused No.1 that the deceased suffered from burnt injuries on account of a stove explosion has to be believed.

11.6. By relying upon the depositions of D.W.1 and D.W.2, he submits that the neighbours who were the best witnesses have categorically certified that the deceased and the accused No.1 husband were living harmoniously and 31 as such, the complaint that the deceased and her husband accused No.1 were unhappy is based on a false and concocted story. 11.7. All these aspects having been taken into consideration by the trial Court, the order of acquittal passed by the trial Court is just and proper and is not required to be interfered with.

12. We have considered the rival submissions made by the learned counsel for the parties namely Sri. Banakar Addl SPP for the State and Sri. Vijay Naik for the accused/respondents. We have perused the evidence on record, re-appreciated the evidence and cross-examination.

13. P.W.1 being the complainant has categorically asserted about the demand of dowry by the accused, payment of the monies demands made by 32 the accused of more dowry, the threats held out by the accused in the event of the dowry amount not being paid, supports the case of the prosecution.

14. P.W.2 and 3, the Panch Witnesses have also supported the case of the prosecution.

15. P.W.4 being the mother of the complainant and the deceased has also supported the case of the prosecution. The same is the case of P.W.5 who is the sister of the deceased.

16. P.W.6 the Taluka Executive Magistrate has also supported the case of the prosecution. He has clearly stated the ability of the deceased to comprehend the questions to answer them. The nature of the questions which have been asked and the answers were given and as regards by the Taluka Executive Magistrate would make it 33 abundantly clear that she was fit and competent to answer any questions.

17. Though P.W.7 has not supported the entire case of the prosecution requiring the Public Prosecutor to treat him as hostile, during the cross-examination, he has categorically admitted that, at the time of engagement it had been agreed to give golden ring weighing 5 grams, tali chain(Mangalasutra) weighing 5 grams, pant and shirts to the bride- groom and 5 utensils to the bride which establishes the case of the prosecution that there was indeed negotiations resulting in aforesaid agreement, thereby implying a demand made by the accused of the said items.

18. P.W.8 being the Assistant Executive Engineer has deposed as regards the sketch drawn by him. 34

19. P.W.9 is a Doctor who conducted the postmortem and has deposed that the death was due to septicemia, as a result of 80% superficial to deep burn injuries sustained. The said opinion is also reflected in the postmortem report at Ex.P.22.

20. P.W.12 took the statement of Padmavathi on 02.04.20211 as per Ex.P.27. She has denied that Padmavathi could not speak or give a statement. She has further categorically stated that the statement given by the Padmavathi has been recorded by her and therefore, supported the case of the prosecution.

21. P.W.13 who is another brother of the deceased has also supported the case of the prosecution and he has further stated that the accused did not get any treatment for the deceased. He has further stated that Padmavathi had informed him that the 35 accused Nos.2 to 4 had held her hands, accused No.1 after pouring kerosene set on her fire. Accused No.5 and Accused No.3 were standing guard at the door, so no one enters the house and as such, all of them together had caused the death of Padmavathi.

22. P.W.14 an eyewitness did not support the case and he has been treated as hostile by the public prosecutor and nothing much was elicited from him. P.W.15 also did not support the case and was treated as hostile and nothing much was elicited during cross-examination.

23. P.W.16 is the woman Police Constable, who delivered the body for postmortem and thereafter to the mother of the deceased.

24. P.W.17 has also stated about the demand made for gold and money as also about the harassment meted out by the deceased Padmavathi.

25. P.W.18 is the Station House Officer who received the MLC on 26.03.2011 and deputed a Constable to record the statement of the deceased. He has denied that there was any stove burst, when a suggestion was made to him.

26. P.W.19 as an official witness who has recorded the statement of several witnesses.

27. P.W.20, P.W.21, P.W.22 and P.W.23 are the Doctors who have issued an endorsement that the deceased was in a proper and fit state of mind to give a statement.

28. P.W.24 is the Head Constable of Shahapur Police Station who have received the MLC intimation. 37

29. P.W.25 is the Investigating Officer who has led the charge and has stood the test of cross- examination.

30. The entire case of the prosecution rests on the dying declaration, the Statement recorded by P.W.10, which are sought to be corroborated with the depositions of P.W.1, P.W.4, P.W.5, P.W.13 and P.W.17.

31. P.W.14 one of the alleged eye-witness has turned hostile. D.W.1 and D.W.2 who were initially named as witnesses were not examined by the prosecution, but were examined by the defense.

32. Sri. Banakar, learned Addl. SPP having relied upon the various decisions referred to above i.e. Ashabai and another Vs. State of Maharashtra, Laxman Vs. State of Maharastra, Harjit Kaur Vs. State of Punjab, 38 Lakhan Vs. State of Madhya Pradesh and Rakesh and another Vs. State of Haryana, and contended that even if there is a contradiction in multiple dying declaration, each dying declaration has to be independently assessed and the probabilities ascertained.

33. It is in this background we have to consider both dying declarations. The first dying declaration was recorded on 29.03.2011 by the Taluka Executive Magistrate after obtaining the opinion of the Doctor to the effect that she is in a fit condition to give a statement. The second dying declaration was recorded on 02.04.2011 once again by the same Taluka Executive Magistrate after the Doctor had certified that she was in a fit and proper condition to record the statement.

34. The trial Court has held that the dying declaration is not true, not worth believing, not trustworthy, reliable or credible and disregarded them. The reason attributed is that the deceased Padmavathi's condition was deteriorating day by day and she was not in a fit and proper condition to record her statement.

35. P.W.20, the casualty Medical Officer, BIMS, during the course of his cross-examination has admitted that he has not treated Padmavathi and this fact has not been mentioned in Ex.P.48 being the endorsement issued by him that she is fit and competent to record her statement.

36. As regards the entry made in the case sheet that Padmavathi was drowsy and delirious he has stated that drowsy means almost asleep and delirious means not able to speak or think. He has 40 further stated that he has not verified the case sheet of the deceased Padmavathi before issuing the endorsement. P.W.21 who has endorsed that the deceased Padmavathi was fit and competent to give a statement on her own, as per Ex.P.36 endorsement whereof the statement was recorded on 29.03.2011 as per Ex.P.13 has also, during the course of cross-examination, admitted that he had not treated the deceased, he had not verified the in-patient record before issuing the endorsement. However, he submits that, he had examined the deceased.

37. Both P.W.20 and P.W.21 have stated that they were not present at the time when the statements of the deceased were recorded.

38. P.W.22 who issued the endorsement on 02.04.2011 as per Ex.P.26 has clearly and 41 categorically deposed that he went to the burns ward, examined the deceased found her physically and mentally fit to give a statement on her own and it is on that basis he has issued endorsement as per Ex.P.15 opining that the deceased was able to give a statement. He has further stated that, in his presence, the statement of the deceased was recorded by the Tahsildar/TEM for a period of 30 minutes. During the course of cross-examination, he has admitted that he has not made any entry in Ex.P.26 of him having examined the deceased Padmavathi. On a suggestion being put across, that he has not examined the deceased and has issued Ex.P.15 and Ex.P.26 to help the police, he has denied the same.

39. It is in the background of the above, the evidence and cross-examination, that the veracity of the endorsement has to be considered. P.W.20, 21 and 42 22 are experienced Doctors who have been in the field for a long period of time, P.W.21 and P.W.22 for several decades. Their qualification and or their expertise has not been challenged. P.W.20 is a casualty Medical Officer, so are P.W.21 and P.W.22.

40. Two earlier requisitions for the recording of the statement of Padmavati sent on 28.03.2011 and 29.03.2011 have been returned endorsed with the statement that the Padmavathi was not in a fit condition. It is only at 3.00 p.m. as regards the third requisition on 29.03.2011 that it was endorsed that Padmavathi was in a fit condition to record her statement. The manner in which the earlier requisitions were refused with the aforesaid endorsement and only the third requisition was approved indicates the proper application of mind by the Doctors.

41. Though it is true that the Doctor has not examined the case file, in the present case noting the expertise of the Doctors which has not been challenged, they having categorically stated that the deceased was fit and competent to record her statement, we find no reason to disbelieve such a statement. There is no particular requirement that only the treating Doctor has to certify the competency or otherwise of the patient. If that is made mandatory if the treating Doctor is not available it would become impossible to record a dying declaration for want of a certificate by the Doctor. All that is required is for a qualified Doctor to examine the patient and certify that the patient is fit and competent in terms of the patient being conscious, oriented, being able to comprehend the questions asked and understand the implications of the answers thereof.

42. Insofar as the requisition approved by the P.W.22 on 02.04.2021, P.W.22 has categorically stated that he had examined the deceased and found her fit and competent, as also that he was present at the time when her statement was recorded. In such a situation, there cannot be any doubt as regards the dying declarations and as regards the competency of Padmavathi.

43. As regards the dying declarations itself, the same having been recorded by the Taluka Executive Magistrate in a question and answer format and the questions having been answered properly by the deceased, her ability to answer the regular test questions is clearly apparent from a reading of the same which would also establish that she was fit and competent to give her statement. The Taluka Executive Magistrate has deposed that he has recorded the said dying declarations, that the 45 deceased Padmavathi was fit and competent to give her statement, he has denied the suggestion that he has not recorded the statements.

44. In such a background, we are unable to agree with the finding of the trial Court as also the contention of Sri. Vijay Naik that the dying declaration cannot be accepted, P.W.20, P.W.21 and P.W.22 and Taluka Executive Magistrate are independent witnesses who have nothing to lose or gain by their depositions. Hence, there is no need to suspect such a deposition.

45. Though it is contended that, there is a contradiction in the two dying declarations, we are of the considered opinion that, there is no contradiction that is material or which can go to the root of the matter. In the first dying declaration, the deceased has stated about the 46 harassment meted out to her by the accused and has further stated that she was unable to tolerate the said harassment and poured kerosene upon herself and set herself ablaze.

46. While in the second dying declaration she has again spoken about the harassment meted out by the accused, but has gone on to say that the accused had poured kerosene on her and set her ablaze. The contradiction can be restricted only as regards whether there is a suicide or whether the deceased was set on fire by the accused resulting in a homicide. It is these aspects that have to be looked into on the basis of the surrounding circumstances and on the other evidence which is available on record. Though a dying declaration per se does not require any corroboration and can be relied upon without such corroboration since in the present matter there is a slight variance if not 47 contradiction in the two dying declarations. We are of the considered opinion that the assistance of surrounding circumstances and circumstantial evidence would have to be taken into consideration to determine which of the dying declaration are to be believed.

47. The Apex Court in the case of Laxman Vs. State of Maharastra, reported in (2002) 6 SCC 710, more particularly at paragraph No.5 has held as under:

5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.1 (at SCC p.

701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective 48 satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P.1 must be held to be notcorrectly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat."

48. From the above, it is clear that a hyper technical view as regards the dying declaration cannot be taken so long as a Doctor has certified that the victim or the declarant was capable of giving a statement, the certification could be sufficient to hold that the declarant was in a proper state of mind to give a statement and the statement which has been recorded by the Taluka Executive 49 Magistrate in a proper manner would have to be taken into consideration.

49. Sri. Vijay Naik, learned counsel for the respondents has contended that, the evidence of the Doctor is given as per Section 45 of the Indian Evidence Act. Being an expert, the said evidence and or the opinion/certification would have to satisfy the requirement of Section 51 which, he submits, has not been followed.

50. Sections 45 and 51 of the Indian Evidence Act, are reproduced hereunder for easy reference:

"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impression, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.

Such persons are called experts."

51. Grounds of opinion, when relevant

- Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant."

51. In the present case, the Doctors more particularly P.W.22 who had certified as regards the ability of the deceased to give her second dying declaration on 02.04.2011 has categorically stated that, he has examined the deceased and thereafter issued the endorsement. It is not that any particular test is required to be taken by the Doctor to ascertain the ability of the patient to answer the question, much of it is apparent to the eye of a trained Doctor. P.W.22 has had decades of experience and at the relevant point of time was the Chief Casualty Officer.

52. In such a background, a decision of whether a person is fit to give a statement is required to be made by a Doctor having regard to the time- sensitivity of the recordal of a dying declaration, we are of the considered view that the statement 51 made by the Doctor that he has examined the deceased and as also that he was of the opinion that Padmavathi was in a fit state of mind to record her statement has to be taken at face value. In our considered opinion this would be sufficient compliance of Section 45 and 51 of the Indian Evidence Act.

53. Having come to the conclusion that the declarant was fit and competent, the dying declaration having been recorded in a proper and correct manner, we are left with no option but to accept the veracity of the dying declarations.

54. As aforesaid the second dying declaration goes beyond the first dying declaration and if the second dying declaration is considered, then it is clear that the accused have committed murder of the victim/deceased. The second dying declaration was 52 given when the victim was more or less certain of her impending demise, which on her demise has become a dying declaration.

55. There is nothing available on record to suspect the veracity of the dying declaration made by her. More so, when the incident having occurred at 7.30 p.m., she was brought to the Hospital only at 10.20 p.m., after a gap of nearly 3 hours. There is absolutely no explanation by the accused as regards the cause of the delay.

56. The only explanation which has been given as regards the cause of the incident is that there was a stove burst. Having gone through the entire records, we are unable to come across any particular reference to a stove burst or any evidence relating thereto. A stove burst would have been an accident. If there is no stove burst 53 then it wouldn't be an accident, and the death of the deceased can only be termed as a homicide.

57. The delay in filing the complaint, as sought to be contended by Sri. Vijay Naik, is also not material, inasmuch as on the first day i.e. 26.03.2011 itself a MLC was registered and an intimation was sent to the local police station. Though the complaint was given on 01.04.2021, when the incident had occurred on 26.03.2021, we are of the considered opinion that from 26.03.2021, the family would have been preoccupied in trying to save the life of the deceased and it is only thereafter that the complaint has been filed. There is due credence to the submission made by the prosecution that when the first statement was made, the deceased was probably under the impression that she would survive and would go back and live with her family. It is only when, it became clear that she would not 54 survive, that in the her second dying declaration she has stated about how the accused have tried to murder her. The incident can either be termed as an accident or deliberate homicide. There is nothing on record to suggest that it was an accident, on the contrary, all the evidences suggest, indicates and establishes that there is a homicide which has occurred.

58. The Apex Court in TRIMUKH MAROTI KIRKAN VS. STATE OF MAHARASHTRA reported in 2006 (10) SSC 681 more particularly, paragraphs 12, 13, 14 and 15 thereof which are reproduced hereunder for easy reference:

"12. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a 55 chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides 56 to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 57

59. The Apex Court in the case of Kundula Bala Subrahmanyam and another Vs. State of Andhra Pradesh, reported in 1993 (2) SCC 684, more particularly paragraph Nos.18 thereof has held as under:

18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32. when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if 58 the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Having read the evidence of PWs 1-3 with great care and attention, we are of the view that their testimony is based on intrinsic truth. Both the dying declarations are consistent with each other in all material facts and particulars. That the deceased was in a proper mental condition to make the dying declarations, or that they were voluntary has neither been doubted by the defence in the course of cross-examination of the witnesses nor even in the course of arguments, both in the High Court and before us. Both the dying declarations have passed the test of creditworthiness and they suffer from no infirmity whatsoever. We have therefore no hesitation to hold that the prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both the appellants and disclosing the manner in which she had been put on fire shortly before her death. This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and cogent evidence."

60. In view of the finding above, the dying declarations have been properly recorded, though there is no corroboration which is required, as observed earlier, the evidence on record corroborates the dying declarations recorded.

61. The incident therefore can not be termed as an accident, as all evidence points to an homicide. Though some of the witnesses have not supported the case of the prosecution and have turned hostile for the reasons best known to them, the evidence of the material witnesses establishes culpability of the accused. The evidence/testimony of the independent official witness also stands uncontroverted. The deceased on her death bed has given statements that cannot be disbelieved. At the time of recording her statement, it was the fervent wish and hope of the deceased that the Investigation Officer/ Prosecuting Agencies and 60 Courts of law will do their duty and deliver justice. It is this hope, trust and confidence of the deceased who has given such a statement despite the pain that she was in which is required to be safeguarded by the courts of law.

62. The Apex Court in the case of Shivaji Sahabrao Bobade and another Vs. State of Maharastra, reported in 1973 (2) SCC 793 at paragraph No.6 has held as under:

"6. Even at this stage we may remind ourselves of a necessary in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit at the expense of social defence and to the soothing sentiment that are always good regardless of justice to the victim and demand especial emphasis in the contemporary context of and escape. The judicial instrument has a public cherished principles or golden thread of proof beyond which runs thro' the web of our law should not be stretched every hunch, hesitancy and degree of doubt. The reflected in the attitude that a thousand guilty men may go but martyr shall not suffer is a false dilemma. Only reasonable to the accused. Otherwise any practical system of justice will down and lose credibility with the community. The evil of acquitting person light heartedly as a learned author has sapiently observed, beyond the 61 simple fact that just one guilty person has gone acquittals become general, they tend to lead to a cynical law, and this in turn leads to a public demand for harsher against indicted 'persons' and more severe punishment of are found guilty. Thus, too frequent acquittals of the guilty may lead to penal law, eventually eroding the judicial protection of the all these reasons it is true to say, with Viscount Simon, that "a justice may arise from the acquittal of the guilty no less than from of the innocent ..." In short, our jurisprudential presumed innocence must be moderated by the pragmatic need to justice potent and realistic. A balance has to be struck chance possibilities as good enough to set the delinquent free the logic of preponderant probability to punish marginal have adopted these cautions in analysing the evidence and soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago."

63. The Apex Court in the case of Vijay Pal Singh and others Vs. State of Uttarakhand, reported in (2014) 15 SCC 163, more particularly paragraph No.20, which is reproduced hereunder for easy reference:

"20. Though in the instant case the accused were charged by the Sessions Court under Section 302 IPC, it is seen that the trial court has not made 62 any serious attempt to make an inquiry in that regard. If there is evidence available on homicide in a case of dowry death, it is the duty of the investigating officer to investigate the case under Section 302 IPC and the prosecution to proceed in that regard and the court to approach the case in that perspective. Merely because the victim is a married woman suffering an unnatural death within seven years of marriage and there is evidence that she was subjected to cruelty or harassment on account of demand for dowry, the prosecution and the court cannot close its eyes on the culpable homicide and refrain from punishing its author, if there is evidence in that regard, direct or circumstantial."

64. The Apex Court in the case of Mahadevappa Vs. State of Karnataka, reptd. by Public Prosecutor, reported in (2019) 18 SCC 561, more particularly paragraph Nos.34, 35 and 36, which are reproduced hereunder for easy reference:

34. The case of the prosecution was that it was the appellant, who poured kerosene oil on his wife-Rukmini Bai when she was in kitchen and set her on fire, whereas the case of the appellant was that it was a case of an accidental death. It was suggested that when Rukmini Bai was boiling water on the oven in the kitchen, her nylon sari accidentally came in contact with the fire, which resulted in her death.

35. In order to examine this question, the manner in which the incident occurred and the 63 surroundings prevailing in the room at the time of incident are important. The nature of burn injuries sustained by the deceased is also equally important.

36. Having perused the evidence, we are of the considered opinion that Rukmini Bai died due to pouring of kerosene oil and setting her body on fire and this act could be done only by the appellant and by no one else. In other words, it was a case of homicidal death and not a case of accidental death.

It is proved by the following circumstances.

36.1. First, it is not in dispute that the incident in question occurred in the house when only the deceased and the appellant were present. In other words, the appellant was the only person present at the time of incident in the house with the deceased. In these circumstances, it was the appellant who could give some plausible explanation as to how and in what manner the incident in question occurred. As mentioned above, the explanation given by the appellant was that Rukmini Bai's sari accidentally caught fire when she was boiling the water on the oven. In our opinion, this story of the appellant cannot be believed.

36.2. Second, the evidence of IO, post- mortem report, FSL report and the evidence of doctor (PW 6) has proved that kerosene oil was found on the body of deceased and second, one bottle of kerosene oil was also lying in the room. The presence of kerosene oil on the body of deceased would indicate that the kerosene oil was poured on her body. Since the appellant was the only person present in the room (kitchen), it was he who could do it.

36.3. Third, the presence of broken bangles found in the room suggest that the deceased must have struggled with the appellant to save herself which resulted in breaking of her bangles.

36.4. Fourth, had it been a case of catching of simple fire from the oven, then in such event, the 64 smell of kerosene oil from the body of the deceased would not have been found on her body.

36.5. Fifth, it is nobody's case that the deceased tried to commit suicide by pouring kerosene oil on her and then put herself on fire.

36.6. Sixth, the relations between the appellant and deceased were not cordial. The appellant always used to demand money from the deceased which she was not in a position to give to the appellant.

36.7. Seventh, had this been a case of accident as suggested by the defence then burn injuries sustained by the deceased would have been more on the lower part of her body rather on the upper part of the body because according to defence, the deceased was near to oven when her sari caught fire. The postmortem report, however, showed that the burn injuries were more on her upper part and her blouse was found burnt.

36.8. In the absence of any plausible explanation given by the appellant and the one which was suggested but not having been proved and further keeping in view the circumstances, the manner in which the incident occurred and material seized from the room i.e. kerosene oil bottle, it is proved beyond reasonable doubt that the appellant was responsible for causing death of Rukmini Bai. In other words, Rukmini Bai's death was homicidal and not accidental.

65. These aspects have not been taken into consideration by the trial Court, the trial Court ought to have considered the above aspects and if 65 the same had been considered, there would have been no other conclusion, but the guilt of the accused as regards the offence having been committed.

66. The accused Nos.1 to 4 were residing in the house, accused No.5 is stated to be an elder person of the community who visited the house of the accused Nos.1 to 4 on multiple occasions. The dying declaration speaks of accused Nos.3 and 5 standing outside the door. Thus, no overt act has been attributed to accused Nos.3 and 5 as such. The dying declaration only implicating accused Nos.1, 2 and 4 by alleging overt acts committed by them against the deceased, we are of the considered opinion that they are guilty of the offences as charged.

67. Accused No. 3 and 5 would come within the ambit and purview of the presumption under section 113B of the Indian evidence Act, there being sufficient evidence against them as regards the demands made for dowry as also harassment meted out to the deceased. In terms thereof Accused no. 3 and 5 though not guilty of offences under Section 302 of the IPC are guilty of the offence under Section 304 (B) of the IPC.

68. In view of the above we pass the following Order i. The Judgment of the trial Court dated 22.11.2016 passed in Special Case No.401/2011 is set aside.

ii. Accused Nos.1, 2 and 4 are held guilty of offences punishable under Sections 143, 147, 109, 504, 498-A, 302 read with Section 149 67 of IPC and Sections 3 & 4 of Dowry Prohibition Act.

iii. Accused No.5 is held guilty of offences punishable under Sections 143, 147, 109, 504, 498-A, 304B read with Section 149 of IPC and Sections 3 & 4 of Dowry Prohibition Act.

iv. Appeal filed against accused No.3 is abated.

(Sd/-) JUDGE (Sd/-) JUDGE *Svh/-

Crl.A. No.100156/2017 SGRJ & JMKJ:

23.12.2021 ORDER OF SENTENCE

1. In pursuance of the order dated 20.12.2021, accused Nos.1, 2 and 4 have been produced before this Court by Sri.S.R.Doog, ASI of Mahila Police Station, Belagavi. Accused No.5 is produced by Sri.F.M.Karigar, ASI and Head Constable 1843-Sri.I.B.Huded of Bailhongal Police Station.

2. Heard the accused, the counsel for the accused and the learned Additional SPP regarding sentence.

3. Sri.Vijay K Naik, learned counsel appearing for the respondents/accused submits that accused No.1 husband of the deceased is the sole bread winner of the family and he has 69 two minor children and his parents accused Nos.2 and 4 to look after. He further submit that accused No.2 is paralytic patient aged about 78 years, accused No.4 is aged about 80 years and accused No.5 is aged about 65 years, which may be taken into consideration while awarding the sentence. He submits that minimum sentence may kindly be awarded.

4. Sri.V.M.Banakar, learned Additional SPP appearing for the State submits that the offence being grievous, maximum sentence may be awarded.

5. Accused Nos.1, 2 and 4 have been convicted for the offences punishable under Sections 143, 147, 109, 504, 498-A, 302 read with Section 149 of IPC and Sections 3 & 4 of Dowry Prohibition Act. Accused No.5 has 70 been convicted for the offences punishable under Sections 143, 147, 109, 504, 498-A, 304-B read with Section 149 of IPC and Sections 3 & 4 of Dowry Prohibition Act.

6. Taking into consideration the submissions made, we pass the following order of sentence.

i. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 6 months and shall also pay fine of Rs.2,000/- each for the offence punishable under Section 143 of IPC. In default thereof, the defaulting accused shall undergo simple imprisonment of 2 months.

ii. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 1 year and shall also pay fine of Rs.5,000/- each for 71 the offence punishable under Section 147 of IPC. In default thereof, the defaulting accused shall undergo simple imprisonment of 3 months.

iii. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 18 months and shall also pay fine of Rs.5,000/- each for the offence punishable under Section 504 of IPC. In default thereof, the defaulting accused shall undergo simple imprisonment of 4 months.

iv. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.5,000/- each for the offence punishable under Section 498-A of IPC. In default thereof, the defaulting 72 accused shall undergo simple imprisonment of 6 months.

v. Accused Nos.1, 2 and 4 shall undergo imprisonment for life and pay fine of Rs.5,000/- each for the offence punishable under Section 302 of IPC. In default thereof, the defaulting accused shall undergo simple imprisonment of 6 months.

vi. Accused Nos.1, 2 and 4 shall undergo imprisonment for life and pay fine of Rs.5,000/- each for the offence punishable under Section 109 of IPC. In default thereof, the defaulting accused shall undergo simple imprisonment of 6 months.

vii. Accused No.5 shall undergo simple imprisonment for a period of 7 years and shall also pay fine of Rs.5,000/- for the 73 offence punishable under Section 304-B of IPC. In default thereof, he shall undergo simple imprisonment of 1 year.

viii. Accused No.5 shall undergo imprisonment for 7 years and pay fine of Rs.5,000/- for the offence punishable under Section 109 of IPC. In default thereof, he shall undergo simple imprisonment of 6 months.

ix. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 5 years and pay a fine of Rs.15,000/- each for the offence punishable under Section 3 of the Dowry Prohibition Act. In default thereof, the defaulting accused shall undergo simple imprisonment of 1 year.

x. Accused Nos.1, 2, 4 and 5 shall undergo simple imprisonment for a period of 6 months 74 for the offence punishable under Section 4 of the Dowry Prohibition Act.

7. All the substantive sentences shall run concurrently.

8. 50% of the fine amount shall be recovered and deposited in the name of the minor children of the deceased at the rate of 50% each.

9. The minor children shall also be entitled to make necessary application for compensation under Section 357A of Cr.P.C. for victim compensation, if not already made. Which shall be disposed of by the District Legal Services Authority within a period of three months from the date of this order, if not already done.

10. The accused shall also be entitled for set off of the periods spent in judicial custody.

11. Bail bonds, stand cancelled.

12. Issue conviction warrant.

13. Copy of the judgment of conviction and order of sentence shall be furnished to each of the accused free of cost forthwith, under acknowledgment.

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