Karnataka High Court
State Of Karnataka vs Sunil Devndra Kallimani on 24 July, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL No.2633/2009
BETWEEN:
STATE OF KARNATAKA
THROUGH WOMEN POLICE STATION,
BELGAUM CITY, BELGAUM.
... APPELLANT
(BY V.M. BANAKAR, ADDL. SPP)
AND
1. SUNIL DEVNDRA KALLIMANI,
AGE:40 YERS, R/O MARUTI ROAD,
GANDHI NAGAR, BELGAUM.
2. PUTALIBAI W/O DEVENDRA KALLIMANI,
R/O MARUTI NAGAR,
GANDHI NAGAR, BELGAUM.
... RESPONDENTS
(BY SRI. J BASAVARAJ, ADV.)
CRL.A FILED U/S.378(1) AND (3) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING THIS HON'BLE
COURT THAT: 1.GRANT LEAVE TO THE APPELLANT TO
APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTED DATED 24.09.2008 PASSED BY THE II
2
ADDITIONAL SESSIONS JUDGE, BELGAUM IN
S.C.NO.241/2007 FOR THE OFFENCES PUNISHABLE U/S
498 A AND 306 READ WITH SECTION 34 OF IPC. 2. SET
ASIDE THE AFORESAID JUDGEMENT AND ORDER OF
ACQUITTAL BY ALLOWING THIS APPEA; AND 3. CONVICT
AND SENTENCE THE ACCUSED RESPONDENT OF THE
OFFENCES WITH WHICH THEY HAVE BEEN CHARGE
SHEETED IN ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGEMENT
The State has preferred this appeal, challenging the judgement of acquittal recorded by the II Addl. Sessions Judge, Belgaum, in SC No.241/2007, dated 24/9/2008. The accused after service of notice, entered appearance before this Court engaged a counsel.
2. Heard the arguments of the learned Additional State Public Prosecutor and also the learned counsel for the accused respondents herein. For the purpose of convenience, I would like to retain the ranking of the respondents as per their ranking before the trial Court. 3
3. The learned Addl. State Public Prosecutor argued before the Court, mainly, basing his reliance on Exs.P8, 11, 13 and 17, which are styled as dying declaration given by the deceased in this case. It is contended by the learned Addl. State Public Prosecutor that the trial Court has not properly appreciated the evidence of PW1-Jambukumar Balasaheb Upadhye and PW-5 Smt.Ujwala Jambukumar Upadhye and PW-2-Manohar Bhimanna Upadhye and also four dying declarations given by the deceased.
4. It is further argued by learned S.P.P that, the documentary and oral evidence lead by the prosecution are sufficient to come to the conclusion that the accused persons have committed the offences alleged against them. Particularly, under Section 498A and 306 of IPC. It is also contended that the accused No.1 has contracted an illicit intimacy with a lady by name Meenakshi and in that regard, he started harassing and ill-treating his wife. That has been explicitly stated in the dying declarations as well as in the evidence of the other witnesses. This has not been properly 4 appreciated by the learned Sessions judge. The learned Sessions Judge is not justified in holding that the dying declarations are all doubtful and in view of the presence of the parents and in view of the other circumstances, prevailing at the time of recording the dying declarations and also in view of the inconsistency in the dying declarations. Trail Judge has wrongly arrived at a conclusion that the prosecution has not proved the case beyond all reasonable doubt. On the other hand, if the entire materials on record are re-evaluated, it would definitely disclose that the prosecution has proved its case beyond all reasonable doubts. Therefore, he prays for allowing of the appeal by setting aside the judgement of acquittal passed by the trial Court. Consequently, he requests the Court to convict the accused persons for the above said offences.
5. Sri.J.Basavaraj, the learned Counsel for the accused strenuously contends that, there are four dying declarations in this particular case and all the dying declarations are inconsistent with each other. The learned Counsel contends 5 that at the earliest point of time, immediately, after the incident the injured was admitted to the hospital and at the time of admitting the injured to the hospital, the information given to the hospital authorities was that she sustained burn injuries due to accidental fire. Further, he submitted that in the first dying declaration she never inculpated any of the accused persons into the crime. Subsequently, it appears at the instance of her parents, she has given two more dying declarations, wherein in the third dying declaration, she inculpated her husband and in the 4th dying declaration, she inculpated her mother-in-law also. Therefore, looking to the inconsistent dying declarations and improvement from one dying declaration to another, it will lead to the conclusion that the injured deceased was tutored by somebody, in order to give such statements before the different authorities, who have recorded the dying declarations. Therefore, such dying declarations cannot be relied upon by the Court, as rightly the trial Court has discarded the dying declarations and acquitted the accused persons. He further contends that the 6 evidence of PW-1- Jambukumar Upadhye, PW-5-Smt.Ujwala Jambukumar Upadhye and PW-2-Manohar Bhimanna Upadhye, even the evidence of these witnesses have also been meticulously discussed by the trial Court held that their evidence is not trustworthy for acceptance as such their evidence were also discarded and ultimately, Court came to the conclusion that the prosecution has not proved the case beyond all reasonable doubt. It is contended that it is not sufficient to place some materials before the Court, but, the prosecution has to prove on the basis of such materials that the case of the prosecution is proved beyond all reasonable doubts. Any doubt arises in the prosecution case, which goes to a root of the prosecution case, then such discrepancy cannot be ignored by the Court. As rightly, the learned Sessions Judge in its very detailed judgement, considered all these factors and acquitted the accused and there is no room to interfere with such a well reasoned judgement of the trial Court. He also contends that though there is some allegations made against accused No.1, with reference to his 7 illicit intimacy with one Meenakshi, no materials have been placed even to show the existence of such lady Meenakshi, much less any relationship between the accused No.1 and the said Meenakshi. Therefore, for all these reasons, he prayed for dismissal of the appeal. Before adverting to the factual matrix as well as the evidence placed before the trial Court, it is just and necessary for this Court to bear in mind, the guidelines of the Apex Court with regard to the powers of the appellate Court, while dealing with the acquittal Judgements.
6. In a decision reported in 2013(4) AKR 289 between S.Govindraju Vs. State of Karnataka, wherein the Apex Court held that:-
"It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgement of acquittal passed by the Court below, if the finding so recorded by the Court below are found to be perverse, i.e., if the conclusions arrived at by the Court below are contrary to the evidence on record, or 8 if the Court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgement is unreasonable and based on an erroneous understanding of the law and facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence".
7. In view of the above said decision, it is well settled principle that the appeal against the acquittal are placed at different footing than the normal appeals, against the judgement of conviction. The legislative intent of attaching different and distinct value to judgements of acquittals cannot be ignored by the Appellate Courts. It is the fundamental basic principle of our constitution that the accused is an innocent, unless guilt is proved beyond reasonable doubt, by the prosecution. By virtue of the judgement of the trial Court, acquitting accused, it fortifies the innocence of the accused. Therefore, before interfering with the judgement of acquittal, the Appellant Court should 9 be very careful and it should expect a strong and convincing cogent evidence before the Court, in order to reverse the judgement of the trial Court. It is also a recognized principles of law that the appellate Court, on the basis of the same materials on record, can record its opinion, independently, that of the trial Court's opinion. But, that does not mean to say, that the opinion of the trial Court shall be ignored. On the basis of the same facts and circumstances of the case, if two opinions are possible, one opinion is already expressed by the trial Court, normally the appellate Court should not substitute the said opinion of the trial Court, by its opinion unless strong and cogent, convincing evidence is available. Bearing in mind, the above said principles, now let me considered the materials on record.
8. It is the case of the prosecution that the deceased Padma Kallimani, is the wife of accused No.1. Accused No.2 is the mother of accused No.1. There is no dispute with regard to the relationship and it is also not disputed that 10 after the marriage, she started living with accused persons, in her matrimonial home. It is the case of the prosecution that after some years of marriage, the accused No.1 had developed illicit intimacy, with one Meenakshi and therefore, the accused 1 and 2 have started ill-treating and harassing the deceased. Having frustrated in the life, due to the ill- treatment and harassment by the accused persons which was to such an extent, sufficient to drive a women to commit suicide. Accordingly, being frustrated and being so much ill- treated by the accused persons on 22/10/2006, the deceased committed suicide, by pouring kerosene on herself and litting fire. The prosecution wants to establish this particular factum of ill-treatment and harassment and also commission of the suicide by the deceased, on the basis of the evidence of PWs.1, 2 and 5. The trial Court judgement discloses that after appearance of the accused, the trial Court framed charges under Section 498A and 306 of IPC. As the accused persons did not plead guilty, the Court held the trial, recorded the evidence of 18 witnesses, marked 17 11 exhibits and one plastic can as M.O.1. The accused persons did not choose to lead any defence evidence. After hearing the detailed arguments, the trial Court has recorded the judgement, which is impugned under the appeal. The entire case of the prosecution revolves around four dying declarations recorded by the different authorities. The trial Court in fact, dealt with each and every dying declaration and gave its findings. The Court has to ascertain whether such findings is proper and correct.
9. Before adverting to the first dying declaration, it is just and necessary for this Court to look into as to what happened immediately after the alleged fire incident, in the house of the accused persons. The records disclose that immediately after the incident, the injured was shifted to the hospital. The document which is marked before the Court at Ex.P16, at page 2 of the said document shows that the history of the incident explained by the persons who have actually admitted the injured to the hospital. The summary sheet of the KLES Hospital and Medical Research Centre, 12 Nehrunagar, Belgaum, shows that the deceased had suffered 70% of thermal burn with injury. The history given by the injured herself was that she sustained burn injuries while cooking food, due to her cloths having caught fire on 22/10/2006 at 6.00pm. This is the earliest information given by the injured herself, to the hospital authorities. Even it is fortified in the same document, as the doctor has written subsequently the history of the case, that the injured has informed him that she suffered injuries while she was cooking food. In this background, she was admitted to the hospital and later, four dying declarations have been recorded. Further, added to that, PW-6-Dr.Vishnu Madhav Pai, who had admitted the deceased to the hospital, who was the causality medical officer, at that point of time has also deposed before the Court regarding the MLC report and also the earliest information given by the injured. In this backdrop now let me consider the dying declaration sequence wise.
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10. Now, coming to the first dying declaration recorded, which is marked at Ex.P11, recorded by PW-14, Taluka Executive Magistrate. Ex.P11 discloses that nobody was present with the deceased at the time of recording of the statement except the Doctor. This document also clearly discloses that Dr.Kamat has given a certificate that the said lady had suffered 70% thermal burn and she was in a fit condition to give the statement. This was recorded in the presence of the Doctor throughout on 23/10/2006, between 10.35am to 11.05am, in which the injured has not at all implicated anybody and fully fortified the statement given by her, at the time of her admission to the hospital, reiterating that on the day of the incident at 6.30pm, she sustained burn injuries due to accidental fire and she never implicated anybody into the crime. PW-14, who recorded the statement of this lady has in fact given a vivid evidence before the Court, admitted that nobody was present along with the deceased, at the time of recording the statement and he was also fully convinced that the deceased was in a full control of 14 her mind and body, at the time of giving such dying declaration. Therefore, this dying declaration, Ex.P11 is fully consistent with the MLC register. What the learned Sessions Judge has observed is that, at the time of the recording of the dying declaration-Ex.P11, nobody was present except the doctor. This clearly indicates that right from the time of sustaining the injury by the injured, nobody was there with her, in order to tutor her or in order to persuade her, to give a statement in such a manner. Because, according to the prosecution, so far as further dying declarations are concerned, the deceased has changed her version, by implicating the accused Nos.1 and 2. The learned Sessions Judge has perfectly appreciated this fact, while taking into consideration of evidence PW14 and Ex.P11, in order to come to the conclusion that this Ex.P11 was not a tutored document. Therefore, I do not find any strong reasons to differ from the opinion expressed by the trial Court, so far as this Ex.P11-dying declaration is concerned. 15
11. After lapse of 7 days, it appears, PW-12 Mr.Nashiruddin Abdulkarim Rajagoli, recorded the second dying declaration, which is marked Ex.P8. I do not want to over burden this Judgement by discussing with regard to the formalities of intimation sent to the police for recording of the statement of the dying declaration of the witness by the doctor PW-7-Dr.Ajit Gurudev Wandre, who has stated that while treating the patient, she disclosed that she want to give one more dying declaration. Therefore, he intimated the concerned police Officer to take appropriate action. Here, it is a notable point that the first dying declaration was recorded by the Executive Magistrate at the requests of the jurisdictional police. But, the second dying declaration was recorded by the Malamaruti police station P.S.I. by himself, on 30/10/2006 at about 10.15pm. In the second dying declaration, she has made lot of improvements and stated that, she committed suicide, because of the reason, her husband had contracted an illicit relationship with a lady by name Meenakshi, a peon working in Saint Mary School, 16 Nippani, and in that context, the accused No.1 always used to abuse her and assault her. Therefore, being frustrated, she committed suicide by pouring kerosene and litting fire. This Ex.P8, it appears, is the first document under which a criminal offence has been disclosed against accused No.1 alone, on which basis, a case has been registered under Section 498A of IPC. But, this particular document is also appreciated by the trial judge that the said document is also not believable. Because of the reason, the doubt has been created as to who actually recorded the said statement. PW- 18- Dr.Sundaraju Sham Gorla, who was examined and stated before the Court that the said statement EX.P8 was recorded by a police constable. On the other hand, it was recorded by PSI, Malamaruti PS. The learned Sessions Judge also observed that in Ex.P8, left thumb impression of the deceased was obtained and he compared the same with the left thumb impression of the deceased in EX.P11. This also created a serious doubt as to how the left thumb impression could be put by the deceased, when there are ample 17 materials to show that her hands were completely burnt due to burns and the same was bandaged. The learned Sessions judge has also appreciated the evidence of PW-12 and PW-18 and this particular document. Looking to this document- Ex.P12, it is totally inconsistent with the earlier documents, i.e. MLC report as well as the first dying declaration. Therefore, the leaned Sessions has expressed serious doubt so far as this dying declaration is concerned, such doubt is a reasonable doubt. Further added to that, during the course of examination of the victim, while recording the second dying declaration, there is ample materials to show that the father and mother of the deceased, Smt. Padma Kallimani were very much present at the time of recording the dying declaration. Further astonishing factor in so far as this dying declaration is concerned, there is no explanation by PW-2 as to why PW-12 has not taken the assistance of the Executive Magistrate to record the dying declaration and he never made any attempts to secure the presence of the Executive Magistrate to record such dying declaration, when the first 18 dying declaration was recorded by the Executive Magistrate, if there is sufficient opportunity for the police officer, any number of dying declarations, has to be recorded during the course of investigation, he has to make all his efforts to secure the presence of the Executive Magistrate. Because of the simple reason, the Investigating Officer or police people are always interested in the prosecution case and they may by means of over enthusiasm, introduce new facts for the purpose of improving the case of the prosecution. In order to avoid this anomaly, it is always necessary and suggested that the police officer should take assistance of the competent authorities for the purpose of recording the dying declaration. So in the absence of such explanation, in my opinion, this also creates a serious doubt with regard to the recording the second dying declaration.
12. The next important document is the Ex.P17, the third dying declaration recorded by a women police Sub Inspector-PW-16. During the course of the evidence of PW- 16, she has stated that she recorded the first information 19 report as per Ex.P7, on the basis of Ex.P8. On the same day she also recorded statements of PWs.1,2,5 and 7, i.e. before recording the dying declaration-Ex.P17. This also goes to show that in order to improve the case of the prosecution, on the basis of Ex.P8, the statements of PWs.1,2,5 and 7 were recorded. There is no explanation by PW-12, who recorded the dying declaration on 31/10/2006, as to why he did not venture upon to record the statements of the kith and kins of the deceased. Now, coming to the Ex.P17, this was recorded on 31/10/2006, very next day of recording of the second dying declaration under Ex.P8. Ex.P17 as could be seen, this is nothing but reiteration of the contents of Ex.P8, and inculpating the second accused into the crime. Moreover, there is no explanation in Ex.P17, as to why the deceased could not narrate the overtacts of accused No.2, in her earlier dying declaration recorded under Ex.P8. This also creates a serious doubt as to why the deceased wanted to improve her statement, frequently, when compared, with her versions right from the beginning, since she was admitted to the 20 hospital. As rightly contended by the learned Counsel- Sri.Basavaraj, so for as this dying declaration is concerned the police officer has not at all taken care to take the opinion of the Doctor, with regard to the physical and mental fitness of the injured, before recording the said dying declarations. On careful perusal of Ex.P17, it discloses, it is just like 161 statement, which bears the signature of a women PSI, i.e PW-
16. Of course, the opinion of the doctor is not absolute requirement before recording the dying declaration, but, when the availability of the doctor is there and victim was in the hospital and before recording of the earlier dying declaration, the doctors opinion was to be taken, it should have been explained, why she did not choose to take the opinion of the doctor before recording Ex.P17. It is also a well founded reasoned principle of law that anybody can record the dying declaration. He need not be a police officer or a doctor, any ordinary prudent man can record the dying declaration. The criteria is that a person who records the dying declaration, must satisfy himself that a person who is 21 giving the dying declaration is mentally and physically fit and sound and having control over his senses. Therefore, in the absence of such recording of the satisfaction, by the women PSI, before recording of the dying declaration, in my opinion, makes as a dying declaration totally invalid for consideration. Be that as it may in EX. P17, the women PSI has noted that the left toe impression of the deceased was taken to the dying declaration. It is also not explained why PW-12 could take the impression of the left thumb of the deceased but to why this women PSI, could not take the thumb impression. Compare to the three dying declarations referred to above, two dying declarations, in which left toe impression was taken and in one dying declaration, left thumb impression was taken. This also went unexplained by the witnesses, why they have been done so. PW-16 also never stated in her evidence before Court, that how she was satisfied herself with regard to the mental and physical condition of the deceased Smt.Padma Kallimani, before recording her dying declaration. As I have said this declaration is also nothing 22 but reiteration of the earlier dying declaration. I will consider the evidentiary value of the contents of the contents of dying declaration little later after considering the last dying declaration.
13. Ex.P13 is the last dying declaration recorded by PW-14 on 5/11/2006. PW-14-Annappa Yallappa Patagundi, the Taluka Executive Magistrate, who recorded the first dying declaration of the deceased on 23/10/2006, marked at Ex.P8. Of course, this documents also bears certification of the doctor-PW-15-Dr.Somashekhar Ramaiah Pujar. The evidence of PW-14 and PW-16-Gouramma Shivalingappa Harwad, who have stated before the Court, that at the time of recording Ex.P-13, the parents of Padma Kallimani were just stood by the side of the deceased. It is also time tested principle that as far as possible nobody should be present at the time of recording the dying declaration in order to avoid unnecessary tutoring by anybody to the person, who gives the dying declaration. The 4th dying declaration marked at Ex.P13 is also almost reiteration of the earlier dying 23 declaration inculpating accused Nos.1 and 2. But, in this particular dying declaration, it is alleged that the accused No.1 was addicted to alcohol and he always abusing and assaulting her, in connection with his illicit intimacy with Meenakshi Naik. This document also bears left toe impression of the deceased. Looking to the above said dying declaration, three dying declarations, Exs.P8, 13, and 17 are consistent with each other, under which the deceased inculpated accused Nos.1 and 2 and also made some allegations against them. But, as rightly observed by the learned Sessions Judge, these subsequent dying declarations are recorded, when the deceased was under the influence of her parents. The earlier dying declaration admittedly recorded by the Executive Magistrate, who has clarified that nobody was present at the time of recording such dying declaration. Therefore, it can be safely relied upon by the Courts, because the deceased uninfluenced by any external forces, has given such statement before the Executive Magistrate. The subsequent dying declarations recorded by 24 the police officer, in my opinion, not up to the standard, they have not even followed the recognized fundamental principles as to how to record the dying declaration. Because, at the time of recording the dying declaration by the women police, the parents of the deceased were very much present and another police officer who records the dying declaration, even without caring to take the opinion of the doctor. Therefore, the trial Court, in my opinion, has rightly discarded these dying declarations.
14. I do not want to much discuss with regard to the evidence of the other witnesses. Because, even prior to the registration of the case, on the basis of Ex.P8, nobody came forward to give any statement against the accused persons. If at all, there was any doubt in the conduct of the accused persons, which could be connected to the injuries sustained by the injured, the parents must be the first persons to approach the police to lodge a complaint against the accused persons or expressed suspicion with regard to the incident. The Ex.P8 was recorded on 30/10/2006. There was lot of 25 time between the first dying declaration and second dying declaration i.e. from 23/10/2006 to 30/10/2006. There was 7 days at the hands of the parents of the injured. If at all, the accused persons have ill-treated or harassed, even to the remote extent, if it was well within the knowledge of the parents of the deceased, they would have definitely informed the police about the previous antecedent conduct of the accused persons. This also clearly, indicates that, only after the second dying declaration, the case of the prosecution has been developed in order to inculpate the accused persons perhaps at the instance of some third parties. Therefore, the evidence of PWs.1,2 and 5 is in my opinion, not at all relevant for the purpose of considering the allegations against the accused persons. Moreover, the evidence of these witnesses have also very meticulously discussed by the trial Court and it is categorically, said that they are the interested witnesses and they also in their statement does not properly inculpate the accused persons.
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15. Nowhere in the evidence of these witnesses, nor in the dying declaration, it is explained who is this Meenakshi, who had illicit intimacy with accused No.1. The whereabouts of Meenakshi and the relationship between accused No.1 and Meenakshi and circumstances which led to their relationship have never been investigated nor stated by any of the witnesses before the Court in order to draw any inference to connect the accused No.1 with the said Meenakshi. Therefore, I do not find any strong reasons to interfere with the judgement of the trial Court.
16. The trial Court in fact at paragraphs 68 to 74 relied upon ample number of rulings of the Apex Court and the High Court of Karnataka in order to how the harassment and ill-treatment has to be established by the prosecution and how the dying declarations have to be considered by the Courts and how the evidence of the prosecution witnesses have to be appreciated and analysed in order to draw inference with regard to the genuinity of the dying 27 declarations. I do not want to over burden this judgement by reiterating those judgements.
17. Apart from the discussion made by the learned Sessions Judge, in my opinion, this Court to examine whether the prosecution is successful in establishing that the marital relationship between accused No.1 and the deceased was broken and alleged ill-treatment was to such an extent and it was sufficient to drive the said lady to commit suicide and whether the allegation of the illicit intimacy between accused No.1 and Meenakshi, itself is sufficient to imagine that the accused has ill-treated and harassed the deceased. Even assuming that the said factum as stated by the deceased in the dying declaration are true that accused No.1 got some relationship or intimacy with Meenakshi, that itself is not sufficient to drive a women to commit suicide. Because of the simple reason, the illicit intimacy between the accused and the alleged Meenakshi should establish intention of the accused No.1 to drive his wife to commit suicide. The intention of the accused persons play a 28 dominant role, mere relationship between even assuming between accused No.1 and Meenakshi does not mean to say that the accused No.1 has intended to drive is wife to commit suicide. In this background, it is worth to note, a decision of the Apex Court reported in (2013) 10 SCC 48 between Pinakin Mahipatray Rawal Vs. State of Gujarat wherein the Apex Court held that:-
"Cruelty includes both physical and mental cruelty for the purpose Section 498A of IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak persons may think of ending one's life. The mere fact that the husband has developed some intimacy with another women, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty" but it must be of such a nature as is 29 likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC".
Yet another ruling, it is also worth to be noted with reference to dying declaration, in my opinion, the facts involved in this ruling is almost similar to the facts involved in this particular case. It is reported (2007) 13 SCC 112 between Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka, wherein the Apex Court dealt with the multiple dying declarations in the said case also and held that:-
"Multiple, inconsistent Dying Declaration - Conviction on the basis of - Sustainability - Appellant- accused (husband of deceased) alleged to have assaulted the deceased with a broomstick and when she fell down Accused 3 (mother-in-law of deceased) poured kerosene on her, while accused 2 (father-in-law) ignited the matchstick setting her on fire - All the PWs including her parents, brothers and sister-in-law turning hostile and not supporting prosecution version - Deceased making four dying declarations: two before the medical officers, one before the Executive Magistrate and one before the police officer- In the dying declarations before medical officers she attributing the incident to have taken place 30 accidentally, but before the police she accusing her husband and in-laws of abusing her and setting her on fire; while before the Executive Magistrate she stating that her husband had assaulted her with broomstick and when she fell down her in-laws poured kerosene on her and set her on fire but her husband and father-in- law also poured water on her, while her husband brought her to hospital- Held, conviction can indisputably be based on a dying declaration but the same should be reliable and to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon - In the instant case the deceased herself had taken contradictory and inconsistent stand in different dying declarations and hence the same should not be accepted on their face value. - Moreover, the deceased had attributed the acts primarily on her parents-in-law and they having been acquitted, appellant husband alone cannot be held responsible.
18. Applying the facts and principles enunciated in the above rulings, to this particular case also, it is seen that, at the earlier stages from the date of marriage, till the injured sustained injuries, there is absolutely no allegations of whatsoever made against the accused persons, before any 31 authorities. No witnesses have been examined to establish that there was some misunderstanding between husband and wife, prior to the incident with reference to the illicit intimacy between accused No.1 and one Meenakshi. No investigation has been done by the police in order to ascertain whether the allegation made in the dying declaration are true or whether they are based on any false and imaginary factual aspects. Further added to that at the initial stages, when immediately after the incident, the deceased has taken a firm stand before the doctors and also before the Executive Magistrate, while giving her first dying declaration that there was absolutely no sort of ill-treatment or harassment by anybody in her house, but, it was only an accidental fire caught to her Saree and because of that she sustained burn injuries and later succumbed to death.
19. Looking to the above said facts and circumstances of the case, I am of the opinion, there is absolutely no reliable acceptable and believable evidence whatsoever, against the accused persons to draw an 32 inference that the prosecution has proved the case beyond all reasonable doubt. Under the above said circumstances, the trial Court has not committed any error in acquitting the accused persons. A word of appreciation that the trial Judge, in my opinion, has appreciated each and every circumstance meticulously and appreciated the oral and documentary evidence in proper perception, which requires appreciation not disturbance. Therefore, the appeal filed by the State is devoid of merits and the same is liable to be dismissed and accordingly, dismissed.
Sd/-
JUDGE Vmb/ct:pih