Karnataka High Court
State Of Karnataka vs Nandi @ Nandeesha on 24 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A. No.1024 OF 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B KATTI
CRL.A No.1024 OF 2016 (A)
BETWEEN:
STATE OF KARNATAKA
BY THE DEPUTY SUPERINTENDENT OF POLICE
SOMWARPET SUB-DIVISION
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE-571 236
...APPELLANT
(BY SRI.B.N.JAGADEESHA, ADDL. SPP)
AND:
NANDI @ NANDEESHA
SON OF KUMARA
AGED 27 YEARS
COOLIE, R/AT KUDLUR VILLAGE
SOMWARPET TALUK
...RESPONDENT
(BY SRI.V.S.VINAYAKA, AMICUS CURAIE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
28.01.2016 PASSED BY THE I ADDL. DIST. AND S.J., KODAGU AT
MADIKERI IN S.C. NO.4/2011 THEREBY ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 498A, 304B, 302
OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 22.09.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI, J.,
DELIVERED THE FOLLOWING:
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CRL.A. No.1024 OF 2016
JUDGMENT
The appellant/State feeling aggrieved by the judgment of Trial Court on the file of I Additional District and Sessions Judge, Kodagu at Madikeri in S.C.No.4/2011 dated 28.01.2016, preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that marriage of accused with deceased Asha was performed on 14.6.2010 in Kanive Shri Ramalingeshwara temple. At the time of marriage, PW.1-Veena, mother of deceased Asha, gave dowry of Rs.25,000/- and clothes. They led marital life for about two months happily and thereafter accused started ill-treating his wife by daily consuming alchohol. On 11.9.2010 deceased Asha had come to her mother's house to perform Gowri festival. At that time, -3- CRL.A. No.1024 OF 2016 accused did not allow her to take food in parental house on the premise that mother of Asha did not bring clothes to him. Accused took deceased Asha to the house forcibly while abusing her on the way throughout. On coming to house in the evening at about 5.00 p.m., accused assaulted her and poured kerosene by tying both hands to back, thereafter set fire. The accused after locking the door went out of house. On hearing the screaming of deceased Asha, neighbours came and extinguished the fire by pouring water, then admitted injured Asha to Government hospital. On discharge from hospital, she died due to said burn injuries after one month in the house of her mother Veena. On these allegations made in the complaint, the Investigating Officer having completed investigation filed the charge sheet for the offence punishable under Section 498A, 302, 304B of IPC.
4. In response to the summons, accused has appeared through counsel. The Trial Court being prima facie satisfied of charge sheet materials, framed charges -4- CRL.A. No.1024 OF 2016 against accused for offences alleged against him. Accused pleaded not guilty and claimed to be tried. Prosecution to prove the allegations made against accused, relied on oral testimonies of PWs.1 to 22 and documents Exs.P1 to P.21, so also got identified MO Nos.1 to 6.
5. After closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused has denied all the incriminating material evidence appearing against him and claimed that false case is filed. The Trial Court after appreciation of evidence on record acquitted the accused from all the charges leveled against him.
6. Appellant/State challenging judgment of acquittal contended that Trial Court has not properly appreciated the evidence on record. PW.1-Veena, mother of deceased Asha during the course of her evidence has categorically spoken about physical and mental harassment caused by accused and her death is within 7 years from the date of marriage and accused is solely responsible for committing -5- CRL.A. No.1024 OF 2016 murder of his wife, Asha. The death of Asha is due to burn injuries that she has suffered and the said fact has been substantiated by the evidence of PW.15-Dr.Sridhar who has conducted autopsy of deceased Asha and given post mortem report Ex.P.16. The death of deceased Asha is a homicidal death occurred in the house of accused due to burn injuries and she died within 7 years of her marriage, the Trial Court would have drawn presumption under Section 113B of the Indian Evidence Act, 1872. The two dying declarations of deceased Asha i.e. one recorded by PW.16-Devaiah Ex.P.15 in presence of PW.15 Dr.Sridhar and another dying declaration recorded by Tahsildar PW.22-Rekha Ex.P.21 on 12.9.2010 has not been properly appreciated by the Trial Court. Therefore, prayed for allowing the appeal and to set aside judgment of Trial Court, consequently to convict the accused for the offences alleged against him.
7. Though notice was served twice, the respondent remained absent. This Court vide order dated 31.8.2023, -6- CRL.A. No.1024 OF 2016 appointed Amicus curiae Sri V.S.Vinayaka to represent respondent/accused. The Trial Court records have been secured.
8. Heard the arguments of both sides.
9. After hearing arguments of both sides and on perusal of Trial Court records, following points arise for consideration :
1. Whether the prosecution has proved beyond all reasonable doubt that accused being the husband of deceased Asha has subjected her to mental and physical cruelty by physically assaulting her and thereby committed an offence under Section 498A of IPC ?
2. Whether the prosecution has proved beyond all reasonable doubt that on 11.9.2010 at about 5.00 p.m. in the house of accused, with an intention and knowledge to commit murder of Asha, tied her both hands and by pouring kerosene, lit fire and went out of the house.
On hearing hue and cry of Asha, the neighbours came to the house and shifted her to Govt. hospital, Kushalnagar and she died due to burn injuries on 14.11.2010, thereby -7- CRL.A. No.1024 OF 2016 committed an offence under Section 302 of IPC ?
3. Whether the prosecution has further proved beyond all reasonable doubt that deceased Asha on account of ill-treatment and harassment of accused subjected her to physical and mental cruelty and she died due to burn injuries in his house on 14.11.2012 within 7 years of marriage and her death is dowry death, thereby committed an offence under Section 304B of IPC?
4. Whether the judgment of Trial Court requires any interference by this Court?
10. On careful perusal of oral and documentary evidence placed on record, it would go to show that prosecution alleges that accused and deceased prior to 8 days of marriage, left the house and thereafter deceased Asha contacted her mother over phone and informed that herself and accused are in Hunsur. PW.1-Veena, mother of deceased asked her to come back with accused and she will perform their marriage. Accordingly, the marriage was performed in Kanive Ramalingeshwara Temple. They -8- CRL.A. No.1024 OF 2016 led marital life happily for one month and then differences arose between them and accused used to assault her daughter Asha. The fire incident took place in the house of accused on 11.9.2010 at about 5.00 p.m. and Asha suffered burn injuries, due to which she was shifted to Government hospital, Kushalnagar and then to Government hospital at Madikeri. The injured Asha was discharged from Government hospital, Madikere and PW.1-Veena, mother of deceased was asked to take care in the house itself by providing required treatment. On such advice, injured Asha was shifted to house and she succumbed to the burn injuries on 14.11.2010.
11. The prosecution to prove the death of victim-Asha within 7 years of marriage and ill-treatment of accused relied on the oral testimony of PW.1-Veena, PW.2-Kumari and PW.3-Suresha, PW.4-Laxmi and PW.5-Madegowda. The prosecution to prove that death of deceased Asha was due to burn injuries, relies on evidence of PWs.1 to 5, PW.7-Virupaksha, PW.14-Devaraj to prove the inquest -9- CRL.A. No.1024 OF 2016 panchanama Ex.P.2 and that of the evidence of PW.15- Dr.Sridhar. The prosecution to prove the two dying declarations, relied on the oral testimony of PW.15- Dr.Sridhar, PW.16-Devaiah who has recorded the dying declaration Ex.P.15 in presence of PW.15-Dr.Sridhar who identified his signature as Ex.P.15(a). The another dying declaration was recorded by PW.22-Rekha, Tahsildar Ex.P.21 on 12.09.2010 after obtaining fitness certificate from the treating doctor. The said evidence is sought to be corroborated by the evidence of PW.20-P.Mallesh, FSL officer, who has given FSL report Ex.P.20 and that of Investigating Officer PW.19-Channegowda and PW.21- Jayaprakash.
12. The learned Additional SPP has argued that evidence of PWs.1 to 5 would speak about death of deceased Asha within a period of 7 years of her marriage due to burn injuries in the house of accused which took place on 11.9.2010. The evidence of PW.1-Veena would go to show that deceased Asha due to burn injuries was
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CRL.A. No.1024 OF 2016 shifted to Kushalnagar Government hospital and then shifted to Madikeri Government hospital. She was discharged from the hospital, since there were no chances of her survival and doctor advised to follow the treatment by staying in the home. Therefore, she was brought back to the house and she died on 14.11.2010 due to burn injuries. The said evidence has not been appreciated by the Trial Court in the light of defence of accused that deceased Asha being humiliated in her parents house on account of her inter caste marriage with accused, due to which she committed suicide. The said defence has not been probabalised by accused during the cross- examination of PW.15-Dr.Sridhar who has conducted autopsy of deceased Asha and issued post mortem report Ex.P.16. The deceased has given two dying declarations, the first one is recorded by PW.16-Devaiah Ex.P.15 in presence of PW.15-Dr.Sridhar who has signed as Ex.P.15(a). The another dying declaration was recorded by Tahsildar PW.22-Rekha on 12.9.2010 Ex.P.21. The witness though has not produced the fitness certificate
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CRL.A. No.1024 OF 2016 which she had obtained before recording dying declaration Ex.P.21, but she enquired with treating doctor and on getting fitness certificate, she has recorded dying declaration Ex.P.21. Therefore, non-production of fitness certificate will not take away the oral evidence of Tahsildar PW.22-Rekha. The said two dying declarations of deceased Asha are on same line regarding cause of she sustaining burn injuries and who set her on fire. On the point of cruelty, PWs.1 to 5 have consistently deposed about accused under the influence of alchohol used to physically assault deceased Asha and she was subjected to mental and physical cruelty. The above referred evidence placed on record by the prosecution has been misread by the Trial Court and as a result recorded improper finding in acquitting the accused.
13. Per contra, learned Amicus Curiae for the respondent has argued that it is in the evidence of PWs.1, 3 and 4 that both the hands of deceased Asha were tied and PW.1- Veena, mother of deceased Asha claims that her both
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CRL.A. No.1024 OF 2016 hands were tied with veil from back. PW.16-Devaiah, ASI did not state that hands of deceased Asha were tied. However, there is no evidence on record to prove as to how she got untied the hands and could open the door has not been explained by the prosecution out of the evidence on record. The evidence of PWs.2 to 5 cannot be relied, since their evidence is based on the disclosure made by PW.1-Veena who is not an eye witness to the incident regarding the burn injuries suffered by deceased Asha. PW.16-Devaiah and PW.19-Channegowda, PSI though have visited the hospital, but have not seized MOs 1 to 3. The multiple dying declarations which overlap each other and not free from cloud of doubt, as such they cannot be accepted. The Trial Court has rightly appreciated the evidence on record and the finding recorded based on the material evidence placed on record by the prosecution, as such the same does not warrant any interference by this Court.
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CRL.A. No.1024 OF 2016
14. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offence punishable under Sections 498A, 304-B and 302 of IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
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CRL.A. No.1024 OF 2016 "42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
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CRL.A. No.1024 OF 2016
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
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CRL.A. No.1024 OF 2016 The Hon'ble Apex Court in another latest judgment in Roopwanti Vs. State of Haryana and others reported in 2023 SCC online 179, wherein it has been observed and held in paragraph No.7 that:
"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgment by this Court".
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
15. It is in the evidence of PW.15 - Dr.Sridhar that on 11.9.2010 at 5.20 p.m., one Asha with burn injuries was brought to the hospital and he has given primary treatment, so also issued wound certificate Ex.P.13.
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CRL.A. No.1024 OF 2016 PW.15-Dr.Sridhar further deposed to the effect that he has given MLC intimation Ex.P.14 to Kushalnagar police station. On receipt of MLC intimation, PW.16-Devaiah ASI visited the hospital and recorded the statement of victim Asha Ex.P.15 and registered a case in Kushalnagar police station in Crime No.248/2010 for the offences under section 498A, 307 of IPC.
15(a) On the next day, dated 12.9.2010 PW.22-Rekha, Tahsildar of Somwarpet received requisition from PSI Kushalnagar for recording dying declaration of Smt.Asha who was under treatment in Government hospital for burn injuries suffered by her. She recorded dying declaration Ex.P.21. The injured deceased Asha succumbed to the burn injuries on 14.11.2010 and in view of death of Asha, Section 302 and 304-B of IPC came to be included in place of offence under Section 307 of IPC.
16. PW.1-Veena, mother of deceased Asha, has deposed to the effect that about two years back, marriage of her daughter with accused Nandeesha was performed in
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CRL.A. No.1024 OF 2016 Kanive Sri Ramalingeshwara Temple. About 8 days prior to the marriage, deceased Asha and accused left the house and she informed her mother over phone that she is with accused and staying in Hunasuru. PW.1-Veena asked them to come back to house and she will perform their marriage. On their return, marriage of deceased Asha was performed and given Rs.25,000/- for marriage expenses, so also given ear stud and hanging and other articles. They led marital life for one month happily. Accused thereafter under the influence of alchohol used to physically assault his wife Asha.
16(a) On the eve of Gowri festival, her daughter Asha and accused came to the house and after lunch, they left the house stating that mother of accused is alone in the house. She had given clothes to her daughter Asha on the eve of festival and did not give anything to accused.
16(b) On the same day evening at 5.30 p.m. the neighbour of PW.1-Veena told to her that accused by pouring kerosene on Asha, lit fire and she was taken to Kushalnagar hospital. On receiving such information, she
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CRL.A. No.1024 OF 2016 went to Kushalnagar hospital and found her daughter Asha having burn injuries over her body and she was responding to question put to her. On enquiry Asha told her that after leaving the house, accused throughout the way came abusing her and assaulted her on the pretext that her mother has given clothes only to Asha and not given anything to him. On reaching the house also, she was assaulted by accused. While she was cleaning sambar fallen on the floor, accused came from her back and tied hands with veil, so also gagged her mouth with cloth and after pouring kerosene, lit fire. At that time, mother of accused was also threatened of the same consequences if she makes any galata. Thereafter, accused by closing the door left the house.
16(c) On hearing hue and cry of Asha, owner of the house and neighbours came to the house and extinguished the fire by pouring water, then she was shifted to Kushalnagar Government hospital and then to Government medical hospital, Madikerei. There was no improvement in the health condition of her daughter Asha even after 15
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CRL.A. No.1024 OF 2016 days and the doctor discharged her from the hospital as her survival chances were very less and asked PW.1- Veena to give treatment in the house itself. She further deposed to the effect that after 20 days of coming to the house, Asha succumbed to burn injuries.
17. The evidence of PW.2-Kumari, sister of PW.1- Veena, PW.3-Suresha, husband of PW.2, PW.4-Laxmi who is the younger sister of PW.1 and PW.5-Madegowda the husband of PW.4-Laxmi would go to show that they have deposed regarding the burn injuries suffered by Asha and the incident taking place in the house of accused, further Asha succumbing to burn injuries on 14.11.2010. Their evidence admittedly is based on revelation of information about the incident by PW.1-Veena, mother of deceased Asha. Keeping in mind the background of said evidence on record, evidence of remaining witnesses will have to be appreciated in the light of case made out by the prosecution.
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CRL.A. No.1024 OF 2016
18. The oral testimony of PWs.1 to 5 with regard to death of deceased Asha within a period of 7 years of marriage and she died due to burn injuries has not been disputed by accused. It is specific defence of accused that PW.1-Veena, mother of victim Asha was not happy with her daughter's marriage with accused since it was an inter-caste marriage and as such she was humiliated in her parental house due to which, she committed suicide.
19. The prosecution to prove the place of incident relied on oral testimony of PW.13-Smt.Naveen, neighbour of the house of accused who came to the spot on hearing hue and cry, further found that deceased Asha was caught with fire has shown the place of incident and the Investigating Officer PW.19-Channegowda has prepared the spot panchanama Ex.P.9. PW.12-Chandregowda who is the independent panch witness to the spot panchanama Ex.P.9, though has not supported the case of prosecution regarding the seizure of articles from the said place, but admits his signature on the spot panchanama Ex.P.9 as
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CRL.A. No.1024 OF 2016 Ex.P.9(b). The Investigating Officer PW.19-Channegowda has deposed to the effect that on 12.09.2010, he has visited the house wherein accused and deceased Asha were living and prepared the spot panchanama Ex.P.9 shown by PW.13-Smt.Naveen and recovered MO Nos.4 to 8 under the said panchanama. Other than mere suggestion which has been denied by the witness, there is no evidence to discredit the evidence of PW.19- Channegowda, Investigating Officer for having prepared spot panchanama in presence of PW.12-Chandregowda as shown by PW.13-Smt.Naveen. The place where the fire incident took place is not seriously disputed by accused.
20. The prosecution to prove the unnatural death of deceased Asha relies on the oral testimony of PW.1-Veena, PW.7-Virupaksha for having prepared the inquest panchanama at mortuary in the Government hospital Ex.P.2. The dead body was found with burn injuries. The evidence of PW.15-Dr.Sridhar would go to show that on 15.11.2011 he has conducted post mortem examination
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CRL.A. No.1024 OF 2016 Ex.P.16 and given opinion that cause of death of deceased Asha is septicemia due to burn injuries. The evidence of PW.19-Channegowda would go to show that he has made written requisition to Tahsildar, Somwarpet for conducting inquest panchanama and inquest panchanama was drawn by Tahsildar, Somwarpet on 15.11.2010.
20(a) PW.14 Devaraju has deposed to the effect that on 14.11.2010 at 10.00 p.m. received requisition from Kushalnagar Police stating that Asha died due to burn injuries and requested to conduct inquest panchanama. Since it was night, he visited Kushalnagar Government hospital mortuary on the next day and conducted inquest panchanama from 11.45 a.m. to 2.00 p.m. in presence of inquest panch witnesses Manjunath, Virupaksh, Yashodha and Shantha. He has further deposed to the effect that he found burn injuries on deceased Asha, further he has recorded the statement of Veena mother of deceased and Shantha. Thereafter, he has forwarded inquest panchanama with covering letter dated 18.11.2010 to Somwarpet JMFC. The defence counsel other than
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CRL.A. No.1024 OF 2016 suggesting that he has not conducted any inquest panchanama which has been denied by him has not brought any other material evidence on record to discredit his evidence. The above said evidence of PW.1 Veena, PW.7 Virupaksha and PW.14 Devaraju Tahsildar who has conducted the inquest panchanama would suggest that death of Asha was a homicidal death.
21. It is true that deceased Asha suffered burn injuries on 11.09.2010 and death of Asha occurred on 15.11.2010. There is time gap of 2 months 4 days between the date of incident and death of Asha. It is in the evidence of PW.1- Veena, mother of deceased Asha that she was in Madikeri Government hospital for about one month and the treating doctor has asked PW.1-Veena mother of deceased Asha to take her home as there are no chances of her survival. Therefore, PW.1-Veena had brought her daughter Asha to her house and after 20 days, she died in the house. The above referred evidence on record would go to show that Asha suffered burn injuries and she died on account of
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CRL.A. No.1024 OF 2016 septicemia due to burn injuries. The prosecution has proved the death of Asha due to burn injuries which she has suffered in the incident that occurred on 11.9.2010 in the house of accused.
22. The place of death of Asha is the house of PW.1, Veena, mother of Asha, in Kudlur Village of Navagrama and the panchanama was accordingly drawn Ex.P.1 in the presence of PW.10-Shailesh and PW.11-Nethravathi. They have deposed about preparing the panchanama in their presence Ex.P.1 and identified their signatures as Exs.P1(b) and P1(c) respectively. It is in the evidence of PW.1-Veena, mother of deceased Asha, that on the advice of treating doctor, Asha was brought to her home as there were no chances of her survival and to treat in the home itself by providing medicines. The said evidence of PW.1- Veena has not been seriously challenged in her cross- examination.
22(a) The oral testimony of PW.15 Dr.Sreedhar would go to show that on the day of incident dated 11.9.2010 at
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CRL.A. No.1024 OF 2016 5.20 p.m. he has first seen the injured Asha who was brought to primary health centre, Kushalnagar and after giving primary treatment, the injured Asha was referred to higher medical centre. He has also given intimation to Kushalnagar police station Ex.P.14.
22(b) PW.15 Dr Sreedhar has further deposed to the effect that on 15.11.2010 Kushalnagar police sent requisition for conducting post mortem examination of deceased Asha. Himself and CW.21 Dr.Anitha conducted post mortem examination of deceased Asha from 12.45 p.m. to 01.45 p.m. and issued post mortem report Ex.P.16. He has further deposed to the effect that the cause of death of Asha is due to septicemia on account of burn injuries. Therefore, prosecution through the evidence of PW.1 Veena mother of deceased Asha and PW.15 Dr.Sreedhar established that deceased Asha died due to burn injuries.
23. The incident in question took place in the house of accused where accused and deceased Asha were living
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CRL.A. No.1024 OF 2016 in the rented house. The material witnesses to speak on this aspect is PW.1-Veena, PW.2-Kumari sister of PW.1 and PW.3-Suresh husband of PW.2, further the evidence of PW.4-Laxmi, younger sister of deceased Asha and PW.5 husband of PW.4-Laxmi. PW.1-Veena, mother of deceased Asha has deposed to the effect that about two years back, the marriage of her daughter Asha and accused Nandeesha took place in Kanive Sri Ramalingeshwara Temple and prior to 8 days of the said marriage, both of them went out of the house. The daughter of PW.1-Veena informed her over phone that herself and accused are in Hunsur. She asked them to come back to the village and she will perform their marriage and accordingly, the marriage was performed. They led marital life happily for about one month and thereafter, accused under the influence of alcohol used to ill-treat and assault.
23(a) PW.1-Veena has further deposed to the effect that her daughter had come to the house with accused for Gowri festival and they left the house after the lunch,
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CRL.A. No.1024 OF 2016 since the mother of accused is alone in the house. On the same day at 5.30 p.m., her neighbour told that accused has lit fire by pouring kerosene on Asha and she is shifted to Kushalnagara hospital. She immediately rushed to the hospital and found that her daughter Asha was admitted to the hospital with burn injuries on her body. On enquiry with her daughter, she told that on the way to home throughout accused quarrelled with Asha on the pretext that her mother given cloth only to Asha and not given any cloth to him. While cleaning the sambar fallen on the floor, accused by tying her hands with veil, gagged her mouth with cloth, after pouring kerosene lit fire on her, due to which she suffered burn injuries. After her daughter was treated for about one month in Madikeri Government hospital, she was brought to her home on the advise of doctor to provide treatment in the home itself by following the treatment advised to her. Her daughter died on 15.11.2010. The evidence of PW.2 - Kumari who is the sister of PW.1-Veena and PW.3-Suresh husband of PW.2, so also PW.4-Laxmi younger sister of deceased Asha, so
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CRL.A. No.1024 OF 2016 also her husband PW.5-Madegowda who came to see deceased Asha while she was under treatment in Government hospital in Madikeri is on the basis of revelation made by PW.1-Veena, mother of deceased Asha or on the disclosure made by deceased Asha.
24. The material witnesses to speak about actual incident of fire that occurred in the house of accused are PW.9-Krishnegowda and PW.13-Smt.Naveen. PW.9- Krishnegowda has deposed to the effect that he knew accused and deceased Asha who were the tenants of his son. On the eve of Gowri festival at about 3.00 p.m. the mother of accused came in search of accused and enquired him. He stated that he has seen accused in front of the house. At about 4.15 p.m. on hearing hue and cry, he went to the house of accused where people had already assembled and police has taken his signature on Ex.P.9 and identified his signature as Ex.P.9(a). This witness has been partly declared as hostile, since he did not support regarding extinguishing of fire and about forcing the
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CRL.A. No.1024 OF 2016 accused to take injured Asha to hospital, further he denies having given statement before the police, still prosecution could not get further support from him. 24(a) PW.13-Smt.Naveen has deposed to the effect that she is the neighbour of deceased Asha and knows the accused. About three years back on the eve of Gowri festival, they had gone to the house of mother of Asha and returned to home at about 4.30 p.m. Thereafter, accused went out of the house. The deceased Asha came out of the house and enquired with Smt.Naveen about her husband and she told that he has gone out and after fetching water, she went to her house. After some time, on hearing hue and cry, she went to the house of Asha and found that she was caught with fire. Though she questioned, Asha did not reply to the same. She poured water on deceased Asha and informed to the neighbors and then Asha was shifted to hospital. This witness has also been partly declared as hostile, since she did not fully support the case of prosecution.
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CRL.A. No.1024 OF 2016
25. It is in the evidence of PW.19-Channegowda, PSI that on 12.9.2010 on visiting the house of accused and deceased Asha, recorded the statement of PW.9- Krishnegowda and PW.13-Smt.Naveen and they have given statement Ex.P.10 and Ex.P.12 respectively and the said fact has not been denied in the cross-examination of PW.19-Channegowda. Therefore, the evidence of PW.19- Channegowda can be relied for having recorded the statement of PW.9-Krishnegowda and PW.13-Smt.Naveen Ex.P.10 and Ex.P.12 respectively.
26. It is in the evidence of PW.16-Devaiah that he has recorded the statement of injured Asha in Kushalnagara hospital after receiving MLC intimation Ex.P.14. In her statement Asha stated that accused had quarreled with her and on pouring kerosene on her lit fire to it. Thereafter, he shifted the injured Asha to Kushalnagar hospital.
27. The above referred evidence on record would go to show that accused quarreled with deceased Asha and
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CRL.A. No.1024 OF 2016 after pouring kerosene lit fire to her. The prosecution relies on the two dying declarations of deceased Asha, one recorded by PW.16-Devaiah and another one is recorded by Tahsildar PW.22-Rekha Ex.P.21.
28. The entire case of the prosecution revolves round the two dying declarations of deceased Asha. The first dying declaration is recorded by PW.16-Devaiah who visited Kushalnagar hospital on receipt of MLC intimation Ex.P.14. PW.15- Dr.Sridhar has deposed to the effect that after he sent MLC requisition Ex.P.14, police had come to hospital and statement of injured Asha was recorded in his presence from 5.45 p.m. to 6.45 p.m. and her LTM signature was taken on the statement given by her. PW.15-Dr.Sridhar has identified his signature on Ex.P.15 as Ex.P.15(a). It is on the basis of this statement of deceased Asha Ex.P.15, PW.16-Devaiah, ASI on going back to the police station registered the case in Kushalnagar police station in Crime No.248/2010 Ex.P.17. Subsequently, in view of death of Asha due to burn
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CRL.A. No.1024 OF 2016 injuries, her statement Ex.P.15 given before PW.16- Devaiah was treated as her first dying declaration.
29. On going back to the police station registered the case Ex.P.17. The deceased Asha during her statement before PW.16-Devaiah has stated that her marriage with accused was performed about four months back and both of them were residing in rented house in Kundlur village and she had gone to her mother's house on the eve of Gowri festival. Thereafter, herself and accused returned to the house at 4.00 p.m. and accused started quarelling with her and assaulted her by hands so also threatened that he will kill her; by saying so, accused poured kerosene on her and lit fire. Due to which she suffered burn injuries over her head, face, chest, stomach portion and fore-arm. The neighbours extinguished the fire and shifted her to Government hospital, Kushalnagar by accused Nandeesha.
30. The second dying declaration is recorded by PW.22-Rekha, Tahsildar of Somwarpet and she has
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CRL.A. No.1024 OF 2016 deposed to the effect that on 12.9.2010 she received requisition from PSI, Kushalnagar to record the statement of injured Asha who was admitted in District Government hospital due to burn injuries. She visited the hospital and met the doctor, further she informed that she was required to record the statement of injured and doctor had given written endorsement that injured was in fit condition to give statement. It is thereafter she met Asha who was under treatment for burn injuries in the said hospital and recorded her statement Ex.P.21 and she has recorded the same by way of question and answer. She identified the LTM of Asha as Ex.P.21(a) and her signature as Ex.P.21(b). The Trial Court has recorded in the deposition that since fitness certificate was not produced to the Court, it was not marked.
31. Therefore, from the said evidence on record, it is evident that first dying declaration of Asha is recorded by PW.16-Devaiah Ex.P.15 in presence of PW.15-Dr.Sridhar who has also signed Ex.P.15(a) whereas in the second
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CRL.A. No.1024 OF 2016 dying declaration recorded by Tahsildar PW.22-Rekha Ex.P.21 dated 12.9.2010 on the requisition of PSI of Kushalnagar police station and though she claims to have obtained fitness certificate, but the same has not been produced before the Court. Therefore, the truthfulness of these two dying declarations has been questioned by counsel for accused. The legal position regarding absence of fitness certificate for recording dying declaration of deceased Asha Ex.P.21 and another dying declaration recorded by PW.16-Devaiah Ex.P.15 in presence of PW.15- Dr.Sridhar has to be now examined.
32. The learned Additional SPP relied on the judgment of Hon'ble Apex Court in RAM BIHARI YADAV Vs. STATE OF BIHAR AND OTHERS reported in (1998) 4 Supreme Court Cases 517 wherein it has been observed and held that :
"6. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive
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CRL.A. No.1024 OF 2016 evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case."
The Hon'ble Apex Court has held that if the truthfulness of dying declaration if proved, then, it can be the sole basis for convicting the accused.
The learned Additional SPP relied on the Constitutional Bench judgment of Hon'ble Apex Court in LAXMAN vs. STATE OF MAHARASHTRA reported in (2002) 6 Supreme Court Cases 710. The conflicting judgment of Hon'ble Apex court in Paparambaka Rasamma V. State of A.P. reported in (1999) 7 SCC 695 and the judgment in Koli Chunilal Savji v. State of Gujarat reported in (1999) 9 SCC 562 was referred to larger bench. The Hon'ble Apex court held that the judgment of this Court in Paparambaka Rasamma supra, held to be not correctly decided and the judgment
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CRL.A. No.1024 OF 2016 in Koli Chunilal Savji supra was affirmed. The Hon'ble Apex court in para (3) of the judgment has held that :
"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 the deathbed 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 courts 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 always to 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
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CRL.A. No.1024 OF 2016 court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses 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 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 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 weight has to be attached to such statement necessarily depends on the facts and circumstances of each 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
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CRL.A. No.1024 OF 2016 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.
The Hon'ble Apex court has held that mere absence of doctor's certification as to the fitness of the declarant's state of mind, held, would not ipso facto render the dying declaration unacceptable. The evidentiary value of such a declaration would depend on the facts and circumstances of the particular case.
32(a) The Division Bench of this Court subsequently by relying the judgment of LAXMAN vs. STATE OF MAHARASHTRA supra in FAKEERAPPA SHIVAPPA KABANUR V. STATE BY BANKAPUR P.S. reported in 2017 SCC OnLine Kar 3722, the evidentiary value of
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CRL.A. No.1024 OF 2016 two dying declarations has been examined and has held in paragraphs 54 and 56 as under :
"54. From the above analysis, it is clear that as on the date of giving her statement at Exs.P24 and 26, victim Savithri was in a fit condition to give her statement. In both her statement she has uniformly narrated the incident. Both those statements have been recorded only after she was medically examined and found to be fit to give her statement. Both the statements wee recorded in the presence of the doctors who examined the injured.
56. A perusal of the said statements/dying declarations at Exs. P24 and P26 make it further clear that the victim had maintained consistency in her statements. Neither there is omission of any vital aspect in any one of the document when compared with the other nor any improvement or inclusion of any other material aspect in any one of the said document compared with the other. As such, a uniformity and consistency has come out in both the statements of the deceased though they are recorded by two different persons."
The Court having recorded such finding has accepted two dying declarations Exs.P.24 and P.26 and confirmed the
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CRL.A. No.1024 OF 2016 judgment of the Trial Court in convicting the accused for the offence under Section 302 based on the said dying declarations.
32(b) On the other hand, learned Amicus Curiae for respondent in support of his contention that reliability of multiple dying declaration which are divergent and cannot be reconciled for determining which dying declaration is to be believed or whether they are all to be rejected, relied on the judgment of JAGABIR SINGH v. STATE (NCT OF DELHI) reported in (2019) 8 Supreme Court Cases
779. The Hon'ble Apex Court culled out the principles regarding appreciation of multiple dying declarations as follows :
"31.1 (i) Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
31.2 (ii) If there is nothing suspicious about the declaration, no corroboration may be necessary;
31.3 (iii) No doubt, the court must be satisfied that there is no tutoring or prompting;
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CRL.A. No.1024 OF 2016 31.4 (iv) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirely of the language of the dying declaration;
31.5 (v) Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;
31.6 (vi) However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.
31.7 (vii) In such cases, where the inconsistencies go to some matter of details or description but are incriminatory in nature as far as the accused is concerned, the court would look to the materials on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
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CRL.A. No.1024 OF 2016 31.8* (viii) the third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.
31.9 (ix). In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?
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CRL.A. No.1024 OF 2016 The learned Amicus Curiae for respondent also relies on another latest judgment of the Hon'ble Apex court in IRFAN ALIAS NAKA V. STATE OF UTTAR PRADESH reported in 2023 SCC Online SC 1060 has observed and held in paragraphs 60 and 61 as follows :
"60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been strictosensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit.
61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence buy cannot be the basis for conviction alone."
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CRL.A. No.1024 OF 2016 In view of the principles enunciated in both the aforementioned judgments of Hon'ble Apex, it is evident that it is the duty of the Court to ascertain truthfulness of multiple dying declarations and to what extent it can be relied based on evidence on record has to be decided.
33. The two dying declarations referred above, one recorded by PW.16-Devaiah Ex.P.15 and the other one recorded by PW.22-Rekha, Tahsildar, Somwarpet Ex.P.21 are consistent regarding accused pouring kerosene on her and litting fire, due to which she suffered burn injuries, further the incident took place in the house of accused. The deceased Asha in both the dying declarations maintained that accused all throughout the way from the house of her mother to their home, quarreled with Asha, further accused picked up quarrel in the house and after pouring kerosene and lit fire to her, due to which she suffered burn injuries. There is no any divergent statement given by injured Asha while making her dying declarations recorded by PW.16-Devaiah Ex.P.15 and the
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CRL.A. No.1024 OF 2016 one recorded by PW.22-Rekha, Tahsildar Somwarpet Ex.P.21. The only difference is the first dying declaration recorded by PW.16-Devaiah Ex.P.15 in presence of PW.15- Dr.Sridhar and identifies his signature as Ex.P.15(a). It means that the declarant deceased Asha was in a fit condition to make her statement before PW.16-Devaiah. However, in the second dying declaration recorded by PW.22-Rekha, Tahsildar Somwarpet Ex.P.21, though claimed that she has obtained written endorsement of doctor about fitness of deceased Asha for giving statement, but the same has not been produced before the Court and Trial Court has observed that due to non- production, the same has not been marked. The mere non-production of fitness certificate of deceased Asha will not take away the evidence of PW.22-Rekha, Tahsildar, Somawarpet, that she enquired with the treating doctor and after getting written consent that deceased Asha was in fit condition to give statement, recorded her dying declaration Ex.P.21. The evidence of PW.22 Rekha that the injured Asha was in a fit condition to give statement
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CRL.A. No.1024 OF 2016 has not been denied in her cross-examination. The LTM of deceased Asha was obtained on dying declaration, since due to the burn injuries she was not in a position to put her signature. There is no reason to disbelieve the oral testimony of PW.16-Devaiah and PW.22-Rekha that injured Asha was in a fit condition to give statement. In the light of the principles enunciated in the aforementioned judgments and the above referred evidence on record, we find no reason to doubt the truthfulness of dying declaration made by deceased Asha Ex.P.15 and Ex.P.21. The said two dying declarations of deceased Asha are consistent with regard to the manner in which the incident has taken place in the house of accused, further accused after picking up quarrel with her, poured kerosene and lit fire to her.
34. The evidence of PW.19-Channegowda would speak to the effect that on 9.10.2010, PW.3-Suresh produced half burnt Chudidhar which was cut and red colour Chudidhar top burnt and cut innerwear worn by
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CRL.A. No.1024 OF 2016 deceased Asha on the day of incident which was given to him after post mortem examination and the same came to be seized under the panchanama Ex.P.5. The evidence of PW.19-Channegowda, the first Investigating Officer has deposed to the effect that he has seized above referred clothes of deceased collected by PW.3-Suresh after post mortem examination and the same is seized under the panchanama Ex.P.5 in the presence of panch witnesses which he identifies as MO Nos.1 to 3. The other two articles plastic bottle and gunny bag MO Nos.4 and 5 were seized at the time of spot panchanama Ex.P.9. 34(a) The evidence of PW.20-P.Mallesh, FSL Officer would go to show that he received one plastic bottle, one gunny bag, burnt one chudidhar, burnt one chudidhar top and one underwear as article Nos.1 to 5 respectively. On examining the above articles, issued the report Ex.P.18. The report would go to show that articles 3 and 4 i.e. burnt chudidhar and chudidhar top responded positive for the presence of kerosene residues and article No.1 plastic bottle also responded positive for the presence of
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CRL.A. No.1024 OF 2016 kerosene residues. It is only article No.2 gunny bag and article No.5 kacha responded negative of the kerosene residues. Other than suggestion that articles Nos.1 to 5 were not sent to him for examination, which has been denied by the witness, there is no evidence on record to discredit the evidence of PW.20-P.Mallesh.
35. The oral testimony of PW.16 Devaiah in recording the first dying declaration Ex.P.15 and the second dying declaration recorded by PW.22 Rekha Tahsildar, Somwarpet Ex.P.21, the stand of deceased Asha in making dying declaration and the reason for she having suffered burn injuries due to accused pouring kerosene on her and litting fire is consistent and there is no any change in her statement in her two dying declarations Ex.P.15 and Ex.P.21. The fire incident in question took place in the house of accused. The evidence of PW.9 Krishnegowda would go to show that mother of accused came to his house to enquire about having seen the accused. He has seen the accused passing in front of his house. The
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CRL.A. No.1024 OF 2016 evidence of PW.13 Naveena wife of Chandregowda who is the neighbour of accused has deposed to the effect that accused and his wife deceased Asha came to the house at about 4.30 p.m. and thereafter accused went out of the house. She further deposed to the effect that deceased Asha came to fetch water, while she was fetching water, enquired about her husband and she stated that he just gone out. Thereafter, she went to the house and then she heard screaming voice from the house of accused and she immediately rushed to the spot and found Asha was caught with fire.
36. Therefore, from the said evidence on record, it would go to show that accused and deceased Asha though had gone to the parental house of Asha for Gowri Festival, but they came back to the house. It is true that PW.9 Krishnegowda and PW.13 Naveena wife of Chandregowda have not spoken about presence of accused when they rushed to his house on hearing the screaming. However, the deceased Asha in her two dying declarations Ex.P.15
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CRL.A. No.1024 OF 2016 and Ex.P.21 has spoken about presence of accused in the house and after pouring the kerosene lit the fire, due to which she suffered burn injuries. There is nothing worth material that has been brought on record in the cross- examination of PW.16 Devaiah and PW.22 Rekha to doubt the statement made by deceased Asha before them. There is no reason brought on record in their cross-examination to falsely implicate the accused as the person who after pouring kerosene lit fire on her.
37. On critical analysis of the above referred evidence placed on record by the prosecution, the same inspires confidence of the court in accepting the two dying declarations Ex.P.15 recorded by PW.16-Devaiah and another one recorded by PW.22-Rekha, Tahsildar, Somwarpet, Ex.P.21 and the injured Asha was in a fit condition to make dying declarations Ex.P.15 and Ex.P.21. The incident in question has occurred in the house of accused and his presence at the time of incident has been spoken by deceased Asha, who picked up quarrel with her
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CRL.A. No.1024 OF 2016 and on pouring kerosene, lit fire to her. The evidence of PW.15-Dr Sridhar and wound certificate Ex.P.13 would go to show that deceased Asha was treated by him on the day of incident and found burn injuries. His evidence further would go to show that he has conducted autopsy of deceased Asha Ex.P.16 and the cause of death of deceased Asha is septicemia due to burn injuries. The said evidence is further corroborated by the evidence of PW.19-Channegowda and PW.21-Jayaprakash.
38. The fire incident took place in the house of accused on 11.9.2010 and deceased Asha suffered burn injuries and she was immediately shifted to Primary Health Centre, Kushalnagar. The evidence of PW.15 Dr.Sreedhar would go to show that Asha was brought to the hospital on 11.9.2010 at 5.30 p.m. with the history of burn injuries. PW.15 Dr.Sreedhar found second degree burns involving entire face, chest (front), part of the abdomen, part of right thigh, part of left thigh, part of right forearm and right hand. The patient was referred to higher centre.
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CRL.A. No.1024 OF 2016 The evidence of PW.1 Veena would go to show that injured Asha was shifted to Madikeri hospital and she was treated in the Madikeri hospital for one month. However, there was no improvement in her health condition and the treating doctor advised PW.1 Veena to take her daughter to home and provide treatment in the home itself by giving the medicines, as her survival chances were very less. It is after 20 days injured Asha died in the house of PW.1 Veena. The evidence of PW.15 Dr Sreedhar would go to show that he received requisition for conducting post mortem examination of deceased Asha on 15.11.2010. After conducting the post mortem examination, issued post mortem report Ex.P.16 and given opinion that cause for death of septicemia due to burns. There is time gap of 2 months 4 days from the date of incident on 11.9.2010 till the death of Asha on 15.11.2010.
38(a). It is the defence of accused that the family members of Asha were not happy of her inter-caste marriage with accused and on that score, she was humiliated by her family members due to which she has committed suicide. The marriage of Asha
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CRL.A. No.1024 OF 2016 with accused was performed on 14.6.2010 in Kanive Sri Ramalingeshwara temple by PW.1 Veena. The deceased Asha and accused prior to 8 days of the marriage, they had left the house. The deceased Asha called her mother PW.1 Veena over phone and informed that they are in Hunsur and she asked her daughter to come with accused back to the village and she will perform their marriage. Accordingly, their marriage was performed by PW.1 Veena on 14.6.2010. The incident of fire took place on 11.9.2010 within a period of 3 months of their marriage. There is nothing worth material brought on record during the course of cross-examination of PWs. 1 to 5 about any incident of deceased Asha being humiliated on account of her inter-caste marriage with accused. If at all PW.1 Veena was not happy of such inter-caste marriage of her daughter Asha with accused, then she would not have called her daughter Asha and accused from Hunsuru, further would not have performed their marriage. Therefore, in the absence of material evidence brought on record during the cross-examination of PWs.1 to 5, the
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CRL.A. No.1024 OF 2016 defence of accused that his wife Asha committed suicide as she was humiliated by her family members due to inter-caste marriage with accused cannot be accepted.
39. It is in the evidence of PW.1 Veena that after the marriage, accused was assaulting Asha. She has further deposed to the effect that she enquired with her daughter Asha in the hospital as to how she sustained burn injuries and her daughter disclosed that while returning to the home from the house of PW.1 Veena, accused all throughout was quarrelling with her on the pretext that PW.1 Veena has provided cloth only to deceased Asha and not given anything to him on Gowri festival. The said evidence of PW.1 Veena has not been specifically denied during the course of her cross-examination.
40. In view of the above recorded reasons, it is held that the two dying declarations of deceased Asha Ex.P.15 and Ex.P.21 are consistent with regard to she having suffered burn injuries due to accused pouring kerosene on her and litting the fire, further the said incident took place
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CRL.A. No.1024 OF 2016 in the house of accused. The defence of accused that due to humiliation suffered by deceased Asha by her family members, she committed suicide is held to be not sustainable. The two dying declarations of deceased Asha Ex.P.15 and Ex.P.21 and truthfulness of the same is held to be proved by the prosecution out of the evidence of PW.16 and PW.22. Thus, the prosecution has proved beyond all reasonable doubt that it is accused who has committed the murder of his wife Asha by pouring kerosene and litting fire to her.
41. The evidence of PW.1-Veena, PW.2-Kumari, PW.3-Suresh, PW.4-Laxmi and PW.5-Madegowda would go to show that accused and deceased Asha left the house prior to 8 days of marriage. On receiving phone call from deceased Asha, PW.1-Veena, mother of deceased Asha asked her and accused to come back to village and she will perform their marriage. Accordingly, the marriage of deceased Asha with accused was performed in Kanive Sri Ramalingeshwara temple on 14.6.2010. There was no any
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CRL.A. No.1024 OF 2016 demand for cash or gold articles by accused before or at the time of marriage. Therefore, even according to the evidence of PW.1-Veena whatever the articles that she had given to her daughter Asha and spent money of Rs.25,000/- for their marriage is only on account of her own wish and there was no demand either from the accused or from his family members. Therefore, the ill- treatment and harassment of accused under the influence of alcohol is from the date of marriage 14.06.2010 till the incident on 11.09.2010 within a span of 3 months. Even according to the evidence of PW.1-Veena. PW.2-Kumari who is the sister of PW.1 also claimed that accused used to assault deceased Asha under the influence of alcohol. PW.2-Kumari did not speak anything about the source from which she got the information about accused assaulting deceased Asha under the influence of alcohol. PW.1-Veena and PW.2-Kumari did not claim in their evidence that deceased Asha used to inform them about accused physically assaulting under the influence of alcohol. The evidence of PWs.1 to 5 would only go to
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CRL.A. No.1024 OF 2016 show that accused quarreled with deceased Asha on the day of incident while proceeding from the house of Asha to his house on the pretext of PW.1 Veena gave new cloth only to deceased Asha and not given anything to him. Therefore, the prosecution has failed to prove the requisite evidence to prove that deceased Asha was ill-treated and harassed, so also subjected her to mental and physical cruelty.
42. The prosecution alleges that death of deceased Asha is within a period of 7 years from the date of marriage and it is a case of dowry death attracting penal action in terms of Section 304B of IPC. In view of the reasons recorded above, it is held that prosecution has failed to prove that deceased Asha was subjected to mental and physical cruelty on demand of dowry. The question of drawing presumption in terms of Section 113B of the Indian Evidence Act would arise only when the prosecution proves that soon before her death the deceased was subjected to cruelty or harassment in
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CRL.A. No.1024 OF 2016 connection with any demand for dowry. In the absence of evidence on record to prove that deceased Asha was subjected to cruelty or harassment on demand for dowry soon before her death, presumption under Section 113B of Indian Evidence Act cannot be drawn. Therefore, the prosecution has failed to prove the charge against accused for the offence under Section 498A and 304B of IPC. However, the prosecution by the above referred evidence on record has proved that accused has committed murder of his wife Asha by pouring kerosene and litting fire to her attracting penal action in terms of Section 302 of IPC.
43. The Trial Court by misreading the evidence on record and also referring to some minor discrepancies in the evidence of the witnesses referred in the judgment, has recorded finding in acquitting accused of the charges leveled against him. The findings recorded by the Trial Court is contrary to the material evidence on record for the offence under Section 302 of IPC as such the finding of Trial Court in acquitting the accused for the offence under
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CRL.A. No.1024 OF 2016 Section 302 of IPC cannot be legally sustained. Therefore, interference of this Court is required. Consequently, we proceed to pass the following :
ORDER Appeal filed by the appellant/State is hereby partly allowed.
The judgment of Trial Court on the file of I Additional District and Sessions Judge, Kodagu at Madikeri in S.C.No.4/2011 dated 28.01.2016 is hereby set aside.
Accused is convicted for the offence under Section 302 of IPC.
The acquittal judgment passed by the Trial Court for the offence under Section 498A and 304B of IPC stands confirmed.
Call on to hear on quantum of sentence.
SD/-
JUDGE SD/-
JUDGE rs
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CRL.A. No.1024 OF 2016 Dr.HBPSJ & ABKJ:
24.01.2024 HEARING ON SENTENCE Heard both sides on quantum of sentence.
Learned Additional SPP for appellant/State submits that accused has committed heinous offence of murdering his wife Asha by pouring kerosene and lit fire to her and she died due to burn injuries and her suffering continued for more than two months has been proved by the prosecution. Accused is not entitled for any leniency with respect to the offence proved against him.
Per contra, learned Amicus Curiae for respondent/accused submits that the incident in question took place in 2010 and entire family is dependent on the income of accused and he is not a habitual offender. Therefore, prayed for taking a lenient view.
It is the sentencing policy that the sentence ordered must be proportionate to the proved offence against the accused. The imposition of sentence shall be neither exorbitant nor flee bite sentence. In the present case,
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CRL.A. No.1024 OF 2016 accused is found guilty for the offence punishable under Section 302 of IPC. Looking to the facts and circumstances of the case, coupled with the allegations against accused, we proceed to pass the following :
ORDER ON SENTENCE Nandi @ Nandeesha, Son of Kumara, Aged 27 years, Coolie, R/at. Kudlur Village, Somwarpet Taluk - 571 236, is sentenced to undergo imprisonment for life and sentenced to pay a fine of Rs.25,000/- and in default of payment of fine amount, accused shall undergo additional rigorous imprisonment for 1 year for the offence under Section 302 of IPC.
Accused is entitled for the benefit of set-off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
On realisation of fine amount, the entire fine amount is ordered to be paid to PW.1-Veena mother of deceased Asha.
Accused shall surrender before the Sessions Court within 30 days from today to serve the sentence.
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CRL.A. No.1024 OF 2016 Accused is entitled for free copy of this judgment immediately.
The services rendered by learned Amicus Curiae for the respondent is placed on record and honorarium is fixed as Rs.6,000/- payable by the Registry.
The mother of victim,PW.1-Veena is at liberty to approach DLSA, Kodagu at Madikeri for compensation under Section 357A of Cr.PC.
Registry to transmit a copy of this judgment along with Sessions Court records to the concerned Sessions Court immediately for compliance.
SD/-
JUDGE SD/-
JUDGE rs