Karnataka High Court
Punit S/O Bhimsingh Rajput vs State Of Karnataka on 4 November, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100191 of 2019
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IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
R
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100191 OF 2019 (C-)
C/W
CRIMINAL APPEAL NO. 100194 OF 2019
IN CRL.A. NO.100191/2019
BETWEEN
1. PUNIT S/O BHIMSINGH RAJPUT
AGE: 31 YEARS, OCC: BUSINESS,
R/O: MUDHOL, TQ: MUDHOL.
...APPELLANT
(BY SRI.SHAIKH SAOUD, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY CPI MUDHOL,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT, ORDER OF CONVICTION
AND SENTENCE PASSED BY THE COURT OF I-ADDL. DIST. &
SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI, IN
S.C.NO.91/2017 DATED 20.03.2019, FOR THE OFFENCES P/U/S 498-
A AND 302 OF IPC, INSOFAR AS APPELLANT IS CONCERNED.
IN CRL.A. NO.100194/2019
BETWEEN
1. GODAVARI W/O BHIMSING RAJPUT
AGE 57 YEARS, OCC HOUSEWIFE
R/O MUDHOL, TQ MUDHOL
DIST: BAGALKOT
...APPELLANT
(BY SRI.SHAIKH SAOUD, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY CPI MUDHOL,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT, ORDER OF CONVICTION
AND SENTENCE PASSED BY THE COURT OF I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI AT JAMKHANDI
IN SESSIONS CASE NO.91/2017 DATED 20.03.2019 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498(A) AND 302 OF
INDIAN PENAL CODE.
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THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:
COMMON JUDGMENT
1. These are the appeals filed under Section 374(2) of
Code of Criminal Procedure, 1973 (for short,
'Cr.P.C.'), challenging the judgement of conviction
and order of sentence passed by the I Additional
District and Sessions Judge, Bagalkot sitting at
Jamkhandi (for short, 'trial Court') in Sessions Case
No.91/2017 dated 20.03.2019.
2. A complaint came to be filed by Vindarsingh on
06.09.2016 at 22.15 hours, alleging that he had
been informed by his sister that the accused (her
husband and mother-in-law) had ill-treated her and
sought to commit her murder. In furtherance of the
same, ASI, Mudhol Police had registered a case for
the offences under Sections 307, 498-A, 504 read
with 34 of IPC. In the meantime, the sister expired,
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hence, upon investigation, Circle Inspector of Mudhol
Police Station submitted a charge sheet against the
accused for the offences punishable under Sections
498-A, 504, 323, 302 read with 34 of IPC.
3. Upon the charge sheet being submitted, since the
offence was triable under Section 302 of IPC, the
matter came to be committed to the Court of
Sessions. Accused No.1 who was in judicial custody
was produced before the Court and accused No.2
who was on bail was summoned to appear. On their
appearance, accused No.1 was remanded to judicial
custody and accused No.2 was enlarged on bail.
Charges having been framed for offences under
Sections 498-A, 504, 323, 302 read with 34 of IPC,
same was read over and explained to the accused,
who pleaded not guilty and claimed to be tried.
4. The prosecution examined 14 witnesses and marked
30 documents, 4 material objects were also marked
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by the prosecution. Accused No.1 examined himself
as DW.1 and marked two documents. Upon evidence
being led, the incriminating evidence was put across
to the accused in terms of Section 313 of Cr.P.C. and
their answers were recorded.
5. After hearing the prosecution and the defence, the
trial Court vide its judgement dated 20.03.2019
convicted accused No.1 for the offence under
Sections 498-A and 302 of IPC and convicted
accused No.2 for the offence under Section 498-A of
IPC and acquitted accused No.2 for the offences
under Sections 323 and 304 of IPC.
6. On the very same day, the said Court heard the
counsels on sentence and passed an order of
sentence, sentencing accused No.1 to undergo
imprisonment for life for the offence punishable
under Section 302 of IPC and to pay a fine of
Rs.50,000/- and further to undergo simple
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imprisonment for three years for the offence
punishable under Section 498-A of IPC as also
sentenced to pay a fine of Rs.5,000/-. In default of
payment of total fine amount of Rs.55,000/-, to
undergo simple imprisonment for six months.
7. Accused No.2 was sentenced to undergo simple
imprisonment for three years for the offence
punishable under Section 498-A of IPC and
sentenced to make payment of a fine of Rs.5,000/-.
Failure to make the payment of fine would result in
accused No.2 to undergo simple imprisonment for
further period of two months. The sentences to run
concurrently and set off being provided for the period
undergone in judicial custody.
8. It is challenging the said judgement that accused
No.1 is before this Court in Criminal Appeal
No.100191/2019 and accused No.2 is before this
Court in Criminal Appeal No.100194/2019.
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9. The case of the prosecution is that
9.1. Accused No.1 was married to the sister of
complainant, namely, Ashwini Rajput on
26.11.2015. Accused No.2 is the mother of
accused No.1 and mother-in-law of said
Ashwini. It is alleged that accused were ill-
treating Ashwini both mentally and physically
by scolding and assaulting her for not knowing
how to cook, prepare food and serve the same.
9.2. It is alleged that on 04.09.2016 at about 4.30
p.m. accused No.1 and Ashwini while at their
matrimonial home at Jayanagar, Mudhol,
accused No.1 picked up a quarrel with the said
Ashwini, brought a can of kerosene, poured on
her and set her ablaze.
9.3. Thereafter, Ashwini having been shifted to
hospital for treatment, succumbed to burn
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injuries caused on 04.09.2016. In order to
establish the case of the prosecution, evidence
as stated above was led and exhibits as stated
above were marked.
10. It is now required for this Court to re-appreciate the
evidence based on record before the trial Court to
examine and ascertain if the judgement passed by
the trial Court is proper and correct. There is no
dispute as regards accused No.1 being married to
Ashwini or accused No.2 being the mother-in-law of
Ashwini.
11. Sri.Shaikh Saoud, learned counsel for the appellants
would submit that:
11.1. The trial Court has not appreciated the evidence
on record in a proper and required manner.
11.2. The investigation has not been carried out
properly, inasmuch as the medical records
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indicate that the injury was caused on account
of stove burst. However, the investigation does
not reflect any aspect of stove burst.
11.3. The dying declaration which has been recorded
is not believable, inasmuch as the deceased
Ashwini has sought to fix the accused in the
said dying declaration. The dying declaration is
not corroborated by any other evidence and as
such the dying declaration cannot be taken on
its face value in a standalone manner.
11.4. The trial Court has convicted accused No.1
solely on account of voluntary statement said to
have been made by accused No.1 in terms of
Ex.P.25 which has no date, but it is presumably
recorded prior to the arrest of accused No.1,
who was so arrested on 14.09.2016. The said
voluntary statement at Ex.P.25 therefore has
no value.
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11.5. Second voluntary statement was recorded after
the arrest of accused No.1 in the police station
and not before the judicial magistrate and as
such the same has no evidentiary value.
11.6. Though there are allegations made as regards
photographs having been taken of the scene of
occurrence, but no such photographs have been
exhibited during the course of trial. This he
submits on account of the fact that if such
photographs had been produced to establish
the case of the accused that the injuries
occurred on account of accidental stove burst
and not as claimed by the prosecution, he
submits that the dying declaration was said to
have been recorded by the head constable who
has not been examined.
11.7. The audio-visual recording of the dying
declaration is also not clear as to whether it is
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in CD or DVD nor the same has been marked. It
could not be marked since no certificate under
Section 65B of Indian Evidence Act is produced.
11.8. The Investigating Officer has not enquired into
and submitted as regards the first aid
treatment which had been obtained by the
deceased at Sarvodaya Hospital, since it is only
thereafter that she was shifted to
Sri.Kumareshwara Hospital and Research
Centre, Bagalkot.
11.9. The Investigating Officer has not examined any
of the neighbors as regards the incident. This
again he submits due to the fact that if they
were examined, the truth would have come out
indicating the innocence of the accused.
11.10. The trial Court has not taken into account the
fact that it was accused No.1 who had saved
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the deceased and had taken her to the hospital
for treatment. If at all accused No.1 was guilty
of the offences as alleged, he would have
absconded and not taken the deceased to the
hospital. He submits that this aspect has not
been taken into consideration by the trial Court.
11.11. On all the above grounds, he submits that the
appeals are required to be allowed and the
judgement of conviction and order of sentence
as passed against accused Nos.1 and 2 are
required to be set aside, the accused be
acquitted of the offences alleged against them
and accused no.1 be released from custody.
12. Per contra, Sri.V.M.Banakar, learned Additional SPP
submits that:
12.1. The investigation carried out by the
investigating officer is proper and correct.
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12.2. The death of the deceased occurred within 10
months of marriage of deceased with accused
No.1 and as such the presumption under
Section 304-B of IPC would be applicable.
12.3. The investigation has revealed that the scene of
occurrence was in the hall, where there was no
stove. The Investigating Officer has not
mentioned about the stove since there was no
stove. If there was a stove, the Investigating
Officer would have mentioned about it. The
Investigating Officer can only speak about what
was in existence and not of what was not in
existence. The contention in this regard by the
learned counsel for the accused is
unsustainable.
12.4. Accused No.1 has given a voluntary statement
as regards how the accident has occurred and
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the same has been rightly taken into
consideration by the trial Court.
12.5. There are in fact three dying declarations which
are consistent with each other, inasmuch as
Ex.P.4 being the complaint is given by the
complainant on the basis of information
received from the deceased. Ex.P.7 is a dying
declaration which has been recorded by the
Tahasildar in the presence of the Chief Medical
Officer, Ex.P.14 is the dying declaration
recorded by the ASI in the presence of Chief
Medical Officer. All these three dying
declarations are consistent with each other and
allegations have been made in all the three
dying declarations as regards how accused No.1
has poured kerosene on the deceased and set
her on fire. Therefore, the consistent dying
declarations would implicate the accused in the
offences.
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12.6. The kerosene can and burned matches have
been seized from the scene of occurrence which
would also indicate their usage in the
commission of the offence.
12.7. It is in that background he submits that the
judgement of conviction and order of sentence
which has been passed by the trial Court is
proper and correct and does not require to be
interfered by this Court.
13. It is in the background of the above submissions
which have been made, this Court would have to
ascertain upon re-appreciation of the evidence on
record, whether the judgement of conviction and
order of sentence passed by the trial Court is proper
or not?
14. There is no dispute as regards the deceased being
married to accused No.1 or accused No.2 being the
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mother-in-law of deceased. There is also no dispute
as regards the incident having occurred in the
matrimonial home of accused No.1 and deceased.
The only disputed issues are relating to whether
there is an offence under Section 498-A of IPC
committed by accused Nos.1 and 2 as against the
deceased and whether offence under Section 302 of
IPC has been committed or not. Needless to say that
these aspects would have to be established beyond
reasonable doubt by the prosecution.
15. Ex.P.4 complaint given by PW.2 on 06.09.2016 is
that on 04.09.2016 accused No.1 picked up a quarrel
with deceased at 4.30 p.m. and had poured kerosene
on the deceased and set her ablaze. This aspect of
deceased being on fire is not in dispute. The only
dispute is as regards whether the said fire occurred
on account of stove burst or on account of accused
No.1 pouring kerosene on the deceased and setting
her ablaze. In this regard though evidence is led of
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various persons, there is nothing on record to
indicate the existence or otherwise of stove.
16. PW.3-Vikram Sing who is spot panch has not
deposed anything about the stove. PW.4 who is a
relative of the complainant has deposed that the
complainant had informed him of Ashwini having
suffered from burn injuries due to stove burst and he
accompanied the complainant to Mudhol. PW.5 is
another relative of deceased and complainant who
has stated that accused used to torture the deceased
which he came to know on the date of phone call
received from the deceased relating to her cooking.
Though he has spoken about the hospitalization of
the deceased and the treatment given to her, he has
not spoken of any statement made by the deceased
in his presence or otherwise implicating the accused.
He has only spoken of the information provided by
the deceased as regards the accused ill-treating the
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deceased on account of her not being able to cook
properly.
17. PW.7 who has conducted postmortem of the
deceased has only described that the death is on
account of result of burn injuries sustained. On
enquiry during the cross-examination, he has stated
that injuries sustained by the deceased could be
caused due to a stove burst. Neither in the evidence
of PW.7 nor in the postmortem, there is anything
mentioned about the stove.
18. PW.8 is a Tahasildar who has conducted inquest, and
recorded dying declaration at Ex.P.7. He has deposed
about the deceased having given a statement that
accused No.1 had poured kerosene on her and set
her ablaze subsequent to the quarrel between them.
He has stated that the deceased was in sound state
of mind when dying declaration was recorded by him.
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19. PW.9 who is the author of the sketch at Ex.P.11 has
stated that he has prepared the sketch. He has not
stated anything about existence or otherwise of a
stove in Ex.P.11. PW.10 who is a colleague of the
complainant has deposed of the deceased having
informed him and the complainant about accused
No.1 having poured kerosene on her and setting her
ablaze, he has further stated that situation of the
deceased was perilous.
20. PW.11 is the doctor who has treated the deceased
and he has stated that he has given the statement
that the deceased was fit enough to give statement
to the police and that Ex.P.14 was recorded in his
presence by the head constable. He has also deposed
that on a similar requisition having been made by
Tahasildar, he had endorsed that the deceased was
fit enough to give a statement.
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21. PW.12 who was initial investigating officer has
deposed that on his instruction Ex.P.14 was recorded
by the head constable and that he had also
videographed the deceased giving her statement on
his mobile phone which was taken to a mobile shop
of one Anup Shah (PW.6) and transferred into a CD.
The written dying declaration was recorded by the
head constable on the instructions of PW.12.
22. PW.14 is the investigating officer who has deposed in
detail about the actions taken by him. A perusal of
his entire evidence and cross-examination, does not
indicate any investigation made by him as regards
the whether a stove exists or not. Nor does it
indicate any details about deceased having been
treated at Sarvodaya Hospital. This despite the fact
that Ex.P.15 being the medical records was in his
possession which categorically indicate that the
deceased had been referred by Sarvodaya Hospital to
Sri.Kumareshwara Hospital.
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23. A perusal of the case sheet also indicates that the
deceased had been hospitalized on account of alleged
accidental burns when stove exploded. When the
Investigating Officer was knowledgeable about this
case sheet it was but required of him to investigate
whether there was stove or not, whether it had burst
or not and whether the injuries caused were relatable
to stove burst or only relatable to kerosene being
poured on the deceased and she being set ablaze.
24. The Investigating Officer was also required to verify if
the deceased had been treated at Sarvodaya Hospital
before coming to Kumareshwara Hospital and what
was the prognosis by the doctors in Sarvodaya
Hospital. Without examining these aspects, the
Investigating Officer has only on the basis of so
called dying declaration and the statement of
interested witnesses, who are family members come
to the conclusion that accused Nos.1 and 2 have
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caused the death of the deceased and has charge
sheeted them.
25. In our considered opinion the Investigating Officer
has to investigate any offence without taking any
sides in an objective manner so as to place the truth
on record. The Investigating Officer is neither
prosecuting the accused nor he is aiding the victim.
The only job of the Investigating Officer is to
ascertain the facts and on that basis place a report
either charging the accused of the offences or
absolving them of the offences.
26. In the present matter as observed above, the crucial
aspect being as regards the injuries having been
caused due to the stove burst or otherwise, the
Investigating Officer has not even visited the kitchen,
no sketch of the kitchen has been prepared nor any
photographs of the kitchen have been placed on
record (assuming that the stove was kept in the
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kitchen). If the stove was not kept in the kitchen and
was in the hall, there is no mention of the same in
either the sketch or in any of the evidence. Suffice it
to say that the entire investigation of the
Investigating Officer is suspiciously silent on the
existence or otherwise of the stove.
27. Having been put on notice that the deceased was
hospitalized on account of burn injuries due to stove
burst/explosion, it was but required for the
Investigating Officer to have ascertained if at all
there was a stove in the house, what kind of stove it
was, whether it had exploded or burst or not and in
this regard the said stove whether burst or not would
have to have been seized and marked as a material
object and exhibited before the trial Court. This not
having been done, we are of the considered opinion
that the investigation which has been carried out is
completely lopsided, inadequate and as such could
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not have been considered by the trial Court and as
such cannot be considered by us.
28. As regards the dying declarations, though it is
contended that Ex.P.4 which is a complaint given by
PW.2-complainant being on the basis of the
information provided by the deceased to the
complainant is a dying declaration, we are of the
considered opinion that the same is a hearsay
evidence and cannot be considered to be a dying
declaration by itself when the same has been made
by the brother of the deceased, the same would
require corroboration.
29. Ex.P.7 being the statement recorded by the
Tahasildar which is indicated to be a second dying
declaration, makes it clear that the deceased had
before her death implicated accused No.1 in her
death by stating that he had poured kerosene on her
and set her ablaze. Accused No.2 was implicated only
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as regards the alleged cruelty meted out by accused
No.2 on the deceased as regards her not cooking
properly. From the said dying declaration and the
endorsement made by the doctor it is not clear as to
what her state of mind was. It is however, clear that
the relationship between the deceased and the
Accused no.1 was strained.
30. Ex.P.14 is the dying declaration recorded by the
PW.12-ASI. Though it is stated that PW.12
videographed the statement on his mobile, the said
recording was allegedly transferred from his mobile
on to a CD in the shop of one Anup Shah, PW.6.
There is no certificate in terms of Section 65-B of
Indian Evidence Act which is produced and as such
said recording was not marked in the evidence.
31. A perusal of the deposition of the other witnesses,
namely, PWs.2, 4, 5 and 10, would indicate that all
of them have spoken about a rift between accused
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Nos.1 and 2 on one hand and deceased on the other.
This rift being on account of deceased not cooking
properly. It is in that background that in the dying
declaration it is alleged that accused No.1 had
poured kerosene on the deceased and set her ablaze.
There is no statement made by aforesaid witnesses
that the deceased knew how to cook well or she
cooked well. In such a situation, there is doubt raised
in our mind that if the deceased did not know how to
cook properly, did not know how to use a stove it
could have resulted in the explosion or bursting of
stove. It is therefore possible that it is on account of
the rift between accused Nos.1 and 2 on the one
hand and deceased on the other, there is possibility
of the deceased wanting to fix the accused on her
deathbed so as to punish them. This aspect of
whether the deceased knew how to use the stove or
not, not having been deposed by other witnesses and
all of them being silent as regards the existence or
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otherwise of the stove as aforesaid, gives raise to a
doubt in our mind as regards the dying declaration.
32. In the case sheet it is recorded that the deceased
was admitted on account of burn injuries caused due
to a stove explosion, there is no contra indication in
the case sheet indicating otherwise since during the
course of treatment of the deceased when she is said
to have been conscious it would have but been
examined and or enquired by the doctors or nurses
as to how her burn injuries are caused. There is no
contra statement recorded in the case sheet by any
doctor or nurses which is contrary to initial
complaint. We are of the considered opinion that the
dying declaration is suspect when the said dying
declaration came into existence after the relatives of
the deceased entered the picture and furthermore so
on account of the fact that the complainant even
though was informed that to save his sister there
would be a requirement of putting her on a
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ventilator, refused to do so thereby refusing to try
and save his sister.
33. We cannot be oblivious to the fact that there is a
possibility of relatives of the deceased holding the
accused to blame and wanting to punish them by
implicating them in the death of the deceased.
34. The trial Court in the impugned judgement has not
considered these aspects but has only considered
that there being certain rift and there are certain ill-
treatment by the accused and the family members,
the ill-treatment has been proved and thereby
accused have committed offence under Sections 498-
A, 323 and 504 of IPC.
35. In our considered opinion the said ill-treatment which
has been adverted to by Sri.V.M.Banakar, learned
Additional SPP could only have been in relation to
Section 304-B of IPC, where a death is caused within
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a period of 7 years of marriage on account of dowry
harassment leading to a presumption that the death
is caused by the accused husband and or his family
members.
36. In the present case, admittedly, there is no demand
made for any money or ornaments which has been
deposed by the family members PW.2 and PW.5 or
for that matter any other witness. There being no
such demand for money or ornaments, question of
Section 304-B of IPC being attracted would not arise.
More so, when the accused have not been charged
with offence under Section 304-B of IPC.
37. Section 304-B is reproduced hereunder for easy
reference:
"304B. Dowry death.-- (1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was
subjected to cruelty or har-assment by her husband or any
relative of her husband for, or in connection with, any demand
for dowry, such death shall be called "dowry death", and such
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husband or relative shall be deemed to have caused her
death. Explanation.--For the purpose of this sub-section,
"dowry" shall have the same meaning as in section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprison-ment for a term which shall not be less than seven
years but which may extend to imprisonment for life."
38. PW.2-Vindarsingh has deposed that accused No.1
informed him of the deceased having been injured
due to stove burst. PW.4 has also deposed to similar
effect. PW.5 has denied that the deceased sustained
burn injuries due to accidental stove burst. PW.7 who
is a doctor who has conducted postmortem has
stated that the injuries caused to the deceased might
have been caused due to stove burst. PW.14 on
enquiry as to whether a stove had been seized, he
has stated that PW.13 has informed him that no such
stove has been seized since there was no necessity.
PW.13 has denied seizure of any stove by stating
that there was no any necessity to seize the stove.
He has denied the suggestion that if stove was sized,
it would come to light that death was accidental.
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39. PW.11 the doctor has stated that ASI has recorded
the video during the time the deceased was making
her statement. PW.12 the ASI has stated that when
he was recording the video he had dictated the
statement taken down by the head constable. He has
also stated that he had directed the head constable
to get him an empty CD and thereafter he went to
the shop of PW.6 to transfer the recording of the
mobile on to the CD. In the cross-examination he has
stated that he does not know whether he has taken
CD or DVD. PW.6 the mobile shop owner has stated
that he has transferred the recording on the mobile
to the CD. He denies that he downloaded the video
to his system and thereafter transferred it to the CD.
40. A perusal of the file indicates that CD has been
produced in a plain plastic cover stappled to the file.
41. The trial Court has come to the conclusion that the
prosecution has proved beyond reasonable doubt
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that accused No.1 poured kerosene on the deceased
and set her ablaze with an intention to cause her
death. This is premised on the statement made by
PW.2 in the complaint and PW.5 who are supposed to
have stated that accused No.1 was consuming
alcohol and poured kerosene on the deceased and
set her ablaze.
42. A perusal of the statement of PW.5 does not indicate
to be so. What is stated by PW.5 is that a quarrel
took place and thereafter accused No.1 had poured
kerosene on the deceased and set her ablaze which
was informed by the deceased to PW.5, this is again
a hearsay evidence. There is no mention of the
accused no.1 drinking alcohol or being drunk, be that
as it may there is no investigation carried out with
regard to the same, there is no blood alcohol analysis
which has been made.
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43. The trial Court accepted the alleged dying declaration
and presumed it to be true by juxtaposing it with the
voluntary statement said to be given by accused
No.1. The trial Court though while appreciating the
evidence of DW.1 (accused No.1) that the stove fell
down from the platform, refused to accept the same
merely because he was unable to say what was kept
on the stove. The trial Court in our considered
opinion failed to answer the most pertinent question
as to whether there was stove and what happened to
the said stove. Nothing has been stated as regards
the stove in the investigation as referred to supra.
44. We have also given our considerable thought to the
fact that it is accused No.1 who put off the fire, got
burnt while doing so and it is he who took the
deceased for treatment to the hospital. If indeed
accused No.1 wanted to cause a death of the
deceased by pouring kerosene on her by setting her
blaze, he would not have saved her by putting off the
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fire which he is alleged to have started and
thereafter taken her to the hospital. Thus, there is no
intention which has been established beyond
reasonable doubt by the prosecution for causing the
death of the deceased. The prosecution has also not
examined the auto driver or the neighbors who
would have been the better witnesses to say as to
what occurred at that time but the only witnesses
who been examined are the family members and
friends of the family members of the deceased, who
are all interested witnesses. The case of the
prosecution being that Accused No.1 poured
kerosene on the deceased and set her ablaze to
cause her death, the said case is negatived by the
Accused No.1 himself saving the deceased, though
temporarily.
45. Though the trial Court has adverted to the possibility
of suicide having been committed by the deceased,
there is no finding as such given by the trial Court
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nor is there is any evidence on record relating
thereto.
46. In the above background, we are of the considered
opinion that since the investigation has not been
carried out properly, the existence or otherwise of
the stove has not been established, it not being
established that the burn injuries caused to the
deceased is only on account of pouring kerosene and
not due to stove burst and dying declaration being
suspect and not corroborated by other evidence on
record, the finding of the trial Court is not proper and
correct and therefore, we are of the considered
opinion that the prosecution has not established
beyond reasonable doubt the guilt of accused No.1 in
the matter.
47. Insofar as accused No.2 is concerned, accused No.2
is only stated to have ill-treated the deceased on
account of her not cooking properly. The statements
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made in that regard by accused No.2 cannot be said
to be ill-treatment so as to result in an offence under
Section 498-A of IPC.
48. Section 498-A of IPC is reproduced hereunder for
easy reference:
"498A. Husband or relative of husband of a woman
subjecting her to cruelty.--Whoever, being the husband or
the relative of the husband of a woman, subjects such woman
to cruelty shall be pun-ished with imprisonment for a term
which may extend to three years and shall also be liable to
fine. Explanation.--For the purpose of this section, "cruelty"
means--
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such harassment is with
a view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to
meet such demand."
49. The cruelty under Section 498-A of IPC ought to be
but such that it may lead to the death of the wife.
The conduct should be of such nature as to drive the
woman to commit suicide or to cause grave injury or
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danger to life, limb or health (whether mental or
physical) of the woman. Here in the present case,
there is no allegation that due to the alleged cruelty,
the deceased tried to commit suicide or that the
conduct of the accused no.2 caused injury or danger
to the life, limb or health of the deceased.
50. The allegation is that accused No.1 poured kerosene
on the deceased and set her ablaze. This being
disbelieved by us earlier, hence we are of the
considered opinion that accused No.2 also could not
have been convicted for the offence under Section
498-A of IPC.
51. In view of the above we make the following
observations:
52. Investigation
52.1. While giving our reasons, we have observed
that the investigation has not been carried out
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properly. This is again not a stray occurrence
but a very common occurrence that this Court
has been coming across. Hence, it is required of
the Director General of Police to make available
refresher training from time to time to all the
Investigating Officers and have a standard
operating procedure to be established for
investigation into different crimes, on penalty of
disciplinary proceedings if the SOP is not
adhered to.
52.2. For ex: In the present case it was required for
the Investigating Officer to have verifed the
existence or otherwise of the stove which has
not been done so. Photographs of the scene of
occurrence were to have been obtained which
has not been done.
52.3. The dying declaration was required to be
videographed. Though there was a videograph
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done it was so done on the personal mobile
phone of the Investigating Officer, which was
thereafter sought to be transferred into a CD in
a private mobile shop. Such a situation is not
contemplated.
52.4. Any electronic evidence would have to be
proved in terms of the Indian Evidence Act and
the Information Technology Act and it is
required that Section 65-B certificate to be
produced therewith. It is on account of not
having produced such a certificate, that
recording was not exhibited, thus, depriving the
trial Court as also this Court the examination of
such a valuable piece of evidence.
52.5. It is required for the Investigating Officer to be
sensitized and trained as to how to record dying
declarations, how to record the audio visual
recording, how it has to be captured in a
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medium that can be produced before the Court
as evidence. The chain of custody be
ascertained and demonstrably established, etc.
53. Digitisation
53.1. In the present matter, we were also put to
great difficulty in going through the documents
submitted by the investigation officer, inasmuch
as all the documents are handwritten, the
handwriting not being good as also there being
not much space between each written line.
53.2. When we examined the paperbook filed, many
of the documents are blurred on account of
multiple photocopies, requiring us to examine
the original records. Even the original records
due to passage of time in some place have
faded, become brittle and are torn.
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53.3. It is therefore, required for the Director General
of Police to issue necessary instructions to all
the Investigating Officers to record the
statements not by hand but by digital process
by typing in appropriate software.
53.4. Time is not far when any handwritten
documents will not be acceptable or accepted
by a Court. Production of handwritten
documents comes in the way of digitalization of
judicial process which is of prime importance
today.
53.5. It is rather surprising that the police IT having
commenced digitalization in the year 2008, the
Court is still receiving handwritten documents
in this case in the year 2016.
53.6. It is required that all the entries are made
digitaly. The documents to be signed digitally
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by providing digital signatures to the
Investigating Officers and other persons. When
such digital signatures are not available,
physical signature of such persons to be
obtained scanned and uploaded into the Police
IT System and digitally signed by the person
uploading.
53.7. The FIR, charge sheet and other documents,
etc., to be in digital format to be shared
through Interoperable Criminal Judicial System
(ICJS) to the Courts.
53.8. CCTNS (Crime and Criminal Tracking Network
and Systems) being a portal wherein
information of crimes and criminals are
maintained by law enforcement/investigative
agencies for necessary reference and use as
per law and the same being considered to be an
authentic source of crime and criminal related
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information it is required that such information
is available in the Case Information System
(CIS) maintained by the courts and the same in
integrated to achieve the object of ICJS (Inter-
operable Criminal Justice System).
53.9. It is therefore required that First Information
Reports, Crime Details Forms, Arrest Memos,
Search/Seizure Lists, Mahazars, Statements,
Documents obtained during investigation from
hospitals, Road Transport Authorities, FSL etc.,
Final report in the form of Charge Sheets, B
reports, C reports etc., are digitally generated,
signed and shared with courts handling bail
matters, trial matters, appellate matters,
revisional matters.
53.10. The case number to be mapped to the FIR
number and vice versa so as to make it easier
for sharing of data.
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53.11. While conducting and recording mahazar, it
would also be required that suitable equipment
is issued to the concerned Investigating Officer
to record a mahazar, etc., in an electronic
format by incorporating latitude and longitude
of the place where the mahazar is conducted
including photographing or videographing of the
said location, which could be so done by issuing
bodycams to the investigating officers which
would be directly uploaded into the server of
police IT, thus maintaining integrity and
veracity of the same. The said equipment could
also be used for recording of dying declarations,
which could be uploaded directly in the police IT
server. Thus, removing the requirement of third
party private services like that obtained by the
Investigating Officer in the present matter.
53.12. In the event of any electronic evidence being
required, the same to be produced through a
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recognized entity like the FSL, RFSL or any
mobile unit deputed by the said FSL or a
particular unit designated by the Director
General of Police.
53.13. Data from Investigating wing, Scientific
wing(FSL), Prison wing and any other wing
relating thereto to be integrated.
53.14. In this regards a task force would have to be
established by the Director General of Police,
Government of Karnataka, consisting of the
head of the Police IT, Principal Secretary E-
Governance Department, Government of
Karnataka, nominee of the Director of the
National Crime Record Bureau (NCRB), a
representative of the Director of the the CCTNS
(Crime and Criminal Tracking Network and
Systems). This committee to firstly work out
the methodology of sharing the existing digital
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records with courts and secondly to consider
above aspects including digitization of all
processes.
54. In the above circumstances we pass the following
ORDER
i. The appeals are allowed. ii. Judgment of conviction and order of sentence dated 20.03.2019 passed by the I Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi in Sessions Case No.91/2017 as regards accused Nos.1 and 2 are set aside. Accused No.1 is directed to be released from custody forthwith, if his custody is not required in any other case.
iii. Registry is directed to forward the operative portion of this order to Bijapur Central Jail, where accused No.1 is lodged.
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CRL.A No. 100191 of 2019 C/W CRL.A No. 100194 of 2019 iv. The Jail authorities to act on the basis of the operative portion of this order sent by E-mail by the Additional Registrar (Judicial) without insisting on a certified copy. v. The learned Additional SPP is also directed to inform the jail authorities about the above order and authenticate the same. vi. Though the above appeals are disposed of, to report compliance of the above directions by the Director General of Police, relist on 5th December, 2022.
Sd/-
JUDGE Sd/-
JUDGE SH List No.: 1 Sl No.: 3