Karnataka High Court
Appasab Dundappa Koli vs The State Of Karnataka on 15 September, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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CRL.A No. 100169 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100169 OF 2020 (C-)
BETWEEN:
1. APPASAB DUNDAPPA KOLI,
AGE: 38 YEARS,
OCC: NIL, R/O: SATTI,
TQ: ATHANI, DIST: BELAGAVI-591240,
(AT PRESENT IN CENTRAL PRISON
BELAGAVI, IN JUDICIAL CUSTODY
SINCE 27/06/2017)
...APPELLANT
(BY SRI. ASHOK R KALYANASHETTY., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY PSI, ATHANI POLICE STATION,
THROUGHO ADDL. STATE PUBLIC
PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
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CRL.A No. 100169 of 2020
...RESPONDENT
(BY SRI. ADDL. SPP., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS AND
THAT, THE ORDER PASSED IN SESSIONS CASE
NO.390/2017 ON THE FILE OF THE V ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI, WHEREIN THE
APPELLANT/ACCUSED WAS CONVICTED FOR 3 YEARS
FOR THE OFFENCE U/SEC.498A AND FOR LIFE
IMPRISONMENT FOR THE OFFENCE U/SEC.302 OF IPC
VIDE ORDER DATED 23.10.2019 AND CONVICTION DATED
11.11.2019 BE SET ASIDE AND TO ACQUIT THE
APPELLANT / ACCUSED.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
G BASAVARAJA, J, DELIVERED THE FOLLOWING:
JUDGMENT
Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 23/10/2019 passed by the learned V Addl. District and Sessions Judge, Belagavi in S.C. No.390/2017 for the offences punishable under Sections 302 and 498-A of the Code of Criminal Procedure, 1973 (for short, the 'Cr.P.C.), the appellant-accused has preferred this appeal. -3- CRL.A No. 100169 of 2020
2. According to the prosecution case, the accused, the husband of the complainant/deceased Bharati Appasab Koli (for short, "the deceased"), being an alcoholic, used to pick up quarrel with the deceased over trivial issues, forcing her to go to her parents' house as he was unhappy with her, keep her for starvation by not providing her with proper food, and was pestering her mentally and physically for a number of days. Further, on June 25, 2017 at 19.00 hours, the accused picked up a quarrel with the deceased and forced her to leave his house, otherwise she would go and die somewhere else and the deceased unable to tolerate the mental and physical harassment, she poured kerosene on her body, in the mean while, the accused snatched the kerosene bottle from her and threw it, as and when the deceased rushed towards kitchen and sat there, the accused took the advantage of it, with an intention to murder her, throwing few words for her to die, ignited fire by lighting with match stick, and thereafter, the deceased was shifted to Athani hospital and later when the deceased was admitted to Sangli District Hospital, succumbed to death due to burn injuries on 01- 07-2017 at 18.00 hours.
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3. On the basis of the complaint filed by the deceased, as per Ex.P.33, a case was registered by the concerned police in Crime No.255/2017 for the offences punishable under Section 498-A and 307 of IPC. The learned Magistrate has taken cognizance of the alleged offenses, and the case was registered in CC.No.2240/2017. Thereafter the case was committed to the Sessions Court in SC.No.390/2017 on the file of the V Addl. District and Sessions Judge, Belagavi. The learned Sessions Judge has framed the charges against the accused for the alleged commission of offenses and was read over to the accused. The accused pleaded not guilty and claimed to be tried.
4. The Learned Counsel for the appellant has argued the matter in length and has highlighted the grounds of appeal urged in the memorandum of appeal. The sum and substance of the argument is that the accused and the deceased wife were in cardinal terms, at no point of time harassed the deceased wife either physically or mentally. The alleged incident is the accidental one, and the accused himself has taken the deceased immediately to the hospital for treatment, there the deceased has narrated the incident and told it was self ablazed act of herself. The learned -5- CRL.A No. 100169 of 2020 counsel has pointed out Ex.23 and 24 and the evidence of the PW15 the medical officer. The prosecution has not supported the alleged ill-treatment. Further contended that trial court has convicted considering the evidence of PW.17 and 19 in support of the Ex.P33 i.e. the statement of the deceased based on the legal maxim "NEMO MORITURUS PRAESUMITUR MENTIRE", means 'the truth sits on the lips of a dying man'. There are no materials to attract the ingredients of Section 498-A and also Section 302 of IPC. Hence, prayed for the acquittal of the accused.
5. The Learned Addl. SPP mainly took the contention that the accused is an alcoholic, being unhappy with the deceased, used to pick up quarrel for trivial reasons. On the day of the incident, upon quarrel, when the deceased poured kerosene on her body and rushed to kitchen and on taking the advantage of the situation, with the intention to murder the deceased, lit up the fire with match box. The trial court has properly appreciated the evidence of PW.17- Head Constable along with Ex.P33 and based on the legal maxim "NEMO MORITURUS PRAESUMITUR MENTIRE ", means 'the truth sits on the lips of a dying man', that -6- CRL.A No. 100169 of 2020 being the case, learned Addl.SPP seeks for dismissal of the appeal against the judgment of conviction.
6. In order to bring home the charge, the prosecution has examined 21 witnesses as PWs.1 to 21 and 36 documents got marked as Ex.P.1 to 36, and 5 material objects marked as M.Os.1 to 6. On the closure of the prosecution side evidence, the accused is questioned under Section 313 of Cr.P.C. wherein, the accused has stated that on 25/6/2017, he was not in the house, he along with his children went to the elder brother's house when he was near bus stand of his village, somebody who was sent by his father told him that his wife suffering from burn injuries due to stove burst. On hearing the arguments of both sides, the learned Sessions Judge has convicted the accused for the commission of the offence punishable under Section 498-A of IPC and sentenced to undergo simple imprisonment for 3 years and also sentenced to pay a fine of Rs.5,000/- in default of payment of fine, the accused shall undergo simple imprisonment for one month. Further, the learned Sessions Judge has convicted the accused for the commission of the offence punishable under Section 302 of IPC and sentenced to undergo simple imprisonment for life and also -7- CRL.A No. 100169 of 2020 sentenced to pay a fine of Rs.20,000/- in default of payment of fine, the accused shall undergo simple imprisonment for four months. Feeling aggrieved by the order and judgment of conviction, the appellant-accused has preferred this appeal.
7. The Prosecution has examined 21 witnesses, CW.2- Sabu Laxman Katageri and CW.3-Ramesh Hulyal said to be the attesters to the spot mahazar-Ex.P.1, examined as PWs.1 and 2, as they have not supported to the case of prosecution, the learned public prosecutor has treated these witnesses as hostile witnesses and with the permission of the Court, cross examined the witnesses, in their cross examination also they have categorically denied the contents of EX.P.1 and also seizure of properties as per spot panchanama -Ex.P.1. CW.5.-Mahantesh Gangappa Koli said to be the attester to the inquest panchanama-Ex.P.3 has supported to the case of the prosecution and treated as hostile witness with the permission of the Court. He has categorically denied the contents of the inquest panchanama-EX.P.3. C.W.7- Gurulingappa D Jamakhandi, CW.8-Kashim S Attar, CW.10- Nirmala Raju Paragavi and CW.11-Shankar B Jamkhandi, who -8- CRL.A No. 100169 of 2020 speak about the ill-treatment given by the accused to the deceased, and tried to put of fire. These witnesses are examined as PWs.4 to 7, all these witnesses have not supported the case of the prosecution and treated as hostile witnesses with the permission of the Court and cross examined by the learned public prosecutor. During the cross examination, all these witnesses have categorically denied the statement and further statements recorded by the police under Section 161 of Cr.P.C. which are marked as Exs.P.4 to 11. During the cross examination of these witnesses, the prosecution has not elicited any favorable answer from them to substantiate the case of the prosecution.
8. The CW.14-Dundppa .S. Patil and C.W.15-Annappa D Koli, who are in-laws of the deceased and parents of the accused examined as PWs.10 and 11. Both these witnesses have not supported the case of the prosecution and treated as hostile witnesses with the permission of the Court. They have categorically denied the statement and the further statement said to have been recorded by the investigating officer under Section 161 of Cr.P.C. which are marked as EXs.P.16 to 19. -9- CRL.A No. 100169 of 2020
9. CW.4-Mahadevi Mallappa Sungar and CW.6-Mallappa S Sunagar, who are the parents of the deceased examined as PWs.13 and 14. They have deposed in their evidence that prior to twelve years, the marriage of the deceased Bharathi was solemnized with the accused. Bharathi and the parents of the accused were residing in one roof along with two children of Bharathi. Thereafter, the accused addicted to alcohol, hence, the parents of the accused advised the accused to reside separately. Accordingly, the accused and his wife, children are residing in a separate house. The accused use to consume alcohol and used to beat the deceased. He was not bringing any groceries to the house. He has sold the articles given by them. However, she tolerated the same. The accused used to say that her daughter is not good, and there is no happiness from her and then they have advised the accused before elders, and they brought their daughter to their house. Thereafter, at the intervention of CW.4, they sent her daughter to the house of the accused again the accused use to ill-treat her. However, they have deposed that at about two years back because of ill-treatment given by the accused, Bharathi poured kerosene on her body then the accused
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CRL.A No. 100169 of 2020 snatched kerosene bottle, Bharathi has requested the accused that she will look after her children and not to lit fire to her, but the accused lit fire then she sustained burn injuries and she was shifted to Government Hospital, Athani. In this regard PW.4 has telephonically given information at 8.00 p.m. Since, they have no money, on the next day, they went to hospital and later on she was shifted to Miraj hospital for higher treatment. They saw the body of the deceased, it was totally burnt. On inquiry, Bharathi informed that the accused lit fire and after six days, Bharathi died. In this regard, they have been given further statement to the investigating officer.
10. CW.16-Dr.Mohan.P.Kalekar examined as PW.15, he has deposed in his evidence that on 26/5/2017 at 9.30 p.m. Annappa Kolli brought the injured Bharathi to the hospital in 108 Ambulance. When he examined the injured, he found that injuries as shown in the wound certificate as Ex.P.23., further he has deposed that on the same day at 10.45 p.m. Athani police has given requisition as per Ex.P.24 and on the same day, he has endorsed on the letter that 'this patient named Bharati
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CRL.A No. 100169 of 2020 Appasab Koli, 30 years, of self, has superficial burns to about 62%, is in a state of shock and agony of pain not in a position to given her statement with full mind' as per Ex.P.24(A).
11. CW.24-Kumar Bhimappa Hittalmani, sub-inspector of police examined as PW.16, he has deposed in his evidence that on 27/6/2017 between 8.30 to 9.30 a.m. he has visited to the spot and conducted the spot mahazar as per the Ex.P.1 and seized the property which were shown by PW.4. He has prepared rough sketch as per Ex.P.25 and he has snapped photo as per Ex.P.2. On the same day he arrested the accused produced before the Court and on the same day he has visited to the district Hospital, Sangli and recorded statement of PWs.13 and 14 that on 7/7/2016, injured admitted to the district hospital, Sangli due to burn injuries then he has submitted requisition to the Court to insert the offence punishable under Section 302 of IPC instead of 307 of IPC as per Ex.P.27. Then he has entrusted the file to C.W.25.
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CRL.A No. 100169 of 2020
12. CW.20-T.N.Nagral is examined as PW.17, he has deposed that on 25/6/2017 when he was working as SHO of Athani police, he has received the message over phone from Government hospital, Athani at 9.45 p.m., as to the admission of Bharathi with history of burn injuries. Immediately he rushed to the Government hospital, Athani and found Bharathi A Kolli, who has sustained with burn injuries on all over the body then he requested the medical officer, Athani as per Ex.P.4 that whether the injured is able to give statement but the medical officer has issued an endorsement as per Ex.P.24(A) that the injured is not in a position to give statement. Thereafter, the injured was shifted to Civil Hospital, Sangli for further treatment.
13. That on 26/6/2017 he has addressed a letter to Padmabushan V Patil, Civil Hospital, Sangli to give report as to the condition of the injured whether she is able to give statement. The medical officer-CW.17 has issued a certificate as per Ex.P.32 that the injured is able to give statement then he has recorded the statement of injured Bharathi in the presence of CW.17 as per Ex.P.33. On the basis of the information given by the injured
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CRL.A No. 100169 of 2020 Bharathi he has registered a case in crime No.255/2017 and submitted FIR to the Court as per Ex.P.34. CW.19-S.S.Vibhuthi, Tahasildar examined as PW.18, he has deposed in his evidence that on 01/07/2017 Mishambhag police station, Sangali have submitted requisition to conduct inquest panchanama of the deceased Bharathi and he has secured two panchas PWs.2 and 3 and conducted the inquest panchanama as per Ex.P.3 between 8- 15 p.m. to 8-45 p.m. He found 90% burn injuries on the dead body.
14. CW.17-Dr.Rahul Solanke, medical officer, Sangali examined as PW.19, he has deposed in his evidence that on 26/6/2017 Athani police have submitted a requisition to give his opinion as to the condition of the injured Bharathi to give her statement. He has issued certificate as per Ex.P.32 in which he has certified that injured Bharathi is able to give statement.
15. CW.25-Shekharappa. H, circle inspector of police of Athani has examined as PW.20. He has deposed in his evidence that he has received the case file from PW.16 on 7/7/2017 for further investigation. Then he rushed to the spot and recorded the
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CRL.A No. 100169 of 2020 statement of CWs.4 to 13. He has also recorded further statement on 18/7/2017, has received inquest panchanama and Pavathi Partra from Udyambag police station, Sangli that on 7/8/2017, has obtained P.M. report of the deceased. Further, he has deposed as to the receiving of the documents Exs.P.23, 29, 30. He has also deposed as to the receipt of FSL report and other documents.
16. CW.18-Dr.Hemanth Ingole examined as PW.21, he has deposed in his evidence as to the conducting of P.M. of the deceased Bharathi.
17. On over all re-evaluation of the entire oral and documentary evidence on record, it is crystal and clear that none of the material witnesses have supported to the case of the prosecution. The trial Court has convicted the accused only on the basis of Ex.P.33 said to have been statement of deceased, which is considered as dying declaration along with supported medical evidence. We have gone through the evidence on record placed by the prosecution. On 25/6/2017, Bharathi A Kolli, 34 years was sent through 108 Ambulance to the taluka Government hospital, Athani reporting the injuries suffered as 'self inflicted' The cause
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CRL.A No. 100169 of 2020 is mentioned as burn with history of suicidal tendency at 8.30 p.m. On 25/6/2017. Doctor has examined injured Bharathi at 9.30 p.m. on 25/6/2017, on examination doctor has found the following injuries as in Ex.P23:
"Superficial to deep burns on whole of both upper limbs, both lower limbs, chest, back, abdomen, buttock constituting about 62 % of burns"
" the injuries are grievous and self inflicted kerosene caused burns, age of the injures less than six hours at the time of the examination".
18. Ex.P.23, the certificate issued by Dr.Mohan Kolekar, Medical Officer, Taluka Government hospital, Athani, who is examined before the Court as PW.15. He has clearly deposed in his evidence that on 25/6/2017, at 9.30 p.m. one Bharathi A Kolli brought to the hospital in 108 ambulance with the history of burn injuries and on examination, he has found that burn injuries on hands, legs, chest, back, abdomen, buttocks and the said injuries are grievous in nature. Further he has clearly deposed that the injured has sustained about 62% burns and injured has stated
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CRL.A No. 100169 of 2020 before him that she attempted to commit suicide by pouring kerosene and lit fire herself and in this regard, he has issued certificate as per Ex.P.23 and on the same day, the police have submitted requisition to him as to the condition of the injuries whether she is able to give statement or not as per Ex.P.24 and he has endorsed at Ex.P.24 as Ex.P.24(A) that the patient Bharathi A Kolli, aged about 34 years had suffered 62% burn superficial deep injuries and the injured is not in position to give her statement with full mind. He has also put his signature on this endorsement. PW.17-T.N.Nagral, head constable has also clearly deposed in his evidence as to the submission of the letter to the medical officer of Athani as per Ex.P.24. He has also deposed that the medical officer of Athani has issued an endorsement as per Ex.P.24(B) and he visited to the hospital and submitted the requisition to PW.15- Dr.M.P.Kalakeri as to give certificate whether Smt.Bharathi A Kolli is able to give statement or not. As per Ex.P.24, he has registered the case against the accused. During the course of the examination of PW.17, he has clearly admitted that on 25/6/2017, he has received an information as to the injured but he has not mentioned the same in station dairy or other
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CRL.A No. 100169 of 2020 documents, but straight away he went to the hospital and further he has admitted that the police station is at the distance of 200 meters from the hospital. He has admitted that when he visited the hospital the injured was not in a position to speak. When PW.17 has received information that the injured Bharathi was admitted to the hospital with self inflicted injuries, who has attempted to commit suicide ought to have registered a case under Section 309 of IPC but he is not done so. The investigating officer has not offered any explanation for not registering of the case against the injured Bharathi, who has admitted to the government hospital, Athani with history of self inflicted injuries, who is having suicidal tendency as mentioned in Ex.P.23. On receipt of the same, PW.19-Dr.Rahul Solanke issued a requisition as per Ex.P.32 on receipt of the same, he has endorsed on Ex.P.32 as 'fit to give Statement' as per Ex.P.32. After certification by the Medical Officer PW.19-Rahul solanke has recorded the statement of injured as per Ex.P.33. On the basis of this statement of injured Bharathi, Athani police have registered the case in Crime No.255/2017 against this accused for commission of offences punishable under Section 408(A) and 307 of IPC and submitted
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CRL.A No. 100169 of 2020 FIR to the Court as per Ex.P.34. Under Ex.P.33 PW.19-Dr.Rahul Solnake had endorsed that the patient is fit to given statement. As per the evidence of PW.15-Dr.M.P.KAlekar, who has examined the injured for the first time has clearly deposed that the injured has attempted to commit suicide by pouring kerosene on and lit fire herself and when CW.17-T.N.Nagral, head constable submitted a request to PW.15-doctor Mohan Kolekar as per Ex.P.-24 at 10.45 p.m., PW.15 has clearly endorsed on Ex.P.24 that the patient Bharathi A Koli, 30 years has about 62% burns superficial injuries and she is in a state of shock and pain and agony ,not in a position to give her statement with full mind.
19. At the relevant point of time in Sangli hospital, the investigating officer ought to have collected the material piece of evidence i.e. case sheet pertaining to the injured but the investigating officer has not produced the case sheet of the injured Bharathi A Kolli before the Court. Event the prosecution has not taken any steps to summon the case sheet before the Court for adjudication. If the case sheet is produced then the Court should have ascertain the health condition of the injured whether she
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CRL.A No. 100169 of 2020 was fit to give statement on the basis of the rate of respiratory system, pulse rate, SP02 B.P etc., but the said medical piece of evidence not placed by the prosecution for the reasons best know to them. The inconsistent evidence of PWs.17, 19 and the contents of Exs.P.23, 24, 33 and 34 and non production of the case sheet of the injured will create reasonable doubt about the condition of the injured whether she was able to give statement as per Ex.P.33 or not.
20. The evidence of PW.19-Doctor Rahul Solanke reveals that he did not know to write, read and speak kannada language. But in Ex.P.33, head constable-CW.17 has mentioned in kannada that 'nanna munde'. PW.17 who has recorded the statement of injured as per Ex.P.33, has not endorsed on Ex.P.33 that the statement of the injured has been read over and explained to the doctor in the language known to him at the time of recording the statement of injured. The medical officer PW.19-Dr.Rahul Solanke as has not endorsed on Ex.P.33 that, the contents of Ex.P.33 has been read over and explained to him in the language know to him by PW.17. Further, PW.19 has clearly admitted that he did not
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CRL.A No. 100169 of 2020 know the contents of the Ex.P.33. Further he has stated in examination in chief that the injured had suffered 90% burn injuries. On bare perusal of the Ex.P33, we can make out that the doctor PW.15 has not put date and time, and the endorsement made by the doctor that the victim was in state of mind to make statement has been made not before the statement, but after the statement was recorded. Ex.P38, the post mortem report says 70% burn injuries, however in the column 12 of the inquest panchanama Ex.p.3 and evidence of Tahsildar PW.18, it is mentioned that deceased had suffered 90% burn injuries.
21. Although there is neither a rule of law nor of prudence that the dying declaration can't be acted upon without cogent and collateral corroboration, however this court has adopted a cautious approach in entertaining the Ex.p.33, statement of the deceased. The prosecution must satisfy that the dying declaration is true and voluntary and only on the sole basis of dying declaration conviction can be passed. In this regard a reportable judgment is delivered by the Hon'ble Supreme Court of India ,on May 7, 2021 in the case of Jayamma & Anr. v. The State of
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CRL.A No. 100169 of 2020 Karnataka, 2021 with Lachma s/o Chandyanaika & Anr. vs. State of Karnataka, 2021 has acquitted the accused considering catena of judgements on appreciation of evidence on convicting the accused on the dying declaration.Para.26 and 27 as follows:
para 26. The Additional Session Judge, Chitradurga in his judgment dated 30.11.2001 formulated point no. 1 as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill Jayamma went to her house and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration (Ex. P-5) threadbare and critically analysed the statements of the police officer (PW-11) and
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CRL.A No. 100169 of 2020 the doctor (PW-16). The factors like (i) interpolation in the dying declaration Ex.P-5, (ii) contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm, (iii) page 29 the victim with 80% injuries was apparently not in a situation to talk or give statement, (iv) PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail, (v) there being no corroborative evidence to the statement Ex.P-5, and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement Ex.P-5, he held it unsafe to convict the appellants on the solitary basis of the dying declaration (Ex. P-5).
27. We fully endorse the view taken by the learned trial court. The reasons which we have assigned in paragraph
22 of this Order are sufficient to cast clouds on the genuineness of the prosecution case. We find it difficult to
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CRL.A No. 100169 of 2020 uphold the conviction only on the basis of the dying declaration Ex. P-5.
22. Accordingly, the prosecution has failed to prove the alleged dying declaration/statement of the injured being genuine and free from doubt. We have relied upon on the another decision of the Hon'ble Apex Court reported in the case of Paparambaka Rosamma and others V/s. State of Andhra Pradesh, reported in AIR 1999 SC 3455, wherein it is held as under:
(A) Evidence Act (1 of 1872), S. 32-Dying declaration Recording of Doctor at end of certificate only stated that "patient is conscious while recording the statement"
Absence of certification that injured was in fit state of mind at time of making declaration Makes dying declaration unacceptable Opinion by Magistrate recording declaration that injured was in fit state of mind at time of making declaration -- cannot be relied upon.
23. The incident occurred on June 25, 2017, complaint was filed on 26/6/2017 and the FIR was
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CRL.A No. 100169 of 2020 submitted to the Court on 26/6/2017 at 8.00 p.m. In Ex.P.34 FIR column No.2(c) was left blank. The investigating officer has not explained any reasons for the delay in reporting the incident to the court. The police have arrested the accused and produced him before the Court, on 27/6/2017 at 5.30 p.m. with remand application. Remand application dated 25/6/2017 which was submitted to the court reveals that on 27/6/2017 the police have arrested the accused near Satti bus stand and after medical examination of the accused, the police recorded the statement of Mallappa Sunagar and Mahadevi Sungar on 27/6/2017, who are examined before the Court as PWs.13 and 14. In remand application dated 27/6/2017, the investigating officer has not referred as to the recording the statement of PWs.13 and 14. Further the prosecution papers reveals that the investigating officer has issued the notice under Section 160 of Cr.P.C. to these witnesses before recording the statement under Section 161 of Cr.P.C. On 27/6/2017 the statement recorded by the investigating officer under Section 161 of Cr.P.C. and further statement of these witnesses have
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CRL.A No. 100169 of 2020 not been submitted before the Court along with remand application or on the next day of recording the statement of these witnesses. The statement of witnesses recorded under Section 161 of Cr.P.C. of PW.13 and 14 have been produced by the investigating officer only at the time of the filing of the charge sheet with no such explanation as to non submission of the statement of PW.13 and 14 at the earliest point of time. The PW.13 and 14 have not deposed anything as to the death of the deceased but they have deposed as to ill- treatment given by the accused to the deceased during her life time, this alleged incident occurred after 12 years of the marriage and during the wedlock of the deceased and the accused, two children were born, who are in the custody of the accused. If the accused ill-treated the deceased as stated by PW.13 and 14, they would have file complaint against the accused but they have not done so, even in this regard they have not made any efforts to advices the accused in this regard. Therefore, sole interested testimony of PW.13 and 14 which is not substantiated by any cogent, convincing, corroborating evidence is not sufficient to come to the
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CRL.A No. 100169 of 2020 conclusion that the accused was ill-treating the deceased during her life time.
24. The learned Sessions Judge has not properly appreciated the evidence on record and also ignored the evidence of PWs.15, 17 and also documents wound certificate of the deceased Ex.P.23 and opinion of the Doctor Ex.P.24(A) and also the observation made by the Hon'ble Apex Court in considering the dying declaration. Hence, the impugned judgment not sustainable under law. Under the given set of circumstances, we are of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, by giving the benefit of doubt on the above said circumstances, the accused is entitled for acquittal as such we proceed to pass the following :
ORDER The appeal is allowed, and the impugned judgment dated 23.10.2019 is set aside quashing the conviction of the
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CRL.A No. 100169 of 2020 appellant for offences punishable under Sections 498A and 302 of IPC and setting aside the order of sentence dated 11.11.2019, directing the release of the appellant, who is in custody, forthwith.
Sd/-
JUDGE Sd/-
JUDGE VB List No.: 1 Sl No.: 30