Karnataka High Court
Sri. Umesh N S/O. Pampanna vs The State Of Karnataka on 1 April, 2025
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CRL.A No.100607/2022
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 01ST DAY OF APRIL 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100607 OF 2022 (C)
BETWEEN:
SRI. UMESH N. S/O. PAMPANNA
AGE: 34 YEARS, OCC: LABOUR,
R/O: 4TH WARD, THORANAGALLI,
TAL: SANDUR, DIST: BALLARI-583119.
...APPELLANT
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH SANDUR POLICE STATION,
NOW REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD,
BENCH AT DHARWAD-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
VISHAL
NINGAPPA
PATTIHAL THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: HIGH COURT
OF KARNATAKA
OF CODE OF CRIMINAL PROCEDURE, SEEKING TO CALL FOR
Date: 2025.04.03
13:09:20 +0530
RECORDS IN S.C.NO.30/2017 AND SET ASIDE THE JUDGMENT
OF CONVICTION DATED 28.09.2022 AND ORDER OF SENTENCE
DATED 30.09.2022 PASSED BY THE COURT OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI FOR THE OFFENCE
PUNISHABLE U/S. 498(A) AND 302 OF IPC ACQUIT THE
APPELLANT BY ALLOWING THE ABOVE APPEAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.03.2025, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No.100607/2022
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The appellant/accused has preferred this appeal against the judgment of conviction and order on sentence dated 30th September 2022 passed in SC No.30 of 2017 by the II Additional District and Sessions Judge, Ballari (for short hereinafter referred to as the "trial Court") whereby, the accused was convicted for the offence punishable and Sections 498A and 302 of the Indian Penal Code.
2. The factual matrix of the prosecution case is that, the marriage of the deceased-Lakshmi with accused was solemnized about eight years back. After marriage, the accused used to always pick up quarrel with his wife and used to demand money from her for consuming alcohol and when she refused to give him money, the accused used to assault her and used to harass her mentally and physically. That on 15th February 2017 at about 8:30 am in Kitchen accused demanded money for consuming alcohol and when the deceased refused to give money, he kicked her and when she fell he poured -3- CRL.A No.100607/2022 kerosene on her and lit fire with a matchstick. When Lakshmi made hue and cry, the neighbours came, extinguished fire and shifted Lakshmi to Jindal Sanjeevini Hospital, Tornagal. On 21st February 2017 at about 9.00 am, she succumbed to the injuries. Thus, the accused committed offences punishable and Sections 498A and 302 of Indian Penal Code.
3. After filing the charge-sheet, case was registered in CC No.217 of 2017. After committal to the Sessions Court, case was registered as SC No.30 of 2017. Having heard the arguments on charges, the trial Court has framed charges and the same were read over and explained to the accused in the language known to him. Having understood the same, accused pleaded not guilty and claimed to be tried.
4. To prove the case of prosecution, 25 witnesses were examined as PWs1 to 25 and marked 36 documents as Exhibits P1 to P36 and six material objects were marked as MOs 1 to 6. On closure of prosecution side evidence, the statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence of prosecution witnesses. Accused also submitted his written statement, in which he has stated as under:
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5. Having heard the arguments on both sides, the trial Court has convicted the accused for commission of offence under Sections 498A and 302, Indian Penal Code and sentenced the accused to undergo rigorous imprisonment for a period of three years and pay a fine of ₹5,000/- and in default of payment of fine, the accused shall undergo simple in imprisonment for a period of three months for the offence punishable under intersection 498A of IPC. Further, the accused was sentenced to undergo imprisonment for life and shall pay a fine of ₹20,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of six months for the offence punishable and section 302 Indian Penal Code. Being aggrieved by the judgment of conviction and order on sentence, the accused has preferred this appeal. Contentions of learned counsel for the appellant:
6. Learned Counsel Sri Srinand A. Pachhapure, appearing for the appellant/accused submits that the judgment of conviction and order on sentence passed by the trial Court is opposed to facts and probabilities of the case. He would submit -6- CRL.A No.100607/2022 that the trial Court has erred in believing the uncorroborated version of prosecution witnesses and has wrongly come to the conclusion. He submits that PWs1 and 2 who are witnesses for spot panchanama as per Exhibit P1, have not supported the case of the prosecution. PWs3 and 4, who are panchas for seizure panchanama marked at Exhibit P2, have also not supported the case of prosecution. CW8 and CW13 who are father and mother respectively of the deceased examined as PWs5 and 7, have also not supported the case of prosecution. Even in their cross examination, they have deposed that when they had been to hospital to see their daughter, they found that their daughter was not in a position to speak. They have also deposed that their daughter did not know Kannada language. Therefore, the evidence of PWs5 and 7 will not come to aid of the prosecution in any manner whatsoever, to prove its case against the accused. Learned Counsel would further submit that PW6 who showed the spot also has not supported the case of prosecution. PWs8-10 and PWs13-15 have also not supported the case of prosecution. During their cross- examination by the Public Prosecutor after treating them as hostile witnesses with the permission of the Court, the prosecution has failed to elicit any favourable answers from -7- CRL.A No.100607/2022 them. PWs11 & 12 who are the witnesses for spot panchanama, have not supported the case of prosecution. PWs11, 12 & 14, in their cross-examination have clearly stated that they came to know that since the health condition of the deceased was not good, she dozed herself by pouring kerosene and sustained burn injuries. Further, he would submit that though First Information Report is registered on 15th February, 2017 at 10:45 am, the same reached the Court on 16th February, 2017 at 3:30 pm, when the FIR reveals that the date and time of sending FIR to the Court was on 15th February, 2017 at 11:30 hours. Therefore, it is clear that FIR was not registered on 15th February 2017, but ante-date and ante-time was mentioned in the FIR to suppress the delay in registering the case. This delay in submitting the FIR to the Court is not explained by the prosecution. Learned counsel would further submit that the Doctor-PW18 who has conducted the post- mortem over the dead body, has admitted that he did not mention in his report-Exhibit P2 about the nature of degree of burns but has admitted that the deceased has sustained more than 90% burn injuries and sustained third or fourth degree burns. Therefore, when the percentage of burns is taken into consideration along with evidence of the witnesses, including -8- CRL.A No.100607/2022 the evidence of the parents of the deceased, it is clear that the deceased was not in a position to speak. Further, learned Counsel would submit that PW22-Tahsildar who has recorded the dying declaration of the deceased as per Exhibit-P29 in the presence of Doctor, has stated that he has recorded the statement of the victim between 6.00 and 6:30 pm on 15th February, 2017. In his examination-in-chief, he has deposed that he did not take the thumb impression of the victim on the statement since her both hands were burnt. During the course of cross-examination, he has deposed that he has taken thumb impression of the victim on the statement. He has further deposed that the victim has not stated before him that it is the accused who poured kerosene on her. He has further deposed that victim did not give any explanation as to how and in what manner kerosene fell on her. PW20-Doctor in his examination- in-chief has stated that when she was in kitchen, her husband poured kerosene and set her on fire with the help of a matchbox. In the course of his cross-examination, he has stated that the Tahsildar recorded the dying declaration between 6.00 & 7:30 pm. He has stated that he has given evidence in his examination-in-chief to the effect that when the deceased was in the kitchen, the accused poured kerosene on -9- CRL.A No.100607/2022 her and lit fire on her and admitted that the said statement is not found in Column No.16 of Exhibit P29. He has deposed that he did not know as to whether the Tahsildar took the signature or thumb impression of the deceased on the dying declaration. Therefore, evidence of PWs20 and 22 is useless and there is glaring inconsistency in their evidence and therefore, the prosecution has failed to prove the dying declaration beyond all reasonable doubts. He would further submit that PW24-Sub Inspector of Police who has recorded the statement of victim, in the course of cross-examination has admitted that before he proceeding to Hospital, he has received the MLC. He has not produced the MLC report before the Court. In his examination-in-chief, he has deposed that the both hands of the victim were burnt and therefore he could not take thumb impression. Whereas, in the course of his cross- examination, he has deposed that he do not remember as to whether the hands of victim were completely burnt or not. In Column No.7 of the inquest report, it is clearly mentioned that both the hands of the victim were completely burnt and were bandaged. The Tahsildar has deposed that both hands of victim were burnt and therefore he could not take the thumb impression on the statement, whereas PW24-Sub-Inspector of
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CRL.A No.100607/2022Police has deposed that he took thumb impression of the victim on Exhibit-P28 but has deposed that he do not remember as to whether the hands of victim were burnt or not. Dr. C.K.N.Chandru-PW20 has not stated anything as to Sub- Inspector of Police-PW24 taking the thumb impression on Exhibit P8 in his presence. Therefore, the evidence of PWs20 and 24 are not consistent and there is no corroboration in their evidence and therefore, their evidence are not reliable and to be rejected.
7. The learned Counsel would further submit that the scribe of Exhibit P28 is not examined by the prosecution and hence it is fatal to the case of the prosecution. The Investigating Officer PW21, in his examination-in-chief, has stated that the body of the deceased was completely burnt and it was bandaged. Hence, he would submit that all the material witnesses, including the evidence of the parents of the deceased, have not supported the case of prosecution.
8. It is the further submission of learned Counsel for the appellant/accused that accused himself tried to extinguish the fire and while so extinguishing, accused too sustained burn injuries over his both hands and he also has taken treatment in
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CRL.A No.100607/2022the hospital. The prosecution has not given any explanation as to how the accused sustained injuries, but, on the other hand, accused has explained as to under what circumstances he has sustained burn injuries on both his hands. PWs19 and 25, during the course of their cross-examination, have clearly stated that in case a person tries to extinguish fire on the body of another person, such person also sustains burn injuries as mentioned in Exhibit P25. Learned Counsel further submits that though the prosecution has failed to establish its case with cogent, convincing, corroborative, consistent and trustworthy evidence before the Court, the trial Court has convicted the accused only on the basis of dying declaration, which is not consistent and also not supported by any other evidence. Hence he submitted that the impugned judgment of conviction and order on sentence is not sustainable in law. On all these grounds he sought for allowing the appeal. In support office submissions, learned Counsel placed reliance on the following decisions:
1. UTTAM v. STATE OF MAHARASHTRA - (2022)8 SCC 576;
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2. SURESH v. STATE BY INSPECTOR OF POLICE rendered in CRIMNAL APPEAL NO.540 OF 2013 decided on 04.03.2025.
Submissions on behalf of the State:
9. On the other hand, Sri M.B. Gundwade, learned Additional State Public Prosecutor, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts. He would submit that absolutely there are no materials to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court and prayed for dismissal of the appeal.
10. Having heard the learned Counsel appearing for the parties, and also on perusal of materials placed before us, the following points would arise for our consideration:
1. Whether the impugned judgment of conviction and order on sentence passed by the trial Court suffers from legal infirmities requiring this court to intercede?
2. What order?
11. Our answer to the above points is:
Point No.1: In the affirmative;
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Point No.2: as per final order.
Regarding Point No.1:
12. Before analyzing the evidence on record, it is necessary to mention here the decision of the Hon'ble Apex court in the case of UTTAM (supra). In the said judgment, at paragraphs 11 to 15, the Hon'ble Apex Court has observed as under:
"11. Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872 states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that 'hearsay evidence is inadmissible' and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy.
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12. In Kundula Bala Subrahmanyam and Another V. State of Andhra Pradesh, this Court had highlighted the significance of a dying declaration in the following words :
"18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration......."
13. In Shudhakar V. State of Madhya Predesh (2012)7 SC 569, this Court had opined that once a dying declaration is found to be reliable, it can form the basis of conviction and made the following observations :
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"20. The "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."
14. In Paniben (Smt.) v. State of Gujarat (1976)3 SCC 618, on examining the entire conspectus of the law on the principles governing dying declaration, this Court had concluded thus:
"18. ........ (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav; Ramawati Devi v. State of Bihar)
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)
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(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krisbnamurti Laxmipati Naidu)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)
15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the Court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the Court would be expected to carefully scrutinize the evidence to find out as to which of the dying declarations can be corroborated
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CRL.A No.100607/2022by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the Court in exercise of its discretion."
13. The Hon'ble Apex Court, in a recent decision in the case of SURESH rendered in Criminal Appeal No. 540 of 2013 (supra), has held that "there is no doubt regarding the well- settled position of law that a dying declaration is an important piece of evidence and a conviction can be made by relying solely on a dying declaration alone as it holds immense importance in criminal law. However, such reliance should be placed after ascertaining the quality of dying declaration and considering the entire facts of a given case." Further, it is observed that, if a dying declaration is surrounded by doubt or there are inconsistent dying declarations by the deceased, then Courts must look for a corroborative evidence to find out which dying declaration is to be believed and the same will depend upon the facts of the case and courts are required to act cautiously in such case.
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14. In the case on hand, the Investigating Officer has cited 29 witnesses in charge-sheet. Out of them, 25 witnesses were examined as PWs1 to 25.
15. CW2-Hanumantha Reddy and CW3-Swamy said to be attesters to spot mahazar-Exhibit P1, have not supported the case of prosecution. Even in their cross-examination made by the Public Prosecutor after treating them as hostile witnesses with the permission of the Court, they have categorically denied the contents of exhibit P1 and also seizure of burnt saree, clothes and one petticoat.
16. CW4-Gavisiddappa and CW5-Shanmukha said to be attesters to seizure mahazar-Exhibit P2, who are examined as PWs3 and 4, have not supported the case of prosecution. Even in their cross-examination made by the Public Prosecutor after treating them as hostile witnesses with the permission of the Court, they have categorically denied the contents of Exhibit P1 and also the seizure of kerosene can and matchbox.
17. CW8-Sanna Sunkanna the father of the deceased examined as PW5, has deposed that he do not know the cause for the death of his daughter, and he went to hospital to see her. He do not know about the alleged incident, and he has not
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CRL.A No.100607/2022given any complaint to the police. This witness was treated as partially hostile witness with the permission of the Court and even in the cross-examination he has categorically denied the statement said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which is marked as Exhibit P7. During the cross-examination by the accused, he has clearly admitted that when he saw his daughter, she was not in a position to talk and she does not know Kannada language.
18. CW10-Shivashankar said to be the eye-witness examined as PW6, has not supported the case of prosecution. This witness is also treated as hostile witness with the permission of the Court and was cross-examined by the Public Prosecutor. In his cross-examination he has categorically denied the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure which are marked as Exhibits P8 & P9. During the course of cross- examination by the accused, he has admitted that he had been to hospital to see the victim and her body was completely burnt, and she was not in a position to speak.
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19. CW11-Sunkamma wife of PW5, is circumstantial witness. She is the mother of the deceased and is examined as PW7. She has deposed in her evidence that she did not know as to the cause of death of her daughter. When her daughter was admitted to the hospital, she went there to see her daughter but has not given any statement to the police. This witness is also termed as hostile witness with the permission of the Court and during the cross-examination she has categorically denied the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure which is marked as Exhibits P1 & P11. In her cross- examination made by the accused, she has clearly admitted that when she went to the Hospital to see her daughter, her daughter was not in a position to speak, and she also has deposed that her daughter did not know Kannada language.
20. CW13-Hanumantha, CW14-Smt. Rathnamma and CW15-Smt. Huligemma said to be eye-witnesses who are examined as PWs8 to 10 respectively, have not supported the case of prosecution. In the cross-examination made by the Public Prosecutor after treating them has hostile witnesses with the permission of the Court, they have categorically denied the statement said to have been recorded by the Investigating
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CRL.A No.100607/2022Officer under Section 161 of Code of Criminal Procedure as per Exhibits P12 to 14. During their cross-examination made by the accused, the have categorically stated that they went to the hospital and witnessed that victim's body was completely burnt, and she was not in a position to speak.
21. CW6-Parvathi and CW7-Obaleshappa said to be attesters for panchanama, examined as PWs11 and 12 have admitted the signature as to the inquest panchanama Exhibit- P15, but have denied the statement recorded by the Investigating Officer as per Section 161 of the Code or Criminal Procedure and they have not supported the case of prosecution.
22. CW9-Thimmanna who is examined as PW13, has stated as to the statement recorded by the Investigating Officer in Column No.10 of inquest panchanama, but has not supported the case of the prosecution. Even in the cross-examination made by the Public Prosecutor after treating him as hostile witness with the permission of the Court, he has categorically denied the statement recorded by the Investigating Officer marked at Exhibit P18.
23. CW12-Marekka, circumstantial witness examined as PW14, has not supported the case of prosecution. Even in her
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CRL.A No.100607/2022cross-examination made by the Public Prosecutor after treating her as hostile witness with the permission of the Court, she has categorically denied as to the statement and further statement recorded by the Investigating Officer, which are marked as Exhibits P19 and P20 respectively.
24. CW16-Honnurswamy, another circumstantial witness examined as PW15, has not supported the case of prosecution. During the course of cross-examination by the Public Prosecutor after treating him as hostile witness with the permission of the Court, he has categorically denied as to the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure which is marked as Exhibit P21.
25. CW17-K. Maresh, Panchayat Development Officer, has deposed in his evidence as to issuance of Assessment Extract- Exhibit P22 pertaining to assessment No.1318 of Toranagal Village.
26. CW22-Kotresh, Police Constable, who submitted FIR Exhibit P23 to the Court, has deposed that he has submitted FIR to the Court on 16th February 2017.
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27. CW19-Dr. Gopal Rao has deposed in his evidence as to the issuance of postmortem report Exhibit P24 and also the wound certificate of the accused Exhibit P25.
28. CW21-Hanumanthappa, Assistant Executive Engineer Public Works department, Sandur has deposed in his evidence that at the request of Investigating Officer, he has visited the spot and prepared the sketch as per Exhibit P16, as to the Spot shown by PW24.
29. CW18 Dr. C.K.N. Chandru examined as PW20 has deposed in his evidence that since 2009-2017, he was working as Medical Officer in Jindal Sanjeevani Hospital, Toranagal. On 15th February, 2017, deceased was admitted to the hospital with the history of burn injuries. Police have submitted report as per Exhibit P27 to ascertain the condition of the deceased as to whether she was fit to give the statement or not and on the same day, he has examined the victim and has given his opinion as per Exhibit P27(b) that the victim was in a position to give statement. He has also identified the complaint of the deceased as per Exhibit P28. Further, he has deposed that on the same day, Tahsildar has recorded her dying declaration as per Exhibit P29. By that time, he has endorsed on the dying
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CRL.A No.100607/2022declaration as per Exhibit P29(c) that the deceased was in a fit condition to give statement. He has also deposed as to the case sheet Exhibit P30 that on 21st February 2017 at 9.00 am the victim passed away, and also as to the treatment given to the victim.
30. CW27-Shivappa S. Vaddar, Assistant Sub-Inspector, has deposed regarding the inquest panchanama conducted by him as per Exhibit P17. He has also deposed that he has recorded the statement of CWs8 and 9 as per Exhibits P7 and P8 and he has taken photos of the deceased as per Exhibits P16 and P17. He has further deposed that the body of the deceased was fully burnt and covered with bandage.
31. CW20-U Nagaraj, Tahsildar has deposed as to the recording of dying declaration of the deceased and the Doctor giving endorsement that the injured was in a fit condition to give statement. Accordingly, he has recorded the dying declaration as per Exhibit P29 in Kannada. Further, he has deposed that he has not taken the thumb impression of the deceased, as both her hands were burnt.
32. CW28-Mohammed Rafi and CW29-Ghorphade Yellappa, examined as PW24 and PW23 respectively, have
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CRL.A No.100607/2022deposed in their evidence as to the respective investigation conducted by them.
33. CW20-Dr. Vishalakshi, the additional witness who is not shown in the charge-sheet, is examined as PW25. She has deposed in her evidence as to the treatment extended to the accused-Umesh who came to the hospital with the history of burn injury on both hands on 15th February 2017. She has deposed that the injured was discharged on 16th February 2017 and she has issued report as per Exhibit P36.
34. On careful scrutiny of the entire evidence placed on record and keeping in mind the decisions of Hon'ble Apex Court, we are of the considered a view that the prosecution has failed to prove the guilt of the accused for commission of offence punishable under Sections 498A and 302 of Indian Penal Code for the following:
Reasons as to Offence punishable under Section 498A IPC:
35. It is the case of the prosecution that the accused addicted to alcohol was demanding money from his wife deceased-Lakshmi and was mentally harassing and physically ill-treating by assaulting her when she refused to give him
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CRL.A No.100607/2022money for consuming alcohol. That on 15th February 2017 at about 8:30 am in the Kitchen, the accused demanded money from his wife for consuming alcohol, and when she refused to give him the money, he kicked her, and when she fell down, he poured kerosene on her and lit fire. When she started screaming, the neighbours came to rescue her and immediately she was shifted to Jindal Sanjeevini Hospital at Toranagal. With regard to the offence under Section 498A of IPC is concerned, the prosecution has relied on the eye-witness- Shivashankar, who is examined as PW6. He has not supported the case of the prosecution. Even in his cross-examination, he has categorically denied the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure as per Exhibits P8 and P9.
35.1. Other material witnesses PWs5 and 7, who are the parents of the deceased, have also not supported case of the prosecution. They have not whispered anything as to the alleged ill-treatment said to have been meted out by the accused to her daughter.
35.2. PW8-Hanumantha, PW9-Rathnamma and PW10- Huligemma said to be the eye-witnesses, have also not
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CRL.A No.100607/2022supported the case of prosecution. They have not whispered anything as to the physical or mental ill-treatment or the assault made by the accused to the deceased. Even in their cross-examination, prosecution has failed to elicit any favourable answers from them. Accordingly, prosecution has failed to prove the guilt of the accused for the offence punishable under section 498A of IPC.
Reasons as to Offence punishable under Section 302 IPC:
36. As regards, offence punishable under Section 302 of Indian Penal Code is concerned, it is the case of the prosecution that on 15th February, 2017 at 8:30 am in the kitchen, accused demanded money from the deceased for consumption of alcohol and when she refused to give money, he kicked her and as a result, she fell down. Accused poured kerosene on her and lit fire with the help of a matchbox. When the victim started screaming, the neighbours came to rescue her and immediately she was shifted to Jindal Sanjeevini Hospital at Tornagal. To prove this fact, prosecution has relied on the complaint filed by the victim which is marked as Exhibit P28. On the basis of this complaint, Toranagal Police have registered the case in crime No.16 of 2017 for commission of offence, punishable and Sections 498A and 302 of Indian Penal Code. Though the
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CRL.A No.100607/2022statement was recorded on 15th February 2017 at 9:30 am, the Investigating Officer has not submitted the first information report to the Court at the earliest point of time. Column No.13 of Exhibit P23-First Information Report, reveals that the Investigating Officer has sent the first information report on 15th February 2017 at 11:30 hours. The endorsement on Exhibit P23 reveals that the jurisdictional Magistrate has received the FIR on 16th February 2017 at 3:30 pm. In Exhibit P28-Mohammed Rafi, Police Sub-Inspector has put his signature and the said Mohammed Rafi is examined as PW24. The scribe of Exhibit P28 has not been examined by the prosecution.
37. CW22-Kotresh who is examined as PW17, has deposed that he has submitted FIR-Exhibit P23 to the Court on 16th February 2017, and he has not deposed anything as to delay in submitting the FIR to the Court. Even he has not deposed anything in his evidence that he has received the FIR on 15th February, 2017 at 11:30 hours as shown in FIR. On the contrary, he has clearly deposed that he has received the FIR on 16th February 2017 at 9.00 am from his higher officer. The prosecution has not explained anything as to delay in submitting the FIR to the Court. This evidence clearly establishes that ante- date and ante-time is mentioned in First Information Report.
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38. In the case on hand, Complaint-Exhibit P28 is the origin and Genesis and is the prime document for the reason that after registration of this case, the victim/complainant passed away on 21st February 2017; and secondly, the dying declaration recorded by the Tahsildar on the date of incident i.e. on 15th February, 2017.
39. Before analyzing the evidence as to submission of FIR to the Court, it is relevant to mention here as to the provisions of Section 157 of Code of Criminal Procedure. The Investigating Officer has violated the provisions of Section 157 of Code of Criminal Procedure, which requires that the copy of the FIR to be sent forthwith to the Magistrate concerned. The interpretation of Section 157 of Code of Criminal Procedure is no longer res-integra. The Hon'ble Supreme Court, in the case of BRAHM SWAROOP v. STATE OF UTTAR PRADESH reported in (2011)2 SCC Crl.923, has observed that the purpose of the "forthwith" communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging an FIR, then any delay in communicating the special report to the Magistrate would really be of little
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CRL.A No.100607/2022consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate.
40. In another decision rendered by the Hon'ble Apex Court in Criminal Appeals No.361-362 of 2018 decided on 28th September, 2022 rendered in CHOTKAU v. STATE OF UTTAR PRADESH, analyzing the importance of promptitude, both in the registration of the FIR and in the transmission of the same to the Court, the Hon'ble Supreme Court relying on its decision rendered in MEHRAJ SINGH v. STATE OF UTTAR PRADESH reported in (1994) 5 SCC 188, has held that on account of the infirmities, the FIR loses its value and authenticity and it appears that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot. Further, it is observed that unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the
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CRL.A No.100607/2022prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence.
41. With regard to First Information Report is concerned, Karnataka Police Manual Part No.1224 reads as under:
"1224. Crime Register in Form No. 20 will be maintained in each Police Station wherein entries will be made as per instructions given in the form. This is a continuous record for all First Information Reports registered and will be written up in the order of register of the First Information Report. This will be in two volumes, one for professional property offences and the other for other cognizable offences. Attention is drawn to S.O. 646.
COMMENTS Maintenance of public order and prevention and detection of offences are considered the core functions of police. Whatever has been studied so far like beats, preservation of peace etc., pertain to the maintenance of public order and prevention of offences. The Chapter on "First Information to the Police" introduces the concept of investigation of offences, Commencing with this chapter, the Manual systematically proceeds to explain in the
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succeeding chapters the legal provisions contained in the Criminal Procedure Code and the Indian Evidence Act and the powers of the police in the investigation of offences."
42. It is stated that FIR is a very valuable document and it has utmost importance both from the point of view of prosecution and from point of view of evidence. On receipt of such information, the Station House Officer of the Police Station is legally required to draw up regular First Information Report in the Form prescribed by the State Government vide Section 154 of the Code of Criminal Procedure. When an information concerning cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of Section 154(1) of the Criminal Procedure Code, the said police officer has no other option except to enter the substance thereof in the pre- scribed form, that is to say, to register a case on the basis of such information. The same is also observed by the Hon'ble Supreme Court in the case of STATE OF HARYANA AND OTHERS v. CH. BHAJAN LAL AND OTHERS reported in AIR 1992 SC 604.
43. Karnataka Police Manual also has given guidelines as to the important issues concerning the First Information Report. The same read thus:
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"Following are the important issues concerning a FIR which should be remembered while making the FIR • FIR should be lodged immediately. • It should be recorded in first person. • Have an empathetic attitude towards the victim and the informer.
• Avoid using technical words and as far as possible use the language of the informer.
• A written complaint should be taken but it should bear the signature of the person giving the information. • FIR is only in respect of a cognizable offence. • Place, Date & Time of occurrence should be mentioned in the FIR.
• FIR should clarify the delay, if any, in registering the case.
• In respect of property value should be mentioned and the value should not be reduced.
• Telephone number, if any, of the informant can be mentioned in the FIR.
• A copy of FIR should be sent to the concerned court. • A copy of FIR should be provided to the complainant free of cost.
DO NOT • Confuse the informant.
• Use Hearsay language.
• Be aggressive.
• Enter unnecessary details.
• Over-write or score off words.
• Reduce the gravity of the offence. • Forget to take thumb impression or signature of the informer."
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44. In the case on hand, the complaint-Exhibit P28, which is recorded by the police constable who is not examined before the Court, will create reasonable doubt on the following grounds:
1) The alleged incident took place on 15th February 2017 at 8:30 am;
2) The injured admitted to the Jindal Sanjeevini Hospital at Toranagal on 15th February 2017 at 9:30 am.
3) PW 24, Mohammed Rafi, Police Sub-Inspector who has put his signature on Exhibit P28 has deposed in his evidence that he visited the hospital along with PC 392 Anandgouda, who is a scribe and he has obtained the statement of victim in the presence of the medical officer. The medical officer C.K.N. Chandru examined a PW20, has put his seal and signature on exhibit P 28. He has deposed that he has received requisition from the police as per Exhibit P27 on 15th February 2017, and he has endorsed Exhibit P27 that patient can give statement. He has stated that the police have recorded the statement of the victim at 10:30 am.
He has not endorsed on Exhibit P28 as to the condition of the victim, but he has only put his signature and seal.
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CRL.A No.100607/2022
4) Exhibit P30 the OPD case sheet reveals that the victim-Lakshmi aged 30 admitted to the hospital with the history of burns on 15th February 2017 at 8:45 am. Exhibit P30 OPD sheet reveals that at the time of admission of injured to the hospital, her BP was 90/60. The operation notes which is attached to the case sheet reveals that the burns is to the extent of second to third degree and injury is 90%.
5) PW24-Mohammed Rafi has deposed in his evidence that on 15th February 2017, he has received MLC report from Jindal Sanjeevani Hospital Toranagal as to the admission of victim to the hospital with history of burns. Then he proceeded to the hospital along with PC 392. But the said MLC report is not produced by the prosecution.
45. It is submitted by the learned Counsel for the complainant that Modi Medical Jurisprudence and Toxicology speaks about post-mortem appearance of burn injuries. It states that the burn caused by kerosene oil are usually very severe and the body would be exposed to great heat, it gets cooked and becomes so rigid and a person who has sustained burn injury from kerosene oil, will not be in a position of surviving the said injury. In the case on hand, the victim has
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CRL.A No.100607/2022suffered 90% burn injuries from Kerosene oil and the post- mortem report also says that from neck to waist the victim has sustained grievous injuries and was covered with bandage. This shows that the victim was not in a position to give her statement before the Police. Further, he would submit that in the decision of Supreme Court in the Case of UTTAM (supra), the Supreme Court has made observation that, "...as per medical evidence, deceased sustained burn injuries on both arms and legs, chest, abdomen, back, head, neck and face to the extent of 93%. Requisite medical certificate as to mental and physical condition of the deceased not obtained from the doctor prior to recording statement of deceased dying declaration also not recorded in seclusion and there also appear probability of deceased being promoted/tutored due to the presence her relatives resultantly, there held sufficient reasons for doubting the truthfulness of the dying declaration."
46. It is submitted by the Counsel for the appellant that it has come in the evidence of prosecution witnesses, including the parents of the deceased who has deposed that the deceased is from Andhra Pradesh and she does not know Kannada language. However, Exhibit P28 is in Kannada language and even the scribe has not been examined by the
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CRL.A No.100607/2022prosecution. The contents of Exhibit P28 itself reveals that it is a concocted and created document. In the written statement filed by the accused on 05th October, 2021 under Section 313 of Code of Criminal Procedure, the accused has stated that his wife did not know Kannada language and the parents of the deceased also stated the same before the court on oath. This evidence placed before this Court reveals that though the deceased does not know Kannada language, the Police have recorded her statement as per Exhibit P28, will create doubt as to the statement said to have been given by deceased.
47. It is the further case of the prosecution that on the date of incident itself i.e. on 15th February 2017 at 6.00 pm at the request of the Police, PW22-Nagaraj the Tahsildar, has recorded the dying declaration as per Exhibit P29. The Tahsildar has not taken the LTM or the signature of the deceased on this document. He has deposed on oath that on 15th February 2017 at 6.00 pm when he visited the hospital, he has not taken the LTM or fingerprint of the injured, as her both hands were burnt. However, Exhibit P28-complaint said to have been given by the victim which was reduced to writing by the police officials marked as Exhibit P28, reveals that the victim has put her LTM, which is also marked as Exhibit P28(c).
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CRL.A No.100607/2022Though the victim was not in a position to put her LTM or signature on dying declaration recorded by the Tahsildar, how she has put her LTM on Exhibit P28 has not been explained by the prosecution. If injured had put LTM on Exhibit P28 as per Exhibit P28(c), the police would have taken signature or LTM of the complainant in Column No.12 of the FIR which is marked as Exhibit P23. But the Column No.12 in Exhibit P23 as to signature/LTM of the complainant is left blank. What needs to be noted is that Column 7 of Exhibit P15 inquest Panchama reveals that there had been injuries on head and on both cheeks and lips and further it reveals that both the hands are tied with bandage. Though post-mortem report-Exhibit P24 states that body, except head and face, was fully burnt, however, the postmortem report reveals that blaster has ruptured both cheeks and chin. Exhibit P17 photo of the deceased also reveals that injured sustained burn injuries on both cheeks, lips, chin, and forehead. Exhibit P15-inquest panchanama reveals that deceased has sustained burn injuries on head, both cheeks, chin and lips and her both hands were completely burnt and tied with bandage. In this regard, the Investigating Officer has not explained anything. The inconsistent evidence as to the health condition of the deceased
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CRL.A No.100607/2022at the time of recording the statement will create reasonable doubt in the minds of the Court about Exhibit P29-the alleged dying declaration of the deceased.
48. As already discussed above, the parents of the deceased have clearly deposed in their evidence that they are from Andhra Pradesh and the deceased did not know Kannada language. However, Tahsildar PW22 has recorded the answers in vernacular language. Considering the facts and circumstances of the case, it is necessary to mention here as to the importance of dying declaration. In Points 1267 to 1277 of Karnataka Police Manual, it is mentioned as to recording of dying declaration. The same reads as under:
"1267. The statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, is admissible in evidence under Clause (1) of Section 32 of the Indian Evidence Act. Such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
1268. The dying declaration should ordinarily be got recorded by the Executive Magistrate; when however an Executive Magistrate is not readily available for one
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reason or the other, a Police Officer may get the dying declaration recorded by the Judicial Magistrate.
1269. Such person shall, if possible, be examined by a Medical Officer, with a view to ascertaining that he is in a sufficiently fit condition to make his statement. Where for any reason, the presence of a Medical Officer cannot be procured without delay, the Magistrate or the Officer recording the dying declaration should satisfy himself that the declarant is in a sufficiently fit condition to make a statement and record the fact.
1270. If no Magistrate can be secured, such statement shall be recorded by the Investigating Officer in the presence of two or more witnesses.
1271. If no such witnesses can be obtained without risk of such person's death before his statement can be recorded, it shall be recorded by the Investigating Officer in the presence of one or more Police Officers.
1272. The declaration may be recorded by any person. Even if the declaration is made to a Police Officer, it is admissible in evidence and its use is not barred by Section 162, Cr.PC. Even if it has been made orally in the presence of any per person, it may be proved in court by the oral evidence of that person. The declaration becomes admissible, if the declarant subsequently dies. If he survives, it will be useful, if made before a Magistrate, or any one other than a Police Officer, to corroborate his oral evidence as a witness in court. If it was made before a Police Officer, it will be treated as a statement under Section 162. Cr.PC.
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1273. The declaration must, as far as possible, be complete by itself, the person making the declaration must be speaking from personal knowledge of the facts. If reduced to writing by the police, the declaration should, as far as possible, be in the form of questions and answers and in the very words of the declarant. The signature of the declarant should invariably be taken on the dying declaration; but if the declarant is an illiterate or is incapaciated from signing for any reason, such as his hand being maimed, his thumb impression should be taken. A note should be made in the dying declaration giving reasons why the signature of the declarant was not taken.
1274. If any person is accused by the person whose statement is to be recorded, of having been concerned in the transaction which threatens to result in his death, the accused person should be invited to be present while the statement is being taken down, or if he is already in custody, should be taken to the spot and allowed to cross-examine or question the declarant, the questions and answers being recorded in full. The Police Officer recording a dying declaration shall secure the signature or thumb mark of the declarant and also of the accused, if present.
1275. When the declarant, being in a serious condition and unable to speak makes signs by hand or head, the person recording the dying declaration must record the precise nature of the signs which the declarant made.
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1276. When the dying declaration is recorded by a person other than a Magistrate, it should be forwarded forthwith retaining a copy, to the court having jurisdiction to inquire into or try the case under investigation. If the dying declaration is recorded by a Magistrate, a copy thereof should be obtained for purposes of further investigation.
1277. Incomplete dying declarations are not by themselves inadmissible in law. Though a dying declaration is incomplete by reason of the deceased not being able to answer further questions in his then condition, yet the statement, so far as it goes to implicate the accused, could be relied upon by the prosecution, provided it is quite categoric in character and complete by itself so far as the implication of the accused is concerned. If there is corroboration for the dying declaration, it is so much the better, as the incomplete dying declaration would then be invested with the stamp of truth."
49. Exhibit P28-statement of victim was recorded as complaint on 15th February 2017 at 10:30 am. On the same day, at 6.00 pm, Tahsildar has recorded the dying declaration of the deceased. It has come in the evidence of PW17 Kotresha, who has deposed that he has received the FIR from the higher officer on 16th February, 2017 at 9.00 am. The endorsement made on Exhibit P23 reveals that Magistrate has received the FIR on 16th February 2017 at 3:30 PM. It has
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CRL.A No.100607/2022come in the evidence that they have sent the FIR on 15th February, 2017 at 11:30 hours. Though FIR was submitted before the jurisdictional magistrate on 16th February, 2017 at 3:30 pm, the Investigation Officer has not submitted this dying declaration said to have been recorded by the Tahsildar, along with the first information report. He has submitted the dying declaration only at the time of filing the charge-sheet. This conduct of the Investigating Officer will create reasonable doubt as to the recording of complaint-Exhibit P28 as well as dying declaration-Exhibit P29.
50. With regard to mental condition of the deceased to make a dying declaration, PW20-Dr. C.K.N. Chandru has deposed that he has endorsed as per exhibit P29(c) on Exhibit P29 that the patient is in a position to give statement. During the course of cross-examination, he has deposed that the injured was in a fit position to put LTM or signature. Whereas PW22 has clearly deposed that the deceased was not in a position to put her LTM or signature, as both of her hands were burnt. Even Complaint-Exhibit P28 and dying declaration- Exhibit P29, will not disclose that the scribe of Exhibit P28 Mohammed Rafi, Police Sub-Inspector, who was present at the time of recording statement of victim as per Exhibit P28 or the
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CRL.A No.100607/2022medical officer PW20, the Tahsildar PW22 have not entered on Exhibit P28 and Exhibit P29 that they have read over the contents of the complaint to the victim in the language known to the victim. Even Exhibit P29 dying declaration said to have been recorded by PW22-Nagaraju and PW20-Dr Chandru who has said that the patient was fit to give statement, has also not endorsed that the answers given by the victim was read over to the victim in the language known to her. Apart from this, the investigating officer has not collected any material to show that the victim was acquainted with Kannada language. But it is an admitted fact that the victim was from Andhra Pradesh. The parents of the victim have clearly deposed that their daughter does not know Kannada language. Given the circumstance, the case of prosecution will create doubt as to the recording of statement of victim as per Exhibits P28 and P29.
51. On a careful scrutiny of the case sheet, the same does not reveal as to the condition of the deceased on 15th February 2017 at 6.00 pm. Same is missing and not noted by the medical officer PW20-Dr.Chandru who has treated the injured. In this regard, PW20 has not explained anything in his evidence. This also creates doubt as to the recording of dying
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CRL.A No.100607/2022declaration said to have been recorded by the Tahsildar as well as Police Sub-Inspector Mohammed Rafi.
52. Apart from this medical evidence, the witnesses who are examined before the Court, including the parents of the deceased, have clearly admitted in their evidence that when they have witnessed the victim in the hospital, she was not in a position to speak. The prosecution has not placed any material to discard this evidence of the prosecution witnesses. Under the given set of circumstances, the delay in submitting the FIR to the Court; the fact that the deceased does not know Kannada language; the non-examination of scribe-Exhibit P28; no endorsement by PW20 on Exhibit P28 as to the condition of the patient; and the delay in submitting dying declaration said to have been recorded by the Tahsildar before the Court, all will create doubt about the alleged act of the accused and also exhibit P28 complaint and Exhibit P29-dying declaration. Conduct of the accused:
53. The prosecution alleges that the accused attempted to extinguish the fire engulfing his wife and, in the process, sustained burn injuries on his hands. It is further contended that after the incident, the accused, with the assistance of
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CRL.A No.100607/2022others, transported his wife to the hospital for medical treatment. He too was admitted to the General Hospital at Toranagal for his injuries. To substantiate this claim, the prosecution examined PW25-Dr.Vishalakshi, who treated the accused. In her testimony, she unequivocally stated that on 15th February 2017, the accused Umesh was brought to the hospital by his parents for a medical examination. Upon examining him, she observed burn injuries on both of his hands, with more severe burns on his left hand, as well as additional burns on his nose and right leg. She confirmed that he was admitted to CHC Toranagal on the same day and that his wounds were extensive, causing severe pain and burning sensations. She provided primary treatment and subsequently referred him to a higher medical center for further management. He was later discharged from the hospital on 16th February 2017 at 11:00 AM, as documented in the wound certificate marked as Exhibit P36.
54. Notably, the prosecution has not produced any further medical records regarding the continued treatment of the accused beyond this initial hospitalization. This lack of documentation raises questions regarding the extent of his injuries and the nature of the incident. Had the accused truly
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CRL.A No.100607/2022poured kerosene on his wife and set her ablaze, it is unlikely that he would have made efforts to save her from the fire or rushed her to the hospital for medical attention. His immediate response to the situation, including his attempt to douze the flames and his willingness to seek medical help for his wife, contradicts the prosecution's assertion of his culpability. Furthermore, there is no evidence to suggest that the accused absconded following the alleged incident, which would have been expected if he were indeed guilty of the heinous act attributed to him. Despite these crucial aspects, the Investigating Officer has not provided any explanation regarding the burn injuries sustained by the accused at the time of the incident. This omission further weakens the prosecution's case and raises reasonable doubts regarding the actual sequence of events.
55. It is the case of the prosecution that the accused used to demand money from his wife for consuming alcohol and when she refused to pay the money, he used to ill treat her mentally and physically prior to alleged incident. On the unfortunate day of 15th February 2017 at 8:30 am in the kitchen, the accused asked for money from his wife for consuming alcohol and when she refused to give the money,
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CRL.A No.100607/2022the accused kicked her with legs. But, this accusation made by the prosecution has not been proved by the prosecution. The material witnesses PW5 and 7-parents of the deceased, have not deposed anything as to the alleged, mental and physical ill- treatment said to have been meted out by the accused on their daughter. On the contrary, during their cross-examination made by the Public Prosecutor after treating them as hostile witnesses with the permission of the Court, they have categorically denied the statement said to have recorded by the Investigating Officer regarding the mental and physical ill- treatment given by the accused to their daughter. PW6- Shivashankar eye-witness to the incident and the neighbour, PW8-Hanumantha, PW9-Rathnamma, PW10-Huligemma and PW14-Marekka, have not stated anything as to the alleged ill- treatment meted out by the accused to the deceased. On the contrary, they have clearly stated in their examination-in-chief that the accused and the victim were well known to them and they got married about 7 to 8 years back and have gotten two children out of their wedlock and they were leading a happy married life. The prosecution has not elicited any favourable answers from these material witnesses as to the alleged ill- treatment as alleged by the prosecution. Accordingly, the
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CRL.A No.100607/2022prosecution has failed to prove that prior to the alleged incident, accused was ill-treating the deceased mentally and physically.
56. Further, panch witnesses PW1-Hanumanthappa, PW2-Swamy, PW3-Gavisiddappa, PW4-Shanmukha, who are said to be attesters to seizure panchanama, have also not supported the case of prosecution. Prosecution has failed to place cogent, convincing, corroborative, clinching, believable or trustworthy evidence before the Court. Additionally, the Investigation Officer has failed to comply with the mandatory provisions of Criminal Procedure Code 1973, Karnataka Police Manual and also the guidelines issued by the Hon'ble Apex Court regarding prior and after recording of dying declaration and submitting the First Information Report to the Court.
57. Viewed from any angle, the case of the prosecution will create doubt at each and every stage for the reasons stated supra. Considering the facts and circumstances of the case, the procedure to be followed prior and after recording the dying declaration, so also, while recording dying declaration and the guidelines given to the Investigating Officers as per Karnataka Police Manual and the procedures regarding submission of FIR
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CRL.A No.100607/2022to the Court under section 157 of Code of Criminal Procedure, and keeping in mind the aforesaid decisions of Hon'ble Supreme Court, we are of the considered view that the entire case of prosecution will create reasonable doubt. Accordingly, in view of the Criminal jurisprudence, the benefit of doubt shall be given to the accused. For the aforesaid reasons, we are of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts. In the result, we answer Point No.1 in the affirmative.
58. Insofar as victim compensation is concerned, in the case on hand, prosecution has failed to prove that the accused has committed the offence under Sections 498(A) and 302 of the Indian Penal Code. In view of the provisions of Section 357A of Code of Criminal Procedure, 1973 and also the Circular issued by this Court in No.4 of 2019 dated 23rd September, 2019, all the Judicial Officers in the State are to follow the guidelines issued in the Judgment rendered the case of STATE OF KARNATAKA v. VISHWANATHA DEVADIGA AND ANOTHER rendered in Criminal Appeal No.770 of 2013 decided on 29th August, 2019 and to comply with the object and intent of Sections 357 and 357A of Code of Criminal Procedure while
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CRL.A No.100607/2022awarding compensation to the victims under Victim Compensation Scheme.
Regarding Point No.2:
59. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER
(i) Appeal is allowed;
(ii) The judgment of conviction and order on sentence 30th September 2022 passed in SC No.30 of 2017 by the II Additional District and Sessions Judge, Ballari is set aside;
(iii) Accused is acquitted of the offence punishable under Sections 498A and 302 of Indian penal code;
(iv) Registry is directed to send the copy of this judgment along with the trial Court records to the concerned Court as also to the Member Secretary, District Legal Services Authority,
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Bellary to take necessary to award suitable compensation to the children of the deceased;
(v) The Member Secretary, DSLA, Ballari is directed to award suitable compensation to the minor children of the deceased within three months from the date of receipt of certified copy of this Judgment, in accordance with victim compensation scheme.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G. BASAVARAJA) JUDGE lnn / CT-CMU