A husband's convictions for burning his wife to death, dowry-related cruelty and wrongful restraint were upheld. The Court accepted her oral dying declaration to her brothers despite extensive burns, rejected the unproved alibi and dismissed the appeal, confirming the convictions and sentences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF DECEMBER, 2022
PRESENT
THE HON’BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.1043/2020
BETWEEN:
DORESWAMY S/O. LATE JABANEGOWDA, AGED ABOUT 36 YEARS, R/O. HADINARU VILLAGE, NANJANAGUDU TALUK, MYSURU – 571 301. (PRESETNLY AT JC). ... APPELLANT
(BY SRI SHAKEER ABBAS M., ADVOCATE)
AND:
STATE OF KARNATAKA THROUGH NANJANAGUDU RURAL POLICE, BENGALURU CITY, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560 001. ... RESPONDENT (BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 04.04.2019 AND ORDER OF SENTENCE DATED 08.04.2019 PASSED BY THE V ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.291/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 498A, 341, 302 R/W 34 OF IPC AND SECTION 3, 4 OF D.P. ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
J U D G M E N T
Accused No.1 filed the present appeal against the impugned judgment and order of conviction dated 04/04/2019 and sentence dated 08/04/2019, passed in S.C.No.291/2013, by the V Additional Sessions Judge, Mysuru, wherein convicting the appellant/ accused No.1 for the offences punishable under Sections 498-A, 341, 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC” for short) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (“DP Act”), praying to call for records in S.C.No.291/2013 and by setting aside the aforesaid judgment and order of conviction, acquit the appellant/accused No.1 of the charges framed against him.
years ago i.e., on 23/05/2002 and out of their wedlock, a physically challenged male child was born and he was aged about nine years at the time of the incident. After the marriage, they lived a happy married life for a period of two years in the beginning and thereafter, the accused/appellant herein started insisting the deceased to bring money from her parents and there was a complaint lodged in this regard and panchayat was held by the elders of the village. On 01/05/2013, when PW.10-the other brother of the complainant had been to see Mangalamma, she reported to him about the assault by her husband, brother-in-law and mother-in-law and on the same day in the evening at about 6.30 p.m., a person named I.M.Chandru-PW.5 called him over phone and told that Mangalamma’s husband and his family members have poured kerosene and set her ablaze. Immediately he went to Hadinaru Village along with his brother PW.10 and broke open the window and saw that Mangalamma had burn injuries and when he asked her about the incident, she told that her husband
Doreswamy/accused, mother-in-law and brother-in-law quarreled with her with regard to dowry from her parental house and poured kerosene and set her ablaze. She also stated that when Jayamma-her mother-in-law caught the deceased, her brother-in-law poured kerosene and her husband set her ablaze. Immediately she was taken to K.R.Hospital, Mysuru, in an ambulance and she died by 8.40 p.m. Thereby, a complaint was lodged at 12.30 a.m. on 02/05/2013 with the jurisdictional police. On the basis of the complaint lodged by PW.1, the jurisdictional police registered a case in Cr.No.124/2013 and sent the FIR to the Court and the copies to the higher officers. After the investigation, the jurisdictional police filed charge sheet against accused Nos.1 to 3 under the provisions of Sections 498-A, 341 and 302 read with Section 34 of the IPC. and Sections 3 and 4 of the DP Act. Since accused Nos.2 and 3 were absconding, case against them was split up and accused No.1 was arrested and produced him before the Court on 07/05/2013 and remanded to
judicial custody. Accordingly, the case was committed to the Sessions Judge. Learned Sessions Judge framed charge on 14/02/2014 and again on 05/03/2019 reframed the charge and read over to accused No.1 in the language known to him, but he denied all incriminating circumstances against him and pleaded not guilty, claimed to be tried.
had been to Bengaluru on work and he received information from the villagers that the complaint lodged
against him and therefore, went to the police station and the police arrested him.
1. Whether the prosecution proves beyond reasonable doubt that the accused No.1 has married deceased Mangalamma about 11 years ago from the date of the complaint and subjected her to cruelty and ill-treatment at Hadinaru village, Nanjanagud Taluk demanding more dowry and thereby committed offence punishable U/S 498-A of IPC?
2. Whether the prosecution proves beyond reasonable doubt that accused persons having common intention, on 1.5.2013 at about 6.30 pm., at Hadinaru village wrongfully restrained deceased Mangalamma and thereby committed offence punishable U/S 341 R/W Section 34 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that accused persons having common intention, on 1.5.2013 at about 6.30 pm., the accused No.1 along with split up
accused 2 and 3 with an intention to commit the murder of Mangalamma, accused No.3 held the deceased Mangalamma, accused No.2 poured kerosene and accused No.1 lit fire and thereby caused the murder of Mangalamma and committed offence U/s 302 R/W Section 34 of IPC?
4. Whether prosecution proves beyond all reasonable doubt that accused No.1 married the deceased Mangalamma after demanding and receiving dowry and thereby committed offence punishable U/s 3 of the D.P.Act?
5. Whether prosecution proves beyond all reasonable doubt that accused persons demanded deceased Mangalamma to bring further dowry and thereby committed offence punishable U/s 4 of the D.P.Act?
evidence on record, learned Sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that accused No.1 married deceased Mangalamma about eleven years back from the date of the complaint and she was subjected to cruelty and ill-treatment at
Hadinaru Village, Nanjangud Taluk demanding more dowry and thereby committed an offence punishable under Section 498-A of the IPC. Therefore, the accused persons having common intention, on 01/05/2013 at about 6.30 p.m. at Hadinaru Village wrongfully restrained deceased Mangalamma and thereby committed offence punishable under Section 341 of the IPC and further held that the accused persons having common intention to commit the murder of Mangalamma, accused No.3 held deceased Mangalamma, accused No.2 poured kerosene and accused No.1 lit the fire and thereby caused murder of Mangalamma and committed an offence punishable under Section 302 read with Section 34 of the IPC. It is further held that the prosecution beyond all reasonable doubt that accused No.1 married deceased Mangalamma after demanding and receiving dowry and thereby committed offence punishable under Section 3 of the DP Act and that the accused persons demanded the deceased to bring further dowry and thereby committed
offence punishable under Section 4 of the DP Act. Accordingly, learned Sessions Judge, by the impugned judgment and order of sentence convicted accused No.1 for the offences punishable under Sections 498-A, 341, 302 read with Section 34 of the IPC and under Sections 3 and 4 of the DP Act. Hence, the present appeal is preferred by the appellant/accused No.1.
parties.
hostile. He would further contend that the deceased was not in fit state of sound mind, while giving the dying declaration in front of PWs.1 and 10 who are brothers and interested witnesses of the deceased against the accused. No other independent witnesses were examined to support the case of the prosecution. The presence of accused No.1 on the date of the incident is not proved by any independent evidence adduced by the prosecution. He would further contend that there were so many inconsistencies in the evidence of PWs.1 and 10 and other prosecution witnesses and the same has been ignored by the learned Sessions Judge while convicting the accused.
He also contended that learned Sessions Judge proceeded to convict the accused based on the contradictions and improvement in the evidence of prosecution witnesses which creates doubt and suspicion in the case of the prosecution and the trial Court ought to have acquitted the accused on the benefit of doubt. Therefore, he sought to allow the appeal and set aside the impugned judgment and order of sentence.
declarations do not inspire confidence and it cannot be made sole basis for conviction.
categorically stated on oath that when they got the information from PW.5 - I.M.Chandru of the same village where the accused and deceased and their parents were living, that the deceased has been killed by pouring kerosene. When they came to the house of the accused, the door was locked out side the door. Both went inside the house by breaking the door. By that time, the deceased was craving for water by saying “Amma Amma Neeru” and when they asked what happened, she explained that her mother-in-law caught hold of her and accused No.2 her brother-in-law poured kerosene and accused No.1 her husband set her ablaze. Immediately, they shifted her to K.R.Hospital, Mysuru. He would further contend that the evidence of PWs.16 and 20 and Ex.P-22 post-mortem report clearly depict that this is a homicidal death of the deceased at the instance of accused Nos.1 to 3.
to conduct trial only in respect of accused No.1. During the course of the evidence of PW.1, he deposed that accused No.2 – Nagaraja, brother-in-law of the deceased died and accused No.3 Jayamma not available. He would further contend that the cause for death of the deceased had occurred in the house of the accused and MO.1 was also recovered in the house of accused No.1 in the presence of PWs.2 and 3 under Ex.P-3 spot mahazar and the death had taken place in the hospital and panchayatdars PWs.6, 11 and 18 also deposed to the effect that the accused persons used to demand dowry and harass the deceased and thereby supported the case of the prosecution. Therefore, he submits that the order passed by the learned Sessions Judge convicting accused No.1 is just and proper. Therefore, he sought to dismiss the appeal.
urged by learned counsel for the parties, the only point that arises for our consideration in the present appeal is:
“Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offences punishable under Sections 498-A, 341, 302 read with Section 34 of the IPC and Sections 3 and 4 of the DP Act in the facts and circumstances of the present case?
carefully including the original records.
i) PW.1 – Shivamallu is the complainant has deposed that the deceased is his sister and accused No.1 is related to him. Deceased Mangalamma was given in marriage to accused No.1. In this regard Ex.P-1 invitation card is marked. At the time of marriage
Rs.40,000/- cash and 10 grams of gold ring to the accused and 25 grams of gold to the deceased was given in marriage as dowry. It is stated that accused No.2 is no more. After marriage the deceased led her marital life at Hadinaru village. The mother and brother of accused No.1 are absconding. After 2 years child was born and he was physically handicapped. It is stated that, later accused started demanding to bring Rs.50,000/- from the parental house and in this regard he has attacked the deceased earlier and there was Panchayath held. He has also stated about 3 months earlier to the death of the deceased there was Panchayath, and Panchayaths held in regard to divorce petition filed by the accused. The said divorce petition has been dismissed and on advise of elders deceased was sent to the house of accused No.1. Accused No.1, his mother and brother all have joined and set the deceased on fire. When Shivakumar / PW-10 had been to talk to Mangalamma it was informed that earlier she has been beaten up. As per his version his brother told
about ill-treatment to the sister over phone. Later by 6.30 pm., a person from Hadinaru village called the neighbor of the complainant i.e. (PW-5) and told that Mangalamma was burning and informed the same to this witness. So immediately from Himmavu he went to Hadinaru village. He broke open the windows. He had seen the deceased was crying for water. She told that her husband, mother-in-law, brother-in-law have set her fire. They called ambulance over phone and within half
an hour the ambulance came to the spot. When they opened the door accused were not present at the house. When the deceased was taken to hospital deceased was no more and it was about 8.40 pm., then he went to the Police Station and filed the complaint. Complaint is marked at Ex.P-2. On the next day at 4 pm. Police came to the spot and drawn panchanama Ex.P-3. Police have seized ash, golden ornaments, kerosene can and they are marked as per MOs.1 to 4. Signature chits are also marked. The photographs are marked from Exs.P-4 to 7
and seizure Mahazar Ex.P-8. MOs.1 to 4 marked
through Ex.P-3 – Panchanama by this witness.
ii) PW.2 – Vidyasagar is the resident of Thandavapura and member of Raitha Sangha has deposed that he knew deceased Mangalamma and she was given in marriage to accused who is the resident of Hadinaru village. Mangalamma died on 1.5.2013 due to burn injuries. He came to know about the incident at 9 pm. He came to Mysuru and saw the dead body at mortuary. On the next day in between 4 to 5 pm., there was mahazar drawn at Hadinaru village and he was present at the spot. The Police had taken the burnt saree, burnt skin, thali and other ornaments, kerosene can was also seized. He has stated about the situation of the house of Ninganna towards East, on West house of Mahadevappa, road towards South and vacant site on North. He signed the mahazar Ex.P-3 at the spot. MOs.1 to 4 also have been marked through PW.2.
iii) PW.3 – Ravi is from Himmavu Village and also spot mahazar witness. He signed the mahazar in front of the house of deceased at Hadinaru village. Again he states that the signature was obtained when he went to see the dead body. He was given to understand that the accused has poured kerosene and set the deceased on fire. He has identified MOs.1 and 2.
iv) PW.4 – Prakash is the inquest mahazar witness and from Immavu Village. Inquest is marked at Ex.P-9 through this witness. He has signed Ex.P-9 at mortuary. As per his version Mangalamma is from his village. The dead body was completely burnt.
v) PW.5 – I.M. Chandru is (Immavu Villager).
He is the one who received the call from Horamavu Village about the death. He has deposed that the deceased is the sister of Mangalamma and she was given in marriage to Hadinaru village. Somebody called over phone and informed about the death of the deceased. So, he informed the same to Shivamallu i.e.,
PW.1. In the cross examination he states that during the time of incident PW.1 had mobile phone with him. He did not ask the name of the person who gave the information about the death and he did not give the phone number to the police. Though he is well known to PW.1, he did not have his phone number.
vi) PW.6 – Nanjundaswamy is the resident of Bokkahalli. He was part of Panchayaths held earlier. He states about giving deceased in marriage to the accused. She lived with husband, brother-in-law and mother-in-law. Later they started to quarrel for not bringing money from the parental house. Panchayath was convened in this regard. He was informed on 1.5.2013 that Mangalamma was taken to the hospital for suffering burn injury. He had seen her dead body. It was informed that accused, his mother and brother poured kerosene and set her ablaze.
(vii) PW.7 – Mahadevamma is who is the mother of the deceased. Speaks about giving dowry – and
dowry harassment and cruelty and subsequent
panchayaths held. She states that Deceased is the last daughter. At the time of marriage, father of the accused came and asked for Rs.40,000/-, 10 grams of gold and 30 grams of mangalya sara, 12 grams ear studs and also 3 pairs of clothing’s. The mother and father of the deceased agreed for the same and gave her in marriage
to the accused. After the marriage within one year a baby with down syndrome disorder and when she returned to her husband’s abode she was kicked out. Then Rs.20,000/- was given to Mangalamma and once again sent back to the husband’s place but the accused once again tortured her for the money. There was Panchayath by the elders. As per the version of PW-7 deceased was seen about 1-2 months earlier to the death. She was poured with kerosene and set her on fire. There was phone call and information was given as
to burn injury to the deceased. When asked she stated about setting her on fire by the accused. The deceased
was taken to the hospital and on the same night she died.
viii) PW.8 by name Balu (from Immavu Village)
has deposed that after the marriage Mangalamma went to the husband’s house where husband and in-laws tortured her and sent her back to the parents house. In this regard there was a Panchayath. She was sent to the husband’s house about 1 month earlier to the incident, PW.8 called over phone and told that there was a quarrel. PW-1 called PW-8 and all went to Hadinaru village. They had seen burnt deceased. She was taken to the hospital. It was informed that the accused have set the deceased on fire. He is treated as hostile by the prosecution and cross-examined by the prosecutor.
ix) PW.9 is Gurumallappa resident of Hadinaru
village. He has deposed about living happily by the accused and deceased. The brother of the accused is no more. Deceased was in the house of the parents. There was Panchayath and she was brought back to the
Hadinaru village and she died in the house of the accused. Exhibit P-10 portion of 161 statement marked through PW-9.
x) PW.10 is Shivakumar is also the brother of the deceased who has deposed about giving dowry and marrying deceased to the accused. The accused threatened to bring more money from the parental house. Prior to going to the house of the accused she stayed for about 1 year in the house of the parents. As per his version deceased had been to the house of accused earlier to the date of death. He has stated about visiting the house of the accused and later receiving information that the deceased has been burnt by the accused and her family members. She died within 5-10 minutes of admitting her to the hospital.
xi) PW.11 – Mahadeva is the neighbor of the accused. As per his version for 4 years the accused and deceased were in good terms. In regard to payment of dowry quarrel took place and PW-11 has convened the
Panchayath. As per his version deceased has died due to burn injuries that he came know through PW-1 though he do not know the reason for incident.
xii) PW.12 – V.V. Malini is the PDO. As per the request she has furnished Ex.P-11 (Assessment Register Extract) mentioning that the house stood in the name of Javaregowda. Ex.P-11 marked through PW-12.
xiii) PW.13 – K.Krishna is the Head constable who received the memo from the hospital. He has received the death memo Ex.P-12 marked through PW-13.
xiv) PW.14 – S.Prakash, Head constable has submitted FIR to the home Office of the magistrate at 2 am., in the night hours.
xv) PW.15 is Dr.Mamatha. As per his version on 1.5.2013 she had seen the deceased Mangalamma. She was declared dead at 8.40 pm., in the burns ward. The body was shifted to mortuary at 9.10 pm,. She sent death intimation Ex.P-12 to the Police.
xvi) PW.16 is Dr.Radha krishna, Senior Medical
Officer has stated about bringing the deceased with burn injuries at her husband’s house. He examined and found the deceased was in unconscious, not oriented, was gasping and he sent death intimation to the Police as per Ex.P-13 which is marked through this witness.
xvii) PW.17 – Nanjappa H.N. is the resident of Hadinaru village. He doesn’t know about giving of dowry. As per his version the deceased poured kerosene on herself and set her on fire. Deceased had been to Police station twice. He has not given any statement to the Police. He is treated as hostile and cross-examined by the prosecutor. Exhibit P-14 his 161 statement.
xviii) PW.18 – Praveen kumar is also the resident of Hadinary village not given any statement to the Police. He is treated as hostile and cross-examined by the prosecutor. PW-18 Praveen Kumar is also the resident of Hadinary village. About 3-4 months prior to
the death of Mangalamma, younger brother of the accused has told that there is problem between accused and the deceased and requested to talk to the accused and deceased. Before he could go for the talks, the talks were completed by the elders. Somehow he advised and returned. He is treated as hostile and cross-examined by the prosecutor. Ex.P-15 his 161 statement.
xix) PW.19 – Prasannakumar M.P. (Police Constable) has deposed about getting orders from his higher ups to trace out the accused. Hence he gave search reports to higher officers ups on various dated which are marked as Ex.P-16 to 21 through him.
xx) PW.20 – Dr.Chandrashekar T.N. is the person who conducted postmortem. On examination of the dead body he has noticed Rigor mortis present all over the body. Body smells of kerosene. 2nd and 3rd degree burns present all over the body except scalp and soles of both feet. On dissection of the dead body internal organs were intact. The burn injuries were ante mortem to the
extent of 90%. He opined that the death is due to shock and result of burn injuries. Death is 6 hours prior to the postmortem examination. He gave P.M.Report as per Ex.P-22.
xxi) PW.21 – Ningammanni is the resident of Hadinaru village. Mangalamma died about 3 years ago and when she was coming she was being taken in an ambulance. She is treated as hostile and crossexamined by the prosecution.
xxii) PW.22 – Ravikumar is the mahazar witness for seizure of marriage invitation card. He has signed Ex.P-8 in the Police station.
xxiii) PW.23 – G.S.Raghu is the Police inspector on 7/5/2013 accused no.1 was arrested and produced before him. Confession statement was recorded. He has recorded the statement of the witnesses. Accused was absconding. He sent the seized property to the FSL. He collected the documents from PO. He has drawn the
mahazars at the spot. He has collected NCR no.560/2005, 181/2016 and Crl.Mis.531/2005. After investigation he has filed the charge sheet. Ex.P-24, report and Ex.P-25 FSL report marked through this witness.
xxiv) PW.24 – Ramappa H. is the Tahasildar who has deposed that he has issued document pertaining to the lands of the accused as per Ex.P-26 and 27.
xxv) PW.25 – R.Shivanna is the A.S.I. who has registered the FIR. On 8.9.2005 under NCR No.560/2005 and same is marked at Ex.P-28. Deceased has suffered injury on the head and it was caused by the brother-in-law. On 9.9.2005 and 10.09.2005 the statements of the accused and his brother was recorded which are marked as Ex.P-29 and P-30 and again on 3.12.2005 another complaint was filed as per Ex.P-31. Accused had given statement as per Ex.P-32. On 3.4.2006 Mangalamma had given complaint stating that the deceased was tortured by the accused, his brother
and mother. Complaint marked at Ex.P-33 and statement is Ex.P-34. The joint statement of the mother and brother also recorded as per Ex.P-35.
xxvi) PW.26 – M.Hanumantharaju is the
Investigation Officer who has registered the case in Crime No.124/2013 and sent the FIR Ex.P-36. He went to the spot and has drawn the mahazar. He visited the hospital and has drawn the inquest. The dead body was sent for the postmortem. He has drawn the sketch, took photographs. He has seized the kerosene can, ash, golden articles as per MOs.1 to 4 and then he handed over the investigation to PWs.23. Ex.P-37 – Sketch.
xxvii) PW.27 – Shivaji Prasad Patnaik is a summoned witness. He has deposed that he was working at GVK, EMRI as Legal Head Government Relationship. He has received certificate dated 17.11.2018 U/S. 65B(4)(c) of the Evidence Act and same is marked at Ex.P-38. It is in regard to the call sent to 108 ambulance. Ex.P-39 is the certificate dated
1.5.2013 they received call at 8.44 pm. The allegation of
the incident is Hadinaru village. The person called had requested for 108 ambulance. Immediately he sent the ambulance at 18.49 hours. Patient admitted to the DHK Hospital at 20.20-22 hours. Ex.P-39 is derived from the server of the call center. Based on the aforesaid oral and documentary evidence, the learned Sessions Judge convicted the accused.
not to quarrel, but they continued to demand dowry. On the date of the incident, PW.10 – Shivakumar, brother of PW.1 and deceased, went to the house of deceased and the deceased informed him that her husband-accused No.1, brother-in-law and mother-in-law assaulted her and he promised accused No.1 that they will pay the dowry amount demanded by him and requested him to take care of his sister. Thereafter he came to the village and at about 6.30 p.m. he received information over phone from Chandru (PW.5) that his sister has been set ablaze by her husband, brother-in-law and mother-inlaw and that he went to his sister’s house at 6.45 p.m. along with his brother PW.1 Shivamallu. The door was locked from outside and he broke open the window glass and saw his sister lying with burn injuries and he broke open the door and went inside the house. When he spoke to her, she told him that on demand of more dowry, all the three accused persons quarreled with her and mother-in-law caught hold of her and brother-in-law poured kerosene and her husband Doreswamy-accused
No.1 lit fire. She was taken to K.R.Hospital at Mysuru and on the same day she died at about 8.45 p.m. and the jurisdictional police registered case as stated supra.
regard to the motive for the incident, there were many panchayats held and criminal miscellaneous cases were also filed by the deceased and ultimately it ended in a settlement and the deceased was sent along with the accused persons to their house. It is not in dispute that C.Misc.45/2005 was filed by the deceased before the Family Court and the Family Court awarded maintenance at Rs.800/- per month and C.Misc.Nos.158/2009 and 73/2012 filed under Section 125(3) of the Cr.P.C. for recovery of the amount. It is also not in dispute that three panchayats were held with regard to dowry demand by the accused, his mother and brother and later M.C.No.38/2010 was filed by the husband for divorce, which came to be dismissed on 01/08/2012, these are the material according to prosecution is
motive for the murder. It is the specific case of PW.1 who stated on par with the complaint averments of PW.10 – Shivakumar. Though lengthy crossexamination was made to PW.1 and 10, nothing has been elicited in the cross-examination to disbelieve the statement, thereby the prosecution proved beyond reasonable that the accused had a motive to kill the deceased and that the dying declaration given by the deceased gave more clarity how the three accused persons involved in causing burn injuries and the deceased died in the hospital after she was shifted to the hospital. Very strangely, the cross-examination had gone to the extent that the deceased died in the house of PWs.1 and 10 which is contrary to the material on record and when PW.26-Investigating Officer who recovered MO.1 kerosene can in the house of accused as per Ex.P-3 in the presence of PWs.2 and 3 witnesses and recovery of MO.1 – plastic can, MO.1(a) signature of PW.1, MOs.3 and 4 – four thalies, two kasu, beads and ten gundus (look like gold), thereby it clearly depicts
that the death of deceased occurred in the house of the accused and not in the house of PWs.1 and 10 and she died in the hospital and she was in sound mind state when she gave the statement. The evidence of PWs.1 and 2 are consistent with regard to the burn injuries at the instance of accused Nos.1 to 3 in the house of accused and she died in the Government Hospital. It is also not in dispute that PWs.6, 11 and 18 are the panchayatdars who supported the case of the prosecution. PW.6 fully supported the case of the prosecution and PWs.11 and 18 have partly supported.
that she was working as Medical Officer at K.R. Hospital, Mysuru since May 2012. On 01/05/2013, a patient by name Mangalamma was admitted to the hospital with a history of 100% burn injuries and declared dead at 8.40 p.m. in the burns ward and the body was shifted to mortuary at 9.10 p.m. and she sent the death intimation to the Devaraja Police Station as per Ex.P-12 and she
identified her signature at Ex.P-13(b). In the crossexamination she stated that she cannot say as to when did Mangalamma lost consciousness.
conducted the post-mortem on the requisition sent by the PSI of Nanjangud Rural Police Station. On dissection of the body, the doctor observed that soot particles were present in trachea and bronchi. Stomach contained 100 ml. of watery fluid. Uterus was normal and empty. Rest of the internal organs were intact and the injuries were anti-mortem burns and extent was 95% and the doctor came to the conclusion that the death is due to shock as a result of burns sustained. Time of the death was more than six hours prior to the post-mortem examination and the doctor-PW.20 has identified the report at Ex.P22 and his signature at Ex.P-22(a). In the crossexamination he stated that the food consumed by a person would be there in the stomach upto 2 to 4 hours.
there all over the burnt region. The description of injury or disease - antemortem burn – 95% and opined that the death is due to shock as a result of burns sustained. Very strangely, when both oral and documentary evidence depict that there was constant demand of dowry from accused No.1, mother - in-law and brotherin-law, a case in C.Misc.45/2005 was filed by the deceased and the Family Court awarded maintenance of Rs.800/- per month and subsequently two criminal miscellaneous petitions were filed for recovery of money and it is also not in dispute that criminal cases were registered against the accused persons and panchayat was conducted after which she was sent to the house of the accused and the deceased was residing till the date of the incident along with accused persons in her husband’s house. It is also not in dispute that M.C.No.38/2010 filed by the husband for divorce was dismissed on 01/08/2012 and when the burden was on the prosecution to prove that the death had occurred in the house of the accused, very strangely, the accused
has taken the alibi in question No.23 that he had been to Bengaluru for work and when he came back to the village, he learnt from the villagers that a complaint has been lodged against him and thereby, he went to the police station and the police arrested him and thus, he has taken a plea of alibi. When a plea of alibi is taken by the defence, it is for the accused to prove that he was at Bengaluru. But in this case no such effort has been made by the accused to prove that he was in Bengaluru on the date of the incident. In view of the provision of Section 103 of the Indian Evidence Act, 1872, the burden of proof lies on the accused. The Hon’ble Supreme Court in the case of State of Haryana
vs. Sher Singh [AIR 1981 SC 1021] at paragraph No.4, it is held as under:
unless it is provided by any law that the proof of that fact shall lie on any particular person.
learned counsel for the accused that none of the witnesses were cross-examined and the evolution by the deceased herself about the quarrel between the family of the accused and the deceased. By a careful perusal of the evidence of the prosecution witnesses, the defence has gone to the extent of the death occurred in the house of PWs.1 and 10 and not in the house of the accused. None of the witnesses were cross-examined about the evolution of the incident as contended by the learned counsel for the appellant/accused. The informer PW.5-Chandru although supported the prosecution case, PW.7-mother of the deceased, PWs.1 and 10 – brothers of the deceased consistently supported the prosecution case, thereby the prosecution proved beyond reasonable doubt the involvement of the accused persons in the homicidal death of the deceased and the constant
harassment attracts Section 498-A of the IPC and mother-in-law had caught hold of the deceased when the unfortunate incident occurred attracts Section 341 and all the three accused persons committed the offence i.e., accused No.3 - mother-in-law held the deceased, accused No.2 – brother-in-law poured kerosene and accused No.1 – husband lit fire attracts the provision of Section 302 read with Section 34 of the IPC. In view of the evidence of panchayatdars about conducting of panchayats on three occasions and filing of criminal miscellaneous clearly depict that there was constant demand of dowry as contemplated under Sections 3 and 4 of the DP Act. Therefore, the prosecution has proved beyond reasonable doubt that the accused persons have committed homicidal death of the deceased. Though voluntary statement of the accused and the statement of son of the deceased were recorded, both were not marked in the evidence, thereby, this Court cannot rely upon the said statements even though it corroborates with the evidence of prosecution witnesses.
23. On re-appreciation of oral and documentary
evidence on record, what emerges is that, there was constant harassment of demand for dowry and cruelty and ultimately after the cases were filed by the deceased for maintenance and the case filed by the appellant/accused/husband for divorce was dismissed on 01/08/2012, and unfortunate incident occurred on 01/05/2013 due to strained relationship between the parties. Learned Sessions Judge, considering both oral and documentary evidence on record, rightly convicted the accused for the offences punishable under Section 498-A, 341 and 302 read with Section 34 of the IPC and Sections 3 and 4 of the DP Act and the same is in accordance with law.
been recorded in the manner as provided under law, it may not be necessary to look for corroboration of the dying declaration. In the said case, there were no consistency of statement and the four dying declarations recorded between the time of victim being hospitalized and have been recorded between the hospitalistion of the victim and the death and there was no certificate of mental fitness of the deceased and thus, the said case has no application to the facts and circumstances of the present case. Whereas in the present case, when the statement made by the deceased in the presence of PWs.1 and 10 who were none other than her own brothers, she is capable of making statement and both PWs.1 and 10 categorically stated that their sisterdeceased was in a position to speak and she has given clear answers as to how the unfortunate incident occurred at the instance of three accused persons and there is consistency in the evidence of PWs.1 and 10 and the dying declaration made before them. It may be in the form of question and answer and the answers be
written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration. Admittedly, PWs.1 and 10 inspire confidence of this Court with regard to dying declaration made by the deceased before PWs.1 and 10 and apart from the same, there are other corroborative evidence to prove the involvement of the accused in the homicidal death of the deceased. Therefore, the said case has no application to the facts and circumstances of the present case.
that the patient had suffered “ burn injuries involving whole of the body surface area—100% deep burn injuries ”. However even while mentioning that the general condition of the patient was “ critical ”, it was also recorded in Ex.PW.8/A that the patient was “ conscious, oriented ”. In the present case, PWs.1 and 10 categorically stated that she had burn injuries of 95% and she was in conscious and hence, it is stated as conscious oriented and the contention of the learned counsel for the accused that the victim was not in a position to give dying declaration cannot be accepted.
27. Accordingly, we pass the following:
ORDER
Sd/JUDGE
Sd/JUDGE
S*
3 issues framed by the court
Could the deceased's oral dying declaration to her brothers be accepted despite 95% burn injuries and the challenge to her mental fitness?
Did the accused discharge the burden of proving his plea of alibi?
Did the convictions for murder, cruelty, wrongful restraint and dowry offences warrant interference?
Colour shows how this judgement treated each authority
Ramilaben Hasmukhbhai Khristi & another vs. State of GujaratDistinguished¶170
Ramilaben Hasmukhbhai Khristi & another vs. State of Gujarat [AIR 2002 SC 2996] · Who else cites this
State of Haryana vs. Sher SinghApplied¶157
[AIR 1981 SC 1021] · Who else cites this
Purushottam Chopra & another vs. State (Govt. of NCT Delhi)Relied on¶175
Purushottam Chopra & another vs. State (Govt. of NCT Delhi) [AIR 2020 SC 476] · Who else cites this
3 provisions across 3 enactments
DORESWAMY
STATE OF KARNATAKA
B. VEERAPPA
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
