Allowed

T S Dharanendra Kumar @ Kumar v. the State of Karnataka by

Karnataka HC13 Dec 2024CRL.A/868/2012

Case brief

AI extract

What is this about?

High Court allowed criminal appeal challenging conviction under Section 304-II IPC for burning a woman. Court acquitted appellant, finding prosecution evidence unreliable, witnesses hostile, and dying declarations uncorroborated and recorded without assessment of the deceased's mental fitness.

What did the court decide?

Accused acquitted of the charge. Bail bond cancelled. Fine refunded if deposited.

T S Dharanendra Kumar @ Kumar Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:51544 CRL.A No. 868 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO. 868 OF 2012

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BETWEEN

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T. S. DHARANENDRA KUMAR @ KUMAR S/O. LATE D. SHANTHARAJU, AGED ABOUT 51 YEARS, COFFEE AND TEA POWDER BUSINESS, R/O. BEHIND NATARAJA CLINIC, SIRA GATE, TUMKUR.

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...APPELLANT

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(BY SRI. DINESH KUMAR K. RAO, ADVOCATE)

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AND

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THE STATE OF KARNATAKA BY TOWN POLICE STATION, TUMKUR.

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…RESPONDENT

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Digitally signed by JAGADISH T R Location: High Court of Karnataka, Dharwad Bench

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(BY SRI. DIWAKAR MADDUR, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C, PRAYING TO SET ASIDE CONVICTION AND SENTENCE DATED 17/19-07-2012 PASSED BY PRESIDING OFFICER, FAST TRACT COURT-I, TUMKUR IN SESSIONS CASE NO.226/2011 AND ACQUIT THE APPELLANT, IN THE INTEREST OF JUSTICE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.11.2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CAV JUDGMENT

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1. This appeal is preferred by the accused

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challenging the judgment of conviction dated 17.07.2012 and order of sentence dated 19.07.2012 in Sessions Case No.226/2011 on the file of the Presiding Officer, Fast Track Court-I, Tumkur¹ .

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2. The accused faced trial for the offence punishable under Sections 302 of the Indian Penal Code, 1860 (for short, 'IPC'). The trial Court convicted accused for the offence punishable under Sections 304-II of IPC and sentenced him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- with default imprisonment of three months. Hence, this appeal.

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3. The name of the deceased is Radhamani w/o one Narayan. The accused was a friend of said Narayan. Since 20 years, the accused and deceased Radhamani developed illicit relationship, hence, Narayan left Radhamani, married another lady and was residing separately. Prior to the incident, Radhamani was residing 1 ‘Trial Court’ for short

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in the house of PW2-Revanna as a tenant at Panduranga Nagar, Tumkur and the accused was frequently visiting her

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house. The accused addicted to alcohol and was demanding money from the deceased Radhamani for consuming alcohol. He used to quarrel with the deceased as and when she refused to pay money for consumption of liquor. When things stood thus, on 31.05.2011, at about 9 p.m., the accused had been to the house of Radhamani and insisted her to pay money for consumption of alcohol; as Radhamani refused to pay money, he picked up quarrel

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with her and same was continued till midnight and at about 12 a.m. midnight, the accused assaulted Radhamani and in turn, Radhamani also assaulted him, thereafter, the

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accused pushed her to the ground, poured kerosene on her and lit fire. Hence, she sustained burn injuries on her face, chest, hands, thighs etc. Therefore, she raised hue and cry, thus, her neighbours PW2-Revanna, PW3Balaraju, PW14-Ankesh and others came to her house and tried to extinguish fire. The accused was also trying to extinguish fire, however, he sustained burn injuries.

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Thereafter, she was shifted to Govt. Hospital, Tumkur for treatment, where her statement was recorded by PW15Giriyappa, Head Constable on 1.6.2011, vide Ex.P18. Based on such statement, a case was registered in Crime No.79/2011 of Tumkur Town Police Station. Thereafter, Radhamani was shifted to Victoria Hospital, Bangalore for further treatment, where PW17-The Tahasildar recorded dying declaration of deceased Radhamani on 1.6.2011 at 00.50 a.m. and on 4.6.2011 at about 3.10 p.m., she succumbed to the injuries. Hence, Section 302 of IPC was included. The matter was investigated by Investigating Officer and charge sheet was filed against the accused for the offence punishable under Section 302 of IPC.

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4. The prosecution in all examined seventeen witnesses as PW1 to PW17 and relied on twenty-two documents as per Exs.P1 to P22 and five material objects as per MO.1 to MO.5. For the defence, two documents got marked as Exs.D1 & D2. After evaluating the evidence, the trial Court came to the conclusion that the prosecution was able to prove its case beyond reasonable doubt and held

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accused guilty of the offence punishable under Section 304-II of IPC and sentenced him to undergo rigorous imprisonment for three years with fine of Rs.5,000/- with further direction to undergo imprisonment for certain term in case of default in paying fine.

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5. The main reasons assigned by the trial Court for convicting the accused are that the deceased Radhamani gave dying declarations as per Exs.P18 & P21 before Head Constable and Tahasildar prior to her death and stated that she was married to one Narayan, he left her, thus,

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she developed friendship with the accused, who was frequently visiting her house, and on 31.5.2011, the accused came to her house and insisted her to give money for consuming alcohol, as she denied to pay money, he poured kerosene on her and lit fire. Hence, she sustained burn injuries all over her body. The trial Court considering the dying declaration, evidence of PW8, PW9, PW15 & PW17, convicted accused for the aforesaid offence.

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6. Assailing the findings of the trial Court, learned counsel appearing for the appellant/accused,

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argues that the trial Court has committed an error in convicting the appellant on uncorroborated testimonies of the prosecution witnesses. He further contended that PW1-Diwakararaju, the relative of deceased, PW2Revanna, owner of the house, where deceased was residing as tenant under him, PW3-Balaraju and PW4Manjula have turned hostile to the case of prosecution and nothing was elicited from their evidence. PW8-Krishnaraju and PW9-Sumitra are the son and daughter of the deceased, who are hearsay witnesses, came to know

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about the incident through others. It is contended that the contents of Ex.P18 and Ex.P21-dying declaration are not proved by cogent and reliable evidence. On the contrary, the deceased herself poured kerosene on her and lit fire and suffered burn injuries. Further, the accused tried to extinguish the fire, during this course, he also sustained burn injuries. The accused himself shifted the injured to

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the hospital for treatment and this aspect shows the conduct of accused, which demolishes the prosecution case. It is contended that Ex.P21-dying declaration was

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not recorded by the Tahasildar, but it was drafted by one of his subordinate officer. Further, the deceased had threatened the accused and she herself poured kerosene and lit fire. In fact, while extinguishing fire, the accused also sustained burn injuries and he was admitted to hospital for treatment. On all these grounds, he prayed for allowing the appeal and acquitting the appellant of the charge.

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7. Per contra , learned High Court Government Pleader, submits that though the relatives of the deceased have turned hostile, relationship, conduct of the accused and the evidence tendered before the trial court are to be considered. Their evidence is supported by the evidence of PW15-the Head Constable, the Doctor and the Tahsildar. The deceased, prior to her death, gave dying declarations as per Ex.P18 and P21 before the Head Constable and the Tahasildar in the presence of the Doctor, wherein she has narrated the role played by the accused. Hence, the accused is guilty of the offence charged. Thus, the trial

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Court has rightly convicted the accused for the aforesaid offence. Hence, he prayed to dismiss the appeal.

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8. Having heard the arguments of the learned counsel for the parties and perused the entire evidence both oral and documentary, the points that would arise for consideration in this appeal are:

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i) Whether the prosecution proved beyond

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reasonable doubt that on 1.6.2011, at 00-15 hours, in Panduranga Nagar of Tumkur District, accused with an intention to murder Radhamani, poured kerosene on her

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and lit fire, due to act of accused, she sustained burn injuries all over the body, while undergoing treatment on 4.6.2011, she succumbed to the injuries and thereby, the accused committed an offence punishable under Section 302 of IPC?

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ii) Whether the judgment of conviction and order of sentence passed by the trial Court calls for interference by this Court?

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a. The undisputed facts in this case are that the deceased Radhamani was wife of one Narayan, she had

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three children i.e., one son and two daughters. One of the daughters is dead. PW8 is son and PW9 is daughter of deceased Radhamani. PW8 is residing in his grandmother’s house situated at Sunkadakeri, Mysore. PW9 is given in marriage with PW1 and they are residing together in Bangalore. The deceased Radhamani was alone residing in Tumkur. Prior to the incident, Radhamani developed her friendship with the accused, who was often visiting the house of the deceased, therefore, the accused was paramour of deceased Radhamani, he was looking after and maintaining Radhamani. The accused brought up children of deceased Radhamani. At the time of incident, Radhamani was residing as tenant in the house of PW2-Revanna and on 31.05.2011, Radhamani suffered burn injuries and on 4.6.2011, she succumbed to the burn injuries at Victoria Hospital, Bangalore. The disputed fact is that, whether the accused poured kerosene on the person of deceased Radhamani and lit fire and thereby caused burn injuries, in the manner stated by the prosecution.

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b. In order to establish this aspect, the

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prosecution examined PW1-Diwakararaju, who is none other than son of brother of deceased Radhamani. He came to know about the incident through the accused over mobile phone, but he turned hostile to the case of the prosecution.

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c. PW2-Revanna, the owner of house, where the deceased was residing as tenant, has stated that at the time of the incident, the accused and deceased were residing in his house as tenants and their relationship was

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cordial. On the day of the incident, during midnight, he heard voice from the house of the deceased, he immediately went to the house of the deceased, at that time, he saw burning fire on the person of Radhamani and the accused was trying to extinguish the fire, immediately she was shifted to Tumkur District Hospital and later she was shifted to Victoria Hospital, Bangalore, where she succumbed to the injuries. He specifically stated that there was no quarrel held between the accused and deceased and he was not aware about the incident, hence,

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he was treated as hostile witness to the case of prosecution. In the cross-examination, nothing worthwhile was elicited from the mouth of PW2-Revanna. In the cross-examination conducted by the counsel for the accused, this witness has categorically stated that she herself poured kerosene on her and lit fire and this fact was narrated to the doctor. The accused was taking care of the deceased Radhamani at Govt. Hospital, Tumkur from 31.5.2011 to 4.6.2011. The deceased Radhamani have stated before the Police stating that she herself poured kerosene on her and lit fire. But this crossexamination portion has not been denied by the

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prosecution.

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d. PW3-Balaraju, neighbor of the accused and deceased, also reiterated the evidence of PW2 and turned hostile to the case of prosecution.

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e. PW4-Manjula, relative of deceased Radhamani, has stated that she affixed her signature on Ex.P6-Inquest Mahazar while handing over the dead body of her aunt Radhamani. In the cross-examination, she clearly

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admitted that she does not know the contents of Ex.P6Inquest Panchanama.

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f. The prosecution has not elicited from the mouth of PW4 that Ex.P6-Inquest panchanama was conducted on the dead body of her aunt Radhamani and in that regard, she affixed her signature on the said document.

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g. PW5-Dr. Y.N. Nagarajaiah, Senior Medical Officer, District Hospital, Tumkur has stated that on 8.6.2011, he examined the accused, who was brought by Police with history of burn injuries on his person, accordingly, he issued Wound Certificate as per Ex.P7.

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h. PW6-C. Siddappa, PWD Engineer, who visited

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the scene of offence and drew sketch as per Ex.P8.

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i. PW7-G.Gopalaiah, Revenue Officer,

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Municipality, Tumkur, who issued Khata Extract of the house of PW2-Revanna, vide Ex.P9.

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j. PW8-Krishnam Raju, son of deceased

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Radhamani, has stated that prior to the incident, his mother Radhamani was residing with accused at Tumkur, she has a son and daughter and they were not residing at

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Tumkur with Radhamani. His further evidence is that on 1.6.2011, he received information from his cousin Nagaraj, that his mother Radhamani sustained burn injuries and hence, she was admitted to Tumkur Hospital, thus, he came to Tumkur District Hospital and enquired with his mother, in turn she narrated that the accused insisted her to pay money for consumption of alcohol, as she denied, he assaulted her, thus she fell down and also she assaulted the accused, in turn, the accused poured kerosene on her and lit fire. His further evidence is that

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his mother was admitted to Tumkur Hospital for 2 days and thereafter she shifted to Victoria hospital, Bangalore; on 4.6.2011, his mother died on account of burn injuries.

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k. PW8 has undergone intensive crossexamination by the counsel for accused. PW8 admits that since 20 years, the accused and the deceased were living together, he was taking care of his mother at Tumkur. As soon as he visited the hospital, he saw his mother, her face, lip and palm were burnt. He specifically admitted that he has not given statement to the police to the effect

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that “the accused insisted the deceased to pay amount for consumption of alcohol as she denied, he assaulted her, thus she fell down and also she assaulted the accused, in turn, the accused assaulted Radhamani and poured kerosene on her and lit fire”. He further admits that he was not aware about the statement given by his mother Radhamani before the Police on 1.6.2011 between 1.30 a.m. and 2 a.m. Further, the police have not enquired him and recorded his statement vide Ex.D1 and D2.

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l. PW9-Sumithra, daughter of the deceased

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Radhamani, reiterates the oral testimony of his brother PW8. She has further stated that police also conducted spot panchanama vide Ex.P2 and seized a Can, hair, bangle pieces and burnt match stick, vide MO1 to MO5 under Ex.P2. In the cross-examination, she admits that she does not know the contents of Ex.P2. She affixed her signature on Ex.P2 at Tumkur Police Station. She affixed her signature on blank paper. She further admitted that her entire educational expenses were borne by the accused and the accused maintained her mother, since her

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childhood, as her father Narayan contracted 2^nd marriage and residing separately. She admits that the relationship of her mother and accused was cordial. She came to know about the incident through the accused and also came to know that her mother herself poured kerosene and set fire. She specifically admitted that, as soon as she visited Tumkur District Hospital, her mother was not in a position to speak anymore. Her face, lip and palm were fully burnt. She was not aware about the statement given by her mother to the police and police have not enquired her

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and recorded her statement. Further she specifically admitted that she has not stated before the police alleging that, the accused assaulted her mother, poured kerosene and lit fire.

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m. PW10-Dr. B Suresh, Medical Officer, Victoria Hospital, Bangalore has stated that on 5.6.2011, he conducted postmortem examination on the dead body of deceased Radhamani, who died on account of burn injuries, hence, he issued Ex.P12-postmortem report. As per Ex.P12, the cause of death was due to burn injuries.

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n. PW11-Dr. C. Manjappa, Scientific Officer,

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Bangalore, who examined MO1-Kerosene Can and issued his report vide Ex.P13 and has stated that MO1-Can contains UV-Spectrophotemtric and TLC methods indicate that sample found in article No.1 is kerosene with blue color dye (Diaylkyl diamino anthraquinone).

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o. PW12-L. Kumarappa, Police Inspector, who conducted investigation and filed charge sheet against the accused.

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p. PW13-Dr. G.B. Chandan, Senior Medical Officer,

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Tumkur District Hospital, has stated that on 1.6.2011 at 00.50 a.m., the injured Radhamani was brought before him under history of burn injuries. The injured Radhamani was attempted to commit suicide by pouring kerosene on her person and set fire and she was brought by accused Dharanendrakumar. Hence, he examined her and found that she has sustained 35% burn injuries. He specifically stated that the injured herself has stated before him that while she committing suicide, she sustained burn injuries. Hence, PW13 turned hostile to the case of the prosecution

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and in the cross-examination, nothing worthwhile was elicited from the mouth of PW13-Dr.G.B. Chandan.

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q. PW14-Ankesh, the neighbor of deceased also turned hostile to the case of the prosecution.

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r. PW15-G.M. Giriyappa, Head Constable, who recorded the statement of injured Radhamani on 1.6.2011, has stated that on 1.6.2011 at 1.30 p.m. as per MLC intimation, he visited the govt. hospital, Tumkur, consulted the duty doctor, since the injured was fit to give statement, he recorded her statement vide Ex.P18 and registered the case in Crime No.79/2011. In the crossexamination, he admits that he has not enquired injured Radhamani and he has not affixed signature on Ex.P18 after recording the statement of injured.

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s. The prosecution has not elicited the statement given by the injured Radhamani from the mouth of PW15, thereby simply marked the statement of injured Radhamani vide Ex.P18.

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t. PW16- Muniraju, PSI, Town Police Station, Tumkur, has stated that he took further investigation of

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the case from PW15, visited the scene of offence, drew panchanama vide Ex.P2, recorded statement of witnesses, received death intimation of deceased Radhamani, incorporated Section 302 of IPC, visited Victoria Hospital, Bangalore, drew inquest panchanama vide Ex.P6, recorded statement of PW2, PW8 & PW9 and handed over further investigation of this case PW12-Kumarappa, Police Inspector. In the cross-examination, he admitted that he has not received MLC intimation from District Hospital, on 1.6.2011 at 1 a.m. about the burn injuries sustained by Radhamani. He admits that PW8-Krishnam Raju has given statement vide Ex.D1 and D2.

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u. PW17-B. Ahobalaiah, Tahsildar, Tumkur Taluk, has stated that on 3.6.2011, Tumkur City Police requested him to record dying declaration of one Radhamma, who sustained burn injuries, accordingly, he visited the hospital at 9.30 a.m. and recorded her dying declaration in the presence of medical officer, same was written by his subordinate officer vide Ex.P21. He did not get signature or left thumb impression of the deceased on Ex.P22. In

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the cross-examination, he admits that he does not know the name of Medical Officer, who was present in the burn ward and he did not obtain the consent of medical officer as to mental fitness of injured Radhamma as to whether she was fit to give statement or not. He further admits that the patient was under serious condition. He did not enquire whether her relatives were present or not in the hospital. He was not aware whether any antibiotics or asteroids were given to deceased Radhamani before recording her statement. The face and lips of deceased Radhamma were burnt. Her both hands and fingers were burnt. She was not in a position to affix her signature. He did not verify whether her both feet were burnt or not. He

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did not put any rational questions to the injured to ascertain her mental condition before recording her dying declaration. He has not recorded dying declaration of deceased Radhamma in question and answer format. He further admits that the contents of Ex.P21-dying declaration are not in his handwriting and the contents were written by his sub-ordinate officer and he does not

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remember his name. The police have not enquired him and recorded his statement.

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9. The prosecution evidence reveals that PWs.1 to 4 & PW14, neighbor of deceased, where accused and the deceased were residing have turned hostile to the case of prosecution. PW.13-Dr. G.B. Chandan, who examined and treated the injured Radhamani has also turned hostile to the case of the prosecution and has stated that the injured Radhamani herself narrated the history that she herself poured kerosene and set herself fire and attempted to commit suicide. Hence, their evidence cannot come to the aid of the prosecution case.

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10. Now, the evidence of PW17-Tahasildar, who recorded the dying declaration in the presence of Doctor, who certified the mental and physical fitness of the deceased to give statement, is available. As per the evidence of PW.17, the deceased gave statement before him alleging that accused poured kerosene on her and set fire. Thus, she sustained burn injuries. But, the medical officer, in whose presence, PW17-Tahsildar examined the

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injured Radhamani, has not been examined by the prosecution as a witness. The contents of Ex.P21-Dying Declaration also not elicited from the mouth of PW17Tahsildar by the prosecution. Neither in the evidence of PW15-Giriyappa nor the evidence of PW17-Tahsildar, the statement of injured (Dying Declarations) was elicited.

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11. PW8-Krishnam Raju, son of the deceased, in his evidence has stated that he has not given statement to the police to the effect that “the accused insisted the deceased to pay amount for consumption of alcohol, as she denied, he assaulted her, thus she fell down and also she assaulted the accused, in turn, the accused assaulted deceased Radhamani and poured kerosene on her and lit fire”. His evidence further discloses that he was not aware about the statement given by his mother Radhamani before the Police on 1.6.2011 between 1.30 a.m. and 2 a.m. He also admits that the police have not enquired him

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and recorded his statement vide Ex.D1 and D2. Thus, PW8 has turned hostile to case of the prosecution and

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hence, his evidence does not come to the aid of prosecution.

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v. Further, from the recital of evidence of PW9Sumithra, daughter of the deceased Radhamani, it discloses that her entire educational expenses were borne by the accused since her childhood, further, the accused maintained her mother, as her father Narayan contracted 2^nd marriage and residing separately. PW9 has clearly admitted in the cross-examination that the relationship of her mother and accused was cordial. She also admitted

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that she came to know about the incident through the accused and also came to know that her mother herself poured kerosene and set fire. She specifically admitted that, as soon as she visited Tumkur District Hospital, her mother was not in a position to speak anymore. Her face, lip and palm were fully burnt. She was not aware about the statement given by her mother to the police and police have not enquired her and recorded her statement. Further she specifically admitted that she has not stated before the police alleging that, the accused assaulted her

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mother, poured kerosene and lit fire. Thus, it is clear that PW9 has not supported the case of the prosecution. Therefore, the very fact that PW8-son and PW9-daughter of the deceased Radhamani though stated that the accused assaulted their mother and poured kerosene on her person and set fire, but the said aspect was not stated before Investigating Officer, thus, there is improvement in their oral testimony and as such, there is full of omissions and contradictions in their testimony.

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12. PW15-Head Constable, who recorded the statement of the deceased, at first instance, on 1.6.2011 in the hospital at Tumkur, but he did not obtain an endorsement of doctor on Ex.P18 in writing and the doctor who certified on Ex.P18 has not been examined before the Court. PW15 did not make any attempt to affix signature of the injured on Ex.P18 after recording her statement. Therefore, the manner of recording statement or dying declaration by PW15 in the presence of doctor creates suspicion in the mind of the Court.

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13. As per Section 32 of the Indian Evidence Act, 1872, there can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful; the maker thereof must be in a fit medical condition to make it.

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14. In the decision rendered by the Hon'ble Supreme Court in the case of NANHAR v. STATE OF HARYANA reported in JT 2010(6) SC 196 , it is held that, " dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further it should not be result of tutoring ."

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15. Ex.P21-dying declaration recorded by PW17Tahasildar shows that the deceased had suffered severe burn injuries and was admitted to District Hospital, Tumkur. The dying declaration is not in question and answer format. However, a doubt arises as to the manner

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of recording the dying declaration by PW17. The contents of Ex.P21 are not in the handwriting of PW17 and it was drafted by his subordinate officer and no endorsement is seen stating that the said statement was drafted by his subordinate officer and he was not examined before the court. Hence, PW17 simply affixed his signature to Ex.P21. It is settled law that, if a dying declaration is truthful, it can lead to conviction. In the light of the above principle, this Court examined the possibility of the dying declaration being a product of tutoring or of imagination of the deceased. Further, if the declarant was unconscious, she could never have made any declaration. Such an evidence is to be rejected. Further, a doubt arises as to mental and physical fitness of the deceased in view of the fact that the deceased had sustained severe burn injuries to the extent of 50 to 55%. Despite her statement was recorded, even Doctor has not certified in writing about physical and mental fitness of the deceased to give her statement. But, PW10-Sumithra, daughter of deceased has stated that her mother was not in a position to give statement and she

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was unconscious. PW15 & PW17 being responsible official witnesses said to have recorded the dying declaration of the deceased, and the trial Court ought to have assessed their evidence in strict sense keeping in view Section 32 of the Indian Evidence Act, 1972. In this regard, it is relevant to refer to a judgment of the Hon’ble Supreme Court in the case of JAYAMMA AND ANOTHER v. STATE OF KARNATAKA reported in (2021) 5 SCR 11 . In this reliance, the Hon’ble Supreme Court had addressed the scope of Section 302 of IPC and observed that conviction of the accused cannot be upheld only on the basis of the dying declaration; narration of events in the dying declaration were so accurate to be believed and owing to 50% burn injuries suffered by the victim on all vital parts of the body, the possibility of her not being in a fit state, cannot be completely ruled out.

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16. On further perusal of the oral testimony of PW2-Revanna, who was owner of deceased, it can be said that the deceased herself had committed suicide by pouring kerosene and set fire. Further, the evidence of

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PW5-Doctor establishes that while the deceased caught fire, accused tried to extinguish it and he also sustained burn injuries. Further, PWs.1, 3 and 4, neighbours of the deceased, where accused and the deceased were residing have stated that accused himself shifted the injured to the hospital for treatment. It shows that the involvement of accused in the case was very remote. Further, the children and relatives of the deceased also have not supported the case of the prosecution in full extent. Merely because of the dying declarations, it cannot be said that

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the prosecution has proved the guilt against accused. There is no creditworthy evidence which probabilises that accused was responsible for the death of the deceased Radhamani. The motive factor and the intention as regards causing the death of the deceased is the main part to be considered in the instant case.

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17. In the present case, the vital evidence are that of PW15 and PW17 relating to the dying declarations of the deceased at ExP18 & P21. But at a cursory glance of the entire evidence indicates that the theory set up by the

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prosecution is found to be doubtful and does not inspire confidence in the mind of the Court to render conviction against accused for the offence under Section 304-II of IPC.

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18. In order to constitute the offence under Section 304-II of IPC, it is necessary for the prosecution to establish that there was mens rea and actus rea . Otherwise, it cannot be construed that there was intention on the part of accused to eliminate the deceased. Merely because she had sustained burn injuries, it cannot be said that the offence under Section 304-II of IPC has been proved by the prosecution by facilitating worthwhile and acceptable evidence. Further, the dying declarations do not reveal entire truth and it has to be considered only as a piece of evidence. Conviction cannot be rested solely on the basis of such doubtful dying declarations. As per the evidence of PW17, while recording statement of the deceased, the relatives of the deceased were present. If the dying declaration was recorded in presence of the

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relatives of the deceased, the possibility that the deceased was tutored cannot be ruled out.

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19. A dying declaration is very important document because it amounts to a statement of the deceased verba dicta . The dying declaration cannot be treated as wholly trustworthy as it is shrouded with many doubts. The Court must be satisfied that the deceased was in fit state of mind to give statement.

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20. In order to prove the case of the prosecution, the medical evidence requires to be corroborated by ocular testimony. The prosecution has to establish the case by producing positive medical evidence in this regard to prove that the deceased died as a result of burn injuries caused due to the act of accused. Whereas, there is no corroboration on the part of the prosecution to believe the versions made by the deceased which was recorded as per Ex.P18 & P21, without considering the said fact, the trial Court has rendered conviction for offence under Section 304-II of IPC.

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21. On overall assessment of the case of the prosecution, it is found that several witnesses have turned hostile to the case of the prosecution and their contradictory statements have been got marked. More importantly, the medical officer in whose presence, dying declarations were recorded have not been examined before the trial Court. Further, the officials who recorded dying declarations vide Ex.P18 and P21 have not stated on oath before the Court that the deceased Radhamani gave statement to the effect that the accused assaulted her,

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poured kerosene on her person and set fire, thus, she sustained burn injuries. Despite the fact that no cogent and consistent evidence has been facilitated on the part of the prosecution and despite the infirmities and inconsistencies in the statements of witnesses, the trial Court has rendered conviction for the offence under Section 304-II of IPC. The testimonies of the witnesses, even if taken on their face value, fall short of the requirement of proof of the charge beyond all reasonable doubt.

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22. From the discussion made above, it appears that the testimony of PW9, PW10, PW15 and PW17 appears to be not believable and the evidence of prosecution witnesses does not inspire confidence of the Court to prove the guilt of the accused that he is guilty of culpable homicide not amounting to murder of the deceased. If the Court considers the oral testimony of the prosecution witnesses, it creates suspicion. Therefore, the benefit of doubt should be extended to the accused. Hence, the Court is of the considered opinion that the appeal deserves to be allowed. Hence, the following:

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ORDER

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i. The appeal is allowed .

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ii. The judgment of conviction dated 17.07.2012 and order of sentence dated 19.07.2012 in Sessions Case No.226/2011 on the file of the Presiding Officer, Fast Track Court-I, Tumkur, is set aside.

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iii. The appellant/accused is acquitted of the offence under Section 304-II of IPC. His bail bond stands cancelled.

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iv. The fine amount, if any, deposited by accused, shall be refunded to him.

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v. Send back the trial Court records with a copy of the judgment, forthwith.

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Sd/(VENKATESH NAIK T) JUDGE

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JTR/ct-an List No.: 19 Sl No.: 1

T S Dharanendra Kumar @ Kumar v. the State of Karnataka by

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T S Dharanendra Kumar @ Kumar v. the State of Karnataka by

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