Mr Manju Alias Manjunatha Vs State of Karnataka

STATE OF KARNATAKA BY HULLAHALLI POLICE NANJANGUD TALUK MYSURU DISTRICT THROUGH THE S.P.P HIGH COURT BUILDING DR. AMBEDKAR VEEDHI BANGALORE - 560 001.

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…RESPONDENT

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(BY SMT. SOWMYA R, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C. PRAYING TO CALL FOR THE RECORDS OF THE CASE IN S.C.NO.360/2014 FROM THE FILE OF THE LEARNED V ADDL. DISTRICT AND SESSIONS JUDGE, AT MYSORE. SET ASIDE THE JUDGMENT DATED 26.04.2018, AND SENTENCE DATED 27.04.2018, PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT

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MYSORE IN S.C.NO.360/2014 CONVICTING THE APPELLANT U/S 498A, 302 AND 304B OF IPC AND SECTION 3 AND 4 OF D.P. ACT AND CONSEQUENTLY BE PLEASED TO ACQUIT THE APPELLANT OF THE CHARGES IN THE ABOVE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is against the judgment and order dated

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26.04.2018 passed in S.C.No.360/2014 on the file of V Additional District and Sessions Judge Mysuru, (hereinafter referred to as the 'trial court') by which the trial Court has convicted and sentenced the appellant as under:

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The convict is sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- for the offence under Section 302 of IPC and in default to pay fine, he shall undergo further imprisonment for a period of 6 months.

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The convict is sentenced to undergo imprisonment for a period of 7 years for the offence under Section 304B of IPC.

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The convict is sentenced to undergo imprisonment for 2 years and to pay a fine of Rs.5,000 for the offence under Section 498A of IPC and in default to pay fine, he shall undergo further imprisonment for a period of 3 months.

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The convict is sentenced to Undergo imprisonment for 3 years and to pay fine of Rs.5,000/- for the offence under Section 3 of the Dowry Prohibition Act and in default to pay fine, he shall undergo further imprisonment for a period of 9 months.

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The convict is sentenced to undergo imprisonment for 6 months and to pay a fine of Rs.3,000/- for the offence under Section 4 of the Dowry Prohibition Act and in default to pay a fine he shall undergo further imprisonment for a period of 3 months.

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Out of the fine amount a sum of Rs.25,000/- is ordered to be paid to PW1 and PW2. This Court recommends under Section 357A of Cr.PC to District Legal Services Authority, to determine and pay adequate compensation to them.

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The period of custodial detention during trial i.e. from 12.06.2014 to 27.04.2018 shall be set off in the sentence under Section 428 of Cr.P.C,

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All the term sentences shall run concurrently. The life imprisonment shall run consecutive to the term sentence.

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Case of the prosecution is that the marriage of the

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appellant with victim Bhagya also known as Puttabhagya was solemnized on 19.03.2014. That at the time of marriage it was

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agreed that a sum of Rs.50,000/- would be paid to the appellant towards dowry and in part payment of the same a sum of Rs.45,000/- was paid. That after 15 days of marriage, for the balance amount of Rs.5,000/-, appellant subjected the

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victim to physical and mental cruelty. That the mother of the victim had consoled and assured her that she would arrange for payment of the said sum of Rs.5,000/-. Thereafter on 16.04.2014 at about 1.00 p.m. when the victim was asleep, the appellant poured kerosene on her and set her ablaze. That she succumbed to the burn injuries on 27.04.2014 at about 12.30 p.m.

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That based on the statement of the victim recorded before the Additional Tahsildar, Mysuru, initially a case in Crime No.68/2014 for the offences punishable under Sections 498A and 307 of Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act came to be registered by the Hullahalli Police on 19.04.2014 at 6.00 p.m. and later Section 302 and Section 304B of IPC came to be included on 28.04.2014.

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After the investigation, a charge sheet for the aforesaid offences came to be filed, charges were framed. Since the appellant pleaded not guilty and sought to be tried, prosecution examined 28 witnesses as PW1 to PW28 and exhibited 32 documents as Ex.P1 to Ex.P32 and marked two material objects as M.O.1 and M.O.2. Appellant in his defence

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examined one Mahadeva as DW1 and exhibited two documents

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as Ex.D1 and Ex.D2.

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The trial Court framed the following points for its consideration:

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1. Whether the prosecution proves beyond reasonable doubt that prior to the marriage between the accused and the deceased on 19.03.2014 the accused had demanded a sum of Rs50,000/- as dowry and received a dowry of Rs.45,000/- and thereby committed offence under Sections 3 and 4 of DP Act?

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2. Whether prosecution proves that after 15 days of the marriage The accused started demanding the balance of dowry of Rs.5,000/- and thereby harassed her physically and mentally by picking up quarrels with her and thereby committed the offence of cruelty within the meaning of Section 498A of IPC.

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3. Whether prosecution has proved that the death of the deceased Bhagya is a homicidal death?

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4. Whether prosecution proves that the accused has caused the death of deceased Bhagya within 7 years of marriage and if so, whether such causing of death is a culpable homicide, amount to murder and not amounting to murder?

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5. Whether the deceased Bhagya died an unnatural death within 7 years of marriage on account of harassment meted out by the accused to the deceased by demanding dowry and thereby the ingredients of Section 304B of IPC have been proved by the prosecution?

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6. What order?''

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On appreciation of evidence the trial Court answered

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all the points in the affirmative and held that the appellant is guilty of all the offences and sentenced him as noted hereinabove. Being aggrieved by the same the present appeal.

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Sri. Venkatesh P. Dalwai, learned counsel appearing for the appellant submitted that:

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(a) The case of the prosecution is based on dying declaration, which has come up under suspicious circumstances and the same is not in accordance with the principles of law governing the same.

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(b) That there is an inordinate delay between recording of the purported dying declaration and registration of First Information Report. Besides, there has been no acceptable explanation by the prosecution in this regard.

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(c) That the prosecution has failed to prove and establish the factum of alleged demand for dowry by the appellant-accused and payment of the same by the mother of the victim.

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(d) That there are glaring contradiction with regard to the very scene of the offence, in that he referred to document namely spot sketch at Ex.P27 and the deposition of PW21 which indicates scene of offence being the bathroom while in the dying declaration it is alleged

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to be a room where victim was purportedly sleeping. Thus he submits the prosecution has changed the very scene of offence to suit the contents of dying declaration which runs contrary to its own evidence as per Ex.P27.

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(e) That there are no eye witnesses to the incident. That as per the neighbouring witnesses, appellantaccused was not present at the time of the incident and he came only after the incident, that it is highly improbable if the appellant had caused the fire and ran out and again came back with his parents.

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(f) That the conduct of the appellant belies the case of the prosecution that it is the appellant and his mother who took the victim to the hospital at Hullahalli for treatment and thereafter to K.R. Hospital and they were present throughout and there has been no allegations and complaints against them till coming into existence of dying declaration.

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(g) The dying declaration cannot be relied upon as the same is brought up in order to save the family humiliation of victim having the possible affair as per the evidence of DW1. The dying declaration is not in the handwriting of PW15.

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(h) He relied upon the judgment of the Apex Court in the case of Rajendra Vs. State of Maharashtra

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reported in 2024 SCC online SC 941 with regard to principles governing acceptance of dying declaration.

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Per contra, Learned SPP-II justifying the impugned judgment and order submits that:

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(a). The conviction is based on the dying declaration recorded in the manner known to law. He submits since the dying declaration has been recorded in the presence of the Executive Magistrate, as per Ex.P20, no aspersion can be casted with regard to its authenticity.

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(b). The factum of demand for dowry and payment of the same which is the motive for commission of the offence is established from the evidence of PW2 and PW7.

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(c) That the theory of suicide setup by the appellantaccused has not been proved. Therefore he submits the appeal does not deserve any interference and seeks for dismissal of the same.

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Heard both side and perused the records.

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The case is based on circumstantial evidence and purported dying declaration of the victim. It is necessary at the outset to note that as per the case of the prosecution, the

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motive for commission of offence was demand for and nonpayment of dowry. On the other hand, as per the defence the victim had committed suicide to overcome the humiliation for she having been advised just a day prior to the incident not to converse with one Lokesh. Also necessary to note except PW2the mother and PW7- maternal uncle of the victim rest of the witnesses have not supported the case of the prosecution.

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Point that arises for consideration is;

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'' Whether the trial Court on the fact and in the circumstances of the case is justified in convicting and sentencing the appellant for the offences punishable under Sections 498A, 302 and 304B of Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act ?''

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Regarding motive:

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PW2 is the mother of the victim. She has reiterated

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the contents of the prosecution case. She has deposed that as against a sum of Rs.50,000/- which was purportedly agreed to be paid towards the dowry to the appellant, a sum of Rs.45,000/- was paid and balance of Rs.5,000/- was to be paid within a month's time. That shortly after the marriage the appellant had subjected the victim to mental and physical cruelty. This aspect of the matter was told to her by the victim

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when she had gone to her house. That on the date of the incident she received a call from the mother-in-law of the victim regarding victim setting herself ablaze. On hearing the said news, she went to the hospital along with her brother Ramaiah, Basappa and others to Hullahalli Hospital. Victim was thereafter taken for better treatment to K.R. Hospital, where she was in a position to speak. That on enquiry victim had told her that since the dowry amount was not paid, her husband had poured kerosene and set her ablaze.

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In the cross examination the said witness has stated that she had one acre of land which she sold for the purpose of conducting the marriage of the victim with the appellant-accused, but she has not given any document in this regard to the police. She has admitted that at the time of betrothal talks she had told that they did not have money as such they would not be able to give the dowry. She has also admitted that since they were not in a position to give the dowry, the appellant-accused himself had volunteered to marry

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the victim in Ambedkar Community Hall. Accordingly the marriage was conducted in the Ambedkar Community Hall. However she denied the suggestion of there being no demand

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or payment of dowry amount as contended by her. As regards,

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the suggestion pertaining to the defence setup by the appellant-accused, she has admitted that there was a jathra in their village and victim and the appellant-accused had been to the said jathra. She has pleaded ignorance that her daughter had gone missing in the said jathra. She has also pleaded ignorance that uncle of the appellant-accused had brought the victim to the house of the appellant-accused. She has also denied the suggestion when the victim was brought to the house of the appellant, PW2 and one Basappa and Ramaiah were also present and that the said incident had taken place a day prior to the victim setting herself ablaze. It is also denied that since the aforesaid affair of the victim became public and caused unbearable humiliation, victim had set herself ablaze.

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PW7-Ramaiah maternal uncle of the victim has reiterated the version of PW2 and has supported the case of the prosecution.

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PW6-K.P. Ramaiah and PW8-H.B.Javaraiah in whose presence the purported talks regarding fixing of dowry amount

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and its payment stated to have allegedly taken place have turned hostile.

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PW12-Basamma, who is the neighbour has deposed that when she returned from her work, people had gathered in front of the house of the appellant-accused and were speaking about the victim setting herself ablaze after pouring kerosene. That the people gathered there had called for an ambulance. In the cross-examination the said witness has deposed that when the victim had caught fire, there was nobody in the house, the fire was doused with water. She has also admitted that the appellant-accused returned home from work after the incident.

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PW.13-Chikkathayamma is another neighbour who turned hostile and has not supported the case of prosecution.

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Thus except the deposition of PW2 and PW7, no other material evidence is placed on record. Though PW2 claims that she had to sell her one acre of land to pay the amount demanded, no details either of the land or the sale transaction is placed on record. When even according to PW2 and PW7 the appellant-accused had voluntarily offered to marry

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the victim in the Ambedkar Community hall on account of financial distress of PW2, the theory of he demanding dowry and PW2 selling her land for performing the marriage in the absence of acceptable cogent evidence becomes doubtful.

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Regarding spot of incident:

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Case of the prosecution is based solely upon the purported dying declaration of the victim recorded in the presence of Tahsildar, Mysuru Taluk on 17.04.2014 between 11.45 a.m. and 12.30 p.m. as per Ex.P20. The said dying declaration reads as under:

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"FUÉÎ MAzÀÄ wAUÀ¼À »AzÉ ºÀÄ®èºÀ½î UÁæªÀÄzÀ dªÉgÉAiÀÄå£ÀªÀgÀ ªÀÄUÀ ªÀÄAdÄ JA§ÄªÀ£ÉÆA¢UÉ EzÉÃ UÁæªÀÄzÀ bÀvÀæzÀ°è £ÀªÀÄä PÀÄ®zÀ ¸ÀA¥ÀæzÁAiÀÄzÀAvÉ £À£Àß ªÀÄzÀÄªÉ D¬ÄvÀÄ. ªÀÄzÀÄªÉ ¸ÀªÀÄAiÀÄzÀ°è ªÀgÀzÀPÀëuÉUÁV 50,000/- LªÀvÀÄÛ ¸Á«gÀ) gÀÆ. UÀ¼À£ÀÄß UÀAqÀ£À ªÀÄ£ÉAiÀÄªÀgÀÄ PÉÃ½zÀÝgÀÄ 45,000/- gÀÆUÀ¼À£ÀÄß PÉÆnÖzÉÝªÀÅ 5000/- PÉÆqÀ®Ä ¨ÁQ EvÀÄÛ. EzÀPÁÌV £À£À£ÀÄß »A¹¸ÀÄwÛzÀÝgÀÄ. EªÀjUÉ PÀÄrAiÀÄÄªÀ ZÀl«zÀÄÝ, ¢£ÀªÀÇ PÀÄrzÀÄ §AzÀÄ £À£ÀUÉ zÉÊ»PÀªÁV ºÁUÀÆ ªÀiÁ£À¹PÀªÁV »A¹¸ÀÄwÛzÀÝgÀÄ. »ÃVgÀÄªÁUÀ ¢£ÁAPÀ 16.04.2014gÀAzÀÄ ªÀÄzÁåºÀß ¸ÀÄªÀiÁgÀÄ MAzÀÄ UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ PÉÆÃuÉAiÀÄ°è ªÀÄ®VgÀÄªÁUÀ £À£Àß ªÉÄÊªÉÄÃ¯É £À£ÀUÉAiÉÄÃ ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄ ¨ÉAQ PÀrØ VÃj £À£Àß ªÉÄÃ¯É J¸ÉzÀ ¨ÉAQ Gj vÁ¼À¯ÁgÀzÉ ºÉÆgÀUÉ Nr §AzÉ. D ¸ÀªÀÄAiÀÄzÀ°è £ÀªÀÄä CvÉÛ ªÀiÁªÀ PÀÆ° PÉ®¸ÀPÉÌ ºÉÆÃVzÀÝgÀÄ. CPÀÌ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀÄªÀgÀÄ £À£Àß ªÉÄÃ¯É ¤ÃgÀ£ÀÄß ºÁQ ¨ÉAQAiÀÄ£ÀÄß Dj¹zÀgÀÄ. D ºÉÆwÛUÉ £ÀªÀÄä CvÉÛ ªÀiÁªÀ ºÁUÀÆ £À£Àß UÀAqÀ J®ègÀÆ £À£Àß£ÀÄß D¸ÀàvÉæUÉ vÀAzÀÄ zÁR®Ä ªÀiÁrzÀgÀÄ. £À£Àß UÀAqÀ£À ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ jÃvÀå PÀæªÀÄ vÉUÉzÀÄPÉÆ¼Àî®Ä PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É".

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That in terms of the dying declaration the appellant had allegedly poured the kerosene on the victim while she was

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asleep in a room and had set her ablaze. But later appellantaccused, his parents themselves took her to hospital. As rightly pointed out by the learned counsel for appellant, contents of the said dying declaration run contrary to the spot sketch produced at Ex.P27 and evidence of PW21.

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H.R. Chandramohan, PW.21 who is the Junior Engineer PWD, Nanjangud has deposed of he preparing the spot sketch as per Ex.P27. The said witness has admitted that the place of incident was the bathroom and not room, hall or the kitchen. He has further stated that he prepared the sketch showing the bathroom to be the place of incident as per the instructions of the police.

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Thus when the aforesaid contents of the dying declaration read in the light of the spot sketch as per Ex.P27 and the deposition of PW21, it becomes clear that the place of incident is the bathroom and not the room where the victim was stated to have been sleeping.

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It is also necessary to refer to Ex.P6 which is spot mahazar. Even in the said Ex.P6-spot mahazar, the place of incident is shown to be the bathroom. The said spot mahazar

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refers to recovery of a partially burnt black coloured plastic found in the bathroom, which has been seized by the police. The said Ex.P6-Spot Mahazar further refers to the situation of a room measuring 10' X 5', which was apparently shown to be the room where the victim was set ablaze and sustained burn injuries. The spot mahazar revealed that in the said room the police recovered a Maaza cold drink plastic bottle containing half of blue colour kerosene, which was seized and recovered by the respondent-police. Except this, no other details are forthcoming in the spot mahazar.

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PW.17-Arshad Ahmed who is witness to the Ex.P6 has not supported the case of prosecution.

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Necessary to note that if as per the case of the prosecution the victim was sleeping in the room and the appellant-accused had poured kerosene and set her ablaze while she was asleep. As rightly pointed out by learned counsel for appellant-accused, either the mat, bed, cot or the pillow as the case may be where the victim was sleeping ought to have been soaked with kerosene or ought to have caught fire. No such details are forthcoming either in the spot mahazar or in

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the evidence of any of the witnesses. Thus, conjoint reading of deposition of PW21 who prepared spot sketch as per Ex.P27 and the contents of said spot sketch at Ex.P27 and the spot mahazar at Ex.P6 and recovery of items mentioned therein gives rise to serious doubt about the very version of prosecution that the appellant-accused pouring kerosene on the victim while she was asleep in the room and set her ablaze.

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Thus from the aforesaid evidence placed on record by the prosecution, it is not clear as to how and where exactly the victim sustained burn injuries. It is also not clear whether the appellant poured kerosene on the victim while she was asleep in a room and set her ablaze, whether the victim sustained burnt injuries in the bathroom.

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Regarding dying declaration:

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Contents of the dying declaration are already extracted hereinabove. Necessary to note that as per Ex.P20, a certification regarding fitness of victim is issued by one Dr.Mohan, the Associate Professor, Department of Plastic Reconstruction and Burn Surgery, K.R. Hospital, Mysuru, which

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is dated 16.04.2014. The said document is in printed form, blanks of which have been filled by hand writing. The said document further indicates that the dying declaration of the victim was recorded between 11.45 a.m. and 12.30 p.m.

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The victim herself has stated that on 16.04.2014 at about 9.00 p.m. she was brought to the hospital by her husband, mother-in-law and father-in-law in the ambulance and was admitted to the hospital. Though the dying declaration is purportedly recorded on 17.04.2014, the First Information Report as per Ex.P30 has been registered on 19.04.2014 at 6.00 p.m. This gives rise to a serious doubt as to the process in which the dying declaration has been recorded.

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It is appropriate at this juncture to refer to the judgment of the Apex Court in the case of Irfan alias Naka Vs. State of Uttar Pradesh reported in 2023 SCC Online SC 1060 , wherein the Apex Court adverting to the admissibility of dying declaration in evidence at paragraph Nos.61 to 64 has held as under:

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''61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying

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declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.

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62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:—

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(i) Whether the person making the statement was in expectation of death?

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(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”

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(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

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(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

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(v) Whether the statement was not recorded properly?

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(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

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(vii) Whether, the dying declaration has been consistent throughout?

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(viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?

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(ix) Whether, the dying declaration was itself voluntary?

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(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

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(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

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63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour

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of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.

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64 . It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration . In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion . The reason why we say so is that in the case on hand, although the appellantconvict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.''

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(emphasis supplied)

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Similarly the Apex Court in the case of Kushal Rao

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Vs. State of Bombay reported in AIR 1958 SC 2022, has

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laid down the following proposition regarding admissibility of

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dying declaration:

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(i) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

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(ii). each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made;

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(iii), it cannot be laid down as general proposition that the dying declaration is the weaker kind of evidence than the other pieces of evidence;

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(iv). the dying declaration stands in the same footing as any other piece of evidence, which has to be judged in the light of surrounding circumstances and with regard to principles of governing weighing of evidence;

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(v). A dying declaration which has been recorded by a competent Magistrate in a proper manner stands on much higher footings than a dying declaration which depends upon oral testimony which suffers from all infirmities of human memory and human character.

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(vi). in order to test the reliability of dying declaration, the Court has to keep in view the various circumstances, including the condition of the person concerned to make such statement and that it has been made at the earliest opportunity and was not result of tutoring by interested parties.

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The aforesaid proposition has been consistently

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reiterated by the Hon'ble Apex Court in the case of Paniben

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Vs. State of Gujarat reported in (1992) 2 SCC 474 and in

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the case of Rajendra Vs. State of Maharashtra reported in

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2024 SCC Online SC 941 .

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It is relevant to advert to the evidence of medical officers namely; PW.22, PW.16, PW.20, which is relevant for the purpose of admissibility of the dying declaration as evidence which is as under:

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(i). PW.22-Dr. Naveen, who is the Medical Officer at Hullahalli Primary Health Centre has stated that on 16.04.2014 at about 5.30 p.m. the victim was brought to the hospital. After providing first aid she had been referred to K.R.Hospital and he had also issued intimation to the police about the incident. He has stated that the victim was not in a position to give any details about the incident and therefore he did not record her statement. Referring to Ex.P29the said witness has stated that there is no reference regarding registering the case as MLC.

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(ii). In the cross examination the said witness has stated that he cannot exactly say who brought the victim to the hospital inasmuch as there were many people. He also cannot say if the victim herself had set fire by pouring petrol or kerosene or firewood. He cannot say whether the clothes worn by victim smelled of kerosene or petrol. The victim was screaming in pain and could not record the statement and he could not record the same in the

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MLC register as the situation was serious and after giving the first aid, she was taken to the K.R. Hospital for treatment.

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(iii). PW16-Dr. Jagannath in his deposition has spoken about he admitting the victim on 16.04.2014 at 8.40 p.m. in K.R. Hospital, Mysuru. He has also spoken about victim giving a statement regarding she sustaining injuries on 16.04.2014 at about 4.30 P.M. That the victim was admitted to the hospital by the appellant-accused. He has identified the admission record as per Ex.P23. He has also spoken about he forwarding MLC memo to the concerned police as per Ex.P24.

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(iv). In the cross examination, this witness has admitted he giving first aid to the victim at Hullahalli Hospital. That though victim was not in a position to write, but her thumb impression could be obtained. He has stated that the victim was conscious and history of the injuries was given by the victim herself. That when he enquired, the

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victim did not disclose regarding appellant-accused setting her ablaze. That he has also opined that if a person sets himself ablaze, he would suffer similar injuries.

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(v). PW14-Dr. N. Ravi has spoken about he conducting the inquest/post mortem on the dead body of the victim on 28.04.2014 at 4.00 p.m. The said witness has stated that the victim had suffered 35 to 40 percent burn injuries and death was due to Septicemia shock as a result of burn injuries. In the cross examination the said witness has stated that there is a possibility of carbon-monoxide emitting from the flames going into the brain. He has further stated that he is not able to differentiate if the injuries were homicidal, suicidal or accidental.

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(vi). Dr.Mohan-PW20 in his deposition has stated that he had visited the Burns Ward at the instance of PW23 and examined the victim and found that she was in a fit condition to give the statement. He has

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endorsed his opinion on the requisition at Ex. P26, which was received from PW15.

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(vii). In the cross examination the said witness has stated that he cannot say who was the doctor who examined victim for the first time. He has admitted that pain killer and sedative were given to the victim during treatment and the effect of the sedative will last for 30 minutes to 5 hours. That the victim suffered 35 to 40 percent burn injuries. That he did not take opinion from any ENT specialist, even though the ENT specialist was available in the hospital.

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(viii). Ex.P23 which is spoken to by Dr.JagannathPW16 is the first medical record which has come into existence at 8.40 p.m. on 16.04.2014. The said document refers to the history of burnt injuries, as stated by the patient herself. From the reading of the contents of Ex.P23 and the deposition of Dr.Jagannath-PW16, it becomes clear that when the victim was taken to the hospital at Hullahalli at 8.40

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p.m. on 16.04.2014, she was conscious and she

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herself had given the history of she suffering burnt injuries at 4.30 p.m. That she was accompanied by her husband. She has not alleged or taken name of the appellant-accused being the cause for burn injuries. This is the first ever possible opportunity for the victim to have indicated involvement of the appellant-accused in the crime.

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(ix). The dying declaration is stated to have been recorded on 17.04.2014, contents of which runs contrary to the evidence of Dr.Jagannath-PW16 and Ex.P23. Thus the events between the date, time of admission of victim at K.R. Hospital and recording of dying declaration on 17.04.2014 give raise to serious doubt about the case of the prosecution.

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Defence evidence:

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It is appropriate also to refer to the evidence of DW.1-Mahadeva examined on behalf of the appellant-accused, he has spoken about he inviting the victim and the appellant-

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accused to his house during the jathra festival and both staying

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in his house for three days. He has also spoken about victim going to Thoremavu during her stay at his house, without informing him or the appellant-accused. That he went to Thoremavu and brought the victim. He has also spoken about she speaking to one Lokesh at about 10.30 a.m., and he advising the victim and the incident taking place within three days thereafter.

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Contradictions:

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Thus from the analysis of the evidence produced by the prosecution, following contradictions emerges giving raise to serious doubts regarding the guilt of the appellant-accused.

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(a). The case of the prosecution with regard to the place and nature of the incident, as noted above does not evince credibility. In that, while according to PW21 who prepared Spot sketch-Ex.P27 incident had taken place in the bathroom, however, according to the case of the prosecution it has taken place inside a room where the victim was allegedly sleeping.

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(b). Spot mahazar at Ex.P6 does not give sign of any nature whatsoever regarding appellant-accused

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pouring kerosene on the victim and setting her ablaze, while she was asleep in the room.

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(c). As per Ex.P23 and evidence of Dr.JagannathPW16 victim herself had disclosed about she sustaining burnt injuries and had not indicated whatsoever with regard to involvement of appellantaccused.

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(d). According to the neighboring witnesses the appellant-accused was not present at the place of the incident and that he had come there subsequent thereof.

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(e). Appellant-accused and his mother had taken the victim to the Hospital at Hullahalli, and thereafter to K.R. Hospital and they were present throughout along with mother and other relatives of the victim. This indicates the natural conduct of the appellant-accused and his mother.

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(f). It is only when the dying declaration was purportedly recorded on 17.04.2014 between 11.45 a.m. and 12.30 p.m., it was alleged that appellantaccused had poured kerosene and set her ablaze while she was sleeping in a room.

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(g). FIR in this regard has been registered on 19.04.2014 at 6.00 p.m. There is no explanation as to the delay in this regard.

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For the aforesaid reasons and analysis, this Court is of the considered view that on the facts and in the circumstances of the case the dying declaration alone does not evince creditability to conclude the guilt of the appellantaccused and to convict him for the offences charged. The trial Court has committed error in appreciation of evidence and reached the conclusion contrary to the above discussed legal principle. Hence impugned Judgment and order warrant interference of this Court. Accordingly, following:

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ORDER

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Appeal is allowed.

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Impugned judgment and order of conviction and sentence passed by the Trial Court in SC No.360/2014 is hereby set aside.

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Appellant-accused is acquitted of the charges for the offences punishable under Sections 498A, 304B and 302 of IPC and Sections 3 and 4 of the Dowry Prohibition Act.

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