Sri. Guru Vs State by

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 26-10-2018 PASSED BY THE V

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ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN SESSIONS CASE NO.88 OF 2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 302 OF IPC.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard Smt.Sohani Holla, learned counsel, appointed as amicus curiae to assist this Court and Smt.Rashmi Patel, learned High Court Government Pleader, appearing for the respondent.

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This appeal is filed by the accused challenging the judgment of conviction and order of sentence passed by the trial Court, whereby the appellant was convicted for the offences punishable under Sections 498A and 302 of the Indian Penal Code, 1860 (for short, 'IPC') and sentenced to imprisonment for life with fine of Rs.25,000/-.

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The prosecution case before the trial Court was that the deceased, Parvathi, was married to the accused two years prior to the incident. It was alleged that she had suffered

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paralysis in both legs and that the accused was harassing her with the intention of contracting a second marriage. On this ground, it was alleged that the accused subjected Parvathi to mental cruelty, thereby attracting the offence under Section 498A IPC.

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It was further the specific case of the prosecution that on 16.02.2015, while the accused and the deceased were residing in the house of CW-3 Swamyshetty at Doddabagathavalli Village, the accused, at about 5:00 a.m., intentionally poured kerosene on Parvathi, set her on fire with the intention to kill her, and fled from the spot. Although she was admitted to the Government Hospital, Hassan, she succumbed to the burn injuries on 01.03.2015 at about 12:30 p.m. At the first instance, the police registered the case based on the statement of the injured victim for the offence punishable under Section 307 IPC. Subsequently, upon her death, the offence punishable under Section 302 IPC was invoked. After investigation, statements of witnesses were recorded and charge sheet was filed.

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The accused was secured before the Court; he pleaded not guilty and claimed to be tried. Consequently, the prosecution examined PW1 to PW13 and relied upon Ex.P1 to P15 and material objects MO.1 to MO.5. The statement of the accused was recorded as contemplated under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'CR.P.C'); however, he did not lead any defence evidence.

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The trial Court mainly relied upon the evidence of PW1, the sister of the accused; PW2, the father of the deceased; PW3, the brother-in-law of the deceased; and PW4, the son of PW1 and PW3. The Court also considered the evidence of PW9, the Tahsildar, who recorded the statement of the injured at the first instance, and PW10, the Assistant Sub-Inspector, who, upon receiving information from the Government Hospital, Hassan, rushed to the hospital and recorded the statement of the injured between 2:45 p.m. and 3:45 p.m. Further, reliance was placed on the evidence of PW13, the doctor in whose presence the statement of the injured was recorded. Since the injured had given statement as per Ex.P13, which was treated as dying

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declaration, the trial Court convicted the accused for the aforesaid offences and sentenced him accordingly.

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The learned amicus curiae appearing for the appellant would vehemently contend that there are material discrepancies in the evidence of the prosecution witnesses. Though the prosecution relied upon the testimony of PW1 to PW13, the evidence of PW1, PW3, and PW4, who are family members, is inconsistent and unreliable. It was argued that there are serious contradictions regarding the timing of the incident, as one witness stated that the incident occurred at 4:00 p.m., while another stated that it occurred at 5:00 a.m. It was further contended that even the alleged dying declarations are inconsistent with each other and do not corroborate the oral evidence. Therefore, it was submitted that the prosecution has failed to prove its case beyond reasonable doubt.

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The counsel also in support of her contention relied upon judgment of the Hon'ble Apex Court in Irfan alias Naka v. State of Uttar Pradesh , reported in 2023 SCC OnLine SC 1060 passed in Criminal Appeal No.825-826/2022 delivered on 23.08.2023 and brought to the notice of this Court paragraph

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Nos.62 to 66 thereof. The counsel specifically drew the attention

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of this Court to paragraph No.62, wherein it was held that, " 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" and also highlighted

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certain factors, particularly:

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Whether there is any reasonable suspicion to believe the dying declaration was put in the month of dying person?

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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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Whether the statement was not recorded properly?

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Whether, the dying declaration has been consistent throughout?

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Whether, the dying declaration was itself voluntary?

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

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

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The learned amicus curiae also vehemently

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contended that the evidence of PW13, examined as prosecution witness, clearly shows that the deceased had sustained 65% burn injuries. It is also contended that when the injured had

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suffered 65% of burn injuries, the Court must carefully consider whether she was in fit condition to make statements before the police, the Tahsildar, and the doctor. The Hon'ble Apex Court also held that benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial, or merely probable doubt, but a fair doubt based on reason, common sense and judicial scrutiny, founded upon a complete and comprehensive apprehension of all features of the case, as well as the quality and credibility of the evidence brought on record. The counsel would submit that there is no such quality evidence before this Court and hence the accused may be acquitted.

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Per contra , Smt. Rashmi Patel, learned High Court Government Pleader appearing for the respondent-State, vehemently contends that the evidence of PW1, PW3 and PW4 is consistent and clearly establishes that the incident took place in the house of PW1, PW3 and PW4. On hearing the screaming sound, they rushed to the room, where the accused was very much present. It was the accused who unlocked the room, after which they found the deceased, and thereafter the accused ran

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away. Learned counsel submits that their evidence is very clear

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and that the motive for committing the murder is also well established, namely that they were not having any children and, apart from that, the deceased was handicapped, having suffered paralysis, and was unable to move long distances.

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Learned HCGP also submits that the evidence of PW1, PW3 and PW4 is very clear inasmuch as, immediately on noticing the injuries, PW3 shifted the injured to the hospital, and PW1 gave her statement before the police, thereby setting the law in motion by invoking Section 307 IPC. Learned HCGP further brings to the notice of this Court that, having sustained burn injuries, the victim subsequently succumbed to the same, and therefore Section 302 IPC was invoked. It is particularly submitted that PW1 is the sister of the accused, PW3 is the brother-in-law of the accused, and PW4 is the son of PW1 and PW3, and the evidence of all these witnesses is very clear that nothing has been elicited from their mouths to show that they had any enmity against the accused so as to falsely implicate him in the commission of such offence.

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The HCGP also submits that the statements of PW9, PW10 and PW13 clearly shows that all of them recorded the statement of the injured, even after taking the assistance of the doctor, who is a medical witness, and certified that she was fit to make a statement. PW10 categorically states that when he recorded the statement of the injured, he obtained the signature of the doctor, who confirmed that she was in a fit condition to give the statement. All these factors were duly taken note of by the trial Court while convicting the accused.

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Having heard the learned amicus curiae and the learned HCGP appearing for the State, and upon considering both the oral and documentary evidence on re-appreciation, the points that arise for the consideration of this Court are:

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i) Whether the trial Court committed an error in invoking Section 498A and 302 IPC against the accused, and, considering the material available on record, whether such findings require interference of this Court on the ground that the prosecution has not proved the case beyond reasonable doubt?

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ii) What order?

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Having heard the respective counsels and upon

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perusal of the material on record, it is not in dispute that the deceased and the accused are husband and wife. It is also not in dispute that their marriage was performed two and half years prior to the date of the incident. It is further case of the prosecution that both of them had been to the house of PW1 and PW3 in connection with the marriage of PW4. It is also the case of the prosecution that the deceased and the accused were sleeping in one of the rooms of the house of PW1 and PW3. The incident is stated to have taken place in the early morning, when the accused poured kerosene on the deceased and set her on fire. The fact that she sustained burn injuries on account of kerosene being poured on her and that she suffered burn injuries is also not in dispute. However, the specific contention of the accused before the trial Court during the trial was that he was not present at the time of the incident.

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Having perused the evidence of PW1-Kalamma, who is the sister of the accused, she categorically deposes with regard to the marriage of PW4 and also states that the deceased and the accused were residing together in her house after the

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marriage. She further deposes that Parvathi was not having control over her legs, as she was paralysed and unable to do work, and that she used to fall down if she walk even a little distance. The accused used to say that he would marry some other girl since his wife-Parvathi was unable to do anything. After one year of their marriage, they had come to their house to celebrate the marriage of her son. Accused and Parvathi stayed at their house to celebrate the same for about eight days, and she had requested them to stay back for performing the rituals connected with her son’s marriage.

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She further states that she heard the screaming of the deceased. The accused was staying with Parvathi in one room, while PW1 was staying with her husband in another room. Likewise, her son and daughter-in-law were staying in another room. On hearing the screaming, they rushed to the room of the deceased and found that the accused had doused Parvathi with kerosene and had lit fire on her. Immediately, her husband-PW3 draped her with a bed sheet, and the accused was also present there itself. Her entire back and front portions were burnt due to the said fire, and PW3 took her to the hospital.

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Prior to that, the deceased was in a condition to speak and she had stated that the accused had doused her with kerosene, which was taken from the stove of her house, and had lit her on fire. This witness was subjected to cross-examination. In the cross-examination, it was elicited that her parents were also residing in the same village at a distance of about half a kilometre. There are about 5-6 houses in their village, and about two houses are situated near her house. Apart from those mentioned in her chief examination, none of the other relatives were present. It was further elicited that the accused and the deceased were residing cordially when they had visited their house. She was not aware of the exact date of marriage. It was suggested that the accused had also returned to his house after the marriage, like other relatives, and the same was denied. It was further elicited that Parvathi and the accused were sleeping in the middle room, and she was sleeping in the first room. Their room was situated at a distance of about five feet from her room.

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In the cross-examination, a suggestion was made that while sleeping in the village, people generally keep a lamp

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near them. It is her evidence that they normally keep the lamp on the short wall in the house. It was suggested that on the date of the incident there was no electricity supply to their house and, as such, a lamp was lit near the bed of Parvathi, and since she was not having control over her legs, the lamp had fallen down on the bed and she was caught in the fire. The said suggestion was categorically denied.

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No doubt, in the cross-examination, it was elicited that she was present in the hospital for about two days, and it is also her evidence that her son had lodged the complaint in this regard. Parvathi had given her statement for the first time at the Government Hospital, Holenarasipura, on the same day, and subsequently she gave another statement at the Government Hospital, Hassan. There were about 30 to 40 persons present at the time of giving the statement.

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The other witness is PW2-Srinivasa K., father of the deceased, who deposes that he came to know about the burn injuries sustained by his daughter and immediately rushed to the hospital. He also states that he had lodged the complaint, marked as Ex.P2, subsequent to the death of his daughter on

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01.03.2015, and he identifies MO.3 to MO.5, which were seized under Ex.P3. In the cross-examination, suggestion was made that his daughter was handicapped person, which was denied by this witness, though he stated that his daughter was not limping .

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No doubt, the counsel appearing for the appellant brought to the notice of this Court that the father had denied that his daughter was handicapped person. However, the fact remains that it was the accused’s counsel who suggested to this witness that his daughter was handicapped, which was denied, although he admitted that his daughter had some disability. PW2 does state that she was not limping. The evidence of PW2 primarily relates to her disability, his knowledge of the injuries sustained by his daughter, and the fact that he immediately rushed to the hospital. He also deposes that the couple did not have any children born out of their wedlock. His daughter was residing with the accused at his house along with his father and mother. PW2 further states that his daughter had revealed that the accused, along with his father and mother, was harassing and ill-treating her by demanding money from her. In cross-

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examination, nothing was elicited to suggest that she had not sustained the burn injuries.

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The other witnesses are PW3-Swamyshetty and PW4-Mahesha, and their evidence is similar to that of PW1. In the cross-examination of PW3, a suggestion was made that, at the time of the marriage, a large number of relatives had visited their house, which was admitted. However, when it was suggested that the accused had returned to his house after the marriage ceremony, PW3 categorically denied the same. In his evidence, he further deposes in the cross-examination that the room in which the deceased, Parvathi, was sleeping was at a distance of about 10 feet from the room where he was sleeping. No doubt, the discrepancy is only 5 feet, as PW1 states the distance was 5 feet while PW3 says it was 10 feet. It was also elicited that they could hear even a small noise from the adjacent room. However, the witness volunteers that they can hear such sounds only if they are awake. Except for this, nothing further was elicited.

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In the cross-examination of PW4, it is also his evidence that when they immediately rushed to the spot, the

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door, which had been locked by the accused from inside, was opened. At that time, Parvathi revealed that the accused had doused her with kerosene and set her on fire. The fire was extinguished by his father-PW3. PW3’s evidence also states that he extinguished the fire that was on the body of the injured. PW4 further categorically states that PW3 admitted her to the hospital at Holenarasipura, afterwards which she was shifted to Hassan Hospital.

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In the cross-examination of PW4, he also states that his marriage was celebrated on the 7^th and 8^th of February in Dabbedhatta Village, and after the marriage, they had hosted a lunch in their house on the 12^th and 13^th of February, which was a Tuesday. He further deposes that after the marriage ceremony in their house, he had not visited the house of his in-laws. It was elicited in cross-examination that they light a lamp at night while sleeping since there was no electricity connection. The kitchen is not attached to the room where he was sleeping. It was suggested that they would not lock the doors while sleeping, to which the witness volunteered that the exception is for the middle room, as there is no door lock to the other rooms in their

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house. He also states that her parents were sleeping in the front room, which was not door-locked. The accused himself had opened the door of the middle room. Taking note of his evidence, it is very clear that the accused only unlocked the room when they heard the screaming sound.

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Having considered the evidence of PW1, PW3, and PW4 with regard to the accused’s alleged absence, nothing adverse is elicited from their testimonies. The other witness, PW10, recorded the statement of the injured in the hospital in terms of Ex.P13. He deposes that he visited Hassan Hospital upon receiving the intimation and recorded the statement of the injured, categorically stating that the statement was recorded between 2:45 p.m. and 3:45 p.m. He further confirms that he obtained the signature of the medical officer at the time of recording the statement and endorses that he recorded the statement of the injured and affixed his own signature on the same. Ex.P13 is accordingly marked, and his signature is also recorded thereon.

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In the cross-examination, he categorically states that he received the intimation via wireless message at about 1:00

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p.m. on the said day and was informed that the incident had occurred at 6:00 a.m. that morning. It was elicited that when he visited the Burns Ward, the injured and her father were present, and none of the other relatives of the injured, Parvathi, were present at the time of recording the statement. The injured, Parvathi, affixed her LTM to the statement recorded in the hospital. Her left hand was not burnt, and she was fully capable of affixing her LTM to the statement.

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The other witness is PW9-Dr. Manjunath V., who is the Tahsildar. He recorded the dying declaration of the injured as per Ex.P12 at the Government Hospital Hassan at about 3:30 p.m. His evidence clearly shows that he consulted the Medical Officer who had treated the injured, Parvathi, and enquired about her condition to give a statement, and the doctor certified that she was fit to do so. He further deposes that he visited the Burns Ward along with the Medical Officer, sent all other persons outside the ward, including the concerned police, and went near the bed of the patient to record her statement.

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He states that Parvathi was conscious and capable of making the statement, and that she narrated that the accused

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alone had doused her with kerosene and set her on fire. She also stated that her husband intended to contract a second marriage and was harassing her. She further stated that on 16.02.2015 at about 4:00 a.m., while she was sleeping in her brother’s house at Doddabyagathavalli Village, the accused doused her with kerosene and set her on fire.

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This witness was also subjected to crossexamination, and in the cross-examination it was elicited that he had obtained the signature of the Medical Officer in the dying declaration itself, and that he had not obtained any separate consent letter from the Medical Officer.

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In the cross-examination, a suggestion was made that Parvathi had not given any statement before him and had not made any allegation against the accused, which was denied. A further suggestion was made that he had fabricated the dying declaration, and the same was also denied. Nothing was elicited from the mouth of PW9 to discredit the recording of the dying declaration.

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The other witness is PW13 – Dr. Shashikanth Y.S., who deposes that he was working as a House Surgeon at HIMS

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Hospital, Hassan, and that he had visited the hospital. He states that the police had also visited the hospital and enquired about the condition of the patient. Upon examination, he found that the injured, Parvathi, was capable of giving a statement. In his presence, the concerned police recorded the statement of the injured between 3:00 p.m. and 3:45 p.m., and the same is marked as Ex.P13. This evidence is corroborative of the evidence of PW10, who recorded the statement of the injured.

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Learned counsel appearing for the appellant also brought to the notice of this Court that PW13 deposed that the injured had sustained about 65% burn injuries. He further stated that she had sustained burn injuries on her face, chest, both hands, i.e., both upper limb, and on some parts of her lower limb. It was suggested that a patient who has sustained 65% burn injuries would not be in a condition to speak, which suggestion was denied. However, the witness volunteered that on the first day of admission, the patient would be in a position to speak, and that with the passage of time, infection in the body may increase and prevent the patient from speaking. The

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explanation given was that the statement was recorded on the first day itself.

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Having considered both the oral and documentary evidence available on record, particularly the evidence of PW1, PW3, and PW4, who are relatives of the accused, it is clear that they have categorically deposed that the incident took place in the house of PW1 and PW3 and that the accused was very much present at the spot. The presence of the accused is consistently spoken to by PW1, PW3, and PW4. PW2 is only a chance witness, as he came to the hospital only upon receiving information about the incident.

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The evidence of PW1, PW3, and PW4 is consistent with regard to the presence of the accused inside the room at the time of the incident and the fact that the deceased sustained burn injuries therein. The recovery made with regard to the seizure of the stove, lamp, and the clothes of the deceased is duly proved, and the witnesses have supported the case of the prosecution concerning the recovery of these articles.

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The evidence of PW9, PW10, and PW13 is also consistent. Though learned counsel for the appellant relied upon

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the judgment of the Hon’ble Apex Court with regard to the procedure for recording and accepting such evidence, particularly in relation to surrounding circumstances, upon consideration of Exs.P12 and P13, it is clear that both are consistent and duly set the law in motion against the accused. The injured herself made the statements immediately after she was taken to the hospital. Ex.P12 is in the form of question and answers, wherein PW9-the Tahsildar questioned the injured and recorded her answers. Ex.P13 was recorded by the Investigating Officer in the presence of the doctor, and PW13 categorically deposes that the injured was in a fit condition to give the statement and has certified the same.

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No doubt, learned amicus curiae appearing for the appellant would contend that the burn injuries were to the extent of 65% and suggested that the injured was not in a position to make a statement. However, the fact remains that when the injured was taken to the hospital, at the first instance, based on her own statement, a case was registered for the offence punishable under Section 307 IPC. Further, the doctor has explained that even if an injured has sustained such burn

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injuries, on the very first day the injured would be in a position to make a statement, and that any subsequent inability to speak would be due to later developments such as infection.

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Learned amicus curiae appearing for the appellant brought to the notice of this Court paragraph 62 of the judgment of the Hon’ble Apex Court. Paragraph 62 clearly lays down the test regarding consistency. Upon considering Exs.P12 and P13, it is evident that both are consistent, and there is no circumstance giving rise to any suspicion regarding the dying declarations, nor is there any question of prompting or tutoring.

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Only PW3 shifted the injured to the hospital after noticing that she had sustained burn injuries. This fact is also supported by the evidence of PW1 and PW4, who have categorically stated that PW3 alone took the injured to the hospital. The statement of the injured was properly recorded in the form of questions and answers as per Ex.P12, and the doctor certified that she was competent to give the statement. Even the Tahsildar, who recorded the dying declaration, has categorically stated that she was in a fit condition to give the statement and that, before recording the same, he had taken the advice of the

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doctor. The doctor also certified that she was capable of giving the statement.

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When such dying declarations are consistent, doubt can arise only if the statements are contradictory. In the present case, both Exs.P12 and P13 are consistent, and the law was set in motion based on the statement of the injured herself. She made the statement at the first instance and again in the hospital when she was taken there, and her statement was duly recorded. When such is the case, the material available on record is consistent, and minor discrepancies will not go to the root of the prosecution case. Nothing is found to arrive at a different conclusion on appreciation of both oral and documentary evidence.

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No doubt, in the post-mortem report marked as Ex.P9, the burn injuries are shown as 25–30%. The doctor who conducted the post-mortem was not examined. However, the doctor who certified that the injured was in a fit condition to make the statement was examined, and his evidence is marked as Ex.P13. When there is no material before the Court to show that she was not in a position to speak, and having considered

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Ex.P13 recorded by PW10, ASI, the evidence of PW9, the Tahsildar who recorded the dying declaration, and the evidence of PW13, the doctor who deposed before the Court regarding the fitness of the deceased, it is clear that the statements were recorded when she was in a fit condition.

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It is also to be noted that only after her death, which occurred about 15 days later, the case was converted by seeking the permission of the Court to invoke Section 302 IPC. All these materials were duly taken note of when the law was set in motion based on the statement of the injured, her dying declaration, and the evidence of PW1, PW3, and PW4, who are close relatives of the accused, PW1 being the sister of the accused, PW3 the brother-in-law, and PW4 the son of PW1 and PW3. Nothing has been elicited from the mouth of these witnesses to suggest that they had any enmity against the accused so as to falsely depose against him. When such is the case, we do not find any ground to reverse the findings of the trial Court, and hence, the appeal is devoid of merit.

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