Karnataka High Court
State By Women Police Station vs B V Kumar S/O Eerojirao @ B Veerappa on 29 June, 2018
Author: Budihal R.B. B.A.Patil
                                1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF JUNE 2018

                              PRESENT

          THE HON'BLE MR. JUSTICE BUDIHAL R.B.

                               AND

            THE HON'BLE MR. JUSTICE B.A. PATIL

               CRIMINAL APPEAL NO.566/2013
                           C/W
               CRIMINAL APPEAL NO.194/2013
                           C/W
               CRIMINAL APPEAL No.181/2013

IN CRL.A.NO.566/2013

BETWEEN:

State by Women Police Station
Davangere.                                   ...APPELLANT

(By Smt. B.G.Namitha Mahesh, HCGP)

AND:

1.     B.V.Kumar
       S/o Eerojirao @ B.Veerappa
       40 years

2.     Smt.Shanthamma @ Shantabai
       W/o Eerojirao, 64 years

3.     Eerojirao @ B.Veerappa
       S/o B.Somanna, 69 years

       All are r/o 3rd Main
                                2

       9TH Cross, Vinobhanagara
       Davangere - 577 001.                 ...RESPONDENTS

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

       This Criminal Appeal is filed under Section 377 Cr.P.C.,
praying to modify the judgment and order of conviction of
sentence dated 23.01.2013 passed by the II Additional District
and Sessions Judge, Davanagere in S.C. No.16/2009 and
impose adequate sentence against the respondents/accused for
the offence p/u/s 3 of the Dowry Prohibition Act and etc.


IN CRL.A. NO.194/2013

BETWEEN:

1.     Smt.Shanthamma
       Aged about 65 years
       W/o Sri Eeroji Rao

2.     Sri Eeroji Rao @ Veerappa
       Aged about 70 years
       S/o Somanna

       Both are residents of the premises
       Bearing No.1631/3
       9th Cross, III Main
       Vinobhanagara
       Davanagere.                             ...APPELLANTS

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

AND:

The State of Karnataka
By the Station House Officer
Women Police Station
                                3

Davanagere                               ...RESPONDENT

(By Smt. B.G.Namitha Mahesh, HCGP)

      This Criminal Appeal is filed under Section 374 (2)
Cr.P.C., praying to set aside the judgment dated 23.01.2013
passed by the II Additional District and Sessions Judge,
Davanagere     in   S.C.    No.16/2009   -  convicting  the
appellants/accused for the offence p/u/s 498A R/W 34 of IPC
and Sec.3, 4 & 6 of D.P.Act and etc.


IN CRL. A. NO.181/2013

BETWEEN:

Sri B.V.Kumar
Aged about 40 years
S/o Eerojirao
Merchant by Profession
Resident of the premises
Bearing No.1631/3
9th Cross, Vinobhanagara
Davanagere.                                 ...APPELLANT

(By Sri C.V.Nagesh, Senior Counsel for
Sri K.Raghavendra, Advocate)

AND:

The State of Karnataka
By the Station House Officer
Women Police Station
Davanagere.                                ...RESPONDENT

(By Smt. B.G.Namitha Mahesh, HCGP)

      This Criminal Appeal is filed under Section 374(2)
Cr.P.C., praying to set aside the judgment dated 23.01.2013
passed by the II Additional District and Sessions Judge,
                                4

Davanagere    in  S.C.   No.16/2009    -   convicting  the
appellant/accused for the offence p/u/s 498A, 304(B), 302,
506 and 201 R/W 34 of IPC and Sec.3, 4 & 6 of D.P.Act and
etc.

       These Criminal Appeals having been heard and reserved
for judgment on 12.06.2018 and coming on for pronouncement
of judgment this day, BUDIHAL R.B. J., delivered the
following:-

                           JUDGMENT

Since the above three appeals are against the same judgment and order of conviction and sentence dated 23.1.2013 passed by the II Additional District and Sessions Judge, Davanagere in S.C. No.16/2009 and since the common questions of law and facts are involved in all the appeals, they are taken up together to dispose of them by this common judgment, in order to avoid the repetition of facts and law.

2. Criminal Appeal No.181/2013 is preferred by the appellant-accused No.1 being aggrieved by the judgment and order dated 23.1.2013 passed by the II Additional District and Session ad Judge in S.C. No.16/2009 convicting him for offences punishable under Sections 498A304(B)302506201 read with Section 34 of IPC and under Sections 34 and 6 of Dowry Prohibition Act and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two months on the first count; sentencing him to undergo further rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one year on the second count; sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two years on the third count; sentencing him to undergo rigorous imprisonment for a period of one year on the fourth count; and sentencing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month on the fifth count; and sentencing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one year for the offence punishable under Section 3 of the DP Act; sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two months for the offences punishable under Sections 4 and 6 of the DP Act and the above sentences shall have to run concurrently.

3. Criminal Appeal No.194/2013 is preferred by accused Nos.2 and 3 being aggrieved by the judgment and order dated 23.1.2013 passed by the II Additional District and Sessions Judge, Davanagere in S.C. No.16/2009 convicting the appellants-accused Nos.2 and 3 for offences punishable under section 498Aread with Section 34 of IPC and under Sections 34 and 6 of Dowry Prohibition Act and sentencing each one of them to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further simple imprisonment for a period of fifteen days for the offence punishable under Section 498A of IPC and sentencing each one of them to under go simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month for the offences under sections 3, 4 and 6 of the DP Act and the above sentences shall have to run concurrently.

4. Criminal. Appeal No.566/2013 is preferred by the State as against the respondents-accused Nos.1 to 3 praying this Court to modify the judgment and order of conviction and sentence dated 23.1.2013 passed by the II Additional District and Sessions Judge, Davanagere, in S.C. No.16/2009 and to impose adequate sentence on the respondents-accused for the offences punishable under Section 3 of the Dowry Prohibition Act (for short ‘the DP Act’).

5. Brief facts of the case of prosecution as per the complaint averments is that the father of the deceased filed a complaint as per Ex.P.1 on 9.9.2008 stating that he is having one male and three female children. His last daughter the deceased Mamatha was given in marriage to one Kumar – accused No.1, the son of Eeroji Rao, in the year 2003. One month earlier to the marriage, there were marriage talks. On the side of the bride Kubendroji Rao, Chennaveeroji Rao, Shivaji Rao, Ningoji Rao were present and on the side of the accused, accused No.1, his mother Shantha Bai, his father EerojiRao and others were present. The accused demanded Rs.2.00 lakh cash and 15 tolas of gold as dowry and the complainant has to perform the marriage on his own expenses. For that, the people on the complainant side told that it is not possible to pay the said amount presently, they will pay Rs.1.00 lakh cash, 10 tolas of gold and clothes and perform the marriage and in future, they will pay the cash of Rs.50,000/-. The accused persons agreed for the same. On that day, Rs.1.00 lakh was given into the hands of Eeroji Rao, the father of accused No.1 and on the day of the marriage, 10 tolas of gold ornaments were given. After the marriage, Mamatha was taken to her husband’s house and she was residing along with her husband, in-laws and sister-in-law (accused Nos.1 to 4) together in the same house. For about six months, Mamatha was looked after well. Thereafterwards, the accused persons started insisting Mamatha to bring the remaining amount of Rs.50,000/- and on that ground, they started to give ill treatment, both physical and mental and when it became intolerable, she came to Chennagiri and informed them of the harassment. Thereafter, the complainant and Kubendroji Rao brought back Mamatha to Davanagere. At that time, the accused persons i.e. the in-laws of the deceased and her husband complained that she must listen to their words in their house. At that time, the complainant advised deceased and asked the accused to treat her properly. One month thereafter, Mamatha alone came to the house of the complainant and told that her husband and in-laws driven her out from the house and she also told that for petty things, they are assaulting her and giving ill treatment. Then, the complainant allowed her to stay in his house. Then the deceased Mamatha filed a case in Davanagere Court seeking maintenance. Six months thereafter, accused No.1 compromised the matter before the Court by giving an undertaking that he will look after Mamatha properly and thereafter, they got one house at Vinoba Nagar and the couple was leading their life. One year thereafter, the deceased was carrying pregnancy and she gave birth to twins at Davanagere Bapuji hospital. For about one year three months back, the complainant brought his daughter for postnatalperiod. Even for one year, on the side of her husband, nobody did come to see the children or for naming ceremony. Thereafter, about three months back, accused No.1 phoned them and told that he has arranged a separate house and he will look after the deceased properly. He made galata stating that let the complainant keep Mamatha in their house and provide her food. Because of that reason, the complainant and his wife took the deceased Mamatha to the rented house at Vinobanagar, Davanagere and the complainant left his wife Padma in the house of the accused. The wife of the complainant came back to Davanagere for Gowri festival. Then, the daughter of the complainant phoned to them and informed that her husband continued the earlier ill treatment and harassment and he has not discontinued his old habits. She has also told them that at the instance of his parents and his sister, he was giving ill treatment by assaulting her. On 8.9.2008, at 10.15 p.m., accused No.1 phoned the complainant stating that there are burn injuries nearby the thigh of the deceased and it would be alright and told that the complainant can come in the morning. As the complainant became panic and immediately, arranged one vehicle and himself, his wife, his son Shivaji Rao and the complainant nephew one Shivaji Rao and Kubendrojio Rao and member Revanna came to Davanagere hospital in the mid-night. The deceased Mamatha was admitted in ward No.73 and her entire body was burnt and the skin was peeled off. She was not in a position to speak and she was struggling. On 9.9.2008 at 7.30 a.m., they again went to see the deceased Mamatha and enquired as to what had happened to her. The deceased told that her husband, mother in law Shanthamma, father-in-law Eeroji Rao and Sister-in-law Gunavathi, by insisting her to bring the dowry amount from her parental place, gave mental and physical ill treatment and when became untolerable, the previous day i.e. on 8.9.2008 at 9.00 p.m. she poured kerosene on her body and lit fire to herself. Hence, the complainant requested the police to take action against the accused, who insisted his deceased daughter Mamatha to bring the dowry amount and gave the physical and mental ill treatment to her.

On the basis of the said complaint, the case came to be registered in Crime No.44/2008 for the offences punishable under Section 498A of IPC and Sections 3 and 4 of the DP Act.

6. After the completion of investigation, the investigation officer filed the charge sheet against the accused persons for the offences punishable under Sections 498A304B302506201 read with Section 34 of IPC and Sections 3, 4 and 6 of the DP Act.

7. After hearing both sides, the learned Sessions Judge, framed the charges as against the accused persons for the said offences and when the charges were read over and explained to the accused, the accused pleaded not guilty and claimed to be tried and accordingly, the matter was set down for recording the evidence.

8. The prosecution in support of its case, examined 33 witnesses and produced 51 documents and got marked material objects M.Os.1 and 2.

On the side of the defence, no witnesses were examined, but the documents, Exs.D.1 to D.7 got marked.

The accused were examined under Section 313 of Cr.P.C. and their statements came to be recorded.

9. After hearing the arguments of both sides and after considering the materials on record, the learned Sessions Judge held accused No.1 guilty for the offences punishable under Sections 498A304B302506201 read with section 34 of IPC and Sections 3,4 and 6 of the DP Act and held accused Nos.2 and 3 guilty for the offences punishable under Section 498A read with Section 34 of IPC and sections 3, 4 and 6 of the DP Act and he has acquitted accused Nos.2 and 3 for the offences punishable under section 304B302506 and 201 read with section 34 of IPC. Accused No.4 is acquitted from all the charges.

10. Being aggrieved by the judgment and order of conviction and the sentence for the said offences, the appellants-accused have preferred Crl. Appeal Nos.181/2013 and 194/2013 challenging the legality and correctness of the said judgment and order of conviction on the grounds as mentioned in the appeal memorandum of their respective appeals. The State has also filed Crl.A. No.566/2013 to modify the impugned judgment and order of conviction and sentence and to impose adequate sentence on the respondents-accused for the offence punishable under Section 3 of the DP Act.

11. We have heard the arguments of the learned Senior Advocate appearing on behalf of the learned counsel on record for the appellants-accused in respect of their appeals and also we have heard the learned HCGP for the State.

12. Learned Senior Advocate appearing for the appellants-accused made submission that the learned Sessions Judge is not right in convicting the appellant- accused No.1 for the offence punishable under Section 302 of IPC so also for the offence punishable under Section 304B of IPC. If the learned Sessions Judge was of the opinion that it was the case of suicidal death for dowry harassment as contended by the prosecution, then it rules out the possibility of committing the murder of the deceased Mamatha. If the learned Sessions Judge was of the opinion that the material indicates that it was accused No.1 who committed the murder of the deceased and held that it was the homicidal death, then in that case, it rules out the possibility of offence punishable under Section 304B of IPC. There are four types of deaths. They are

(i) natural, (ii) homicidal, (iii) suicidal death, and

(iv) accidental death. The learned Senior Advocate, taking us through the materials of the case through the paper book as well as the original records, submitted that the death of the deceased was not at all the homicidal death. In this connection, he brought to our notice that there are more than one dying declaration said to have been left by the deceased. So far as the oral dying declarations are concerned, there is no consistency in the said declarations said to have been made by the deceased before P.Ws.1 to 3, 13 and also before P.W.9. He submitted that looking to the materials produced on the side of the prosecution, they clearly show that the said oral dying declarations relied upon by the prosecution to the effect that it was the accused who committed the murder of the deceased by pouring kerosene and lit fire to her, are totally inconsistent and contradictory of each other. The learned Senior Advocate also submitted that it is an admitted case of the prosecution itself that when the deceased was taken to the hospital, the Taluka Executive Magistrate (P.W.26) recorded her dying declaration (Ex.P.20) in the hospital in the presence of the doctor. Drawing our attention to the said dying declaration (Ex.P.20) so also our attention to the oral evidence of P.Ws.13 and 26, he submitted that these materials clearly go to show that it is not the case of homicidal death. The dying declaration (Ex.P.20) and the oral evidence of P.Ws.13 and 26 also rules out of the possibility that it is a suicidal death. So far as the oral evidence of P.Ws.13 and 26 is concerned, there is nothing on record to believe their oral evidence so also the contents of Ex.P.20. The prosecution has not at all treated these two witnesses as hostile for the purpose of making suggestion that they colluded with the accused persons and giving false evidence to the effect that the deceased gave the dying declaration as per Ex.P.20 and that she never gave such declaration as per contents of Ex.P.20 and it is a concocted document prepared by P.Ws.13 and 26 in collusion with the accused persons. The learned Senior Advocate also submitted that looking to the contents of the dying declaration (Ex.P.20) and the oral evidence of the other witnesses to which he has drawn our attention so also the other documents at Exs.P.32, 33, 50 and the oral evidence of P.Ws.13, 14, 20, 26, 27, 28, they show that it is not a suicidal death. Learned Senior Advocate referring to these materials submitted that the oral evidence of the said witnesses as well as the contents of the documents Exs.P.20, 32, 33, 50 clearly show that it was a case of accidental death. The dying declaration that too in the written form under Ex.P.20 is at the earliest point of time which is supported by the other materials like the oral evidence of the prosecution witnesses so also the documents produced by the prosecution itself. Hence, the learned Senior Advocate submitted that there is nothing on record to show that the dying declaration under Ex.P.20 is a concocted document and in reality, it is a case of suicidal death and homicidal death as observed by the learned Sessions judge. When the oral dying declarations relied upon by the prosecution are more than one in number and there are so many inconsistencies and contradictions, in such oral dying declarations, it cannot be held that they are trust worthy and truthful and can be relied upon by the Court. In this connection, the learned Senior Advocate for the appellant- accused relied upon the following judgments of the Hon’ble Apex Court:

1. (1993) 1 SCC 1 – KAMLA (SMT.) Vs. STATE OF PUNJAB.

2. (2007) 13 SCC 112 – MEHIBOOBSAB ABBASABI NADAF Vs. STATE OF KARNATAKA

3. (2004)12 SCC 244 – CHINNAMMA Vs. STATE OF KERALA

4. (2007)9 SCC 148 – SANJAY VS. STATE OF MAHARASHTRA

13. The learned Senior Advocate submitted that the prosecution has tried to book a false case against the appellants-accused falsely implicating them stating that it is a case of suicidal death on the allegation that the deceased was subjected to ill treatment and harassment in connection with the dowry amount of Rs.50,000/-. He drew our attention to the document Ex.P.21 and submitted that so far as the history of the case is concerned the word ‘accidental’ has been scored out and in its place; it is written as ‘suicidal’ one. There is no initial of anybody to this correction made. He also submitted that it is a mistake through over sight while making mention in the said document and it can be accepted by the Court, if there is proper explanation to that effect. The learned Senior Advocate submitted that the same mistake cannot be carried out in the other documents also. Even in Ex.P.32-OPD Slip of Chigteri District hospital Davanagere, wherein, in the history column, the word ‘accidental’ is scored out and above that, it is mentioned as ‘suicidal’ and there also no initial of anybody is formed. Regarding this correction scoring out the word ‘accidental’ and writing as ‘suicidal’, it is for the prosecution to explain as to at what point of time this was made, by whom it was made, why it was corrected like that and what is the basis for the said correction. Looking to the evidence of the prosecution witnesses, it is not explained during the course of trial. In connection with the said material, the learned Senior Advocate drew our attention to one more document Ex.P.50 and the sub marking under Ex.P.50A wherein in the column, history of the case, the word ‘accidental burn’ is still appearing and in this document, there is no mention of suicidal burns as it is seen in other two documents at Exs.P.21 and P.32. Hence, referring to this document and the other two documents Exs.P.21 and P.32, learned Senior Advocate made submission that the prosecution tried to meddle with the Courts of justice which is a serious matter to be taken judicial notice about the same. Hence, all these materials coupled with the oral evidence of the prosecution witnesses more particularly, the evidence of P.Ws.1 to 3, 9, 10, 13 and 26, there is no consistency in the case of prosecution for establishing the alleged offences under Sections 302 and 304B of IPC and that the entire materials clearly show that it was an accidental death. Learned Senior Advocate also made submission that looking to the evidence of Head Constable (P.W.23), it goes to show that during night on 8.9.2008 itself, even earlier to recording the dying declaration under Ex.P.20, the women police visited the hospital and recorded the statement of the deceased Mamatha and obtained her signature to the said statement, but the same has not been produced before the Court along with the charge sheet material. It has been suppressed from producing before the Court. Therefore, it raises a reasonable doubt as to the case of prosecution that the alleged offence is either under Section 302 of IPC or under Section 304B of IPC that it is a suicidal death. Therefore, because of non- production of the said document, an adverse inference has to be drawn as against the case of prosecution. The learned Senior Advocate also submitted that the investigation officer (P.W.33) deposed in his evidence that though he verified the investigation file, the said statement was not available in the said file. As the said statement was not favourable, the prosecution suppressed the said material.

The learned Senior Advocate further made the submission that during the course of the trial, the prosecution set up a new case that, as accused No.1 posed threat to the deceased Mamatha that in case, she tells before anybody that it was the accused who poured kerosene and lit fire to her, then he will not spare her children and because of that reason, she made the statement under Ex.P.20 falsely making a mention that she herself poured kerosene and lit fire herself. So far as this contention of the prosecution is concerned, learned Senior Advocate made submission that P.W.8 is the driver of the auto rickshaw and the materials goes to show that in the said auto, the injured Mamatha and accused No.1only were travelled and nobody else. He also made the submission that P.W.8 has not at all made any such statement before the Court on oath that while such travelling in his auto rickshaw, accused No.1 posed the threat to the deceased. No witnesses have deposed that the deceased made such statement due to the threat posed by accused No.1 and for that reason, she gave false statement and hence, it is mentioned as accidental death. Learned Senior Advocate further submitted that such contention of the prosecution is not supported by any material. Hence, the entire materials, if we peruse properly, they will not make out the case either under Section 302 of IPC or under Section 304B of IPC that is either homicidal death or suicidal death, but they go to show that it is an accidental death.

With regard to the offence under Section 498A of IPC is concerned, the learned Senior Advocate submitted that if the wife who has been subjected to cruelty or ill treatment and if she is alive, then in that case, the first part of Section 498A would be made applicable. Drawing our attention to the relevant paragraphs in the judgment of the Hon’ble Supreme Court in the case of GIRIDHAR SHANKAR TAWADE Vs. STATE OF MAHARASHTRA reported in 2002 SCC (Cri) 971, at para Nos. 16 to 18, he submitted that the factual story in the reported decision is aptly made applicable to the case on hand. Hence, looking to the said judgment of the Hon’ble Apex Court, it cannot be said that the prosecution has proved the alleged offence under Section 498A of IPC. He also drew our attention to the evidence of P.Ws.1, 2 and 9 regarding the alleged negotiation in the house of P.W.1 in respect of the marriage between the deceased and accused No.1. But, referring to the evidence of P.Ws.2 and 3, he made submission that their evidence goes to show that the said negotiations or talks took place in the house of accused and not in the house of P.W.1. Regarding the ornaments of 10 tolas of gold said to have been given by the parents of the deceased to the accused, the learned Senior Advocate drew our attention to the evidence of P.Ws.1 and 3 and made the submission that these witnesses have admitted that there is such a customary practice in their community to give the gold ornaments to the bride as well as the bride groom. Even regarding the 10 tolas of gold ornaments, again there is no consistency in the case of prosecution as to whether they were given to the accused No.1 or they were given to the bride or some ornaments to accused and some ornaments to the bride.

Learned Senior Advocate drew our attention to the evidence of P.W.1 and made submission that P.W.1 is a retired employee and earlier to this marriage, he performed the marriage of his two daughters also. Therefore, it is for the prosecution to show the source of income of P.W.1 to perform the marriage of his other two daughters and the financial capacity of P.Ws.1 and 3 to pay such amount of Rs.1.00 lakh at a time to the accused persons. Hence, he submitted that regarding the source of income and the actual payment of Rs.1.00 lakh, there is no acceptable and worth believable material placed on record by prosecution.

So far as the case filed between the couple as against each other, learned Senior Advocate submitted that the case was filed in the year 2005 i.e., three years earlier to the alleged incident. There is no material to show that immediately prior to her death, the deceased was subjected to the ill treatment and harassment so as to abet her to commit suicide. He also submitted that, at this stage, the possibility of the deceased committing suicide has been ruled out in view of the evidence of the witnesses already referred above. Drawing our attention to the documents i.e., the undertaking given before the police and referring to the contents of the said documents, the learned Senior Advocate submitted that the deceased Mamatha was also advised by her parents as well as by the police so also accused No.1 was advised to treat her properly henceforth. Therefore, only on this basis, it cannot be said that the prosecution has established the fact that there was ill treatment and harassment as defined under section 498A of IPC. Hence, he submitted that the judgment and order of conviction passed by the learned Sessions Judge as against accused Nos.2 and 3 for the offence under section 498A of IPC is also not sustainable in law.

Lastly, the learned Senior Advocate submitted that the entire material is to be considered and appreciated by the Court to see the cumulative effect emerging out of the said material. In this connection, he relied upon the decision of the Hon’ble Supreme Court in case of STATE OF PUNJAB VS. PARVEEN KUMAR reported in 2006(2) SCC (Criminal) 146 and submitted that the judgment and order of conviction for the offences of murder and dowry death and the other offences against accused No.1 and also against accused Nos.2 and 3 are illegal and not sustainable in law. Hence, he submitted to allow both the appeals by acquitting accused Nos.1 to 3 for the said offences. He also submitted that as there is no merit in the appeal preferred by the State and hence, the same is to be dismissed.

14. Per contra, learned High Court Government Pleader appearing for the State submitted that the dying declaration under Ex.P.20 is not the declaration made by the deceased on her free will and volition. She submitted that as accused No.1 threatened her that if the deceased made disclosure of accused pouring kerosene and litting fire to her, then he will not spare her children and because of that reason, she made such a declaration. Therefore, the said dying declaration under Ex.P.20 cannot be relied upon by the Court.

The learned HCGP also made submission that materials show that when P.Ws.1, 2, 3 and 10 came to the hospital where the injured was admitted, it was crossing the mid night and it was on 9.9.2008, in the early morning. As the deceased was not in a position to speak and give the statement, again at 7.30 a.m., they went back to the hospital and enquired her, at that time, the deceased made statement that it was the accused person who poured kerosene and lit fire to her. Hence, the learned HCGP made submission that the contention of the other side that the aforesaid witnesses went to the hospital during the night on 8.9.2008 itself is not correct. She drew our attention to the contents of Ex.P.1 and made submission that it clearly goes to show that P.Ws.1, 2, 3 and 10 went to the hospital in the morning at about 7.30 on 9.9.2008.

Learned HCGP further submitted that earlier, the deceased filed maintenance case against accused No.1 wherein the maintenance of Rs.1,700/- per month was already granted to the deceased. Looking to the evidence of P.Ws.1 to 3 and 10, all the witnesses have spoken about the payment of dowry amount and even the independent witnesses have also spoken about the demand and acceptance of the dowry amount by the accused. She made submission that the father of the deceased (P.W.1) in his evidence has deposed that he was having the capacity to pay the dowry amount and the ornaments. Hence, with the help of the evidence of P.Ws.1 to 3 and 10, the prosecution was able to prove even the offences punishable under Sections 34 and 6 of the Dowry Prohibition Act.

It is also the contention of learned HCGP that P.Ws.1 to 3 have spoken about the cruelty meted out by the accused to the deceased Mamatha. In this connection, she drew our attention to the complaint (Ex.P.3) filed by the deceased Mamatha to the CPI, Chennagiri, wherein it was stated that the accused assaulted the deceased and she has taken the treatment. In that connection also, the learned HCGP made submission that the document Ex.P.29 clearly goes to show that the injuries were sustained by the deceased Mamatha.

It is also the submission of the learned HCGP that if it is the contention of the accused that the death is accidental death and as the kerosene oil was leaking out from the kerosene stove and there was accidental fire to the saree of the deceased Mamatha, then the investigation officer could have mentioned in the spot mahazar (Ex.P.2) about the material object – kerosene stove. But in the spot mahazar (Ex.P.2), there is no mention that there was kerosene stove in the house of the accused No.1. This has been noticed by the learned Sessions Judge and hence, the learned Sessions Judge has not relied upon Ex.P.20 to hold that it is an accidental death.

Drawing our attention to the statements of the deceased as well as accused No.1 before the police in the year 2005 and the evidence of the doctor (P.W.18) who treated the deceased in the year 2005, and Ex.P.29 and the history furnished in Ex.P.29, the learned HCGP submitted that it is important for appreciating the case of prosecution as well as the defence of the accused and hence, there was cruel treatment meted out to the deceased. It is also the submission of the learned HCGP that if the burns are accidental burns, then there could not have been the burns on the entire body. The post mortem report goes to show that the entire body was burnt and it is 80% burns.

The learned HCGP further submitted that there was only one dying declaration of deceased stating that accused No.1 poured kerosene on her and lit fire to her and there are no more than one dying declarations as contended by the other side. She submitted that the oral dying declaration implicating accused NO.1 is consistent and no explanation has been offered by the accused as to how the accident has taken place. Hence, all these aspects were considered by the learned Sessions Judge and he rightly came to the conclusion in holding that the accused persons are guilty for the respective offences mentioned above.

Lastly, the learned HCGP submitted that there is no merit in both appeals of the accused and submitted to dismiss the appeals preferred by them. She further submitted that the learned Sessions Judge has also held that the prosecution has proved the offences punishable under Sections 34, and 6 of Dowry Prohibition Act. Therefore, the punishment imposed as against the accused for the said offences is inadequate and not proportionate to the gravity and nature of the offences. Hence, she submitted that the appeal preferred by the State seeking enhancement of the sentence may be allowed.

15. In reply to the arguments of the learned HCGP that the spot mahazar (Ex.P.2) does not contain that there was kerosene stove in the house, learned Senior Advocate counsel for the appellants made submission that looking to the statement of the witnesses, it shows that when the deceased sat on the floor by taking the plate for having the food, at that time, accused No.1 came, poured kerosene and lit fire to her. The investigation officer has also not mentioned in the spot mahazar (Ex.P.2) about the plate used for taking the meals by the deceased which was said to have been lying at the said place. He also made submission that one of the witnesses has spoken that even there was one plastic bucket at the said place. The said plastic bucket has also not been mentioned by the investigation officer in Ex.P.2. Therefore, it is the contention of learned Senior Advocate that if the investigation officer has not mentioned in Ex.P.2 about some of the articles that does not mean that those articles were not there. Hence, he submitted that the said contention of the learned HCGP has no force and the same may be rejected.

16. We perused the grounds urged in the appeal memorandum in all the three appeals, judgment and order of conviction passed by the learned Sessions Judge in respect of accused Nos.1 to 3 wherein accused No.4 has been acquitted and also the grounds in the appeal memorandum of the appeal preferred by the state seeking enhancement of the sentence, the oral evidence of the prosecution witnesses and the documents produced and also the documents marked on behalf of the defence, the decisions relied upon by learned Senior Advocate on behalf of accused Nos.1 to 3 in the respective two appeals and also considered the oral submissions made by the learned Senior Advocate for the appellants so also the learned HCGP for the State.

17. It is the contention of the learned Senior Advocate Sri C.V. Nagesh that the learned Sessions Judge has wrongly convicted the appellant-accused No.1 for the offences punishable under Sections 302 and 304B of IPC. It is his contention that the death is neither homicidal nor suicidal, but it is accidental death. Therefore, it is his contention that the findings recorded by the learned Sessions Judge holding that accused No.1 committed the offences under Sections 302 and 304B of IPC are totally illegal and not sustainable in law. In respect of the said contention, let us examine the materials placed on record.

18. The prosecution has relied upon the dying declaration in the written form produced under Ex.P.20. We have perused the said document Ex.P.20, which was given by the deceased Mamatha recorded by the Taluka Executive Magistrate, Davanagere. Looking to this document, on the top of the said document, the doctor (P.W.13) has endorsed that the injured is competent to give the statement. Below that, he has put his signature dated 8.9.2008 and time is also mentioned by the Doctor as 11.45 p.m. Perusing Ex.P.20, in answer to column No.14 on the over leaf of Ex.P.20, it is mentioned that Mamatha W/o. Kumar, married about four years back and they are having two children and in the house, her husband, children together leading happy life. The relationship between the couple is cordial. The mother-in- law and father-in-law are residing separately. After the meals, she went to boil the milk and curry (saaru). She went to start the kerosene stove and from the hole of the kerosene stove, the kerosene oil came out and she was caught with the fire. As the child was weeping, it was not come to her knowledge that there was fire to her. Thereafterwards, it extended to her whole body. Thereafter, her husband came and tried to extinguish the fire. Her husband and no other persons are responsible for the same. This incident took place accidentally. Therefore, for this situation, no other persons are responsible and she is telling these things. Below that, it is signed in English as CS Mamatha. It also bears an endorsement of the Taluka Executive Magistrate, Davanagere. The date is put as ‘8.9’. It also bears endorsement ‘in my presence, the said statement is recorded’ and below that, it is signed by the doctor which is marked as per Ex.P.20(d). So this document-Ex.P.20 goes to show that the said incident is accidental in nature.

Let us examine the oral evidence of the doctor (P.W.13) and also the evidence of Taluka Executive Magistrate (P.W.26), in whose presence the dying declaration (Ex.P.20) is said to have been recorded.

P.W.13 is Doctor N.G. Jayaprakash, Senior Medical Officer, CG Hospital, Davanagere. He has deposed in his evidence that since two and a half years, he is working in the said hospital as a Senior Medical Officer. In all, there are 28 medical officers. It is a big hospital. Many medico legal cases will be reported from the said hospital. He further deposed that on 8.9.2008, it was his turn to be present at the time of recording the dying declaration. At about 11.15 p.m., from the OPD section, within the premises of their hospital, he received the phone call informing him that in one MLC case, Tahsildar is coming to record the dying declaration and he was informed to come to the hospital. By the time, he reached the hospital, the Tahsildar and Taluka Executive Magistrate Sri Nagahanumayya of Davanagere came to their hospital. When enquired with the Tahsildar, Tahsildar told him that he has to record the dying declaration of one Mamatha C.S. who is admitted in the burns ward in the said hospital. Then they all went to the burns ward. The injured Mamatha having the burn injuries was getting treatment in the said ward. After going there, he talked to Mamatha and enquired with her and he has ascertained from her that whether she is mentally able to answer the questions and whether she is capable to talk and answer to his questions. Mamatha gave the answers properly and perfectly. From her answers, he got it confirmed that she is capable to give her statement. Then he informed to the Tahsildar that Mamatha is capable to give her statement and the Tahsildar can record her statement. Before the Taluka Executive Magistrate proceeding to record the statement, he made an endorsement on the said proforma which was brought by the Tahsildar that the injured is capable to give the statement and below that, he put his signature. Then the Tahsildar enquired with the injured and recorded the statement given by the injured. P.W.13 has deposed that he has seen the said statement which is under Ex.P.20. His signature with the endorsement on the top of Ex.P.20 is as per Ex.P.20(a). He further deposed that in his presence, Mamatha gave the statement before the Tahsildar as to what was stated below column No.14. In para Nos.8 and 9 of his deposition, P.W.13 has also deposed in detail as to what was stated by the deceased at column No.14 of Ex.P.20. The said portion of the statement is together marked as Ex.P.20(b) and he has identified the signature of Mamatha as per Ex.P.20(c) and for that, the Tahsildar put endorsement that in his presence the statement is recorded and he identified it as Ex.P.20(d). P.W.13 has further deposed that at the end of page Nos.2 and 3, the Tahsildar has put his signature by placing the seal there as per Exs.P.20(e) and (f). Looking to the cross examination on behalf of the accused, it was submitted that there was no cross examination.

Let us come to the evidence of P.W.26 – one Sri Nagahanumaiah G.H., who is the Tahsildar and Taluka Executive Magistrate. He has deposed in his evidence in the examination in chief that from 11.4.2008 to 21.11.2008, he worked as Tahsildar and Taluka Executive Magistrate, Davanagere. While he was so working, he received the requisition letter dated 8.9.2008 from Davanagere City Extension Police Station. The said letter is as per Ex.P.36 and his signature is as per Ex.P.36(b). By the said letter, the police requested him to record the dying declaration of Mamatha, wife of Kumar who is getting treatment in the Chigteri District hospital because of the burn injuries. Accordingly, on the same day in the morning, he went to the said hospital and enquired Mamatha from 11.45 a.m. up to 12.00 noon and he recorded her statement. He called the duty doctor Jayaprakash and enquired him as to whether the injured is capable to give the statement. After examining the injured, the doctor confirmed him that she is capable to give the statement. He recorded the statement of Mamatha as per Ex.P.20. In the beginning, Dr. Jayaprakash made an endorsement as per Ex.P.20(a). Then P.W.26 recorded the statement of Mamatha in his own hand writing and he read over the same to Mamatha and obtained her signature and he also put his signature to the same. Dr. Jayaprakash, at the end, again made an endorsement that in his presence, the statement was recorded. The statement given by Mamatha is already marked as per Ex.P.20(b) and her signature is Ex.P.20(c) and signature of the doctor is Ex.P.20(d) and his signature is Ex.P.20(e).

In the cross examination by the accused person, P.W.26 has deposed that looking to the statement of Mamatha under Ex.P.20(b), it is contrary to the statement of Chinnojirao and Gopalakrishna recorded during the inquest mahazar proceedings. He has further deposed that he recorded the statement of Mamatha in the form of dying declaration on 8.9.2008 in the night from 11.45 to 12.00 hours. When the document at Exs.P.30, P.32 and P.36 were shown to P.W.26, after seeing those documents, he said ‘yes’. It was suggested that the inquest mahazar (Ex.P.4) was not prepared correctly, but the saidsuggestion has been denied by the witness. The witness has also denied that Ex.P.4 was prepared mechanically. He has further denied the suggestion that in order to falsify the truth of the statement of the injured Mamatha given under Ex.P.20(b) and to defeat the same, thereafterwards, Ex.P.4 has been created.

19. Even looking to the oral evidence of the Doctor (P.W.13) and the Taluka Executive Magistrate (P.W.26), it is consistently deposed that the statement of the deceased Mamatha was recorded by Taluka Executive Magistrate (P.W.26) in the presence of the doctor (P.W.13) and even before the commencement of recording of the said statement, P.W.26 obtained the opinion of P.W.13 as to whether the deceased Mamatha was capable to give such statement or not. P.W.13 after examining the deceased Mamatha confirmed that she was capable to give such statement and the same he had informed to the witness P.W.26 and to that extent; there is endorsement on the right top corner of Ex.P.20. Therefore, this goes to show that every care has been taken by the Taluka Executive Magistrate (P.W.26) before recording the statement of the deceased under Ex.P.20.

Looking to the cross examination, doctor (P.W.13) was not at all cross examined as the counsel submitted that there is no cross examination. Therefore, the evidence deposed by the doctor (P.W.13) remains unchallenged. Even so far as the cross examination of Taluka Executive Magistrate (P.W.26), he has consistently deposed about he recording the statement of the deceased Mamatha on 8.9.2008 at 11.45 p.m. to 12.00 mid night. It is no doubt true that in his examination in chief though P.W.26 has deposed that he went to the hospital in the morning and recorded the statement at 11.45 a.m. to 12.00 noon but when the documents were shown to the witness in the cross examination, he has confirmed that it was on 8.9.2008 in between 11.45 p.m. to 12.00 mid night. Therefore, with regard to the day and time of recording of the dying declaration of the deceased Mamatha has also been established with satisfactory and cogent material produced by the prosecution. Therefore, there is nothing on record to disbelieve the document Ex.P.20, the oral evidence of P.Ws.13 and 26 in connection with the dying declaration of deceased Mamatha.

20. No doubt, during the course of arguing the case, the learned HCGP submitted that the dying declaration under Ex.P.20 given by Mamatha was not at all given on her free will and volition and it is induced by the threat posed by accused No.1 while taking her to the hospital in an auto rickshaw of P.W.8 that she has to tell that the incident is accidental in nature and she should not tell that it is he who poured the kerosene and lit fire to her. In case, she tells before anybody that it was accused No.1 who poured kerosene and lit fire to her, then in that case, he will not spare her daughter and going to kill thedaughter also and because of the said fear, the deceased Mamatha made such a statement before the Tahsildar under Ex.P.20. But to support this contention, the prosecution has not placed any material, even the prosecution has not treated P.Ws.13 and 26 as hostile witnesses at least to make the suggestion that the dying declaration under Ex.P.20 is not of the free will and volition of the deceased Mamatha and it is because of the said threat induced to her by accused No.1 and the document Ex.P.20 is a concocted document. Unless and until, there is some material brought on record to show that the dying declaration under Ex.P.20 is the result of such inducement, the contention of the learned HCGP cannot be accepted at all.

21. Regarding the contention that the dying declaration (Ex.P.20) of the deceased was the out come of the threat given to her by accused No.1 as contended, let us examine the oral evidence of the driver of the auto rickshaw (P.W.8) in whose auto rickshaw, the injured sent to the hospital accompanied by accused No.1. It is no doubt true that it is the contention of the prosecution that one Hanumanthappa (P.W.11) also travelled in the said auto rickshaw and he has heard accused No.1 giving the threat to the deceased to give the statement in such a fashion as it is recorded under Ex.P.20.

One Venkatesh (P.W.8), who is the driver of the auto rickshaw, has deposed in his evidence that by the side of his house, the accused Kumar along with his wife and children was staying in a rented house. The deceased Mamatha is the wife of Kumar and on the date of the incident at 10.00 p.m., when he slept in his house, he was made to woke up stating that in the neighbouring house, there was incident of burns. He came outside and the accused Kumar after covering the body of his wife with the rug brought her outside. She sustained burn injuries. P.W.8 has further deposed that in his auto rickshaw, accused No.1 took deceased to Davanagere C.G. Hospital. He was the driver of the auto. People gathered there were talking that because of the stove burst, there was fire to her. The police recorded his statement. He does not know that before the incident, accused Nos.2 to 4 coming to the house of accused No.1 and picking up quarrel with deceased Mamatha. This witness was treated as hostile and when cross examined by the Public Prosecutor, he denied the suggestion that on the date of the incident at about 8.00 p.m. accused Nos.2 to 4 came to the house of accused No.1 and along with accused No.1, they picked up quarrel with the deceased Mamatha stating that she made them to attend to the Court. He denied the further suggestion that by making such galata, accused Nos.2 and 3 went out of the house. He has further deposed that he does not know that after they went out, there was quarrel going on between the husband and wife. He denied the suggestion that after hearing the said galata and after some time, they heard the screaming voice of Mamatha and went there and knocked the door andforcibly they pushed and made the door to open. He denied the further suggestion that at that time, himself, his son Raju and one Hanumanthappa were present, he denied the further suggestion that thereafter when the door was tapped, Mamatha came out having the flames on her body and it is they who extinguished the fire. He denied the suggestion that though he has given his statement before the COD investigation officers under Ex.P.16, but at the instance of the accused, he is giving false evidence. He also deposed that he has not gone inside the house of the accused in order to ascertain about the bursting of the stove. He denied further suggestion that at the instance of the accused persons, he is falsely deposing that the fire to Mamatha is because of the stove burst.

22. So looking to the evidence of the driver of auto rickshaw (P.W.8) in whose auto, the deceased was taken to the hospital by accused No.1 Kumar he never stated in his evidence that while so going accused No.1 posed life threat to the injured Mamatha that she has to give statement that the fire is an accidental fire to her and not to tell before anybody that it is he poured kerosene and lit fire to her. And further he threatened her that incase she tells the truth before anybody he will not spare the daughter and he will kill the daughter also.

23. Another witness as per the prosecution case in this regard is one Hanumanthappa (P.W.11), the neighbour, who is also said to have traveled in the auto rickshaw of P.W.8. Perusing the evidence of the said Hanumanthappa, he has deposed in his evidence that he knows all the four accused persons. His house is at 2nd main 9th Cross, Vinoba nagar, Davanagere. About three years back, the accused persons took the said house on mortgage. In the said house, accused No.1 Kumar and his wife and children were staying. Accused Nos.2 to 4 coming to the said house often and going back. When thecouple was staying in the house, they were alright. But on 8.9.2008 at 8.00 p.m. there was galata going on in the house of accused No.1. The injured Mamatha was screaming. The neighbours went there and tapped the door. Accused No.1 Kumar came and opened the door. They saw the fire on the whole body of the wife of accused No.1 and the body was burning. They extinguished the fire with the help of the bed sheet. Then they sent the injured in an auto rickshaw to the government hospital. In the said auto, Venkatesh (P.W.8), his son and another Manjunath also went. In the meantime, accused No.3 Eeroji Rao came there. Then himself and said Eeroji Rao went to the hospital. Then they and accused persons phoned to the father of the deceased and informed about the same calling him to come immediately. Accused No.1 was in the hospital. After some time, the family members of the deceased came and he consoled them. Then, he came back to his house. When the fire took place, accused No.1 Kumar, his wife and two children were inside the house. After the door was opened by accused No.1, they have seen the fire. While getting the treatment and after 2-3 days after the incident, Mamatha expired in the hospital. He has further deposed that as the door was closed, it was not known to them as to whether Mamatha set fire to herself or accused No.1 set fire to her. When CID police enquired him, he gave the statement. Prior to that when other accused persons came to the said house, he has not seen any galata going on. The prosecution requested the Court to treat this witness as hostile witness. Accordingly, he was treated as hostile witness and cross examined by the Public Prosecutor.

In the cross examination, P.W.11 has deposed that he has not given the statement before the police as per Ex.P.18 and P.18(a). He has also deposed that he has not stated before the police that at that time, himself and his neighbour Venkatesh and husband of Mamatha by name Kumar, all together took Mamatha in the auto rickshaw of Venkatesh (P.W.8) and went to C.G. Hospital at Davanagere and on the way, accused No.1 threatened Mamatha that she should not tell before anybody that accused No.1 poured kerosene and lit fire to her and in case, she tells as such, then he will set fire to her daughter also and burn her. P.W.11 has further deposed that he has also not stated before the police that accused told deceased that she should tell that when she was starting the kerosene stove, at that time, the fire caught her and stating so, the accused threatened her and thereafter, they took the deceased to C.G. hospital and admitted”. He has not stated so before the investigation officer as per Ex.P.18(b). Therefore, looking to this evidence of Hanumanthappa (P.W.11), the neighbour, he has also not supported the case of prosecution that in his presence, accused No.1 threatened the deceased while traveling in the auto rickshaw. But on the contrary, the evidence of P.W.11 goes to show that he has not at all traveled in the said auto rickshaw. Therefore, the contention of the prosecution that because of such threat posed by accused No.1 to deceased, she gave the statement under Ex.P.20 before the Taluka Executive Magistrate. Therefore, it is not her dying declaration given voluntarily and of her free will and volition and it is not supported by any such material. Therefore, the argument of the learned HCGP in respect of the written dying declaration (Ex.P.20) and the evidence of P.Ws.8, 11, 13 and 26 are against the prosecution case itself. Therefore, the contention of HCGP cannot be acceptable.

24. It is also the case of prosecution as per the evidence of one of the witnesses i.e., Hanumanthappa (P.W.11) that in the auto rickshaw, the injured was sent along with Venkatesh (P.W.8-the driver of the auto), his son and another Manjunath. Therefore, it is necessary to refer to the evidence of P.W.6-Manjunath and P.W.7-Raju, the son of driver of the auto rickshaw-Venkatesh. Looking to the evidence of Manjunath (P.W.6), he has deposed that during that night, when they were having the dinner, at that time, there was galata going on and after hearing the same, he came out. In front of his house, there was the house of the accused. When they saw, the accused Kumar and his wife came, and the entire body of deceased was burnt. While coming out, they themselves put the bed sheet on the body of the deceased. He has further deposed that the accused Kumar took the deceased to the hospital in an auto rickshaw. He also went on his bike. When enquired, he came to know that because of the burst of the stove, there were the burn injuries. The police have not recorded his statement. So this witness was also treated as hostile. When examined by the Public Prosecutor, he denied the suggestion that he extinguished the fire and he also traveled in the auto rickshaw of Venkatesh (P.W.8).

Coming to the evidence of Raju (P.W.7), he has deposed in his evidence that by the side of his house, the accused was staying in a rented house with his wife and children. He does not know as to how the husband and wife were living when so staying. He does not know that there used to be quarrel between them. On the date of the incident, at about 10.30 p.m., there was galata in the house of Kumar. When he went to the said house, the door was being tapped. 4-5 persons were present there. Then he went back inside his house. Later, he came to know that it was the case of burning. The police as well as COD police enquired and recorded his statement. At the request of the Public Prosecutor, this witness was also treated as hostile and when cross examined, nothing has been elicited from his mouth to show that he had also traveled in the auto rickshaw of his father (P.W.8) along with injured and accused No.1, and at that time, accused No.1 gave threat to deceased that she should not tell that he poured kerosene and lit fire to her and she should say before the others that it was the case of accidental burns. Therefore, these are all the materials so far as the dying declaration under Ex.P.20 recorded by the Taluka Executive Magistrate (P.W.26) in the presence of doctor (P.W.13).

25. We have also referred to the relevant material in the evidence of the witnesses with regard to the contention of the prosecution that the dying declaration given under Ex.P.20 is not voluntary and not because of free will and volition. The contention of the prosecution is against their own material that the dying declaration under Ex.P.20 is not voluntary and because of free volition. Therefore, such contention cannot be accepted.

26. Apart from the written dying declaration, there is more than one oral dying declaration of the deceased, even according to the case of prosecution. Let us refer to the materials placed on record in this regard.

Siddoji Rao (P.W.1), is the complainant and father of the deceased. He has deposed in his evidence in the examination in chief that on the date of the incident during night at 9.45 hours, accused No.1 came to his house and at that time, his wife Anitha called him for the meal and accused No.1 told the deceased Mamatha that he already had the meal and asked the deceased Mamatha to have the meal. When the deceased sat to have the meal, at that time, the accused poured kerosene on her body and lit fire to her. This was told by Mamatha when he enquired with his daughter.

Kubendroji Rao (P.W.2), who is the relative of P.W.1 and the deceased, has deposed in his evidence in the examination in chief, at para No.10 of his deposition, that at that time, they spoken to the deceased and she was in a position to talk and she spoke to them and told before them that the family members of her husband poured kerosene oil on her body and set fire to her. When they enquired as to what had happened further, she told that her husband Kumar, father-in-law Eeroji Rao, mother-in- law Shantha Bai and sister-in-law Gunavathi, they all burnt her.

Smt. Padma (P.W.3), the mother of the deceased Mamatha, has deposed in her evidence in the examination in chief at para Nos.16 and 17 that during the night itself, Kubendroji Rao (P.W.2), Chennaveeroji Rao, Shivaji Rao, herself and her husband (P.W.1) came to C.G. Hospital at Davanagere. They saw Mamatha was getting treatment in the said hospital for the burn injuries sustained and she was not having the consciousness. After one hour, she talked with them properly. P.W.3 has further deposed that Mamatha also told that during the night when she sat for having the meal, at that time, her husband poured kerosene on her body and lit fire to her. Two days Mamatha was alive and thereafter, while getting the treatment, she succumbed to the burn injuries in the hospital.

Ningoji Rao (P.W.9) has deposed in his evidence in the examination-in-chief that in the year 2008, he came to know that husband of the deceased set fire to her.

C.K. Revanna (P.W.10) has deposed in his evidence in the examination-in-chief that after the mother-in-law, father-in-law and the sister-in-law of the deceased went from the house of the deceased; the deceased called her husband to have the meal and at that time, accused No.1 told her that he had the meal and asked her to have the meal. At that time, the deceased went inside and she put the food in the plate and sat for having the meal. At that time, accused No.1 brought kerosene oil in a plastic bottle poured on the body of the deceased and then, set fire to her. In para No.10, P.W.10 has also deposed that they were informed that at about 8.30 p.m., galata was going on in the house of Kumar. Therefore, they had the suspicion that accused No.1-Kumar might have poured the kerosene and lit fire to the deceased Mamatha.

In addition to the oral evidence of the above said prosecution witnesses, the prosecution has also relied upon the documentary evidence, Ex.P.27 and Ex.D.1, wherein on page No.2 of the said document in the last paragraph, it is mentioned that immediately, the complainant went nearby the house and enquired with the neighbours and came to know that accused No.1 Kumar, his parents and his sister, together poured kerosene and lit fire to the deceased Mamatha.

This is all the evidence of the prosecution in support of the contention of the prosecution that it is the homicidal death.

27. It is also the contention of the prosecution that it is a suicidal death. There is a charge under Section 304-B of IPC that because of the ill treatment meted out to the deceased Mamatha in connection with the payment of remaining dowry amount of Rs.50,000/-, she committed suicide and hence, it is a dowry death as per the contention of the prosecution. In support of this contention that it is the suicidal death, the prosecution has led the evidence.

Ningoji Rao (P.W.9) has deposed in his evidence in the cross examination at para No.4 that he has not stated before the investigation officer that the previous day night at 9.00 p.m., the deceased informed that she poured kerosene on herself and lit fire to herself. He has not stated accordingly as per Ex.D.6.

C.K.Revanna (P.W.10) has deposed in his evidence in the cross examination at para No.3 that he has not stated before the police that as the ill treatment becomes untolerable, the previous day at about 9.00 p.m., the deceased poured kerosene on herself and lit fire to herself and he has not stated that the deceased Mamatha told before him as such, as per Ex.D7.

28. The prosecution also wanted to rely upon the documentary evidence regarding the suicidal death i.e., Ex.P.21 – the MLC register extract. In the said document, in front of H/o – it is mentioned suicidal burn. So also, the another document at Ex.P.32 wherein also, in front of H/o, it is mentioned as suicidal burn.

But it is the contention of the defence that the incident in question is neither homicidal nor suicidal but it is the accidental in nature.

29. Before proceeding to appreciate the evidence of the prosecution witnesses regarding the oral dying declaration of the deceased so also some documents produced by the prosecution, let us have the clear idea about the dying declaration.

The basis of the rule as to dying declaration was explained in the early case of R Vs. WOOD COCK (1789 1 Leach 500: 168 E.R.352 (page No.160). The brief facts of the case in the said reported decision are that, the prisoner was charged with the murder of the wife. Her statement as to circumstance of death was recorded by a magistrate. Death came 48 hours after this. She consistently and rationally repeated the circumstances of the ill treatment meted out to her. But she remained conscious till the last moment and did not seen at all to be aware of her approaching dissolution.

Holding the statement to be relevant Eyre C.B. first explained the general principle;

The general principal on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this word is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth.

So this is the general principle explained by Eyre C.B. Therefore, solemnity is the basis that the court can rely upon the dying declaration. Therefore, the dying declaration if satisfactorily proved that it is truthful, voluntary and reliable, then it can be the sole basis for conviction without seeking any corroboration as laid down in Section 32(1) of the Indian Evidence Act. But at the same time, the Court has to keep in mind that dying declaration is a statement made by the declarant not on oath and the person making the dying declaration not subjected to cross examination also. Therefore, the Court will have to be cautious before accepting the dying declaration that it is worth believable. Keeping these principles in mind, let us examine the oral evidence led by the prosecution to which we have already made our reference above.

Regarding the said oral dying declarations, even with regard to the contention of the prosecution that it is the homicidal death of deceased Mamatha, there is no consistency, one witness is deposing that it is accused No.1 Kumar, the husband of Mamatha poured kerosene and lit fire to her. The another witness is deposing that it is all the four accused persons poured kerosene on Mamatha and lit fire to her. Looking to the evidence of P.Ws.9 and 10 as per Exs.D.6 and D.7, it goes to show that the deceased made the statement before the said witnesses that it is she herself poured kerosene and lit fire on her. No doubt P.Ws.9 and 10 have deposed in the cross examination that they have not given a statement before the investigation officer as per Exs.D.6 and D.7. But looking to the evidence of the investigation officer, the defence has not confronted those portions of evidence under Exs.D.6 and D.7 to know from the investigation officer that whether the witnesses have stated so or not.

But apart from that, looking to the very evidence of P.W.1, the complainant who is the father of the deceased, in the oral evidence he has deposed that when he enquired his daughter Mamatha, she told him that when she was having the meal, her husband poured kerosene and lit fire to her. Whereas, in the complaint Ex.P.1, P.W.1 has deposed that on 8.9.2008, at 10.15 p.m., his son-in-law accused No.1 phoned and informed him that there is a small burn injury at the thigh portion to Mamatha and he need not worry and he can come in the morning. But as he was afraid, he immediately arranged one vehicle and himself and his wife and his son Shivaji Rao and his nephew another Shivaji Rao and Kubendroji Rao and member Revanna (P.W.10), came in the midnight to C.G. hospital Davanagere. Mamatha was admitted in ward No.73, the entire body was burnt, skin was peeled off and she was not in a position to speak and she was struggling. It is also mentioned in the complaint (Ex.P.1) that on 9.9.2008 at 7.30 a.m., they went to see Mamatha and asked as to what had happened to her. She told before them that her husband, mother-in-law Shanthamma, father-in-law Eeroji Rao and Sister-in-law Gunavathi insisted her to bring the dowry amount and gave physical and mental ill treatment to her. When it became intolerable, on the previous day at 9.00 p.m., she poured kerosene on herself and lit fire to herself.

Ex.P.27/Ex.D.1 is the complaint about which we have already made the reference that it is all the four accused persons poured kerosene and lit fire to the deceased. Looking to these materials by P.W.1 himself, there are three versions and there is no consistency and totally, they are contradictory of each other. So also looking to the evidence of P.Ws.2, 3, 4, 9 and 10, again there is inconsistency with the oral evidence of P.W.1 so also the contents of Ex.P.1 the complaint and Ex.P.27, another complaint submitted before the office of the Tahsildar.

30. Apart from this, if we look into the documents, MLC register extract (Ex.P.21) so also the MLC card (Ex.P.32) issued from Chigteri District Hospital Davanagere, in both these documents, in front of the column H/o. originally, it was written as accidental. But the word ‘accidental’ has been scored out and above that, it is mentioned as ‘suicidal burns’. For making such corrections, there is no initial of anybody. There is no explanation offered by the prosecution as to who made such corrections, why it was made and at what point of time, the said correction was made. Absolutely, no material has been placed by the prosecution. Therefore, this itself raises a doubt in the mind of the Court as to why such a correction has been made scoring the word ‘accidental’ and above the same making a mention as ‘suicidal burn’. If it is presumed that in Ex.P.21, the MLC extract, through over sight it is written so, but the said mistake cannot be in all the other documents also. When the investigation officer was asked about this correction, during the course of cross examination, the witness though admitted that there were such corrections made, but he has not investigated as to who made such correction and why the correction was made. Looking to the evidence of P.W.33-investigation officer it is clear that he verified Ex.P.21, after recording the evidence of Dr. Ganesh Babu. The investigation officer has further deposed that while writing the history, Dr. Ganesh Babu, originally written as ‘accidental’ and then, he scored it and above that, he has written ‘suicidal burns’. The witness admitted it as true. Similarly in Ex.P.32, while writing about the history, the witness admitted that firstly it was written as ‘accidental’ and then it was scored out and above that, it was mentioned as ‘suicidal burns’ as per Ex.P.32(c). In Ex.P.33 on page No.1, at the downwards, at the complaint column in front of H/o. it is written as ‘suicidal burn’. Therefore, the documents Exs.P.21 and P.32 so also P.33 go to show that the corrections are made in the said documents and in place of ‘accidental’ it is mentioned as ‘suicidal burn’.

As per the evidence of P.W.33-investigation officer during the course of cross examination, he has also deposed and admitted that in Ex.P.50 in front of H/o., it is written as ‘accidental burns’ and it is still as it is. Therefore, the documents Exs.P.21, P.32 and P.50 are consistent with Ex.P.20-the dying declaration and the oral evidence of the doctor (P.W.13) and Taluka Executive Magistrate (P.W.26) who recorded the dying declaration under Ex.P.20. We have also perused the decision relied upon by the learned Senior Advocate in case of SANJAY Vs. STATE OF MAHARASHTRA reported in (2007) 9 SCC

148. In para No.16, Their Lordships have held as under:

“In our opinion, in view of the different dying declarations, it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot be said in this case that the prosecution has proved the appellant’s guilt under section 306 IPC of abetting the suicide beyond reasonable doubt.”

31. We have also perused the decision in case of CHINNAMMA Vs. STATE OF KERALA reported in (2004)12 SCC 244. In para No.6 of the said decision, Their Lordships have held as under:

“6. We will now examine the contents of the second dying declaration, Ex. P-10 recorded by the Magistrate on 14.7.1989. It should be noted here that this was a statement recorded about six days after the incident in question during which time she was being looked after in the hospital by her father and other relatives.

This statement of the deceased was recorded in the presence of the Duty Doctor who had certified her to be conscious and coherent to give a statement. In this statement which is in the form of questions and answers, the deceased told the Magistrate that on last Saturday (8.7.1989), she took food for piglings from the kitchen of her husband’s house, and as soon as she entered the kitchen, she got a beating on the back of her head. That was by her sister-in-law whose name is Chinnamma. She then fell down and became unconscious.

She then states that while she was unconscious, the flames started and there was smell of kerosene. To a question asked by the Magistrate, she states that it was her sister-in- law who beat her, therefore, she suspects that her sister-in-law set her body on fire. While answering a question as to who all were attending on her, she said that her father, mother, two brothers, two sisters and her husband were attending on her. In regard to the reason for the attack, she states that there was some talk that she had done some evil magic on her husband; therefore, her husband was not loving his sister (the appellant) after their marriage. A careful consideration of this dying declaration made about fourteen days before her death, shows that in this statement she states that when she entered the kitchen, she was struck on the back of her head which she assumes was by her sister-in-law (the appellant). She then states that she became unconscious thereafter and when she regained consciousness, she saw flames and smelt kerosene. She also says that she suspected her sister- in-law of having set her on fire. The motive given for this attack by the appellant in this dying declaration was that the appellant had suspected the deceased of having cast certain evil magic on her husband because of which he stopped loving his sister, the appellant. A comparison of these two dying declarations, in our opinion, shows certain glaring contradictions. In the first dying declaration, we have noticed that there was an incident on the previous day when she desired to go to her mother’s house and got dressed up for the same. Her husband did not allow her to go to her mother’s house. But the next day, when she got dressed again to go to her mother’s house, the appellant came and standing behind her, hit her on the back of her head when she fell on the floor and she saw the appellant taking kerosene which was kept in the room and pouring it on her chest and thereafter she felt the heat and ran outside the house and fell unconscious. The factum of she having seen the appellant taking out the kerosene from the room and pouring the same on her was not spoken to by her in her second dying declaration. This fact has some relevance while appreciating the correctness of the two dying declarations because if really she was conscious and had seen the appellant take the kerosene and pouring the same on her, she would not have forgotten to mention it again in her second dying declaration. Again, while she was certain that it was her sister-in-law (the appellant) who poured the kerosene on her and set her on fire as per her first dying declaration; in the second dying declaration, she was not so sure because she says that she only suspected the appellant of having set her on fire. This is because she had earlier stated in that statement that she became unconscious when her sister-in- law had hit her on the head. Even the motives given in the two dying declarations are entirely different. These contradictions, in our opinion, create grave suspicion in our minds whether the injury suffered by the deceased was really because of the act of the appellant or was a figment of the imagination of the deceased. This suspicion of ours becomes all the more stronger if we notice the evidence of PW-11 who treated her in the first instance when she was taken to Kanjirappally Hospital. It is seen from the wound certificate Ext. P-11 given by this doctor that when he examined the deceased for the first time at Kanjirappally Hospital, she stated that she suffered the injury due to accidental burning while preparing food for the piglings. This very important aspect of the case was rejected by both the courts below on the ground that the entry made in the wound certificate might not have been a correct entry because the witnesses who took her to the hospital, had stated that she was not in a fit condition to talk. But then we should remember that this is an entry made in a document regularly maintained and the doctor had no reason whatsoever to make an incorrect entry, and no question was asked to this doctor when he was in the witness box as to the correctness of the entry, therefore, due weight should be given to the contents of this wound certificate and the courts below ought not to have rejected the same on the basis of oral evidence given by certain witnesses. It is also very relevant to mention here that the deceased was prevented from going to her mother’s house by her husband on 7.7.1989 and the deceased being adamant in spite of protest from her husband, had decided to go to her mother’s house again on 8.7.1989 which indicates that there may be reasons other than the alleged enmity entertained by the appellant for suffering by the burn injuries which ultimately led to her death. From the material on record, we are also unable to find any strong motive which would have induced the appellant to commit such a heinous crime of burning her sister-in-law to death. The conduct of the appellant in being present with the deceased right through the journey to the hospital also indicates otherwise. There is another important aspect of the case which was not considered by the two courts below properly i.e. it is the case of the deceased that she was beaten on the back of her head with a firewood, consequent to which she fell down and had lost her consciousness. Though during the course of inquest of the dead body, it was noticed that there was a contusion on the head, the doctor who examined the deceased before she died as also the doctor who conducted the post mortem, did not notice any such injury on the head which indicates that the first part of the attack on the deceased by the appellant could be concocted. At any rate, the prosecution has failed to establish the first part of the attack by the appellant on the head of the deceased. Learned counsel appearing for the State, however, contended that because of the burn injuries, the doctors might not have noticed the head injury caused by the attack with a firewood on the head of the deceased. We have perused the medical report which shows that all the burn injuries suffered by the deceased were below the neck and on the limbs and so far as the head is concerned, there was no burninjury. The absence of any injury at the back of the head of the deceased as also non-recovery of the firewood which was used in the assault on the deceased indicates that the first part of the dying declaration is not true. In this background, the second part of the dying declaration that she fell down and became unconscious also cannot be believed. These discrepancies would indicate that her statement made to the doctor, PW-11 that she suffered burn injuries accidentally while cooking becomes more probable. Be that as it may, the abovementioned facts create a doubt in our mind as to the truthfulness of the contents of the dying declaration as also the possibility of she being influenced by her parents in making the dying declaration cannot be ruled out”.

32. We have also perused another decision relied upon by the learned Senior Advocate in case of MEHIBOOBSAB ABBASABI NADAF Vs. STATE OF KARNATAKA reported in (2007)13 SCC 112, the relevant paragraph is para No.7, wherein Their Lordships have held as under:

“Conviction can indisputably be based on a dying declaration. But before it can be acted upon, the same must be held to have been rendered voluntarily and truthful. Consistency in the dying declaration is the relevant factor for placing full reliance there upon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value, caution, in this behalf, is required to be applied.”

33. We have further perused another decision of the Hon’ble Supreme Court in case of KAMLA VS. STATE OF PUNJAB reported in (1993)1 SCC 1. Para No.8 of the said decision is relevant, which reads as under:

“8. If we examine all these dying declarations one by one we notice glaring inconsistencies as to who exactly poured kerosene oil ad set fire or whether she caught fire accidentally. Suicide however is ruled out. In Ex. PB/2 recorded by P.W. 2 the deceased stated that her mother-in-law sprinkled kerosene from behind and burnt her. In the next statement Ex. DA recorded by Dr. Jaison Chopra, C.W. 1, she is alleged to have stated that her clothes got burnt catching fire from the stove, thereby indicating that it was an accident. In the third statement Ex. PJ recorded by C.W. 2 she was rather vague as to who exactly poured kerosene and set fire on her and she only stated that it could be possible that her mother-in-law and father-in-law might have set the fire after pouring kerosene oil. On September 30, 1979 Ex.PD was recorded in the presence of three doctors, P.W. 7, P.W. 3 and C.W.I wherein she stated that she turned to the store and she heard her mother-in-law and father-in-law talking behind her and suddenly they poured kerosene and they set her on fire. The trial court and the High Court discarded the other statements and relied only on Ex.PB/2 recorded by P.W. 2 wherein she implicated only her mother-in-law. So far Ex. DA recorded by C.W.I is concerned, the High Court pointed out that C.W. 1 was also present when Ex.PD was recorded and that at any rate there was no occasion for C.W. 1 to record such statement and that he must have done the same at the instance of the accused. After having carefully examined the record and facts and circumstances, we do not think that a remark of this nature against C.W. 1, a responsible doctor is called for. The mere fact that C.W. 1 Dr. Jaison Chopra was present when Ex. PD was recorded on the next day does not necessarily mean that he could not have recorded Ex. DA-on the previous day. As a matter of fact, even in Ex. PD recorded by a team of doctors, she implicated both mother-in- law and father-in-law whereas in Ex.PB/2 she implicated only her mother-in-law. This itself shows that she was bent upon implicating both of them at a later stage. In this context it is also noteworthy that D.W. 2, the husband of the deceased supported the plea of the accused. He deposed that both the accused namely his mother and father were away to Dandi Swami Mandir on the day of occurrence and that at about 8.15 A.M. he heard the shrieks raised by the deceased from the kitchen. He picked up a blanket and went running into the kitchen apprehending that she might have caught fire due to busting of the gas cylinder. He covered her with the blanket and brought her out and his clothes also caught fire and he became unconscious and regained consciousness in the hospital. In the cross-examination by the prosecution he denied the suggestion that he made a false statement with a view to save his parents. The deceased in all her dying declarations has clearly stated that her husband namely D.W. 2 came and rescued her. Therefore, D.W. 2’s evidence cannot simply be brushed aside on the ground that he might have given such a version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also the version given in the statement made before C.W. 1 in Ex. DA that it was due to accident, is not improbable. In Ex. PJ she only expressed a suspicion against both her mother-in-law and father-in-law. The accused examined D.W. 1 Satpal an attesting witness of the statement Ex. PJ. He supported the defence version. Thus it can be seen that there are glaring inconsistencies in these dying declarations. Both the courts below, however, held that P.W. 2 Dr. Rupinder Singh is a reliable and independent witness, therefore the statement recorded by him has to be accepted and accordingly convicted the appellant. We must observe that P.W. 2 simply recorded the statement of the deceased but the contents of that statement have to be subjected to a close scrutiny in the light of many other circumstances since the conviction has to be based on the sole dying declaration Ex.PB/2. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars. Just like P.W. 2, P.W. 7, P.W. 3 and C.W.I are also respectable doctors and independent witnesses who spoke about the contents of Ex. PD in which she implicated both her father-in-law and mother-in-law specifically as having participated in the crime. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation we just cannot pick out one statement namely Ex.PB/2 and base the conviction of the appellant on the sole basis of such a dying declaration. The courts have cautioned that in view of the fact that the maker of the statement cannot be cross-

examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her. The inconsistency between Ex.PB/2 and Ex. PD is enough to manifest the same. That being so, we do not think that either Dr. Jaison Chopra, C.W. 1 or S.I. Vidya Sagar, C.W. 2 who claimed to have recorded Ex. DA and Ex. PJ should be blamed. Having given our earnest consideration, we feel that under these circumstances it is highly unsafe to convict the appellant on the sole basis of the dying declaration Ex.PB/2 recorded by P.W. 2. In the result the conviction and sentence passed against the appellant are set aside and the appeal is allowed. If she is on bail, her bail bonds shall stand cancelled”.

34. We have also perused one more decision reported in case of STATE OF PUNJAB VS. PARVEEN KUMAR reported in 2006(2) SCC (Criminal) 146. The relevant paragraph is para No.10, which reads as under:

“While appreciating the credibility of the evidence produced before the court, the Court must read the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serous doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case, stand by themselves, there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah Vs. State of Mysore and Kushal Rao Vs. State of Bombay. “

35. Therefore, looking to the above referred decisions of the Hon’ble Apex Court cited by the learned Senior Advocate and also the principles enunciated in the above said decisions, after perusing the material, we are of the opinion that so far as the oral dying declarations, said to have been made by the deceased Mamatha in front of the prosecution witnesses referred above, there is total inconsistency, they are self contradictory and they are not said to be truthful and not worth believable. The said oral dying declarations will not inspire confidence of this Court. Therefore, they cannot be relied upon in convicting the accused persons. The written dying declaration under Ex.P.20, coupled with the oral evidence of P.Ws.13 and 26 so also the documents Ex.P.21 and P.32, is reliable that it is the dying declaration made by the deceased Mamatha, wherein it is stated that she caught fire accidentally to her saree when she was boiling the milk and curry and as the boy was weeping and attention was drawn towards him, the fire covered her entire body. There is no reason for us to disbelieve the evidence of P.Ws.13 and 26 as the prosecution itself has relied upon their evidence. Ex.P.20 has been proved with the help of worth believable material and it rules out the possibility of the death either as homicidal or suicidal but it is because of the accidental burns.

36. We have perused the evidence of C.K. Revanna (P.W.10). In his examination in chief, at para No.12, P.W.10 has deposed that from there, at 11.30 a.m., P.W.1 came to women’s police station and he lodged one complaint. The PSI after receiving the said complaint, asked P.W.1 that he can wait nearby the hospital and he will send his staff. Thereafter, at about 12.30 noon, two police constables came to hospital. At that time, Mamatha stated before the police in detail as to what had happened. To the said statement, the police obtained her signature and went back to the police station. Therefore, this is another dying declaration said to have been given by the deceased Mamatha in detail and her signature is also obtained to the said statement. But it has not been produced before the Court to make it clear to the Court to know as to what had been stated by the deceased Mamatha in the said statement. In this connection, the defence has also cross examined the investigation officer (P.W.33) who has deposed in his evidence that when he took up the file of the investigation, the women police station diary and the statement of the deceased were not at all in the file. Therefore, the oral evidence of the investigation officer also makes it clear that the statement given by the deceased before the women police which wasin detail and which was signed by her has been ultimately suppressed by the police and not produced before the Court. Therefore, it raises a reasonable doubt in the mind of the Court as to the case of the prosecution that it is either homicidal death or suicidal death. Apart from that, an adverse inference has to be drawn against the case of prosecution under the provisions of Indian evidence Act that had they produced the said statement, the contents of the statement of Mamatha would have gone against the case of prosecution and that was the reason, they have withheld the said document.

37. There is also charge against the appellant- accused No.1 that he along with that all the other accused persons including accused No.4 Gunavati who has been acquitted from the case were giving physical and mental harassment to deceased Mamatha in connection with the additional dowry amount of Rs.50,000/-.

38. Let us examine the material produced by the prosecution to ascertain whether the prosecution has placed cogent and acceptable material in proof of the charge and whether the learned Sessions Judge is correct in relying on such material and coming to the conclusion that prosecution proved the charge for the offence under Section 498A of IPC.

P.W.1 Siddojirao is the father of deceased Mamatha and father-in-law of accused No.1. He has deposed that accused persons are the native of Davangere and he is the native of Channagiri. Earlier to the marriage, accused persons came to his house and they liked his daughter Mamatha. One month prior to the marriage, talks were held in the house of complainant at Channagiri wherein accused persons and some other persons from the side of the accused were also present. At that time, from the side of bride P.W.2, Kubendroji Rao-C.W.2, Shivaji Rao and his relative Ningoji Rao were also present. At the time of marriage talks, accused demanded Rs.2 lakhs cash and 15 tholas of gold as dowry. The complainant told that it is not possible to pay that much amount and gold. Then his relatives and other family members asked him to agree for Rs.1.5 lakhs cash and 10 tholas of gold by way of dowry, for which, both the parties have agreed. As decided, he kept ready Rs.1 lakh cash and 10 tholas of gold. On the date of marriage, as told by accused persons, he put 10 tholas of gold ornaments on his daughter and handed over Rs.1 lakh cash to the hands of accused No.3 Eeroji Rao and told the accused that remaining Rs.50,000/- he will pay little later on the ground that he has some financial problem, for which, accused also agreed. He further deposed that for about three months after the marriage his daughter was happy in the house of the accused. Complainant also used to visit the house of the accused. After some time, alleging that remaining Rs.50,000/- as agreed was not given to the accused, they started giving ill-treatment and harassment to her. Once the accused persons had assaulted her and sent her out of the house. Deceased Mamatha told before him that for the remaining amount, accused were giving ill-treatment to her. When accused assaulted his daughter, she had come to his house. They advised her and sent her back to the house of accused persons and also advised the accused persons not to give ill-treatment to her and went back to Channagiri. After that, for about 25 days her daughter was looked after well by the accused, thereafter again accused started assaulting her and sent her back to his house. Then she was staying in his house. One or two months thereafter accused No.1 filed the case seeking divorce against Mamatha in the family Court at Davangere. His daughter also filed maintenance case wherein an amount of Rs.1,700/- per month was ordered by the Court as against accused No.1. Then the accused came for compromise. At that time, complainant told that if accused No.1 arranges for separate house to Mamatha and accused No.1, he will send his daughter. Accordingly, accused No.1 took a separate house at Vinobhanagar, 9th cross, and accused No.1 and his daughter were staying in the said house. Thereafter, his daughter became pregnant and for some days, complainant asked his wife P.W.3 to stay along with Mamatha in the house of accused No.1. After one month, he brought his wife back as there was nobody in the house of P.W.1. 2-3 days thereafter Mamatha called them and informed that accused Nos.2 and 3 came to their house and abused her that she has not brought the remaining amount and asked her to bring the same. Thereafter, on 8.9.2008 at about 9.45 p.m, accused No.1 called them and informed that Mamatha has sustained some injuries and is admitted to the hospital and asked him to come in the morning and then they went to the hospital wherein his son-in-law accused No.1 Kumar and his father were present in the hospital.

39. In the cross-examination, he deposed that he does not remember when he joined the service, but he retired in the year 2002. He worked as ‘D’ Group employee in the Agriculture department. When he retired he was working as Attender. He cannot say what his total salary was when he joined the service. So also, he cannot say what his salary was at the time of his retirement. He has deposed that four years prior to the marriage of Mamatha he had performed the marriage of his daughter Suma and six years earlier to that he performed the marriage of another daughter Prema. He admitted the suggestion that in Maratha community there is a customary practice to give gold ornaments to the bride as well as to the bridegroom. He does not know the goldsmith who prepared the ornaments for the marriage of Mamatha. Even he cannot say the year in which he got the ornaments ready. He voluntarily deposed that to perform the marriage of their daughters, out of his salary, he got the ornaments ready in advance and he used to pay to the goldsmith every month in connection with the said ornaments. When he got prepared the ornaments, the value of the gold for one savaran was Rs.10,000/-. He admitted the suggestion that one week prior to the marriage of accused No.1, the marriage of accused No.4 Gunavathi was performed and witness shown ignorance to the next suggestion that after the marriage accused No.4 is staying at Gokak in the house of her husband. Witness shown his ignorance to the fact that the house of sister-in- law of accused No.4 is in Poona and her name is Tulasa Bai and Talasa Bai’s husband is one Suresh Rao Kasbekar. He even shown his ignorance to the fact that he does not know that because of ailments said Suresh Rao Kasbekar has expired in the year 2006 and due to his death, accused No.4 and her husband was staying at Poona to look after her sister-in-law. P.W.1 further deposed that in Ex.D1 there is no mention about payment of the dowry amount, but on the date mentioned in the seal, they made payment of dowry amount. He denied the suggestion that he was not capable to pay the dowry in the form of cash or kind out of his salary. He is having landed property, house property, buffaloes and his wife is doing agriculture and dairy farming. But he has not given any documents to show that there was land and dairy farming. It is deposed that on the date of the marriage, they put gold ornaments on Mamatha and eight days prior to that, they have given Rs.1 lakh. He has deposed that when COD police came for investigation he came to know that the women police have got changed his complaint. He has admitted that when his daughter was staying separately at 9th cross house, there were no complaints.

P.W.2 Kubendroji Rao has deposed that the marriage talks took place in the house of P.W.1 at Channagiri and on the side of the bride, himself, Channa Veeroji Rao, Shivaji Rao, Ningoji Rao and parents of bride were present. On the side of accused, four accused persons were present. In the marriage talks, accused No.3 Eeroji Rao demanded Rs.2 lakhs cash and 15 tholas of gold and also to perform the marriage. But P.W.1 did not agree for the same. Then after negotiations, it was agreed to give Rs.1.5 lakhs cash and 10 tholas of gold and also performance of marriage by P.W.1. Accused also agreed for the same. Before marriage P.W.1 gave Rs.1 lakh to the hands of Eeroji Rao, father of accused No.1 and at the time of marriage, 10 tholas of gold ornaments were put on bride and bridegroom. After the marriage, Mamatha was staying in the house of her husband. They were living happily for about one year. Thereafter, Mamatha started to come to Channagiri often. The accused were insisting her to bring further amount Rs.50,000/- which was agreed at the time of marriage.

In the cross-examination, he deposed that he has not stated as per Ex.D3 and D4. Earlier to the marriage, he had not gone to the house of the accused. He does not know who visited the house of the accused. Earlier to the marriage, when the accused came to the house of P.W.1, P.W.1 gave Rs.1 lakh cash into the hands of accused No.3 and at the time of marriage, 4 tholas of gold ornaments were put on accused No.1 and 6 tholas of gold ornaments to bride.

P.W.3 Smt.Padma, mother of deceased Mamatha has deposed in her evidence that one month prior to the marriage, there were marriage talks. The said talks took place in the house of Eeroji Rao at Davangere and earlier to that accused came to Channagiri to their house and after seeing her daughter they said that the alliance is agreeable to them. She further deposed that, at the marriage talks, accused No.3 and his family members demanded Rs. 2 lakhs cash and 15 tholas of gold and to bear the marriage expenses. Her husband told that it is not possible to pay that much and the elders gathered there negotiated to give Rs. 1.5 lakhs cash and 10 tholas of gold in the form of ornaments to be put on bride. She has further deposed that Rs.1 lakh cash was given by her husband at the time of marriage into the hands of accused No.3 Eeroji Rao.

In the cross-examination she has deposed that during marriage talks, Basoji Rao was not present. Her husband does not know which goldsmith has prepared 10 tholas of gold ornaments. She admitted the suggestion that in their community there is a customary practice to give gold ornaments and clothes to bride and bridegroom according to ones capacity. Witness voluntarily deposed that accused forcibly got the said things. When the marriage talks took place in the house of Eeroji Rao, herself and her husband were present. The cash and gold were given at the time of marriage itself. She has admitted the suggestion that accused No.1 was getting treatment to her daughter at Mruthyunjay hospital for her pregnancy. She admitted that one week prior to the marriage of deceased Mamtha, marriage of accused No.4 was performed. She also admitted that accused No.4’s sister- in-law Tulasa Bai and her husband Surya Kumar were staying in the house of Surya Kumar. But she has shown ignorance that Surya Kumar has expired in the year 2006. She denied the further suggestion that as Surya Kumar expired, in order to look after the family affairs of Tulasa Bai, accused No.4 Gunavati was staying at Poona.

Ningoji Rao (P.W.9) has deposed in his evidence that he knows P.W.1-complainant and his daughter Mamatha. About 5-6 years back, the marriage of Mamatha was performed with Kumar. Before the marriage, there was an engagement talk and he was present in the engagement talks, which took place in the house of P.W.1 at Chennagiri. He knows accused Nos.2 to 4. Accused Nos.2 and 3 are the parents of accused No.1 and accused No.4 is the younger sister of accused No.1. Accused Nos.1 to 3 were present in the marriage engagement talks. The persons on the side of the accused demanded 15 tolas of gold and Rs.2.00 lakh cash as dowry. P.W.1 told that it was not possible for him to pay the said amount. After discussions between both parties, it was agreed that the cash of Rs.1.00 lakh and 10 tolas of gold is to be given to accused persons. It was further agreed that the same was to be given in the form of dowry. Before the marriage, P.W.1 gave the amount that was agreed and the gold was given in the form of ornaments at the time of marriage. P.W.1 told that remaining amount of Rs.50,000/- will be paid later. After the marriage, Mamatha was alright for about six months. Thereafterwards, quarrel started between Mamatha and her husband for the remaining amount of Rs.50,000/-. For the said remaining amount, the husband of Mamatha and his parents were presurrising Mamatha. Presurrise means they were making attempts to compulsorily bring the same by Mamatha. In the cross examination, he has deposed that himself and the complainant belongs to the same caste and in their caste, there is a practice/custom that the persons on the side of bride groom to give varopachara to the bridegroom. In his presence, there was a talk for the payment of said varopachara. When the witness was asked whether there were talks to give anything to the bride, the witness answered that out of 10 tolas of gold, one golden chain was to be given to Mamatha and remaining 5 tolas of gold to be given to bride groom. The marriage engagement talks took place 20 days before the marriage. After the marriage, he did not go to the house where Mamatha was staying. He cannot say the day, date, month and the year of payment of Rs.1.00 lakh by P.W.1. Even he cannot say on which day, whether it was full moon day or it was a new moon day (amavasya day), the payment was made. He denied the suggestion that there were no such talks for payment of dowry amount and he is deposing falsely. So except the oral talks, there is no list prepared in writing.

40. Coming to the oral evidence of P.Ws.1 to 3 and 9 whose evidence we have already referred, we do not find any consistency in their evidence. P.W.9 has deposed in his evidence that it was agreed to pay Rs.1.00 lakh and 10 tolas of gold, whereas P.Ws.1 to 3 have deposed that it was agreed to pay Rs.1,50,000/- cash and 10 tolas of gold. Regarding the payment of cash of Rs.1.00 lakh, again there is no consistency. The complainant (P.W.1) has deposed in his evidence that Rs.1.00 lakh as well as the gold ornaments were given at the time of marriage. P.W.9 has deposed that it was given earlier to the marriage. P.W.2 has deposed that Rs.1.00 lakh was paid earlier to the marriage. P.W.3, the mother of the deceased, has deposed that Rs.1.00 lakh cash was given by her husband at the time of marriage into the hands of accused No.3-Eerojirao. Regarding the place of marriage engagement talks, the evidence of P.Ws. 1 and 2 shows that it was taken place in the house of Channagiri, whereas P.W.3 has deposed that it was in the house of accused at Davanagere. There is no consistency as to whether the agreed amount to be payable in the form of cash is Rs.1.00 lakh or Rs.1,50,000/-. As per the case of prosecution, the main reason for giving the ill treatment to the deceased Mamatha by the accused is the non payment of remaining dowry amount of Rs.50,000/- and for that reason, they were insisting and giving the ill treatment, both physical and mental. If the evidence of P.W.9 is taken into consideration, the agreed amount itself is Rs.1.00 lakh. When that is so, the question of the accused demanding the further amount of Rs.50,000/- does not arise.

41. When it is the case of prosecution that the complainant (P.W.1) gave Rs.1.00 lakh cash and 10 tolas of gold by way of dowry which fact is denied by the defence, the burden is on the prosecution to show the sources of income for P.W.1. For that it is elicited during the course of cross-examination of P.W.1 that he was working as peon in the agricultural department and when he retired, he was the attender. When he was asked about the salary at the time of joining and retirement, he has deposed that he is not able to say the same. He has admitted that four years earlier to this incident, he performed the marriage of daughter Prema. Six years earlier to this incident, he performed the marriage of another daughter Suma. Though P.W.1 has deposed that they are having the agricultural property and his wife P.W.3 is doing dairy farming, vending of milk, but it was seriously challenged in his cross examination and admittedly, no documents were produced to show that there was landed property and they were also doing dairy farming.

Regarding the ornaments, when P.W.1 was asked, he was not able to give the name of the goldsmith that from whom they got prepared the ornaments nor they have produced any receipts showing that the gold ornaments were purchased in the shop. Therefore, looking to these materials and as we have already observed, there is no consistency in the evidence of the prosecution witnesses and the evidence is not worth believable.

42. It is also the prosecution case that the deceased Mamatha made the statement before her parents about the demand for the remaining amount of Rs.50,000/- and in that connection, the accused giving the ill treatment both physical and mental and because of that reason when the ill treatment was untolerable, she committed suicide or the accused must have committed murder by pouring the kerosene. When the death itself is because of accidental fire, which we have already answered while considering the dying declarations, it goes to the root of the matter so far as the charge under Section 498A of IPC is concerned.

43. Apart from that the conduct of accused No.1 is very important in appreciating the case of the prosecution as well as the defence of the accused. It has come in the evidence of prosecution witnesses that it is the accused who covered the body of the deceased Mamatha with the bed sheet when they came out of the house and he accompanied her taking her to the hospital in the auto rickshaw of Venkatesh (P.W.8). It has also come in the evidence of P.W.1 himself when they went to the hospital, accused No.1 was present in the hospital and it has also come through the mouth of another witness that when they went to the hospital, accused No.1 was applying the ointment to the body of Mamatha. This conduct of accused No.1 goes to show that immediately after the incident, he took her to the hospital for immediate treatment. If it was his real intention to commit the murder of the deceased Mamatha because of dowry amount of Rs.50,000/-, he could not have been assisted the deceased by immediately attending and taking her to treatment. Even it has come in the evidence of police witnesses that they have apprehended accused Nos.1 and 3, in the house of accused No.3. This also goes to show that accused No.1 never absconded. So this conduct of accused No.1 is relevant under the provisions of Section 8 of the Indian Evidence Act. The learned Senior Advocate has also relied upon one decision of the Hon’ble Supreme Court in case of GIRIDHAR SHANKAR TAWADE Vs. STATE OF MAHARASHTRA reported in 2002 SCC (CRI)

971. Para Nos.16 to 18 of the decision is relevant. They read as under:

“16. We have already noted Section 498-A herein before in this judgment and as such we need not delve into the same in greater detail herein excepting recording that the same stands attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. Admittedly, the finding of the trial Court as regards the death negated suicide with a positive finding of accidental death. If suicide is rule out then in that event applicability of Section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman and the Statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand- there is total absence of any of the requirements of the Statute in terms of Section 498-A. The three letters said to have been written and as noticed earlier cannot possibly lend any credence to the requirement of the Statute or even a simple demand for dowry.

17. As regards the core issue as to whether charges under Sections 306 and 498- A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither we are included to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon – the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the Statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in-laws’ place and requests the husband to treat her well-at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498- A. Demand for dowry has not seen the light of the day.

18. A faint attempt has been made during the course of submissions that Explanation (a) to the section stands attracted and as such, no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of Explanation (a) would not arise – neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by themselves though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge of Section 498-A as well, without which the charge cannot be said to be maintained. Presently, we have no such evidence available on record”.

44. The factual matrix of this case is squarely made applicable to the facts of the present cases also. As we have already observed that regarding the demand for dowry amount and payment of Rs.1.00 lakh towards dowry amount and 10 tolas of gold, there is no consistency in the evidence of prosecution witnesses and on the contrary, their evidence is contradictory of each other. Therefore, the question of giving the ill treatment and harassment to the deceased in connection with the remaining dowry amount does not arise at all, that too when it is established by the defence with acceptable and cogent material that the death is the result of accidental burns. Therefore, the contention of the prosecution that the deceased was subjected to ill treatment and harassment in connection with the dowry of Rs.50,000/- and that was the main reason for her to take such a drastic step, cannot be accepted.

45. No doubt, the prosecution has produced the document Ex.P.3 which is the complaint by the deceased Mamatha to the office of CPI, Chennagiri. It is dated 7.3.2005. The prosecution has also produced the other document i.e., Ex.P.29. By this document, the prosecution has relied upon the entry regarding the history of assault that deceased Mamatha said to have been assaulted by Kumar, then Eeroji Rao and Shanthamma on 6.3.2005 at 11.00 a.m. manhandling. No doubt perusing the said document Ex.P.29, there are five injuries said to have been sustained by her. The prosecution has also relied upon the documents i.e., the statements under Exs.P.39, 40, 41, 42 and 43. We have perused the said statements given by accused Nos.1, deceased Mamatha and the statement of Siddoji also. They are the statements in connection with the incident in the year 2005 i.e., three years earlier to the present incident. Perusing the contents of the statements, no doubt, the accused persons have undertaken that as decided henceforth, they will treat Mamatha properly and they will see that no ill treatment will be meted out to her. Looking to the statement of the complainant (P.W.1), who is the father of deceased Mamatha, he has also mentioned in his statement that as decided, they will advise their daughter and they will take her to the house of her husband and they will give full co-operation for the understanding and lead the happy life of couple. Ex.P.42 goes to show that it is an endorsement issued by the police to the deceased Mamatha wherein it is stated that for the compromise as both were agreed and as both sides gave the statements not to continue the enquiry, it was closed. Therefore, these documents would show that the said incident was closed by advising both the parties. Therefore, only because of that incident, it cannot be contended by the prosecution now that it also goes to prove the charge under section 498A of IPC. There is no proximity of the time to have the connection of previous incident with the present incident. Apart from that, the advice was on both sides. Even in the statement of P.W.1, it is mentioned that he advised his daughter also and the matter was accordingly closed. Under such circumstances, it cannot be said that those materials go to show and go to prove the charge under section 498A of IPC.

46. Another contention raised by the prosecution during the course of arguments is that though in theirdying declaration (Ex.P.20), it is stated that as there was a hole in the kerosene stove, the oil came out, caught fire to the saree of the deceased Mamatha. But looking to the contents of Ex.P.2, the spot mahazar, it shows that there was a gas stove and there is no mention in Ex.P.2 about the kerosene stove. Therefore, it is the contention of the prosecution as argued by the learned HCGP that Ex.P.20 is not the dying declaration said to have been given by the deceased Mamatha and therefore, it cannot be relied upon by the Court. In this regard, we have perused the contents of Ex.P.2-spot mahazar dated 10.9.2008, wherein it is mentioned that towards southern side, from the store room, there is a kitchen and the daily used provision was kept there. The measurement of the said room is East- West 10 ft. and North-South 6 ft. There is a gas stove and cylinder. From the gas stove, at the distance of 1½ ft., there was one plastic bisleri bottle of the capacity of two litres and at the bottom of the said bottle; there is blue colour kerosene oil. There was also one match box manufactured by Key Company and there were match sticks. The match sticks and the bisleri bottles were packed separately. The incident took place on 8.9.2008 at about 9.00 – 9.30 p.m. Therefore, two days after the incident, the spot mahazar (Ex.P.2) was conducted by the police. It was not made clear as to who gave the key of the house to the police and how the police entered into the said house. If the house was already opened, then whether the police deputed any police official to keep till the spot mahazar was conducted. There is no proper evidence on the side of the prosecution. We have also perused the evidence of witnesses in this connection. P.W.1 has deposed in para No.26 that after lodging the complaint, the police came and enquired with them. During investigation, the police asked him to show the residential house of deceased Mamatha. He has shown the house. The police conducted the mahazar. At that time himself, P.W.2 and Shjivaji Rao were present. There was gas stove in the house. Two liters bottle having ½ liter kerosene oil was also there. They all put signature to the said mahazar (Ex.P.2). The police have seized the kerosene bottle. The police had also seized one small bucket. He has further deposed that whatever he had stated before the Daffedar of the women police station was also reiterated before the Court.

P.W.10, at para No.6 of his deposition in the examination in chief, he has deposed that when mother- in-law, father-in-law and sister-in-law of the deceased went from the house, the deceased called her husband for the meal. Accused No.1 told the deceased that he already had the meal and asked her to go and have the same. At that time, the deceased was sitting in the house having the meals plate. At that time, the accused Kumar brought the kerosene oil in a plastic bottle poured it on her and lit fire to her.

Referring to these materials, in reply, it was contended that as there was no mention of the kerosene stove in the kitchen of the said house, Ex.P.20 cannot be disbelieved which is proved with cogent and satisfactory evidence. It is also the contention that in the evidence of P.Ws.1 and 10, it has come on record that police have also seized one small bucket and when the incident occurred, the deceased had the meals plate with food and she was sitting to have the said food and at that time, accused No.1 committed the said incident. If that is so, then the spot mahazar (Ex.P.2) also should have contained about the presence of lying of the small bucket so also the plate with the food, which was lying on the floor of the house in the kitchen, for which there is no mention in spot mahazar (Ex.P.2). Therefore, the learned Senior Advocate for the defence is justified in contending that it cannot be believed that there was no kerosene stove, small plastic bucket and the meals plate as it was not mentioned in Ex.P.2. Hence, perusing these materials, both oral and documentary, we are the opinion that the contentions of the prosecution that there was no kerosene stove in the house cannot be accepted only because that there is omission to mention about the same in spot mahazar (Ex.P.2).

47. When the prosecution has failed to prove its case beyond all reasonable doubt, then under such circumstances considering the contentions of the learned HCGP for enhancement of the sentence, does not survive for consideration.

48. We have also perused the impugned judgment and order passed by the learned Sessions Judge. Looking to the reasons adopted by the learned Sessions Judge in coming to the conclusions in convicting the appellants accused Nos.1 to 3, it clearly goes to show that the learned Sessions Judge has not at all considered the important and materials aspects, both oral and documentary, while coming to such conclusion. There was wrong reading of the prosecution material and learned Sessions Judge has wrongly come to the conclusion in convicting the appellant- accused Nos.1 to 3. Though it is the contention of the prosecution that all the four accused together poured kerosene and lit fire to the deceased Mamatha, on the very evidence, accused No.4 Gunavathi has been acquitted and her acquittal has not been challenged by the prosecution. Hence, we are of the opinion that looking to the entire material, both oral and documentary, and on re-appreciating the same, the judgment and order of conviction passed by the learned Sessions Judge is not sustainable in law.

49. Hence, we pass the following order:

(i) The appeal preferred by accused No.1 in Criminal Appeal No.181/2013 and the appeal preferred by accused Nos.2 and 3 in Criminal Appeal No.194/2013 are hereby allowed.

(ii) The judgment and order of conviction impugned herein is set aside.

(iii) Accused Nos.1 to 3 are acquitted of all the charges leveled against them.

(iv) The jail authorities are hereby directed to release the appellant-accused Nos.1 to 3 forthwith, if not required in any other case.

(v) Criminal Appeal No.566/2013 preferred by the State seeking enhancement of the sentence as prayed for in the said appeal, is hereby dismissed.

Sd/-

JUDGE Sd/-

JUDGE Cs/bkp Ct-Mhp/-

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