Unless the dying declaration is wholly reliable, voluntarily free from all doubts and truthful and further the maker was in fit medical condition, it can not be the basis for conviction. 

Excerpt:  . Unless the dying declaration is wholly reliable, voluntarily free from all doubts and truthful and further the maker was in fit medical condition, it can not be the basis for conviction.

In the present case even though the prosecution made an attempt to prove ill-treatment or cruelty against the deceased to prove commission of offence under Section 498(A) or 304-B of IPC, the basic ingredient-dowry death itself is not proved. Even though there are materials to invoke these penal provisions they are not free from cloud of suspicious circumstances right from inordinate delay in registering the FIR, recording the statement of the injured while she was alive, recording her dying declaration, evidence of the witness before the Court, all together give rise to reasonable doubt at each stage and the prosecution is not successful to eliminate such reasonable doubt and to prove the guilt of the accused beyond reasonable doubt. The trite of law is that when the prosecution is not successful in proving the guilt of the accused, the benefit of such reasonable doubt should always enure to accused.

Karnataka High Court
Basayya vs The State Of Karnataka on 2 July, 2020
Author: B.A.Patil And M.G.Uma
        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

      DATED THIS THE 2ND DAY OF JULY 2020
                     PRESENT
        THE HON'BLE MR.JUSTICE B.A.PATIL
                       AND
        THE HON'BLE MRS.JUSTICE M.G.UMA

              CRL. A. No.100040/2017

            C/W CRL.A.No.100071/2017

IN CRL.A.NO.100040/2017:

BETWEEN

SRI. BASAYYA CHANABASAYYA PUJAR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MUTTALLI,
TQ: SHIGGAON, DIST: HAVERI.
                                       ... APPELLANT

(By SRI.S.R.HEGDE, ADVOCATE)


AND

THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNTAKA,
DHARWAD BENCH, AT DHARWAD.
                                   ... RESPONDENT

(By SRI.V.M.BANAKAR, ADDL. SPP)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO CALL FOR RECORDS AND
                         :2:


TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION     DATED    30.12.2016   PASSED    IN
S.C.NO.30/2013 ON THE FILE OF THE I ADDL.DISTRICT
AND SESSIONS JUDGE AT HAVERI FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498-A, 304-B OF IPC AND
SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT AND TO
ACQUIT ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 498-A, 304-B OF IPC AND SECTIONS 3
AND 4 OF DOWRY PROHIBITION ACT.


IN CRL.A.NO.100071/2017:

BETWEEN:

RATNAVVA W/O MALLAYYA PUJAR,
AGE: 47 YEARS, OCC: COOLIE,
RESIDENT OF INAMKOPPA,
TALUK AND DIST: HAVERI.
                                   .....APPELLANT
(BY SRI.K.S.PATIL, ADVOCATE)


AND

1.    THE STATE OF KARNATAKA,
      BY TADAS POLICE,
      REP.BY STATE PUBLIC PROSECUTOR,
      AG OFFICE, HIGH COURT COMPLEX,
      DHARWAD.

2.    GURUSIDDAVVA W/O CHANNABASAYYA PUJAR,
      AGE: 56 YEARS, OCC: COOLIE,
      R/O: MUTTALLI, TQ: SHIGGAON,
      DIST: HAVERI.

3.    SIDDAYYA S/O CHANNABASAYYA PUJAR,
      AGE: 30 YEARS, OCC: COOLIE,
      R/O: MUTTALLI, TQ: SHIGGAON,
      DIST: HAVERI.

4.    NINGAVVA W/O IRAYYA PUJAR,
                        :3:


     AGE: 32 YEARS, OCC: COOLIE,
     R/O: MUTTALLI, TQ: SHIGGAON,
     DIST: HAVERI.

5.   SHIVALINGAVVA S/O SHIDDAYYA PUJAR,
     AGE: 27 YEARS, OCC: COOLIE,
     R/O: MUTTALLI, TQ: SHIGGAON,
     DIST: HAVERI.

6.   CHANNABASAYYA S/O MAHADEVAYYA PUJAR,
     AGE: 60 YEARS, OCC: COOLIE,
     R/O: MUTTALLI, TQ: SHIGAON,
     DIST: HAVERI.

7.   IRAYYA S/O CHANNAYYA PUJAR,
     AGE: 36 YEARS, OCC: COOLIE,
     R/O: MUTTALLI, TQ: SHIGAON,
     DIST: HAVERI.
                              ......RESPONDENTS

(BY SRI.V.M.BANAKAR, ADDL.SPP FOR R1;
 SRI.S.R.HEGDE, ADVOCATE FOR R2 TO 7)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
372 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO
MODIFY AND SET ASIDE THE JUDGMENT OF ACQUITTAL
PASSED IN CASE OF ACCUSED NOS.2 TO 7 IN SESSION
CASE NO.30/2013 DATED 30.12.2016 PASSED BY I
ADDL.DISTRICT AND SESSIONS JUDGE, HAVERI AND
CONVICT ACCUSED NOS.2 TO 7 FOR OFFENCE
PUNISHABLE UNDER SECTION 498(A) AND 304-B OF IPC
AND SECTIONS 4 AND 5 OF DOWRY PROHIBITION ACT
AND PASS SENTENCE APPROPRIATELY.
                         ---

     THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.06.2020, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
M.G.UMA J., DELIVERED THE FOLLOWING:
                              :4:




                      JUDGMENT

The appellant/accused No.1 approached this Court by filing Crl.A.No.100040/2017, aggrieved by the impugned judgment of conviction and order of sentence dated 30.12.2016 passed in S.C.No.30/2013 on the file of learned I Additional District and Sessions Judge at Haveri (hereinafter referred to as the ‘trial Court’) whereunder accused No.1 was convicted for the offences punishable under Sections 498(A) and 304-B of IPC and under Sections 3 and 4 of Dowry Prohibition Act, while acquitting him for the offence punishable under Section 302 of IPC and acquitted accused Nos.2 to 7 for all the above said offences.

2. The appellant in Crl.A.No.100071/2017 is the complainant before the trial Court who is aggrieved by the acquittal of accused No.1 for the offence punishable under Section 302 of IPC and acquittal of accused Nos.2 to 7 for the offences punishable under Sections 498(A) and 304-B of IPC and under Sections 4 and 5 of Dowry Prohibition Act.

     3.    We    have       heard    the    learned     advocate

Sri.S.R.Hegde        for    the      appellant/accused         in

Crl.A.No.100040/2017           and         learned      advocate

Sri.K.S.Patil in Crl.A.No.100071/2017 and learned Addl. SPP Sri.V. M. Banakar for the respondent-State.

4. The brief facts of the case as made out by the prosecution is that; the deceased Neelavva @ Deepa was married to accused No.1 about 4 years 8 months earlier to the incident and both of them were leading marital life. The relationship was cordial for about 1 year but thereafter, accused No.1 being the husband, accused No.2 to 7 being the mother-in-law, sister-in-law, brother-in-law and his wife, started ill- treating the deceased, both physically and mentally, by demanding dowry in the form of cash and gold.

5. It is the further contention of the prosecution that on 07.12.2012, accused No.1 picked up quarrel with the deceased by questioning her, as to why she is not bringing gold ornaments and assaulted her. When the deceased stated that, she had already brought Rs.20,000/- for construction of house and Rs.40,000/- at the time of Deepavali, all the accused have also assaulted her and in the meantime, accused No.1 poured kerosene and set fire on her. When the deceased started screaming out of pain, the neighbors came and rescued and she was shifted to the hospital for treatment. The statement of the injured Neelavva @ Deepa was recorded by the police, while she was taking treatment. Crime No.71/2012 of Tadas police station was registered against accused Nos.1 to 7 for the offences punishable under Sections 498(A), 342 and 307 read with Section 149 of IPC and under Sections 3 and 4 of Dowry Prohibition Act.

6. But inspite of the treatment, the injured had succumbed to the injuries on 13.12.2012 and thereafter Sections 302 and 304-B were also invoked with the permission of the Court. The investigating Officer conducted investigation and filed charge sheet against all the accused for the above said offences.

7. The learned Magistrate took cognizance of the matter and after following the procedures under Section 207 of Cr.P.C., committed the matter to the Principal District and Sessions Court at Haveri and the matter was in turn made over to the I Additional District and Sessions Court at Haveri for disposal in accordance with law.

8. The trial Court secured the presence of accused Nos.1 to 7 and framed the charges for the above said offences. All the accused have pleaded not guilty and have claimed to be tried. Thereafter the trial was fixed and the prosecution examined in all 26 witnesses, got marked 38 documents and identified 9 material objects, in support of its contention.

9. The accused have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.P.C. and got examined DW1 and 2 and got marked DW1 and 2 in support of their contention. The trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution has proved the guilt of accused No.1 for the offences punishable under Sections 498(A) and 304-B of IPC and under Sections 3 and 4 of Dowry Prohibition Act. However, acquitted accused No.1 for the offences punishable under Section 302 of IPC and acquitted accused Nos.2 to 7 for all the offences i.e. under Sections 498(A), 342, 304-B and 302 read with Section 149 of IPC and under Sections 3 and 4 of Dowry Prohibition Act.

10. Aggrieved by the impugned judgment of conviction and order of sentence passed by the trial Court, accused No.1 preferred Crl.A.No.100040/2017.

11. The learned advocate for the appellant/accused No.1 submitted that the impugned judgment of conviction and order of sentence is illegal, perverse and is contrary to law. It is contended that no materials are placed before the Court to prove the cruelty by accused No.1 by demanding dowry. The trial Court has relied on the evidence of PW17 and 18 i.e. parents of victim, who were interested witnesses to convict accused No.1. All the independent witnesses i.e. PW5 to 9 have not supported the case of the prosecution and were treated hostile. This fact was however taken into consideration by the trial Court but, it has ignored the fact that the deceased was suffering from stomach pain and had attempted to commit suicide by burning. She was shifted to the hospital by accused No.1 himself. He submitted that none of the pancha witnesses have supported the case of the prosecution. The so called dying declaration said to have been recorded by PW10-Taluka Executive Magistrate, is not proved in accordance with law and it cannot be believed that such a declaration was made by the deceased with PW10. The evidence of this witness is not helpful for the prosecution to prove the dying declaration Ex.P22. The materials on record disclose that the injured was not in fit state to give statement. No requisition was submitted to the duty doctor by the Taluka Executive Magistrate. PW11 never treated the injured to certify regarding the condition of the injured, who had suffered 70% burn injuries and was not conscious to give statement. The trial Court has erred in relying on the dying declaration put forth by the prosecution and relying on the evidence of the interested witnesses PW17 to 19, who are the father, mother and aunt of the deceased.

12. He further contended that the trial Court has also lost sight of the fact that absolutely no materials are placed to prove dowry harassment and cruelty meted to the deceased. There were no earlier complaints against accused No.1 for treating the deceased with cruelty. The trial Court has ignored Ex.D1, the medical certificate issued by the treating doctor to the effect that the deceased was suffering from stomach pain. The trial Court proceeded to convict accused No.1/appellant, without any basis and therefore he prays for allowing the appeal by setting aside the impugned judgment and order of sentence passed by the trial Court.

13. The learned advocate for the appellant in Crl.A.No.100071/2017 supported the judgment of conviction and order of sentence passed by the trial Court against accused No.1 for the offences punishable under Sections 498(A) and 304-B of IPC and under Sections 3 and 4 of Dowry Prohibition Act but contended that the opinion formed by the trial Court for acquitting accused Nos.2 to 7 for all the offences alleged against them, is perverse, illegal and has resulted into miscarriage of justice. The trial Court has jumped to the conclusion that accused Nos.2 to 7 are innocent when it has formed an opinion that accused No.1 is responsible for causing the death of the deceased-Deepa within 7 years of her marriage by demanding dowry. When the trial Court held that accused No.1 was treating the deceased with cruelty by demanding dowry, it was not proper on its part to acquit other accused, against whom similar evidence is placed before the Court. The trial Court has ignored the evidence led by PW17 and 18 about demand for dowry and giving of valuables to the accused. It has also ignored their evidence with regard to the commission of offence by pouring kerosene on the deceased and setting fire by all the accused including accused No.1. The trial Court has also ignored the dying declaration that was recorded by PW10-Taluka Executive Magistrate, while acquitting accused Nos.2 to 7. Therefore the judgment of conviction and order of sentence passed against accused No.1 should also have been against accused Nos.2 to 7. Therefore the learned advocate prayed that the appeal is to be allowed and accused Nos. 2 to 7 should also be convicted for the above said offences.

14. The Addl.SPP on the other hand submitted that admittedly the deceased Neelavva @ Deepa who is the wife of accused No.1 died a homicidal death in the house of the accused. At the relevant point of time, it was only accused Nos.1 to 7 who were in the house. The deceased had sustained 70% burn injuries and her statement at the earliest point of time was recorded as per Ex.P25 and on the basis of the said statement, FIR was registered against accused Nos.1 to 7. Even thereafter the deceased had given her dying declaration as per Ex.P22. PW18 the mother and PW19 the sister of the deceased have fully supported the case of the prosecution with regard to demand for dowry, ill-treatment and also regarding commission of offences. Under such circumstances, the trial Court rightly convicted accused No.1 for the offences punishable under Sections 498(A) and 304-B of IPC. However, he submitted that the trial Court should have convicted accused No.1 for the offence punishable under Section 302 of IPC and accused Nos.2 to 7 for all the offences for which they were charged. Even though the State has not preferred any appeal, the complainant had preferred the appeal challenging the acquittal of accused Nos.2 to 7 and he supports such grounds made out by the complainant.

15. He further submitted that the unnatural death of deceased Neelavva @ Deepa had occurred within 7 years of her marriage with accused No.1 and there is clear evidence to show that accused have demanded dowry and treated the deceased with cruelty. Under such circumstances, the presumption of Section 113-B of the Evidence Act operates and it is for the accused to rebut the said presumption. In the present case, it is clear that accused have taken false defence that the deceased suffered from stomach pain and had committed suicide, which was not accepted by the trial Court and rightly so. Therefore the accused have failed to rebut the legal presumption under Section 113-B of Evidence Act and under such circumstances, all the accused are liable for conviction. He submitted that accused No.1 has no grounds to seek setting aside the judgment of conviction and order of sentence passed by the trial Court and therefore he prays for dismissing the Criminal Appeal No.100040/2017 and for allowing Criminal Appeal No.100071/2017 in the interest of justice.

16. We have carefully considered the rival contentions and the submissions made by the advocates representing the parties and perused the materials on record including the trial Court records.

17. The prosecution in order to establish its contention that the deceased had died a homicidal death due to burn injuries produced at Ex.P4 the inquest mahazar and the post mortem report as per Ex.P26. Both these documents disclose that the deceased had sustained burn injuries all over her body. As per post mortem report, the deceased had sustained 70% of the burn injuries and the cause for death was due to septicaemic shock consequent upon burn injuries sustained. The author of post mortem report who conducted post mortem examination has deposed before the Court as PW13. All these materials conclusively go to show that the deceased had died homicidal death and it was not a natural death.

18. It is the contention of the prosecution that marriage of the deceased with accused No.1 was performed about 4 years earlier to the incident. In this regard there is no serious dispute by the accused. The relationship between the parties, are also not disputed.

19. The allegations made by the prosecution is that few months back, after the marriage of the accused, including accused No.1, who is the husband, all the accused persons started treating the deceased with cruelty by demanding dowry. Even before marriage, they had demanded for dowry and cash and other materials and these were infact given to the accused. But still they started demanding for additional dowry and when their demand was not met and when the deceased questioned their demand, saying that already sufficient cash has been paid, all of them assaulted her, caught hold of her, accused No.1 poured kerosene and lit fire. As a result of which, she sustained burn injuries and was admitted to the hospital. Subsequently, she succumbed to the injuries on 13.12.2012 and thereby all the accused have committed the offences punishable under Sections 498(A) and 304-B of IPC and Sections 3 and 4 of Dowry Prohibition Act.

20. The trial Court after taking into consideration the fact that almost all the material witnesses examined by the prosecution have not supported the case of the prosecution and were treated hostile, held that the charges against accused Nos.2 to 7 for the above said offences and the charges against accused No.1 for the offence punishable under Section 302 read with Section 149 of IPC, is not proved.

21. PW1 and 2 are the panchas for the spot mahazar, which is as per Ex.P1, whereunder M.O.1 to 9 were said to have been seized from the scene of the offence. Both these witnesses have not supported the case of the prosecution. PW3 is the inquest witness who spoke about the marriage of the deceased with accused No.1 4 years earlier to the incident and also giving of money and gold ornaments at the time of marriage. He stated that there were frequent quarrels between the husband and the wife and regarding other allegations of the prosecution, he has not supported his contention and pleaded his ignorance that the accused were ill-treating the deceased by demanding dowry and that the accused have caused death of the deceased by pouring kerosene and litting fire.

22. PW4 is the relative of accused No.1, who is also the pancha to Ex.P1. PW5 and 9 are the neighbors who said to have gone to rescue the deceased on hearing her screaming but unfortunately, all these witnesses have turned hostile to the case of the prosecution and even during cross examination by the learned public prosecutor, nothing has been elicited from them, to disbelieve their version. PW 14 is the PDO who issued the house extract as per Ex.P27 to show that the house in which the incident had taken place, stands in the name of the accused. PW15 is the Assistant Engineer, PWD, who drawn the spot sketch as per Ex.P28.

23. PW17 is the father of the deceased who deposed that at the time of marriage, Rs.15,000/- cash, one tola gold ornaments and household articles were given as per their custom. He stated that there was frequent quarrel between husband and wife and all the accused have assaulted her but with regard to all other allegations, he has not supported the case of the prosecution for the reasons best known to him. PW20 to 22 are the villagers who also have not supported the case of the prosecution. PW25 is the scientific officer who issued the RFSL report as per Ex.P38, which is not a disputed document.

24. It is the contention of the prosecution that immediately after the incident, the deceased was shifted to KIMS Hospital, Hubli, where she was being treated. As per the case made out by the prosecution, the incident had taken place on 07.12.2012 at 9.00 pm in the house of the accused. It is stated that PW23, the PSI had recorded the statement of the injured while she was being treated in the hospital, after getting the certificate from the doctor who was treating her, regarding her fitness to give statement. The said statement is as per Ex.P25 which is treated as first information and the FIR as per Ex.P34 was registered. It is pertinent to note that even though the incident had taken place on 07.12.2012 at 9.00 pm, Ex.P25 was recorded on 08.12.2012 after 10.30 pm. Till then nobody had lodged any complaint with the police nor they have registered suo motu complaint. There is delay of more than 24 hours in registering the FIR. PW23 in his evidence states that he had visited KIMS Hospital, Hubli on 08.12.2012 at 10.00 am after receiving the MLC intimation but has not chosen to register the FIR till 10.30 pm. It is his say that he was waiting to record the statement of the injured. The version of the witness is not helpful to explain the inordinate delay in registering the FIR. Admittedly the father, mother, sister and other relatives of the deceased and the neighbors were very much present. But none have filed the first information, nor their statements were recorded for the purpose of registering the FIR. It is the fact that there was inordinate delay in lodging/registering the complaint and such delay in registering the FIR creates doubt in the case made out by the prosecution. It is stated that the police station is just 3 kms away from the scene of the offence, inspite of that, there was no action to register the FIR immediately and even after receiving MLC intimation, FIR was not registered. From the materials on record, it is clear that the delay caused in registering the FIR is not at all explained.

25. PW23 in his evidence only stated that he was waiting for recording the statement of the injured, which is not satisfactory to explain the delay in registering the FIR, when there are other members of the family, including the parents and sister of the deceased, they could have filed the complaint immediately after coming to know about the incident. This delay caused in registering the FIR which is more than 24 hours, rises suspicion about the contention taken by the prosecution as to the nature of the offence committed by the accused.

26. The contention of the prosecution is that the statement of the injured was recorded by PW23 and the statement was treated as first information for registering the FIR. The said statement is as per Ex.P25. Ex.P24 is the requisition submitted by the PSI of Tadas police station to CMO, KIMS Hospital, Hubli, requesting to inform about the condition of the injured Deepa, who was taking treatment for the burn injuries. There is reference in this requisition that earlier it was informed by the medical officer that the injured was not in a position to give her statement and under such circumstances, it was requested to inform him, once the injured becomes fit to give her statement. Ex.P25 is the statement of the injured said to have been recorded by PSI-PW23 in the presence of PW11-doctor who certified that the patient was conscious and well oriented and the statement was recorded before him. In the statement, the injured refers to the date of her marriage as 19.04.2008 and demand of dowry by the accused and ill-treatment in that connection. She also stated that on 06.12.2012, she along with accused No.1 came to Inamkoppa along with her mother-Ratnavva and on 07.12.2012, mother-Ratnavva had returned to her village and in the evening accused No.1 had picked up quarrel with her stating that she has not brought gold ornaments, when she stated that she has already given sufficient money on different occasions, all the accused together caught hold of her and accused No.1 poured kerosene and lit fire. When she started screaming out of pain, her brother-in-law and neighbors came and extinguished the fire and shifted her to KIMS hospital, Hubli. The allegation made in this statement of the injured is something serious against all the accused, which is sufficient to invoke various provisions of the Penal Code and also of the Dowry Prohibition Act. Now we have to consider as to whether the prosecution is successful in proving this document, in accordance with law.

27. As already stated Ex.P25- the statement was said to be recorded in the presence of PW11, who certified that the injured was conscious and well oriented. In his evidence this witness stated that earlier in the day, the PSI of Tadas police station had given the requisition enquiring about the condition of the injured for the purpose of recording her statement but, since her condition was not good, the same was informed by him but again the PSI had given another requisition as per Ex.P24 and he informed the PSI that the injured is in a condition to give statement. Therefore at 8.10 pm, the statement of the injured was recorded till 9.00 pm in his presence, which is as per Ex.P25. During cross examination of this witness, he stated that he never treated the injured at any time and he does not know about her health condition. He never consulted the doctor who was treating her. He only checked her condition and stated that she is fit to give statement. He admitted that when a person sustains 70% burn injuries, his mental state will not be in a fit condition. He stated that the injured was injected with neurotic and tramadol injections. He further states that the injured was in semi conscious state but denied the suggestion that since the injured was in semi-conscious state, she was not in a position to talk properly. Witness stated that he had not questioned the injured before recording the statement to know her condition. He stated that it was the PSI who recorded her statement and that since the injured stated that she cannot sign, her thumb impression was taken on the statement. It is pertinent to note that this witness admitted that in the first page of Ex.P25, the time which was written is 7.10 hours, is subsequently corrected as 8.10 hours. Similarly, in another page the time mentioned is as 8.00 hours, is corrected as 9.00 hours but, the witness was not in a position to say as to why such corrections were carried out in her statement.

28. PW23 is the PSI who said to have recorded the statement of the injured in the KIMS Hospital, Hubli. Witness stated that it was PW16 who recorded the statement of the injured, as per her say, in the presence of medical officer. He was also present at the spot and had signed Ex.P25. During cross examination, this witness admitted that there are corrections made in Ex.P25, with regard to the timings. He was also not in a position to say the reasons for such corrections. Witness admitted that the first information FIR had reached the Jurisdictional Magistrate on 09.12.2012 at 10.30 pm but he has not recorded the statement of the police constable, to explain the delay in submitting the FIR. Witness pleaded his ignorance as to whether the palm and the finger of the injured were also burnt.

29. PW16 is the police constable who recorded the statement of the injured as per Ex.P25. This witness during cross examination, categorically states that PSI of the Tadas police station that is PW25, had never enquired the injured Deepa. Witness stated in categorical terms that, the injured had not talked to him nor he was hearing her talking. He had not seen either the PSI or the medical officer talking with the injured. He admitted that the injured was in deep suffering due to burn injuries. He admitted that she was not in a position to talk at that time as she was experiencing severe pain. This witness also pleads ignorance as to who corrected the time mentioned in Ex.P25. Even though this witness has given evidence contrary to the contention of the prosecution and even though his evidence is contrary to the interest of the prosecution, he was not cross examined by the learned public prosecutor to take away the effect or to seek explanation as to why he has deposed, contrary to the contention of the prosecution.

30. If the evidence of PW11, 16 and 23 is considered in the light of Ex.P24 and 25. Reasonable doubt will arise as to whether the injured was really in fit state of condition to give statement and as to whether Ex.P25 is infact the statement given by the injured voluntarily or not. Ex.P25 contains all the details including date of marriage, amount of dowry, weight of gold ornaments, date on which she along with accused No.1 had returned to her house etc., Looking to the condition of the injured, as she had suffered 70% burn injuries and that too when ones the medical officer stated that the injured was not in fit state to give statement and also considering the evidence of PW11, 16, 23 were not in a position to comprehend and form an opinion that the injured was in fit state and Ex.P25 is her statement recorded as required under law.

31. It is the contention of the prosecution that the dying declaration of the injured Deepa was recorded as per Ex.P22. This statement is in a format said to have been recorded on 10.12.2012 between 6.00 to 6.30 pm by the Taluka Executive Magistrate examined as PW10. As per this statement the injured appeared to have stated regarding the exact date and time of commission of offence by specifically naming all the accused, their motive and overact committed by them.

32. Now we have to consider whether the prosecution is successful in proving this material document in support of its contention. The prosecution examined Taluka Executive Magistrate-PW10, who said to have recorded the dying declaration as per Ex.P22. This witness states that she had received a requisition as per Ex.P18, to record the statement of the injured but she was having protocol duty, as the Chief Minister was visiting Hubli. She suggested the investigating officer to record the statement of the injured in the presence of medical officer. Accordingly she has given an endorsement as per Ex.P19. Again on 10.12.2012, CPI Shiggaon requested her to record the dying declaration of the injured as per Ex.P20. On the same day at 5.30 pm, she visited the hospital and gave a requisition to the medical officer as to whether the injured was in fit condition to give her statement. The medical officer endorsed that the injured is in fit condition and therefore she visited the emergency ward, where the injured Deepa was being treated and recorded her dying declaration in the presence of the medical officer, between 6.00 to 6.30 pm and the said declaration is as per Ex.P22. During cross examination by the learned advocate for the accused, witness stated that Ex.P22 is in her own handwriting but she does not remember, as to whether the hands of the injured were burnt or not. Witness stated that the injured was being treated even when she was recording her statement. Witness stated that she had gone to the general ward and met the medical officer where he was sitting along with his staff members and obtained his endorsement that the injured is in fit state to give statement. Witness also stated that she had not obtained endorsement from the medical officer about the condition of the injured before recording her statement. She stated that since there was a little space in the printed format, in which the dying declaration was recorded and she has shown the relevant portions through the arrow mark. However, this witness categorically stated that since the injured was in semi conscious state, her statement was recorded in the printed form.

33. PW12 is the doctor who endorsed on Ex.P21 to the effect that the injured Deepa admitted in the ward for burn injures, is in fit condition to give oral statement. This endorsement is dated 10.12.2012 at 5.55 pm. This witness states during cross examination that there were two original copies of the dying declaration. Witness further stated that he had not treated the injured nor he had consulted the doctor who treated her. He further stated that when he examined the injured, tramadol and antibiotics were injected on her. He further admitted that if a patient is injected with tramadol, he will be in semi conscious state. Witness stated that since the injured stated that she is not literate and therefore she is not in a position to sign, her thump impression was taken on the dying declaration Ex.P22.

34. At this juncture, the learned advocate for the appellant draw our attention to the portion of the deposition of PW18 the mother of the deceased Deepa, who has categorically stated that her daughter studied up to 10th standard and she knows reading and writing kannada.

35. If we consider Ex.P25 in the light of the evidence of PW11, 16, 23 and Ex.P22 in the light of evidence of PW12 and 10, reasonable doubt will arise in the mind of the Court and they remain unanswered. Initially there was inordinate delay in registering the FIR, even though doctor initially gave his opinion that the injured was not in a condition to give statement, the PSI waits for hours together and he himself records her statement as per Ex.P25 and thereafter registers the FIR. This witness states that it was PW16 who got recorded the statement of the injured but PW16 states that he never talked with the injured nor he heard the injured talking to PW23 or with PW11 but he had written the statement as per the say of PW23. Further Ex.P22 the dying declaration was recorded by PW10 in a printed format and she categorically states that the doctor who endorsed regarding the condition of the injured was sitting in the general ward with his staff members and made necessary endorsement. She herself asked the injured about the incident and recorded the statement in the printed form as she had shortage of time. The whole sequence of recording the statement of the injured as per Ex.P25, the dying declaration as per Ex.P22 and conduct of officials PW10, 11, 12, 16 and 23 do not inspire confidence in the mind of the Court about genuinity of these two documents.

36. Unless the dying declaration is wholly reliable, voluntarily free from all doubts and truthful and further the maker was in fit medical condition, it can not be the basis for conviction. This proposition of law is laid down by the Hon’ble Supreme Court in WAIKHOM YAIMA SINGH Vs. STATE OF MANIPUR wherein it is held as under:

“15. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. ……Further, Dr.Ningombam Shyamjai Singh (PW-12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement.”

37. Similarly, the Hon’ble Supreme Court in NANHAR Vs. STATE OF HARYANA held that the Dying declaration should be such, which should immensely strike to be genuine and stating true story 2011 CRI.L.J.2673 2010 CRI.L.J.3450 of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. Dying declaration in the present case does not fulfil these conditions. The conviction of accused on basis of dying declaration liable to be set aside.

38. It is pertinent to note that almost all the material witnesses including father of the deceased have turned hostile and not supported the case of the prosecution. There is absolutely no reason as to why even the father and the neighbors have not supported the case of the prosecution.

39. Even though the prosecution is successful in proving that the deceased died a homicidal death, no sufficient and satisfactory materials are placed before the Court to attract the offence punishable under Section 302 of IPC against any of the accused. In order to prove Section 304-B of IPC, it is sufficient for the prosecution if it establishes that there was death of a woman caused by any burns otherwise than under normal circumstance within 7 years of her marriage and if it is shown soon before her marriage, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand or dowry then, the presumption under Section 113-B of Evidence Act comes into operation and ones the presumption arise and the Court presumes that such dowry death is caused, it is for the accused to rebut the same. In the present case even though the prosecution made an attempt to prove ill-treatment or cruelty against the deceased to prove commission of offence under Section 498(A) or 304-B of IPC, the basic ingredient-dowry death itself is not proved. Even though there are materials to invoke these penal provisions they are not free from cloud of suspicious circumstances right from inordinate delay in registering the FIR, recording the statement of the injured while she was alive, recording her dying declaration, evidence of the witness before the Court, all together give rise to reasonable doubt at each stage and the prosecution is not successful to eliminate such reasonable doubt and to prove the guilt of the accused beyond reasonable doubt. The trite of law is that when the prosecution is not successful in proving the guilt of the accused, the benefit of such reasonable doubt should always enure to accused.

40. Under such circumstances, we are of the opinion that the accused are not liable to be convicted for the charges leveled against them and the accused No.1 is also liable to be acquitted for the offences punishable under Section 498(A), 304-B and 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act.

     41.   We    have    carefully   gone    through      the

impugned      judgment   of   conviction    and   order    of

sentence passed by the trial Court. Even though it has arrived at right conclusion that prosecution has not proved the guilt of accused Nos.2 to 4 for the charges leveled against them, committed an error in forming an opinion that it has successfully proved the guilt of accused No.1 for the offence under section 498A, 304- B and sections 3 and 4 of Dowry Prohibition Act. If the first information Ex.P25 and dying declaration Ex.P22 are properly appreciated in the light of the oral evidence led by the prosecution, the trial Court would not have proceeded to convict the accused No.1. Therefore, we are of the opinion that the impugned judgment of conviction and order of sentence passed by the trial Court against accused No.1, deserves to be set aside and the judgment of acquittal passed against accused Nos. 2 to 7, is required to be confirmed. Therefore we proceed to pass the following:

ORDER Appeal in Crl.A.No.100040/2017 is allowed.

Appeal in Crl.ANo.100071/2017 is dismissed.

The impugned judgment of conviction and order of sentence passed against accused No.1 punishable under Section 498A and 304-B and Sections 3 and 4 of Dowry Prohibition Act, is set aside. The judgment of acquittal passed against accused Nos. 2 to 7 in the very same judgment, is confirmed.

The appellant-accused No.1 Sri.Basayya Chanabasayya Pujar, is hereby acquitted of all the charges levelled against him and he has to be released forthwith, if he is not required in any other case. Send back the trial Court records.

Registry is directed to intimate the jail authorities to release accused No.1-Sri.Basayya Chanabasayya Pujar, if he is not required in any other case.

SD/-

JUDGE SD/-

JUDGE KGK

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