1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21

ST

DAY OF FEBRUARY, 2026

PRESENT

THE HON'BLE MR. JUSTICE H.P.SANDESH

AND

THE HON'BLE MR. JUSTICE VENKATESH NAIK T

CRIMINAL APPEAL NO.1975/2019

C/W.

CRIMINAL APPEAL NO.1870/2019

IN CRIMINAL APPEAL NO.1975/2019:

BETWEEN:

1 . VENKATESHA @ VENKATGOWDA

S/O RANGEGOWDA

AGED ABOUT 30 YEARS

R/O K.HOSAHALLI VILLAGE,

KUNDRU HOBLI, ALURU TALUK

HASSAN DISTRICT-573214. … APPELLANT

(BY SRI. GIREESHA J.T., ADVOCATE)

AND:

1 . STATE OF KARNATAKA

BY ALURU P.S

REPRESENTED BY SPP

HIGH COUT BUILDING

BENGALURU-560001. … RESPONDENT

(BY SMT. RASHMI JADHAV, ADDL. SPP)

R

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)

OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF

CONVICTION AND ORDER OF SENTENCE DATED 22.08.2019

PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS

JUDGE, HASSAN IN S.C.NO.80/2015 - CONVICTING THE

APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE

UNDER SECTIONS 498-A, 302 AND 304-B OF IPC AND

SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.

IN CRIMINAL APPEAL NO.1870/2019:

BETWEEN:

1 . JAYAMMA

W/O. RANGEGOWDA

AGED ABOUT 63 YEARS

R/O. K. HOSAAHALLI VILLAGE

KUNDURU HOBLI, ALURU TALUK

HASSAN DISTRICT-573214. … APPELLANT

(BY SRI. GIREESHA J.T., ADVOCATE)

AND:

1 . STATE OF KARNATAKA

BY ALURU P.S.,

REPRESENTED BY SPP

HIGH COURT BUILDING

BENGALURU-560 001. … RESPONDENT

(BY SMT. RASHMI JADHAV, ADDL. SPP)

3

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)

OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF

CONVICTION AND SENTENCE DATED 22.08.2019, PASSED BY

THE 5

TH

ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN

IN S.C.NO.80/2015 (WITH CLUBBED S.C.NO.149/2015)

CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE

PUNISHABLE UNDER SECTION 498A R/W SECTION 109 OF IPC

AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT.

THESE APPEALS HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 10.02.2026 THIS DAY, THE COURT

PRONOUNCED THE FOLLOWING:

CORAM:

HON'BLE MR. JUSTICE H.P.SANDESH

AND

HON'BLE MR. JUSTICE VENKATESH NAIK T

CAV JUDGMENT

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

1. These two appeals are filed by accused No.1 and

2. Accused No.1 in Crl.A.No.1975/2019 has questione d the

conviction and sentence for the offence punishable under

Section 498-A, 302, 304-B of Indian Penal Code

(hereinafter referred to as ‘IPC’) and Section 3 and 4 of the

Dowry Prohibition Act (hereinafter referred to as DP Act).

The accused No.2 in Crl.A.No.1870/2019 questioned th e

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conviction and sentence for the offence punishable under

Section 498-A r/w Section 109 of IPC and Section 3 and 4

of DP Act.

2. The factual matrix of case of prosecution is that

accused No.1 is the husband of the deceased Vani @

Puttalakshmi and accused No.2 is the mother of accuse d

No.1. Marriage of accused No.1 with the deceased too k

place on 13.12.2009 and at the time of marriage, it was

agreed to pay Rs.40,000/- cash and 8 tholas of gold to be

given and given Rs.40,000/- cash and 6 tholas of go ld at

the time of marriage. There was a balance of 2 tholas of

gold to be given. After marriage, accused No.1 and the

deceased lived happily for about 1 year and thereafter,

accused No.1 and 2 have started giving ill-treatment and

giving her physical and mental torture. On coming to know

about this, father of the deceased spoke to accused No.1

and 2 and also panchayaths were held and inspite of it,

continued the harassment. The deceased had gone to her

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parents house and about one week back, she came back to

the house of the accused. The accused No.1 and 2 ha ve

committed the offences of taking away the life unde r

Section 302 of IPC and other offences and hence, case was

registered by recording dying declaration and Police hav e

investigated the matter and filed the charge sheet. The

accused persons were secured and they did not plead guilty

and claims trial. Hence, prosecution examined P.W.1 to

P.W.35 and also got marked Ex.P.1 to Ex.P.56 and MO.1 t o

MO.19. The trial judge after closure of the evidence of the

prosecution, recorded 313 statement of the accused an d

denied the incriminating evidence and accused did no t

choose to lead any evidence. The trial judge having

considered both oral and documentary evidence convict ed

the accused No.1 for all the charges levelled against him

and the accused No.2 is convicted only for the offence of

Section 498A r/w Section 109 of IPC and Section 3 and 4 of

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DP Act. Hence, these two appeals are filed before th is

Court.

3. The main contention of the counsel appearing for

the appellant/accused No.1 in Crl.A.No.1975/2019 tha t the

Trial Court committed an error in appreciating the evidence

and fails to take note of admissions on the part of P.W.1

during the course of cross-examination that the marriag e

was done according to customs and further there is no

specific allegation with regard to who demanded dowry or

who received the dowry amount. The P.W.2 and P.W.3 who

are mother and sister also admitted with regard to

performing of marriage as per the customs. There are

contradictions in the evidence of P.W.1 to P.W.3 and

P.W.11 regarding demand of dowry and payment of dowry.

The witnesses P.W.4 to P.W.6 and PW9 who are the

neighbors and eyewitnesses to the incident have not

supported the case of prosecution. The witness P.W.5

himself had been to the farmland to get accused No.1 to his

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house, informing him about the incident and hence, t he

presence of accused No.1 at the spot is doubtful.

4. The witnesses P.W.7 and P.W.8 are the villagers of

the complainant and they have not supported the case of

the prosecution. It is contended that there is no allegation

in Ex.P.45 and Ex.P.48 which are dying declaration and

Ex.P.45 is allegedly recorded by Tahasildar and no

allegation is made against this appellant. Further Ex.P.48 is

recorded by the Police and the same is inconsistent w ith

Ex.P.45. The trail judge has committed an error in relying

upon Ex.P.45 and Ex.P.48. The counsel also would subm its

that Ex.P.47-PM report reflects that burns more than 90%.

The witness P.W.31 who conducted autopsy, during the

course of examination, admitted that eyes, face, han ds,

fingers, toes and palms were fully burnt. Further, the sole

and palms of the deceased were fully burnt. There i s no

endorsement regarding the fitness of the deceased to give

statment in Ex.P.45 and Ex.P.48. The counsel also wou ld

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contend that accused No.2 has been falsely implicat ed in

the case and ought not to have invoked the offence under

Section 498-A r/w Section 109 of IPC and Section 3 and 4

of DP Act when the demand and acceptance is not prov ed

and with regard to subjecting her for cruelty also, no

evidence before the Court.

5. The counsel also reiterated the grounds which

have been urged in the connected appeal. The counse l

would vehemently contend that when there is no

independent evidence before the Court regarding alle ged

demand and acceptance and the admissions on the part of

witnesses is very clear that marriage was performed as per

the financial capacity of the parents of the deceased and

hence, there was no demand and acceptance and also

subjecting her for cruelty and the deceased came back one

week prior to the incident that too after giving birth to a

child and when such being the case, ought not to ha ve

convicted the appellant No.2.

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6. Per contra, the counsel appearing for the State

would contend that the victim made the statement be fore

the Police as well as before the Tahasildar in terms of

Ex.P.45 and Ex.P.48 and the statement is consistent and

Doctor evidence is also very clear that cause of death on

account of severe burn injury and burn injuries which led to

the death. The counsel also submits that though the other

witnesses have turned hostile, but the evidence available on

record, particularly the evidence of P.W.1 to P.W.3, P.W.10,

P.W.11, P.W.12, P.W.17 and P.W.19 is very clear to prove

the charges and the same has been considered by the Trial

Court and properly appreciated the evidence available on

record and hence, it does not require interference.

7. Having heard the learned counsel for the appellant

and also the learned counsel for the respondent-State and

considering the oral and documentary evidence, the po ints

that would arise for the consideration of this Court are:

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(1) Whether the Trial Court committed an error

in convicting the accused for the charges

levelled against him and sentencing and it

requires interference of this Court?

(2) Whether the accused No.2 made out the

ground that Trial Court committed an error

in convicting the accused for the offence

punishable under Section 498A r/w Section

109 of IPC and Section 3 and 4 of DP Act

and whether it requires interference of this

Court?

(3) What order?

Point Nos.(1) and (2):

8. Both the points were taken together for

consideration and similar charges are framed against

accused No.1 and 2 and we have given our anxious

consideration to both oral and documentary evidence

available on record. Having perused the material available

on record, it is not in dispute that marriage was held in the

year 2009 and incident was taken place on 17.12.2014 and

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that too in the matrimonial house of the deceased, b ut

whether the prosecution proved the charges levelled

against the accused to be re-considered by this Cou rt by

appreciating the evidence available on record. The charge

against both accused No.1 and 2 that marriage was

performed on 13.12.2009 and demand of dowry was made

to Rs.60,000/- and 100 grams of gold and after the

negotiation, it was agreed to give Rs.40,000/- cash and 8

tholas of gold and after the marriage, they were cordial for

sometime, but later on, at the instance of the accused No.2,

deceased was subjected to cruelty and also accused N o.1

and 2 have taken the life of the deceased by pouring

kerosene and setting the fire at the instigation of accused

No.2 and so also committed the offence of dowry death and

having accepted the dowry before marriage and subseque nt

to the marriage and hence, the accused persons were

registered for the above offences.

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9. The prosecution mainly relies upon the evidence of

P.W.1 to P.W.35. The witnesses P.W.4 to P.W.9 have

completely turned hostile and so also P.W.6 to P.W.7,

P.W.13 to P.W.15 have also turned hostile and they

categorically says that they do not know anything about the

harassment or ill-treatment given by the accused person s

with respect to the demand for remaining dowry.

10. The other witness is P.W.16 - goldsmith who

prepared the gold at the time of marriage and his evidence

is not necessary since who had prepared the gold orname nt

at the time of marriage is not relevant.

11. The other witness is P.W.18 also turned hostile and

she do not know anything about the harassment or ill

treatment.

12. The witness P.W.21 who is the inquest mahazar

witness drawing of mahazar in terms of Ex.P.41 and thi s

witness turned hostile except admitting the signature in the

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mahazar and so also P.W.22 seizure witness and drawn the

seizure mahazar in terms of Ex.P.2, but this witness i s

hearsay witness and says that accused No.1 had dou sed

the kerosene on the deceased and lit her with fire an d

thereby killing her but in the cross-examination, he admits

that concerned Police had not called him to witness as a

panch witness. The witness volunteers that he was a long

with the complainant. So also P.W.23 is seizure mah azar

witness of Ex.P.2 i.e., seizure of half burnt nighty, saree,

petticoat, kerosene can and this witness in the cross -

examination says that he do not remember the date on

which the said mahazar was drawn, but had visited the

hospital.

13. The witness P.W.24 is the Taluk Executive

Magistrate who had called for conducting the inquest

mahazar and says that he came to know that the dec eased

died due to dousing of kerosene and litting fire on t he

victim by accused No.1 and 2 and he is hearsay witness.

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14. The witnesses P.W.25 and P.W.26 who are

witnesses who seized cloth and gold and they have t urned

hostile and the witness P.W.27 also turned hostile in

respect of Ex.P.42 and Ex.P.43 respectively.

15. Having considered these witnesses who have not

supported the case of prosecution and turns hostile an d

they are also the hearsay witnesses, this Court has to

consider the remaining evidence before the Court.

16. The witnesses P.W.1 to P.W.3 who are father,

mother and sister of the deceased. The witness P.W. 12 is

the brother of the deceased. The evidence of P.W.1 t o

P.W.3 is similar with regard to the demand and acceptance

before the marriage and also deposes that panchayath was

held in view of harassment, but says that daughter wa s

provided with medical treatment and came to know abou t

the incident, but P.W.1 says that both the accused tied her

legs and lit the fire and the same was revealed by th e

victim herself and she died at around 10:30 and identify the

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signature in Ex.P.14 and Ex.P.15 and so also identifies MO.1

to MO.4 and MO.10 to MO.13 and also identifies the

photographs and Ex.P.16 to Ex.P.22. This witness in t he

cross-examination admitted that the accused persons at the

time of marriage, requested that to perform the marriage

as per the customs and as per the customs, performed the

marriage. However, volunteers that they demanded dowry

and categorically admits that he was the only earning

member in the family and he has to maintain entire family

and categorically admits that he was not in a position to

give dowry and also categorically admits that accused

persons are well of that financially sound and they are

landlord.

17. The witness P.W.2- mother in her chief evidence

she re-iterated the evidence of P.W.1, but in the cro ss-

examination, she also admits that in the year 2013, her

daughter came to their house for delivery of second ch ild

and also admits that 10 days back she went to the house of

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accused and also categorically admits that she was a lso

present at the time of marriage talk and directly came and

gave the proposal and also categorically admits that they

requested to perform the marriage as per the customs. She

also admits that her husband is the only earning member in

the family and very difficult to manage the family out of his

income and categorically admits that due to the abov e

reasons, they have agreed to perform the marriage and

they were unable to perform the marriage in choultry and

the said talks were held during the time of the negotiation

and also given admission that as per their version, date was

fixed and performed the marriage. She admits that fathe r

of the accused having two wives and both the wives have

children.

18. The evidence of P.W.3-sister though reiterates

the evidence of P.W.1 and P.W.2 in her chief evidence and

categorically admits in the cross-examination that th ey

performed the marriage of the deceased as per their

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financial capacity and accused persons are also agreed for

the same. Though denied that they have not demanded the

dowry, she also categorically admits that father is the only

earning member in the family and not having financial

sound condition and difficult to save the money. It is also

elicited that as per Hindu customs, at the time of marriage,

even though no demand of dowry, provide chain, ear rin g

and other gold ornaments as per their financial condition

and also admits that they gave gift at the time of marriage.

She categorically admits that they were not affordab le to

perform the marriage in Choutri. They performed the

marriage in their house itself. She also admits that accused

persons are well of. The P.W.3 also admits that prior to this

incident, they have not given any complaint with the Police

for harassment.

19. The other witness is P.W.10 and though this

witness says that accused persons had demanded 120 g ram

of gold and Rs.40,000/- cash as dowry at the time of

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marriage negotiations, finally it was agreed to Rs.40,000/-

cash and 10 grams of gold, but the evidence of P.W.1 0 is

contrary to the evidence of P.W.1 to P.W.3. This witne ss

says that demand is 120 grams of gold, but P.W.1 to P.W.3

says that demand was 100 grams of gold and agreed to

give 100 grams of gold, but P.W.1 to P.W.3 says 8 tholas of

gold. In the cross-examination, though he says that he was

present at the time of negotiation before the marriage, but

he do not remember the date on which the said

negotiations had taken place. This witness is the relative of

the deceased that is deceased was daughter of his au nt.

But, in the cross-examination, he says that at the time of

negotiation, his father, mother and elder uncle and aunt

were present. He also categorically admits that accuse d

persons had requested the parents of the deceased t o

celebrate the marriage in accordance with their traditions

and customs and accordingly the marriage was celebrated.

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20. The other witness P.W.11 knows the complainant

and the deceased and he also reiterates in the line of

evidence of P.W.10 and he says that 60 grams of gold was

agreed, not as 8 tholas of gold, but he says that

Rs.40,000/- cash, but he says that the deceased was

subjected for physical and mental harassment to bring the

balance dowry of 20 grams of gold, but he says that h e

came to know that deceased had poured kerosene on

herself and had got lit the fire on herself. But, in the cross-

examination, though he says that complainant is not related

to him, he was not present at the time of marriage

negotiation in the house of the complainant and do not

know personally about the deliberations that had tak en

place with respect to the marriage and hence, this evidence

is also not helpful to the prosecution since he was not

present though he deposes with regard to demand of

dowry.

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21. The P.W.12 who is the brother and he also

reiterates the evidence of P.W.1 to P.W.3 like father,

mother and sister regarding demand and the balance of

giving of dowry of 20 grams of gold, but in the cross

examination, he categorically admits that at the tim e of

marriage negotiation he was residing in Mysore and he do

not know anything about the marriage negotiation that had

taken place prior to the marriage since he was residing at

Mysore and he do not know who were present at the time

of marriage negotiation and also he has not attended any

panchayath conveyed regarding harassment. This evide nce

also not helpful to the prosecution.

22. The other evidence available before the Court is

evidence of P.W.17. This witness says that negotiations had

taken place about 3 years back and the marriage was

celebrated after 1 month from the date of negotiation and

he reiterates the evidence of accepting to pay the

Rs.40,000/- cash and 8 tholas of gold and paid the

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Rs.40,000/- in cash and 6 tholas of gold. This witness says

that an attempt was made to kill the deceased by po uring

kerosene on her and came to know about the same. But , in

cross examination, he admits that complainant is his uncle.

He do not remember the date on which the marriage

negotiation had taken place. He further admits that he was

not called for the marriage negotiation that had taken place

at the house of the complainant and also admits that since

he had not attended the marriage negotiation, he do n ot

know anything about the incident. This evidence als o will

not comes to the aid of the prosecution to prove the

charges levelled against the accused.

23. The other witness P.W.19 says that during the

time of negotiation, accused No.1 and 2, his father and

other persons were present from their side and settled for

Rs.40,000/- cash and 60 grams of gold and also speak s

about the incident and deceased died due to burn in jury

which she had sustained due to the act of accused No.1 and

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came to know that accused No.2 was not in her house and

she was present at the Hospital. This witness also subjected

to cross-examination and in the cross-examination, he says

that he cannot remember the date when the marriage

negotiations had taken place and further admits that

accused persons had requested the complainant and his

family members to get the marriage celebrated in

accordance with their financial capacity and further

admitted that at the time of marriage deliberations as per

the traditions and customs prevailing in the Hindu

community, the bride will be gifted with gold ornamen ts

even though demand is not made. Further, he admits t hat

complainant and his family members have celebrated th e

marriage in accordance with their financial conditions and

hence, this evidence also very clear that marriage w as

performed as per Hindu customs. He categorically says that

he had not participated in any of the Panchayaths conveyed

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by the complainant with accused persons. He do not k now

about the incident.

24. Now, the evidence remains before the Court is

P.W.29-Tahasildar who had visited the hospital at ab out

7:30 p.m., and in the presence of the Doctor, recorded the

statement of the victim and medical officer had exam ined

the victim and certified that she was in a condition to give

her statement. At the time of recording the statement, put

the questions and satisfied with regard to the condition of

the victim and she was in a position to give her statement.

The statement of the victim was recorded from 7:30 p.m .,

and in the form of questionnaire till 9:00 p.m., and also put

preliminary questions to the victim in order to satisfy

himself. However, he had noticed that the face of the victim

and her hands and the body was burnt, even then she w as

conscious and was attentive to his questions and given the

statement. It is also the evidence that both the hands of

her were burnt and she was unable to affix her signature to

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the same and obtained the thumb impression of her lef t

foot to the said dying declaration and identified Ex.P.45 –

dying declaration. This witness was subjected to cros s-

examination and it is suggested that victim was

unconscious when she had visited the hospital and t he

same was denied. When she had visited the ward, she was

sleeping, but however, she was in a condition to give the

statement. In the cross-examination, it is elicited that when

he had enquired her, who was responsible for her condition

and who had brought her to the hospital, she had stat ed

that she was brought in an ambulance to the hospital by

her husband himself.

25. The other witness is P.W.31-Doctor who

conducted autopsy and taken note of injuries and sustained

the injuries to the extent of 90%. He opined that the death

was caused due to neurogenic shock and as a result of burn

injuries and issued the certificate in terms of Ex.P.47. In the

evidence of P.W.31, when the suggestion was made tha t if

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a person douses with kerosene and lits fire with an

intention to kill, there is a chances of sustaining the

abovementioned injuries and it is likely that death may be

caused due to the said burn injuries. This witness w as

subjected to cross-examination. In the cross-examinat ion,

suggestion was made that she had suffered 100% burns

and the same was denied. But he says that sustained more

than 90% burn injuries in his autopsy report and admits

that generally if a person sustained more than 90% bur ns,

then the chances of sustaining complete burn injuries on his

eyes, face, hands, fingers, toes and palm is correct. It is

also suggested that there would be chances of sustai ning

the above mentioned burn injuries as mentioned by hi m in

the autopsy report that if a person catches accidental fire

by bursting of kerosene stove and the same was denied.

26. The other witness is P.W.32 who was present in

the Hospital and request was made to him to state abo ut

the victim's condition to give statement. He examined her

26

at 6:25 p.m., and endorsed on the said requisition th at

patient was capable of giving her statement and also affixed

his signature to the said letter, after that the concerned PSI

had recorded the statement of the injured in his presence

along with the staff, he identified Ex.P.48 and signature as

Ex.P.48(a). It is also his evidence that after the intimation

sent to the Executive Magistrate, she had visited th e

concerned ward at 7:30 p.m., and once again Executiv e

Magistrate had enquired about him with regard to the

condition of the injured and on examination and

confirmation that she was able to give statement. Th e

Executive Magistrate also recorded the statement of t he

injured as per Ex.P.45. In the cross-examination, he admits

that when the information was received, he was in th e

casualty department and received the intimation at 6: 25

p.m., and within a span of 2 or 3 minutes after receiving

the intimation, he had examined the victim in burns ward

and he doesn't remember who exactly were present along

27

with the injured, but there were 2 to 3 persons and sen t

them outside while recording the statement. The Poli ce

started recording the statement within 5 to 10 minutes

after issuing the intimation at 6:25 p.m., the statement was

recorded for 15 minutes. It is elicited that injured h as

sustained burn injuries on her face, mouth, eyes and other

parts of the body and it was burnt completely. The

suggestion was made that she was not in a condition to

give any statement due to the severe burn injury and the

same was denied. It is suggested that if a person sustained

burn injuries to an extent of 50%, he cannot be in a

position to speak and give statement and the same w as

denied. But witness says that he was present when t he

Executive Magistrate had visited the hospital and recorded

the statement. But, Executive Magistrate has not given any

requisition to record the statement of the injured, likewise

he has not issued any certificate about the physical

condition and fitness of the injured to give statem ent.

28

However, he has certified in the printed format on whi ch

the Executive Magistrate had recorded the statement o f

injured.

27. The other witnesses is P.W.33 who had

conducted the inquest mahazar in the presence of

witnesses and recorded the statement of Smt.Rathnamm a,

Mohankumari, Smt.Sannamma, Devaraju and Swamy at

the time of inquest and inquest is marked as Ex.P.41 . In

the cross-examination, it is elicited that at the time of

conducting the inquest mahazar, the eyes, face, Head ,

mouth, hands and legs including fingers and toes of the

deceased were burnt.

28. The other witness is P.W.34-PSI. In his evidence,

he says that he had received the requisition from the

Hassan Govt. Hospital at 5:30 p.m., and visited the hospital

at 6:30 p.m., and collected the intimation. Intimat ion is

marked as Ex.P.30. It is his evidence that immediately he

had visited the burn spot and injured was admitted an d

29

requested the duty Doctor by name Prashanth to give h is

opinion about the injured and being capable of giving her

statement, Doctor certified the same, then sent a

requisition to the Executive Magistrate to record the dying

declaration of the injured. He had recorded the statement

of injured in the presence of medical officer Dr.Prashanth

between 7:50 p.m., to 8:20 p.m., and he identifies Ex.P.48

and signature of this witness is marked as Ex.P.48(b) and

also it is his evidence that he was directed by the DYSP to

apprehend the accused persons and accused No.1 was

arrested and produced before him. This witness was

subjected to cross examination and in the cross

examination, he admits that injured had sustained b urn

injuries on her body and deposes that he cannot say

whether she had sustained burn injury all over the body

and all other suggestions made that she was not in a

position to give any statement was denied.

30

29. The other witness is P.W.35-Police

Superintendent. In his evidence, he says that he had

received the intimation of death of the injured at a bout

10.30 a.m., and immediately sent the requisition to the

Executive Magistrate to conduct the inquest and also visited

the place of incident and conducted the mahazar at the

place of incident as per Ex.P.2 in the presence of pa nch

witnesses and identifies the signature in Ex.P.2 and also

seized the MO.1 to MO.4 and rough sketch is also prepared

as per Ex.P.54 and signature of this witness is marked as

Ex.P.54(a) and also photographs were taken in terms of

Ex.P.16 to Ex.P.22 and mahazar was conducted regardin g

seizure of the cloth and also identifies MO.10 to MO.16 and

also enquired the accused person and had recovered one

shirt, pant and one match box from the accused person by

drawing the mahazar as per Ex.P.43 and also gold

ornaments and cash as per Ex.P.46 by drawing the

mahazar in the house of the accused when the complai nant

31

had taken them and identifies MO.5 to MO.9 and also says

that statements of witnesses are recorded on different

dates and also requested to prepare the sketch and al so

received the FSL as per Ex.P.55 and autopsy document a nd

after completion of investigation, filed the charges sheet.

This witness was subjected to cross-examination. In the

cross-examination, he admits that he mentioned the d ate

on the document in which he affixed his signature. Further

admits that he affixed his signature to the document along

with date on the date of preparing the said document . He

issued the notice to the panch witnesses at the tim e of

conducting the mahazar at Ex.P.2 and visited the plac e of

incident. It is suggested that he did not visit the place of

incident nor he had drawn any mahazar as per Ex.P.2 and

neither he had recovered MO.1 to MO.4. In the cross-

examination suggestions are made that he has not don e

Ex.P.2, Ex.P.54 and not collected MOs and also the

photographs and also not drawn the mahazar in terms of

32

Ex.P.43 and the said suggestions are denied. However , he

admits that he had not mentioned the denomination o f the

currency notes which he had recovered under the mahaza r

Ex.P.46 and all other suggestions are denied.

30. Having considered both oral and documentary

evidence in detail, this Court has to examine whethe r the

Trial Court has rightly appreciated the evidence available on

record in convicting and sentencing accused Nos.1 and 2.

31. The law was set in motion by recording the

statement of injured victim and this Court has to consider

the evidence of P.W.34, who recorded the statement. The

P.W.34 says that he received a requisition from the Hassan

Government Hospital at about 5.30 p.m. through wireles s

message, wherein he was intimated that a person was

admitted to the hospital with the history of burn injury. He

had visited the hospital at about 6.00 p.m. and had

collected the intimation in the police outpost at the hospital

which is marked as Ex.P50. It is his evidence that he had

33

visited the Burns Ward where the injured was admitted and

had requested the duty doctor P.W.32 to give his opin ion

about the injured being capable of giving her stateme nt.

The duty doctor certifies that she is in fit condition to give

statement. At the same time, he also sent a requisition to

the Executive Magistrate to record the dying declaration of

the injured. Since, the doctor had given the opinion that

injured is capable to give statement and recorded the

statement of the injured in the presence of Medical Officer

P.W.32 between 7.50 p.m. to 8.20 p.m. and the same i s

marked as Ex.P48 and identified his signature as Ex.P48(a).

Thereafter, issued FIR and sent the same to the Court and

on account of death of the injured invoked Sections 302

and 304(B) of IPC sending the requisition Ex.P52 and

thereafter accused No.1 was arrested and produced befo re

the Deputy Superintendent of Police. In the cross-

examination, P.W.34 says that having received the

intimation, reached the Burns Ward and when he visited the

34

Burns Ward, the Medical Officer was very much present and

hospital staff and his staff were also present while getting

the permission from the doctor. But, it is an admitted fact

that injured had sustained burn injuries on her body. The

witness deposes that he cannot say whether she had

sustained burn injuries all over the body. Hence, this Court

has to take note of the evidence of P.W.32.

32. P.W.32-Doctor says that he had examined the

patient at 6.25 p.m. having received the letter from the PSI

and endorsed on the said requisition that patient is capable

to give statement and PSI recorded the statement in his

presence. But, the evidence of P.W.34 is that the doc tor

was present when he had visited the Burns Ward. But,

P.W.32 says that when he received the information from

the concerned police, he was in the Casualty Depart ment

and was not in the Burns Ward. It has to be noted tha t

P.W.32 says that he received requisition at 6.25 p.m. and

police started recording the statement of the injured within

35

5 to 10 minutes after receiving the intimation at 6.25 p.m.,

then it would be around 6.30 to 6.40 p.m. But, the

evidence of P.W.32 is that he recorded the statement of the

injured in the presence of Medical Officer at 7.50 to 8.20

p.m. Hence, very recording of statement of the injured

itself is doubtful and it ought to have been only before 7.00

p.m. as per the evidence of the Doctor.

33. It also important to note that P.W.34 says that he

sent a requisition to the Magistrate at 6.30 p.m. and this

Court has to peruse the evidence of P.W.29-Magistrate i.e.

Tahsildar, who recorded the statement of the injured from

7.30 p.m. onwards having visited the hospital at 7.30 p.m.

The evidence of P.W.29 is that he recorded the statem ent

from 7.30. p.m., that too in the form of a questionnaires till

9.00 p.m. i.e., from 7.30 to 9.00 p.m. Hence, it crea tes

doubt in the mind of the Court with regard to recording the

statement by PSI in between 7.50 p.m. to 8.20 p.m. a nd

the timings of recording the statement of injured overlaps

36

with each other. No doubt, the second dying declara tion

was recorded by P.W.29 is from 7.30 to 9.00 p.m., there is

no endorsement for having certified the same. P.W.32-

Doctor in his evidence regarding recording of dying

declaration by the Magistrate categorically admits tha t

Executive Magistrate had not given any requisition to record

the statement of the injured. Likewise, he has not issued

any certificate about the physical condition and fitness of

the injured to give her statement. However, claims tha t

certified in the printed format on which the Executiv e

Magistrate had recorded the statement of the injured.

34. It has to be noted that on perusal of Ex.P45,

except making the signature, there is no such endorsement

and only says that her statement was recorded at 7.30 p.m.

and there is no endorsement that she is fit to give

statement and not certified the document at Ex.P48. B ut,

on perusal of Ex.P45-second dying declaration, she onl y

says that husband made galata in respect of the morni ng

37

breakfast that she has put more salt and also says t hat

quarrel had taken place regarding demand of dowry. Th e

first dying declaration was recorded by P.W.34-PSI, wherein

detailed statement was made regarding her marriage was

solemnized 6 years ago and her parents gave 6 tholas o f

gold and not given 2 tholas of gold and when she ca me

back, objected that she came late and continuously made

galata and on that day also, he abused regarding breakfast

and also she did not bring dowry amount and questione d

why she did not bring the bed. But, the fact is that in the

very statement it is made clear that marriage was

solemnized 6 years ago and question of bringing the b ed

after 6 years is also doubtful.

35. It is also important to note that specific

statement is made that husband poured the kerosene wh ich

was lying in the kitchen and set fire and mother-in- law

came and extinguished the fire by pouring water. But, the

P.W.1 in his chief evidence regarding the statement m ade

38

by the victim says that accused Nos.1 and 2 i.e., husband

and mother-in-law quarreled with the victim and tied her

legs and both of them poured kerosene and set the f ire.

P.W.1 says that on enquiry, her daughter revealed the

same. There are material contradictions with regard to

making such statement before the Tahsildar, PSI as well as

before the father and these material contradictions w ere

not taken note of by the Trial Court while appreciating the

evidence. The timings mentioned by P.W.33, P.W.29 and

P.W.32-Doctor overlaps with each other. P.W.32-Doctor

says that he was in Casualty Department when he recei ved

the intimation and requisition and P.W.33 says that h e

directly went to Burns Ward, wherein doctor was present

and recorded the dying declaration. Hence, it is very clear

that the case of the prosecution is not definite and

trustworthy with regard to recording of dying declaration.

36. No doubt, if any statement is recorded by the

police under Section 161 of Cr.P.C and based on that

39

statement, FIR is registered, the Court can look into the

same as held by the Division Bench judgment of Alla habad

High Court in GULAB SINGH vs. STATE Of U.P. reported

in 2003 (47) ACC 161 (ALL) (DB). But, the Court has to

only see the statements of victim under Section 161 of

Cr.P.C was found worthy to be relied upon as dying

declaration. The Court also taken note of dying declaration

recorded by police in the presence of other prosecuti on

witnesses is valid and the same is reliable and cannot be

doubted on the ground that the statement is not prod uced

to police, but produced before the Court directly in the

judgment in DORYODHAN vs. STATE OF MAHARASHTRA

reported in 2003 (1) JIC 184 (SC).

37. It is also to be noted that when there are

multiple dying declarations, the Court has to see the

evidentiary value of the same and the duty of Court is that

each dying declaration should be considered independ ently

on its own merits. One cannot be rejected because of

40

contents of other in cases where there is more than one

dying declarations, it is the duty of the Court to consider

each one of them in its correct perspective and satisfy itself

that which one of them reflects the true state of affairs as

held in the three Judge Bench judgment of the Apex Co urt

in MUKESH vs. STATE FOR NCT OF DELHI & OTHERS

reported in AIR 2017 SC 2161.

38. In the judgment of the Apex Court in RAJU

DEVADE VS. STATE OF MAHARASHTRA reported in AIR

2016 SC 3209, the Apex Court held with regard to

successive dying declaration and their appreciation where

there are more than one statement in the nature of dyi ng

declaration, one first in point of time must be preferred and

also held that, of course, if the plurality of dying declaration

could be held to be trustworthy and reliable and then only,

it has to be accepted as held in the judgment in MUKESH

vs. STATE FOR NCT OF DELHI & OTHERS reported in

AIR 2017 SC 2161 as well as MOHANLAL GANGARAM

41

GEHANI vs. STATE OF MAHARASHTRA reported in

(1982) 1 SCC 700.

39. In the case on hand, it has to be noted that foot

print was taken and evidence also emerges that all over the

body, there were burn injuries and entire body was bur nt

including foot of the victim as admitted by P.W.33. The PM

report also discloses burn injuries to the extent of 90% and

external injury is also very clear that there were number of

injuries i.e., six in number and entire body was burnt and

PM report is also clear that injuries are ante mortem and

surface area burn injuries sustained more than 90%. Whe n

such being the evidence before the Court and entire body

was burnt, again it creates doubt in the mind of the Court

whether the injured can make such statement. The opi nion

of the doctor for cause of death was due to neurogen ic

shock, as a result of burn injuries sustained. When t he

death is due to neurogenic shock as a result of burn injuries

all over the body and having taken note of material

42

contradictions available on record, the very presence of the

doctor and recording of statement of the injured-victim is

doubtful and timings of recording the evidence of the victim

also overlaps with each other of two statements and the

same not inspires the confidence of the Court and the Trial

Court has not considered the dying declaration which is not

reliable having noted the material contradictions.

40. Now coming to the aspect of harassment and

demand of dowry is concerned, the Court has to take n ote

of evidence available on record, particularly father, who has

been examined as P.W.1, mother who has been examined

as P.W.2, sister who has been examined as P.W.3 and

brother of the deceased was examined as P.W.12.

Admittedly, at the time of marriage talk, brother was not

present and his evidence cannot be relied upon and he also

categorically admits that he is the resident of Mysuru and

he was not present at the time of negotiation. But, in the

cross-examination of P.W.1 to P.W.3, though they have

43

deposed with regard to demand and acceptance of dowry of

Rs.40,000/- and 6 thola of gold, P.W.1-father categorically

admitted in the cross-examination that family membe rs of

the accused requested to perform the marriage as per

Hindu customs and the witness also volunteers to state that

accused demanded dowry. But, the admission is very c lear

that he was the only earning member in the family an d he

was having the responsibility to maintain the family .

Further, he admits that he was not in a position to g ive

dowry and accused persons were well-off and they are the

landlords. It is also admitted that while performing t he

marriage, usually both the families will put gold i.e., bride's

side and also bridegroom. But, he claims that dowry

amount was given 2 days earlier and no complaint was

given prior to this incident. He also admits that in the said

wedlock, there were two children, one is aged about 4 years

and another one is 2 years. He also admits that husband is

taking care of one child and he is taking care of another

44

child. It is elicited that she went to matrimonial home 1

month earlier. Though it is suggested that she went ten

days earlier and no doubt, the amount of Rs.40,000/- was

recovered from the house of accused, but the same is n ot

the dowry amount which they have allegedly given 6 y ears

ago.

41. The evidence of P.W.2 is also in line of P.W.1

that usually both families will put gold ornaments at the

time of marriage and she also admits that her husband was

the only earning member taking the responsibility of the

family and he was a coolie. It is categorically admitted that

they were in poor condition and at the time of marriag e

talk, they told the accused that they are going to perform

the marriage as per their financial capacity and they also

agreed to perform the marriage and even they were not

capable to perform the marriage in choultry and hence,

marriage was performed in the residence itself. She als o

admits that in the year 2013, the daughter came to he r

45

house for delivery of second child and she says that she

went ten days prior to this alleged incident.

42. The admission on the part of sister of victim

P.W.3 is also in line with the admissions given by P.W.1 and

P.W.2 that they had told the accused that they are going to

perform the marriage as per their financial capacity a nd

accused persons had also agreed for the same. She als o

admits that her father is the only earning member and the

accused persons are well-off and they were having difficulty

to save money and also admits that while performing

marriage, both the families will put gold arguments. S he

also admits that marriage was performed in the house,

since they were not able to perform the same in the

choultry and accused are well-off. She also categoric ally

admits that they have not given any complaint about the

harassment against the family of the accused.

43. No doubt, the prosecution relies upon the

evidence of P.W.10 regarding negotiation. But, his evidence

46

is that agreed to give 100 grams. But, others say tha t it

was 80 grams and reiterates with regard to harassment i s

concerned. But, in the cross-examination, categorica lly

admits that at the time of negotiation, his father, mother

and elder uncle were present and also admits about

performing the marriage in accordance with their traditions

and customs.

44. The other witness is P.W.11, who says about

demand of dowry of Rs.40,000/- and agreed to give

Rs.40,000/-. But, others say that accused demanded

Rs.60,000/- and agreed to give Rs.40,000/-. This wit ness

also say that agreed to give 60 grams of gold and hi s

evidence is also contradictory and it is very clear that he

was not present at the time of marriage negotiation. Hence,

the evidence of P.W.11 also cannot be relied upon.

45. No doubt, P.W.16-Goldsmith says about

preparation of gold at the time of marriage and the sam e

47

will not come to the aid of prosecution to prove the cruelty

and harassment.

46. P.W.17 says marriage negotiation had taken

place about 3 years back and the marriage was celebrat ed.

But, marriage was held 6 years ago. Admittedly, this

witness says that dowry was given. But, in the cross-

examination admits that complainant is her uncle and she

does not remember the date on which the negotiation h ad

taken place and she was not called for the marriage

negotiation and the marriage had taken place at the house

of the complainant and she had not attended the mar riage

negotiations and she does not know anything. This

admission takes away the case of prosecution.

47. The other witness is P.W.19, who also says that

she does not know how many months prior to the marriage

the marriage negotiations had taken place. At the tim e of

negotiation, accused Nos.1 and 2, his father and mot her

were present from their side. But, in the cross-examination,

48

this witness also cannot say the date when the marria ge

negotiation had taken place and admits that accused

persons had requested the complainant and his famil y

members to get the marriage celebrated in accordance w ith

their financial capacity. She further admits that at the time

of marriage celebrations as per the traditions and customs

prevailing in Hindu community, the bride will be gifted with

gold ornaments, even though no demand is made and th e

complainant's family celebrated the marriage in accordance

with their financial conditions. This witness also states that

she had not participated in any of the panchayath convened

by the complainant with the accused persons.

48. Having reassessed both oral and documentary

evidence available on record, it is very clear with regard to

demand of dowry is concerned and no independent

witnesses support the case of the prosecution and even the

evidence of related witnesses' also not inspires the

confidence of the Court that the accused demanded do wry

49

and dowry was given and none of the witnesses say th at in

their presence dowry was given. The Trial Court failed to

take note of all these evidence available before the Court

with regard to demand and acceptance of dowry and eve n

subsequent demand of dowry and harassment is concerned .

Having reassessed both oral and documentary evidence, we

do not find any ground to accept the reasoning of the Trial

Court having considered the admission of P.W.1 to P.W. 3

with regard to their capacity and marriage was performed

as per their financial capacity and the same is agreed by

the witnesses and Trial Court committed an error and los t

sight of all these evidence available on record whi le

appreciating the evidence. While convicting the acc used,

prosecution must prove the case beyond reasonable dou bt

and the same is not proved.

49. The other circumstance relied upon by the

prosecution is seizure of cloth of the accused and there is

an acknowledgement in terms of Ex.P55 and also FSL

50

report in terms of Ex.P56. If really, the accused had poured

kerosene and set fire, there would have been kerosene

smell in the cloth belonging to accused and item No s.10

and 11 i.e., shirt and pant of the accused is very clear that

it was not burnt, no specific smell observed, packed in a

plastic cover and FSL report also not supports the case of

the prosecution and this report is also not properly taken

note of by the Trial Court, while appreciating the evidence

available on record. No doubt, PM report Ex.P47 is very

clear that cause of death is an account of neurogenic shock,

but none of the witnesses say that accused himself poured

kerosene.

50. This Court has already taken note of the fact

that evidence of P.W.1 is contrary and Ex.P45 and Ex.P4 8

only points out the role of the accused pouring kerose ne

and setting the fire. The very case of the prosecution is that

mother-in-law extinguished the fire by pouring water. But,

there is an improvement in the case of the prosecution as

51

per the evidence of P.W.1 and there are material

contradictions and the same was not taken note of and also

the dying declarations Ex.P45 and Ex.P48 cannot be

believed in view of 90% burn injuries and PM report a lso

discloses 90% burn injuries all over the body. Though, it is

categorically suggested to the witnesses that no such dying

declaration was recorded and though the same was denie d,

but having considered factual aspects and circumsta nces

under which both the documents came into existence, the

same cannot be reliable.

51. This Court has also taken note of the principles

laid down in the judgment of the Apex Court referred

(supra) when there are suspicious dying declarations. The

Apex Court in the judgment in RASHEED BEG vs. STATE

OF M.P. reported in (1974) 4 SCC 264 held that when

dying declaration is suspicious, it should not be acted upon

without corroborative evidence. In the case on hand, there

is no corroborative evidence.

52

52. The Apex Court also in the judgment in KAKE

SINGH vs. State of M.P. reported in 1981 Supp SCC 25

held that when maker of dying declaration is unconscious,

where the deceased was unconscious and could never m ake

any dying declaration, the evidence with regard to it is to

be rejected. Though, P.W.32 says that he was conscio us

and capable, but no certificate is given. When the d ying

declaration was recorded by P.W.29-Tahsildar and there is

no such endorsement, except made the signature and wi th

regard to injured was conscious, nothing is placed on record

that injured was capable to make such statement and no

such separate certificate is issued.

53. Even having perused the document of dying

declaration also, except the doctor making counter

signature, nowhere he has certified that able to make

statement. Though P.W.32 says that gave the separate

certificate before recording of statement by PSI, no such

separate certificate is also placed before the Court. When

53

such being the case, the case of prosecution even in respect

of dying declaration cannot be accepted.

54. No doubt, the Apex Court in Five Judge Bench

judgment in LAXMAN vs. STATE OF MAHARASHTRA

reported in (2002) 6 SCC 710 held that presence of

Magistrate at the time of recording the dying declaration is

also not necessary, although to assure authenticity it is

usual to call a Magistrate, if available to record dyi ng

declaration. Person who records dying declaration must

essentially be satisfied that the deceased was in a fit state

of mind and the same is not found in the case on ha nd.

Even in the very same judgment, the Apex Court held t hat

no statutory form for recording dying declaration is

necessary. Though, P.W.29 records the dying declaration in

a questionnaire form and the same is not warranted, a

dying declaration can be made verbally or in writing and by

any method of communication like signs, words or

otherwise provided the indication is positive and definite.

54

Even verbal dying declaration also could be made reducing

the dying declaration to writing is not mandatory. In the

very same judgment, the Apex Court discussed in detai l

with regard to validity of dying declaration. The Apex Court

in the very same judgment held that certificate by th e

doctor regarding mental fitness of the deceased is not

necessary because certificate by doctor is only a rule of

caution and voluntary and truthful nature of the declaration

can be established otherwise also. But, the fact is that the

very recording of dying declaration in the case on hand is

contrary to each other as well as timing of recording the

statement of victim overlaps with each other and there

cannot be two dying declaration in the very same time

between 7.30 to 9.00 p.m. by PSI as well as by Tahsildar.

55. The Apex Court also in the judgment in RAJU

DEVADE vs. STATE OF MAHARASHTRA reported in AIR

2016 SC 3209 held that mere absence of a certificate of

doctor would not render the dying declaration unreliabl e

55

particularly, when the doctor was not present in the

hospital at the relevant time. But, the Court has to take

note of contradictory dying declaration and their

appreciation as held in the judgment in SANJAY vs. STATE

OF MAHARASHTRA reported in AIR 2007 SC 1368 ,

where there are different contradictory dying declarations,

the accused is entitled to benefit of doubt and acquittal. In

the case on hand, it has to be noted that when PSI h as

recorded dying declaration in detail, but in the second dying

declaration, statement was made with regard to dowry

harassment. It has to be noted that specific case of the

defence is that accused was not present at the time of the

incident and he was in the garden land. But, witnes ses

categorically admit that accused himself admitted her to the

hospital along with her brother and there are material

contradictions and the same goes to the very root of t he

case of the prosecution. When such being the case, we are

of the opinion that the Trial Court committed an error in

56

relying upon the dying declaration as well as oral evidence

of interested witnesses and failed to take note of material

contradictions which creates doubt in the mind of the Court

and the evidence of prosecution is not reliable and there are

inconsistencies and infirmities in the order of the Trial Court

while appreciating the evidence and the Trial Court no t

considered the legal evidence while convicting the accused.

Hence, we answer point Nos.(1) and (2) as ‘affirmative’.

Point No.(3):

56. In view of the discussion made above, we pass

the following:

ORDER

(i) The criminal appeals are allowed.

(ii) The judgment of conviction and sentence

passed in S.C.No.80/2015 dated

22.08.2019 is set aside. Consequently, the

accused No.1 is acquitted for the offence

punishable under Sections 498-A, 302 and

57

304-B of IPC and Sections 3 and 4 of the

DP Act and accused No.2 is acquitted for

the offence punishable under Section 498-A

read with Section 109 of IPC and Sections

3 and 4 of the DP Act.

(iii) If any bail bond is executed by the

appellants, the same shall stand cancelled.

(iv) If appellants/accused have deposited any

fine amount, the same shall be refunded to

the appellants/accused on proper

identification.

(v) If the appellants are undergoing sentence,

the jail authorities are directed to set at

liberty, forthwith, if they are not required in

any other case.

Sd/-

(H.P. SANDESH)

JUDGE

Sd/-

(VENKATESH NAIK T)

JUDGE

RHS/ST