published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40519
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2007
KASHI VISHWANATH … APPELLANT
Versus
STATE OF KARNATAKA … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
The appellant, who is accused No.1, by this appeal has challenged the
judgment dated 27th July, 2004 in Criminal Appeal No.347 of 2001 passed by the
Division Bench of the High Court of Karnataka at Bangalore whereby the High
Court affirmed the conviction and sentenced imposed by the trial court under
Section 498-A and 302 read with 34 IPC. So far as accused No.2 is concerned, the
High Court acquitted her of all the charges levelled against her.
2. The appellant along with other accused faced charges punishable under
Section 498-A and 302 read with 34 IPC. The First Additional Sessions judge,
Dharwad, sitting at Hubli by his judgment dated 1st February, 2001 in Sessions
Case No.119 of 2000, acquitted accused No.2 under Section 235(1) Cr.P.C. of thePage 2
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offences under Sections 498-A and 302 IPC but convicted accused Nos.1 and 3
under Section 235(2) Cr.P.C. for the offences under Sections 498-A and 302 read
with Section 34 IPC. They were sentenced to undergo rigorous imprisonment for
one year by each and to pay fine of Rs.1,000/- by each, in default to undergo
further rigorous imprisonment for one month, for offence under Section 498-A
IPC. They were sentenced to undergo life imprisonment and to pay find of
Rs.2,000/- by each, in default, to undergo rigorous imprisonment for three months
by each for the offence under Section 302 IPC.
In appeal, the High Court by its judgment dated 27th July, 2004 allowed the
appeal in part. The judgment of conviction and sentence passed by the Sessions
Judge as against accused No.1 (first appellant before the High Court) for the
offence under Section 498-A and 302 read with 34 IPC was confirmed giving rise
to this appeal and as against accused No.2 (second appellant before the High
Court), she was acquitted of all the charges levelled against her.
3. The case of the prosecution, in brief, as unfurled before the trial court is as
follows:
The deceased, Neelamma (alias Leelamma) got married to the appellant
herein 13 years prior to the incident. The date of the incident is 14th January, 2000.
Out of the wedlock, they have two sons and a daughter and they were all living at
Mantur Road, Ambedkar Colony, Hubli. According to the prosecution, thePage 3
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relationship between the husband and wife was cordial till two years prior to the
incident. The disruptions started in the family on account of the appellant
developing intimacy with one Lakshmi, who was accused No.3 and was the second
appellant before the High Court. In this regard, in spite of intervention of the
family members of the parental house of the deceased and persistent resistance of
the deceased, the said affair of intimacy continued. There used to be bickering and
quarrels between the husband and wife in this regard. Though accused No.2, the
mother of the appellant was living with them, she never tried to patch up the
differences between the husband and wife. Ultimately, on 14th January, 2000, at
about 10.00 a.m. in the matrimonial home of the deceased, accused Nos.1 and 3
doused deceased Neelamma and set her ablaze while accused No.2 was watching
outside. On the same day in the afternoon, she was shifted to K.M.C. Hospital,
Hubli and on admission, the Hospital authorities intimated the police who came
into picture at about 9.30-10.00 p.m. in the night. Prior to that, the Taluka
Executive Magistrate, PW-10, recorded her statement as per Ex.P.12. One more
statement, Ex.P.22 – dying declaration, came to be recorded by Rayappa, Police
Sub Inspector (PW-23), in the form of complaint in the presence of Dr. Bhimappa
(PW-22) and during the course of treatment, deceased Neelamma succumbed to
burns on 18th January, 2000 at about 6.15 p.m. On 15th January, 2000, at about 5.30
p.m., Ashok (PW-24), the Investigation Officer recorded the dying declaration
Ex.P.29 in the presence of Dr. Komal Prasad (PW-25). On the basis of Ex.P.22,Page 4
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investigation of the case commenced as against accused No.1 to 3. The kith and kin
of the deceased are examined as Pullayya (PW.5) - maternal uncle; Eliya (PW-6) –
father; Grasamma (PW-7) – maternal aunt; Padmavathi (PW-8) – mother and
Prabhudas (PW-9) – uncle of the deceased. The purpose of examining these
witnesses was to establish harassment, motive and oral dying declaration
implicating accused Nos.1 to 3. The independent witnesses, who were the
neighbours of the appellant i.e. Mansuresh (PW-11), Savakka (PW-13),
Kanechanamma(PW-14), (M. Saloman)PW-15 and Perumal (PW-16) were also
examined. Unfortunately, none of them have supported the case of the prosecution.
4. Ex.P.1, is the spot mahazar drawn in the kitchen of the matrimonial home of
the deceased where burnt clothes, burnt gunny bag, match box, match stick, a
kerosene stove, kerosene can were found. PW-2 and PW-3 were examined to
support the contents of Ex.P.2 to Ex.P.6 – mahazars seizing caste certificate and
marriage certificate revealing the relationship and the case of the deceased and
accused Nos.1 and 2. Ex.P.3 is the recovery of bed sheet alleged to have been used
by accused No.2 to extinguish the fire. Letters i.e. Ex.P8 & Ex.P9 alleged to have
been written by the appellant to the wife and parents in law, Ex.P.5 is the seizure
mahazar of letters (Exs.P.10 to P.11) alleged to have been written by the deceased
to her parents aunt and uncle and lastly Ex.P.6 is mahazar seizure of photographs
of the deceased revealing the burns. Peshalal (PW.4) was examined to speak thePage 5
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inquest over the dead body as per Ex.P.7 but turned hostile. Prabhakar (PW.21) was
also turned hostile. Dr. Radha (PW.17) was the Doctor at the casualty ward in
K.M.C. Hospital who entered the details in M.L.C. register and the relevant
document is at Ex.P.18. Dr. Jagadish (PW-18), conducted autopsy on the dead body
and issued Ex.P.19, the postmortem report opining that the death of the deceased
Neelamma was due to septicemia as a result of burns. Ex.P.20 is the sketch drawn
by PW-19. Dr. Bhimappa (PW-22) is the Head of Department of the Burns Ward in
whose presence Rayappa (PW-23), PSI, Bendigeri P.S., Hubli recorded the
complaint as per Ex.P.22 on 14th January, 2000 and sent FIR to the Court.
5. As noticed above, the learned Sessions Court based on the oral and
documentary evidence held accused No.1 and 3 guilty of the offence punishable
under Section 498-A and 302 read with 34 IPC. Accused No.2 mother-in-law of the
deceased was acquitted of all the charges levelled against her.
6. Learned counsel for the appellant contended that the prosecution absolutely
failed to establish any of the charges, much less, the charge under Section 302 IPC
in view of four dying declarations brought on record which are contrary to each
other. It was further contended that the oral declarations made before the kith and
kin of the deceased are not at all important or relevant in the light of the four dying
declarations. According to the learned counsel, the contents of Ex.P.18, Ex.P.12,
Ex.P.22 and Ex.P.29, if looked into carefully, would indicate the purpose of soPage 6
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many dying declarations coming into existence i.e. only to ensure that all the
accused are somehow roped in. Learned counsel for the appellant placed reliance
on the decisions of this Court in Mehiboobsab Abbasabi Nadaf vs. State of
Karnataka, (2007) 13 SCC 112, etc. which will be referred to in this judgment at
the appropriate stage.
7. In reply, learned counsel for the State submitted that Ex.P.18 was not a dying
declaration but the entries in the M.L.C. Register made immediately on the
admission of the patient to the Hospital. Ex.P.12 was the actual dying declaration
recorded by the Taluka Executive Magistrate (PW-10). Ex.P.22 was a complaint
recorded by Rayappa, PSI (PW-23), in the presence of Dr. Bhimappa (PW.22) and
further investigation was taken up. Therefore, the contents of Ex.P.12, according to
the counsel for the State have to be taken into consideration which is the earliest
dying declaration. He further contended that Ex.P.29 is more reliable because after
treatment for almost a day, when the patient was physically and mentally fit, the
same came to be recorded.
8. Learned counsel appearing on behalf of the appellant also raised doubt
relating to contents of Ex.P.12, Ex.P.22 and Ex.P.29, the three dying declarations
which were originally recorded in Kannada. According to the learned counsel for
the appellant, the deceased had no knowledge of Kannada language and could
speak only Telugu. Page 7
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9. We have heard the learned counsel for the parties at length and gone through
the entire material placed before us.
10. The kith and kin of the deceased who examined are: as Pullayya (PW.5) -
maternal uncle, Eliya (PW-6) – father, Gracemma (PW-7) – maternal aunt,
Padmavathi (PW-8) – mother and Prabhudas (PW-9) – uncle of the deceased. Their
deposition corroborates the case of the prosecution that one or two years prior to
the death of the deceased, everything seemed to be cordial between the husband
and wife (deceased). After the appellant joined the Railway services on
compassionate ground after the death of his father, the bickering and quarrel
commenced because of developing intimacy with a co-worker by name Lakshmi
who was the third accused. Ex.P.8 to P.11 are inland letters produced by the uncle
and father of the deceased, PW-5 and PW-6 and the letters pertaining to the year
1995 written by the deceased which say that except some harassment and illtreatment, there was no serious harassment to the deceased at the hands of her
husband and mother-in-law of the deceased. The letter written in the year 1999
only would indicate that on account of the appellant developing intimacy with
Lakshmi, he ill-treated and harassed her to the maximum extent possible. Accused
No.2, mother-in-law was only a spectator. This was her complaint or depression
recorded in her letters written to the kith and kin.
11. When we look into the statement of independent witnesses produced by the
prosecution, who are neighbours of the appellant i.e. Mansuresh (PW-11), Savakka
(PW-13), Kanechanamma(PW-14), (M. Saloman)PW-15 and Perumal (PW-16), we
find that none of them have supported the case of the prosecution.
12. In this case, we have noted that there is no eye-witness to the incident in
question. The prosecution primary relies on three dying declarations Ex.P.12,
Ex.P.22 and Ex.P.29. In support of those Exhibits the prosecution relied on the
statements of Tahsildar, Hubli (PW-10), Dhanjaya Kumar, PG student (PW-20)
present at the time of arrival of Maharudrappa, Tahasildar (PW-10) to the Burns
Ward. Dr. Radha (PW-17) who examined the deceased, Dr. Jagdish (PW-18), who
was working as Medical Officer on 14th January, 2000 and conducted the
postmortem, Dr. Bhimappa (PW-22), in whose presence Ex.P.22 was recorded,
Rayappa (PW-23), PSI, Bendigeri Police Station, Crime Branch, Hubli who
recorded the dying declaration (Ex.P.22) and registered the case, Dr. Komal Prasad
(PW-25), in whose presence Ex.P.29 was recorded, etc.
In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, (2007) 13 SCC
112, having noticed multiple dying declarations this Court held:
“7. Conviction can indisputably be based
on a dying declaration. But before it can
be acted upon, the same must be held to
have been rendered voluntarily and
truthfully. Consistency in the dying
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declaration is the relevant factor for
placing full reliance thereupon. In this
case, the deceased herself had taken
contradictory and inconsistent stand in
different dying declarations. They,
therefore, should not be accepted on
their face value. Caution, in this
behalf, is required to be applied.”
13. We will now examine the contents of three different dying declarations i.e.
Ex.P.12, Ex.P.22 and Ex.P.29 and the related prosecution witnesses who deposed in
support of such dying declarations.
Maharudrappa (PW-10), Tahasildar, Hubli recorded dying declaration
Ex.P.12, at 8.30 p.m. on 14th January, 2000 in Ward No.202, The deceased stated
that she was conscious to give answer the questions. She got married with the
appellant at the age of 26 years, about 13 years back. She had two sons and one
daughter. She was a housewife and her husband was working in Railways and used
to come home once in a week. She was staying at Mantur Road, Ganesh Pet, Hubli.
She stated that she had been brought at KMC Hospital, Hubli by her mother-inlaw, Smt. Polamma by auto rickshaw, after she being sustained burn injuries at
about 8.30 a.m. in her residence. At about 12 p.m. she had been admitted there for
treatment by her mother-in-law. Her husband had not come to see her after the
incident. Her mother-in-law was accompanying her in the Hospital. She further
stated that her husband (appellant herein) had illicit relations with one Lakshmi.
Every week he used to come home and for one or the other reason, used to fight
and beat her ruthlessly. Her mother-in-law used to keep quiet without objecting for
such acts of her son. It is stated in Ex.P.12 on the said date (14th January, 2000) at
about 8.30 a.m., when her children had gone out of the residence, her husband
had a fight with her and instigated her to pour kerosene upon her body. She
poured the kerosene on her body and her husband further poured kerosene
upon her and put on fire with match box. At that time her mother-in-law was
out of the residence. When the flame was catching her sari and burning her body,
her husband has not tried to douse the fire. Neighbouring people rushed to her
residence on hearing her screams and doused the fire by pouring water. Thereafter,
her mother-in-law had brought her to the Hospital by auto and admitted for
treatment. Both her husband and Lakshmi are responsible for her condition. In the
bottom of the Ex.P.12 where thumb impression of the victim is taken it is written
“read over and accepted to be correct".
14. The Tahasildar (PW-10) in his statement stated that while he was working as
Tahasildar in Hubli, on 14th January, 2000 at 7.25 p.m., he received a requisition
from Town Police Station, Hubli, to record dying declaration of Neelamma wife of
Kashi Vishwanath Murari. He had recorded the dying declaration of the said
Neelamma on 14th January, 2000 from 8.30 p.m. to 9.00 p.m. Doctor opined that
she was in condition to give dying declaration. He put the questions to NeelammaPage 11
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and she answered. After recording it, it was read over to her. Admitting its
contentions she put her thumb impression on it and Doctor also singed. Dying
declaration is marked at Ex.P.12, and the signatures of witness is marked at
Ex.P.12(a).
15. Dr. Dhanjaya Kumar (PW-20), who was working as P.G. student in K.M.C.
Hubli stated that on 14th January, 2000 at about 8.30 p.m. Tahasildar, Hubli came to
K.M.C. Ward No.202. He was on duty there. The Tahasildar asked him about the
patient’s condition. He examined the patient and she was fit to give statement. The
Tahasildar recorded the statement of the injured and he examined again and found
her alright. He was present when Tahasildar recorded the statement of the injured.
He had also signed on that statement. The signatures of the witness are marked at
Ex.P.12(b) and the certificate of the witness is marked at Ex.P.12(c). In the crossexamination he stated that Dr. A.S. Bekanalkar, Unit Chief did not give anything in
writing asking him to be present and examine the injured lady. The Tahasildar,
Hubli did not give requisition in writing with a request to be present there and
examine that injured lady. He has not given in writing separately about the fitness
condition of injured Neelamma. From 8.00 a.m. he was on duty in Ward No.202 of
K.M.C. on 14th January, 2000. He had not given treatment to Neelamma but his
colleague had given treatment. On Ex.P.12, it is not specifically written that
Neelamma was examined twice. He specifically, stated that he can understand
Kannada language. He does not know Telugu language. Neelamma was
talking in Telugu language. He further stated that it is incorrect to suggest that at
that time Neelamma was not in fit condition.
16. The second dying declaration is Ex.P.22 recorded by the PSI, Bendigeri P.S.,
Hubli at 9.45 p.m. on 14th January, 2000. In the said dying declaration, the
deceased disclosed her name and address as Neelamma @ Lilamma w/o Kashi
Vishwanath of Mantoor Road, Ambedkar Colony, Hubli. She along with her
husband-Kashi Vishwanath, mother-in-law-Polamma, and her children-Sandya,
Prasanna and Naveen were staying at home. Her husband had illicit and immoral
relation with one Laxmi, who has been working as sweeper in Railways. Her
husband and mother-in-law used to quarrel with her and on 14th January, 2000 at
about 10.00 a.m. her husband started quarreling with her at the behest of
Laxmi and along with Laxmi poured Kerosene on her body and put on fire by
using match stick. She further stated that she could not put her signatures since
her hand was completely burnt. In the bottom of it, it was mentioned that dying
declaration was “read over and accepted to be correct”
17. Rayappa, PW.23, PSI, Bendigeri, P.S. Hubli who recorded dying declaration
Ex.P.22 stated that while he was working as PSI, Bendigeri Crime Branch on 14th
January, 2000 as the Police Inspector gave an order and directed me to go to
K.M.C. and record statement of Neelamma. He went to KMC Hubli at 9.45 p.m.Page 13
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and gave the order to the Doctor. Doctor opined that she was in condition to give
statement. He recorded the statement of Neelamma in the presence of Doctor. The
statement is Ex.P.22. He has signed on it and Doctor has also signed on Ex.P.22.
18. Dr. Bhimappa (PW.22), Medical Officer, District Hospital Bagalkot stated
that on 14th January, 2000 he was Medical Officer in K.M.C., Hubli. On 14th
January, 2000 he was on duty in K.M.C. Bendigeri Police recorded the statement
of injured. The statement is marked at Ex.P.22. It bears his signatures at Ex.22(a).
The injured was in a position to give statement. Ex.P.22 was recorded in his
presence. In cross-examination he accepted that the Police Officer of Bendigeri
P.S. had not given any requisition in writing requesting him to be present while
recording such statements. He further accepted that on Ex.P.22 he had not endorsed
that Neelamma was in fit condition to give statement. He further stated that he
was not aware whether Neelamma was talking in Telugu.
19. Padmavathi (PW-8), coolie by occupation, is the mother of Neelamma. She
stated that after marriage of the appellant and her daughter, Neelamma, their
relationship was good, later appellant used to complain that Neelamma had not
brought any dowry. Neelamma was complaining that she was ill treated and
harassed by the appellant and he was intending to marry another woman. They
convened a Panchayat and advised the appellant. Even after advice harassment was
continued. Her daughter was beaten 2-3 times, and she left her matrimonial homePage 14
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and resided with her mother. The appellant took her back to his house. The
appellant was suspecting her daughter. She stated that Pullayya had phoned her
about the incident. She along with her husband, son-in-law came to Hubli. When
they went to K.M.C. Neelamma was talking properly, when they asked Neelamma
she told that accused No.1(appellant) to 3 closed the door of the house, accused
No.3 poured kerosene and accused No.1 set her on fire. Accused No.2, mother-inlaw was outside the house, closing the door. During her cross-examination, PW-8,
specifically stated that Neelamma did not know correct writing in Telugu but
she used to write some Telugu. She had some written letters which have been
given to the police. She does not know that those letters were written by
Neelamma or not.
20. The contents of the third dying declaration – Ex.P.29 was recorded by the
Bendigeri Police on 15th January, 2000 in the presence of Dr. Komal Prasad (PW-
25), a P.G. student in KMC, Hubli. In the said dying declaration (Ex.P.29),
deceased Neelamma stated that she had been residing at the above-mentioned
address, i.e., Mantur Road, Ambedkar Colony, Hubli along with her husband,
mother-in-law, Polamma, and three children. She was a house wife. Her husband
Vishwanath was working in SNI Division, Railways at present employed at Karat.
Often he visited the house. Two days prior i.e. Thursday, 13th January, 2000, she
was confronted and slapped on the right cheek by one Laxmi of Mantur Road,
Hanchandra Colony, who had illicit relation with her husband. She returned to her
house having decided to inform about the incident to her husband. She had
informed her husband about the incident when he came to house at 7.30 p.m. on
the same day. Then he had scolded, thrashed her by saying that why you had
spoken to Laxmi. She kept quiet. Next morning i.e. Friday, 14th January, 2000
while she was cleaning the utensils, her husband came along with Laxmi, and
thrashed her by saying that what can she do if he kept Laxmi in the said
house. Then he dragged her inside the house and closed the door. Her motherin-law also supported her husband and went outside. At that time Laxmi was
inside the house. Her husband poured kerosene on her and Laxmi lit the
match stick and thrown on her body, due to the flames, fire spread all over her
body, she rushed outside the house screaming for help. Then neighbours and
workers who were at site came and doused the fire by wrapping her body with
blanket. After being scolded by the neighbours her mother-in-law had taken
her to KMC Hospital by auto. The incident took place at around 10.00 a.m.
She further stated that she had been harassed and tormented quite often by
her husband and mother-in-law since one year and Laxmi was responsible for
the said incident. She further stated that she could not put her signatures since
her hand was burnt. Her children had been to school at the time of the
incident. Below the dying declaration it was written that the same was “read
over & accepted to be correct”.
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Hanchandra Colony, who had illicit relation with her husband. She returned to her
house having decided to inform about the incident to her husband. She had
informed her husband about the incident when he came to house at 7.30 p.m. on
the same day. Then he had scolded, thrashed her by saying that why you had
spoken to Laxmi. She kept quiet. Next morning i.e. Friday, 14th January, 2000
while she was cleaning the utensils, her husband came along with Laxmi, and
thrashed her by saying that what can she do if he kept Laxmi in the said
house. Then he dragged her inside the house and closed the door. Her motherin-law also supported her husband and went outside. At that time Laxmi was
inside the house. Her husband poured kerosene on her and Laxmi lit the
match stick and thrown on her body, due to the flames, fire spread all over her
body, she rushed outside the house screaming for help. Then neighbours and
workers who were at site came and doused the fire by wrapping her body with
blanket. After being scolded by the neighbours her mother-in-law had taken
her to KMC Hospital by auto. The incident took place at around 10.00 a.m.
She further stated that she had been harassed and tormented quite often by
her husband and mother-in-law since one year and Laxmi was responsible for
the said incident. She further stated that she could not put her signatures since
her hand was burnt. Her children had been to school at the time of the
incident. Below the dying declaration it was written that the same was “read
over & accepted to be correct”.
21. Dr. Komal Prasad (PW-25), in his statement stated that on 15th January, 2000
he was on duty in K.M.C. Hubli. Bendigeri Police Officer had come to KMC on
15th January, 2000 and asked his opinion about the fit condition of one Neelamma
injured to give statement. He examined her, and stated that she was in fit condition
to give statement. Police Officer recorded her statement in his presence and he had
also signed on that statement. The statement is Ex.P.29. The signature of witness is
marked at Ex.P.29(a). The statement was recorded at 5.25 p.m. In his crossexamination, he stated that Neelamma had sustained burn injuries nearly 90 to 95
per cent. She was admitted on previous day and it was 1 ½ day when he gave his
opinion. She was given with sedative injunction.
22. Dr. Radha (PW.17), Assistant Surgeon, KMC, Hubli, in her deposition stated
that she was working as Medical Officer in KMC, Hubli. On 14th January, 2000 at
11.45 a.m., she examined one Neelamma wife of Kashi Vishwanath Murari,
who had sustained burn injuries.
The history is self afflicted burns due to a
quarrel at home at 11 a.m. with her husband.
Patient was conscious.
On
examination she noticed superficial deep burns over the lower part of face, lower
half of chest and abdomen.
Both the upper limbs and both the lower limbs were
also burnt, sparing the face, neck, upper part of chest, parts of back in patches,
groin and soles of the feet. She had sustained burn injuries from 70 to 75 per cent.
Eye brows and hair of Neelamma were singed.
She was admitted to female surgical
ward. The patient was brought by her mother-in-law namely Polamma Venkatayya.
In her cross-examination, she stated that such burn injuries are possible if fire catches to the lower end of saree of a woman.
23. We have noticed the three dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29).
A comparison of the three dying declarations, in our opinion, shows certain glaring
contradictions.
In the first dying declaration (Ex.P.12), we have noticed that
deceased, Neelamma stated that she sustained burn injuries in the early morning at
8.30 a.m., when her children had gone out of the residence, her husband had a fight
with her and instigated her to pour kerosene upon her body. She poured the
kerosene on her body and her husband had also further poured kerosene upon her
and put on fire match box.
While in the second dying declaration (Ex.P.22),
Neelamma (deceased) stated that her husband and mother-in-law used to quarrel
with her and on 14th January, 2000 at about 10.00 a.m. her husband had started
fight with her at the behest of Laxmi and along with Laxmi poured kerosene on her
body and put on fire by using match stick.
In the third dying declaration (Ex.P.29),
Neelamma (deceased) stated that next morning i.e. Friday, 14th January, 2000 while
she was cleaning the utensils, her husband came along with Laxmi, and thrashed
her by saying that what can you do if he kept Laxmi in the said house.
Then he
dragged her inside the house and closed the door, her mother-in-law also supported
her husband went outside.
At that time Laxmi was inside the house.
Her husband
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poured kerosene on her and Laxmi lit the match stick and thrown upon her body,
due to the flames, fire spread all over her body, she rushed outside the house screaming for help.
24. In the first dying declaration (Ex.P.12),
she (deceased) stated that her
husband instigated her to pour kerosene on her body, therefore, she poured the kerosene on her body and her husband further poured kerosene on her and put on fire using a match box.
In the second dying declaration (Ex.P.22), she (deceased)
stated that her husband along with Laxmi poured kerosene on her body and put on
fire by using match stick.
In the third dying declaration (Ex.P.29), she (deceased)
stated that her husband poured kerosene on her and Laxmi lit the match stick and thrown upon her body.
25. Apart from the contradictions, the credibility of three dying declarations
(Ex.P.12, Ex.P.22 and Ex.P.29) is to be doubted.
In the first dying declaration
(Ex.P.12) dated 14th January, 2000 the thumb impression of victim has been shown.
Whereas in the second dying declaration (Ex.P.22) taken on the same day, i.e, 14th
January, 2000 and
the third dying declaration (Ex.P.29) given on the next day, i.e.,
15th January, 2000,
the victim had stated that she had not given her signatures since
her hand was completely burnt.
Dr. Bhimappa (PW-22), who signed the Ex.P.22,
in his cross-examination stated that he was not aware
whether Neelamma
(deceased) was talking in Telugu.
Dr. Dhanjaya Kumar (PW-20), who signed
Ex.P.12, in his cross-examination specifically stated that he can understand Kannada but does not know Telugu language and that Neelamma was talking in Telugu language.
Padmavathi (PW-8), mother of the deceased, in her crossexamination stated that Neelamma (deceased) was not knowing the correct writing the Telugu.
But she was writing some Telugu.
26. The prosecution has failed to state
as to why three dying declarations were
recorded in Kannada,
if the deceased, Neelamma was talking in Telugu.
It has also
not made clear as to who amongst the Tehisldar, PSI or SI or the Doctors who has
signed in Ex.P.12, Ex.P.22 and Ex.P.29 had knowledge of Telugu and translated the same in Kannada for writing dying declarations in those exhibits and that in the
bottom of three dying declarations it has not been mentioned that they were read over in Kannada and explained in Telugu that the deceased understood the contents of the same.
The above mentioned facts create doubt in our mind as to the
truthfulness of the contents of the dying declarations as the possibility of she being influenced by somebody in making the dying declarations cannot be ruled out.
27. On careful perusal of the materials on record, we are unable to come to the
conclusion that the prosecution in this case has established its case beyond
reasonable doubt to base a conviction on the appellant. Hence, we are of the
opinion that both the courts below have erred in coming to the contra conclusion.
28. For the reasons stated above, this appeal succeeds and the judgment and
conviction recorded by the courts below are set aside. The appeal is allowed. The
appellant, who is in jail, is directed to be released forthwith.
……………………………………………….J.
( A.K. PATNAIK )
……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 3, 2013
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2007
KASHI VISHWANATH … APPELLANT
Versus
STATE OF KARNATAKA … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
The appellant, who is accused No.1, by this appeal has challenged the
judgment dated 27th July, 2004 in Criminal Appeal No.347 of 2001 passed by the
Division Bench of the High Court of Karnataka at Bangalore whereby the High
Court affirmed the conviction and sentenced imposed by the trial court under
Section 498-A and 302 read with 34 IPC. So far as accused No.2 is concerned, the
High Court acquitted her of all the charges levelled against her.
2. The appellant along with other accused faced charges punishable under
Section 498-A and 302 read with 34 IPC. The First Additional Sessions judge,
Dharwad, sitting at Hubli by his judgment dated 1st February, 2001 in Sessions
Case No.119 of 2000, acquitted accused No.2 under Section 235(1) Cr.P.C. of thePage 2
2
offences under Sections 498-A and 302 IPC but convicted accused Nos.1 and 3
under Section 235(2) Cr.P.C. for the offences under Sections 498-A and 302 read
with Section 34 IPC. They were sentenced to undergo rigorous imprisonment for
one year by each and to pay fine of Rs.1,000/- by each, in default to undergo
further rigorous imprisonment for one month, for offence under Section 498-A
IPC. They were sentenced to undergo life imprisonment and to pay find of
Rs.2,000/- by each, in default, to undergo rigorous imprisonment for three months
by each for the offence under Section 302 IPC.
In appeal, the High Court by its judgment dated 27th July, 2004 allowed the
appeal in part. The judgment of conviction and sentence passed by the Sessions
Judge as against accused No.1 (first appellant before the High Court) for the
offence under Section 498-A and 302 read with 34 IPC was confirmed giving rise
to this appeal and as against accused No.2 (second appellant before the High
Court), she was acquitted of all the charges levelled against her.
3. The case of the prosecution, in brief, as unfurled before the trial court is as
follows:
The deceased, Neelamma (alias Leelamma) got married to the appellant
herein 13 years prior to the incident. The date of the incident is 14th January, 2000.
Out of the wedlock, they have two sons and a daughter and they were all living at
Mantur Road, Ambedkar Colony, Hubli. According to the prosecution, thePage 3
3
relationship between the husband and wife was cordial till two years prior to the
incident. The disruptions started in the family on account of the appellant
developing intimacy with one Lakshmi, who was accused No.3 and was the second
appellant before the High Court. In this regard, in spite of intervention of the
family members of the parental house of the deceased and persistent resistance of
the deceased, the said affair of intimacy continued. There used to be bickering and
quarrels between the husband and wife in this regard. Though accused No.2, the
mother of the appellant was living with them, she never tried to patch up the
differences between the husband and wife. Ultimately, on 14th January, 2000, at
about 10.00 a.m. in the matrimonial home of the deceased, accused Nos.1 and 3
doused deceased Neelamma and set her ablaze while accused No.2 was watching
outside. On the same day in the afternoon, she was shifted to K.M.C. Hospital,
Hubli and on admission, the Hospital authorities intimated the police who came
into picture at about 9.30-10.00 p.m. in the night. Prior to that, the Taluka
Executive Magistrate, PW-10, recorded her statement as per Ex.P.12. One more
statement, Ex.P.22 – dying declaration, came to be recorded by Rayappa, Police
Sub Inspector (PW-23), in the form of complaint in the presence of Dr. Bhimappa
(PW-22) and during the course of treatment, deceased Neelamma succumbed to
burns on 18th January, 2000 at about 6.15 p.m. On 15th January, 2000, at about 5.30
p.m., Ashok (PW-24), the Investigation Officer recorded the dying declaration
Ex.P.29 in the presence of Dr. Komal Prasad (PW-25). On the basis of Ex.P.22,Page 4
4
investigation of the case commenced as against accused No.1 to 3. The kith and kin
of the deceased are examined as Pullayya (PW.5) - maternal uncle; Eliya (PW-6) –
father; Grasamma (PW-7) – maternal aunt; Padmavathi (PW-8) – mother and
Prabhudas (PW-9) – uncle of the deceased. The purpose of examining these
witnesses was to establish harassment, motive and oral dying declaration
implicating accused Nos.1 to 3. The independent witnesses, who were the
neighbours of the appellant i.e. Mansuresh (PW-11), Savakka (PW-13),
Kanechanamma(PW-14), (M. Saloman)PW-15 and Perumal (PW-16) were also
examined. Unfortunately, none of them have supported the case of the prosecution.
4. Ex.P.1, is the spot mahazar drawn in the kitchen of the matrimonial home of
the deceased where burnt clothes, burnt gunny bag, match box, match stick, a
kerosene stove, kerosene can were found. PW-2 and PW-3 were examined to
support the contents of Ex.P.2 to Ex.P.6 – mahazars seizing caste certificate and
marriage certificate revealing the relationship and the case of the deceased and
accused Nos.1 and 2. Ex.P.3 is the recovery of bed sheet alleged to have been used
by accused No.2 to extinguish the fire. Letters i.e. Ex.P8 & Ex.P9 alleged to have
been written by the appellant to the wife and parents in law, Ex.P.5 is the seizure
mahazar of letters (Exs.P.10 to P.11) alleged to have been written by the deceased
to her parents aunt and uncle and lastly Ex.P.6 is mahazar seizure of photographs
of the deceased revealing the burns. Peshalal (PW.4) was examined to speak thePage 5
5
inquest over the dead body as per Ex.P.7 but turned hostile. Prabhakar (PW.21) was
also turned hostile. Dr. Radha (PW.17) was the Doctor at the casualty ward in
K.M.C. Hospital who entered the details in M.L.C. register and the relevant
document is at Ex.P.18. Dr. Jagadish (PW-18), conducted autopsy on the dead body
and issued Ex.P.19, the postmortem report opining that the death of the deceased
Neelamma was due to septicemia as a result of burns. Ex.P.20 is the sketch drawn
by PW-19. Dr. Bhimappa (PW-22) is the Head of Department of the Burns Ward in
whose presence Rayappa (PW-23), PSI, Bendigeri P.S., Hubli recorded the
complaint as per Ex.P.22 on 14th January, 2000 and sent FIR to the Court.
5. As noticed above, the learned Sessions Court based on the oral and
documentary evidence held accused No.1 and 3 guilty of the offence punishable
under Section 498-A and 302 read with 34 IPC. Accused No.2 mother-in-law of the
deceased was acquitted of all the charges levelled against her.
6. Learned counsel for the appellant contended that the prosecution absolutely
failed to establish any of the charges, much less, the charge under Section 302 IPC
in view of four dying declarations brought on record which are contrary to each
other. It was further contended that the oral declarations made before the kith and
kin of the deceased are not at all important or relevant in the light of the four dying
declarations. According to the learned counsel, the contents of Ex.P.18, Ex.P.12,
Ex.P.22 and Ex.P.29, if looked into carefully, would indicate the purpose of soPage 6
6
many dying declarations coming into existence i.e. only to ensure that all the
accused are somehow roped in. Learned counsel for the appellant placed reliance
on the decisions of this Court in Mehiboobsab Abbasabi Nadaf vs. State of
Karnataka, (2007) 13 SCC 112, etc. which will be referred to in this judgment at
the appropriate stage.
7. In reply, learned counsel for the State submitted that Ex.P.18 was not a dying
declaration but the entries in the M.L.C. Register made immediately on the
admission of the patient to the Hospital. Ex.P.12 was the actual dying declaration
recorded by the Taluka Executive Magistrate (PW-10). Ex.P.22 was a complaint
recorded by Rayappa, PSI (PW-23), in the presence of Dr. Bhimappa (PW.22) and
further investigation was taken up. Therefore, the contents of Ex.P.12, according to
the counsel for the State have to be taken into consideration which is the earliest
dying declaration. He further contended that Ex.P.29 is more reliable because after
treatment for almost a day, when the patient was physically and mentally fit, the
same came to be recorded.
8. Learned counsel appearing on behalf of the appellant also raised doubt
relating to contents of Ex.P.12, Ex.P.22 and Ex.P.29, the three dying declarations
which were originally recorded in Kannada. According to the learned counsel for
the appellant, the deceased had no knowledge of Kannada language and could
speak only Telugu. Page 7
7
9. We have heard the learned counsel for the parties at length and gone through
the entire material placed before us.
10. The kith and kin of the deceased who examined are: as Pullayya (PW.5) -
maternal uncle, Eliya (PW-6) – father, Gracemma (PW-7) – maternal aunt,
Padmavathi (PW-8) – mother and Prabhudas (PW-9) – uncle of the deceased. Their
deposition corroborates the case of the prosecution that one or two years prior to
the death of the deceased, everything seemed to be cordial between the husband
and wife (deceased). After the appellant joined the Railway services on
compassionate ground after the death of his father, the bickering and quarrel
commenced because of developing intimacy with a co-worker by name Lakshmi
who was the third accused. Ex.P.8 to P.11 are inland letters produced by the uncle
and father of the deceased, PW-5 and PW-6 and the letters pertaining to the year
1995 written by the deceased which say that except some harassment and illtreatment, there was no serious harassment to the deceased at the hands of her
husband and mother-in-law of the deceased. The letter written in the year 1999
only would indicate that on account of the appellant developing intimacy with
Lakshmi, he ill-treated and harassed her to the maximum extent possible. Accused
No.2, mother-in-law was only a spectator. This was her complaint or depression
recorded in her letters written to the kith and kin.
11. When we look into the statement of independent witnesses produced by the
prosecution, who are neighbours of the appellant i.e. Mansuresh (PW-11), Savakka
(PW-13), Kanechanamma(PW-14), (M. Saloman)PW-15 and Perumal (PW-16), we
find that none of them have supported the case of the prosecution.
12. In this case, we have noted that there is no eye-witness to the incident in
question. The prosecution primary relies on three dying declarations Ex.P.12,
Ex.P.22 and Ex.P.29. In support of those Exhibits the prosecution relied on the
statements of Tahsildar, Hubli (PW-10), Dhanjaya Kumar, PG student (PW-20)
present at the time of arrival of Maharudrappa, Tahasildar (PW-10) to the Burns
Ward. Dr. Radha (PW-17) who examined the deceased, Dr. Jagdish (PW-18), who
was working as Medical Officer on 14th January, 2000 and conducted the
postmortem, Dr. Bhimappa (PW-22), in whose presence Ex.P.22 was recorded,
Rayappa (PW-23), PSI, Bendigeri Police Station, Crime Branch, Hubli who
recorded the dying declaration (Ex.P.22) and registered the case, Dr. Komal Prasad
(PW-25), in whose presence Ex.P.29 was recorded, etc.
In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, (2007) 13 SCC
112, having noticed multiple dying declarations this Court held:
“7. Conviction can indisputably be based
on a dying declaration. But before it can
be acted upon, the same must be held to
have been rendered voluntarily and
truthfully. Consistency in the dying
Page 9
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declaration is the relevant factor for
placing full reliance thereupon. In this
case, the deceased herself had taken
contradictory and inconsistent stand in
different dying declarations. They,
therefore, should not be accepted on
their face value. Caution, in this
behalf, is required to be applied.”
13. We will now examine the contents of three different dying declarations i.e.
Ex.P.12, Ex.P.22 and Ex.P.29 and the related prosecution witnesses who deposed in
support of such dying declarations.
Maharudrappa (PW-10), Tahasildar, Hubli recorded dying declaration
Ex.P.12, at 8.30 p.m. on 14th January, 2000 in Ward No.202, The deceased stated
that she was conscious to give answer the questions. She got married with the
appellant at the age of 26 years, about 13 years back. She had two sons and one
daughter. She was a housewife and her husband was working in Railways and used
to come home once in a week. She was staying at Mantur Road, Ganesh Pet, Hubli.
She stated that she had been brought at KMC Hospital, Hubli by her mother-inlaw, Smt. Polamma by auto rickshaw, after she being sustained burn injuries at
about 8.30 a.m. in her residence. At about 12 p.m. she had been admitted there for
treatment by her mother-in-law. Her husband had not come to see her after the
incident. Her mother-in-law was accompanying her in the Hospital. She further
stated that her husband (appellant herein) had illicit relations with one Lakshmi.
Every week he used to come home and for one or the other reason, used to fight
and beat her ruthlessly. Her mother-in-law used to keep quiet without objecting for
such acts of her son. It is stated in Ex.P.12 on the said date (14th January, 2000) at
about 8.30 a.m., when her children had gone out of the residence, her husband
had a fight with her and instigated her to pour kerosene upon her body. She
poured the kerosene on her body and her husband further poured kerosene
upon her and put on fire with match box. At that time her mother-in-law was
out of the residence. When the flame was catching her sari and burning her body,
her husband has not tried to douse the fire. Neighbouring people rushed to her
residence on hearing her screams and doused the fire by pouring water. Thereafter,
her mother-in-law had brought her to the Hospital by auto and admitted for
treatment. Both her husband and Lakshmi are responsible for her condition. In the
bottom of the Ex.P.12 where thumb impression of the victim is taken it is written
“read over and accepted to be correct".
14. The Tahasildar (PW-10) in his statement stated that while he was working as
Tahasildar in Hubli, on 14th January, 2000 at 7.25 p.m., he received a requisition
from Town Police Station, Hubli, to record dying declaration of Neelamma wife of
Kashi Vishwanath Murari. He had recorded the dying declaration of the said
Neelamma on 14th January, 2000 from 8.30 p.m. to 9.00 p.m. Doctor opined that
she was in condition to give dying declaration. He put the questions to NeelammaPage 11
11
and she answered. After recording it, it was read over to her. Admitting its
contentions she put her thumb impression on it and Doctor also singed. Dying
declaration is marked at Ex.P.12, and the signatures of witness is marked at
Ex.P.12(a).
15. Dr. Dhanjaya Kumar (PW-20), who was working as P.G. student in K.M.C.
Hubli stated that on 14th January, 2000 at about 8.30 p.m. Tahasildar, Hubli came to
K.M.C. Ward No.202. He was on duty there. The Tahasildar asked him about the
patient’s condition. He examined the patient and she was fit to give statement. The
Tahasildar recorded the statement of the injured and he examined again and found
her alright. He was present when Tahasildar recorded the statement of the injured.
He had also signed on that statement. The signatures of the witness are marked at
Ex.P.12(b) and the certificate of the witness is marked at Ex.P.12(c). In the crossexamination he stated that Dr. A.S. Bekanalkar, Unit Chief did not give anything in
writing asking him to be present and examine the injured lady. The Tahasildar,
Hubli did not give requisition in writing with a request to be present there and
examine that injured lady. He has not given in writing separately about the fitness
condition of injured Neelamma. From 8.00 a.m. he was on duty in Ward No.202 of
K.M.C. on 14th January, 2000. He had not given treatment to Neelamma but his
colleague had given treatment. On Ex.P.12, it is not specifically written that
Neelamma was examined twice. He specifically, stated that he can understand
Kannada language. He does not know Telugu language. Neelamma was
talking in Telugu language. He further stated that it is incorrect to suggest that at
that time Neelamma was not in fit condition.
16. The second dying declaration is Ex.P.22 recorded by the PSI, Bendigeri P.S.,
Hubli at 9.45 p.m. on 14th January, 2000. In the said dying declaration, the
deceased disclosed her name and address as Neelamma @ Lilamma w/o Kashi
Vishwanath of Mantoor Road, Ambedkar Colony, Hubli. She along with her
husband-Kashi Vishwanath, mother-in-law-Polamma, and her children-Sandya,
Prasanna and Naveen were staying at home. Her husband had illicit and immoral
relation with one Laxmi, who has been working as sweeper in Railways. Her
husband and mother-in-law used to quarrel with her and on 14th January, 2000 at
about 10.00 a.m. her husband started quarreling with her at the behest of
Laxmi and along with Laxmi poured Kerosene on her body and put on fire by
using match stick. She further stated that she could not put her signatures since
her hand was completely burnt. In the bottom of it, it was mentioned that dying
declaration was “read over and accepted to be correct”
17. Rayappa, PW.23, PSI, Bendigeri, P.S. Hubli who recorded dying declaration
Ex.P.22 stated that while he was working as PSI, Bendigeri Crime Branch on 14th
January, 2000 as the Police Inspector gave an order and directed me to go to
K.M.C. and record statement of Neelamma. He went to KMC Hubli at 9.45 p.m.Page 13
13
and gave the order to the Doctor. Doctor opined that she was in condition to give
statement. He recorded the statement of Neelamma in the presence of Doctor. The
statement is Ex.P.22. He has signed on it and Doctor has also signed on Ex.P.22.
18. Dr. Bhimappa (PW.22), Medical Officer, District Hospital Bagalkot stated
that on 14th January, 2000 he was Medical Officer in K.M.C., Hubli. On 14th
January, 2000 he was on duty in K.M.C. Bendigeri Police recorded the statement
of injured. The statement is marked at Ex.P.22. It bears his signatures at Ex.22(a).
The injured was in a position to give statement. Ex.P.22 was recorded in his
presence. In cross-examination he accepted that the Police Officer of Bendigeri
P.S. had not given any requisition in writing requesting him to be present while
recording such statements. He further accepted that on Ex.P.22 he had not endorsed
that Neelamma was in fit condition to give statement. He further stated that he
was not aware whether Neelamma was talking in Telugu.
19. Padmavathi (PW-8), coolie by occupation, is the mother of Neelamma. She
stated that after marriage of the appellant and her daughter, Neelamma, their
relationship was good, later appellant used to complain that Neelamma had not
brought any dowry. Neelamma was complaining that she was ill treated and
harassed by the appellant and he was intending to marry another woman. They
convened a Panchayat and advised the appellant. Even after advice harassment was
continued. Her daughter was beaten 2-3 times, and she left her matrimonial homePage 14
14
and resided with her mother. The appellant took her back to his house. The
appellant was suspecting her daughter. She stated that Pullayya had phoned her
about the incident. She along with her husband, son-in-law came to Hubli. When
they went to K.M.C. Neelamma was talking properly, when they asked Neelamma
she told that accused No.1(appellant) to 3 closed the door of the house, accused
No.3 poured kerosene and accused No.1 set her on fire. Accused No.2, mother-inlaw was outside the house, closing the door. During her cross-examination, PW-8,
specifically stated that Neelamma did not know correct writing in Telugu but
she used to write some Telugu. She had some written letters which have been
given to the police. She does not know that those letters were written by
Neelamma or not.
20. The contents of the third dying declaration – Ex.P.29 was recorded by the
Bendigeri Police on 15th January, 2000 in the presence of Dr. Komal Prasad (PW-
25), a P.G. student in KMC, Hubli. In the said dying declaration (Ex.P.29),
deceased Neelamma stated that she had been residing at the above-mentioned
address, i.e., Mantur Road, Ambedkar Colony, Hubli along with her husband,
mother-in-law, Polamma, and three children. She was a house wife. Her husband
Vishwanath was working in SNI Division, Railways at present employed at Karat.
Often he visited the house. Two days prior i.e. Thursday, 13th January, 2000, she
was confronted and slapped on the right cheek by one Laxmi of Mantur Road,
Hanchandra Colony, who had illicit relation with her husband. She returned to her
house having decided to inform about the incident to her husband. She had
informed her husband about the incident when he came to house at 7.30 p.m. on
the same day. Then he had scolded, thrashed her by saying that why you had
spoken to Laxmi. She kept quiet. Next morning i.e. Friday, 14th January, 2000
while she was cleaning the utensils, her husband came along with Laxmi, and
thrashed her by saying that what can she do if he kept Laxmi in the said
house. Then he dragged her inside the house and closed the door. Her motherin-law also supported her husband and went outside. At that time Laxmi was
inside the house. Her husband poured kerosene on her and Laxmi lit the
match stick and thrown on her body, due to the flames, fire spread all over her
body, she rushed outside the house screaming for help. Then neighbours and
workers who were at site came and doused the fire by wrapping her body with
blanket. After being scolded by the neighbours her mother-in-law had taken
her to KMC Hospital by auto. The incident took place at around 10.00 a.m.
She further stated that she had been harassed and tormented quite often by
her husband and mother-in-law since one year and Laxmi was responsible for
the said incident. She further stated that she could not put her signatures since
her hand was burnt. Her children had been to school at the time of the
incident. Below the dying declaration it was written that the same was “read
over & accepted to be correct”.
Page 15
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Hanchandra Colony, who had illicit relation with her husband. She returned to her
house having decided to inform about the incident to her husband. She had
informed her husband about the incident when he came to house at 7.30 p.m. on
the same day. Then he had scolded, thrashed her by saying that why you had
spoken to Laxmi. She kept quiet. Next morning i.e. Friday, 14th January, 2000
while she was cleaning the utensils, her husband came along with Laxmi, and
thrashed her by saying that what can she do if he kept Laxmi in the said
house. Then he dragged her inside the house and closed the door. Her motherin-law also supported her husband and went outside. At that time Laxmi was
inside the house. Her husband poured kerosene on her and Laxmi lit the
match stick and thrown on her body, due to the flames, fire spread all over her
body, she rushed outside the house screaming for help. Then neighbours and
workers who were at site came and doused the fire by wrapping her body with
blanket. After being scolded by the neighbours her mother-in-law had taken
her to KMC Hospital by auto. The incident took place at around 10.00 a.m.
She further stated that she had been harassed and tormented quite often by
her husband and mother-in-law since one year and Laxmi was responsible for
the said incident. She further stated that she could not put her signatures since
her hand was burnt. Her children had been to school at the time of the
incident. Below the dying declaration it was written that the same was “read
over & accepted to be correct”.
21. Dr. Komal Prasad (PW-25), in his statement stated that on 15th January, 2000
he was on duty in K.M.C. Hubli. Bendigeri Police Officer had come to KMC on
15th January, 2000 and asked his opinion about the fit condition of one Neelamma
injured to give statement. He examined her, and stated that she was in fit condition
to give statement. Police Officer recorded her statement in his presence and he had
also signed on that statement. The statement is Ex.P.29. The signature of witness is
marked at Ex.P.29(a). The statement was recorded at 5.25 p.m. In his crossexamination, he stated that Neelamma had sustained burn injuries nearly 90 to 95
per cent. She was admitted on previous day and it was 1 ½ day when he gave his
opinion. She was given with sedative injunction.
22. Dr. Radha (PW.17), Assistant Surgeon, KMC, Hubli, in her deposition stated
that she was working as Medical Officer in KMC, Hubli. On 14th January, 2000 at
11.45 a.m., she examined one Neelamma wife of Kashi Vishwanath Murari,
who had sustained burn injuries.
The history is self afflicted burns due to a
quarrel at home at 11 a.m. with her husband.
Patient was conscious.
On
examination she noticed superficial deep burns over the lower part of face, lower
half of chest and abdomen.
Both the upper limbs and both the lower limbs were
also burnt, sparing the face, neck, upper part of chest, parts of back in patches,
groin and soles of the feet. She had sustained burn injuries from 70 to 75 per cent.
Eye brows and hair of Neelamma were singed.
She was admitted to female surgical
ward. The patient was brought by her mother-in-law namely Polamma Venkatayya.
In her cross-examination, she stated that such burn injuries are possible if fire catches to the lower end of saree of a woman.
23. We have noticed the three dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29).
A comparison of the three dying declarations, in our opinion, shows certain glaring
contradictions.
In the first dying declaration (Ex.P.12), we have noticed that
deceased, Neelamma stated that she sustained burn injuries in the early morning at
8.30 a.m., when her children had gone out of the residence, her husband had a fight
with her and instigated her to pour kerosene upon her body. She poured the
kerosene on her body and her husband had also further poured kerosene upon her
and put on fire match box.
While in the second dying declaration (Ex.P.22),
Neelamma (deceased) stated that her husband and mother-in-law used to quarrel
with her and on 14th January, 2000 at about 10.00 a.m. her husband had started
fight with her at the behest of Laxmi and along with Laxmi poured kerosene on her
body and put on fire by using match stick.
In the third dying declaration (Ex.P.29),
Neelamma (deceased) stated that next morning i.e. Friday, 14th January, 2000 while
she was cleaning the utensils, her husband came along with Laxmi, and thrashed
her by saying that what can you do if he kept Laxmi in the said house.
Then he
dragged her inside the house and closed the door, her mother-in-law also supported
her husband went outside.
At that time Laxmi was inside the house.
Her husband
Page 18
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poured kerosene on her and Laxmi lit the match stick and thrown upon her body,
due to the flames, fire spread all over her body, she rushed outside the house screaming for help.
24. In the first dying declaration (Ex.P.12),
she (deceased) stated that her
husband instigated her to pour kerosene on her body, therefore, she poured the kerosene on her body and her husband further poured kerosene on her and put on fire using a match box.
In the second dying declaration (Ex.P.22), she (deceased)
stated that her husband along with Laxmi poured kerosene on her body and put on
fire by using match stick.
In the third dying declaration (Ex.P.29), she (deceased)
stated that her husband poured kerosene on her and Laxmi lit the match stick and thrown upon her body.
25. Apart from the contradictions, the credibility of three dying declarations
(Ex.P.12, Ex.P.22 and Ex.P.29) is to be doubted.
In the first dying declaration
(Ex.P.12) dated 14th January, 2000 the thumb impression of victim has been shown.
Whereas in the second dying declaration (Ex.P.22) taken on the same day, i.e, 14th
January, 2000 and
the third dying declaration (Ex.P.29) given on the next day, i.e.,
15th January, 2000,
the victim had stated that she had not given her signatures since
her hand was completely burnt.
Dr. Bhimappa (PW-22), who signed the Ex.P.22,
in his cross-examination stated that he was not aware
whether Neelamma
(deceased) was talking in Telugu.
Dr. Dhanjaya Kumar (PW-20), who signed
Ex.P.12, in his cross-examination specifically stated that he can understand Kannada but does not know Telugu language and that Neelamma was talking in Telugu language.
Padmavathi (PW-8), mother of the deceased, in her crossexamination stated that Neelamma (deceased) was not knowing the correct writing the Telugu.
But she was writing some Telugu.
26. The prosecution has failed to state
as to why three dying declarations were
recorded in Kannada,
if the deceased, Neelamma was talking in Telugu.
It has also
not made clear as to who amongst the Tehisldar, PSI or SI or the Doctors who has
signed in Ex.P.12, Ex.P.22 and Ex.P.29 had knowledge of Telugu and translated the same in Kannada for writing dying declarations in those exhibits and that in the
bottom of three dying declarations it has not been mentioned that they were read over in Kannada and explained in Telugu that the deceased understood the contents of the same.
The above mentioned facts create doubt in our mind as to the
truthfulness of the contents of the dying declarations as the possibility of she being influenced by somebody in making the dying declarations cannot be ruled out.
27. On careful perusal of the materials on record, we are unable to come to the
conclusion that the prosecution in this case has established its case beyond
reasonable doubt to base a conviction on the appellant. Hence, we are of the
opinion that both the courts below have erred in coming to the contra conclusion.
28. For the reasons stated above, this appeal succeeds and the judgment and
conviction recorded by the courts below are set aside. The appeal is allowed. The
appellant, who is in jail, is directed to be released forthwith.
……………………………………………….J.
( A.K. PATNAIK )
……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 3, 2013
