IN iHis III(1f COURT 01’ KAR”A[K4 CIRttII 131sT%CH \TI)HRW%J) DVIKI) IHIS IHL. fl EM\ CM’ M R( 1 )Oi t PRF LNT THE HOVBJ F 1R II •TI(’F. U14H1-’ B MM THE HON’BLE MR.. It’STICF N NNDA CRJMINAL AflL NO.671J2004 131 IWIFN state 011w iataka RepresentxdbyPohce rspc cr Bad mi C ircic (Cx iledgudda Polk c ta c n Al P1’ LL&NT (th Sri V.M Banakat ‘PPi • Pai.isujsai ‘L.,n, .t ge 2 4 rars ‘Js, \Vru’,-r KshLi asH r b) r a ,i- ‘Fn ‘I F)’ •. I • .._• • ‘ 6 r 2 9 This Criminal Appeal is filed under Section 378(1) & (3) of Cr.P.C. against the judgment and order of acquittal dt.29. 1.2004 passed by the Sessions Judge, Bagalkot, in S.C.No. 174/2001 thereby acquitting the respondents-accused of the offences p/u/s 504 & 302 read with Section 34 of IPC. This Appeal coming on for Hearing this day, SUEHASH ADI J., delivered the following: JUDGMENT This appeal is by the State against the judgment of acquittal in Sessions Case No.174/2001 dated 29” January 2004 on the file of the Sessions Judge, Bagalkot. 2. The accused were charge-sheeted for an offence punishable under Sections 504 and 302 read with Section 34 of the Indian Penal Code. 3. Case of the prosecution is that, the accused Nos. 1 and 2 are the husband and wife. Deceased Lalitawwa had developed illicit relationship with accused No.1. Accused No.1 was maintaining the deceased Lalitawwa. In connection with financial demand, on 25.6.2000 at about 10 p.m., she had gone to the house of accused Nos. 1 and 2. At that time, there was a quarrel between the deceased and accused Nos. 1 and 2. Accused No.2 pulled the deceased inside the house and poured kerosene on her. Accused No.1 lit the fire and set her on blaze. On sustaining burn injuries, the deceased came out err I e. the neighbours, who heard the crying of the deceased, saw the deceased sustaining burn injuries, took her to the Government Hospital.. She was admitted and treated for the injuries that she sustained, however, she died on 2862OOO. wo the daughter of the deceased. On 26.62.000, Ii. C. 708 recorded the statement of the deceased, wherein she stated that at about 9 GO pm. on 2562000, at her residence while she was cocking, accidentally on account of stove burst, her polyester sari caught fire, as a result of which, she sustained burn injuries, on hearing the screaming, the neighbours came there and her daughter PW-9 and accused No. 1 also came there sari they took the deceased to Guiedgudd Government I los itsi lv a ada In pursuance of the said statement, no cri.me was registered, however, PWG 2 the Investigating Officer (Pail, Guleclfudd Police Station..> received an anonvmou•s letter dated 28.6.2000 at about 12 noos.t stated t.o. have been vrittcn hr se i.al rc 5 7 7 V 1( against the oftences. committed against women ansi mcgcd that, no investigation is made in the case of Lalitawwa (deceased), who has sustained burn injuries, i.f no action is taken, people will lose faith in Police and ludiciang. it is in 4 pursuance of the same, PW 12 went vi tile ho plU1 n here deceased Lalitawwa was admitted and a’ ‘cv lc I vt St at I abtanwa, who alleged to have tit d hat. e i to ‘a 23.€ 2OOL, a cused No 2 pourcd ke sen a a r d accused No.1 lit fire The snd stalernevi nas 2 ° E\ P 3 in the evidence of PW- 12. based on \vhh’h. i’ rcistert 1 tIn’ vise in Crime No,33,’2000, sent the PIP Ex P1 1 t rI o a i do Per al Magistrate and nent to the place of offence i e F to I c vs d No.1, which was shown by one Shekliappa in oe’dovd spot panchanama as per Ex.P9, Thereaftci recorded liv of Neelavx a and Shekharappa (PW P) ir d . v et or from the hospital intimating the death I Lalit iv a I i r he sent the requisItion to the Ieane 3 punishable under Sta tlon 3(12 o I PC - a sent ) I c Maqstrat is v rk I I bet a 1 o 0 n 2 c I the deed bnd. oi (jjrinvaa C - a ‘i.rf1ittr’ CC’-O2$ -I.- S-tOt - - ( i r p, k IC, f a ig i’ ‘0 Ne i Ii a ip A was marked as ExP3 HC 471 ted PC11 1sn P accused Nos I and 2 and produ c (I i( m eut r P\\ recorded the \ uluntarv statement eescd P P No 2 in her oiuntar taternent t p VxP t took the panchas to hr hunsu and r I J for commission of the offence Thu Tin ustlOaflup Ufiiuu niarl d it as MO6 and he seized the said drbba uncir pin I i e ExP18 On the same day PC lOlu producd ‘ci C) cloth found on the body of Lalitanva he seized th a La r ExP1 1 Thereafter hc handed ovct the I irther v i ii a PW 15 QPI, Bagalkot The CPI condacid iii t i e He received the postmortem report ( I the Icte s P T t a 28 2000 set t th f urnt piect P s ii I PW 12 f r bexi l tuna i p 1 iv s igatto , i sut i t I tc : a s i 2001evclil }Trrr r c ( v at P s mrke C a 2 On urn tai cirsuci ‘n jeanted a LJ( a a. eci cc uttC ia.i e “CHARGE L S. TKudasomanrtavar, B. Sc, LB B. (Special). District and Sessions Judge, Bagaikot do hereby charge you: 1. Basavaraj s/o .Parasappa Nanna Age: 27 years, 0cc: Weaver. 2. Drakshayczni w/o Basavaraj iVcinrra Age: 22 years, 0cc: Household work. J3oth are residents of Guiedacudda as follows That you on 2562OOO at about 1OOO pun, in your house situated in Hosapeth Lane at Guledagudda with common intention intentionally insulted and thereby gave provocation to deceased Lalitawwa w/o Basappa by abusing her as : tJ3 °z C’ intending that such provocation would cause the said Lalitawwa to break public peace and, therebi., committed an offence punishable under Section 5O1 S34 of indian Penal Code and wirhrn the coquizance of this Court. 2. That you on the above said date, time and place with common intention did commit the murder of Lalitawwa w/o Basappa intentionally or knowingly causing her death by you Accused2 Drakshayani pouring kerosene oil on her body and you Accuse I Basava ra/ settin fire to her and causinq bum in/unj. due to which Laiitawwa succumbed to those i’uncm i ‘ r Guiedanudda and, therehtj. committed an offenco TT/,-,-’)’ ,;‘ E’ 0 a rd within the c.onizance of this Court. And I hereby direct that you shall be tried by this Courtjhr the said offence. 7 0 Accused pleaded not guilty. 5. Before the trial court, the prosecution in order to prove the charge examined PWs-1 to 15 and marked Exs.P1 to P22 and produced M.Os. 1 to 5. 6. On appreciation of the entire evidence, the trial court acquitted the accused by observing that, PW- 1 - Chandrappa, PW-2 - Shekharappa, PW-3 - Sangawa and PW- 14 - Shivaputrappa, though they were examined as eye-witnesses, however, they have not supported the prosecution case. They have denied the incident. They also denied that, they have given statement before the Police as per Exs.P1 and P2. PW-3 in the cross-examination has denied that, Lalitawwa came out of the house of the accused with the burn injuries. She has also denied that, Lalitawwa told her that she was dragged inside the house of accused No.1, accused No.2 poured kerosene on her body and accused No.1 set her on fire. PWs-6 and 14 have also not supported the prosecution case. 7. PW-9, the daughter of the deceased stated that her mother had illegal intimacy with accused No.1, accused No.2 was not in talking terms with the deceased. Her mother had 8 S gone to the house of accused at about 10 p.m. on 25.6.2000. When she returned back, she had sustained burn injuries, on enquiry her mother told her that accused No.2 poured kerosene on her body, accused No.1 lit fire in their house. She has also stated that, 3 to 4 persons had accompanied her. She has further stated that, in the hospital, Police did not enquire her as to how her mother sustained burn injury, she did not inform the Police. She also stated that, she was looking after her mother in the hospital till her death. 8. The learned Sessions Judge considering this evidence observed that, nothing prevented PW-9 to inform the incident to the Police or to the Doctor in the hospital. Even though PW-9 had attended to her mother in the hospital from 25.6.2000 to 28.6.2000 i.e., till her death, she has kept quiet without disclosing as to how her mother sustained injury and further observed that, this evidence creates doubt as to whether Lalitawwa had informed PW-9 about accused Nos. 1 and 2 setting her on fire by pouring kerosene. 9. PW-10, the father of the deceased has stated that, he was not in talking terms with his daughter (deceased) since she was having an illegal intimacy with accused No.1. P1W- 10 also 9 I- stated that, his grand daughter Neelamma i.e., PW-9 informed him about the alleged incident In the cross-examination, he denied the same. 10. Insofar as the evidence of PW- 12 — PSI, who recorded the statement of the deceased as per Ex.P13 on 28.6.2000, the trial court has observed that, the said witness in the cross- examination has stated that, on 25.6.2000, the SHO of Guledgudd Police Station had received MLC letter from the hospital regarding admission of Lalitawwa and that from 25.6.2000 to 27.6.2000 he was on leave. When he resumed to duty on 28.6.2000, SHO told him about the MLC letter received. He admitted that, Lalitawwa had given a statement before the SHO on 26.6.2000 interalia stating that, she sustained burn injury while cooking food on account of stove burst and the said statement has been produced in his evidence as per Ex.P20. 11. Doctor — PW-13 has stated that, L.alitawwa was admitted to the hospital with 50 to 60% of burns on 26.6.2000 and the PSI recorded the dying declaration of Lalitawwa on 28.6.2000 and he has made an endorsement on Ex.Pl3, which is marked as Ex.P13(A). In the cross-examination, he has stated that, he does not know as to whether on 26.6.2000 and 10 on 2762000. the Police visited the hospital and recorded the statement of Lalitawwa, but admitted that, on ExPl3, he has not made an endorsement that Lalitawwa is in fir condition to give her statement. The•• trial court did not believe the alleged dying declaration as per ExPl3. as PW 13 did nor disclose the state of mind and health condition of the deceased to give her statement. 12. Except PW9 the daughter of the deceased, .PW 12 and PWl3 are the oniv witnesses who supported the prosecution case. The trial court found that the dying declaration was not supported by the evidence of the Doctor to prove the deceased’s capacity to give her statement, it doubted as to whether the statement was voluntary or not. PW1 2 and PW 13 have also not stated as to the time. and the date of the death of the deceased. Trial Court found that, the nrosecution has failed to produce reliable evidence, the evid.ence on record do n t prove the charge against the .accuscd a.nd a.ccordinglv, acquitt.ed. the accused. It is aga.inst said udgtne.nt of acquittal, the State is in appea.l. 13. SrLV. 54. Banakar, learned Additional State Public Pros cutor submitted that. two statements of the do cased have ‘I ii been recorded, one is as per Ex.P20 i.e., dated 26.6.2000 and another as per Ex.P13 dated 28.6.2000. In Ex.P13, the deceased has categorically stated that, she had an illicit relationship with accused No.1. She had gone to the house of accused in connection with demand of money, at that time, accused No.2 picked up a quarrel and dragged her inside the house and poured kerosene oil on her, accused No.1 set her on fire. On account of the burn injuries, she rushed out of the house, by that time, Sangawwa Thadoor, Neelawwa and other people gathered there. They doused the fife and enquired with the accused as to why they set the deceased on fire and they told the accused No.1 to take her to hospital for treatment. Accused No.1 and deceased’s daughter PW-9 took the deceased to Guledgudd Government Hospital at about 11 p.m. On account of fire, her hands, neck, chest, leg and thigh had sustained burn injuries. Accused No.1 had forced her to give statement stating that the burn injuries were caused on account of the stove burst by promising her that, he would look after and maintain her as earlier. Accordingly, she had given the statement earlier stating that, the burn injuries were on account of the accidental stove burst. However, accused No.1 after admitting the deceased to the hospital had not cared and 12 come back to enquire, hence, she was forced to give the statement. This statement is endorsed by Doctor PW- 13 interalia stating that, the statement is recorded before him, however, there is no reference to the time nor the capacity of the deceased to give statement. Learned Additional S.P.P. relying on these Exs.P20 and P13 and the evidence of PW-9 - daughter of deceased submitted that, when there is a dying declaration of the deceased, which clinchingly establishes that, the accused No.2 poured kerosene and accused No.1 set the deceased on fire, no further evidence is necessary to corroborate the same. These evidence also prove the motive behind the commission of the offence. He further submitted that, Doctor in his evidence has stated that the deceased was fit and competent to give statement and has certified the said declaration as is recorded in his presence. He has also made an endorsement on the same, stating that the deceased was in a position to talk and was able to give her statement PW- 12, who recorded the statement of the deceased, has also stated that, he went to the hospital and recorded the statement of the deceased on 28.6.2000 after 12 noon. The evidence of these two witnesses coupled with Ex.P13 - dying declaration prove the prosecution case beyond reasonable doubt. He submitted that, when there C” a 13 a is acceptable and reliable dying declaration supported by the Doctor’s evidence stating that the deceased was competent to give statement, no further evidence is necessary to prove the charge. When the prosecution has proved the dying declaration and adduced the evidence supporting the same, the trial court was not justified in disbelieving the said evidence and acquitting the accused. He also submitted that, though there is no evidence as regard to the time of death, the evidence of PW 12, who recorded the statement, shows that, after he received anonymous letter, he went to the hospital and recorded the statement of the deceased. If the deceased had given her statement when she was mentally fit and capable of giving statement, her evidence stands on higher footing and does not need corroboration. On the basis of these material evidence, learned Additional SPP submitted that, the judgment of acquittal requires to be interfered with and the accused are required to be convicted for the offence for which they are charged. 14. Sri.M.B.Yankanchi, learned Counsel for the accused submitted that, though the prosecution has led the oral evidence of PWs- 1 to 15 and stated that, PWs- 1 to 3 are the eye ‘4 witnesses. howevei none of these witnesses have supportcd the case of the prosecution and were treated as hostile c.en though they have been cross examined, nothing has been elicit d in their crocs exaininari,ri PW 4 is a ‘ init to tht ‘I panchanama. PW• 5 is a witness to the seinare mhbwar PW n is another eye witness. PWs 4 and 3 have also turned hostile and not supported the case of the prosecution PW-b has also not supported the case of the prosecution. All these’ irnc’sses have been cross-examined, but nothing has been elicited in their cross-examination. PW 7 is the Doctor *ho conducted postmort.cm on the dead bod, He aas stated U c ause of death as due to bums and stated that the death was within 24 hours of the postmortem PW 8 is a ‘ithess IQ the spot panchanama-Ex P” and seizure oi burn; sari NI ci i ‘frt.ning mudi u& icid ut.a o trn’ao dir t. W isr de’i te f ti nec. ugl’ ‘. e’I t ot the pzoserucnr.. but i- nc; the eve-•’ rn.’°s ,. tile iy Idi-it rw i’jsrhc h’ther’tlz.’de”%ri. 1 ’t ‘.-‘i’’. t .•r (‘3(1 510 1 ’c’s Vs P1W S it vt to — pw. — a1’: __i:’.,O1: .‘ . t ,e-L S r’r’d!t, j.iflftf ‘‘..! ‘U d S.C I 15 Ex.P13 PW 13 is the Doctor, in whose presenc the lleged d}ing declaration was recorded, PW 14, an alleged ey witness has also not supported the case of the prosecution PW I is the C p1, who conducted further investigation Learned Counsel for the accused submitted that except PWs 9 and 10 no other witnesses have supported the case of the prosecution PW 9 is not the eye witness to the incident She alleg d that, her mother told her that, accused Nos 1 and 2 set her on fire by pouring kerosene, however she admits in the cross examination that, though she was attending her mother from 2562O0O till 28 6 2000, she has not given compi-tint nor her statement was recorded by the Police Further idmits that, even she did not inform the doctor as to the ournin? f her mother by the acc used PW 10 h the i h he deceased is ot an e u itness nd t s or I c is tte ni I s c r p h I n trind eca is o icit nO t h I I s I A c io h p 16 explained as to why she did not inform the Police or the doctor about the incident, hence, her evidence appears to be doubtful. 15. As far as dying declaration is concerned, he strongly argued that, though PW-12 has admitted that, Ex.P20 was recorded by the Constable, however, the said document did not form the part of the investigation papers, it is only marked in the evidence of PW-12. Ex.P13 does not bear the time of the recording of the dying declaration, however, the crime is registered in pursuance of the said dying declaration at 2.00 p.m. on 28.6.2000. In this regard, he relied on the document now produced by the learned Addl.SPP along with memo and submitted that, this Court by order dated 12.1.2011 has issued NBW to one Dr.NjCantaraj, Medical Officer, Guledgudd returnable by 17.1.2011 for production of case sheet of Lalitawwa, wife of Basappa Raynk along with MLC register. In pursuance of the said warrant, Dr.N.Kantaraj appeared before this court on 17.1.2011. It appears that, said Dr.N.Kantaraj had produced the case sheet and MLC register. It is in ptrsuance of the same, the Addl.SPP has now filed a memo along with xerox copy of the case sheet along with letter dated 5.1.2011 written by Medical Officer, Samudaya Arogya Kendra, 17 Guledgudd to the Sub Inspector Guledgudd Police Station, stating that. as per th request of one S xow h. (Pc 1320 made on 5. 1 2011 at 10 am for produ tin of do uments, he tritd to secure ti said do urts bt r 11 y0t available all the necessan documents nd sought ihi time. Another document, which is the case sheet, pertains to deceased Lalitawwa from 25620OO to 28b2u00, which shows that, the deceased uas admitted to thc hospital at 12 30 am on 2662000 with burn injuries. She was alive till 33O a ni. (early morning) of 28 6 2000 According to the case sheet now produced, the deceased died in the eari\ morning at 3 30 a m. on 28 62000 in this regard, he referred to Ex P19 and pointed out that, according o PV -12 PSI. h reccw ed L\.P19 1 2 noon on 28,o 2000 md the videnc i PW 1 2 so ‘ hat on ece a1 m cny aou iCt 12 a. F p 0 jt- VflT C, the h 5nj! 0 ra cdi ati sp r rd as tie s ts -iet eased cic. - dO .s ‘. XV I i t 18 P1W- 12 sho $ that he wok action to register the crime only in pursuance of the thing declaration as pc r Ex P1 and th etc is no reference to tin time at which flit statement as recorded. but it con 1w interred from the evidtn t ‘S PW-l2 .uid Ex P1 that the PSI received Ex.P19 at 12 noon of 28.b.2000. it is nnlt after that, he went to the hospital and rcc.orded the dying declaration i.c, between 12 noon and 2 p.m. on 286.2000 In the face of the event, it is clear that the Ex.P13 is not die dying declaration of the deceased, and it is a fabricated document. Ex.P13 has come into existence nearh Q hours after the death of the dec.eased He also submitted that, the PW 12 Investigating Officer has dehberatelv not mentior ed the time of recording of the dying declaration. Even PW- 13 h’is aN, not mentioned the rilne of recording of th •ivincz tierlaicit’n’ “W 13 “a s” n a”d t” n of “ ft h r hisd dee a nw r oftt tic ‘P snituid nace bees round placa ; thc “sitt’xi€iI p’tdnr ci . t’it’i trr ..:jsc slia F i;t.retar. i ‘a5 - I’ ,ir - ‘t’ . .tlzt sbec tcrn’s s pr c i cn’y Ne et L-t f I ) p C a r c’duc r tfle ‘-‘ i A’.i’ h a L \ 1 ‘r.:’” ti’ • .. •.ai 19 submitted that, from these materials it is clear that the dying declaration nor univ is a fabricated dounn nt, hut it is ot foi the purpose of reistering the false cas ccains1 thc a eused l. He further submitted thar the trm! ‘o1Ir en proper scrutin of the entire evidence has fuunci that the prose anon has utterly failed to prove the charge agatnst the accused and has rightly acquitted them. Even on reconsideration el the evidence, it does not call for interference. 17. In the light of the submissions made by both the Counsel, the point that arises for consideration in this appeal is Whether the judqment of a quzttal iriterferen € e ‘a c f a 1 din si tht L icr and a asd n A jarre] a ith d an I drt 6 gco rd c stn€ Acu s-a \a tit ft jllccrd Ic: the 1;i r 1hC - gone to the house of accused to demand financial assistance. It is in this regard, the quarrel took place between the deceased and accused No,2, the wife of accused No.1, To support its case, th.e prosecution has examined as many as 15 witnesses and from amongst 15 witnesses, PWsi, 2. 3. 6. 9. 10 and 14 are stated to be the material witnesses. The statements of PWs 1. 2, 3 and 6 were recorded by the Police as the evewitnesses, but before the court, all these witnesses have not only turned hostile, but they have denied of having seen the incident. Though they have been crossexamined, nothing has been elicited, As far as the evidence