Kashi Vishwanath vs State Of Karnataka

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:

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-in-law, 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".

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”

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 mother-in-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”.

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.

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.

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.