- 1 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.200166 OF 2016 (378(Cr.PC)/419(BNSS)) BETWEEN: THE STATE OF KARNATAKA THROUGH CPI OF YARAGERA POLICE STATION, RAICHUR REPRESENTED BY THE ADDITIONAL STATE PUBLIC PROSECUTOR, KALABURAGI. …APPELLANT (BY SRI. SIDDALING P. PATIL, ADDL. SPP,) AND: 1. SRI. KONANTI TAYANNA S/O KONANTI HUSENI AGE: 32 YEARS, OCC: AUTO DRIVER 2. SRI. KONANTI HUSENI S/O SANNA NARASAYYA, AGE: 62 YEARS, OCC: AGRICULTURE 3. SRI. NARASIMHA S/O KONANTI HUSENI, AGE: 38 YEARS, OCC: AGRICULTURE Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 4. SRI. BAJARI S/O KONANTI HUSENI AGE: 28 YEARS, OCC:COOLIE WORK, 5. SMT.DODDA SHIVANAMMA W/O TAYANNA AGE: 30 YEARS, OCC:COOLIE WORK ALL ARE R/O: GUNJALLI VILLAGE TQ & DIST:RAICHUR. …RESPONDENTS (BY SRI. SANJAY A. PATIL, ADVOCATE FOR R1, R3, R-5; V/O DATED 17.01.2018 APPEAL AGAINST R-2 IS ABATED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) & (B) OF CR.P.C. PRAYING (A) TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT DATED: 22.06.2016 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, RAICHUR, IN S.C.NO.134/2014 THEREBY ACQUITTING ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A AND 302 READ WITH SECTION 34 OF IPC. B) SET ASIDE THE JUDGMENT OF ACQUITTAL DATED: 22.06.2016 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, AT RAICHUR, IN S.C.NO. 134/2014 AND C) CONVICT THE RESPONDENTS - ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A AND 302 READ WITH SECTION 34 OF IPC. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) This appeal is filed against the judgment of acquittal passed against the respondents by the Prl. District and Sessions Judge, at Raichur, in S.C.No.134/2014 dated 22.06.2016. 02. We have heard the learned Addl. SPP. for the appellant – State and the learned counsel for the respondents. 03. During the pendency of the appeal, the respondent No.2 said to be died. Hence, the appeal against the respondent No.2 abated. 04. For the sake of convenience, the ranks of the parties are referred to as per their ranking before the Trial Court. - 4 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 05. The CPI, Yaragera Police Station, Raichur, filed a charges-sheet against the accused Nos.1 to 5 for the offences punishable under Sections 498(A) and 302 read with Section 34 of IPC. It is alleged in the complaint by the PW.1 – Smt. Urukundamma the mother of the deceased that the accused No.1 said to be married with the deceased – Smt. Shivamma and having a child. The accused said to be harassing the deceased by abusing her that she does not know how to cook proper food and also harassed. Accordingly, prior to the date of incident the deceased – Smt. Shivamma went to her mother’s house. The accused No.1 came to there and quarreled and forcible took her on his motorcycle in the midnight. After a day, on 02.06.2014, she received a phone call from PW.7 – Sri. Induvasi Bheemesh that her daughter was said to be set the fire herself and she was admitted to the Dhanvantri Hospital, Raichur. Accordingly, she went to the Hospital and saw the injured – daughter and she had lodged the complaint as per Ex.P.1 alleging that the accused No.1 said to be ablaze on her by quarreling with her daughter. Though, the FIR was registered against the - 5 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 accused No.1 for the offence punishable under Section 307 of IPC, in the first instance. Later during the investigation the police have implicated the accused Nos.2 to 5. The injured succumbed in the Hospital. The police have filed the charge-sheet for the offences punishable under Sections 498(A) and 302 read with Section 34 of IPC. 06. After filing of the charge-sheet, the learned Magistrate took the cognizance for the offences and committed the case to the Court of Sessions for trial. 07. After receipt of the records, the Trial Court secured the presence of the accused Nos.1 to 5 and framed the charges of the alleged offences. The accused persons denied the charges and claimed to be trial. Accordingly, the prosecution called upon to adduce the evidence. The prosecution to support its case in all examined 19 witnesses and got marked 18 documents and four material objects marked as M.O.1 to 4. The accused persons did not choose to examine any witnesses on their behalf. - 6 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 08. After closing the evidence of the prosecution witnesses, the learned Sessions Judge read-over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. The case of the accused persons is one of total denial, but not lead any defence evidence, except cross-examining the prosecution witnesses. 09. After hearing the arguments, the learned Sessions Judge, found that the accused Nos.1 to 5 not guilty and acquitted for the charges leveled against them. Feeling aggrieved by the same, the State is before this Court. 10. The learned Addl. SPP. for the appellant – State has strenuously contended that the Sessions Court committed error in disbelieving the evidence of PWs.7 and 9 who are eyewitnesses to the said incident. He also contended that the deceased – Smt. Shivamma given dying declaration before the PW.16 – Tahasildar which was marked as Ex.P.14. The evidence of PW.18 – Dr. Tanveer - 7 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 reveals that the dying declaration was recorded in the presence of the doctor. All these four witnesses’ evidence and Ex.P.14 was discarded by the Sessions Court. It is also contended that even without corroborative evidence, the dying declaration can be sole base for the conviction of the accused persons. There are two eyewitnesses who had saw the incident, who shifted the deceased to the Hospital. Though, at the fist instance, the deceased was not in a position to give her statement. The Ex.P.1 which was obtained from the mother of the deceased, but the deceased – Smt. Shivamma was survived for 14 days and she died on only 16.06.2014, which clearly reveals that she was in a fit condition to give her statement before the Tahasildar. There is no material or rebuttal evidence from the accused to disbelieve the evidence of the PW.15 and 18 for discarding the dying declaration at Ex.P.14. Therefore, it is contended that even if it is not considering the evidence of PW.7 and 9, but the evidence of PW.15 and 18 and Ex.P.14 is sufficient to held the guilty of the accused persons. Hence, prayed for reversing the judgment and to convict the accused persons. - 8 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 11. Per contra, the learned counsel appearing for the respondents – accused has supported the judgment of the Sessions Court and contended that the evidence of PWs.7 and 9 are unbelievable, as it is not probable to accept their evidence. Wherein PW.7 who is said to be an auto-driver has stated that he shifted the injured in his autorickshaw to the Primary Health Centre (PHC), Gunjahalli Village. But there is no evidence produced to show that PW.7 took the injured to the hospital. Whereas in dying declaration, the deceased has stated that she was shifted to the hospital in ambulance. There is inconsistency in the evidence of PW.7. Therefore, the Trial Court rightly discarded and disputed his evidence. 12. It is further contended that PW.9 who is said to be examined as an eyewitness to the incident has stated that he saw the quarrel between accused No.1 and deceased, where accused No.3 poured kerosene on the deceased and accused No.1 lighted fire on the deceased. It is further contended that the PW.7 has stated that there was challenge between the deceased and accused No.1, - 9 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 where accused No.1 told the deceased that if she had love on him, she should commit suicide and both of them poured kerosene but accused No.1 lit fire on the deceased and he did not fire himself. It is contended that when PW.7 is from some other place, there is no chance of passing through the house of accused No.1 in the midnight 12.30 a.m. Therefore, his evidence is also doubtful and not acceptable and there is inconsistency in his evidence. Therefore, the trial Court has rightly discarded his evidence. Therefore, there is no question of considering their evidence does not arise. 13. The learned counsel also contended as regards the dying declaration. The evidence of PW.18 – Dr.Tanveer has clearly revealed that he has endorsed his signature on the dying declaration recorded PW.16, but he has not stated that he was present during the time of recording the dying declaration. As per the evidence of the Tahasildar and doctor, two to three relatives of the deceased were also present prior to recording the dying - 10 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 declaration. There is a chance of tutoring the same. Even in the statement, it is stated that only accused No.1 lighted fire, whereas the evidence of PW.9 is altogether different and accused Nos.2 to 5 were implicated by the police that they have poured kerosene and lit the fire. There is inconsistency of the statement of eyewitnesses and dying declaration of the deceased. 14. That apart, it is also contended that the family members including the mother and sister of the deceased turned hostile except these four witnesses. Therefore, the Trial Court rightly acquitted the accused persons. It is also contended by the learned counsel that normally the accused in a criminal trial is having a fundamental right of presumption of innocence till his guilt is proved. Once the accused is acquitted, the accused is having double decree of presumption of innocence in favour of the accused. Therefore, there is no need to interfere with the sound and well reasoned judgment of the Trial Court in acquitting the accused persons. Hence, prays for dismissal of the appeal. - 11 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 15. In support of his contention, learned counsel for the respondents has relied upon the judgments of the Hon’ble Supreme Court in the case of M.C. Ali and another vs. State of Kerala reported in (2010) 4 SCC 573 and in the case of Phulel Singh vs. State of Haryana reported in (2024) 1 SCC (Crl.) 64. 16. Having heard the learned counsel appearing for the parties and perused the documents, the points that would arise for our consideration are: i) Whether the prosecution proves beyond all reasonable doubt that the deceased - Shivamma said to be harassed continuously by accused Nos.1 to 5 and due to the harassment that on 02.06.2014 at 1.00 a.m., the accused persons poured kerosene and lit fire on the deceased and due to which she sustained injuries and died in the hospital on 16.06.2014 and thereby the accused persons committed offences punishable under Sections 498(A) and 302 read with Section 34 of IPC? - 12 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 ii) Whether the judgment of the Trial Court in acquitting the accused persons calls for interference by this Court? iii) What order? 17. We have perused the records and the evidence adduced before the Trial Court by the prosecution. Before re-appreciating the evidence on records, it is worth to mention the evidence adduced by the prosecution before the Trial Court. 18. We have already observed above that the prosecution as examined 19 witnesses as PW.1 to PW.19 and got marked 18 documents as Ex.P.1 to Ex.P.18 and 4 material objects were also marked. PW-1 Smt. Urukundamma, the mother of the deceased who lodged a complaint to the police as per Ex.P.1 was turned hostile except admitting the relationship. PW.2 – Thayamma aged about 7 years, who was younger sister of the deceased said to be residing with the deceased in her matrimonial house, informed to PW.1 that the accused - 13 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 persons committed murder by lighting fire on her sister. But she also turned hostile and did not support the case of the prosecution. PWs.3 and 4 are the elder sister and brother of the deceased, they also turned hostile. Therefore, their evidence was not useful to the prosecution to prove the case. PW.5 - uncle of the deceased and PW.6 an independent witness also turned hostile and did not support the case of the prosecution. PW.8 - Sharanappa another eyewitness also did not support the case of the prosecution case. 19. PW.7 – Sri. Induvasi Bheemesha, an auto driver who said to have shifted the injured- Shivamma to the PHC, Gunjahalli Village and PW.9 - Bheemanna who also said to be accompanied the deceased in the autorickshaw, supported the case of the prosecution. PW.10 – Sri. S.Nagram Gouda, Junior Engineer, who prepared the spot sketch as per the instructions of the Investigating Officer is a formal witness. PW.11 - Police Constable who carried FIR to the Court is also a formal witness. PW.12 – - 14 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 Shivappa, Police Constable who was present with the Investigating Officer while conducting inquest and took photographs of the dead body as per Ex.P.12. PW.13 – Abdul Bashid, Police Constable who carried sealed articles to the FSL is also a formal witness. All these witnesses have supported the case of the prosecution. 20. PW.14 – Venkat Swamy, ASI, registered the FIR by obtaining complaint from PW-1. According to his evidence, he has tried to record the statement of the deceased-Shivamma when she was admitted in Dhanvanthari Hospital, but she was not in a fit condition to give statement. Therefore, he has obtained statement of PW-1 as per Ex.P.1 and registered the FIR to set the law into motion. Though he has stated that he has registered the FIR on the basis of statement of PW.1 the mother of the deceased, the PW-1 did not support the case of the prosecution. According to his evidence, the deceased was not in a fit state of mind to give statement. His evidence should be considered along with considering the evidence of PWs.16 and 18. - 15 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 21. PW.15 – Dr. Wasim Miya who conducted the PM examination as per his evidence, the deceased was dead due to the septicemia as a result of ante-mortem burns leading to cardio respiratory. He also deposes that there was 75 to 80% of burned injuries found on the body. But as per the evidence of PW.18, 35 to 40% of burned injuries were found on the body. The death due to burned injuries is not in dispute. 22. PW.16 - Tahasildar who recorded the dying declaration of the deceased-Shivamma as per Ex.P.14, PW.17 – Suresh, C.P.I., was the investigating officer who filed the charge sheet and PW.18 - Dr. Tanveer is a PG student, who treated the deceased and was present at the time of recording the dying declaration of the deceased by PW.16, gave evidence and supported the case of the prosecution. PW.19 – Kalappa, P.S.I., who also conducted the part of investigation and prepared the spot panchanama and after the death of the deceased, handed over the investigation to PW.17 – Suresh, C.P.I. - 16 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 23. We have perused the evidence and material witnesses examined by the prosecution. The maximum witnesses of the prosecution were turned hostile including the relatives, brother, sister, mother and uncle of the deceased except PWs.7 and 9 who were said to be the eyewitnesses to the incident, PW.16 – Tahsildar and PW.18 – Dr.Tanveer in whose presence alleged dying declaration was recorded. Based upon this evidence, the Trial Court found accused persons not guilty and acquitted. 24. Before appreciating the evidence of PWs.7, 9, 16 and 18 on record, we bear in mind the principle laid down by the Hon’ble Supreme Court in the case of M.C. Ali and another (supra). The relevant paragraphs No.57 and 58 are extracted herein below: “57. This settled proposition of law has been reiterated by this Court in Chandrappa v. State of Karnataka1. In this case, the provisions of Section 378 of the Code of Criminal Procedure, 1973 were critically examined. After adverting to numerous decisions of this Court, it was observed as follows: (SCC p. 432, para 42) 1 (1979) 1 SCC 79 : 1979 SCC (Cri) 147 - 17 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances’, 'distorted conclusions', 'glaring mistakes’ etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. - 18 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." From the above, it becomes evident that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. The acquittal reinforces and reaffirms the presumption of innocence of the accused. 58. The High Court, in fact, makes a reference to the judgment of this Court in Kali Ram v. State of H.P.2, wherein this Court has observed: (SCC p. 820, para 25) “25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted." Having noticed the aforesaid principle, the High Court reviewed the entire evidence. It reached the conclusions which are opposite to the conclusions recorded by the trial court. We are unable to accept the opinion of the High Court that findings recorded by the trial court are perverse and manifestly erroneous.” 2 (1973) 2 SCC 808 : 1973 SCC (Cri) 1048 - 19 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 25. Another judgment of the Hon’ble Supreme Court in the case of Phulel Singh (supra) is also required to be considered. The relevant paragraphs No.19, 20 and 22 are extracted herein below: “19. With the assistance of the parties, we have perused the evidence and materials placed on record. 20. The present case mainly rests on the dying declaration of the deceased. No doubt, that a conviction can be solely recorded on the basis of dying declaration. However, for doing so, the court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence. In the present case, the dying declaration is recorded by Shri Sadhu Singh (PW 5), Executive Magistrate. He stated that he obtained the certificate from the doctor regarding the fitness of the deceased to make the statement. He further stated that he recorded the statement of the deceased and thereafter it was read over and explained to her. He further states that she had thumb-marked the same after admitting its contents to be correct. 22. It is relevant to note that the deceased received burn injuries on 5-11-1991 but the dying declaration came to be recorded on 8-11-1991 after an application was made by the relatives of the deceased to the SDM, Ludhiana. Shri Sadhu Singh (PW 5), Executive Magistrate, in his evidence, admitted that the boys, who had brought the application containing the order of the SDM, Ludhiana had told him that the statement of the deceased should be recorded and that she was in a position to make the statement. He further admitted that those boys - 20 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 had told him that whatever they had to tell the deceased, they had told her and that he should accompany them to record her statement. He has further admitted that those 2-3 boys were related to the deceased and some other persons were also in the room in which he recorded the statement of the deceased.” 26. On keeping the principles laid down by the Hon’ble Supreme Court in mind, now coming to the evidence adduced by the prosecution in order to re- appreciate the evidence of PWs- 7, 9, 16 and 18. 27. As per the evidence of PW.7 – Induvasi Bheemesha, he has stated that about one year back, a day in a morning hours 4 to 5 a.m., accused persons poured kerosene on the deceased-Shivamma and lit fire and committed murder. At that time all the accused were present and he himself while proceeding in his auto, he saw the incident and shifted the deceased to the hospital. He also stated that accused No.1 told to deceased Shivamma that if she is loving accused No.1 she should pour kerosene, lit fire and commit suicide. Both of them poured kerosene on them and accused No.1 lit fire on - 21 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 Shivamma and committed murder. After the deceased sustained burned injuries, he took her to the PHC at Gunjahalli Village. He also stated that accused No.1 after lighting fire on the deceased, he ran out from the spot and thereafter, the deceased was shifted to Dhanvanthari Hospital from PHC hospital. He has identified the kerosene can and match-sticks as M.O.1 and 2, burnt sari of the deceased as M.O.3 and blouse as M.O.4. It is stated that there are two houses of one Narasimha and Bangi Narasanna present on the western side of the house of the deceased. The presence of this witness on the spot is disputed. 28. Learned counsel for the respondents has contended that the incident allegedly took place at 12.30 to 1.00 a.m. midnight, there is no occasion for this witness to come to that place. It is also contended that, if at all he viewed the incident and stated that accused No.1 ran out from the spot, whereas the dying declaration of the deceased states that accused No.1 was accompanied to - 22 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 the hospital for the purpose of admitting the deceased to the hospital. Looking into the evidence of this witness, though he has stated there was challenge between the deceased and accused No.1 that accused No.1 told the deceased that she should commit suicide if she is having affection with him and he will also commit suicide by pouring kerosene on him, if he is having affection with the deceased, but this fact of challenge made by accused No.1 and deceased is not deposed by any of the witnesses in the case. Even there is no investigation on this part to say that accused No.1 and deceased were desired to self- immolation by pouring kerosene and lighting fire by each other. As per the information received by PW.1 through this witness and PW.9 that her daughter has sustained burned injuries but it was not stated that accused persons poured kerosene and lit fire at the first instance while recording the first information by the police. - 23 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 29. Apart from that, if at all PW.7 accompanied the deceased in his autorickshaw and took her to the PHC hospital, Gunjahalli, the investigating officer for the best reason known to him, he has not collected the MLC register extract from PHC hospital, Gunjahalli to show whether PW.7 has actually shifted the deceased to PHC, Gunjahali. 30. That apart, as per Ex.P.14 - dying declaration, the deceased was shifted to hospital by accused No.1 and family members in an ambulance. The deceased has stated that she was shifted to the hospital by ambulance, but PW.7 says that he has shifted the deceased by his autorickshaw. Therefore, the evidence of PW-7 does not inspire confidence to believe that he was present at the spot and shifted the deceased to the hospital. That apart he was made as an eyewitness that he has stated that he saw the quarrel between the deceased and accused No.1. Whereas the deceased has stated that accused No.1 accompanied her to the hospital in the ambulance. - 24 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 Therefore, the evidence of PW.7 does not inspire any confidence that he was present and viewed the incident at 12.30 a.m. midnight and he has deposed that he has shifted the deceased at 4 a.m. to 5 a.m. in the morning. There is inconsistency in his evidence. Therefore, the Trial Court rightly disbelieved his evidence and discarded from accepting the evidence for the prosecution. 31. As regard to the evidence of PW.9 who is to be a relative of the deceased and PW.1, he has stated that while he was going to his house through the house of accused No.1, he saw accused persons quarrelling. He being the very close relative of the deceased, he could have stopped or prevented the quarrel or he could have intimated same to the mother of the deceased. But he has stated that on 02.06.2014 at 12.30 a.m., when the incident took place, he received the phone call and he went to Gunjahalli, where he saw accused No.1 dragging the deceased outside from the house and all the accused persons were present and accused No.3 poured kerosene - 25 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 by holding 5 liter kerosene can and accused No.1 lit fire and other accused persons moved away. Thereafter himself and another Sharanappa said to extinguished the fire and took the deceased in autorickshaw to the hospital. Thereafter, the injured was shifted to Dhanvanthari hospital, where PSI came to the hospital and recorded the voice and he has also identified M.O.1 and 2 in the Court. During the cross examination, he has admitted that he used to run the tractor and he came to know about the incident and that he went to Yeragera Village at 12.00 midnight. He further stated that after the incident, he never met the police and only he came to the Court after issuance of summons and the suggestion made by the counsel for accused was denied. 32. On careful reading of evidence of this witness, this witness’s evidence is inconsistent with his own examination-in-chief, where at one stretch he has stated that he came to know about the incident at 11.00 p.m. and he was passing through the house of the accused and - 26 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 saw the quarrel between the accused persons and deceased, where all accused persons dragged the deceased from outside the house and accused No.3 poured kerosene and accused No.1 lit fire. Whereas, the evidence of PW.7 is concerned, it is stated that there was challenge between the deceased and accused No.1 and both of them poured kerosene on themselves and accused No.1 lit fire on deceased but did not lit fire on him. It is altogether a different story narrated by this witness. That apart, this witness being closed relative of deceased and mother of the deceased and the presence of this witness at 12.30 a.m. said to be passing through the house of the accused is unbelievable as his house is situated in different place and there is no occasion for him to pass through the house of the accused. If at all this witness along with the PW.7 shifted the injured-deceased to the hospital, the deceased might have stated before PW.16 - Tahasildar that she was shifted by PW.7, but she has stated that she was shifted by accused No.1 and family members. Therefore, the evidence of this witness does not inspire any confidence and it is improbable to accept the presence of this witness, - 27 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 also is not believable. Therefore the Trial Court has rightly disbelieved the evidence of PW.9 as well. 33. The remaining evidence of PW.16 and PW.18 should be considered in respect of Ex.P.14 – the alleged dying declaration, as it is held by the Hon’ble Apex Court that the dying declaration can be sole basis for laying conviction and sentence. Therefore, the Court is required to be very careful in accepting the dying declaration. 34. On perusal of the evidence of PW.16, Balraj Devarakadra, the then Tahasildar, who has deposed that on 02.06.2014 he has received requisition from Yeragera Police Station for recording the dying declaration of Smt. Shivamma who was admitted in Dhanvanthari hospital, Raichur with burned injuries. He has received the requisition at 5.15 p.m. and visited the hospital. A police constable took him to the burns ward where the patient was admitted. He has enquired the patient whether she was in a position to talk. She told her name and stated that she was in Dhanvanthari. When he questioned her - 28 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 about the cause for burned injuries, she told him that on 01.06.2014 in the midnight, her husband Tayanna set her on fire. She gave the address of her husband and she also said that kerosene was poured on her body and she was set on fire in the house of her husband, Gunjahalli Village. She also showed her burned injuries and she also stated that on 01.06.2014 in the morning she has gone to the house of her aunt at Rajolli village and on the same day at 11.00 pm., her husband brought her to his house on motorcycle, quarreled with her and then poured kerosene and lit fire. She has further stated that he picked up quarrel with her stating as to why she has gone to the house of her aunt and he used to pick up quarrel frequently. She also told him that she has given complaint to the police to take action against her husband for the said incident. 35. The Tahasildar further says that he read over the contents of the statement in Kannada language and obtained her LTM on the statement. The duty doctor in the - 29 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 hospital has made an endorsement on the statement that the Tahasildar has recorded the statement – dying declaration. Though statement was in the format, doctor has stated he obtained his signature after recording the statement. He has identified the dying declaration as per Ex.P.14 and his signatures as Ex.P.14(a) to Ex.P.14(c). Further he deposes that before proceeding to record the dying declaration, he gave requisition to the duty doctor and obtained his endorsement that patient can give statement. He has identified the requisition as Ex.P.15 and the endorsement of Dr.Tanveer. After recording the dying declaration, he has put the same in the cover and sealed the cover. He further stated that he intimated the police that he would produce the dying declaration before the Court and sent a letter addressed to Yeragera Police as per Ex.P.16. 36. During the cross examination, he has admitted that he cannot say how many endorsements were made by him on Ex.P.14 and Ex.P.15 without looking into the - 30 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 documents. He further admits that he has obtained the endorsement of Dr.Tanveer i.e., PW.18 only after recording the statement on Ex.P.14. He further denied the suggestion that the deceased was not in a position to talk and the deceased has not given any answer to the questions recorded by him. He has stated that there is no idea under what provision of law, he retained the dying declaration in his possession. 37. The evidence of PW.18 - Dr.Tanveer which reveals that on 02.06.2014 at 5.00 a.m., a patient by name Shivamma was brought to his hospital and she was found 35 to 40% of burned injuries on the right side of the body. He started treating her and informed the consultant doctor. The police approached him and gave requisition to know whether the patient was in a position to give statement. He has seen the requisition Ex.P.15 and made an endorsement on Ex.P.15 that patient can give statement as per Ex.P.15(a). Then he further says that the Tahasildar came to the hospital at 5.00 p.m. and recorded - 31 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 the statement of Shivamma in his presence. He has identified Ex.P.14 is the statement of deceased – Shivamma and also his signature as Ex.P.14(d). During his cross examination, he has denied that he was not the head of the Dhanvanthari hospital and further says that he do not know who brought the injured to the hospital at 5.00 am. and who had issued the MLC to the police. He further says that on 03.06.2014, the said patient was discharged from their hospital on request. He further admitted to the suggestion that whenever he has to give opinion, it would be issued on the letter head of the hospital. Further he denied the suggestion that endorsement is not in his handwriting. He further admits the suggestion that the Tahasildar prepared the statement in the format and obtained his signature and denied the suggestion that Tahasildar did not record the statement in his presence. 38. We have perused the evidence of both the witnesses. The Tahasildar in his evidence has stated that - 32 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 prior to recording the statement of the deceased, he has directly spoken to the deceased to know whether she is in a position to give statement or not and thereafter, he has recorded the statement. After that, he has given requisition as per Ex.P.15 to the doctor for getting the opinion of the doctor. PW.18 – Dr.Tanveer has not stated that prior to recording the dying declaration, PW.16 has requested him to verify the position of the deceased that whether she is in a fit state of mind for giving the statement before PW.16. As per the evidence of PW.16, he has directly spoken to the deceased and recorded the statement and as a formality, he has given requisition to the doctor as per Ex.P.15 and obtained the endorsement that the deceased is in fit state of mind. On careful perusal of evidence of PW-18, there is no requisition prior to the recording the statement and there is no evidence to show he has clinically and medically examined the injured before giving permission to record the statement of the deceased. - 33 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 39. It is also brought to the notice of the Court by the learned counsel for the respondents that as per the evidence of PW.14 Venkat Swamy, ASI, who visited the hospital at 12.00 noon with MLC report, where the patient was not in a position to give statement, therefore, he has obtained the statement of PW.1 - mother of the victim for registering the FIR. Within 4 to 5 hours, PW.18 was said to be given permission to record the statement without ascertaining whether the patient was in a condition to give statement or not, or whether she was provided any treatment thereby she was able to give statement at 5.00 p.m., which was not forthcoming from the evidence of the prosecution. If the injured was seriously admitted to the hospital with burned injuries, normally the doctor used to provide seduction painkiller to avoid the feeling of pain, which would make the patient drowsy and would not be in a position to give statement. 40. Apart from that, it is evident from the record that two to three relatives of the injured were already - 34 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 present when the Tahasildar came to the hospital to record the statement. Even on perusal of Ex.P.14, she has stated that accused No.1 poured kerosene on her and lit fire in the house. Whereas the evidence of PWs.7 and 9 state that deceased was dragged outside the house and in the presence of the eyewitnesses, accused No.3 poured kerosene and accused No.1 lit fire. There is totally inconsistency between the evidence of the eyewitnesses and the dying declaration said to be recorded by PW.16. 41. As held by the Hon’ble Supreme Court, while accepting the dying declaration, the Court is required to be cautious in accepting the same. The judgment relied by the learned counsel for the respondents, the Hon’ble Apex Court has disbelieved the dying declaration and acquitted the appellants on the finding that before recording the dying declaration, the relatives of the injured were present along with the deceased. 42. The police who was present along with the Tahasildar gave the requisition to PW.18. The Tahasildar - 35 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 before recording the statement never meets PW.18 to ascertain the fit state of mind of the deceased to give statement, but he directly recorded the statement and obtained the thumb impression of the deceased and thereafter obtained signature of the doctor in Ex.P.14. The very chances of recording statement by PW.16 and obtaining endorsement from PW.18 is not ruled out. Therefore, recording of the evidence i.e., dying declaration Ex.P.14 creates doubt in the mind of the Court. Considering the same, the Trial Court has rightly disbelieved the alleged dying declaration - Ex.P14 is not recorded as per the satisfaction of PW.16 in the presence of PW.18 and this dying declaration do not inspire any confidence of the Court to accept for convicting the accused persons solely on the basis of dying declaration. 43. In view of the judgment of the Hon’ble Apex Court as stated above, in a criminal trial the fundamental right of the accused presumed to be innocence till he is proved guilty. Once the accused is acquitted by the Trial - 36 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 Court, double standard of presumption of innocence is available to the accused. Such being the case, the Court do not find any evidence or sufficient material to reverse the judgment of acquittal and to lay conviction on the accused persons. Therefore, we are of the view that the prosecution has failed to prove the charges leveled against the accused persons that they committed murder by lighting fire on the deceased due to which she died. 44. Consequently, the judgment of the Trial Court considering all the evidence on record, rightly disbelieved the dying declaration and acquitted the accused persons for the charges leveled against them. Therefore, we do not find any illegality committed by the Trial Court to reverse the same and to found the accused guilty in this case. Accordingly, the appeal filed by the State deserves to be dismissed. 45. For the aforementioned reasons, we proceed to pass the following: - 37 - NC: 2025:KHC-K:1804-DB CRL.A No. 200166 of 2016 ORDER i) The appeal filed by the State under Section 378 of Cr.P.C. is hereby dismissed. Send the copy of this judgment to the Trial Court along with the Trial Court records, forthwith. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE KJJ/MCR List No.: 1 Sl No.: 22 CT:SI