- 1 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO.655/2018 (C) BETWEEN: YALLAPPA S/O. HANUMANTHAPPA AGED ABOUT 48 YEARS OCC: CONTRACTOR R/AT NO. 36TH WARD MOUNESHWARA EXTENSION NITUVALLI DAVANAGERE CITY DAVANAGERE. &APPELLANT (BY SRI. VENKATESH P DALWAI., ADVOCATE) AND: STATE OF KARNATAKA BY THE CIRCLE POLICE INSPECTOR CENTRAL CIRCLE DAVANAGERE, REP. BY STATE PUBLIC PROSECUTOR &RESPONDENT (BY SMT. SOWMYA.R., HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 20.03.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.112/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 302 OF IPC. THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and order of conviction and sentence passed against him, accused in S.C.No.112/2015 on the file of Principal District and Sessions Judge, Davanagere has preferred this appeal. 2. The appellant was sole accused in S.C.No.112/2015 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 3. The charge against the appellant/accused was that he was married to victim/Sharadamma since 23 years prior to 09.11.2014 and he subjected her to mental and physical cruelty on the ground that she did not beget a child. Ultimately, on 09.11.2014 at 3:00 p.m in his house situated in Mouneshwara Badavane within the limits of Women Police Station, Davanagere, he poured kerosene on her and set her ablaze. The victim succumbed to the injuries on 12.11.2014 at - 3 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 11:45 a.m in SSIMS hospital, Davanagere. Trial Court by the impugned judgment and order found him guilty and passed the impugned order of conviction and sentence. 4. Heard both side. Submissions of Sri. Venkatesh P. Dalwai, learned Counsel for appellant/accused No.1: 5. The case is based solely on circumstantial evidence namely motive that victim did not bear a child, intention of accused to remarry, dying declaration said to have been made by the victim as per Exs.P1 and P6 before PWs.2 and 6 respectively. Motive is double-edged weapon. Evidence on record shows that the accused was well off compared to PWs.1 to 3 and he was being pressurized to take their children in adoption. When that is not acceded, accused was falsely implicated in the case. Further the whole process of recording Ex.P1/dying declaration is surrounded with unexplained suspicious circumstances. Medical evidence shows that the victim had suffered 90 to 95% burn injuries. Therefore, victim giving statement either as per Ex.P1 or as per Ex.P6 is doubtful. The doctor who certified recording of Ex.P6 was not examined. The case-sheet of the victim was suppressed by - 4 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 investigating officer and prosecution for the reason that victim was not in a position to give statement. None of the independent witnesses regarding harassment to the victim or conciliation conducted between victim and accused were examined. Only independent witness/PW.10 did not support the prosecution case. The records show that in the earlier complaint, as well as present proceedings, all the family members of the accused were implicated, though they were not residing with the accused and deceased. In the present case while filing chargesheet, investigating officer herself did not find any material against the other family members of accused No.1/appellant. That substantiates the contention of the appellant/accused that there was an attempt on the part of PWs.1 to 3 and police to falsely implicate him. Further the evidence on record shows that it was the accused and his family members who shifted the victim to the hospital. If he had an intention to commit murder, he would not have shifted her to the hospital. That circumstance also goes against the theory that he intended to commit murder of the victim. Trial Court without proper appreciation of the evidence has convicted - 5 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 and sentenced the appellant/accused. Hence the impugned judgment and order needs to be set aside. Submissions of Smt. Sowmya R, learned HCGP: 6. The fact that the victim suffered burn injuries in the house of accused when himself and victim alone were present, was not disputed. Filing of previous complaint by the victim against the accused and his family members and that on investigation, they were charge-sheeted in the said case for the offences punishable under Sections 498A, 114 and 506 read with Section 149 IPC was not disputed. If at all the victim attempted to commit suicide, accused should have first informed the police. The evidence on record shows that he escaped from the hospital. Such conduct of the accused speaks about his guilt. The accused failed to explain under what circumstance victim suffered such burn injuries. Therefore, trial Court was justified in holding that the accused has failed to rebut the presumption under Section 106 of Indian Evidence Act,1872. The impugned judgment and order does not warrant interference of this Court. - 6 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 7. On hearing both side and on examination of materials on record, the point that arises for consideration is <whether the impugned judgment and order of conviction and sentence is sustainable in law?=. Analysis: Some of the undisputed facts of the case are as follows: 8. That the accused and victim/Sharadamma were married since 23 years prior to 09.11.2014. They were living together in their house situated at Mouneshwara Badavane, Davanagere. The victim had filed complaint against the present accused and his family members on 17.08.2014 alleging that accused at the instigation of his mother, sister and brothers was harassing her abusing her in foul language and ultimately on 12.06.2014 midnight he drove her out of family house and on conciliation on 16.07.2014 at 8:00 a.m. she was sent back to the matrimonial home and at that time all of them assaulted her and threatened to kill her by pouring kerosene on her and setting her ablaze. In that case on investigation, chargesheet was filed against the present accused/husband. After the said complaint, the victim was living in the house of the accused. On 09.11.2014 at 3:00 p.m. she suffered burn injuries in the - 7 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 house of the accused, she was taken to Chigateri hospital and from there she was shifted to SSIMS hospital, Davanagere. She succumbed to the injuries in the hospital on 12.11.2014 at 11:45 a.m. 9. The case of the prosecution is that on learning about the incident and hospitalization of the victim, her brothers/PWs.1 to 3 came to the hospital. On PW.9/ASI of Women Police Station, Davanagere receiving MLC intimation from C.G hospital, visited the hospital, she recorded the statement of the victim as per Ex.P1 and on her instruction, PW.2 scribed Ex.P1 and she registered FIR/Ex.P11 against the accused and his family members. PW.9 visited scene of offence, conducted spot mahazar as per Ex.P2 and arrested appellant/accused No.1. Further, investigation was handed over to ASI/Annapoorna after death of victim. Then PW.11/Revanna H.K, Circle Police Inspector, took over further investigation, conducted inquest mahazar, got subjected dead body to post- mortem examination. He recorded statements of witnesses and handed over further investigation to PW.12/Arjuman Banu/the CPI. PW.12 conducted further investigation, she did not find any case against accused Nos.2 to 8. Therefore, they were - 8 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 dropped from case and she filed charge sheet only against appellant/accused for offences punishable under Sections 498A and 302 IPC. 10. Admittedly there were no eyewitnesses to incident. Case was based solely on circumstantial evidence. Prosecution relied on following circumstances: (a) Victim did not bear a child. (b) Statements as per Exs.P1 and P6 made before PWs.2 9 and before PW6/Tahsildar respectively. (c) Death took place in the house of appellant/accused and accused has not explained the same. Reg. motive: 11. In Ex.P1/complaint, victim said to have alleged that appellant/accused was harassing her for she not bearing a child and he used to come home drunk everyday and was assaulting her. Except these two allegations, nothing is stated by victim in alleged dying declaration/Ex.P6. But during the course of the trial, PWs.1 to 3 stated that appellant/accused intended to - 9 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 remarry, since victim did not give consent for the same, he subjected her to cruelty and committed her murder. 12. To prove the motive, prosecution relied on Ex.P3 the proceedings in the earlier complaint of the victim against the appellant/accused, his parents and siblings. Ex.P3-contains copies of order sheet in C.C.No.253/2015, FIR in Crime No.55/2014, which was registered based on the earlier complaint and charge sheet of said case. Ex.P3(a) is said to be a complaint filed by victim on 17.08.2014 at 02.00 p.m. before the Sub-Inspector of Women Police Station, Davangere. In that complaint, though it was alleged that all those accused snatched her gold mangalya chain weighing 5 tholas, her sarees worth Rs.30,000/- and her younger brother9s wedding clothes worth Rs.30,000/-, on investigation the Investigating Officer did not find material against accused Nos.2 to 9 i.e., parents, siblings etc., and dropped them from the case. The charge sheet was filed only against the present appellant and that was also not for the offences of dowry harassment etc. In the complaint Ex.P3(a) it was alleged that the appellant was insisting her to give consent for remarriage so that he gets dowry from his second alliance. But there was no allegation in - 10 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 the complaint that the consent for remarriage was being insisted on the ground that she did not bear a child. However, while filing the charge sheet which was filed after death of the victim, it is alleged that consent for remarriage was sought on the ground of victim not bearing a child. Such variance in the complaint and the charge sheet was not explained. Further the allegations in Ex.P3(a) and other material on record show that even after such complaint, the victim9s parents and elder themselves had sent her back to matrimonial home on holding panchayat. If really there was imminent danger to the life of the victim, in the ordinary course she would not have sent back to the house of the accused. In the present case also, Investigating Officer did not find substance in allegations of victim or PW.1 to PW.3 as against mother, sisters and brothers of appellant/accused and they were dropped. 13. So far as the allegation of accused/appellant insisting the victim for her consent for remarriage on the ground of she not bearing a child, it is to be noted that appellant/accused and deceased were married since 23 years prior to incident. If at all, accused had grouse against her for - 11 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 not begetting a child, that could not have been since just one year prior to present incident as stated in Ex.P1. Therefore, said motive set-up by prosecution does not inspire confidence. 14. It is also to be noted that in earlier complaint, there were no allegations of appellant/accused coming home drunk and harassing victim. Only in present case, such theory is developed on the basis of Ex.P1/alleged statement of the victim, which in later part of this judgment is found unreliable. 15. Contrary to alleged motive set-up by prosecution, appellant/accused contended that he was well-off, whereas, PWs.1 to 3 were not financially sound, therefore, he had lent Rs.2,00,000/- to PW1 to PW3. When he demanded repayment of same, they had assaulted him. In that background they have falsely implicated him. PW.1 in his cross examination though disputed receiving Rs.2,00,000/- from appellant/accused, admits that accused had filed a complaint against them in Chitradurga Rural Police Station. He volunteers that there was a galata between him and accused in money matter. - 12 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 16. Contention of accused is that victim was suffering from a tumour and she had undergone surgery and she had multiple health issues. Therefore, she has committed suicide. Though PW.1 to PW.3 denied theory of victim committing suicide, PW.1 admitted that victim had undergone a surgery for tumour in stomach. 17. Above discussion shows that evidence of prosecution regarding alleged motive was not consistent. As rightly pointed out by learned counsel for the appellant/accused, motive is a double-edged weapon and it can be used by both parties. Therefore, alleged motive circumstance has to be corroborated by other evidence and that is only one link in chain of circumstances relied on by prosecution. Reg. recording of statement/Ex.P1: 18. According to the prosecution, PW.2 learning about incident and admission of victim in the C.G hospital, they came to the hospital. PW9 received medico legal intimation from the said C.G hospital. She visited hospital and got recorded Ex.P1/statement of victim in the presence of PW.4/ Dr.Kumar.R. Whether victim has made such a statement and - 13 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 that was recorded as contented by PWs.2 and 9 has to be examined. 19. PW.2/Venkatesha during course of initial examination deposed that on 09.11.2014 at 04.30 p.m. on learning about incident and admission of victim in hospital, himself and his wife visited hospital and victim revealed to him that appellant/accused has poured kerosene on her and set her ablaze. He further states that at 06.00 p.m. police and doctor came to ward of victim and victim gave statement and he scribed that. As per Ex.P1, he contends that doctor certified on Ex.P1 at the beginning and concluding portion. 20. PW.9-Jaysheela/ASI in her chief examination dated 25.05.2017 stated that on 09.11.2014 when she was the SHO of Davanagere Police Station, PW2 presented statement of victim/Ex.P1 and based on that she registered FIR and forwarded same to the Court. To control the damage, her chief examination was deferred and she was re-examined on next day. In her further chief examination she deposed that, on receiving the MLC intimation from Chigateri General hospital, she visited said hospital and enquired with doctor whether victim is in a fit condition to give statement. Doctor certified as - 14 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 per Ex.P4, then she directed PW.2 to write said statement and she recorded same and PW.2 scribed said statement as per Ex.P1 and she reiterated contents of Ex.P1. 21. Absolutely there is no explanation in cross examination of PW9 as to why she got Ex.P1 scribed through PW.2. She admits the suggestion that statement of victim has to be recorded by her and she had to subscribe her signature to the same. She further admits that if at all statement was recorded on her direction, such endorsement should have been made in statement. She admits that in Ex.P1 there is no endorsement that the same is scribed by PW.2 on her direction. 22. PW.2 in his cross examination states that police came to hospital at 06.00 p.m. till then appellant/accused was there in hospital and on seeing police he ran away. He further states that police did not attempt to catch the accused. He states he does not know if police had any difficulty to record statement themselves. He states that he did not ask police to record statement of his sister. He states police gave him paper and pen to write statement, but he does not know name and designation of such police officer. - 15 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 23. Other contention of the prosecution is that such statement was recorded in presence of PW.4/Medical Officer, who is an independent witness, therefore, the same shall be believed. Even if there is some inconsistency in evidence of PWs.2 and 9, PW.4/Medical Officer of CG Hospital, states that he examined victim on her admission into hospital and she was found with 90% to 95% burn injuries. She was able to give statement to police and he informed same to police and statement/Ex.P1 was recorded in his presence. On the contrary, in his chief examination he deposed that statement was recorded by police and does not speak about PW.2 writing such a statement. He says that on requisition of police, he has given a certificate as per Ex.P4, regarding fitness of victim to give statement. 24. PW4/Dr. Kumar. R, in his cross examination admits that CG hospital is a multi-speciality hospital and there are specific wards for each treatment and there are many doctors specialized to attend to those specific wards of patients as per instruction of Resident Medical Officer. He clearly admits in his cross examination that on 09.11.2014 between 06.00 p.m. and 07.00 p.m. he was not duty doctor in Burns Ward, he was not - 16 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 instructed by the Resident Medical Officer to attend to Burn9s Ward. He says that they have to work in concerned unit on instructions of Resident Medical Officer. He claims that on that day he was on dying declaration duty. But, nothing is produced to show that there was an assignment called dying declaration duty. Case sheet of victim is not produced to show which all medicines were administered to her at the time of recording statement as per Ex.P1 and what was her condition. 25. Further PW.4 in para 7 of his cross-examination admits that persons suffering 90% to 95% burn injuries will be in severe pain. He also admits that for such patients they administer pain killers. He also admits that he has not mentioned treatment given to victim on day when Ex.P1 was recorded. 26. PW.8/Dr.Vijay Kumar Jatti, who conducted post mortem examination of dead body of victim in SSIMS Hospital, in his cross examination admits that as per findings in post mortem report, brain had congested edematous and softened. He says that in such condition the faculties of the brain get affected and says that such condition happens after three days of suffering burn injuries. - 17 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 27. Above evidence goes to show that PW.4 being on duty in the hospital while recording Ex.P1 was not established by leading satisfactory evidence. Under such circumstances, burden was more on prosecution that victim was in a position to make statement with 90% to 95% of burn injuries. Further, evidence of PWs.1, 4 and 9 were mutually destructive regarding PW.9 recording statement/Ex.P1 and PW.2 writing same at instruction of PW.9. In accepting statement as per Ex.P1 which was recorded as alleged, Trial Court failed to appreciate evidence of aforesaid witnesses and circumstances judiciously. Reg. dying declaration -Ex.P6 28. PW.6/Smt. S PadmaKumari, Grade-II Tahsildar of Davangere at relevant time, states that on requisition of police on 10.11.2014, she visited S.S. Hospital, Davangere at 11 p.m., enquired one Dr. Ramesh S. Kotian about fitness of victim to give statement and recorded her statement between 12.00 a.m. and 12.30 a.m as per Ex.P6 and victim gave statement implicating accused. She further deposed that after recording dying declaration/Ex.P6, she sent the same to investigating officer under report dated 10.11.2014 as per - 18 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 Ex.P8. The fact of recording of statement was disputed by accused. In present case, to show that PW.6 visited hospital and recorded statement, Dr. Ramesh S. Kotian was not examined by prosecution. 29. Victim died on 12.11.2014 at 11.45 a.m. Earlier discussion shows that she was admitted with 90% to 95% superficial to deep burn injuries. Therefore, it was incumbent for prosecution to prove that as on 10.11.2014 victim was in a fit condition to give statement, which is not proved. 30. Further PW.6 at one breath states that requisition was given by her in a police case which was already registered. But in her report/Ex.P8, she states that she has forwarded statement with instruction that FIR shall be registered based on that and forwarded to Court to take legal action. Such statement in Ex.P8 creates doubt about PW.4's conscious participation in recording of statement of victim. Above two dying declarations, i.e., firstly before PW.4 and secondly before PW.8, were not corroborated by evidence of any independent witnesses except for evidence of PWs.1 to 3, brothers of victim, whose evidence showed that they had some animosity against - 19 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 accused. Therefore, trial Court committed error in accepting the said dying declarations and veracity of same. 31. Admittedly, case was based on circumstantial evidence. It is settled law that when a case is based on a circumstantial evidence, each circumstance has to be proved by cogent and consistent evidence. Any break in chain of circumstances, enure to the benefit of accused. Evidence adduced in such cases should point to the only hypothesis of guilt of accused and not explainable. Evidence on record shows that it was accused and his family members who had shifted victim to hospital and accused was present along with victim in hospital till the arrival of the police. Ex.P9/seizure mahazar regarding seizure of the clothes of accused, itself states that clothes of accused were also stained with kerosene and were partly burnt. 32. That circumstance coupled with circumstance of accused shifting victim to hospital probabilize defence of appellant/accused that victim attempted to commit suicide by pouring kerosene on herself and setting herself ablaze. Trial Court without judicious appreciation of evidence and contrary to judgment of the Apex Court in the case of Sharad - 20 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 Birdhichand Sarda Vs. State of Maharashtra1, has concluded that charges are proved beyond reasonable doubt. Therefore, the impugned judgment and order is liable to be set aside. Hence, the following: ORDER. The appeal is allowed. i. The impugned judgment and order of conviction and sentence in Sessions Case No.112/2015 passed by Principal District and Sessions Judge, Davanagere is hereby set aside. ii. Appellant/accused is acquitted of the charges for the offences punishable under Sections 498A and 302 IPC. iii. Appellant/accused shall be set at liberty forthwith, if his detention is not required in any other cases. iv. Order of the trial Court with regard to disposal of the properties and is maintained. v. Court places on record appreciation for the valuable and able assistance rendered by Sri. Venkatesh P Dalwai, learned Amicus Curiae. 1 (1984) 4 SCC 116 - 21 - HC-KAR NC: 2025:KHC:36843-DB CRL.A No.655/2018 vi. Sri. Venkatesh P. Dalwai, learned Amicus Curiae graciously submits that his services are pro-bono and does not want any fees. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE PKN,RL List No.: 1 Sl No.: 10