- 1 - CRL.A No.100560/2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF, APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100560 OF 2024 (C) BETWEEN: SUBHAS S/O. NAGAPPA MADAR AGE: 42 YEARS, OCC: PRESENTLY NIL (HE IS IN THE CUSTODY) R/O. GANDHIKERIGALLI, NEAR YELLAPUR NAKA, HALIYAL TOWN, TQ: HALIYAL, DIST: UTTAR KANNADA-581329. …APPELLANT (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE) AND: THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR, SPP OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD, THROUGH HALIYAL PSI-580011. …RESPONDENT (BY SRI. M.B. GUNDAWADE, ADLL. SPP.) THIS APPEAL IS FILED UNDER SECTION 374 CR.P.C. R/W. 415 OF BNSS 2023 PRAYING TO, SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 02.08.2024 PASSED BY THE COURT OF THE I ADDITIONAL DISTRICT AND SESSIONS COURT, KARWAR (SITTING AT SIRSI) UTTAR KANNADA, IN S.C.NO.5035/2017 FOR THE OFFENCE PUNISHABLE UNDER SECTION 506, 302 OF IPC AND TO ACQUIT THE APPELLANT/ACCUSED OF THE CHARGES LEVELED AGAINST HIM. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - CRL.A No.100560/2024 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: HON'BLE MR. JUSTICE G BASAVARAJA) The applicant/accused has preferred this appeal against the judgment of conviction and order on sentence dated 02nd August, 2024 passed in SC.No.5035 of 2017 by the I Additional District and Sessions Judge, Karwar sitting at Sirsi (for the sake of convenience, hereinafter referred to as the “Sessions Court”). 2. For the sake of convenience, the parties herein are referred to as per their rank and status before the Sessions Court. 3. Brief facts leading to this appeal are that Haliyal Police has submitted charge-sheet against the accused for the offence punishable under Sections 302, 498(A) and 506 of Indian Penal Code. It is alleged by the prosecution that accused being husband of CW1-Geeta, suspecting her fidelity, was ill-treating her mentally and physically. That on 19th May 2017 at 11:15 AM when the complainant deceased-Geeta was in the Kitchen, the accused poured kerosene on CW1 and lit fire and further - 3 - CRL.A No.100560/2024 threatened her of killing her children also in Goa Beach if she informs the same to anyone. Later CW1, succumbed to the burn injuries. Accused thereby, committed offences punishable under Sections 302, 498(A) and 506 of the Indian Penal Code. Accused is in judicial custody since the date of his arrest i.e. on 23rd May 2017. After filing the charge-sheet, case was registered against accused for commission of offences. After taking cognizance by the learned Magistrate, case was registered in CC No.265 of 2017 and after committal to the Sessions Court, case in SC No.5035 of 2017 was registered. Before framing charges, on behalf of accused, an application for discharge was filed under Section 227 of the Code of Criminal Procedure, the same was rejected by the Sessions Court and charges came to be framed for commission of alleged offences. The same were read over and explained to the accused in the language known to him. Having understood the same, accused pleaded not guilty and claimed to be tried. 4. To prove the case of the prosecution, in all, 21 witnesses were examined as PWs1 to 21; 48 documents were marked as Exhibits P1 to P48; and nine material objects were marked as MOs1 to 9. On closure of prosecution side evidence, statement of accused under Section 313 of the Code of Criminal - 4 - CRL.A No.100560/2024 Procedure was recorded. The accused has totally denied the evidences appearing against him, but during the course of cross-examination of prosecution witnesses, the material documents Exhibits D1, D1(a) and D1(b) were marked. Having heard the arguments on both sides, the Sessions Court acquitted the accused under Section, 498(A) of Indian Penal Code and convicted the accused to pay fine of Rs.2,000/- for the offence punishable under Section 506 of Indian Penal Code and in default of payment of time, to undergo simple imprisonment for a period of ten days. The accused was further sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of Indian Penal Code. Being aggrieved by this judgment of conviction and order on sentence, accused has preferred this appeal. 5. Sri Chetan J. Limbikai, learned Counsel appearing for the appellant would submit that the impugned judgment of conviction and order on sentence is erroneous, capricious and not sustainable in the eye of Law. He submitted that the trial court has failed to appreciate the material evidence available on record and has come to wrong conclusion. He submitted that the prosecution has examined 21 witnesses as PWs1 to 21; got - 5 - CRL.A No.100560/2024 marked 48 documents as Exhibits P1 to P48 and also marked nine material objects as per MOs 1 to 9. Further, the accused has relied on Exhibit D1 the statement made by deceased- Geeta. Though all the witnesses turned hostile and not supported the case of prosecution, despite the Sessions court has misconceived evidence and facts and has come to a wrong conclusion in a mechanical manner. The Sessions Court, solely on the evidence of PWs7 to 10, 17 and 18, has convicted the applicant. PW7 is the brother of victim and is a permanent resident of Hubballi and was not at all present at the time of occurrence of the incident and without there being any nexus to the alleged incident and his evidence cannot be believed. He would submit that the Sessions Court has wrongly come to the conclusion. He would further submit that PW6 is also sister of deceased CW1. PW8 is also permanent resident of Gopankoppa, Hubballi and she was also not present at the time the incident and therefore, her evidence is nullity in the eye of law. PW9- Tahasildar, Hubballi recorded the statement of the victim at KIMS Hospital, as could be seen from Exhibit P17 which is a dying declaration, the same would create doubt since, to the question posed at item No.6, the victim has answered in the way as she is tutored by someone which a victim cannot say - 6 - CRL.A No.100560/2024 like that that too when on death bed. The Sessions Court miserably failed to appreciate the evidence and record. Learned counsel for the appellant would further submit that as it could be seen from Exhibit D1-statement of the victim made to Halyal Police on 19th May 2017, wherein she has stated that in the morning at about 11.15 am in order to take bath, when she was boiling the water after pouring kerosene to the hearth, she caught fire, and at the first instance, she has not made any allegation against the accused. Therefore, there is a contradictory statement given by the victim herself. Hence, the prosecution has not proved the case beyond all reasonable doubts. According to the prosecution, CWs24 and 25 are the eye-witnesses to the alleged incident. However, prosecution has not examined these witnesses. Moreover, these witnesses are none other than the children of the deceased. Hence, the Sessions Court has failed to take note of this fact also and has arrived at a wrong conclusion. The Investigating Officer has not collected the case sheet by the concerned Hospital which issued report as to the mental and physical condition of the victim as to whether she was able to give statement or not. The Investigating Officer has not explained anything as to non- production of material documents during his investigation. The - 7 - CRL.A No.100560/2024 Sessions Court has failed to appreciate the evidence on record in its proper perspective. The accused is an innocent person and has not ill-treated his wife mentally or physically at any point of time prior to the alleged incident. In this regard, he would submit that the Sessions Court has acquitted the accused under Section 498(A) of Indian Penal Code and even State has not preferred any appeal against the said acquittal of the accused under Section 498(A) of Indian Penal Code. The accused is having two children who were completely dependent upon him. Accused has not committed any offence as alleged by the prosecution and ignoring the statement of the deceased which was endorsed by the Medical Officer and recorded by the Head Constable, the Sessions Court has convicted the accused which is not sustainable in the eye of law. He submitted that though the accused has not committed any offence, still he is in custody from the date of arrest for more than 7 year 10 months now and on all these grounds, the learned Counsel sought to allow the appeal. To buttress his submissions, the learned counsel placed reliance on the decision of the Honb’le Supreme Court in the case of SURESH v STATE REP. BY INSPECTOR OF POLICE, reported in 2025 SCC ONLINE SC 490. - 8 - CRL.A No.100560/2024 6. On the other hand, Sri M.B. Gundawade, learned Additional SPP appearing for the State, would submit that the Sessions Court has properly appreciated the evidence on record in accordance with law and facts and there is absolutely no ground to interfere with the impugned judgment of conviction and order on sentence passed by the Sessions Court and accordingly sought for dismissal of the appeal. 7. Having heard on both sides and on perusal of records, the following points, would arise for our consideration: 1. Whether the impugned judgment of conviction and order on sentence passed by the Sessions Court suffers from legal infirmities requiring this court to intercede? 2. What order? 8. Our answer to the above points is: Point No.1: in the affirmative; Point No.2: as per final order Regarding Point No.1: 9. We have carefully examined the materials placed before this Court. It is the case of the prosecution that accused being husband of deceased-Geeta, suspecting her fidelity, was - 9 - CRL.A No.100560/2024 ill-treating her mentally and physically. That on 19th May 2017 at 11:15 AM when the deceased-Geeta was in the Kitchen, the accused poured kerosene on her and lit fire and further threatened her of killing her children too in Goa Beach, if she informs the same to anyone. Later the said Geeta succumbed to the burn injuries. Thereby accused committed offences punishable under Sections 302, 498(A) and 506 of the Indian Penal Code. To prove the guilt of the accused, the prosecution has examined 21 witnesses as PWs1 to 21; marked 48 documents as Exhibits P1 to P48 and nine material objects were marked as MOs1 to 9. The statement of deceased-Geeta is marked as Exhibit D1. 10. CW10-Mallikarjuna said to be attester to seizure mazhar Exhibit P1 is examined as PW1. He has deposed in his evidence that on 24th July 2017, Haliyal Police have summoned him to the Police Station along with CWs9, 21 & 23. By that time, CW21 has produced copy of the agreement. Police has seized the same under Exhibit P1. In the agreement, it was stated that accused has assured that he will not ill treat his wife-Geeta. - 10 - CRL.A No.100560/2024 11. CW13-Smt. Jyothi, CW14-Smt. Gangavva, CW15- Nagappa Bharamappa Madar, CW17-Mudukappa Madar, CW20- Shanmukha Chalavadi, said to the circumstantial witnesses are examined as PWs2 to 6 respectively. All these witnesses have not supported the case of prosecution and are treated as hostile witnesses with the permission of the Court. During their cross-examination by the Public Prosecutor, they have categorically denied the statement and further statement said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure which are marked as Exhibits P2 to P 11. 12. CW21-Shankar Mallappa Chalavadi, another circumstantial witness examined as PW7. He has deposed in his evidence that the deceased CW1 is his younger sister and the accused is his brother-in-law and their marriage was solemnized on 07th February 2007. They have two children CWs24 and 25. For about an year after marriage, accused was looking after his sister well. Thereafter, he got addicted to alcohol and by suspecting about her fidelity, started to ill-treat his sister and thereby was causing mental ill-treatment to his sister. Accordingly, he took his sister to his house on 5th April 2017. On 6th May 2017, accused came to their House and - 11 - CRL.A No.100560/2024 asked to send his sister back assuring them to look after his wife and children without giving any trouble and he was ready to take his sister and children along with him, however, they did not agree. Then accused at his father executed a agreement on ₹20/- bond paper stating that he will not harass the deceased any further and took his younger sister to his house. He has further deposed that on 19th May 2017, the accused has suspected the fidelity of his wife and when she was in the kitchen, he poured kerosene on her and lit fire and fled the spot. Later, she was admitted to Government Hospital Haliyal, then shifted to KIMS Hospital, hubbali. Accordingly, he went to KIMS hospital and saw his sister. She had sustained burn injuries from face to all over the body. On enquiry it was revealed that accused suspecting her fidelity, by consuming arrack, when she was in the kitchen came there and with an intention to murder her, the accused poured kerosene on her and lit fire and further, he threatened that he would kill her children too in Goa Beach, if she reveals the same to anyone. On the next day, Haliyal Police came and enquired, and they have received the complaint. While his younger sister was taking treatment in the hospital, Tahasildar Hubli came and enquired her and reduced her statement on 22nd May 2017 at - 12 - CRL.A No.100560/2024 5.00 PM. Her younger sister died due to burn injuries. On 24th July, 2017, he has produced the agreement executed by the accused. The same was seized by the police under Exhibit P1. The father of the accused and his maternal aunt CWs22 & 23 also have affixed their signature. In this regard, he has given statement and further statement to the police. 13. CW6-Smt. Vijaya, who is also shown as CW22 is examined as PW8. She has deposed in her evidence that CW1 is daughter of her younger sister. Her sister passed away about 10 to 12 years back. Deceased-CW1 and accused are the husband and wife and are blessed with two children. For sometime after marriage, the accused was looking after his wife well. Thereafter, he got addicted to alcohol and started to harass the deceased by suspecting her fidelity. Deceased has informed her as to the ill-treatment given by the accused. Then she also advised accused not to harass the deceased, but he did not heed to her advice and continued his harassment to the deceased. On an earlier occasion also, unable to tolerate the harassment given by the accused, the deceased along with children stayed in her house. Thereafter, accused and his father came to her house, confessed and assured that they will look after the deceased-Geetha and children well and without - 13 - CRL.A No.100560/2024 giving trouble. At the time she informed that they have already harassed them more than 2 to 3 times and did not agree to send the deceased. Then the accused has executed agreement assuring them that he will not harass the deceased and children and look after them well and he has also put his signature on the agreement paper. After 15 days from the date of executing the agreement, she has received phone call from the house of the accused as to Geeta sustaining burn injuries and she being admitted to KIMS Hospital, Hubballi. She along with CWs21 & 23 came to KIMS Hospital, Hubli. On enquiry, the deceased revealed that when she was in the kitchen, accused came in, suspecting her fidelity poured kerosene on her and lit fire. Tahasildar has also recorded the statement of the deceased. On the next day deceased succumbed to the burn injuries. She has put the signature on inquest Panchanama Exhibit P13. CW16-Shashidhar Jagadish Madyala, Tahasildar, is examined as PW9. He has recorded the dying declaration of the deceased. He has deposed in his evidence that on 21st May 2017. He has received a request from the Station House Officer of Haliyal Police Station to record the dying declaration of injured-Geeta, who is taking treatment in KIMS Hospital, Hubbali as per Exhibit P16. He has received the request at 7:30 PM. He - 14 - CRL.A No.100560/2024 visited the hospital at 8:30 PM, and enquired the injured Geeta Subhash. He has stated that the injured is in a fit condition to give statement. He has recorded the dying declaration of the victim as per Exhibit P17. 14. CW30-Dr. Nirmit, Medical Officer examined as PW10 has deposed that on 21st May 2017. She has received information from the Haliyal Police through Casualty Medical Officer that patient named Geeta was under treatment in Burns world of KIMS Hospital and to give opinion about the fitness of the injured for recording her statement by Taluk Executive Magistrate. On examination, she found the injured-Geeta was conscious, oriented and fit to give her statement. Accordingly, she endorsed the same on Exhibit P18 at 6:30 PM. Taluk Executive Magistrate visited the Burns ward at about 8.00 PM and in her presence, questioned the injured-Geeta and recorded her answers in Kannada language. She had affixed her signature to the statement of the patient recorded by Taluk Executive Magistrate. She has deposed that both the hands of the patient were burnt and hence the left toe mark of the patient was obtained and Exhibit P17. Before the Taluk Executive Magistrate commenced the recording of the statement of the injured and after conclusion of the recording - 15 - CRL.A No.100560/2024 of the statement, she examined the patient and found her conscious oriented and fit to give statement. She has deposed that the patient was aged about 28 years and had suffered 50 to 60% superficial to deep burns on face, trunk, both upper limbs and buttock region. 15. CW2-Hanumantha and CW3-Narayana said to be the witness to spot mahazar and also rough sketch marked as Exhibits P19 & P20, have not supported the Case of prosecution. 16. CW8-Maruti, attester to cloth seizure panchanama examined as PW12 has deposed regarding the seizure of MOs1 & 2 under mahazar as per Exhibits P24 & 25, and the accused has produced the same before the Investigating Officer. 17. CW16-Smt. Vijaya, CW18-Parshuram Nagappa, CW19-Narayana Shivaraj, said to be circumstantial witnesses are examined as PWs14 to 16. All these witnesses have not supported the case of prosecution. Even in their cross- examination made by the Public Prosecutor after treating them as hostile witnesses with the permission of the Court, they have categorically denied the recording of statement and further statement by the Investigating Officer under Section 161 of - 16 - CRL.A No.100560/2024 Code of Criminal Procedure, which are marked as Exhibits P26 to P31. 18. CW31-Dr. Asha MD, who has given first aid to the injured examined as PW17, has deposed in her evidence that on 19th May 2017 at 11:30 AM injured by name Geeta was brought for medical treatment with the history of burns. On examination, she found kerosene smell all over the body and found the following injuries: “Burn (superficial to deep) present on face, neck, chest, upper abdomen, upper limbs (about 30- 40% burn).” She has deposed that she gave first aid treatment and referred to further treatment to KIMS Hospital, Hubbali. She has also given a letter which is marked as Exhibit P32. She has deposed that the abovesaid injuries may be caused by setting fire with kerosene. 19. CW32-Sanju Basappa Annigeri, Police Sub-Inspector, who is examined as PW18 who has recorded the statement of the injured at the first instance, has deposed that on 19th May 2017, when he was on duty in the station at about 11.00 AM, he has received MLC from Haliyal Taluk Hospital stating that a - 17 - CRL.A No.100560/2024 woman by name Geeta, has been admitted with history of burn injuries and immediately he went to the Hospital and recorded the statement of the injured in the presence of Medical Officer and he has taken the signature of the Medical Officer who has certified that the injured-Geeta was in a fit condition to give statement as per Exhibit D1. Injured-Geeta has put her LTM on Exhibit D1 as per Exhibit D1(b). He has handed over the statement of the injured to CW37 for further investigation. 20. CW37-Mallappa Pujar, Police Inspector examined as PW19, has deposed in his evidence that on 19th May 2017, when he was on duty in the Police Station he has received a report from Head Constable PW18 as to the injuries caused to the women who is taking treatment in Government Hospital, Haliyal. In the report, it was stated that when the injured to boil water was pouring kerosene to hearth, by that time accidentally, her nightie caught fire whereby she sustained injuries on her hands and face, and she had no suspicion on anybody. At that time, her husband was outside the house. Immediately, her husband and PW14-Anant Madar took her to Hospital for treatment. Injured has given statement that she has no complaint against anybody. That document is marked as Exhibit P33. On 21st May 2017, he has asked for opinion - 18 - CRL.A No.100560/2024 from the Medical Officer as per Exhibit P34 and he has received the report as per Exhibit P32. Thereafter, he has made request the Medical Officer to give statement as to the condition of injured-Geeta to give her statement as per Exhibit P18. The Medical Officer has certified that the injured is in fit condition to give statement as per exhibit P18(a). Then he submitted the request to Taluk Executive Magistrate to record dying declaration of the injured as per Exhibit P16. He has received the statement of Geeta Subash through Amit A Dakkimani. Both the hands of the injured were burnt and hence he has taken the mark of left toe as per Exhibit P35(a). He has deposed that after obtaining the statement in KIMS Hospital at 9:30 PM he went to Police Station about 11:45 PM and registered case in Crime No.148 of 2017. On 25th May 2017, along with panchas PWs11 & 13, he visited the spot and conducted panchanama as per Exhibit P19. He has also deposed as to the recording of statement of witnesses, and after completion of investigation, he has submitted the charge sheet against the accused. 21. CW38-Sundaresh Holennavar, CPI Thekkal Kote Ballari, has deposed regarding his part of investigation. - 19 - CRL.A No.100560/2024 22. A Careful scrutiny of evidence on record makes it crystal clear that on 19th May 2017 at 11:15 hours, while the deceased in order to boil water was pouring kerosene to hearth and lit fire at that time all of sudden, her nightie caught fire and thereby suffered burn injuries all over her body, hand and face. Immediately, she was admitted to KIMS Hospital. The injured also put her signature as per Exhibit D1(b). Statement of the deceased as per Exhibit D1 was recorded by the Head Constable No.987 in the presence of Dr Asha MD on 19th May 2017. It is relevant to extract Exhibit D1. The same reads thus: “²æêÀÄw VÃvÁ ¸ÀĨsÁ¸ï ªÀiÁzÀgÀ ªÀAiÀĸÀÄì 28 ªÀµÀð GzÉÆåÃUÀ ªÀÄ£É ªÁvÉð, ¸Á|| AiÀįÁè¥ÀÆgÀ £ÁPÁ DzÀ £Á£ÀÄ ºÉý §gɹzÀ ºÉýPÉ. F ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è £Á£ÀÄ £À£Àß UÀAqÀ ªÀÄvÀÄÛ JgÀqÀÄ d£À UÀAqÀÄ ªÀÄPÀ̼ÉÆA¢UÉ PÀÆrPÉÆAqÀÄ G¥À fêÀ£À ªÀiÁqÀÄvÉÛãÉ. »ÃVgÀÄvÁÛ F ¢ªÀ¸À ¢£ÁAPÀ 19.05.2017 gÀAzÀÄ … 11.15 UÀAmÉ ¸ÀĪÀiÁjUÉ »vÀÛ°£À°è ¸ÁߣÀPÉÌAzÀÄ ¤ÃgÀÄ PÁ¬Ä¸À®Ä M¯ÉUÉ ¹ÃªÉÄJuÉÚ ºÁQ ¨ÉAQ ºÀZÀÄÑwÛgÀĪÁUÀ MªÉÄä¯É ¨ÉAQ £À£Àß £ÉÊnUÉ vÁV ¨ÉAQ ºÀwÛ £À£Àß ªÉÄÊ PÉÊ ªÀÄÄR ¸ÀÄnÖgÀÄvÀÛzÉ. F §UÉÎ AiÀiÁgÀ ªÉÄÃ®Æ ¸ÀA±ÀAiÀÄ EgÀĪÀÅ¢¯Áè ªÀÄvÀÄÛ £À£ÀUÉ ¨ÉAQ ºÀwÛzÁUÀ £À£Àß UÀAqÀ ¸ÀĨsÁ¸À ºÉÆgÀV£À PÉÆÃuÉAiÀÄ°è EzÀÝ. £À£ÀUÉ G¥ÀZÁgÀPÉÌAzÀÄ £À£Àß UÀAqÀ£À CtÚ£À ºÉAqÀw ®Qëöäà D£ÀAzÀ ªÀiÁzÀgÀ EªÀgÀÄ ¸ÀPÁðj D¸ÀàvÉæUÉ vÀAzÀÄ zÁR®Ä ªÀiÁrgÀÄvÁÛgÉ. F §UÉÎ AiÀiÁgÀ ªÉÄÃ®Æ £À£Àß zÀÆgÀÄ EgÀĪÀÅ¢®è. - 20 - CRL.A No.100560/2024 N,ºÉ,PÉà ¸Àj CzÉ. LTM of Injured” 23. Dr Asha MD, who had examined the deceased for the first time, had issued certificate Exhibit P32. In the certificate, Exhibit P32 dated 21st May 2017, she has stated that on 19th May 2017, she has examined Smt. Geetha Subhash Madar aged 28 years from Haliyal at about 11:30 AM (OP No.221163) with history of burns. On examination, it was found that the burn was superficial to deep on face, neck, chest, upper upper limbs about 30-40% burn. She gave the injured first-aid treatment and referred to higher Centre i.e. KIMS Hospita, Hubli for further call and treatment. On Exhibit P32 she has also put her signature as per Exhibit P32(a). Dr. Asha has clearly admitted the contents of Exhibit D1 and the statement given by the injured. 24. Exhibit P33 is the letter addressed by Head Constable No.987 who has recorded the statement of injured as per Exhibit D1. He has submitted a letter to the Sub-Inspector of Haliyal Police Station in which he has referred to the contents of Exhibit D1, which is certified by Dr. Asha MD. - 21 - CRL.A No.100560/2024 25. PW18-Sanju, Police Sub-Inspector Haliyal has also clearly admitted in his evidence as to the statement given by the injured-Geeta as per Exhibit D1, which is recorded by Head Constable 987. During the cross-examination of PW 8, he has clearly admitted that at the time of recording the contents in Exhibit D1, he and the Medical Officer were present and that there was no compulsion on the injured to give this type of statement. Injured has voluntarily given the statement as per Exhibit D1. He has also deposed that the injured has put her LTM on Exhibit D1. 26. PW19-Mallappa Shankar Pujar, Police Inspector has also deposed as to the contents of Exhibit D1 and the contents of Exhibit P33. The Investigating Officer has not disputed the contents of Exhibit D1. The prosecution has not produced any material before this court to discard the contents of Exhibit D1. Contrary to the same is substantiated by the evidence of prosecution witnesses and also the documents Exhibits P32 and 33. Though Police officer has recorded the statement of victim in the presence of Doctor after certifying that the injured was fit enough to give the statement, he has not submitted the same to the jurisdictional Court forthwith to enquire into or to try the case under Investigation as required under Part 1276 of - 22 - CRL.A No.100560/2024 Karnataka Police manual. Investigating officer has not deposed anything as to non-compliance of Part 1276 of the Karnataka Police manual. 27. Instead of submitting Exhibit D1 to the jurisdictional magistrate, after two days from the date of incident he has recorded the statement of the injured as per Exhibit P35 without assigning any reasons, which is recorded by one Amit A Dakkimani in KIMS Hospital, Hubballi. On the basis of this statement he has registered a case in Crime No.148 of 2017 under Sections 498(A), 506 and 302 of Indian Penal Code and submitted FIR to the Court on 22nd May 2017 at 1:10 PM as endorsed by the jurisdictional Magistrate. The Police Sub- Inspector has taken LTM mark of the injured as per Exhibit 35(a) on 21st May 2017 at 21:30 hours. The scribe of Exhibit P35 has not been examined by the prosecution. Even the Investigating Officer has not cited this material witness as to witness, for the reasons best known to the Investigating Officer. The Investigating Officer has not explained anything for not taking the LTM on the FIR before submitting the same to the Court on the same day that is on 21st May 2017. Further on the same day, the Tahasildar has recorded the dying declaration as per Exhibit P17 between 20:35 and 20:45 hours. - 23 - CRL.A No.100560/2024 There is no reference as to the statement of the injured which was given at the first instance in Exhibit P17. The Tahasildar who is examined as PW9, has deposed that the injured has sustained burn injuries on both her hands, hence, he has taken the left toe impression as per Exhibit P17(a). The Tahasildar has not certified that after recording the dying declaration he has read over the same and explained to the victim in the language known to her. The Doctor has not endorsed on Exhibit P17 as to the condition of deceased that she was able to give statement or not. During the cross-examination of PW9, he has clearly admitted that he has not submitted any requisition to the Medical Officer to ascertain the condition of the injured as to whether she is fit enough to give statement or not. Further, he has deposed that at the time of recording the dying declaration, the husband of the deceased or any other relative were not present. 28. PW10-Dr. Nirmit has deposed that she has given her opinion as per Exhibit P18 that the patient was fit to give statement. But this statement has not been endorsed by the Tahasildar who has recorded the dying declaration. There is no consistency in the contents of Exhibits P35 & P17. If really, the patient was in a fit condition to give the statement and to put - 24 - CRL.A No.100560/2024 her LTM, the Investigating Officer would have taken the LTM of the injured on the First Information Report and also the dying declaration Exhibit P17. The Tahasildar has specifically stated that the injured was not in a position to put her LTM. The material document-case sheet maintained by the concerned hospital has not been produced by the Investigating Officer to show the health condition of the deceased. None of the medical officers who have examined the injured, have deposed as to the respiratory system of the deceased, blood pressure or as to the mental condition of the deceased. Had the case sheet been produced by the Investigating Officer, the truth would have come out as to the condition of the patient at the relevant point of the time. The Investigating Officer has not explained anything as to the non-production of case sheet maintained by the concerned Hospital. Except oral evidence, absolutely there are no material to show that the patient was in condition to give statement as per Exhibit P35 and P17. Under the given set of circumstances, adverse inference has to be drawn as per section 114(g) of the Indian Evidence Act, which provides that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Therefore, these lapses committed by the Investigating Officer - 25 - CRL.A No.100560/2024 will create reasonable doubt as to the alleged act of the accused. 29. Though the Tahasildar has recorded dying declaration as per Exhibit P17 on 21st May 2017, the same was not submitted to the Court. This Exhibit P17 produced by the Investigating Officer is only at the time of filing report, and this will also create reasonable doubt as to the dying declaration said to have been recorded by the Taluk Executive Magistrate. 30. It is the Case of the prosecution that the Investigating Officer has conducted various mahazars and seized the properties under property No.42/2017 dated 23rd May 2017, property No.63/2017 dated 24th July 2017 and property No.64/17 dated 25th July, 2017. But the same are not produced before the Court at earliest point of time as required under Section 102 of the Code of Criminal Procedure and the said Property Forms were produced before the jurisdictional Magistrate on 27th May 2017, after lapse of more than four days. Delay in submitting the same before the Court will create a reasonable doubt as to conducting of alleged mahazars. 31. As already discussed above that soon after the alleged incident, at the first instance, the injured has given her - 26 - CRL.A No.100560/2024 voluntary statement before the Doctor. The Doctor has certified the same and the Police Officer has recorded the statement of injured as per Exhibit D1. The Investigating Office has not explained anything as to the recording of statement as per Exhibit P35 and thereafter Exhibit P17 through Tahasildar. The Sessions Court has not properly appreciated the contents of Exhibit D1 and other evidences placed by the prosecution. 32. It is the case of the prosecution that prior to the alleged incident, the accused was ill-treating the deceased mentally and physically. But in this regard, the Sessions court has acquitted the accused for commission of offence under Section 498(A) of Indian Penal Code. State has not preferred any appeal against the acquittal of the accused under Section 498(A) of the Indian Penal Code. Therefore, the evidence placed by the prosecution regarding alleged treatment meted out by the accused to the deceased prior to the incident, will be of no help to the case of prosecution. It is not safe to convict the accused in the absence of any corroborative evidence. 33. The prosecution has failed to produce any cogent, credible, or trustworthy evidence to substantiate the allegation - 27 - CRL.A No.100560/2024 that the accused had threatened the deceased with dire consequences, specifically, that he would harm or kill her children at Goa Beach if she disclosed the incident to anyone. This alleged threat forms a crucial part of the prosecution’s case; however, its veracity is highly questionable. If such a serious and imminent threat had indeed been made by the accused, it is highly improbable that the deceased would have chosen to reveal the incident merely two days later. This conduct is inconsistent with the psychological impact such a threat would typically have on a mother concerned about the safety of her children. 34. Moreover, the evidence of the Taluk Executive Magistrate, who recorded the dying declaration, confirms that none of the deceased’s close relatives or her husband were present at the time of its recording. This aspect casts further doubt on the circumstances under which the dying declaration was obtained. Exhibit P17, which is relied upon by the prosecution, does not mention the threat allegedly made by the accused, thereby failing to corroborate this material aspect. Consequently, the subsequent statement recorded in Exhibit P35, which seeks to introduce the element of threat, appears to be an afterthought and raises significant doubts about its - 28 - CRL.A No.100560/2024 reliability and credibility. Taken together, these inconsistencies erode the foundational basis of the prosecution’s case. 35. Evaluated from every conceivable angle, the prosecution has utterly failed to present cogent, convincing, and legally admissible evidence that could be regarded as reliable or corroborative. There exists a glaring absence of consistent and trustworthy evidence which could sustain a conviction beyond reasonable doubt. Despite this, the learned Sessions Court has erroneously convicted the accused without undertaking a proper, fair, and legally sound appreciation of the evidence placed on record. 36. It is well established in law, as reiterated by the Hon’ble Supreme Court in Suresh v. State of Maharashtra (supra), that a dying declaration, though an important piece of evidence, must be subjected to rigorous scrutiny. The Court observed that a conviction can indeed rest solely on a dying declaration, but only if it passes the test of reliability, voluntariness, and truthfulness, particularly in the context of the overall facts and circumstances of the case. Where the dying declaration is surrounded by suspicious circumstances or there exist multiple, inconsistent versions of - 29 - CRL.A No.100560/2024 such declarations, the courts are mandated to exercise utmost caution and to seek corroborative evidence to determine which version, if any, may be relied upon. In the present case, there is no such corroborative evidence, and the dying declarations themselves are mired in inconsistency and doubt. 37. In yet another authoritative pronouncement, the Hon’ble Apex Court in Chotkau v. State of Uttar Pradesh, Criminal Appeals Nos.361–362 of 2018, decided on 28th September 2022, underscored the significance of promptitude in the registration and transmission of the First Information Report (FIR) to the concerned Magistrate. The Court, while relying on its earlier judgment in Mehraj Singh v. State of Uttar Pradesh, reported in (1994) 5 SCC 188, held that any undue delay in registering or dispatching the FIR, unless convincingly explained, raises serious doubts regarding the authenticity and spontaneity of the prosecution case. 38. In that context, it was observed that an FIR recorded after the completion of inquest proceedings or containing ante- timed details tends to lose its evidentiary value. The failure of the prosecution to dispatch the FIR to the Magistrate within a reasonable time, coupled with the lack of explanation for such - 30 - CRL.A No.100560/2024 delay, gives rise to a presumption that the FIR may have been manipulated or embellished to falsely implicate the accused after a process of deliberation. Although a delay in dispatching the FIR, by itself, may not necessarily nullify the entire prosecution case, it assumes material importance when the prosecution does not offer a cogent and convincing explanation or when the rest of the prosecution evidence is weak or suspect. In the present case, the cumulative effect of these infirmities significantly undermines the prosecution’s version, thereby justifying judicial interference with the impugned judgment of conviction and sentence. Accordingly, point number one is answered in the affirmative. 39. Upon a comprehensive and meticulous evaluation of the entire evidence on record, this Court is inclined to conclude that the burn injuries sustained by the deceased were likely the result of an accidental fire incident rather than a homicidal act as alleged. This conclusion finds support not only in the inconsistencies and infirmities in the prosecution’s case but also in the absence of any direct or circumstantial evidence pointing conclusively to the guilt of the accused. - 31 - CRL.A No.100560/2024 40. It is further noted that the deceased left behind two minor children, namely CW24—Shashanka and CW25—Swathi, who have now been rendered motherless and are likely facing severe emotional and financial hardship. The accused, meanwhile, has been in judicial custody since the date of his arrest on 23rd May 2017 and continues to remain incarcerated to this day. In view of the provisions of Section 357A of the Code of Criminal Procedure, 1973, as well as the binding Circular No. 4 of 2017 issued by this Hon’ble Court to all Judicial Officers across the State, it is deemed just and proper to direct the Member Secretary of the District Legal Services Authority concerned to assess and award appropriate compensation to the said minor children. Such compensation shall be disbursed promptly and in accordance with the statutory mandate to secure some degree of restorative justice for the children of the deceased. Regarding Point No.2: 41. For the aforestated reasons and discussions we proceed to pass the following: O R D E R (i) Appeal is allowed; - 32 - CRL.A No.100560/2024 (ii) Judgment of conviction and order and sentence dated 02nd August, 2024 passed in SC.No.5035 of 2017 by the I Additional District and Sessions Judge Karwar, sitting at Sirsi is set aside; (iii) Accused is acquitted of the offences punishable under Sections 302 and 506 of Indian Penal Code; (iv) Registry to send the copy of this judgment to the Jail Superintendent, where the accused is confined to release the appellant-accused, if he is not involved in any other case; (v) Registry is also directed to send trial court records along with a copy of this judgment to the concerned Court and to the Member Secretary, District Legal Services Authority, Uttara Kannada District; (vi) The Member Secretary, District Legal Services Authority shall award the compensation to minor children of the deceased CW24- Shashanka and CW25-Swathi within three - 33 - CRL.A No.100560/2024 months from the date of a receipt of certified copy of this judgment in accordance with Victim Compensation Scheme. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE lnn Ct-cmu