KASHI VISHWANATHversusSTATE OF KARNATAKA

                    [2013] 10 S.C.R. 627

                    KASHI VISHWANATH                                 A
                                v.
                   STATE OF KARNATAKA
             (Criminal Appeal No. 175 of 2007)
                         JULY 3, 2013
                                                                     B
         [A.K. PATNAIK AND SUDHANSU JYOTI
                 MUKHOPADHAYA, JJ.]

      Penal Code, 1860 - ss. 498A and 302 rlw s. 34 - Ma"ied
woman died due to bum injuries - Deceased gave three dying           C
declarations (Ex.P.12, Ex.P.22 and Ex.P.29) - Three accused
viz. the deceased's husband, his mother and another woman
('L? with whom the deceased's husband allegedly had illicit
relations - Trial court convicted appellant-husband and 'L' u/
ss.498A and 302 rlw 34 - High Court confirmed the conviction         D
of appellant-husband but acquitted 'L' - Held: Comparison of
the three dying declarations show glaring contradictions - In
the first dying declaration (Ex.P.12) the deceased stated that
her husband instigated her to pour kerosene on her body,
therefore, she poured the kerosene on her body and her               E
husband further poured kerosene on her and put on fire using
a match box - In the second dying declaration (Ex.P.22), the
deceased stated that her husband alongwith 'L' poured
kerosene on her body and put on fire by using match stick -
In the third dying declaration (Ex.P.29), the deceased stated        F
that her husband poured kerosene on her and 'L' lit the match
stick and thrown upon her body - Apart from the contradictions,
credibility of the three dying declarations also doubtful - In the
first dying declaration (Ex.P.12), thumb impression of victim
has been shown whereas in the second dying declaration               G
(Ex.P.22) given on the same day and the third dying
declaration (Ex.P.29) given on the next day, the victim stated
that she had not given her signatures since her hand was
completely burnt - Prosecution also failed to state as to why
                              627                                    H
    628     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   the three dying declarations were recorded in Kannada, if the
    deceased was talking in Telugu - Not clear as to who amongst
    the Tehisldar, PSI or SI or the Doctors who signed in Ex.P. 12,
    Ex.P.22 and Ex.P.29 had knowledge of Telugu and translated
    the same in Kannada for writing dying declarations in those
B   exhibits -Doubt as to truthfulness of the contents of the dying
    declarations as possibility of the deceased being influenced
    by somebody in making the dying declarations not ruled out
    - Prosecution did not establish its case beyond reasonable
    doubt - Hence, conviction of appellant set aside.
c       The wife of appellant died due to burn injuries. The
    deceased gave three dying declarations (Ex.P.12, Ex.P.22
    and Ex.P.29). The case of the prosecution was that the
    appellant had illicit intimacy with another lady 'L' on
    account of which he ill-treated and harassed his wife.
D   There were in all three accused ·the appellant, his mother
    and 'L'. While PW-10, Tahsildar recorded dying
    declaration Ex.P.12, the second dying declaration Ex.P.22
    was recorded by PW23, the PSI. The said two dying
    declarations were recorded on the date of the incident.
E   The third dying declaration· Ex.P.29 was recorded by the
    Police the next day in the presence of PW-25. The trial
    court convicted the appellant and 'L' under Sections 498-
    A and 302 read with 34 IPC. The High Court confirmed
    the conviction of the appellant but acquitted 'L'.
F
      In the instant appeal, the appellant contended that
  the prosecution absolutely failed to establish any of the
  charges, much less, the charge under Section 302 IPC in
  view of the multiple dying declarations brought on record
G which were contrary to each other. The appellant also
  raised doubt relating to contents of Ex.P.12, Ex.P.22 ·and
  Ex.P.29, the three dying declarations which were
  originally recorded in Kannada contending tha.t the
  deceased had no knowledge of Kannada language and
H could speak only Telugu.
   KASHI VISHWANATH v STATE OF KARNATAKA             629


    Allowing the appeal, the Court                          A
     HELD: 1. A comparison of the three dying
declarations (Ex.P.12, Ex.P.22 and Ex.P.29) shows certain
glaring contradictions. In the first dying declaration
(Ex.P.12), she (deceased) stated that her husband           B
instigated her to pour kerosene on her body, therefore,
she poured the kerosene on her body and her husband
further poured kerosene on her and put on fire using a
match box. In the second dying declaration (Ex.P.22), she
(deceased) stated that her husband along with 'L' poured    c
kerosene on her body and put on fire by using match
stick. In the third dying declaration (Ex.P.29), she
(deceased) stated that her husband poured kerosene on
her and 'L' lit the match stick and thrown upon her body.
[Paras 23, 24] [642-H; 643-A, F~G]                          D
     2. Apart from the contradictions, the credibility of
 three dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29) is
 to be doubted. In the first dying declaration (Ex.P.12)
 dated 14th January, 2000 the thumb impression of victim
 has been shown. Whereas in the second dying E
 declaration (Ex.P.22) taken on the same day, i.e, 14th
 January, 2000 and the third dying declaration (Ex.P.29)
 given on the next day, i.e., 15th January, 2000, the victim
 had stated that she had not given her signatures since
 her hand was completely burnt. PW-22(Dr.), who signed F
 the Ex.P.22, in his cross-examination stated that he was
 not aware whether deceased was talking in Telugu. PW-
 20 (Dr.), who signed Ex.P.12, in his cross-examination
 specificany stated that he can understand Kannada but
 does not know Telugu language and that deceased was G
 talking in Telugu language. PW-8, mother of the
.deceased, in her cross-examination stated that deceased
 was not knowing the correct writing in Telugu. But she
 was writing some Telugu. [Para 25) [643-H; 644-A-D]
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    630      SUPREME COURT REPORTS                [2013] 10 S.C.R.

A      3. The prosecution has failed to state as to why three
  dying declarations were recorded in Kannada, if the
  deceased was talking in Telugu. It has also not made clear
  as to who amongst the Tehisldar, PSI or SI or the Doctors
  who has signed in Ex.P.12, Ex.P.22 and Ex.P.29 had
B knowledge of Telugu and translated the same in Kannada
  for writing dying declarations in those exhibits and that
  in the bottom of three dying declarations it has not been
  mentioned that they were read over in Kannada and
  explained in Telugu that the deceased understood the
c contents of the same. The above mentioned facts create
  doubt as to the truthfulness of the contents of the dying
  declarations as the possibility of she being influenced by
  somebody in making the dying declarations cannot be
  ruled out. [Para 26) [644-E-G]
D
      4. It cannot be said that the prosecution in this case
  has established its case beyond reasonable doubt to
  base a conviction on the appellant. Hence, both the
  courts below have erred in coming to the contra
E conclusion. [Para 27] [644-H; 645-A-B]
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 175 of 2007.
      From the Judgment & Order dated 27.07.2004 of the High
F Court of Karnataka at Bangalore in Criminal Appeal No. 347
  of2001.      1


          Sakesh Kumar (AC.) for the Appellant.
          K. Parameshwar, V.N. Raghupathy for the Respondent.
G
          The Judgment of the Court was delivered by
       SUDHANSU JYOTI MUKHOPADHAYA, J. 1. The
  appellant, who is accused No.1, by this appeal has challenged
H the judgment dated 27th July, 2004 in Criminal Appeal No.347
   KASHI VISHWANATH v STATE OF KARNATAKA                    631
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
of 2001 passed by the Division Bench of the High Court of A
Karnataka at Bangalore whereby the High Court affirmed the
conviction and sentenced imposed by the trial court under
Section 498-A and 302 read with 34 IPC. So far as accused
No.2 is concerned, the High Court acquitted her of all the
charges levelled against her.                              B

     2. The appellant along with other accused faced charges
punishable under Section 498-A and 302 read with 34 IPC. The
First Additional Sessions judge, Dharwad, sitting at Hubli by
his judgment dated 1st February, 2001 in Sessions Case c
No.119 of 2000, acquitted accused No.2 under Section 235(1)
Cr.P.C. of the offences under Sections 498-A and 302 IPC but
convicted accused Nos.1 and 3 under Section 235(2) Cr.P.C.
for the offences under Sections 498-A and 302 read with
Section 34 IPC. They were sentenced to undergo rigorous 0
imprisonment for one year by each and to pay fine of Rs.1,000/
- by each, in default to undergo further rigorous imprisonment
for one month, for offence under Section 498-A IPC. They were
sentenced to undergo life imprisonment and to pay find of
Rs.2,000/- by each, in default, to undergo rigorous E
imprisonment for three months by each for the offence under
Section 302 IPC.

     In appeal, the High Court by its judgment dated 27th July,
2004 allowed the appeal in part. The judgment of conviction and
sentence passed by the Sessions Judge as against accused F
No.1 (first appellant before the High Court) for the offence under
Section 498-A and 302 read with 34 IPC was confirmed giving
rise to this appeal and as against accused No.2 (second
appellant before the High Court), she was acquitted of all the
charges levelled against her.                                      G

     3. The case of the prosecution, in brief, as unfurled before
the trial court is as follows:

    The deceased, Neelamma (alias Leelamma) got married             H
    632      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   to the appellant herein 13 years prior to the incident. The date
    of the incident is 14th January, 2000. Out of the wedlock, they
    have two sons and a daughter and they were all living at Mantur
    Road, Ambedkar Colony, Hubli. According to the prosecution,
    the relationship between the husband and wife was cordial till
B   two years prior to the incident. The disruptions started in the
    family on account of the appellant developing intimacy with one
    Lakshmi, who was accused No.3 and was the second appellant
    before the High Court. In this regard, in spite of intervention of
    the family members of the parental house of the deceased and
c   persistent resistance of the deceased, the said affair of
    intimacy continued. There used to be bickering and quarrels
    between the husband and wife in this regard. Though accused
    No.2, the mother of the appellant was living with them, she never
    tried to patch up the differences between the husband and wife.
D   Ultimately, on 14th January, 2000, at about 10.00 a.m. in the
    matrimonial home of the deceased, accused Nos.1 and 3
    doused deceased Neelamma and set her ablaze while
    accused No.2 was watching outside. On the same day in the
    afternoon, she was shifted to K.M.C. Hospital, Hubli and on
E   admission, the Hospital authorities intimated the police who
    came into picture at about 9.30-10.00 p.m. in the night. Prior
    to that, the Taluka Executive Magistrate, PW-10, recorded her
    statement as per Ex.P.12. One more statement, Ex.P.22 -
    dying declaration, came to be recorded by Rayappa, Police
F   Sub Inspector (PW-23), in the form of complaint in the presence
    of Dr. Bhimappa (PW-22) and during the course of treatment,
    deceased Neelamma succumbed to burns on 18th January,
    2000 at about 6.15 p.m. On 15th January, 2000, at about 5.30
    p.m., Ashok (PW-24), the Investigation Officer recorded the
G   dying declaration Ex.P.29 in the presence of Dr. Kamal Prasad
    (PW-25). On the basis of Ex.P.22, investigation of the case
    commenced as against accused No.1 to 3. The kith and kin of
    the deceased are examined as Pullayya (PW.5) - maternal
    uncle; Eliya (PW-6) - father; Grasamma (PW-7) - maternal
H   aunt; Padmavathi (PW-8) - mother and Prabhudas (PW-9) -
     KASHI VISHWANATH v STATE OF KARNATAKA                633
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
  uncle of the deceased. The purpose of examining these          A
  witnesses was to establish harassment, motive and oral dying
  declaration implicating accused Nos.1 to 3. The independent
  witnesses, who were the neighbours of the appellant i.e.
· Mansuresh (PW-11), Savakka (PW-13), Kanechanamma(PW-
  14), (M. Saloman)PW-15 and Perumal (PW-16) were also           B
  examined. Unfortunately, none of them have supported the
  case of the prosecution.

      4. Ex.P.1, is the spot mahazar drawn in the kitchen of the
 matrimonial home of the deceased where burnt clothes, burnt     c
 gunny bag, match box, match stick, a kerosene stove, kerosene
 can were found. PW-2 and PW-3 were examined to support
 the contents of Ex.P.2 to Ex.P.6 - mahazars seizing caste
 certificate and marriage certificate revealing the relationship
 and the case of the deceased and accused Nos.1 and 2. 0
 Ex.P.3 is the recovery of bed sheet alleged to have been used
 by accused No.2 to extinguish the fire. Letters i.e. Ex.PB &
 Ex. P9 alleged to have been written by the appellant to the wife
 and parents in law, Ex.P.5 is the seizure mahazar of letters
 (Exs.P.10 to P.11) alleged to have been written by the E
 deceased to her parents aunt and uncle and lastly Ex.P.6 is
 mahazar seizure of photographs of the deceased revealing the
 bums. Peshalal (PW.4) was examined to speak the inquest over
 the dead body as per Ex.P.7 but turned hostile. Prabhakar
 (PW.21) was also turned hostile. Dr. Radha (PW.17) was the
 Doctor at the casualty ward in K.M.C. Hospital who entered the F
 details in M.L.C. register and the relevant document is at
 Ex.P.18. Dr. Jagadish (PW-18), conducted autopsy on the dead
 body and issued Ex.P.19, the postmortem report opining that
 the death of the deceased Neelamma was due to septicemia G
 as a result of burns. Ex.P.20 is the sketch drawn by PW-19.
 Dr. Bhimappa (PW-22) is the Head of Department of the Bums
 Ward in whose presence Rayappa (PW-23), PSI, Bendigeri
 P.S., Hubli recorded the complaint as per Ex.P.22 on 14th
 January, 2000 and sent FIR to the Court.
                                                                  H
    634       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A        5. As noticed above, the learned Sessions Court based
    on the oral and documentary evidence held accused No.1 and
    3 guilty of the offence punishable under Section 498-A and 302
    read with 34 IPC. Accused No.2 mother-in-law of the deceased
    was acquitted of all the charges levelled against her.
B
          6. Learned counsel for the appellant contended that the
    prosecution absolutely failed to establish any of the charges,
    much less, the charge under Section 302 IPC in view of four
    dying declarations brought on record which are contrary to each
C   other. It was further contended that the oral declarations made
    before the kith and kin of the deceased are not at all important
    or relevant in the light of the four dying declarations. According
    to the learned counsel, the contents of Ex.P.18, Ex.P.12,
    Ex.P.22 and Ex.P.29, if looked into carefully, would indicate the
    purpose of so many dying declarations coming into existence
0
    i.e. only to ensure that all the accu"sed are somehow roped in.
    Learned counsel for the appellant placed reliance on the
    decisions of this Court in Mehiboobsab Abbasabi Nadaf vs.
    State of Kamataka, (2007) 13 SCC 112, etc. which will be
E   referred to in this judgment at the appropriate stage.

          7. In reply, learned counsel for the State submitted that
    Ex.P.18 was not a dying declaration but the entries in the M.L.C.
    Register made immediately on the admission of the patient to
    the Hospital. Ex.P.12 was the actual dying declaration recorded
F   by the Taluka Executive Magistrate (PW-10). Ex.P.22 was a
    complaint recorded by Rayappa, PSI (PW-23), in the presence
    of Dr. Bhimappa (PW.22) and further investigation was taken
    up. Therefore, the contents of Ex.P.12, according to the counsel
    for the State have to be taken into consideration which is the
G   earliest dying declaration. He further contended that Ex.P.29
    is more reliable because after treatment for almost a day, when
    the patient was physically and mentally fit, the same came to
    be recorded.

H         8. Learned counsel appearing on behalf of the appellant
  KASHI VISHWANATH v STATE OF KARNATAKA                  635
    [SUDHANSU JYOTI MUKHOPADHAYA, J.}
also raised doubt relating to contents of Ex.P.12, Ex.P.22 and A
Ex.P.29, the three dying declarations which were originally
recorded in Kannada. According to the learned counsel for the
appellant, the deceased had no knowledge of Kannada
language and could speak only Telugu.
                                                                8
     9. We have heard the learned counsel for the parties at
length and gone through the entire material placed before us.

     10. The kith and kin of the deceased who examined are:
as Pullayya (PW.5) - maternal uncle, Eliya (PW-6) - father, C
Gracemma (PW-7) - maternal aunt, Padmavathi (PW-8) -
mother and Prabhudas (PW-9) - uncle of the deceased. Their
deposition corroborates the case of the prosecution that one
or two years prior to the death of the deceased, everything
seemed to be cordial between the husband and wife
(deceased). After the appellant joined the Railway services on D
compassionate ground after the death of his father, the
bickering and quarrel commenced because of developing
intimacy with a co-worker by name Lakshmi who was the third
accused. Ex.P.8 to P.11 are inland letters produced by the uncle
and father of the deceased, PW-5 and PW-6 and the letters E
pertaining to the year 1995 written by the deceased which say
that except some harassment and ill-treatment, there was no
serious harassment to the deceased at the hands of her
husband and mother-in-law of the deceased. The letter written
in the year 1999 only would indicate that on account of the F
appellant developing intimacy with Lakshmi, he ill-treated and
harassed her to the maximum extent possible. Accused No.2,
mother-in-law was only a spectator. This was her complaint or
depression recorded in her letters written to the kith and kin.
                                                                 G
     11. When we look into the statement of independent
witnesses produced by the prosecution, who are neighbours of
the appellant i.e. Mansuresh (PW-11), Savakka (PW-13),
Kanechanamma(PW-14), (M. Saloman)PW-15 and Perumal
                                                                 H
    636       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   (PW-16), we find that none of them have supported the case
    of the prosecution.

         12. In this case, we have nqted that there is no eye-witness
    to the incident in question. The prosecution primary relies on
B   three dying declarations Ex.e.A2, Ex.P.22 and Ex.P.29. In
    support of those Exhibits the prosecution relied on the
    statements of Tahsildar, Hubli (PW-10), Dhanjaya Kumar, PG
    student (PW-20) present at the time of arrival of Maharudrappa,
    Tahasildar (PW-10) to the Burns Ward. Dr. Radha (PW-17) who
C   examined the deceased, Dr. Jagdish (PW-18), who was
    working as Medical Officer on 14th January, 2000 and
    conducted the postmortem, Dr. Bhimappa (PW-22), in whose
    presence Ex.P.22 was recorded, Rayappa (PW-23), PSI,
    Bendigeri Police Station, Crime Branch, Hubli who recorded
    the dying declaration (Ex.P.22) and registered the case, Dr.
0
    Komal Prasad (PW-25), in whose presence Ex.P.29 was
    recorded, etc.

         In Mehiboobsab Abbasabi Nadaf vs. State of Kamataka,
    (2007) 13 sec 112, having noticed multiple dying declarations
E   this Court held:

           "7. Conviction can indisputably be based on a dying
          declaration. But before it c~n be acted upon, the same
          must be held to have been rendered voluntarily and
F         truthfully. Consistency in the dying declaration is the
          relevant factor for placing full reliance thereupon. In this
          case, the deceased herself had taken contradictory and
          inconsistent stand in different dying declarations. They,
          therefore, should not be accepted on their face value.
G         Caution, in this behalf, is required to be applied."

         13. We will now examine the contents of three different
    dying declarations i.e. Ex.P.12, Ex.P.22 and Ex.P.29 and the
    related prosecution witnesses who deposed in support of such
    dying declarations.
H
   KASHI VISHWANATH v STATE OF KARNATAKA                  637
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     Maharudrappa (PW-10), Tahasildar, Hubli recorded dying A
declaration Ex.P.12, at 8.30 p.m. on 14th January, 2000 in Ward
No.202, The deceased stated that she was conscious to give
answer the questions. She got married with the appellant at the
age of 26 years, about 13 years back. She had two sons and
one daughter. She was a housewife and her husband was B
working in Railways and used to come home once in a week.
She was staying at Mantur Road, Ganesh Pet, Hubli. She stated
that she had been brought at KMC Hospital, Hubli by her
mother-in-law, Smt. Polamma by auto rickshaw, after she being
sustained burn injuries at about 8.30 a.m. in her residence. At C
about 12 p.m. she had been admitted there for treatment by
her mother-in-law. Her husband had not come to see her after
the incident. Her mother-in-law was accompanying her in the
Hospital. She further stated that her husband (appellant herein)
had illicit relations with one Lakshmi. Every week he used to D
come home and for one or the other reason, used to fight and
beat her ruthlessly. Her mother-in-law used to keep quiet without
objecting for such acts of her son. It is stated in Ex.P.12 on the
said date (14th January, 2000) at about 8.30 a.m., when her
children had gone out of the residence, her husband had E
a fight with her and instigated her to pour kerosene upon
her body. She poured the kerosene on her body and her
husband further poured kerosene upon her and put on
fire with match box. At that time her mother-in-law was out
of the residence. When the flame was catching her sari and F
burning her body, her husband has no~ tried to douse the fire.
Neighbouring people rushed to her residence on hearing her
screams and doused the fire by pouring water. Thereafter, her
mother-in-law had brought her to the Hospital by auto and
admitted for treatment. Both her husband and Lakshmi are G
responsible for her condition. In the bottom of the Ex.P.12
where thumb impression of the victim is taken it is written "read
over and accepted to be correct".

    14. The Tahasildar (PW-10) in his statement stated that     H
    638     SUPREME COURT REPORTS               [2013) 10 S.C.R.


A while he was working as Tahasildar in Hubli, on 14th January,
  2000 at 7.25 p.m., he received a requisition from Town Police
  Station, Hubli, to record dying declaration of Neelamma wife
  of Kashi Vishwanath Murari. He had recorded the dying
  declaration of the said Neelamma on 14th January, 2000 from
B 8.30 p.m. to 9.00 p.m. Doctor opined that she was in condition
  to give dying declaration. He put the questions to Neelamma
  and she answered. After recording it, it was read over to her.
  Admitting its contentions she put her thumb impression on it
  and Doctor also singed. Dying declaration is marked at
C Ex.P.12, and the signatures of witness is marked at Ex.P.12(a).

         15. Dr. Dhanjaya Kumar (PW-20), who was working as
  P.G. student in K.M.C. Hubli stated that on 14th January, 2000
  at about 8.30 p.m. Tahasildar, Hubli came to K.M.C. Ward
D No.202. He was on duty there. The Tahasildar asked him about
  the patient's condition. He examined the patient and she was
  fit to give statement. The Tahasildar recorded the statement of
  the injured and he examined again and found her alright. He
  was present when Tahasildar recorded the statement of the
E injured. He had also signed on that statement. The signatures
  of the witness are marked at Ex.P.12(b) and the certificate of
  the witness is marked at Ex.P.12(c). In the cross-examination
  he stated that Dr. AS. Bekanalkar, Unit Chief did not give
  anything in writing asking him to be present and examine the
F injured lady. The Tahasildar, Hubli did not give requisition in
  writing with a request to be present there and examine that
  injured lady. He has not given in writing separately about the
  fitness condition of injured Neelamma. From 8.00 a.m. he was
  on duty in Ward No.202 of K.M.C. on 14th January, 2000. He
G had not given treatment to Neelamma but his colleague had
  given treatment. On Ex.P.12, it is not specifically written that
  Neeiamma was examined twice. He specifically, stated that
  he can understand Kannada language. He does not
  know Telugu language. Neelamma was talking in Telugu
H
   KASHI VISHWANATH v STATE OF KARNATAKA                   639
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
language. He further stated that it is incorrect to suggest that A
at that time Neelamma was not in fit condition.

      16. The second dying declaration is Ex.P.22 recorded by
the PSI, Bendigeri P.S., Hubli at 9.45 p.m. on 14th January,
2000. In the said dying declaration, the deceased disclosed her 8
name and address as Neelamma @ Lilamma w/o Kashi
Vishwanath of Mantoor Road, Ambedkar Colony, Hubli. She
along with her husband-Kashi Vishwanath, mother-in-law-
Polamma, and her children-Sandya, Prasanna and Naveen
were staying at home. Her husband had illicit and immoral C
relation with one Laxmi, who has been working as sweeper in
Railways. Her husband and mother-in-law used to quarrel with
her and on 14th January, 2000 at about 10.00 a.m. her
husband started quarreling with her at the behest of
Laxmi and along with Laxmi poured Kerosene on her
                                                                   0
body and put on fire by using match stick. She further
stated that she could not put her signatures since her hand was
completely burnt. In the bottom of it, it was mentioned that dying
declaration was "read over and accepted to be correct"

     17. Rayappa, PW.23, PSI, Bendigeri, P.S. Hubli who           E
recorded dying declaration Ex.P.22 stated that while he was
working as PSI, Bendigeri Crime Branch on 14th January, 2000
as the Police Inspector gave an order and directed me to go
to K.M.C. and record statement of Neelamma. He went to KMC
Hubli at 9.45 p.m. and gave the order to the Doctor. Doctor       F
opined that she was in condition to give statement. He recorded
the statement of Neelamma in the presence of Doctor. The
statement is Ex.P.22. He has signed on it and Doctor has also
signed on Ex.P.22.
                                                                  G
     18. Dr. Bhimappa (PW.22), Medical Officer, District
Hospital Bagalkot stated that on 14th January, 2000 he was
Medical Officer in K.M.C., Hubli. On 14th January, 2000 he was
on duty in K.M.C. Bendigeri Police recorded the statement of
injured. The statement is marked at Ex.P.22. It bears his         H
    640      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A   signatures at Ex.22(a). The injured was in a position to give
    statement. Ex.P.22 was recorded in his presence. In cross-
    examination he accepted that the Police Officer of Bendigeri
    P.S. had not given any requisition in writing requesting him to
    be present while recording such statements. He further
B   accepted that on Ex.P.22 he had not endorsed that Neelamma
    was in fit condition to give statement. He further stated that
    he was not aware whether Neelamma was talking in
    Telugu.

C        19. Padmavathi (PW-8), coolie by occupation, is the
  mother of Neelamma. She stated that after marriage of the
  appellant and her daughter, Neelamma, their relationship was
  good, later appellant used to complain that Neelamma had not
  brought any dowry. Neelamma was complaining that she was
  ill treated and harassed by the appellant and he was intending
0
  to marry another woman. They convened a Panchayat and
  advised the appellant. Even after advice harassment was
  continued. Her daughter was beaten 2-3 times, and she left her
  matrimonial home and resided with her mother. The appellant
E took her back to his house. The appellant was suspecting her
  daughter. She stated that Pullayya had phoned her about the
  incident. She along with her husband, son-in-law came to Hubli.
  When they went to K.M.C. Neelamma was talking properly,
  when they asked Neelamma she told that accused
  No.1 (appellant) to 3 closed the door of the house, accused No.3
F
  poured kerosene and accused No.1 set her on fire. Accused
  No.2, mother-in-law was outside the house, closing the door.
  During her cross-examination, PW-8, specifically stated that
  Neelamma did not know correct writing in Telugu but she
  used to write some Telugu. She had some written letters
G which have been given to the police. She does not know
  that those letters were written by Neelamma or not.

         20. The contents of the third dying declaration - Ex.P.29
    was recorded by the Bendigeri Police on 15th January, 2000
H   in the presence of Dr. Kamal Prasad (PW-25), a P.G. student
  KASHI VISHWANATH v STATE OF KARNATAKA               641
    [SUDHANSU JYOTI MUKHOPADHAYA, J.]
in KMC, Hubli. In the said dying declaration (Ex.P.29), A
deceased Neelamma stated that she had been residing at the
above-mentione~ address, i.e., Mantur Road, Ambedkar
Colony, Hubli along with her husband, mother-in-law, Polamma,
and three children. She was a house wife. Her husband
Vishwanath was working in SNI Division, Railways at present B
employed at Karat. Often he visited the house. Two days prior
i.e. Thursday, 13th January, 2000, she was confronted and
slapped on the right cheek by one Laxmi of Mantur Road,
Hanchandra Colony, who had illicit relation with her husband.
She returned to her house having decided to inform about the C
incident to her husband. She had informed her husband about
the incident when he came to house at 7.30 p.m. on the same
day. Then he had scolded, thrashed her by saying that why you
had spoken to Laxmi. She kept· quiet. Next morning i.e.
Friday, 14th January, 2000 while she was cleaning the D
utensils, her husband came along with Laxmi, and
thrashed her by saying that what can she do if he kept
Laxmi in the said house. Then he dragged her inside the
house and closed the door. Her mother-in-law also
supported her husband and went outside. At that time E
Laxmi was inside the house. Her husband poured
kerosene on her and Laxmi lit the match stick and thrown
on her body, due to the flames, fire spread all over her
body, she rushed outside the house screaming for help. ·
Then neighbours and workers who were at site came and F
doused the fire by wrapping her body with blanket After
being scolded by the neighbours her mother-in-law had
taken her to KMC Hospital by auto. The incident took
place at around 10.00 a.m. She further stated that she had
been harassed and tormented quite often by her G
husband and mother-in-law since one year and Laxmi
was responsible for the said incident. She further stated
that sh'e could not put her. signatures since her hand was
burnt. Her children had been to school at the time of the
incident. Below the dying declaration it was written that H
    642     SUPREME COURT REPORTS               [2013] 10 S.C.R.


A   the same was "read over & accepted to be correct".

         21. Dr. Komal Prasad (PW-25), in his statement stated that
    on 15th. January, 2000 he was on duty in K.M.C. Hubli.
    Bendigeri Police Officer had come to KMC on 15th January,
8   2000 and asked his opinion about the fit condition of one .
    Neelamma injured to give statement. He examined her, and
    stated that she was in fit condition to give statement. Police
    Officer recorded her statement in his presence and he had also
    signed on that statement. The statement is Ex.P.29. The
c   signature of witness is marked at Ex.P.29(a). The statement
    was recorded at 5.25 p.m. In his cross-examination, he stated
    that Neelamma had sustained burn injuries nearly 90 to 95 per
    cent. She was admitted on previous day and it was 1 Yz day
    when he gave his opinion. She was given with sedative
D   injunction.

        22. Dr. Radha (PW.17), Assistant Surgeon, KMC, Hubli,
  in her deposition stated that she was working as Medical
  Officer in KMC, Hubli. On 14th January, 2000 at 11.45 a.m.,
  she examined one Neelamma wife of Kashi Vishwanath
E Murari, who had sustained burn injuries. The history is
  self afflicted burns due to a quarrel at home at 11 a.m.
  with her husband. Patient was conscious. On examination
  she noticed superficial deep burns over the lower part of face,
  lower half of chest and abdomen. Both the upper limbs and both
F the lower limbs were also burnt, sparing the face, neck, upper
  part of chest, parts of back in patches, groin and soles of the
  feet. She had sustained burn injuries from 70 to 75 per cent.
  Eye brows and hair of Neelamma were singed. She was
  admitted to female surgical ward. The patient was brought by
G her mother-in-law namely Polamma Venkatayya. In her cross-
  examination, she stated that such bum injuries are possible if
  fire catches to the lower end of saree of a woman.

        23. We have noticed the three dying declarations (Ex.P.12,
H   Ex.P.22 and Ex.P.29). A comparison of the three dying
   KASHI VISHWANATH v STATE OF KARNATAKA                   643
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
declarations, in our opinion, shows certain glaring A
contradictions. In the first dying declaration (Ex.P.12), we-have
noticed that deceased, Neelamma stated that she sustained
burn injuries in the early morning at 8.30 a.m., when her children
had gone out of the residence, her husband had a fight with her
and instigated her to pour kerosene upon her body. She poured B
the kerosene on her body and her husband had also further
poured kerosene upon her and put on fire match,box. While in
the second dying declaration (Ex.P.22), Neelamma (deceased)
stated that her husband and mother-in-law used to quarrel with
her and on 14th January, 2000 at about 10.00 a.m. her husband C
had started fight with her at the behest of Laxmi and along with
Laxmi poured kerosene on her body and put on fire by using
match stick. In the third dying declaration (Ex.P.29), Neelamma
(deceased) stated that next morning i.e. Friday, 14th January,
2000 while she was cleaning the utensils, her husband came D
along with Laxmi, and thrashed her by saying that what can you
do if he kept Laxmi in the said house. Then he dragged her
inside the house and closed the door, her mother-in-law also
supported her husband went outside. At that time Laxmi was
inside the house. Her husband poured kerosene on her and E
Laxmi lit the match stick and thrown upon her body, due to the
flames, fire spread all over her body, she rushed outside the
house screaming for help.

     24. In the first dying declaration (Ex.P .12), she (deceased) F
stated that her husband instigated her to pour kerosene on her
body, therefore, she poured the kerosene on her body and her
husband further poured kerosene on her and put on fire using
a match box. In the second dying declaration (Ex.P.22), she
(deceased) stated that her husband along with Laxmi poured G
kerosene on her body and put on fir~ by using match stick. In
the third dying declaration (Ex.P .29), she (deceased) stated that
her husband poured kerosene on her and Laxmi lit the match
stick and thrown upon her body.

    25. Apart from the contradictions, the credibility of three   H
    644      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29) is to be
    doubted. In the first dying declaration (Ex.P.12) dated 14th
    January, 2000 the thumb impression of victim has been shown.
    Whereas in the second dying declaration (Ex.P.22) taken on
    the same day, i.e, 14th January, 2000 and the third dying
B   declaration (Ex.P.29) given on the next day, i.e., 15th January,
    2000, the victim had stated that she had not given her
    signatures since her hand was completely burnt. Dr. Bhimappa
    (PW-22), who signed the Ex.P.22, in his cross-examination
    stated that he was not aware whether Neelamma (deceased)
C   was talking in Telugu. Dr. Dhanjaya Kumar (PW-20), who
    signed Ex. P.12, in his cross-examination specifically stated that
    he can understand Kannada but does not know Telugu
    language and that Neelamma was talking in Telugu language.
    Padmavathi (PW-8), mother of the deceased, in her cross-
D   examination stated that Neelamma (deceased) was not
    knowing the correct writing the Telugu. But she was writing
    some Telugu.

         26. The prosecution has failed to state as to why three
E   dying declarations were recorded in Kannada, if the deceased,
    Neelamma was talking in Telugu. It has also not made clear as
    to who amongst the Tehisldar, PSI or SI or the Doctors who has
    signed in Ex.P.12, Ex.P.22 and Ex.P.29 had knowledge of
    Telugu and translated the same in Kannada for writing dying
F   declarations in those exhibits and that in the bottom of three
    dying declarations it has not been mentioned that they were
    read over in Kannada and explained in Telugu that the
    deceased understood the contents of the same. The above
    mentioned facts create doubt in our mind as to the truthfulness
G   of the contents of the dying declarations as the possibility of
    she being influenced by somebody in making the dying
    declarations cannot be ruled out.

        27. On careful perusal of the materials on record, we are
    unable to come to the conclusion that the prosecution in this
H
   KASHI VISHWANATH v STATE OF KARNATAKA                  645
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
case has established its case beyond reasonable doubt to          A
base a conviction on the appellant. Hence, we are of the
opinion that both the courts below have erred in coming to the
contra conclusion.

        28. For the reasons stated above, this appeal succeeds    8
.and the judgment and conviction recorded by the courts below
 are set aside. The appeal is allowed. The appellant, who is in
 jail, is directed to be released forthwith.

B.B.B.                                       Appeal allowed.