2013 Supreme(SC) 586

IN THE SUPREME COURT OF INDIA
A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, JJ.
KASHI VISHWANATH … APPELLANT
Versus
STATE OF KARNATAKA …RESPONDENT
CRIMINAL APPEAL NO. 175 OF 2007
Decided on : July 3, 2013.

Headnote:Indian Penal Code, 1860—Sections 498A, 302 read with Section 34—Evidence Act, 1872—Section 32—Bride burning—Three dying declarations—Contradictions in three statements—Credibility of three dying declarations being doubtful—Deceased got married to appellant 13 years prior to the incident—Out of the wedlock, they had two sons and a daughter—Relationship between the husband and wife was cordial till two years prior to the incident—Allegations that disruption started in the family on account of appellant husband developing intimacy with accused No.3—Though accused No. 2, mother of appellant was living with them, she never tried to patch up the difference between the husband and wife—Prosecution case that on 14.1.2000, at about 10 a.m. in the matrimonial home of deceased, accused Nos. 1 and 2 doused deceased and set her ablaze while accused No.2 was watching outside—She was taken to the hospital where Taluka Executive Magistrate recorded her statement—One more statement was recorded by police sub-Inspector in the form of complaint—Investigating Officer also recorded the dying declaration of deceased—Independent witnesses, who were neighbours of appellant did not support case of prosecution—Trial Court convicted appellant (accused No.1) and accused No.3 while acquitting accused No.2—On appeal, High Court affirmed judgment of conviction and sentence and acquitted accused No.2 of all the charges—A comparison of three dying declarations showed glaring contradictions—Prosecution was unable to establish its case beyond reasonable doubt to base conviction of appellant.

       Held: We have noticed the three dying declarations (Ex.P.12, Ex.P.22 and Ex.P.29). A comparison of the three dying declarations, in our opinion, shows certain glaring 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 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 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 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 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.

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

       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 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 pot given her signatures since her hand was completely burnt. Dr. Bhimappa (PW22), who signed the Ex.P.22, in his cross-examination stated that he was not aware whether Neelamma (deceased) was talking in Telugu. Dr. Dhanjaya Kumar (PW20), 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 (PW8), mother of the deceased, in her cross- examination stated that Neelamma (deceased) was not knowing the correct writing the Telugu. But she was writing some Telugu.

       The prosecution has failed to state as to why three 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 51 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 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 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.

       Cases Referred:

        1. Mehiboobsab Abbasabai Nadaf v. State of Karnataka, (2007) 13 SCC 112: 2007(5) Supreme 713.

       Result: Appeal allowed.

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