JUDGMENT : (V. SRISHANANDA, J.) 1. Appellant is the accused, who suffered an order of conviction in S.C. No.286/2017 dated 25.02.2020 by the District and Sessions Judge, Bidar, for the offences punishable under Section 498-A and 304-B of IPC. 2. For the offence under Section 498-A appellant has been sentenced to undergo simple imprisonment for a period of one year and to pay Rs.50,000/- fine with default sentence of six months simple imprisonment. Likewise, for the offence under Section 304-B appellant was sentenced to undergo imprisonment for a period of 7 years and both the sentences were ordered to run concurrently. 3. Facts in brief, which are utmost necessary for disposal of the present appeal are as under: 3.1 Bhagyashree (Hereinafter referred to as ‘deceased’) was married to the first accused (Hereinafter referred to as ‘appellant’) on 10.02.2013 as per the Hindu rites and customs. Necessary customary articles were given in the marriage. After the marriage deceased joined the matrimonial home and she was looked after in good manner for a brief period. 3.2 After the marriage, the appellant lost his job of Conductor. On that pretext, all the accused persons started blaming deceased stating that because of her ill- luck appellant lost the job and that she does not know how to discharge household works. 3.3 Unfortunately, in the matrimonial tie there were no issues and on that pretext also deceased was being scolded repeatedly. On that score also the physical and mental harassment to deceased was in an aggravated form. Unable to bear with the conduct of the accused persons, deceased reported the same to her relatives. 3.4 Therefore, relatives of the deceased, Mahadev, Ishwaramma, Kanthareddy, Chandrakanth, Mahapuri Suryavanshi visited the Kankatta Village twice and convened panchayat and requested the accused persons to look after deceased in a proper manner. Despite such advice, harassment continued. 3.5 When the matter stood thus, on 02.08.2015 there was a quarrel, wherein, appellant abused the deceased in a filthy language and demanded Rs.1,00,000/- to be brought as dowry and sent her home. 3.6 Because of these physical and mental ill- treatment, deceased had a stomach pain and she requested necessary assistance to visit the hospital. But all the accused persons abused her in filthy language and they told that she should go and die somewhere. 3.7 Left with no alternative, Bhagyashree came back to her parental house in Manthal Village. 3.6 Because of these physical and mental ill- treatment, deceased had a stomach pain and she requested necessary assistance to visit the hospital. But all the accused persons abused her in filthy language and they told that she should go and die somewhere. 3.7 Left with no alternative, Bhagyashree came back to her parental house in Manthal Village. When she was in her parental house, on 07.08.2015 at about 7.30 p.m., the appellant called deceased over telephone and abused her in filthy language. Being unable to bear the insult caused by such conversation, Bhagyashree poured kerosene on her and self immolated. 3.8 Unable to bear with the pain she raised alarm. In-mantes of parental house having seen her in ablaze extinguished fire and took her to Basavakalyan Government Hospital. After the first aid, she was referred to District Hospital, Kalaburagi, for higher treatment. 3.9 When she was in the District Hospital, Kalaburagi, Police visited her and enquired her about the incident. Whatever that has been stated by Bhagyashree has been reduced into writing and since she had sustained burn injuries to the extent of 85 to 90%, her left thumb impression was taken into the complaint. Despite best treatment, Bhagyashree lost her life on 12.08.2015 at about 10.00 a.m. Thereafter, Police invoked Section 304- B in the incident. After thorough investigation, charge- sheet came to be filed by the Police against six accused persons including appellant. 4. Learned trial Magistrate committed the matter to the Sessions Court for trial and the learned Sessions Judge after securing the presence of the accused persons, after completion of Section 307 of Cr.P.C., framed charges for the offences under Section 498-A , 504 and 304-B read with Section 149 of IPC. All the accused persons pleaded not guilty, therefore, trial was held. 5. In order to bring home the guilt of the accused, prosecution proceeded to examine 16 witnesses as PW1 to PW16 and placed on recorded 25 documents, which were exhibited and marked as Exs.P1 to P25. 6. Prosecution also placed on record three material objects comprising of yellow colour plastic can, matchbox and half burnt cloth pieces. 7. 5. In order to bring home the guilt of the accused, prosecution proceeded to examine 16 witnesses as PW1 to PW16 and placed on recorded 25 documents, which were exhibited and marked as Exs.P1 to P25. 6. Prosecution also placed on record three material objects comprising of yellow colour plastic can, matchbox and half burnt cloth pieces. 7. On conclusion of recording of prosecution evidence, learned Trial Judge recorded the statement of the accused as is contemplated under Section 313 of Cr.P.C. All the accused persons have denied the incriminating circumstances found against them in the evidence of the prosecution of the witnesses. 8. There was no defence evidence nor any written statement on behalf of the accused as is contemplated under Section 313(4) of Cr.P.C. Thereafter, learned Trial Judge heard the arguments of the parties in detail and by impugned judgment, acquitted accused Nos.2 to 6 and convicted accused No.1/appellant (husband) and sentenced as referred to supra. 9. Being aggrieved by the same, accused/appellant is before this Court in this appeal on the following grounds. - That, the impugned judgment convicting the accused by the trial court is illegal and contrary to law, facts and evidence on record. - That, the learned II Addl District and Sessions Judge, Bidar has not applied judicious mind in considering the evidence of the witnesses whose evidence is not convincing and not believable there are numerous contradictions and omissions but the trial court has failed to take notice of the same and landed in error of judgment and thereby caused miscarriage of justice, hence the impugned judgment is liable to be set-aside by acquitting the accused/appellant. - That, the incident has occurred in the parental house of the deceased and the deceased herself committed suicide by putting kerosene and setting fire to body. Therefore there is no direct or circumstantial evidence to connect the accused with the guilt. The trial court has passed impugned judgment on imaginary grounds. Hence impugned judgment is not sustainable. - That, the alleged ill treatment by the husband/appellant is through mobile phone on the faithful day the I.O. has collected Data of the mobile phone and there is no evidence to whom the said mobile is belonging as I.O. was not collected documents in regarding ownership of the mobile. Therefore there is no direct or indirect evidence of ill treatment at the parental house of the deceased. Therefore there is no direct or indirect evidence of ill treatment at the parental house of the deceased. Therefore the appellant is not at all responsible for the suicide of deceased. Hence the impugned judgment is liable to be set aside. - That, Ex-P-11 is statement that, the complaint recorded by PW-13 at Basavakalyan Hospital on 07-08-2015 which does not bear any endorsement regarding the fitness and state of mind of the victim to give statement and the said statement has been considered lateron as dying declaration as the victim succumbed to burn injuries on 12-08-2015 at about 10:00AM so the victim was alive was 5 days but the 1.0. has failed to get the dying declaration recorded by the Taluka Executive Magistrate which is the requirement for dying declaration, this important aspect of the case has not been considered by the trial court seriously and failed to find out that, the dying declaration is full of truth and without any suspicious. Therefore the conviction cannot be based on the such dying declaration without any corroboration hence the impugned judgment is liable to be set aside. - That, the statement made by the victim and other evidence of other witnesses were all same for all the accused but the trial court has not believed the evidence as against the accused No. 2 to 6 and acquitted them and same evidence is believed for convicting the appellant which is arbitrary excise of the discretion and thereby landed in error of judgment. Therefore the impugned judgment is not in accordance with the evidence and records of the case. Hence the same is not sustainable. - That, the 1.0. has not conducted the investigation in fair and proper manner and has failed to produce cogent and believable evidence to prove the guilt of the accused and it very clear from the charge sheet papers that, the investigation is conducted casually without application of mind and the trial court has failed to consider the defence in right perspective and hence the impugned judgment is liable to be set aside. - That, the evidence of the doctor i.e. PW-1 and 11 is also not worth believable and it is clearly admitted by the doctor that, there is no endorsement of fitness of the victim to give statement and the MLC which is sent to police station does not bear the official out ward number from the hospital. So the I.O. has manipulated and prepared the prosecution papers so as to file the charge sheet against the accused. The victim has not put LTM on Ex.P11 on all the limbs were completely burnt. 10. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, contended that demand of dowry is not established in the case. As such, at the most material on record would only be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 498-A of IPC and sought for allowing the appeal. 11. He would further contend that except the complaint averments, there is no other material on record, which would be sufficient enough to record an order of conviction for the offences punishable under Sections 498A and 304B of IPC, which has not been properly appreciated by the learned Trial Judge in the impugned judgment, which has resulted in miscarriage of justice and thus, sought for allowing the appeal. 12. Alternatively, learned counsel for the appellant would contend that in the event this Court is upholding the order of conviction, the impugned judgment may be modified by maintaining the conviction of the appellant only for the offence punishable under Section 498A of IPC and by imposing the fine, suitable orders be passed. 13. Per contra, learned High Court Government Pleader supports the impugned judgment. He would further contend that since the de-facto complainant namely, Bhagyshree lost her life, the contents of the complaint itself is to be treated as dying declaration as per the settled principles of law and thus, conviction of the appellant is just and proper and sought for dismissal of the appeal. 14. He would further contend that the incident has taken place within seven years of the marriage of Bhagyshree with the appellant; therefore, prosecution enjoyed the presumption, which has been rightly appreciated by the learned Trial Judge in the impugned judgment and thus, sought for dismissal of the appeal. 15. 14. He would further contend that the incident has taken place within seven years of the marriage of Bhagyshree with the appellant; therefore, prosecution enjoyed the presumption, which has been rightly appreciated by the learned Trial Judge in the impugned judgment and thus, sought for dismissal of the appeal. 15. Alternate submission canvassed on behalf of the appellant cannot also be countenanced in law, inasmuch as, in the complaint there is a mention as to the statement dowry. Therefore, conviction for the offence punishable under Section 304B of IPC is to be maintained and sought for dismissal of the appeal in toto. 16. Having heard the arguments of both sides, this Court perused the material on record meticulously. 17. On such perusal of the material on record, following points would arise for consideration: 1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offences punishable under Sections 498-A and 304-B of IPC? 2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? 3. Whether the sentence is excessive? 4. What order? Regarding point Nos.1 and 2:- 18. In the case on hand, marriage of Bhagyshree with the appellant is not in dispute. Likewise, in the marital tie, there were no issues is not in dispute. Admittedly, Bhagyshree lost her life on 12.08.2015 in the hospital with burn injuries. 19. The postmortem report depicts that death of Bhagyshree has taken place on account of cardio respiratory failure as a result of 85% to 90% burns. The diagram that is shown would depict the burn injuries on the entire body on both sides. The mahazar conducted by the Investigation Officer is depicted in the photograph vide Ex.P2. Yellow colour plastic can said to have contained the kerosene marked at MO.1 is seized under Ex.P1. Admittedly, deceased being unable to bear the harassment, she left the matrimonial home and joined the parental house on 02.08.2015. After five days, in the evening hours, there was a telephone call from the appellant to Bhagyshree. Yellow colour plastic can said to have contained the kerosene marked at MO.1 is seized under Ex.P1. Admittedly, deceased being unable to bear the harassment, she left the matrimonial home and joined the parental house on 02.08.2015. After five days, in the evening hours, there was a telephone call from the appellant to Bhagyshree. According to the complaint averments, the appellant abused Bhagyshree in filthy language, which resulted in committing the act of self humiliation by Bhagyshree at about 9.30 p.m. When she raised hue and cry, the inmates of the parental house and others came to the rescue of Bhagyshree and they extinguished the fire and took her to Basavakalyan Government Hospital at the first instance. The doctors, who saw the condition of Bhagyshree with the burn injuries all over the body, after according to the firs aid, directed the relatives of Bhagyshree to shift her to District Hospital, Kalaburagi. 20. In the District Hospital, Kalaburagi, she has been made as an inpatient and information was sent to the police. Pursuant to the such information, police visited the hospital at Kalaburagi and enquired Bhagyshree. Before enquiring Bhagyshree, Ashokbabu, Head Constable of Manthal police station contacted the doctor and enquired about the health condition and thereafter, enquired Bhagyshree. The oral statement given by Bhagyshree was reduced in writing in the presence of the doctor and thereafter, LTM of Bhagyshree was taken on the said statement after reading the contents thereof. It has been mentioned in the said complaint that there was harassment imparted to Bhagyshree on account of the fact that she could not conceive to deliver the child. 21. The complaint marked before the Court as Ex.P.11 and endorsement as Ex.P.11 (b) and (c) would be sufficient enough to treat Ex.P.11 as dying declaration, in view of the fact that Bhagyashree lost her life on 12.08.2015. 22. It is settled principles of law and requires no emphasis that when an injured who has given complaint or statement before the police loses the life, such statement or complaint can be treated as dying declaration. Therefore, the principles of law that governs the validity of dying declaration could be made applicable to the case on hand. 23. 22. It is settled principles of law and requires no emphasis that when an injured who has given complaint or statement before the police loses the life, such statement or complaint can be treated as dying declaration. Therefore, the principles of law that governs the validity of dying declaration could be made applicable to the case on hand. 23. In this regard, Sri Shivakumar Malipatil, learned counsel for the appellant, however contended that having regard to 80 to 90% burn injuries sustained by Bhagyashree, she was not in a fit condition to state before the Police about the incident. 24. It is pertinent to note that endorsement at Ex.P.11(b) would be sufficient and the Doctor who certified the condition of the injured would quell such an apprehension expressed on behalf of the appellant. 25. Dr. Tajuddin who accorded first aid to the injured is examined as P.W.10. MLC report was sent to the police and Head Constable-Ashok Babu of Mantala police station, came to the hospital and enquired about the incident. In the presence of Dr.Tajuddin-P.W.10 statement of the victim was recorded. 26. In the cross-examination of P.W.10, the Doctor who has given the mental fitness of the deceased it has been elicited that immediately after Bhagyashree was brought to the hospital, he has sent the MLC and police have visited the hospital within 10 to 15 minutes. Further he admits that there was no written request given by the Head Constable as to the mental fitness. 27. He also admits that Bhagyashree did not mention about the history of burn injuries and therefore, it was not recorded in MLC register. He admits that in Ex.P.13 he has not mentioned about history of burn injuries. He also admits that he has not mentioned in Ex.P.11 as to the time that was taken for recording the contents of Ex.P.11. 28. However, he has answered that Bhagyashree had sustained burn injuries on the face, neck, chest, both hands and legs. He denied the suggestion that LTM found in Ex.P.11 is not belonging to Bhagyashree. 29. P.W.13-Ashok Babu is the Head Constable who wrote Ex.P.11. He deposed that based on MLC report received by him on 07.08.2015 at about 10.15 pm, he visited the Government Hospital, Basava Kalyana and as per Ex.P.20 gave a written request. He identified the written request at Ex.P.20 which has been acknowledged by P.W.10 in his examination-in-chief. 29. P.W.13-Ashok Babu is the Head Constable who wrote Ex.P.11. He deposed that based on MLC report received by him on 07.08.2015 at about 10.15 pm, he visited the Government Hospital, Basava Kalyana and as per Ex.P.20 gave a written request. He identified the written request at Ex.P.20 which has been acknowledged by P.W.10 in his examination-in-chief. Thereafter, he has identified the endorsement made by him as Ex.P.11(b) and (c). In his cross-examination, it has been elicited that he had brought Police Constable-Anil Rathod who is the writer and as per his directions, said Anil Rathod wrote the contents of Ex.P.11. 30. He has stated that along with Bhagyashree, her father and other 4 to 5 persons were present. He denied having concocted Ex.P.20. He also admits that there is no mention in Ex.P.11 as to when writing of Ex.P.11 was commenced and when it ended. 31. He further admits in the cross-examination that he obtained left leg thumb impression on Ex.P.11, but he has not made any endorsement to that effect. He denied the suggestion that Ex.P.11 is concocted. 32. The other material evidence available on record sufficiently corroborates the case of the prosecution in establishing that there was physical and mental harassment imparted to Bhagyashree and convening of panchayat earlier and despite the same, Bhagyashree had to come back to her parental house on account of physical and mental harassment. 33. It is pertinent to note that prosecution did enjoy the presumption under Section 113-A and 113-B of the Indian Evidence Act. But, appellant and other accused persons, for the reasons best known to them, did not chose to place any rebuttal evidence on record nor they have furnished any statement as is contemplated under Section 313(4) of the Code of Criminal Procedure with regard to incriminatory material found against the appellant and others in the prosecution evidence. 34. But, appellant and other accused persons, for the reasons best known to them, did not chose to place any rebuttal evidence on record nor they have furnished any statement as is contemplated under Section 313(4) of the Code of Criminal Procedure with regard to incriminatory material found against the appellant and others in the prosecution evidence. 34. Since the incident has taken place within seven years of marriage and the sequence of events has been consistently deposed by the prosecution witnesses coupled with the contents of Ex.P.11 which would inspire confidence of this Court in accepting the veracity thereof following the settled principles of law enunciated by the Hon’ble Apex Court in catena of judgments while appreciating the dying declaration, this Court has no hesitation whatsoever to accept that the contents of Ex.P.11 has been established by the prosecution by placing cogent and convincing evidence on record. 35. The learned Trial Judge has also formed the same opinion and even on re-appreciation, this Court has no iota of doubt as to the veracity of contents of Ex.P.11. 36. Further, a person who is seeing death in the near future, why would such person falsely implicate a person in the incident is a question that needs to be answered by the defense. 37. P.W.13 is total stranger to the accused as well as deceased. In the absence of any previous enmity or animosity, what is the reason for P.W.13 to concoct Ex.P.11 is again a question that remains unanswered. 38. Minor discrepancies in either recording the dying declaration of necessary endorsements are to be ignored in view of the authoritative principles of law enunciated by the Hon’ble Apex Court in the case of Irfan @ Naka vs. The State of Uttar Pradesh , reported in 2023 SCC Online SC 1060 . 39. Thus, even after re-appreciation of the material evidence on record, this Court has no hesitation whatsoever in accepting the truthfulness of the contents of Ex.P.11. 40. Learned trial Judge rightly appreciated the material evidence on record and for want of necessary material evidence, acquitted accused Nos.2 to 6. The State for the reasons best known to it, did not choose to challenge the order of acquittal for the accused Nos.2 to 6. Therefore, in the impugned Judgment this Court is unable to find any illegality or legal infirmities and therefore, it cannot be termed as perverse in nature. 41. The State for the reasons best known to it, did not choose to challenge the order of acquittal for the accused Nos.2 to 6. Therefore, in the impugned Judgment this Court is unable to find any illegality or legal infirmities and therefore, it cannot be termed as perverse in nature. 41. In view of foregoing discussion, point Nos.1 and 2 are answered in the affirmative and negative respectively. Regarding Point No.3:- 42. Learned trial Judge has granted minimum punishment of seven years for the offence punishable under Section 304B of IPC. He has also not imposed any fine for the said offence. However, a sum of Rs.50,000/- is imposed as fine for the offence under Section 498A of IPC. Since the sentence of one year imprisonment for the offence under Section 498A of IPC is ordered to run concurrently, hardly there is any scope for altering the sentence in any manner. In fact, if the State had preferred any appeal or revision seeking enhancement of the sentence, case deserves that, such an enhancement should have been ordered in the facts and circumstances of the case. 43. Likewise, an appeal filed by the accused, normally the enhancement of sentence should not be ordered. In this regard, view of this Court is fortified by the Judgment of the Hon’ble Apex Court in the case of Govind Ramji Jadhav Vs. State of Maharastra , reported in (1990) 4 SCC 718 . 44. Accordingly, point No.3 is answered in negative. Regarding Point No.4:- 45. In view of the finding of this Court on point Nos.1 to 3 as above, following order is passed: ORDER (i) The appeal is meritless and hereby dismissed; (ii) Time is granted for the appellant to surrender before the trial Court for serving the sentence, till 30.07.2025. (iii) Office is directed to return the trial Court records with copy of this order, forthwith.