IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.500 OF 2015 BETWEEN:
ASHOK SON OF LATE DURGAPPA AGED ABOUT 33 YEARS OCCUPATION: EMPLOYEE IN BSNL RESIDENT OF BSNL QUARTERS HONNALI TOWN NATIVE OF DODDIMATTI SHIMOGA TALUK-577 217. ... APPELLANT (BY SRI. P.B. UMESH, ADVOCATE FOR SRI. R.B. DESHPANDE, ADVOCATE) AND:
THE STATE OF KARNATAKA BY HONNALI POLICE STATION-577 217. ... RESPONDENT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CRIMINAL PROCEDURE CODE PRAING TO SET ASIDE THE ORDER DATED 4/10.03.2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN SESSIONS CASE NO.122 OF 2012 – CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 304(B) AND 302 READ WITH SECTION 34 OF INDIAN PENAL CODE AND SECTIONS 3 AND 4 OF THE DOWRY PROHIBITION ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the accused No.1 challenging the judgment of conviction passed in S.C.No.122 of 2012 dated 4.3.2015 on the file of the I Additional District and Sessions Judge, Davanagere for the offences punishable under Sections 498-A, 304(B) and 302 of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act.
Brief facts of the case:
2. It is the case of the prosecution that the accused No.1 is the husband of the deceased Savita and accused No.2 is the mother of accused Nos.1 and 3. The marriage of accused No.1 was performed with the deceased on 21.5.2010 at Doddimatti Village, Shivamogga Taluk. It is the further case of the prosecution that at the time of the marriage, cash of Rs.1,00,000/- and 1½ tola of gold was given as dowry. After the marriage, accused No.1 and the deceased were residing in BSNL Quarters at Honnali Town along with accused Nos.2 and 3. The accused persons started harassing and ill-treating the deceased demanding additional dowry and she was subjected to both mental and physical cruelty. That on 9.7.2012, in between 7.30 p.m. and 8.00 p.m., the accused Nos.1 to 3 quarreled with the deceased Savitha with an intent to commit murder, they have poured kerosene on her and set fire. Due to burn injuries, she succumbed on 14.7.2012 at about 9.45 a.m. at Mc. Gann Hospital, Shivamogga, where she was taking treatment. Hence, a case has been registered against the accused persons. The Investigating Officer investigated the matter and filed the charge-sheet against the accused persons for the offences punishable under Sections 498-A, 304(B) and 302 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
3. The accused No.1 was in judicial custody and accused Nos.2 and 3 were released on bail. The accused persons did not plead guilty and hence charges were framed against them. The prosecution in order to prove their case, examined P.Ws.1 to 30 and got marked the documents at Exs.P.1 to 34 and relied upon M.Os.1 to 3. The statements of the accused persons was recorded under Section 313 of the Cr.P.C. and the accused did not choose to lead any evidence. The Court below after hearing the arguments of the learned Public Prosecutor as well as the learned defence counsel, acquitted accused Nos.2 and 3 and convicted accused No.1 for the offences punishable under Sections 498-A, 304(B) and 302 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Aggrieved by the judgment of conviction, the appellant – accused No.1 has filed this appeal.
4. In the appeal, it is the contention of the appellant – accused No.1 that the Court below has committed an error in convicting the accused No.1, in spite of all the witnesses turning hostile, except P.Ws.18, 19 and 22. The Court below has committed an error in relying on the evidence of P.Ws.18, 19 and 22, even though there were material contradictions and also material omissions in their evidence. The Court below has committed an error in convicting the accused No.1 for the offences punishable under Sections 498-A of Indian Penal Code even though all the witnesses have not supported the case of the prosecution. The Court below committed an error in relying upon Ex.P.19 – dying declaration recorded by P.W.19 in the presence of P.W.22. The learned Sessions Judge observed that the contents in Ex.P.19 corroborates the contents in complaint – Ex.P.1, and the very finding of the Trial Court is erroneous. The Trial Judge ought to have acquitted the accused No.1. Inspite relied upon the dying declaration, which is in the nature of complaint and also committed an error in convicting the accused No.1 for the offences punishable under Sections 304(B) and 302 of Indian Penal Code and hence it requires interference of this Court.
5. The learned counsel appearing for the appellant vehemently contended that inspite of material witnesses i.e., brother and the parents of the deceased, deposing that the deceased only committed the suicide and there was 90-98% burn injuries and inspite of the opinion of the doctor that burn injuries was 99% and inspite of witnesses turning hostile, the Court below has committed an error in convicting the accused No.1. Hence, it requires interference of this Court.
6. Per contra, the learned counsel appearing for the State would submit that the evidence of P.Ws.19 and 22 corroborates the dying declaration of the deceased. Separate certificate was issued in terms of Ex.P.20 by the doctor – P.W.22. The Tahsildar, who is examined as P.W.19, in his evidence categorically states that the deceased made the statement in the presence of P.W.22. Ex.P.18 – post mortem report discloses the nature of injuries sustained by the deceased. The death had taken place within two years of the marriage and the same had occurred in the house of the accused. The official witnesses have supported the case of the prosecution regarding recording of the dying declaration of the deceased. Hence, the Court below even though relative witnesses of the deceased have turned hostile, considered the dying declaration, which is a crucial evidence available before the Court. Hence, prayed this Court to dismiss the appeal.
7. Having heard the arguments of the learned counsel for the appellant and also the learned High Court Government Pleader appearing for the State and on perusal of the material available on record, this Court has to re-appreciate the evidence available on record. The points that arise for our consideration are:
(i) Whether the Court below has committed an error in convicting the accused No.1 for the offences punishable under Sections 498-A, 304(B) and 302 of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act?
(ii) What order?
Points (i) and (ii):
8. The sum and substance of the case of the prosecution is that even though the accused No.1 had received an amount of Rs.1,00,000/- and gold ornaments at the time of marriage, he subjected the deceased for both mental and physical harassment along with accused Nos.2 and 3. The Court below acquitted accused Nos.2 and 3 and convicted accused No.1. The State also did not file any appeal against the order of acquittal. Hence, this Court has to consider the evidence available on record against the appellant. We would like to make a mention in brief the evidence of prosecution witnesses.
9. P.W.1 is the brother of the deceased. P.W.1 in his evidence states that the marriage of his sister was solemnized with accused No.1 four years ago. The accused No.1 was working in BSNL and hence both of them were residing in the BSNL Quarters at Honnali. As per the marriage talks, an amount of Rs.1,00,000/- and 3 tolas of gold were given to him. The marriage was performed in the front of the house of accused No.1. Accused Nos.2 and 3 were residing separately, but were visiting the house of the accused No.1. He turned hostile and the learned Public Prosecutor cross-examined this witness. In the cross- examination, it is elicited that on 6.7.2012, the accused persons beaten her sister and sent her to their house. On 9.7.2012, they have consoled and sent her to matrimonial home along with accused No.1. It is suggested that the accused persons poured kerosene and set fire and the same was denied.
10. P.Ws.2 and 3 are the witnesses of inquest mahazar and have turned hostile. P.Ws.4 and 5, mother and father of the deceased have also turned hostile. However, in the cross-examination of P.W.5, it is elicited that he gave an amount of Rs.1,00,000/- and 1½ tolas of gold. P.W.5 also reiterates that the accused persons were insisting for additional dowry and she was telling the same and crying before him and they were consoling and sending her to her husband’s house.
11. P.W.6 – aunt of the deceased turned hostile.
P.Ws.7 and 8 are the mahazar witnesses in respect of Ex.P.2 and they turned hostile. P.W.9 also turned hostile.
P.W.10 turned hostile and was subjected to cross- examination. In the cross-examination of P.W.10, it is elicited that the parents of the deceased had given Rs.1,00,000/- and gold ornaments at the time of marriage. After the marriage, accused No.1 looked after the deceased well for some time. Accused No.1 was addicted to alcohol and was abusing and assaulting the deceased.
12. P.W.11 did not support the case of the prosecution. P.W.12 is the Junior Engineer working in BSNL Office and he did not support the case of the prosecution. But in the cross-examination, it is elicited that the accused No.1 was abusing and assaulting the deceased demanding additional dowry. P.W.13 did not support the case of the prosecution in chief examination. But in the cross-examination, it is elicited that the accused No.1 had obtained Rs.1,00,000/- and 1½ tola of gold as dowry. The accused No.1 was unnecessarily assaulting and abusing the deceased and the same was informed to the parents of the deceased. That on 6.7.2012, the accused persons assaulted the deceased and sent her to her parents house.
13. P.Ws.14, 15 and 16 did not support the case of the prosecution and turned hostile. P.W.17 in his evidence states that gold and money was given at the time of marriage and he turned hostile.
14. P.W.18 is the doctor, who conducted the post mortem examination and in his evidence he states that infected burn injuries are present over face, neck and front and back of chest, front and back of abdomen, both upper limbs, both lower limbs including external genitalia. He states that antemortem infected burns 95 to 98% are present. The cause of death is due to specticimia as a result of burn injuries sustained. He issued the post mortem report in terms of Ex.P.18. If any man is poured with kerosene and set ablaze and such burn injuries may cause. In the cross-examination it is elicited that if the injured herself immolates kerosene and set ablaze and such burn injuries may cause.
15. P.W.19 is the Tahsildar, who recorded the dying declaration of the deceased at Mc. Gann Hospital. He states that he approached the doctor regarding whether the victim was able to make the statement and the doctor had confirmed that she was in a fit condition to make the statement. He also put some questions to the injured and got confirmed her ability to speak to give her statement. In her statement, the deceased has stated that her husband poured kerosene and set fire. He recorded the same in terms of Ex.P.19 in the presence of the doctor and also obtained the signature of the doctor and left thumb impression of the deceased. He also identifies the certificate at Ex.P.20. In the cross-examination, it is elicited that he cannot say the percentage of burns. He admits Ex.P.19 is in his handwriting. Ex.P.20 was given to him by the doctor prior to the recording of statement of the deceased at 7.00 p.m. It is suggested that he was aware of the fact that the deceased herself poured the kerosene and set the fire and the same was denied.
16. P.W.20 has given the certificate in terms of Ex.P.21 regarding BSNL quarters. P.W.21 – Head Constable in his evidence states that he arrested the accused persons and produced them before the Circle Inspector and gave the report in terms of Ex.P.22.
17. P.W.22 is the doctor, who was present at the time of recording the dying declaration of the deceased. He states that as on the date of recording the dying declaration by the Tahsildar, he had examined the injured in order to know whether she was in a fit state of mind to give her statement or not. He examined her and informed the Tahsildar that she was in a fit state of mind to give her statement. He was present along with the Tahsildar from the beginning of recording the dying declaration till the end, as she was well oriented and conscious. He identified his signature as Ex.P.19(b). In the cross-examination, it is elicited that the Tahsildar himself had written Ex.P.19. It is suggested that she was not in a fit state of mind to give her statement and the same was denied. Witness volunteers he has examined her and also put certain questions to her. It was around 90% to 100% burn injuries. It is suggested that if any man sustained burn injuries at around 90% to 100%, he may not be in a position to give statement and the same was denied.
P.W.22 also identifies Ex.P.20 and says the same was issued by him to the Tahsildar, Bhadravathi. In the cross- examination, it is suggested that she was not in a fit state of mind to give her statement and she has not given any dying declaration and the same was denied.
18. P.Ws.23 and 24 have turned hostile. P.W.25 is the Investigating Officer, who received the complaint in terms of Ex.P.1. He conducted the spot mahazar in terms of Ex.P.2, seized the articles and also identifies the photographs and sketch in terms of Exs.P.31 and 32 and so also M.Os. In the cross-examination, it was suggested that the deceased was not in a position to make any statement and the same was denied. One advocate Thippeshi was present along with complainant.
19. P.W.26 is the Circle Inspector. In his evidence he states that he took up the further investigation. That on 12.7.2012 his staff apprehended the accused persons and produced before him and submitted the report in terms of Ex.P.22. This witness was not subjected to cross- examination.
20. P.W.27 is the Dy. S.P., who took up the further investigation and recorded the statement of the witnesses. He also collected the marriage invitation card in terms of Ex.P.27 and two marriage photographs in terms of Ex.P.28. He obtained the inquest report in terms of Ex.P.4, post mortem report in terms of Ex.P.18 and FSL report in terms of Ex.P.29. In the cross-examination, it is suggested that the complainant accompanied with one advocate Thippeshi and he denied the same. It is suggested that a false complaint was given and he has filed a false charge- sheet and the same was denied.
21. P.Ws.28 and 29 turned hostile. P.W.30 is the Assistant Commissioner, who conducted the inquest in terms of Ex.P.4. He states that in terms of the statement of the witnesses, the accused subjected the deceased for both mental and physical cruelty and poured kerosene and set fire. In the cross-examination it is suggested that Exs.P.3, 4, 6, 7 and 33 are not given before him and the same was denied.
22. Having considered both oral and documentary evidence available on record and also the rival contentions urged by the learned counsel for the appellant and also the learned counsel appearing for the respondent - State, this Court has to examine and re-appreciate, whether the Court below has committed any error in convicting accused No.1.
23. The prosecution evidence is mainly with regard to payment of dowry amount of Rs.1 lakh and gold at the time of the marriage and in this regard, the brother of the victim/deceased who has been examined as P.W.1, in his evidence, has categorically stated that at the time of marriage they gave an amount of Rs.1 laksh and 3 sovereign gold articles. Regarding other allegations, he has turned hostile. He was cross examined by the learned Public Prosecutor. It is elicited in the cross-examination that on 6.7.2012 accused persons assaulted his sister and sent her to their house. That on 09.07.2012, they have consoled and sent her to the house of accused No.1. Though these answers are elicited in the cross-examination by the learned Public Prosecutor and also in the chief evidence it is deposed with regard to payment of dowry and gold articles the accused counsel did not dispute the said evidence and no cross-examination was done in respect of incriminating evidence available against him. The other witnesses P.Ws.4 and 5 mother and father of the victim have turned hostile. But in the cross-examination of father who has been examined as P.W.5, the learned Public Prosecutor elicited that they have paid the amount of Rs.1 lakh and 1 ½ sovereign gold and that the accused persons were subjecting her for harassment for an additional dowry and she was stating the same before them and they used to console her and send her to the house of the accused. This evidence has also not been disputed by the accused and also did not cross-examine P.W.5 in spite of his deposing that they paid the amount and also there was harassment for additional dowry.
In the cross-examination of P.W.10 by the learned Public Prosecutor, it is elicited that both gold and Rs.1 lakh cash was given to the accused. The accused was addicted to alcohol and everyday he was abusing and assaulting her. This evidence is also not disputed by the defence counsel in the cross-examination. The evidence of P.Ws.1, 5 and 10 though they turned hostile, certain answers are elicited in their respective cross-examinations and the same has not been disputed. Hence, it is clear that prosecution has proved payment of Rs.1 lakh at the time of marriage and gold articles and subjecting the victim for harassment by the accused.
24. P.W.12 is the co-employee of the accused.
Though he has turned hostile, in his cross-examination by the learned Public Prosecutor it is elicited that accused No.1 was abusing and assaulting the victim unnecessarily and demanding additional dowry. This evidence is also not controverted by the accused counsel.
25. P.W.13, though turned hostile, in the cross examination by the learned Public Prosecutor it is elicited with regard to payment of dowry of Rs.1 lakh and also 1 ½ sovereign of gold and also subsequently subjecting her for harassment by abusing and assaulting her. P.W.13 also says that she was subjected to assault on 6.7.2012 and sent to her parents house. This answer is also not contraverted by the defence counsel.
26. Having considered the material available on record regarding harassment and subjecting her for mental cruelty and demanding and accepting dowry, there is a clinching evidence before the Court. Even though important relative witnesses have tuned hostile, the learned Public Prosecutor was able to elicit the answers and hence, the Court below has not committed any error in convicting accused No.1 for the offences punishable under Section 498-A and Sections 3 and 4 of the DP Act.
27. Regarding committing the murder of victim is concerned, the prosecution has relied upon the evidence of P.W.18 who conducted the post mortem. In his evidence, he states that he found burn injuries over face, neck, chest, front and back of abdomen, both upper limbs and both lower limbs including external genetalia. It is also his evidence that burns inflicted were 95-98%. Cause of death is due to septesemia as a result of burn injuries sustained. It is his evidence that, if any person is poured with kerosene and set ablaze, such injuries may be caused.
But in the cross-examination it is elicited that if the injured herself immolates kerosene and sets ablaze, such burn injuries may be caused. The evidence of P.W.18 is not firm regarding the injuries are concerned. In one breath he states that if any person is poured with kerosene, such injuries could be caused and at another breath states that if victim herself immolates kerosene also such type of injuries could be caused.
28. The other evidence is Tahsildar – P.W.19, who recorded the dying declaration of the victim. In his evidence he states that, on the request of the Assistant Commissioner, he went to Shimoga hospital and recorded the statement of the victim/deceased. Before recording the evidence he met the Doctor with regard to the fit condition of the victim to make statement and only after confirmation, he recorded the statement in terms of Ex.P19. It is his evidence that vitim told that her husband poured kerosene and set fire and that he is only responsible for her condition. It is also his evidence that the Doctor has attested the said dying declaration and issued a separate certificate in terms of Ex.P20.
In the cross-examination it is elicited by the defence counsel that the contents of Ex.P19 is in the handwriting of P.W.19 and further got elicited that Ex.P20 certificate was given prior to recording of dying declaration at 7.00 p.m. These answers goes against the accused. But only a suggestion was made that victim herself poured kerosene on herself and set fire and the same was denied.
29. P.W.22 is the Doctor who was present at the time of recording the dying declaration Ex.P19. In his evidence he states that before recording of dying declaration by the Tahsildar, he has examined the injured in order to know whether she was in a fit state of mind and only after confirming that she is in a fit state of mind to give statement, the Tahsildar has recorded her statement. He was present along with the Tahsildar from the beginning till the end. He also attested the document Ex.P19 as P19(b).
In his cross-examination also, the defence got confirmed that the Tahsildar himself has written Ex.P19. It is suggested that she was not in a fit state of mind to give her statement and the same was denied. Witness volunteers that he has examined her and also put certain questions to her before confirming her fit state of mind confirmed that she suffered 90-100% burn injuries. It is suggested that if a person sustains burn injuries of about 90-100%, she would not be in a position to give statement and the same was denied. It is also confirmed by P.W.22 that he has issued the certificate in terms of Ex.P20.
30. Having considered the evidence of P.W.18 it is clear that the death of the victim was due to septicemia on account of burn injuries sustained and the same has not been disputed. The question before the Court is, whether the dying declaration inspires confidence of the Court?
P.W.19 - Tahsildar has recorded the dying declaration in his own handwriting and the same has been confirmed by the defence counsel in the cross-examination. It is also pertinent to note that P.W.19 also states that the Doctor P.W.22 gave a separate certificate with regard to fit condition of the victim and P.W.22 also reiterated that on confirming her fit condition to make statement, the Tahsildar has recorded the statement of the victim. No doubt, it is elicited in the cross-examination that the victim has suffered burn injuries of 90-95%.
In the cross-examination though it is suggested that a person who suffered 90-100% of burn injuries will not be in a position to give statement, the same has been categorically denied by P.W.22 Doctor.
31. In this regard, we would like to refer to paragraph Nos.15 and 27 of the judgment of Hon’ble Supreme Court in the case of AMARSINGH MUNNASINGH SURYAWANSHI v. STATE OF MAHARASHTRA reported in (2010) 3 SCC (CRI) 553, which reads as follows:
“15. The said witness categorically stated that he did take down the statement of the deceased in Marathi language although the mother tongue of the deceased was Hindi. Both the witnesses knew Hindi. They also knew Marathi. Before P.W.6 Head Constable Sitaram the deceased gave her statement in Marathi, which was recorded in the said language. The first dying declaration was not in the question and answer form, but it was not necessary. The witness had categorically stated that he had been asking questions to which the deceased was giving replies.
27. It is now a well-settled principle of law that a conviction can be based on the dying declaration alone, subject of course, to the satisfaction of the Court that the same is trustworthy.”
32. Further, we would like to refer to paragraph Nos.50 and 52 of the judgment of Hon’ble Supreme Court in the case of VIKAS AND OTHERS v. STATE OF MAHARASHTRA reported in (2008) 1 SCC (CRI) 486, which reads as follows:
“50. In Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562 : JT 1999 (7) SC 568, there was no specific endorsement of doctor as to mental fitness of the deceased to make the dying declaration. However, it had come in evidence that the deceased was certified to be in a position to make dying declaration and accordingly, the dying declaration was recorded. This Court held that requirement as to doctor’s endorsement as to mental fitness of the deceased was “only a rule of prudence” and the ultimate test was whether the dying declaration was truthful and voluntary. The Magistrate who recorded the dying declaration was examined as a witness and he categorically deposed that at the hospital, on being asked, the doctor told her that the deceased was conscious and in a fit mental condition. It was held that it was sufficient to come to the conclusion that dying declaration was proper and could be relied upon.
52. In P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443 : JT 2003 (6) SC 84, this Court considered doctrine of dying declaration indicated in legal maxim nemo moriturus praesumitur mentire (a man will not meet his Maker with a lie in his mouth), and stated:
“12.Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.”
33. Having considered the evidence of P.Ws.18, 19 and 22, it is clear that the victim has given her statement before P.W.19, after confirmation of her fit condition to give statement by P.W.22.
34. On perusal of Ex.P19, it is also clear that the Tahsildar has recorded the dying declaration of the victim in the form of question and answer, even though the same is not mandatory. It is her evidence that her family members and her friends have brought her in omni car. It is her specific case that the accused under intoxication used to harass and assault her and abuse the chastity of the victim. While answering question No.6, it is specifically mentioned by her that, her husband - accused No.1 only is responsible for her condition and further reiterated that by pouring kerosene he set fire to her. The dying declaration also inspires the confidence of the Court. Taking into note the evidence of P.W.19, so also, the evidence of P.W.22 and also taking note of the contents of Ex.P.19, it is clear that accused only poured kerosene and set fire to her.
35. The post mortem report also discloses that she has suffered injuries all over the body including the face. The Doctor who has been examined also confirms that this nature of injuries could be caused if kerosene is poured and set fire. No doubt, in the cross-examination the accused counsel got elicited that this type of injuries could be caused even in a case of self immolation. Having considered the statement of the victim, the inference that could be drawn is, at the last moment victim does not lie. It also has to be noted that the incident has taken place within two years of marriage, that accused No.1 was addicted to alcohol and was subjecting her for both mental and physical cruelty. The evidence of P.Ws.1, 5, 10 and other witnesses also confirms regarding subjecting the victim for mental and physical cruelty. The Court below has considered all these materials and has come to the conclusion that the accused himself has set fire by pouring kerosene. As already pointed out, even though some of the witnesses have turned hostile, the learned Public Prosecutor in the cross-examination has elicited incriminating evidence against the accused and the same has not been disputed. Hence, we do not find any error committed by the Court below in convicting the accused for the charges leveled against him. The Court below, while acquitting the other accused also, has considered the evidence available on record. The victim in the dying declaration Ex.P19 specifically mentioned that accused No.1 husband is only responsible for her condition. There is no any specific overt act against other accused persons. Having considered the same, the Court below rightly acquitted the other accused persons. In view of the discussions made above, we pass the following:
ORDER Appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE MD/BKP