Karnataka High Court
Smt. Neelavva W/O. Krishna ... vs The State Of Karnataka on 20 July, 2021
Author: R.Devdas And J.M.Khazi
CRL.A.NO.100317/2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100317/2018
Between:
Smt. Neelavva W/o. Krishna Galgali
Age: 28 years, Occ: Labour
R/o. Neeralakeri
Bagalkot Taluka and District
... Appellant
(By Sri. M. L. Vanti, Advocate)
And:
State of Karnataka
Rep. by its High Court Public Prosecutor
High Court of Karnataka, At Dharwad.
... Respondent
(By Sri. V. M. Banakar, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure, praying to set aside the judgment
of conviction and sentence dated 10.10.2018, passed by the
Principal District and Sessions Judge, Bagalkot, in Sessions
Case No.46/2014 for the offence punishable under Section
302 of the IPC and set the accused/appellant at liberty in the
interest of justice.
This Criminal Appeal having been heard and reserved for
judgment on 12.07.2021, coming on for pronouncement of
judgment this day, J.M.Khazi J., delivered the following:
CRL.A.NO.100317/2018
2
JUDGMENT
Being aggrieved by the judgment and order dated
10.10.2018 in SC No.46/2014 on the file of Principal District
and Sessions Judge, Bagalkot, by which she came to be
convicted for the offence punishable under Section 302 of the
Indian Penal Code, 1860 ('IPC', for short) and sentenced to
undergo imprisonment for life and to pay fine of `25,000/-,
appellant, who is the sole accused, has filed this appeal under
Section 374(2) of the Code of Criminal Procedure, 1973
('Cr.P.C.' for short).
2. For the sake of convenience, the appellant is
referred to as accused.
3. Accused is the wife of the deceased. The deceased
was suspecting the fidelity of his wife i.e., the accused is
having an affair with other man and with this suspicion, he
used to quarrel with the accused everyday and for this reason,
he did not want the accused to go and work outside and he
was a drunkard and also under the influence of alcohol he
used to quarrel with the accused. It is the case of the
prosecution that, in this background, the incident took place
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on 20.02.2014. On that day, deceased, accused and their son
were the only inmates of the house and after finishing dinner,
while the deceased slept on the cot, accused and their son
slept on the floor of the house and at around 11.30 pm,
accused poured kerosene over the body of her husband i.e.,
deceased and set him on fire and while undergoing treatment,
he died.
4. In support of the prosecution case, in all 22
witnesses are examined as PWs.1 to 22, Exs.P1 to 26 and
MOs.1 and 2 are marked. On behalf of the accused, portion of
statement of PW.2 is marked as Ex.D1.
5. During the course of her statement under Section
313 of Cr.P.C., the accused denied the incriminating material
put to her. She has not chosen to lead evidence on her behalf.
On the other hand, she has filed a written statement (DgÉÆæAiÀÄ
°TvÀ ºÉýPÉ). After hearing the arguments of both sides, the
learned Sessions Judge has come to the conclusion that based
on the material placed on record, the prosecution has proved
the allegations against the accused beyond reasonable doubt
CRL.A.NO.100317/2018
and it is sufficient to bring home the guilt to the accused and
accordingly convicted and sentenced her.
6. Assailing the impugned judgment and order, the
learned counsel representing the accused submits that the
impugned order is opposed to law, facts and probabilities of
the case and liable to be set aside. He submits that the Trial
Court has failed to notice that the accused and her minor son
i.e., PW.15 were sleeping outside the house and no witnesses
have spoken that the accused was inside the house when the
incident took place. He would further submit that, in his dying
declaration at Ex.P-19, made before the Taluka Executive
Magistrate, the deceased has stated that he does not know
how he caught fire and he did not suspect anybody. The Police
Constable, who recorded the information given by the
deceased is not examined and as such the prosecution has
failed to prove the allegations against the accused as made in
the first dying declaration. He would further submit that,
PW.11 Dr.Santosh S. Sheelvant, who conducted the
postmortem examination, has stated that there was no
kerosene smell in the dead body and therefore, the charge
that the accused poured kerosene on the deceased and set
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him on fire is not proved. He further submitted that, as per
the medical records, the deceased suffered 97% burn injuries
and both his hands were burnt and therefore the question of
deceased giving first information or dying declaration is to be
ruled out. Moreover the first information is not certified by the
doctor that the victim was in a fit state of mind to give the
statement. Therefore, the Court ought to have disbelieved the
dying declaration.
7. The learned counsel further submitted that, the
Trial Court has failed to notice that there is a possibility of
deceased setting himself on fire as there are no signs of
presence of kerosene on his body and it has come in the
evidence of PWs.2 and 5 that, earlier the deceased was
admitted to mental hospital and his mental condition was not
normal. The accused and deceased are having two children
and in the prosecution case there is no reference to the
presence of their daughter Aishwarya. He would submit that
the Trial Court convicted the accused wholly on the basis of
suspicion and prays to allow the appeal and upset the order of
conviction.
CRL.A.NO.100317/2018
8. On the other hand, the learned Additional State
Public Prosecutor has taken us through the oral and
documentary evidence placed on record and submits that,
based on the evidence on the record, the learned trial Judge
has rightly come to the conclusion that the charges leveled
against the accused are proved beyond reasonable doubt and
she being the inmate of the house, where the incident has
taken place and having a special knowledge, has not come up
with any explanation as to the cause of the burn injuries
sustained by her husband and in the absence of such
explanation, either through the cross-examination of the
witnesses or during the course of her statement under Section
313 Cr.P.C., or stepping into the witness box to depose as to
what actually transpired on the date of incident, the only
conclusion which could be drawn is that, as stated in his dying
declaration at Ex.P21, it is the accused who poured kerosene
on the deceased and set him on fire and after the incident,
when the neighbors and the relatives of the deceased arrived,
she disappeared from the spot as having a guilty mind and he
prays to dismiss the appeal as without any merit.
CRL.A.NO.100317/2018
9. We have heard the arguments of the learned
counsel representing the accused as well as the learned
Additional State Public Prosecutor and perused the records.
10. The deceased and the accused are husband and
wife and they were living together. This fact is not in dispute,
although during the course of the argument, the learned
counsel representing the accused is trying to make out a case
that, when the incident took place, the accused was sleeping
outside the house along with her son, while the deceased was
sleeping inside on a cot and the accused was burnt on account
of a kerosene lamp, which was kept on the ground near the
cot of the deceased.
11. After the incident, the deceased was shifted to the
Kumareshwara Hospital and after receiving the information
regarding the medico legal case, PW.22 Devendrappa
Dhulkhed, who was working as PSI at the Bagalkot Rural P.S.,
has visited the hospital along with his staff at 2.00 am and
after meeting the medical officer and making sure that the
deceased was in a fit condition to give statement, has
recorded his statement at Ex.P21 in the presence of the
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doctor. He has deposed that, he recorded the statement of
the deceased as narrated by him and it is taken down by the
station writer Ningolli. He has specifically stated that, to that
statement which is later treated as dying declaration, the
deceased has affixed his LTM and the Medical Officer has also
certified that the deceased was in a fit condition and that the
statement is recorded in his presence.
12. Based on the statement of the deceased, which is
taken at the earliest point of time, the Investigating Officer
has registered the case at 5.00 am and he has transmitted the
FIR to the jurisdictional Magistrate and the learned Magistrate
has received the FIR at 12.00 noon. Thereby the version of
the incident as revealed by the deceased at the earliest point
of time has come on record setting into motion the
investigation. During his cross-examination, the police officer
i.e., PW.22 who recorded the statement of the deceased has
deposed that, based on the medico legal case report i.e., MLC
report, he came to know about the incident at 1.00 am and
when he recorded the statement of the deceased, it was 2.30
to 3.00 am and after returning to the police station, he
registered the case at 5.00 am. He has stated that, the
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Kumareshwara Hospital, where the deceased was taking
treatment, is about 4 to 5 kms from the police station.
13. The defence has tried to make much out of the
fact that, the scribe of Ex.P21 is not examined. As deposed by
PW.22, Ex.P21 is in the handwriting of the station writer, who
accompanied PW.22. It is pertinent to note that, immediately
after receiving the information regarding the medico-legal
case, the Investigating Officer i.e., PW.22 has reached the
hospital along with his writer. It is the usual practice for the
Investigating Officer to get the statement of the injured
recorded through the writer who are usually the persons
having legible handwriting. It is the normal practice that, to
the statements recorded under Section 162 Cr.P.C., which
become dying declaration if the author of the statement
subsequently die, normally signature of the scribe, i.e., station
writer will not be taken. In this case also, the signature of the
station writer is not taken. When PW.22 is the police officer
who has recorded the statement of the deceased and he has
given evidence, there was absolutely no need for citing the
station writer as the witness and to examine him. The
evidence of PW.22 insofar as recording the statement of the
CRL.A.NO.100317/2018
deceased in the hospital and in the presence of the medical
officer is cogent and convincing. In fact, his evidence is
corroborated by the testimony of PW.17 Dr. Rajagopal
Jumavar, the Medical Officer, who was present when Ex.P21
was recorded. Therefore, the non-examination of the writer,
in whose handwriting Ex.P21 was recorded is not fatal to the
case of the prosecution and it would not enure to the benefit
of the accused.
14. The very information elicited through the cross-
examination of PW.22 is corroborated by the FIR. He has
denied the suggestion that, even though he came to know
that the incident occurred accidentally, at the instance of the
brothers of the deceased, he has registered a false complaint
against the accused. It is pertinent to note that, majority of
the witnesses, who are close relatives of the deceased, have
turned hostile and they have supported the accused. Such
being the case, a suggestion made to PW.22 that, at the
instance of the relatives of the deceased, he has registered a
false case is absurd.
CRL.A.NO.100317/2018
15. In fact, in the subsequent dying declaration
recorded by the Taluka Executive Magistrate, which is marked
as Ex.P19, the deceased has given a clean chit to the accused
by stating that, he does not know who was responsible for
causing the burn injuries to him. It appears, after the
deceased was admitted to the hospital, which is the same
hospital where the accused was working, subsequently, he
was prevailed upon either by the accused or his relatives to
spare the accused, since she is having two young children to
take care of. The possibility of being under such pressure, the
deceased giving a clear go-bye to his earlier dying declaration
that the accused has poured kerosene and set him on fire,
cannot be ruled out. In his second dying declaration, which is
recorded by the Taluka Executive Magistrate, the deceased
has not stated that, while sleeping on the cot he accidentally
caught fire by the kerosene lamp which was kept inside the
room where he was sleeping. What he has stated is, while he
was sleeping, suddenly, he caught fire and he immediately ran
out of the house and he was shifted to the hospital. To this
dying declaration also, the deceased has affixed his LTM and it
is identified.
CRL.A.NO.100317/2018
16. Both the dying declaration i.e., Ex.P19, which is
recorded by the Taluka Executive Magistrate and Ex.P21 which
is recorded by the PSI, in the form of complaint, are recorded
in the presence of PW.20 Dr. Rajgopal Udayrao Jumavar.
Before the Court PW.20 has deposed that, on 21.02.2014 in
the early hours, the deceased was brought to the hospital with
the history of burn injuries and the PSI has recorded the
statement of the deceased in his presence and at that time
the deceased was in a fit condition to give statement. He has
identified the endorsement made by him and his signature at
Ex.P21(a). While speaking about the second dying declaration
recorded by the Taluka Executive Magistrate, this witness i.e.,
PW.20, has deposed that, the Taluka Executive Magistrate has
given a requisition at Ex.P18 to ascertain whether the
deceased was in a fit condition to give statement and on the
same letter he has endorsed stating that the statement is
taken in his presence. It is pertinent to note that, Ex.P18 is
the office copy maintained by the Taluka Executive Magistrate
and the original copy of it was given to the Medical Officer and
it will be maintained in the records of the hospital. Therefore,
the copy which was maintained by the Taluka Executive
CRL.A.NO.100317/2018
Magistrate, on which the carbon traced endorsement of the
Medical Officer is forthcoming, is marked as Ex.P18(b).
17. During his cross-examination, PW.20 has stated
that, on 21.02.2014, i.e., from 08:00 pm of 20.02.2014 to
08:00 am on 21.02.2014, he was on duty at the casualty.
The deceased was brought to the hospital at around 11.45 pm
on 20.02.2014 and within one hour he has sent MLC report
and when the Police came, it was around 03.30 to 4.00 am.
He has denied the suggestion that, when the statement of the
deceased was recorded as per Ex.P21, he was not at all
present before the deceased and on the other hand, he was
sitting in his room and there he has made the endorsement.
He has also denied the suggestion that, at the instance of the
Police he is giving false evidence. As a responsible Medical
Officer of the hospital, it cannot be accepted that he would
give false evidence at the instance of the Police, especially
when he is also the Medical Officer, who has endorsed
regarding the fitness condition of the deceased, when Ex.P19
was recorded, which is favouring the accused. The defence
has not at all cross-examined this witness regarding the
CRL.A.NO.100317/2018
fitness of the deceased while giving statement at Ex.P19,
which is favouring the accused.
18. PW.2 Tippanna is the brother of the deceased. His
evidence reveal that the deceased and accused were staying
together and there used to be quarrel between the accused
and the deceased and deceased used to complain to him that
his wife i.e., accused does not listen to him and even though
he did not want his wife to go to work, she continues to work
and for this reason there used to be quarrel between them.
His evidence also reveal that, with regard to the quarrel
between the accused and the deceased, he had advised the
accused and since he did not agree, she went to her parents
house and after about 3-4 days, she came back. His evidence
also establishes the fact that, accused and deceased were
staying in a rented house belonging to one Yallappa Galagali,
who is examined as PW.9. The evidence of PW.9 reveal that,
about 5-6 months prior to his death, deceased and his wife
started living in the house belonging to him as tenants.
19. The evidence of PW.2 Tippanna i.e., the brother of
deceased reveal that, on the date of the incident at around
CRL.A.NO.100317/2018
11:00 p.m., the accused called him over phone and informed
that his brother i.e., deceased is burnt and immediately this
witness alongwith his wife and brother went to the spot and
found that the deceased was sitting in front of the house with
burn injuries and when he enquired him as to how he suffered
the burn injuries, the deceased revealed that, after taking
food, he, his wife and son went to sleep and he was burnt by
pouring oil (referring to kerosene) and when he got up, he
found his wife and son not in the house and the door was
closed and after opening the door, he came out and
neighbours poured water and put out the flames. The evidence
of PW.2 makes it evident that, when he went to the spot and
was making enquiry, the accused was not found and she had
left the place. He has also spoken to about the deceased
reiterating the fact that, it was the accused, who poured
kerosene and set him on fire, while undergoing treatment at
the hospital. Cross-examination of this witness also
establishes the fact that, after the marriage, deceased and
accused were living together, separately from the other
brothers of the deceased. His evidence corroborates the fact
CRL.A.NO.100317/2018
that, after the deceased was admitted to the hospital, the
Police visited the hospital at around 01:30 or 02:00 a.m.
20. PW.5 Rangavva Tippanna Galagali is the wife of
PW.2. She is the sister-in-law of the deceased. Her evidence
also corroborates the evidence of PW.2. She has also spoken
to about the frequent quarrel that used to take place between
the accused and the deceased and that the deceased was not
in favour of accused going to work, but the accused was not
listening to him. She has also deposed that, few days prior to
the incident, the accused quarrelled with the deceased and
went to her mother's place (vÀªÀgÀĪÀÄ£É) and she was brought
back by her husband PW.2 and PW.8 Nagavva. She has
specifically deposed that, after accused returned from her
mother's place (vÀªÀgÀĪÀÄ£É), accused and deceased started
residing in a rented house at Muchakhandi and during this
period also deceased used to complain that the accused
always picking up quarrel with him and she is having an affair
and she was going to work at Kumareshwara Hospital and it
was opposed by the deceased. She has specifically stated that,
at around 11:30 p.m. on the date of the incident, it was the
CRL.A.NO.100317/2018
accused who telephoned her husband i.e., PW.2 and informed
him about the burn injuries sustained by the deceased and
when she alongwith her husband went to the spot, they found
the deceased sitting in front of the house with burn injuries all
over his body and on enquiry, deceased revealed that while he
was sleeping, accused poured kerosene and set him on fire
and as there used to be frequent quarrel, she has burnt him.
PW.5 has specifically stated that when she went to the spot,
the accused was not to be found around. During her cross-
examination, defence has made a suggestion that on the date
of incident, deceased had consumed alcohol and he brought
fish for dinner. This piece of evidence also corroborates the
statement of the deceased at Ex.P21 which has become his
dying declaration after his death.
21. As rightly held by the learned Trial Judge, the
statement of the deceased before PWs.2 and 5 regarding the
cause of the injuries sustained by him stating that the accused
poured kerosene and set him on fire is an oral dying
declaration of the deceased. It is consistent with the
statement given before the Police, as per Ex.P21, based on
which jurisdictional Police have registered the case against the
CRL.A.NO.100317/2018
accused and investigated the matter. The conduct of the
accused in vanishing from the scene of offence after the
relatives and neighbours came to the spot is inconsistent with
her innocence. If at all she was not responsible for commission
of the offence, she could have stayed back and accompanied
the deceased to the hospital. In fact, the evidence of PW.5
that while undergoing treatment, deceased was able to speak
and he was saying that it was the accused, who set him on
fire and after this witness and other witnesses went to the
spot, she has left the home. PW.5 has specifically stated that
since there used to be frequent quarrel, it was the reason for
the accused setting the deceased on fire.
22. PW.6 Keludappa is the brother of the deceased.
Though he has not supported the prosecution case and turned
hostile, during the course of examination-in-chief, he has
stated that he came to know that while the deceased was
sleeping inside the house, he suffered burn injuries and at that
time, his wife and son were present inside the house. This
witness is not cross-examined by the defence with regard to
the presence of the accused inside the house when the
incident took place.
CRL.A.NO.100317/2018
23. PW.9 Yallappa is the owner of the house where the
accused and the deceased were residing as tenants. Though
he has stated that when the incident took place, he was in the
land and as such, he do not know about it, his evidence
establish the fact that about 5 - 6 months prior to the death of
the deceased, he and accused came as tenants and were
residing in the house belonging to this witness. This fact is not
disputed by the defence.
24. PW.15 Shivanand is the son of the deceased and
the accused. When he gave evidence, he was 14 years old.
When the incident took place, he was 11 years old. Before the
Court he has deposed that on the date of the incident,
deceased slept inside the house and he and his mother slept
outside the house and when he got up, he found that his
father had suffered burns inside the house and the neighbours
poured water and extinguished the fire. He has specifically
stated that the deceased set himself on fire which is nobody's
case.
25. As already discussed, before the Trial Court, the
accused has not taken up any defence as to how the deceased
CRL.A.NO.100317/2018
sustained burn injuries and only while arguing in this appeal,
the learned counsel representing the accused made a
submission that it was an accidental fire. The evidence of
PW.15 i.e., the son of the deceased and accused that the
deceased himself set on fire is contrary to this defence trying
to putforth before the Appellate Court. His cross-examination
by the prosecution establish the fact that on the date of the
incident, the deceased has brought fish and the deceased,
accused and their son i.e., this witness had dinner together
and before they went to sleep, there was a quarrel between
the accused and the deceased. His evidence also reveal that
the deceased slept on a cot. However, he has denied that it
was the accused, who poured kerosene and set the deceased
on fire and immediately went outside the house alongwith him
and deceased also followed them. It was quite natural for
PW.15, being the son of the accused and who has already lost
his father to support the accused in order to save her.
However, his evidence prove the fact that on the date of the
incident and at the time of the incident, the accused and
deceased were inside the house alongwith their son and for
the sake of defence, now they are projecting as though the
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accused and her son were sleeping outside the house,
probably to overcome the provisions of Section 106 of
Evidence Act which requires burden of proving fact especially
within the knowledge of the accused. Even where it is
accepted that the accused and her son was sleeping outside
the house, still being the wife of the deceased and one of the
inmates of the house, the accused is not absolved from
disclosing the facts which are within her knowledge.
26. Now coming to the dying declaration at Ex.P21,
which is given at the earliest point of time. It is also to be
seen whether in view of the subsequent dying declaration at
Ex.P19 exonerating the accused, whether Ex.P21 is reliable
and whether reliance to be placed on it to hold that the
accused is responsible for causing the burn injuries resulting in
the death of the deceased.
27. Before appreciating the contents of Ex.P21
wherein the deceased implicate the accused as responsible for
causing the burn injuries sustained by him, it is necessary to
refer to guidelines issued by the Hon'ble Supreme Court in
some of the important judgments as to why as per Section 32
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of the Indian Evidence Act, 1872, a dying declaration is
admissible in spite of being a hearsay evidence and is an
exception to the hearsay evidence and how such statement is
to be appreciated.
28. The Hon'ble Supreme Court in the case of Vikas
and Others Vs State of Maharashtra (2008) 2 SCC 516,
while re-iterating the principles underlying admissibility of
dying declaration, held that the principles are reflected in the
well-known legal maxim; nemo moriturus praesumitur mentire
i.e., a man will not meet his Maker with a lie in his mouth. A
dying man is face to face with his Maker without any motive
for telling a lie. Their Lordships noticed that "Truth" said
Mathew Arnold, "sits upon the lips of a dying man". While
analyzing Clause(1) of Section 32 of the Indian Evidence Act,
it was held that Clause(1) of Section 32 of the Act has been
enacted by the legislature advisedly as a matter of necessity
as an exception to the general rule that "hearsay evidence" is
"no evidence" and the evidence which cannot be tested by
cross-examination of a witness is not admissible in a court of
law. It was further held that requirement of administering oath
and cross-examination of a maker of a statement can be
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dispensed with considering the situation in which such
statement is made, namely, at a time when the person
making the statement is almost dying. Their Lordships in great
detail analyzed the development of law surrounding dying
declaration. It was noticed that in Koli Chunilal Savji
(supra), the Hon'ble Supreme Court has 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. In Ravi Chander Vs State of Punjab (1998)
9 SCC 303, the Hon'ble Supreme Court has held that, in the
absence of any circumstance or material on record to establish
that the Executive Magistrate had any animus against the
person or was in any way interested in fabricating the dying
declaration, it ought to be accepted.
29. Keeping in mind the principles enunciated by the
Hon'ble Supreme Court in the above decisions, now it is to be
examined whether Ex.P21 is the true version of the incident
that took place on 20.02.2014 at 11:30 p.m. resulting in the
deceased suffering burn injuries.
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30. As discussed earlier, the incident has taken place
around 11:30 p.m. and immediately the injured was shifted to
the hospital i.e., Kumareshwara Hospital and PW.20
Dr.Rajagopal Jumavar has attended on him. He has sent
medico legal report to the Police and based on the said
information, PW.22 has visited the hospital and after meeting
the Doctor and getting his opinion that the injured was in a fit
condition to give statement, he has recorded the statement of
the deceased as per Ex.P21 in the presence of the Doctor. In
his statement, the deceased has stated in unequivocal terms
that on the night of the incident, he consumed alcohol and
brought fish to the house and all the three i.e., he, his wife
(accused) and son Shivanand (PW.15) together had dinner
and thereafter he slept inside the house on the cot. He has
specifically stated that his wife i.e., accused and son slept on
the floor inside the house. He has also stated that while he
was asleep, he found his wife pouring kerosene and setting
him on fire and before he could realise, his entire body was on
fire and his wife was present. He came out of the house and
hearing to his cries, the neighbours and others came. He has
specifically stated that, his wife poured kerosene and set him
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on fire with an intention of causing his death and attempted to
commit his murder. The dying declaration of the deceased
that, it is his wife who is responsible for causing the burn
injuries on him is corroborated by the statement of PW.2
Tippanna and PW.5 Rangavva, who came to the spot after
coming to know about the incident through the telephonic
communication made by the accused herself. On enquiry, they
came to know that it was the accused, who poured kerosene
and set the deceased on fire.
31. However, while giving his statement before the
Taluka Executive Magistrate, as per Ex.P19, the deceased has
changed his version saying that he is not able to identify his
assailant and while he was asleep he caught fire. As noted
earlier, it has come on record that the accused was working at
Kumareshwara Hospital, where the deceased was shifted for
treatment. Except PWs.2 and 5, who are the brother and
sister-in-law of the deceased supporting the version of the
deceased, that it was accused who poured kerosene and set
him on fire, the other relatives and neighbours of the
deceased have turned hostile. It appears at the instance of his
relatives, probably thinking that ultimately he would not
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survive, there will be no person to take care of his two young
children, if the accused is also punished and sent to jail, the
deceased has tried to save the accused. The very fact that the
deceased is unable to state, if not by the accused, in what way
he sustained burn injuries itself goes to show that he has been
tutored not to disclose the true facts.
32. The learned counsel representing the accused
during the course of his arguments submitted that the
deceased caught fire on account of the kerosene lamp which
was kept burning inside the house. It is relevant to note that,
Ex.P26 is the photograph of the house of the accused and
deceased where the incident took place, taken during spot
mahazar at Ex.P20. In this photograph, the cot on which the
deceased slept is also shown which is an iron cot. It is not a
wooden cot or a cot made by spinning coir (khatiya or
Charpoy in Hindi) to say that on account of burning of
kerosene lamp, the deceased caught fire. This very fact
falsifies the defence attempted to putforth on behalf of the
accused that it was an accidental fire on account of burning of
kerosene lamp.
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33. PW.11 Dr.Santosh Shivanand Sheelvant has
conducted the postmortem examination of the deceased. He is
working as a Medical Officer at Kumareshwara Hospital at
Bagalkot. He has deposed in detail about the burn injuries
sustained by the deceased and given opinion that the death
was due to the neurogenic shock on account of the burn
injuries sustained by the deceased. At para 9 of his evidence,
when a specific question was put to him as to whether the
injury sustained by the deceased are possible, if kerosene is
poured on a person, who is sleeping and then set on fire, the
witness has answered in the affirmative. Practically the
evidence of this witness has remained uncontroverted. Except
questioning him whether during the postmortem examination,
he smelt of kerosene and the witness has answered in the
negative, this witness is not cross-examined on any other
aspect. It is pertinent to note that immediately after the
incident, the deceased was shifted to the hospital and the
treatment was started. Necessarily the burn injuries will be
treated by applying ointment on the surface of the burns. The
incident has taken place on 20.02.2014. The deceased has
succumbed to the burn injuries on 23.02.2014 at 09:00 a.m.
CRL.A.NO.100317/2018
The postmortem examination is conducted on the same day
i.e., on 23.02.2014 in between 10:00 to 12:40 a.m. By that
time, on account of the treatment being given, there may not
be the smell of kerosene which itself will not falsify the case of
the prosecution. However, the chemical report at Ex.P23 with
regard to the contents of the plastic can and partly burnt
blanket establish the fact that the traces of kerosene found in
both the articles which corroborate the case of the
prosecution. The nature of the injuries sustained by the
deceased and also the traces of kerosene found on the blanket
which the deceased was using are inconsistent with the
defence tried to be putforth at the time of argument before
this Court. When the incident has taken place inside the house
where deceased and accused were the occupants alongwith
their son and allegations are being made against the accused,
she has not come up with any explanation as to how the
incident took place. Under Section 106 of the Indian Evidence
Act, 1872, the accused has not chosen to explain the
circumstances resulting in the deceased sustaining the burn
injuries. After the prosecution has discharged the initial
burden placed on it, the burden shifts on the accused to
CRL.A.NO.100317/2018
explain as to how the deceased came to sustain the burn
injuries. In the absence of accused coming up with any
plausible explanation for the said injuries, there is absolutely
no impediment to accept the case of the prosecution.
34. While answering the questions under Section 313
Cr.P.C., the accused has chosen to deny every piece of
evidence put to her. However, she has given a written
statement stating that on the date of incident, her husband
was sleeping on the cot inside the house, while she and her
son were sleeping outside the house in front of the door and a
kerosene lamp was lit for the purpose of light and at around
11:30 p.m., she woke up hearing the cries of her husband and
found that her husband had caught fire and with the help of
neighbours she tried to extinguish the fire. However, not even
a single suggestion is made to any of the witnesses that the
cause of burn injuries sustained by the deceased was due to
accidental fire on account of the kerosene lamp which was
kept in the house. It appears to be a clear after thought. In
fact, through the son of the deceased i.e., PW.15, who has
turned hostile to the prosecution, a statement is given before
the Court that it is the deceased who set himself on fire. This
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piece of evidence of the son of the deceased and accused i.e.,
PW.15 Shivanand is contrary to the defence of the accused.
This itself goes to show that the son of the deceased was
tutored only to save the accused from the punishment.
35. PW.19 Mahadev Balabatti, Head Constable, who at
the relevant point of time working at the complainant Police
Station i.e., Bagalakote Rural Police Station has assisted the
Investigating Officer by writing the spot mahazar, inquest
mahazar. He has been cross-examined suggesting that to the
house where accused and deceased were living, there is no
electrical connection. Of course, he has denied the said
suggestion. Throughout the accused has not taken up a
contention that there is no electric connection to the house of
the accused and deceased where the incident took place.
Since as an after thought, the accused has taken up a defence
that the deceased suffered burn injuries accidentally with a
kerosene lamp, a suggestion corroborating such defence is
being made to PW.20. No such suggestions are made to other
witnesses including PW.9 Yallappa Laxmappa Galagali owner
of the house where the accused and deceased were living as
tenants. Therefore, the suggestion made to PW.19 Mahadev
CRL.A.NO.100317/2018
Balabatti that there was no electric connection to the house
where the incident took place is not of any consequence.
36. Thus from the above discussion, we have no
hesitation to hold that the earliest version of the dying
declaration as per Ex.P-21 is reliable and acceptable and it
contains the true facts and the said statement is given without
any pressure from anyone. It is corroborated by the testimony
of PWs.2 and 5 before whom the deceased has given his oral
dying declaration regarding the injuries sustained by him
immediately after the incident. On the other hand, Ex.P19
which is a subsequent statement given by the deceased before
the Taluka Executive Magistrate while undergoing treatment at
the Hospital, is an after thought and appears to be tutored to
save the accused from the punishment. Therefore, we reject
Ex.P19, the statement given by the deceased before the
Taluka Executive Magistrate.
37. In support of his arguments, the learned counsel
representing the accused has relied upon the decision of the
Hon'ble Supreme Court reported in (1976) 3 SCC 618 in the
matter of K.Ramachandra Reddy and another Vs. The
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Public Prosecutor, wherein on appreciating the facts therein,
the Hon'ble Supreme Court rejected the dying declaration of
the deceased on the ground that he did not mention the
names of the assailants on the three occasions earlier to the
making of the declaration and the Magistrate, who recorded
the statement has failed to confirm the fitness of the state of
mind of the injured to give the statement and since all the
assailants were not known to the deceased, there was doubt
regarding the identification of the assailants by the deceased.
However, in the present case, the assailant i.e., accused is
none other than the wife of the deceased and both of them
were living in the same house and after having dinner, they
slept in the same house and in the middle of the night, the
deceased sustained burn injuries and therefore there is no
question of deceased not knowing the identity of his assailant.
Therefore, the accused cannot take advantage of this decision
and it is not applicable to the case on hand.
38. The learned counsel representing the accused has
also relied upon the order passed in Criminal Appeal
No.2850/2010 by the learned Single Judge of this Court,
wherein by observing that the dying declaration was recorded
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first and thereafter the Medical Officer has received the
requisition for giving opinion as to the fit condition of the
deceased to give statement and therefore, the dying
declaration was rejected. However, this is not applicable to the
case on hand wherein the dying declaration was recorded in
the presence of the Medical Officer and his very presence
supports the fact that the deceased was in a fit condition to
give statement.
39. The learned counsel representing the accused has
also relied upon the decision of the Hon'ble Supreme Court in
Criminal Appeal No.758/2010 decided on 07.05.2021 reported
in AIR 2021 SC 2399, in the case of Jayamma and another
Vs. State of Karnataka. In this decision, the Hon'ble
Supreme Court observed that, there were endorsement made
by the Police Officer is in a different ink and have been
inserted in between two lines of the dying declaration.
Appreciating the facts and circumstances of the case therein,
the Hon'ble Supreme Court has refused to rely upon such
dying declaration. In the present case, there are no such
insertions or any endorsement which would create doubt as to
the veracity of the statement given by the deceased.
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Therefore, we hold that this decision is also not applicable to
the case on hand.
40. Thus from the above discussion, we hold that the
prosecution has proved the allegations against the accused
beyond reasonable doubt. The dying declaration at Ex.P-21
which is at the earliest in point of time, is corroborated by the
evidence of PWs.2 and 5. From the material on record, it is
also proved that, when the incident took place, alongwith the
deceased, accused was present inside the house and she had
an opportunity to take the extreme step of pouring kerosene
on the deceased and setting him on fire. The defence putforth
by the accused that it was an accidental fire due to the
kerosene lamp kept in the house is not proved and it is
inconsistent with the nature of the injuries sustained by the
deceased.
41. Taking into consideration all these aspects,
minutely examining the oral and documentary evidence placed
on record, the learned Trial Judge has come to a proper
conclusion and it is a well reasoned judgment and we find no
perversity to interfere with the same.
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Consequently, the appeal filed by the accused fails and
accordingly it is dismissed.
During the appeal, the accused was released on bail by
this Court. She shall be taken into custody to undergo the
punishment.
In view of dismissal of the appeal, the trial Court is
directed to secure the presence of the accused to undergo
sentence by issuing conviction warrant.
Sd/-
JUDGE
Sd/-
JUDGE
Rsh/Gab
