Karnataka High Court

Illyasahamad S/O Babusab ... vs The State Of Karantaka on 14 July, 2022

Bench: K.S.Mudagal, M.G.S. Kamal

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                                     CRL.A No. 100268 of 2020


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 14TH DAY OF JULY, 2022

                          PRESENT
        THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                              AND
           THE HON'BLE MR JUSTICE M.G.S. KAMAL
       CRIMINAL APPEAL NO. 100268 OF 2020 (C)
BETWEEN:

ILLYASAHAMAD S/O BABUSAB SHIRALLI
AGE: 40 YEARS, OCC: MECHANIC,
R/O: CHIKKERUR KUMBAR ONI,
TQ: HIREKERUR, DIST: HAVERI 582109.
                                                  ...APPELLANT
(BY SRI.K.M.SHIRALLI, ADV.)

AND:

THE STATE OF KARANTAKA
BY PSI OF HAUNSBHAVI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD 580012.
                                                ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION PASSED IN S.C. NO.32/2016 DATED 07.01.2020, BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI
SITTING AT RANEBENNUR FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 323, 498A, 504, 302 OF IPC AND ACQUIT THE
APPELLANT/ACCUSED NO.1 OF THE OFFENCES WHICH HE HAS BEEN
CONVICTED AND SENTENCED.

      THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING ON
28.06.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY M.G.S.KAMAL J.,
DELIVERED THE FOLLOWING:
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                                     CRL.A No. 100268 of 2020


                          JUDGMENT

Present appeal by the appellant-accused No.1 being

aggrieved by the judgment and order dated 07.01.2020 passed

in S.C. No.32/2016 on the file of the II Addl. District and

Sessions Judge, Haveri, sitting at Ranebennur (hereinafter

referred to as "trial Court" for short) by which acquitting

accused No.3, the trial Court convicted appellant-accused No.1

for the offences punishable under Sections 323, 498A, 302 and

504 read with Section 34 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC" for short) and sentenced him;

a) to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- for the offence punishable under Section 323 of IPC and in default to pay the fine amount, to undergo simple imprisonment for 15 days.

b) to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1,000/- for the offence punishable under Section 498A of IPC and in default to pay the fine amount, to undergo rigorous imprisonment for six months.

c) to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence punishable under Section 504 of IPC and in default to pay the fine amount, to undergo simple imprisonment for one month.

d) to undergo life imprisonment and to pay fine of Rs.5,000/- for the offence punishable under

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Section 302 of IPC and in default to pay the fine amount, to undergo rigorous imprisonment for five years days.

BRIEF FACTS

2. The case of the prosecution is that the accused

No.1 is the husband and accused Nos.2 and 3 are the parents-

in-law of deceased-Sahera Banu. The marriage of accused No.1

and deceased-Sahera Banu was solemnized about four years

prior to the date of the incident at Chikkerur Village. Accused

No.1 and the deceased initially lived happily for a period of six

months. Thereafter, the accused persons started to harass the

deceased with abusive and filthy language and also suspecting

her fidelity. Accused No.1 and the deceased started to live

separately. That on 06.12.2005 at about 05:00 p.m., accused

No.1 demanded money for consumption of alcohol. On refusal

by the deceased, the accused No.1 abused and assaulted her.

At about 08:00 p.m., on the same day, accused No.1 again

picked up quarrel with the deceased and poured kerosene and

set her ablaze with an intention to kill her. The deceased was

admitted to C.G.Hospital, Davanagere and later on 12.12.2015

she succumbed to the injuries. After the investigation, the

Police filed the charge sheet against the accused persons for

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the offences punishable under Sections 323, 498A, 302 and

504 read with Section 34 of IPC. The prosecution examined 29

witnesses as PW1 to PW29 and marked 41 documents as

Exs.P1 to P41 and produced four material objects as MO1 to

MO4.

3. Accused No.2 stated to have passed away during

the pendency of the matter. The proceeding against him stood

abated. Statement of accused Nos.1 and 3 under Section 313

of Cr.P.C. was recorded in which they denied the incriminating

evidence produced against them. The accused examined one

Dr.Seetharam, Chigateri Hospital, Davanagere as DW1 and

produced two documents marked as Exs.D1 and D2. The trial

Court after appreciation of evidence, by the impugned

judgment and order, acquitted accused No.3 and convicted and

sentenced accused No.1 to undergo the imprisonment as

above.

4. Sri.K.M.Shiralli, learned counsel for the appellant-

accused No.1 reiterating the grounds urged in the

memorandum of appeal submitted that the impugned judgment

and order convicting the accused No.1 is on the basis of

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testimony of the interested witnesses whose evidence suffer

from serious infirmities. That the entire case of the prosecution

is based on the dying declaration at Ex.P32 which cannot be

relied upon as the deceased was not in fit state of mind to give

such declaration. That there are other serious infirmities in the

alleged dying declaration making it unsafe to rely upon. That in

Ex.D1, the medical records furnished by the accused refers to

"h/o burn injuries due to bursting of lamp". This document

belies the entire case of the prosecution as the same had come

into existence at an undisputed point of time. That the accused

Nos.1 and 2 being the husband and father-in-law of the

deceased were in the hospital which proves their bona fides and

innocence. That the FIR was registered based on the said

complaint cum dying declaration. That PW25-Tahasildar did not

record the statement of the deceased as he found the deceased

not in fit condition. Hence sought for allowing of the appeal.

5. Sri.V.M.Banakar, learned Additional State Public

Prosecutor justifying the judgment and order passed submitted

that the dying declaration of the deceased was recorded while

she was conscious, alert and in fit state of mind. Even the

document at Ex.D1 produced by the accused reflect the entries

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to the effect that the deceased was conscious till her death.

That there are no inconsistencies or infirmity in the dying

declaration and the same satisfies the test of law laid down by

the Apex Court. Even otherwise, the prosecution has

established the case beyond reasonable doubt. That the

accused was under an obligation to explain the circumstances

which were within his knowledge as contemplated under

Section 106 of the Indian Evidence Act. That no grounds have

been made out warranting interference. Hence sought for

dismissal of the appeal.

6. Heard the learned counsel for the parties. Perused

the records. The point that arise for consideration is:

"Whether on the facts and in the circumstances, the trial Court is justified in passing the judgment and order convicting and sentencing the appellant-accused No.1 for the offences punishable under Sections 323, 498A, 302 and 504 read with Section 34 of IPC?"

CAUSE OF DEATH:

7. PW23-Dr.G.M.Mohankumar conducted the

postmortem of the dead body of the victim and has deposed

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referring to postmortem report at Ex.P34 which contains the

details of examination as under:

"the dead body is that of a female, measuring 165 cms in length, moderately built, hospital dressing is present in the lower part of the legs with IV kanula in the left ankle. Eyes are closed, cornea hazy on both sides. Postmortem staining is difficult to appreciate.

The body is burnt as depicted in the diagram in page No.3. Scalp with scalp hairs and soles of both foot are speared with burn injuries. Burnt injuries are dermoepidermal constituting 95% body surface area burnt. Epidermies peeled at almost all places where there are burnt injuries exposing cherry red coloured derman part with yellowish base and slippery in nature."

The cause of the death is shown as a result of

septicaemic shock and toxaemic complications consequent

upon burn injuries sustained.

The said witness in the cross-examination has stated that

he needs to refer to the IP records to see the nature of

treatment given to the deceased and her response to the

treatment to see if she was in a condition to talk.

8. From the above deposition of PW23, it is clear that

the deceased died as a result of burn injuries sustained by her.

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The next question requires to be considered is whether the

accused No.1 was responsible for causing burn injuries

resulting in death of the deceased. In this regard, the

prosecution has relied upon complaint cum dying declaration of

the deceased to establish the guilt of the accused. Therefore, at

the outset, we deem it appropriate to evaluate the said piece of

evidence produced by the prosecution.

COMPLAINT CUM DYING DECLARATION:

9. Complaint is at Ex.P32 given by the deceased

herself on 07.12.2015. The contents of the complaint are

extracted hereunder:

"a) That the deceased and accused are married since four years blessed with two children namely Ayesha, aged 4 years and Daval Malik, aged 2 years. That the deceased was living with her husband, father-in- law-Babu Sab, mother-in-law-Abidabi and younger sister of her husband-Salma Banu. Initially the aforesaid persons were cordial with the deceased and thereafter without any reason they started harassing her by suspecting her fidelity and were using abusive and filthy language. That she had informed about the same to her parents. That after the Bakrid festival in the year 2013, her father alongwith one Lokappa Lamani, Mehaboob Sab Sheikh Sanadi, Tirukappa had come to Chikkerur and

CRL.A No. 100268 of 2020

advised the accused persons to take care of the deceased and not to harass her. However, the accused persons continued to harass the deceased.

b) That about a month ago, her father-in-law, mother-in-law and sister-in-law had asked deceased, her husband and their children to go separate and accordingly they were residing in a rented house. Even then, the accused was suspecting and assaulting the deceased.

c) That on 06.12.2015 at about 07:00 p.m., the accused demanded Rs.100/- to consume alcohol and on her refusal, he assaulted her and went out. At about 08:00 p.m., accused returned home and abusing her with filthy language and declaring that he would finish her, poured kerosene and set her ablaze. On her screaming, the neighbours namely Abdul Khadri Mulla and Sadiq Ahamed came and doused the fire. Thereafter, ambulance was called in which she alongwith her husband and the father-in-law had come to hospital. Hence she sought for initiation of action in the matter."

10. The said compliant is at Ex.P32 in which thumb

impression of the deceased is shown. The said complaint has

been recorded in the presence of PW21-Dr.H.Nagaraj, who has

affixed his signature, marked at Ex.P32(a). Signature of Head

Constable Sri.S.M.Angadi, who recorded the statement is

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marked as Ex.P32(b). In the endorsement made on the said

complaint, it is seen that the same has been recorded between

02:15 to 03:15 hours in the presence of the Medical Officer.

11. Based on the aforesaid complaint, FIR was

registered as per Ex.P39 on 07.12.2015 at 07:45 p.m. The FIR

has been dispatched to the Magistrate at 08:45 p.m.

12. PW21-Dr.H.Nagaraj in his deposition has stated that

he received the requisition as per Ex.P30 from the Police

Station, Haunsbhavi to give his opinion if the deceased was in a

fit condition to give a statement. His signature of the said

requisition is identified and marked as Ex.P30(a). The said

witness has stated that he examined the injured Sahera Banu

at about 02:00 p.m. and she was awake and conscious was

answering to all the questions. She was not given any sleeping

tablets or injection at that time. She was understanding the

questions and was answering accordingly and he has given

certificate in that regard as per Ex.P31. His signature thereon is

Ex.P31(a). After the said certificate, the Police recorded her

statement in his presence as per Ex.P32 and he has identified

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his signature Ex.P32(a). That the deceased was awake and

conscious at the time of giving the statement.

13. In the cross-examination, the said witness has

stated that he was in emergency ward at 01:45 p.m. when he

received the requisition. That the said emergency ward is

situated about 10 meters away from the burns' ward, that he is

working as psychiatrist in C.G.Hospital, Davanagere. He has

further deposed that he has not entered in the case sheet or in

the treatment chart that the injured was in a fit condition to

give statement and that she was neither given any injection nor

any tablet. Similarly he has not mentioned about the Police

recording the statement in the case sheet or the treatment

chart. That except Exs.P30 and P32, there are no other

documents with regard to recording of the statement of the

deceased and regarding her condition to give such statement.

That he has not mentioned in Ex.P31, the extent of burn

injuries. He admits that 90 to 95% burn is a serious condition,

but denied the suggestion that no patient would be left without

sedative or pain killer injections even after six hours of the

admission to the hospital. He has further deposed that the

statement of the injured was recorded by the Police. That there

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CRL.A No. 100268 of 2020

is no mention in Ex.P32 regarding recording of the statement of

the injured by the Police. That there is no mention in Ex.P31

regarding the injured answering to his questions or with regard

to her pulse rate and B.P. Several suggestions have been made

to the said witness about his duty in emergency ward between

2 to 03:15 p.m. Nothing has been elicited to discredit the

evidence of the said witness with regard to the mental

condition of the deceased to give the statement.

14. PW24-S.M.Angadi, the Head Constable, who

recorded the statement of the deceased at Ex.P32 has stated

that on 17.12.2015 he visited the hospital in Davangere

between 12:00 to 12:30 p.m. The said witness has referred to

the MLC sent from the C.G. Hospital, Haunsbhavi to the Police

Station as per Ex.P35 and his signature is identified as

Ex.P35(a). He has further stated that the injured was admitted

into emergency ward and she was in a talking condition. That

he visited the office of the Tahasildar, Davangere and

requested him to record her statement as she was in a talking

condition to which, the Tahasildar had sent them away by

stating that he had some emergent work and he would record

her statement later. The copy of requisition given to the

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Tahasildar is at Ex.P36 and his signature is marked as

Ex.P36(a). That the said requisition was given at 01:00 p.m.

That after returning to the C.G. Hospital, he had requested the

doctor at the hospital to assist in recording the statement of

injured as per Ex.P30 and his signature thereon is marked as

Ex.P30(b). That the doctor enquired with the injured regarding

the injuries and thereafter certified that she was in a fit

condition to give statement as per Ex.P31 and his signature is

found at Ex.P31(b). He has further stated that he recorded the

statement of the injured in the presence of the doctor between

02:15 to 03:15 p.m. After reading over the same to the

injured, she affixed her thumb impression on the said

statement which is already marked as Ex.P32 and his signature

thereon is marked as Ex.P32(b). He has further stated about

the registration of the case in Crime No.163/2015 at about

07:45 p.m.

15. In the cross examination, the said witness has

stated that when he came to the station at 08:00 a.m. he was

informed about receipt of MLC from C.G. Hospital and was

asked to obtain the statement. He doest not remember who

had brought the MLC from the hospital and who had received

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the same. That he left the station at about 08:30 a.m. and

reached Davangere C.G. Hospital at about 12:15 p.m. and he

first visited the patient in the emergency ward. He has not

given any requisition in the emergency ward. That he went to

the Tahasildar Office, Davangere at 01:00 p.m. which is at a

distance of about 4 to 5 kms., that he has not produced any

documents regarding the Tahasildar stating about his busy

schedule. That he gave the requisition to the Tahasildar at

about 01:45 p.m. but he has not mentioned the time. That

there is no mention regarding the timings of recording of the

statement at page 2 of Ex.P32 and also with regard to the

condition of the injured being conscious and in talking state.

Several suggestions of denial have been made by the defence

counsel including suggestion of creating of Exs.P30 to P32.

Except this nothing has been elicited from the said witness,

regarding the process of recording the statement of the victim

and her mental condition.

16. It is also relevant at this juncture to refer to Ex.D1,

the case sheet produced by the accused in his defence which

consists of 13 pages maintained between 12:45 a.m. of

07.12.2015 to 05:15 p.m. of 12.12.2015. At page 3 of the said

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document, there is a reference as "A/H/O-accidental burns due

to bursting of kerosene lamp at 8 pm on 06.12.2015 at her

residence, Kumbarahalli".

17. At page 7, there is High Risk Consent Form which

contains the following:

"I/WE-the attenders have been explained the condition of the patient i.e., 100% superficial to deep burns and the complication associated with the condition like hypo-volenic shock septicemic shock, RF aspiration and even death in the best known language.

I/WE have been explained the need for ventilator support need for higher antibiotics and the facilities available in the hospitals and elsewhere.

I/WE shall not hold responsible the doctors or the hospital staff for any untoward consequences to the patient during the course in the hospital.

         Sd/-                                    Sd/-
      (Babasaheb)                             (Sikkansab)
      Father-in-law                           Father"

Ex.D1 also consists of Doctor's follow up sheets dated

08.12.2015, 09.12.2015, 10.12.2015, 11.12.2015 and

12.12.2015 in which there is a continuous mentioning as

"conscious and oriented".

18. From the deposition of PW21 and PW24 and the

documents produced and marked through them, it is clear that

the deceased was conscious and alert from the movement of

her admission to the hospital on 07.12.2015 till her death on

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12.12.2015. It is necessary to note that despite deceased

suffering 90 to 95% burn injuries, she survived for about five

days and as noted above was conscious and oriented

throughout.

19. PW25-Manjunath Ballary, was the Tahasildar of

Davangere Taluk at the relevant point of time. He has spoken

about receiving the requisition from the Haunsbhavi Police

Station as per Ex.P36 and the original of the said requisition is

marked as E.P37 and his signature is shown as Ex.P37(a). He

has further stated that he visited the hospital at 09:00 p.m.

and with the assistance of staff nurse, he went near the injured

and enquired with her but she did not reply to any of his

questions as she had slipped into unconsciousness. Therefore,

he had issued a letter at Ex.P38 addressed to the Assistant

Commissioner of Police, Haunsbhavi Police Station informing

that he had visited the injured to record the statement but she

was not in a condition to give any information. That thereafter

on 12.12.2015 he received information from the Police

regarding the death of the deceased as she did not respond to

the treatment and visited the Chigateri Hospital Mortuary on

13.12.2015 and conducted the inquest in the presence of

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Hyderalisab-CW2, Hazaratsab-CW3 and Smt.Haseenabanu-CW4

which is as per Ex.P1. That he recorded the statement of

Sikandarsab-PW6, Meharoonbi-PW7, Shafiulla-PW8 who had

stated that the deceased was subjected to physical and mental

harassment by the accused who was addicted to alcohol and

who was suspecting the fidelity of the deceased and that on

06.12.2015 at 08:00 p.m. he had set her ablaze by pouring

kerosene.

20. In the cross examination, the said witness has

stated that he had received the requisition at Ex.P36 and 37

from the Police at about 01:00 pm. That he has not mentioned

therein regarding his inability to go due to his emergent work,

but he had informed orally. The rest of the suggestions made

are of denial.

21. Learned counsel for the appellant vehemently

submitted that in view of the deposition of Tahalsidar-PW25,

regarding the injured not being in fit condition to give the

statement, the reliance placed on Ex.P32-complaint-dying

declaration by the prosecution is illegal and contrary to settled

position of law. He further submitted that Ex.P32 does not

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contain the time at which it was recorded. That since injured

had sustained 90% of burn injuries and in the light of the

evidence of PW25, it has to be inferred that she was not in a fit

condition to given such statement. That since admittedly the

statement was recorded by PW24-Head Constable, there is

every possibility of the same being tutored/doctored version

made to implicate the accused who is an innocent person. He

relied upon the judgment of Apex Court in the case of State

(Government of NCT of Delhi) vs. Nitin Gunwant Shah

reported in 2015 AIAR (Criminal) 1060, wherein at

paragraph 15, the Apex Court has stated that the statement as

to death must be made by person himself and if any

discrepancy arises, the same cannot be relied upon. He referred

to another judgment of the Apex Court in the case of P.Mani v.

State of Tamil Nadu reported in 2006 (2) KCCR 1202

wherein the Apex Court at paragraph 14 has held as under:

"14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to

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whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused. Thus he submits that dying declaration at Ex.P2 having intrinsic defects recorded under the suspicious circumstances cannot be the basis for convicting the accused that since the entire case of the prosecution is based on the said dying declaration which is an inadmissible document under the circumstances, the accused is entitled to be acquitted."

22. There is no dispute with regard to the principles of

law laid down in the aforesaid judgments by the Apex Court,

but in the facts and circumstances of the instant case, there is

nothing to suspect or doubt with regard to the correctness of

the dying declaration. Further, as could be seen from the

deposition of PW6, PW7 and PW8 who are the parents and the

brother-in-law of the deceased to whom deceased had

personally informed about the accused pouring kerosene and

setting her ablaze, would corroborate the evidence of the

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prosecution with regard to the condition of the deceased to give

statement and the contents of the dying declaration at Ex.P32.

23. The Apex Court in the case of Purshottam Chopra

and another vs. State (Govt. of NCT Delhi) reported in AIR

2020 SC 476, accepting the dying declaration of a deceased

suffering 100% deep burn injuries at paragraph 21 has held as

under:

"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

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v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement

vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

24. In the instant case, as noted above, PW21-Doctor

has certified that the condition of the deceased as per Ex.P31

and has affixed his signature marked as Ex.P32(a) and has

deposed before the Court regarding his presence while

recording the statement of the deceased. Nothing is elicited or

established by the defence to disbelieve his version. Similarly,

PW24-Head Constable, who recorded the complaint/dying

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declaration at Ex.P32 has stood the test of cross-examination.

Nothing has been brought on record to disbelieve or doubt his

version. In the light of the law laid down by the Apex Court in

Purshottam Chopra (supra), we are of the considered view

that the dying declaration at Ex.P32 has been established and

can be accepted.

25. As already noted hereinabove, even from the

contents of Ex.D1, produced by the accused in his defence,

there is mention about deceased being "conscious and

oriented" throughout. As regard the mentioning of "h/o.

accidental burns due to bursting of kerosene lamp at 08:00

p.m. on 06.12.2015 at her resident, Kumbarahalli", the counsel

for the accused insisted that the said statement was given by

the deceased herself at the time of her admission. This

submission has two implication. If this submission is

considered, it is clear that the deceased was conscious at the

time of admission which belies the case of the accused of

deceased being not in fit condition to give any statement. On

the other hand, it is also the case of the defence that accused

Nos.1 and 2 being husband and father-in-law of the deceased

got her admitted to the hospital. As rightly taken note of by the

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trial Court, there is every possibility of accused giving such

information to the hospital authorities at the time of admission.

Though no such charge is made against the accused in this

regard, it can be presumed that the information regarding the

admission of the deceased was given by persons who got her

admitted in the hospital. No mention in any of the hospital

records as to the persons who brought the deceased to the

hospital and who got her admitted into the hospital. However,

as noted earlier in the High Risk Consent Form, there is a

signature of accused No.2-the father-in-law of the deceased.

From this it can be inferred that he was present at the time of

admission of the deceased to the hospital. Though the said

form also base a purported signature of the father of the

deceased-PW6, in his evidence and cross-examination, he has

specifically denied his signature or his presence at the time of

admission of the deceased into the hospital. Therefore, reliance

on the said endorsement in the Ex.D1 regarding history of

accidental burn injuries cannot be countenanced.

26. Another aspect of the matter is that according to

the defence, deceased sustained burn injuries due to bursting

of the lamp while filling kerosene therein. In the spot mahazar

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and in the recovery of material objects from the spot as per

Ex.P4, there is no reference or mention with regard to any lamp

found at the spot. It is also beyond the comprehension that an

ordinary lamp, if any would burst into flame causing 90 to 95%

of burn injuries, as sought to be made out by the accused.

From this it can be inferred that the said entry in the hospital

records must have been at the instance of the accused Nos.1

and 2.

EVIDENCE OF OTHER WITNESSES:

27. Further, the evidence of other witnesses namely

PW6, PW7 and PW8 being the father, mother and the brother in

law of the deceased have deposed consistently with regard to

the events leading up to death of the deceased.

28. PW6-Sikandarsab in his evidence has stated that on

03.04.2011, he conducted the marriage of the deceased with

the accused at his place in Lingdevarakoppa. That after the

marriage, deceased stayed with the accused, his parents and

family members. After six months of the marriage, accused

started suspecting the fidelity of the deceased and was

harassing her in alcoholic condition. That the deceased had

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informed him about the torture by the accused. that he had

taken the elders of the house of the accused for conciliation in

which, the accused had assured to mend his ways but within a

month thereafter he again started to harass the deceased. That

after six months prior to the incident, the deceased and the

accused were staying separately. That on 06.12.2015, at about

8 pm accused had set the deceased ablaze on a quarrel. That

he received the information at 10:00 p.m. from the relatives of

the accused and he along with his wife, and others went to the

hospital at 03:00 a.m. On enquiry, the deceased had narrated

the incident to him and also the accused pouring kerosene and

setting her ablaze. In the cross examination, it is suggested

that the first accused and the deceased were staying in

Chikkakerur for about six months of their marriage, thereafter,

deceased and the accused stayed in Lingadevarakoppa where

he was carrying on motorcycle garage business near the bus

stand to which the witness has stated that they stayed only for

a month. He has admitted that deceased and the accused were

staying in the house of Lokappa Lamani-CW17 and that the

deceased had given birth to her first daughter in the said

house. He has admitted that by the time he went to the

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hospital, deceased was under treatment and accused No.1 and

2 were present. He has stated that when the deceased was in

hospital, she has spoken to him. That he, his wife, daughter

and the deceased were in the hospital up to 12.12.2015 that

between 07.12.2015 to 12.12.2015 deceased was talking but

was not eating any food. That on 08.12.2015, 09.12.2015,

10.12.2015, 11.12.2015 police had visited the hospital and the

deceased had spoken to the police. That the Police had taken

her statement to which the deceased had affixed her signature

and the treating Doctor has also spoken to the deceased. He

has denied the suggestion that when the deceased was taken

to the hospital initially she has stated that she suffered burn

injuries accidentally by spilling of kerosene from the lamp. He

has denied the suggestion that at the time of admission, he and

accused No.2 had signed the admission records. He has denied

his signature. He has denied the suggestion that on 07.12.2015

he and his people had assaulted accused Nos.1 and 2 and sent

them away from the hospital and thereafter they had influenced

the Police to file a false case against the accused Nos.1, 2 and

3. The rest of the suggestions are denial.

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29. PW7 is the mother of the deceased. Who has

spoken about the mental and physical harassment meted out to

the deceased by the accused and the abusive language used

against her which was informed to her by the deceased. She

has also spoken about the panchayat being conducted to advise

the accused. she has spoken about accused pouring kerosene

and setting her ablaze on a quarrel for Rs.100/-. She has

spoken about the statement she gave before the Tahasildar.

She has also deposed about her daughter been alive for 6 days

in the hospital and about her daughter talking.

30. PW8 is the brother in law of the deceased who has

also spoken about the harassment, quarrel and pouring of

kerosene by the accused on the deceased. In the cross-

examination, he has denied the suggestion that the deceased

was not in a fit condition to give any statement. He has stated

that the deceased was talking in the afternoon of the day when

she was admitted to the hospital and till her death she was

talking. That the deceased had informed him about the accused

demanding Rs.100/- to consume alcohol and quarreling with

her and later setting her ablaze by pouring kerosene.

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31. The evidence of these three witnesses PW6, PW7

and PW8 with regard to the harassment meted out by the

accused, with regard to panchayat conducted to advice the

accused and with regard to deceased informing them about the

quarrel and accused setting her ablaze has been consistent.

Nothing has been elicited to discredit their evidence in this

regard. Though these witnesses have not seen the incident, but

have spoken about the circumstances before the incident and

the condition of the deceased subsequent to the incident.

32. PW1, PW2 and PW3 are the inquest panchas. PW4

is a witness to the spot panchanama at Ex.P4. The Police have

seized four material objects namely, a)1 yellow colour can, b)1

white colour can, c)1 match box with some sticks, d)1 half

burnt bed sheet as per Ex.P4. PW4 has stated that he along

with PW5 were present while drawing the panchanama at Ex.P4

he identified the signature at Ex.P4(a) and four photographs at

Exs.P5 to P8. The said witness turned hostile. In the cross-

examination by the Public Prosecutor, the said witness has

stated that on 08.12.2015, at about 10:30 a.m., the Police had

come to the place of accused No.1, but he pleads ignorance

about the place of incident. He admits that the Police had

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recovered MO1 and MO2 from the namaz room of the accused.

He denied preparation of the sketch of the spot but he admits

his signature thereon which is marked at EX.P1(a).

33. PW5 is another panch witness who has stated that

the police had come to the house of the accused No.1 at about

10:00 a.m. and took him to the house of the accused No.1.

that the accused No.1 was with the Police. He admits his

signature on the panchanama Ex.P4. The said witness identified

MO1 and MO2 and the photographs Exs.P5 to 8. He turned

hostile. In the cross-examination of Public Prosecutor, he has

admitted that accused No.1 had shown MO1 and MO2 and the

Police seized MO1 to MO3 in his presence. He however states

Police took signature on the blank paper.

34. PW9 is the grandfather of the accused No.1 and

stated that the deceased had poured kerosene on herself and

set ablaze. The said witness turned hostile and has not

supported the case of the prosecution.

35. PW10 Abdulkhadar is the owner of the house in

which the accused and the deceased were residing. He has

admitted that accused no.1 and the deceased were residing in

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his house but pleads ignorance the reason for their moving into

his house. He states that he learnt about deceased suffering

burn injuries accidentally while pouring kerosene oil but he has

not seen. The said witness has turned hostile and has not

supported the case of the prosecution.

36. PW11 and PW13 are the relatives and PW12, PW14

and PW15 are the neighbours of the accused who have turned

hostile and have not supported the case of the prosecution. It

is quite expected of them to have supported the accused

considering their relationship and proximity.

37. PW16 is from the Lingadevarkoppa. He has spoken

about advising the accused not to harass the deceased. The

said witness has been treated partly hostile. In the cross-

examination by the Public Prosecutor , the said witness has

supported the case of the prosecution.

38. PW18 is another witness from Lingadevarakoppa,

who has spoken about advising the accused. The said witness

has been treated partly hostile and in the cross-examination of

the Public Prosecutor, he has supported the case of the

prosecution.

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39. The official witnesses namely PW19, PW20, PW21,

PW22, PW26, PW28 and PW29 have supported the case of the

prosecution.

40. Counsel for the appellant has vehemently submitted

that since all the witness except the witnesses from

Lingadevarakoppa have turned hostile and have not supported

the case of the prosecution and there is no corroboration of the

evidence, thereby the prosecution has failed to prove the case

beyond reasonable doubt.

41. It is not in dispute that on the date of incident, the

accused No.1 and the deceased were staying together in the

rented house belonging to PW10. It is also not in dispute that

accused was present at the spot when the incident took place.

Though, the accused has sought to putforth a case of deceased

getting burn injuries accidentally while pouring the kerosene

into the lamp, has however, not able to establish the said fact.

In the spot panchanama, at Ex.P4, there is no mention with

regard to any lamp or burst pieces of lamp available at the

spot. Since the incident had taken place in the house of the

accused and in his presence, the burden is on the accused to

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prove the facts which are expected to be within his exclusive

personal knowledge as contemplated under Section 106 of the

Indian Evidence Act.

42. The Apex Court in the case of Trimukh Maroti

Kirkan vs. State of Maharashtra (2006)10 SCC 681 at

paragraph 15 has held as under:

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

43. The accused has not disputed his presence at the

spot. In fact, according to the accused, he and his father

brought the injured to the hospital and were present

throughout the treatment in the hospital. It was therefore,

incumbent upon the accused to have given acceptable

explanation regarding the cause of the death. The accused not

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having discharged the burden, an inference could be drawn

regarding his complicity in the crime.

44. The trial Court has taken into consideration all

these aspects of the matter while passing the impugned