Shivanna vs The State By Hullahalli Police
2022 Latest Caselaw 3447 Kant

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                                                           CRL.A No. 1092 of 2018


                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 02ND DAY OF MARCH, 2022

                                            PRESENT

                             THE HON'BLE MR. JUSTICE B. VEERAPPA
                                              AND
                             THE HON'BLE MR. JUSTICE S. RACHAIAH


                               CRIMINAL APPEAL No.1092 OF 2018

                   BETWEEN:
                   1.    SHIVANNA,
                         S/O LATE DODDATHAMMAYYA,
                         AGED 37 YEARS,
                         R/O HARADANAHALLI VILLAGE,
                         NANJANAGUD TALUK,
                         MYSURU DISTRICT-571 301,
                         (NOW IN CENTRAL PRISON, MYSURU)
                         (WRONGLY MENTIONED IN THE
                         JUDGMENT AS DODDATHAMYA)
                                                                    ...APPELLANT
                   (BY SRI. KRISHNAPPA N R., ADVOCATE)
Digitally signed
by MALATESH        AND:
KC
Location: High     1.    THE STATE BY HULLAHALLI POLICE,
Court of
Karnataka                NANJANAGUD TALUK,
                         REPRESENTED BY ITS SPP,
                         HIGH COURT BUILDING,
                         HIGH COURT,
                         BANGALORE-560 001.
                                                                 ...RESPONDENT
                   (BY SRI K. NAGESHWARAPPA, HIGH COURT GOVERNMENT
                   PLEADER)

                                             *****
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                                         CRL.A No. 1092 of 2018


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION DATED
20.04.2018 AND ORDER OF SENTENCE DATED 27.04.2018
PASSED BY THE IV ADDITIONAL SESSIONS JUDGE, MYSURU IN
S.C.NO.78/2013 - CONVICTING THE APPELLANT FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 498A AND 302 OF
IPC.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:


                         JUDGMENT

The accused, who is none other than the husband of the

deceased, filed the present Criminal Appeal against the

judgment of conviction dated 20.04.2018 and order of sentence

dated 27.04.2018 made in S.C.No.78/2013 on the file of the IV

Additional Sessions Judge, Mysuru, sentencing the accused to

undergo imprisonment for life and to pay fine of `5,000/-, in

default, to undergo simple imprisonment for six months for the

offence punishable under Section 302 of the Indian Penal Code;

and to undergo simple imprisonment for three years and to pay

fine of `3,000/-, in default, to undergo simple imprisonment for

three months for the offence punishable under Section 498A of

the Indian Penal Code.

CRL.A No. 1092 of 2018

2. It is the case of the prosecution that based on the

statement of the victim-Ex.P.16 dated 29.11.2012, case was

registered against the accused in Crime No.126/2012 for the

offence punishable under Sections 498A and 307 of the Indian

Penal Code and after the death of the victim on 30.11.2012,

Section 307 was converted into Section 302 of the Indian Penal

Code.

3. It is the case of the prosecution that, the marriage of the

accused-Shivanna with deceased-Devamma was performed

about 15 years prior to the incident and they were living at

Haradanahalli and led happy married life. Out of the wedlock, a

son and a daughter were born named Darshan and Anjali.

Darshan-P.W.1 was residing with his parents and Anjali was

residing with her grand parents. About 2 to 3 years prior to the

date of incident, the accused started to suspect the fidelity of

his wife Devamma and started harassing her physically and

mentally. Though the parents of the deceased convened

panchayath, the accused did not change his attitude. On

29.11.2012, at about 9.00 am, the accused came with

intoxication of alcohol, picked up quarrel with his wife-

Devamma. When their son, P.W.1-Darshan intervened, the

CRL.A No. 1092 of 2018

accused pushed him out of the house and with an intention to

kill Devamma, poured kerosene on her and lit the fire. When

Devamma started screaming due to burn injuries, the

neighbours C.Ws.12 to 15 came and extinguished the fire and

admitted her to K.R. Hospital, Mysuru. Upon receiving the

information, the jurisdiction police came to the hospital and

recorded the statement of the victim on 29.11.2012, as per

Ex.P.16, which subsequently became dying declaration after

the death of said Devamma, on 30.11.2012 at about 1.50 am

in the hospital. Accordingly, the jurisdictional police conducted

investigation and filed the charge sheet against the accused for

the offences punishable under Sections 302 and 498A of the

Indian Penal Code.

4. After the charge-sheet was submitted by the police, the

learned Magistrate took cognizance of the offences and

committed the matter to the Court of Sessions. After receipt of

records from the Committal Court, the learned Sessions Judge

registered the case as S.C.No.78/2013, secured the presence of

the accused, framed the Charge, read it over to the accused in

the language known to him, who pleaded not guilty and

claimed to be tried.

CRL.A No. 1092 of 2018

5. To bring home the guilt of the accused, the prosecution,

in all examined 21 witnesses as P.Ws.1 to 21 and marked the

documents Exs.P.1 to 23 and M.Os.1 to 4. After completion of

the evidence of prosecution witnesses, the statement of the

accused was recorded as contemplated under Section 313 of

the Code of Criminal Procedure explaining all the incriminating

circumstances appearing against him in the evidence of

prosecution witnesses. The accused denied all the

incriminating circumstances made against him and, to question

No.71 as to whether he has anything to say?, he stated that,

'while doing mason work, he sustained injury to his leg and

therefore when he went to the hospital, his wife poured

kerosene on herself, lit the fire and committed suicide. He

further stated that he has not committed any mistake and is

taking treatment in the jail'. The accused has not led any

defence evidence.

6. Based on the aforesaid material on record, the learned

Sessions Judge framed two points for consideration.

Considering both oral and documentary evidence on record, the

learned Sessions Judge answered both the points in the

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affirmative holding that the prosecution proved beyond

reasonable doubt that the accused being husband of deceased-

Devamma, suspected her fidelity and started to give mental

and physical torture. Devamma was subjected to cruelty and

thereby, committed an offence punishable under Section 498A

of the Indian Penal Code. Further, the prosecution proved

beyond reasonable doubt that on 29.11.2012, at about 9.00

am, accused with intoxication of alcohol, with an intention to

kill his wife-Devamma, pulled his son out of house, poured

kerosene on Devamma and lit the fire, due to which, Devamma

sustained severe burn injuries and died in the hospital, and

thereby, accused committed an offence punishable under

Section 302 of the Indian Penal Code. Accordingly, the learned

Sessions Judge, by the impugned judgment of conviction and

order of sentence, convicted the accused for the offence

punishable under Sections 302 and 498A of the Indian Penal

Code. Hence, the present Appeal is filed by the Appellant/

accused.

7. We have heard the learned counsel for the parties.

CRL.A No. 1092 of 2018

8. Sri N.R.Krishnappa, learned counsel for the appellant/

accused contended with vehemence that, the impugned

judgment of conviction and order of sentence passed by the

learned Sessions Judge is erroneous, contrary to the material

on record, cannot be sustained and is liable to be set-aside. He

further contended that the learned Sessions Judge committed

an error in convicting the accused mainly on the basis of the

evidence of P.W.1-Darshan, who is none other than the son of

the accused and deceased aged about 12 years on the date of

the incident and 15 years as on the date of recording of his

evidence. P.W.1 is not the complainant. The incident occurred

on 29.11.2012 at about 9.00 am, whereas, statement of P.W.1

was recorded by the police on 25.12.2012, after lapse of 26

days from the date of the incident. There are no eye witnesses

to the incident. Therefore, benefit of doubt has to be given to

the accused. He further contended that the postmortem

report-Ex.P.11 depicts that deceased Devamma sustained 95%

burn injuries and therefore, it is impossible to record her

statement as per Ex.P.16 and it is created only for the purpose

of implicating the accused. The learned Sessions Judge failed

to notice the evidence of P.W.4-Laxmi, P.W.5-Rajanna, P.W.6-

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Mallajaiah, P.W.7-Vykunta, P.W.8-Prasada and P.W.9-Mallesha,

who have not supported the case of the prosecution and turned

hostile. Therefore, the learned Sessions Judge ought to have

acquitted the accused.

9. The learned counsel further contended that there are no

eye witnesses to the incident which took place in a residential

area. During Trial, P.W.1 was treated as eye witness and

based on the evidence of P.W.1 and P.W.19 who recorded the

dying declaration, the learned Sessions Judge passed the

impugned judgment of conviction and order of sentence and

the same cannot be sustained. He further contended that, it is

not the case of the prosecution that the appellant was

demanding dowry. Most of the witnesses have turned hostile.

Absolutely there is no material against the accused. When

Ex.P.16-dying declaration was recorded, the victim was not in a

fit state of mind. The learned Sessions Judge blindly proceeded

to convict the accused and therefore, sought to allow the

Appeal. Alternatively, learned counsel contended that it is not

the case to award extreme punishment of imprisonment for life

as the unfortunate incident has happened when the accused

was under the influence of alcohol and was not in a position to

CRL.A No. 1092 of 2018

understand what he was doing. Therefore, the benefit of doubt

has to be given and utmost, accused can be convicted for the

offence punishable under Section 304 Part I of the Indian Penal

Code. Therefore, sought to allow the Criminal Appeal.

10. Per contra, Sri K.Nageshwarappa, learned High Court

Government Pleader, while justifying the impugned judgment

of conviction and order of sentence passed by the learned

Sessions Judge, contended that Ex.P.16-statement of deceased

Devamma dated 29.11.2012 was recorded when she was in fit

state of mind. Accordingly, the jurisdictional police registered a

case in Crime No.126/2012 for the offence punishable under

Sections 307 and 498A of the Indian Penal Code. P.W.19-

Krishnanayaka, head constable who recorded the statement of

the victim in the hospital has deposed on oath that the victim

was capable of giving statement. P.W.13-Dr.S.S.Prakash, in

whose presence the statement of the victim was recorded has

deposed that the victim was in fit state of mind while recording

her statement. He further contended that P.W.1-Darshan, son

of the accused and deceased is the eye witness to the incident.

If the evidence of P.W.1, P.W.13, P.W.19 and dying

declaration-Ex.P.16 are read together, it clearly depicts the

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involvement of the accused in the homicidal death of the

deceased. He further contended that the learned Sessions

Judge, considering both oral and documentary evidence on

record, has rightly convicted the accused for the offence

punishable under Sections 302 and 498A of the Indian Penal

Code. The appellant has not made out any ground to interfere

with the impugned judgment of conviction and order of

sentence in exercise of powers under Section 374(2) of the

Code of Criminal Procedure and therefore, sought to dismiss

the Criminal Appeal.

11. In view of the rival contentions urged by learned counsel

for both the parties, the only point that would arise for our

consideration is:

"Whether the Appellant/accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offences punishable under Sections 302 and 498A of the Indian Penal Code?"

12. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

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perused the entire material on record including original records

carefully.

13. This Court being the Appellate Court, it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon.

(i) P.W.1-Darshan, deposed on oath that accused and deceased are his father and mother and he is residing with them. His elder sister- Anjali is residing with grand parents at Sagara village. His father used suspect that his mother is having illicit relationship with some other person and therefore, used to quarrel with her every day and used to assault her. Inspite of advise given by his grand parents, his father did not change his attitude and used to assault his mother. On 29.11.2012, morning when he was getting ready to go to school, his father-accused came home with intoxication of alcohol and assaulted his mother. When he intervened, the accused pushed him out of the house, poured kerosene on his mother and lit the fire. Seeing the same he started to scream. The neighbours i.e., P.Ws.7, 8 and 9 came to the house, extinguished the fire and shifted his mother-Devamma to K.R.Hospital, Mysuru. Thereafter, he informed his grand father regarding the incident. On 30.11.2012 at about

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1.00 pm, his mother died in K.R.Hospital. He identified M.Os.1, 2, 3 and 4. He specifically denied the suggestion that on the date of the incident when quarrel took place between his father and mother, he was not in the house. He denied the suggestion that at the time of the incident he had been to the shop to bring pen by taking `10/- from his mother. He further denied the suggestion that his father has not poured kerosene on his mother and not lit the fire. He admitted that P.Ws.7 and 8 extinguished the fire when his mother was in flame. His elder uncle brought the ambulance and shifted his mother to the hospital. P.W.1 supported the case of the prosecution and nothing has been elicited in his cross-examination to disprove the case of the prosecution.

(ii) P.W.2-Madaiah, father of deceased Devamma deposed that his daughter was given in marriage to the accused and out of the wedlock two children were born viz., Darshan and Anjali. Anjali was residing with them at Sagara village. His daughter Devamma was residing with her husband and son. In the cross-examination he has deposed that when he went to the hospital, Devamma informed him about the assault and

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harassment meted out to her by the accused. He was treated as hostile.

(iii) P.W.3-Venkatachaluvaiah, relative of the deceased deposed that on 30.11.2012, police came to the house of the accused as Devamma was murdered. Mahazar was drawn. Three match sticks, fire wood, saree pieces were recovered. Ex.P.1 was drawn. P.W.3 supported the case of the prosecution.

(iv) P.W.4-Laxmi, P.W.5-Rajanna, P.W.6- Mallajaiah, P.W.7-Vykunta, P.W.8-Prasada, and P.W.9-Mallesha, deposed that they know both accused and deceased and that they have two children. They do not know regarding the quarrel between accused and deceased, and turned hostile.

(v) P.W.10-Devamma, mother of the deceased deposed about the marriage of her daughter with the accused and out of the wedlock they have two children. She further deposed that the accused was addicted to alcohol and under the influence of alcohol, used to harass his daughter by suspecting her fidelity, and supported the prosecution case.

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(vi) P.W.11-Kumari Anjali, daughter of the accused and deceased and sister of P.W.1 deposed that she was residing with her grand parents. She came to know that her father used to suspect the character of her mother. She was not in talking terms with her father-accused. On the date of the incident, she has given the statement before the police. She deposed that she spoke to her mother (deceased) in the hospital. In the cross-examination, she denied the suggestion that in the hospital her mother was not in a position to give statement. She admitted that her mother was in ICU. She deposed that she has not informed the police that her father used to abuse and assault her mother under the influence of alcohol. She denied the suggestion that as her mother was suffering from mental illness, she poured kerosene on herself, lit the fire and committed suicide. She further denied the suggestion that she is deposing before the Court as tutored by her grand parents and she is giving false statement. She also denied the suggestion that her father was not the cause for her mother's death. P.W.11 supported the case of the prosecution.

(vii) P.W.12-Dr.Shanmugha, Chief Medical Officer, K.R.Hospital, Mysuru, deposed that on

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29.11.2012 at about 11.30 am, Devamma was admitted to the hospital by one Krishna alleging that the husband of the victim poured kerosene on the victim and lit the fire at 8.30 am, and supported the prosecution case.

(viii) P.W.13-Dr.Prakash, Medical Officer, K.R.Hospital, Mysuru, deposed that he has been working as Assistant Professor in the Surgery Division. When he was on duty on 29.11.2012, P.W-19-Krishnanayaka, Head Constable, Hullahalli Police Station, sought to examine whether the victim is in a position to give statement. After examining the victim, as she was in a fit state to give statement, he endorsed on the Memo-Ex.P.15 to the effect that, Patient is in fit condition to give statement, Patient is conscious and oriented. Accordingly, in his presence, P.W.19 recorded the statement of the victim as per Ex.P.16. In the cross-examination he denied the suggestion that since the victim had suffered 100% burn injuries, she was not in a position to give statement. P.W.13 supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.

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(ix) P.W.14-Basappa, neighbour, deposed that accused and deceased are husband and wife and they used to quarrel, but he has not conducted any panchayath. He was treated as hostile.

(x) P.W.15-Rajesha, villager, deposed that he does not know how Devamma died. He was treated as hostile.

(xi) P.W.16-Doddaswamy and P.W.17-Somesha, villagers deposed that they know the accused, deceased and their children and they have not scene the incident. They were treated as hostile.

(xii) P.W.18-Jayakumara, PSI, deposed that on 29.11.2012, he received the information from K.R.Hospital, Mysuru, that Devamma is admitted with burn injuries. The statement of the victim was recorded and a case was registered in Crime No.126/2012 for the offences punishable under Sections 307 and 498A of the Indian Penal Code. He conducted partial investigation and supported the case of the prosecution.

(xiii) P.W.19-Krishnanayaka, Head Constable, deposed upon receiving information from K.R.Hospital on 29.11.2012, he informed the same to the Inspector. Thereafter, he was

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directed to visit the hospital and record the statement of the victim. Accordingly, he recorded the statement of the victim as per Ex.P.16 after getting fitness certificate from the doctor. He identified the signature on the said document. Nothing has been elicited in the cross- examination to disbelieve his statement that he recorded the dying declaration. The witness supported the case of the prosecution.

(xiv) P.W.20-G.S.Raghu, Police Inspector and Investigating Officer conducted the investigation and filed the charge sheet against the accused and supported the case of the prosecution.

(xv) P.W.21-Dr.Mohan, Professor and Head, Burn Injuries Division, K.R.Hospital, Mysuru, deposed that when the victim was admitted on 29.11.2012 she had sustained 95 to 99% burn injuries. While recording the statement, victim was in conscious state of mind and thereafter, she died on 30.11.2012. P.W.21 supported the case of the prosecution. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.

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Based on the aforesaid material on record, the learned

Sessions Judge proceeded to convict the accused for the

offences stated supra.

14. The entire case of the prosecution revolves around the

statement of the victim-Ex.P.16 recorded on 29.11.2012 by

P.W.19-Head Constable in the presence of Dr.S.S.Prakash-

P.W.13, who examined the victim and certified that Patient is in

fit condition to give statement, conscious and oriented. After

the death of the victim on 30.11.2012, the statement recorded

as per Ex.P.16 became dying declaration. In Ex.P.16, the

victim has specifically stated that her marriage with the

accused was performed 12 years back and out of the wedlock

two children were born viz., Darshan and Anjali. They lived

together happily for about 2 to 3 years. Later, accused got

addicted to alcohol. Everyday he started to abuse and assault

her under the influence of alcohol and started to suspect her

fidelity. Therefore, P.W.17-Somesha, P.W.14-Basappa and

P.W.6-Mallajaiah, advised the accused. Thereafter, for about

four months accused stopped consuming alcohol. But, on

28.11.2012, as usual she went to coolie work at 6.30 am.

When she returned home at 6.30 pm, her husband-accused,

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under the influence of alcohol abused and assaulted her. On

29.11.2012 at about 9.00 am again with intoxication of alcohol,

the accused assaulted her, pushed her son out of the house,

and poured kerosene on her and lit the fire. Then he went out

of the house and started to scream. At that time, villagers viz.,

Prasad, Vaikunta and others came and extinguished the fire.

She became unconscious. When she got conscious she came to

know that she was in hospital. Her brother-in-law/Mallesh

shifted her in 108 Ambulance and admitted her to the hospital

and therefore, prayed to take action against the accused who

set her on fire.

15. The statement of the accused-Ex.P.16, which, later

became the dying declaration is corroborated with the evidence

of P.W.1 who is none other than the minor son of the accused

and deceased. P.W.1 has stated on oath that everyday his

father used to consume alcohol and assault his mother saying

that she has illicit relationship with some other person. The

said fact was intimated to his grand mother by his mother. The

villagers had advised his father. For few days his father

behaved properly and later again started to harass his mother.

His grand parents, along with C.Ws.4, 10 and 11 convened

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Panchayath and advised his father. But again his father started

to consume alcohol and assault his mother. On 29.11.2012 at

about 8.30 am when he was getting ready to go to school, his

father picked up quarrel with his mother, assaulted her, pushed

him out of the house, poured kerosene on his mother and lit

the fire. At that time, he was screaming loudly. The

neighbours i.e., Prasada-P.W.8 and Vaikunta-P.W.7 came to

the rescue of his mother and extinguished the fire. His uncle

shifted his mother to the hospital in 108 ambulance and she

died in the hospital on 30.11.2012. He further deposed on oath

that his father, suspecting the fidelity of his mother, everyday,

used to abuse and assault his mother with intoxication of

alcohol. He identified M.Os.1 to 4.

16. In the cross-examination, P.W.1 specifically stated that

his elder sister Anjali was residing along with grand mother and

he was residing with his parents. He denied the suggestion

that at the time of the incident, he took `10/- from his mother

and had been to shop to bring pen. He further denied the

suggestion that his father has not quarreled with his mother

and has not set her on fire. He admitted that P.Ws.7, 8 and 9

came to the spot and extinguished the fire. He denied the

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suggestion that he is deposing before the Court as tutored by

his grand parents.

17. The evidence of P.W.1-Darshan, aged about 15 years who

narrated the incident has remained unshaken in the cross-

examination. The evidence of P.W.1 is corroborated by the

dying declaration-EX.P.16. P.W.11-Anajali, daughter of the

deceased and sister of P.W.1 has deposed that when she came

to the hospital, her mother informed her that the accused

poured kerosene on her and lit the fire. In the cross-

examination, P.W.11 denied the suggestion that at the time of

recording the statement-Ex.P.16, her mother was not in fit

state of mind. She also denied the suggestion that no body

were allowed inside the emergency ward. She denied the

suggestion that since she was residing with her grand parents,

she is not aware of the fact that her father used to abuse and

assault her mother. She denied the suggestion that since her

mother was mentally ill, she committed suicide by pouring

kerosene and setting herself on fire. Nothing has been elicited

in the cross-examination of P.W.11 to disbelieve the case of the

prosecution.

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18. P.W.13-Dr.Prakash, has deposed that after examining the

victim in the hospital on 29.11.2012 at about 4.15 pm, he

issued fitness certificate and P.W.19-Head Constable recorded

the statement of the victim as per Ex.P.16. In the cross-

examination, he denied the suggestion that the victim was not

conscious and was not in a position to give statement as she

had suffered 100% burn injuries. He also denied the

suggestion that he has not at all examined the victim. He

denied the suggestion that the thumb impression found on

Ex.P.16 is not that of the victim and since the victim had

sustained severe burn injuries there was no accuracy and

clarity in her statement. Therefore she was injected with

medicine to sleep. He deposed that he cannot say as to which

part of the body had sustained burn injuries. The victim had

not suffered septicemia. To the suggestion that a person with

burn injuries will not be in a position to speak since the smoke

will enter the throat, the witness deposed that, it was not so in

the case of the present victim. To the suggestion that, since

the patient had suffered 99% burn injuries she was unable to

speak due to acute renal failure, the witness deposed that the

victim had not suffered acute renal failure. He also deposed

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that it is false to suggest that since the victim had suffered

deep burn injuries, she was not in a position to speak. He

deposed that the statement of the victim was recorded 10

hours after sustaining burn injuries and at that time her

condition was critical. He further deposed that, it is false to

suggest that since he is a cancer surgeon, he cannot say about

the mental status of the victim. The evidence of the doctor-

P.W.13 is unshaken.

19. P.W.19-Sri Krishnanayaka, Head Constable, who recorded

the statement of the victim in the hospital in the presence of

P.W.13-Dr.Prakash, deposed that after the fitness certificate

issued by the Doctor, statement of the victim was recorded as

per Ex.P.16. He deposed that the statement was recorded for a

period of 40 minutes. Nothing has been elicited in the cross-

examination to disbelieve the case of the prosecution.

20. The material on record clearly depicts that on the date of

the incident the accused was present along with the deceased

and P.W.1, son of the accused is the eye witness to the

incident. In view of the above, when the prosecution

discharged the initial burden, it is the duty of the accused to

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offer explanation as to how his wife died, in view of the

provisions of Section 106 of the Indian Evidence Act. Very

curiously, to question No.71 posed while recording statement

under Section 313 of the Code of Criminal Procedure, the

accused took the plea of alibi stating that he had been to the

hospital to take treatment as his leg was injured while he was

working as mason and his wife committed suicide.

21. Once the plea of alibi is taken, duty is cast upon the

accused to prove that he was not present at the scene of

offence, as provided under Section 103 of the Indian Evidence

Act, as held by the Hon'ble Supreme Court in the case of State

of Haryana vs. Sher Singh and others reported in AIR

1981 SC 1021 paragraph4 which reads as under:

"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

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22. The material on record clearly depicts that the accused

was very much present in the house at the time of the offence.

Though learned counsel for the appellant tried to persuade the

Court that immediately after the incident, accused went out

and screamed for help, he is not in a position to answer that if

the accused was in the house what prevented him to extinguish

the fire and take his wife to the hospital and lodge complaint

with the police. The accused has taken inconsistent defence

and thereby has not offered any explanation whatsoever,

therefore, leaves no doubt for the conclusion of his being the

assailant of the deceased, as held by the Hon'ble Supreme

Court in the case of Kalu v. State of M.P.1, paragraphs 11 to

16 which reads as under:

11. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor

(2019) 10 SCC 211

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after bringing her down but did not bother to inform anyone living near him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW 3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313 CrPC.

12. The occurrence had taken place in the rural environment in the middle of the month of October when it gets dark early. Normally in a rural environment people return home after dusk and life begins early with dawn. It is strange that the appellant did not return home the whole night and was taken into custody on 21-10-1994.

13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant

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that there had been an intruder in the house at night. In Hanumant v. State of M.P. AIR 1952 SC 343 : 1953 Cri LJ 129 , it was observed: (AIR pp. 345-46, para 10)

"10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

14. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra (2012) 10 SCC 373 : (2013) 1 SCC (Cri) 193, this Court observed: (SCC pp. 381-82, para 23)

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"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by

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virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p.

393, para 38)

'38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [Shambu Nath Mehra v. State of Ajmer, 1956 SCR 199 : AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus: (AIR p. 406, para 11) "11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section

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106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially"

within the knowledge of the accused and which he could prove without difficulty or inconvenience.

The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."

15. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: (SCC pp. 690-91 & 694, paras 14-15 & 22)

"14. If an offence takes place inside the privacy of a house and in such

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circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.

(See Stirland v. Director            of        Public
Prosecutions [Stirland v. Director                  of

Public Prosecutions, 1944 AC 315 (HL)]

-- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [State of Punjab v. Karnail Singh, (2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading,

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having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

'(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.'

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

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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.

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

16. In view of our conclusion that the prosecution has clearly established a prima facie

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case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 CrPC with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.

23. It is relevant to state at this stage that the evidence of

drunkenness which renders the accused incapable of forming

the specific intent essential to constitute the crime should be

taken into account with the other facts proved in order to

determine whether or not he had the intention. Merely

establishing that accused mind was affected by drink so that he

more readily gave way to some violent passion, does not rebut

the presumption that a man intends the natural consequences

of his acts. The said plea of drunkenness has to be rejected in

view of the categorical material evidence i.e., Ex.P.16-dying

declaration, evidence of P.W.1-son of the accused and

deceased, P.W.11- daughter of the accused and deceased, and

P.W.13-Dr.S.S.Prakash and P.W.19-Krishnanayaka, Head

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Constable who recorded the statement of the victim in the

hospital that the accused committed a brutal and diabolic act.

24. It is also not in dispute that the statement of the victim

was recorded on 29.11.2012 in the hospital and she died on

30.11.2012. The victim has specifically stated that her

husband-accused used to suspect her fidelity and quarrel with

her. He used to abuse and assault her. On the date of the

incident, the accused poured kerosene on her and lit the fire.

The statement of the victim as per Ex.P.16 was recorded by

P.W.19-Police Head Constable, when she was in sound state of

mind, as deposed by the doctor-P.W.13, who issued the fitness

certificate. The juristic theory regarding acceptability of a

dying declaration is that such declaration is made in extremity,

when the party is at the point of death and when every hope of

this world is gone, when every motive to falsehood is silenced,

and the man is induced by the most powerful consideration to

speak only truth. Admittedly, the victim who is none other

than the wife of the accused made statement on the deathbed

which is a situation so solemn and serene, is the reason in law

to accept the veracity of her statement. The statement of the

victim/deceased is corroborated by the oral evidence as well as

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medical evidence, especially Ex.P.11-postmortem report,

wherein the external injuries are shown to be second and third

degree burns over scalp, face, neck, front and back of chest,

both upper limbs, whole back both lower limbs. The lower

portion of abdomen, genitals and soles of feet were spared.

Cuticle over burnt areas was blackened and peeled off exposing

red underlying tissue and it was opined that the cause of death

was due to shock as a result of burns sustained.

25. Though learned counsel for the appellant/accused

contended that, when the deceased/victim sustained 90 to 95%

burn injuries, she will not be in a condition to make statement

and therefore, Ex.P.16 cannot be believed, the said contention

cannot be accepted for the simple reason that the Doctor who

examined the victim has given the certificate that the victim

was in fit and sound state of mind and accordingly her

statement was recorded by P.W.19-Police Head Constable, who

has deposed on oath that the victim was in fit state of mind

while recording her statement in the hospital. Nothing has

been elicited in the evidence of prosecution witnesses to

disprove the same.

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26. The Hon'ble Supreme Court, while considering similar

circumstance of 100% burn injuries, in case of Purshottam

Chopra v. State (NCT of Delhi)2 at paragraphs 25.2 and

25.3, held as under:

25.2. Another emphasis laid on behalf of the appellants is on the fact that the victim Sher Singh had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating. It is, therefore, contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement. The submissions do not make out a case for interference. As laid down in Vijay Pal case [Vijay Pal v. State (NCT of Delhi), (2015) 4 SCC 749 : (2015) 2 SCC (Cri) 733] and reiterated in Bhagwan case [Bhagwan v. State of Maharashtra, (2019) 8 SCC 95 : (2019) 3 SCC (Cri) 289] , the extent of burn injuries -- going beyond 92% and even to 100% -- would not, by itself, lead to a conclusion that victim of such burn injuries may not be in a position to make the statement. Irrespective of the extent and gravity of burn injuries, when the doctor had certified him to be in fit state of mind to make the statement; and the person recording the statement was also satisfied

(2020) 11 SCC 489

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about his fitness for making such statement; and when there does not appear any inherent or apparent defect, in our view, the dying declaration cannot be discarded.

25.3. Contra to what has been argued on behalf of the appellants, we are of the view that the juristic theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying declaration. As noticed, there could still be some inherent defect [ As had been in Dalip Singh case, (1979) 4 SCC 332 : 1979 SCC (Cri) 968 : AIR 1979 SC 1173] for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. Suffice would be to observe to present purpose that merely for 100% burn injuries, it cannot be said that the victim was

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incapable to make a statement which could be acted upon as dying declaration.

27. On re-appreciation of the entire material on record, we

are of the opinion that the learned Sessions Judge is justified in

convicting the accused for the offences punishable under

Sections 302 and 498A of the Indian Penal Code. The material

on record clearly depicts that the accused and deceased are

husband and wife and they led happy marital life for 12 years.

Out of the wedlock, two children were born, named Darshan

and Anjali. Later, the accused started suspecting the fidelity of

the deceased and started to abuse and assault her. On the

unfortunate date, the accused picked up quarrel with the

deceased, poured kerosene on her and lit the fire in the

presence of their son-P.W.1, due to which, she died in the

hospital.

28. For the reasons stated above, the point raised for

consideration in the present Criminal Appeal is answered in the

negative holding that the appellant/accused has not made out

any ground to interfere with the impugned judgment of

conviction and order of sentence convicting him for the offences

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punishable under Sections 302 and 498A of the Indian Penal

Code, and the same is in accordance with law.

29. In view of the above, we pass the following:

ORDER

(i) The Criminal Appeal is hereby dismissed.

(ii) The judgment of conviction dated 20.04.2018 and order of sentence dated 27.04.2018 made in S.C.No.78/2013 on the file of the IV Additional Sessions Judge, Mysuru, is hereby confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

kcm