Dhenya Naik, Sb Halya Naik v. State

extinguishing fire she removed her clothes and poured water, and her hue and cry attracted P.W3-Smt. Tara Bai (who is accused sister’s daughter), residing nearby to the house of accused; she opened the door and extinguished fire on her; on 4 enquiry, the victim narrated about the incident and she also informed the neighbours and her brother P.W-1/Kumar Naik, when he and others came to the house of the accused; in an ambulance to the C G Hospital. Casualty took her Medical Officer sent MLC report to the Police. On receipt of the the victim’s son, daughter, mother and others information, came to the Hospital and the victim narrated about incident to them. On receipt of the MLC report, Davanagere Rural Police came to the Hospital; after obtaining consent of the Medical Officer, P.W-24 recorded statement of the victim and returned to the Police station and registered a case; dispatched FIR and also sent a requisition to Taluka Executive Magistrate, Davanagere, for recording dying declaration of the Accordingly, Taluka Executive Magistrate/P.W-27 victim. visited the Hospital; and after obtaining consent of the Medical During the Officer, he recorded statement of the victim. course of investigation, the Investigating Officer recorded relatives of statement of close succumbed to burn injuries on 23.1.2007 at 7.30 am. The accused was arrested on 5.3.2007. Charge sheet was filed the victim. The victim against the accused for the offence under Section 498-A and Section 302 of I P C. Accused has denied the charges levelled against the accused. The prosecution went to trial by examining as many as 27 witnesses, got marked 18 documents and 7 Material Objects. Statement of the accused under Section 313 of Cr. P C, was recorded. Accused has denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. He has not adduced defence evidence. The trial Court, after hearing arguments and perusing evidence and material on record, came to a conclusion that the prosecution brought home the guilt to the accused for the offence under Section 302 of I P C and acquitted the accused for the offence under Section 498-A of I P C. The trial Court, after hearing the accused on the point of sentence, awarded punishment of imprisonment for life and pay fine of 1,000/-, in default in payment of fine, he shall undergo imprisonment for 3 months for the offence under Section 302 of I P C. This is impugned in this Appeal. 6

4. Learned Counsel appearing for the appellant has urged the following grounds: (I) (ii) (iii) (iv) victim>; that there is no satisfactory evidence on record to connect the accused at the scene of crime; that the trial Court erred in not properly appreciating the evidence of P.W-12 (mother P.W-16 (daughter of the deceased) and P.W 20/Parameshwara Naika (neighbour of the accused), to hold that when the victim sustained burn accused had gone to Bharmasagara Village children and he came to know about the incident on the next day through P.W1; along with injuries, festival trial Court appreciating the evidence elicited in the cross examination of prosecution witnesses in favour of the accused; the trial Court erred in placing reliance on the evidence of P.W-12 (mother of the victim); RW-13 (brother 7 of the victim) and P.W-19 (relative of the deceased>; (v) that the victim was not in a position to make any statement on account of extensive burn injuries sustained by her and that the dying declaration of the victim cannot be relied upon; (vi) the trial Court has committed serious error in convicting the accused for the offence under Section 302 of I P C though there is no cogent satisfactory evidence; and (vii) that even if the case of prosecution is accepted as true, incident occurred on account of sudden and grave provocation, the offence would fall under Section 304 Part-Il of I P C. Learned Counsel for the appellant submits that the impugned judgment may be set aside and the accused may be acquitted for the offence with which he was charged.

5. On the other hand, learned AddI. S P P, Sri P M Nawaz, submits the trial Court, on proper appreciation of 8 evidence, has reached the conclusion that the prosecution has brought home the guilt to the accused for the offence under Section 302 of I P C beyond all reasonable doubt and there is no good ground to interfere with the impugned judgment in convicting the accused for the offence under Section 302 of I P C and the act of the accused would not fall under Section 304 Part-Il of I P C.

6. In view of the arguments addressed by the learned Counsel the parties, the only point that arises for consideration is: Whether the impugned judgment calls for interference?

7. Our answer to the above point is in the negative for the following reasons: The deceased and the accused were residing at Aalurahatti Village, Davanagere Taluk. The motive attributed to the accused is that as his wife-Lalitha Bai refused to give 9 money for drinking and gambling, he poured kerosene on her on 19.1.2007 at 7.30 p m and set her ablaze and bolted the door from outside and ran away. P.W-2/jagadish and P.W 3/Smt. Tara Bai, who are accused sister’s children supposed to speak about harassment and hearing cries of the victim after she was set on ablaze and extinguishing fire and informing P.W-1 (brother of the victim), but they have not supported the case of prosecution. P.W-14/Santhoshal Naika, P.W-16/Kum. Kavitha are the son and daughter of the victim and the accused, but they too have turned hostile to prosecution. P.W 15/Sakranaika, neighbour of the accused, who supposed to speak with regard to harassment, hearing cries and going to the house of the victim at 8.00 p m on that day of incident and talking to her, also did not support the case of prosecution. P.W-17/Omkara Naika, resident of the village of the accused, supposed to speak about pouring kerosene by the accused on his wife; hearing galata from the house of accused on

19.1.2007 at 7.30 p m; rushing to the house of the accused and setting her ablaze, but he did not support the case of prosecution. P.W-20/Parameshwara Naika, resident of 10 village of the accused, after he came to know about incident he went to the house of the accused and enquired about the incident with the victim, but he has not supported the case of prosecution. P.W-21/Obanaika, who is also a resident of the village of the accused, supposed to speak that he has seen the accused going towards the bus stand on

19.1.2007 at about 7.40 p m after the incident, he did not support the case of prosecution. Thus, the evidence of P.Ws.2,3,14 to 17, 20 and 21 as well as spot mahazar witnesses P.Ws.8 and 9, seizure of the clothes deceased, have not supported the case of prosecution. According to the medical record, wife of the accused sustained 65% to 70% of burn injuries. P.W-1/brother of the deceased Lalita Bai, has deposed that sister-Lalita Bai narrated about the incident and she was admitted to Hospital. He has further deposed that after he came to know about the incident, his relative-P.W-l3lVenkatesha Naik and P.W-19/Lingamuthaiah came to the house of the deceased. P.W1, P.W13 and P.W19 have supported the case of prosecution with regard to their coming to the house of the victim and hearing about :11 incident and taking the victim to the Hospital and her making oral dying declaration. The incident occurred on 19.1.2007 at about 7.30 p m. She died in the Hospital on 23.1.2007 at

7.00 a m. Thus, the victim was alive for a period of more than 4 days. There is no eye witness supporting the case of prosecution with reference to the incident. P.W-24 is the PS1, who registered a case on the basis of the complaint lodged by P.W-1. P.W-25 Police Constable has deposed that he apprehended the accused and produced him before the Investigating Officer on 5.3.2007. P.W-11/Dr. Tulasi Naik has deposed that on 19.1.2007 at about 10.30 p m, when he was in the casualty, the victim-Lalita Bai was brought by P.W 2/Kumara Naik and others with history of burns stating that her husband poured kerosene and set her ablaze on that day at about 7.15 p m. It is stated that history of assault was obtained by P.W-11 from the victim-Lalita Bai. He has noticed lacerated wound on the lower limb measuring 1/2 cm x 1/2 cm with bleeding present and sent MLC report. It is in evidence that the lacerated wound noticed on the victim was possible by a tip of chopper-M.0-1. P.W1 has denied the suggestion in 12 the cross-examination that the patient did not give history of injury as mentioned in the MLC register and the history was given by Kumar Naik. He has also denied the suggestion that MO-i would not cause lacerated wound as noticed on the victim. P.W-1/the complainant (brother of the victim) has deposed that on 19.1.2007 at about 8.00 p m, P.W-2/jagadish and P.W-3/Tara Bai contacted him over mobile and informed him that accused assaulted his sister-Lalitha Bai and poured kerosene on her body and set her ablaze and left her closing door from outside. It is in his evidence that on receipt of the information, he and his brother-P.W-13 and relative-P.W-19 came to the house of the accused and saw the victim. Though P.Ws.1, 12,13 and 19 were cross-examined by the defence, nothing worthwhile was elicited in their cross-examination to disbelieve their testimony. In para-13 of the impugned judgment, the trial Court has discussed about his evidence and held that the victim-Lalitha was brought to the Hospital and admitted by P.W-1 and it was corroborated by Medical Officer-P.W11. The trial Court has further observed that merely because P.W1 / younger brother 13 victim/deceased, his evidence cannot be discarded. As per the Hospital case sheet at Ex.P20, the victim was brought to the Hospital at 10.50 p m on 19.1.2007. From the deposition of P.W-12/mother of the deceased, time of P.W1 leaving the house cannot be a good ground to disbelieve the case of prosecution, which is supported by Hospital records. It is also the evidence of P.W1 and his mother that after the information was received about the incident, P.W1 left the house on a motor cycle and thereafter, P.W12-mother and other relatives followed P.W1 and P.W19. In the instant case, from oral dying declaration made by the deceased before P.W-10, there are two more dying declarations viz., one made by the deceased before the PSI as per Ex.P18 and another as per Ex.P-11 before Taluka Executive Magistrate. It contended that dying declaration made before P.Ws.1,13, 19 and 12 shall not be accepted on the ground that they are interested and close relatives of the deceased, but dying declaration at Ex.P8 recorded by PSI and Ex.P11 by Taluka Executive Magistrate cannot be rejected. In our view, there is no impediment to base conviction on the dying 14 declarations. Ex.P18 is the dying declaration of the deceased recorded by PSI, Rural Police, Davanagere. He has stated that on 19.1.2007 at about

1.30 p m, after he received the information about the MLC case, he went to the Hospital and recorded her statement as per Ex.P18. With regard to the mental condition of the victim is concerned, Dr. Shantha Hosamani/P.W18 has certified that the victim was conscious and in a fit condition to give a statement. P.W-23 is the scribe (Police Constable-Varadaraj), who wrote Ex.P18. Ex.P18(a) and (b) are certificate and signature of the Medical Officer. Ex.P18(c) is the LTM of the victim. Nothing worthwhile is elicited in the cross-examination of P.W-24/Honnappa, PSI, who registered the case on the basis of the statement of the victim and it was part and parcel of FIR submitted to the Court. FIR reached the learned Magistrate on 20th of June 2007. Since the dying declaration of the victim at Ex.P18 reached the learned Magistrate along with FIR and the Medical Officer has opined that the victim was in a condition to make a statement, there is no good ground to reject Ex.P18. The contention of the defence that Ex.P18 was not the statement of the victim 15 and it was created at the instance of P.W-1 by obtaining an endorsement of the Medical Officer. At this stage, is useful to refer to the MLC register pertaining to the case of the victim. The victim was examined in the casualty ward on 19.1.2007 at

10.30 p m. Further, the name and signature of P.W1 also appears in the MLC extract (xerox) at Ex.P12. As against history of assault, it is mentioned as “supplementary to deep burn by kerosene poured by her husband on 19.1.2007 at 7.15 in her village. Ex.P20 is the case sheet pertaining to the case of the deceased as maintained in Chitigeri District Hospital at Davangere. The Medical notes with history of illness made on

20.1.2007 at 12.40 a m, (vide Ex.P20) reveals that the patient was conscious, well oriented and able to give statement. The contention of the learned Counsel for the accused that all the fingers were burnt and therefore the victim could not have subscribed her LTM is not correct as there is no material placed on record to show that the left thumb was burnt. There were injuries to the left thumb of the victim. The dying declaration recorded by P.W10/Taluka Executive Magistrate is at Ex.P11. Ex.P11(a) is the LTM of the victim-Lalitha Bai. 16 Ex.P11(b) is the certificate issued by the Medical Officer with seal and signature of Medical Officer (P.W1O). P.W1O/Dr. Vimal Raj has deposed that victim was conscious and she was in a condition to give statement and accordingly she gave statement as per Ex.P11. Ex.P11(b) and Ex.P11(c) are the signatures of P.W10. In our view, there is no good ground to reject the above evidence, which connects the accused with crime.

8. Learned Counsel for the appellant/accused moved heaven and earth contending that children of the accused viz., son and daughter have deposed that at the time of incident, the accused was not present in the village; there is no direct evidence to connect the accused with the alleged offence and there are omissions and contradictions case of prosecution. There bound to be omissions and contradictions. In the instant case, there is no major omissions and contradictions disbelieve prosecution. Admittedly, Lalitha Bai-wife of the accused died unnatural death on account of burn injuries sustained by her, for which 17 the accused alone is responsible. There is a ring of truth in the case of prosecution. All the grounds urged by the learned Counsel for the appellant/accused fails to the ground and there is no good ground to interfere with the impugned judgment.

9. in the result, Appeal fails and the same is hereby dismissed. Sd/ JUDGE Sd/ Bjs