Karnataka High Court
Gundappa Yelsangi S/O Hanmanth ... vs The State Through Revoor Ps on 3 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3553/2013
Between:
Gundappa Yelsangi S/o Hanmanth Yelsangi
Age: 41 years, Occ: Coolie Work
R/o Bairamadagi Village
Tq. Afzalpur, Dist. Gulbarga
... Appellant
(By Sri Nandkishore Boob, Advocate)
And:
The State through Revoor P.S.
Tq. Afzalpur, Dist. Gulbarga
Rep. by Addl. SPP, Circuit Bench
High Court of Karnataka, Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, praying to allow the appeal,
set aside the judgment and order passed by the IV-Addl.
Sessions Judge, Gulbarga in S.C.No.174/2011 dated
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09.11.2012 and acquit the appellant from the charges
framed under Section 498-A and 302 of IPC.
This appeal coming on for final hearing this day,
B.A.Patil J., delivered the following:-
JUDGMENT
This appeal is preferred by the appellant-accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the IV-Addl. Sessions Judge at Gulbarga in S.C.No.174/2011 dated 09.11.2012.
2. The genesis of the case of the prosecution in brief are that, on 01.02.2011 a MLC report has been received from Basaveshwar Hospital, Gulbarga to the effect that one Smt. Mallamma W/o Gundappa Yelsangi, R/o Bairamadagi village has been admitted in the hospital for treatment with burn injuries. Immediately, the P.S.I., Revoor Police Station went to the hospital and recorded the complaint lodged by the injured/complainant Smt. Mallamma and registered a case. It is alleged in the complaint that the marriage of 3 the complainant was solemnized about five years back with the accused. Thereafter, she started residing in the matrimonial home. Her husband used to come to the house by drinking the liquor and he used to quarrel with her and also used to give ill-treatment to her by assaulting her physically. On 31.01.2011 at about 11.00 p.m. the accused Gundappa came to the house by drinking the liquor and abused her in filthy language and also assaulted her. Later, with an intention to commit her murder, he poured kerosene on her body and set fire to her by stating that he will kill her. When the accused set fire to the complainant, she embraced the accused, due to which he also sustained burn injuries. When she raised hue and cry, the neighbors by name Arjun S/o Shivalingappa and Smt. Ratnabai W/o Sharanappa came to her house. By seeing the burn injuries, they took her to Basaveshwar Hospital, Gulbarga in the ambulance and got her admitted. On the basis of the said complaint, the P.S.I., Revoor Police 4 Station has registered a case in Crime No.10/2011 for the offences punishable under Sections 498-A, 504 and 307 of IPC and submitted FIR to the JMFC Court, Afzalpur. Thereafter, the P.S.I. took up the investigation of the case and as he was deputed to Aland for bandobast duty, he had handed over the further investigation to A.S.I, Revoor Police Station. During the course of investigation, on 13.02.2011, the father of the complainant appeared before the A.S.I. and informed him that the injured Mallamma succumbed to the injuries on 10.02.2011 while she was undergoing treatment in Miraj Hospital. Later, the further investigation of the case was handed over to the C.P.I., Afzalpur circle and after completion of the investigation, the charge sheet came to be filed. The learned Magistrate committed the case to the Sessions Court after following the procedure. The Sessions Court took the cognizance and secure the presence of the accused. After hearing both the sides, the charge was framed, 5 read over and explained to the accused. The accused pleaded not guilty and he claimed to be tried and as such the trial was fixed. To prove its case, the prosecution got examined 23 witnesses as PWs.1 to 23 and got marked 20 documents as Exs.P1 to P20 and 3 material objects as M.Os.1 to 3. Thereafter, the statement of the accused was recorded by putting incriminating material against him. He denied the same. The accused had not led any evidence on his behalf, nor produced any documents. After hearing both the sides, the trial Judge came to the conclusion that the evidence produced is sufficient to bring home the guilt of the accused and as such convicted the accused for the alleged offences. Challenging the legality and correctness of the same, the appellant-accused is before this Court.
3. We have heard Sri Nandkishore Boob, learned counsel for the appellant-accused and Sri 6 Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.
4. The main grounds urged by the learned counsel for the appellant-accused are that, the judgment of conviction and order of sentence passed by the Trial Court is contrary to law, evidence and material placed on record. It is further contended that though the prosecution has produced the dying declaration at Ex.P17 and also the evidence of PW.16-Tahsildar, who has recorded the dying declaration, it does not contain the endorsement or fitness certificate by the doctor. It is further contended that in the evidence of PW.16, he has deposed that he has taken the LTM of the deceased, but actually Ex.P17 contains the LTM of the leg of the deceased. Further it is contended that PW.16 has not produced the requisition, which is said to have been given by the head constable to record the dying declaration. It is further contended that the said dying 7 declaration has been recorded at about 3.00 p.m., but the complaint has been recorded at about 5.00 p.m. and thereafter the case has been registered at about 10.00 p.m. Even the complaint - Ex.P19 is also considered to be belated and it creates a doubt in the case of the prosecution. It is further contended that if the entire material is looked into, that itself clearly goes to show that there is no ill-treatment and harassment caused to the deceased and the accused was looking after her well and the deceased herself was a lady of sensitive mind and she herself has committed suicide by pouring the kerosene. It is further contended that the accused has tried to extinguish the fire and in that process, he has suffered injuries and he also got admitted in the hospital. If all these materials are looked into, prima facie there is no material to convict the accused. On these grounds, he prays to allow the appeal and to set aside the judgment of conviction and the order of sentence of the Trial Court.
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5. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that the evidence of PW.23 clearly goes to show that the injured was in a position to give the statement and accordingly the statement has been recorded. It is further submitted that immediately after receipt of wireless message, an entry has been made in the station house diary and thereafter a requisition has been given to the Tahsildar to record the dying declaration and accordingly, the Tahsildar went to the hospital and made an enquiry with the doctor and after verification of fitness of the injured has taken the dying declaration. It is further submitted that though there are admissions given by the witnesses, they are not the material admissions. But, if the case is looked into in its entirety, the accused has also suffered injuries and no explanation has been given under what circumstances he suffered injuries. Under such circumstances, the only inference that can be drawn is, it is the accused, who poured kerosene on 9 the injured and lit the fire. Further it is submitted that the evidence of parents of the complainant and the other witnesses goes to show that the accused used to ill-treat and harass the deceased and in that light, on the date of the incident, he came to the house by consuming the alcohol and has again quarreled with the deceased and thereafter has poured the kerosene and lit the fire. In that light, the prosecution has clearly established the dying declaration and that the death has been caused by the accused. It is further submitted that the trial Judge, after considering the evidence and material placed on record has rightly convicted the accused. On these grounds, he prays to dismiss the appeal.
6. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including trial Court records.
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7. To prove the case of the prosecution, the prosecution got examined as many as 23 witnesses as PWs.1 to 23. PW.1-Naganna is the father of the deceased. In his evidence, he has deposed that the deceased has been given in marriage to the accused and accused used to assault and ill-treat her and the deceased used to inform the same to him as and when she use to come to their house and they have advised her to adjust herself and till she got two children, the same ill-treatment and harassment was continued. He has further deposed that about one year three months back when he was in the house, he received a phone call about the deceased having suffered the injuries. Immediately he went to Basaveshwar Hospital and saw that the entire body was burnt and when they asked the deceased, she told that at about 11.00 p.m., her husband has lit the fire and when she tried to run away, her husband was standing near the door and he has also suffered injuries. He has also deposed that the 11 accused has set the fire with an intention to kill his daughter. During the course of cross-examination, he has admitted that they came to Gulbarga at about 6.00 to 6.30 a.m. and thereafter the police came there at about 8.00 to 8.30 p.m. They were not allowed to enter the hospital and they do not know what the Tahsildar and P.S.I have done in the hospital. He further deposed that when the deceased was in Miraj Hospital, she told about the incident. Except that, nothing has been elicited from the mouth of this witness.
8. PW.2-Shantabai is the mother of the deceased. She has reiterated the evidence of PW.1. During the course of cross-examination, she has admitted that her daughter is a sensitive nature girl and for silly reasons she used to take to her mind and her husband used to consume alcohol and as and when he used to consume the alcohol, her daughter used to tell him that if he does the same, she will go away by 12 leaving the children. The other suggestions made to her have been denied.
9. PW.3-Arjun is the neighbor. In his evidence, he has deposed that, about one year back, at about 11.00 p.m., the deceased died because of fire. At that time, he was in the house and on hearing the sound, he came to the road and when he came to the road, he saw that the injured Mallamma and her husband Gundappa were lying on the road as if they are dead and the body of the Mallamma was completely burnt and the body of the accused was also burnt. Himself and one Ratnamma called the ambulance and sent them to Basaveshwar Hospital. This witness has been partly treated as hostile. During the course of cross- examination, nothing has been elicited so as to substantiate the case of the prosecution. 13
10. PW.4-Ratnabai is also a neighbor. She has also not supported the case of the prosecution and she has been treated as hostile.
11. PW.5-Sanjaykumar and PW.6-Subhash are the panchas to the spot panchnama at Ex.P5. They have also not supported the case of the prosecution and they have been treated as hostile.
12. PW.7-Dr. Deepak is the doctor, who has treated the injured Mallamma who has been brought with burnt injuries. He has deposed that she died on 10.02.2011 at 1.30 a.m. because of 97% superficial deep burn injuries, because of septicemia with cardio respiratory arrest. During the course of cross- examination, nothing has been elicited so as to discard the evidence of this witness.
13. PW.8-Dr. Mohammed Rahimuddin is the Medical Officer at G.G.H. Afzalpur, who got admitted the 14 accused Gundappa in their hospital. He has deposed that the accused got admitted on 29.04.2011 and discharged on 30.04.2011. The accused came to the hospital with a history of post burns contracture and he issued a discharge card as per Ex.P7. During the course of cross-examination, nothing has been elicited from the mouth of this witness.
14. PW.9-Shamsunder is the Junior Engineer of PWD, Afzalpur, who has prepared the sketch of scene of offence as per Ex.P8.
15. PW.10-Basvanthraya is the Secretary of the Gram Panchayat, Bhairamadagi, who had issued the Khata extracts of the house property of the accused as per Exs.P9 and 10.
16. PW.11-Dr. Atul is the doctor, who has conducted autopsy over the dead body of the deceased and he has opined that the burn injuries are ante 15 mortem in nature and the cause of death is septicemia due to 97% mixed burns and he has issued post mortem report as per Ex.P11.
17. PW.12-Prakash is the Head Constable, who has drawn the inquest mahazar as per Ex.P12.
18. PW.13-Nagayya is the translator, who has translated the documents at Exs.P12 to P16 from Marathi to Kannada language.
19. PW.14-Jagadish is the ASI, Miraj Town Police Station, who received the death intimation and made the entry in the Station House diary and made arrangements for inquest as well as post mortem examination over the dead body.
20. PW.15-Gopal is the Station House Officer, who received the information from the Mission Hospital, Miraj about the admission of injured Mallamma and 16 also to the effect that her husband had also sustained burn injuries while extinguishing the fire.
21. PW.16-Mahadevappa is the Tahsildar. He has recorded the dying declaration as per Ex.P17. In his evidence, he has deposed that on 01.02.2011, he received requisition from PSI, Revoor Police Station for recording the dying declaration of one Smt. Mallamma W/o Gundappa, who has been admitted in Basaveshwar Hospital, Gulbarga for treatment to burn injuries sustained by her. Later, along with one Head Constable of Revoor Police Station, he visited the Basaveshwar Hospital, Gulbarga and saw Smt. Mallamma undergoing treatment in the said hospital. The Head Constable gave a requisition to the doctor, who was treating the injured Mallamma, to certify regarding as to whether the injured was in a position to give her statement or not. The said doctor examined injured and told him that the injured is competent to give her statement and to that 17 effect he made endorsement on the requisition given by the Head Constable. Later, he started recording the statement of injured at 3.00 p.m. and she told before him that her husband set fire to her after pouring kerosene on her body. He recorded the statement of the injured as per her say and after recording her statement, he read over its contents to her and she admitted its contents as true and correct. Later, she affixed her thumb impression on her statement.
22. This witness has been cross-examined and he has admitted that all the letters and correspondence made to Executive Magistrate will be first entered in M.A.G. section. He has further admitted that on the covering letter under which cover containing dying declaration was sent to the Court, M.A.G. number has been written, whereas on the cover in which dying declaration is sent to the Court M.A.G. number has not been mentioned. He has further admitted that no 18 endorsement has been made on the cover containing dying declaration regarding on which date the said cover was sealed and in whose presence. He has further admitted that due to lapse on the part of their staff, the dying declaration was not sent to the court immediately. He has further admitted that he has deposed that on Ex.P17 - dying declaration, left-hand thumb impression of the injured Mallamma was taken. He has further admitted that in Ex.P17 - dying declaration, it has been mentioned that left leg thumb impression has been taken. He has further admitted that in Ex.P17-dying declaration it has not been mentioned regarding as to why left leg thumb (toe) impression of the injured was taken on dying declaration. He further admitted that there is no endorsement on Ex.P17 - dying declaration to the effect that injured was competent to give her statement. He further admitted that one FDA working in his office by name Sunil has written the contents of Ex.P17 - dying declaration. He has not told before the 19 police that FDA Sunil had written contents of Ex.P17 as per his say. Except that, nothing has been elicited from the mouth of this witness.
23. PW.17-Shivanand is the Police Constable, who apprehended the accused and produced him before the Investigating Officer on 30.04.2011 by giving the report.
24. PW.18-Siddramayya is the ASI of Revoor Police Station, who received the MLC requisition to add Section 302 of IPC after the death of the deceased.
25. PW.19-Vithal S/o Basappa is the Head Constable, who carried the seized articles as per M.Os.1 to 3 for chemical examination and has given the report as per Ex.P18.
26. PW.20 is the CPI, who investigated the case and thereafter filed the charge sheet against the accused.
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27. PW.21-Vithal S/o Baburao is the Police Constable, who carried the FIR to the jurisdiction Court and submitted a report.
28. PW.22-Ramesh is the Investigating Officer, who has partly investigated the case.
29. PW.23-Basawaraj is the PSI, who received the MLC report and thereafter visited to Basaveshwar Hospital and there he has recorded the statement of the injured Mallamma and after obtaining her signature, he came back to the police station and registered a case in Crime No.10/2011 and issued the FIR as per Ex.P20 and he has also identified the complaint as per Ex.P19. During the course of cross-examination of this witness, nothing has been elicited to substantiate the case of the prosecution.
30. It is the contention of the learned counsel for the appellant-accused that the material witnesses have 21 not supported the case of the prosecution and that they have been treated as hostile and even the dying declaration which is said to have been recorded as per Exs.P17 is also not testifying the case of the prosecution. It is the case of the prosecution that the accused after getting married with the deceased started ill-treating and harassing her by consuming the alcohol and the same used to be intimated by the deceased to her parents. In this behalf, if the evidence of PWs.1 and 2 is looked into, they have categorically deposed about the ill-treatment, which is said to have been given by the accused by consuming the alcohol. During the course of cross-examination of these witnesses, it has been got admitted that the deceased was a sensitive type of lady and whatever the subject though small, she used to take it to her mind and she used to tell her husband that he should not come home by consuming the alcohol and if he consumes the alcohol, she will leave her children and go away. By virtue of the said 22 admission, it does not come to the aid of the accused that he was not ill-treating and harassing the deceased by consuming the alcohol. There is consistency and corroboration in the evidence of these two witnesses. Though the prosecution is intending to rely upon the dying declaration-Ex.P17, but on perusal of the evidence of PW.16, in his evidence he has deposed that he visited the Basaveshwar Hospital, Gulbarga and saw Smt. Mallamma undergoing treatment and the Head Constable gave a requisition to the doctor, who was treating injured to certify regarding as to whether the injured Smt. Mallamma was in a position to give her statement or not and the said doctor examined the injured and said to him that the injured is competent to give her statement and to that effect he has made endorsement on the requisition given by the Head Constable. But, the reason given by the prosecution is that the said endorsement given by the doctor has not been produced, though there is no endorsement made 23 at Ex.P17, which is said to have been recorded by PW.16.
31. It is trite law that even though there is no endorsement of the doctor to the effect that the injured is in a fit state of mind to give the declaration, a certification of the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710, wherein at paragraphs 3 and 5, it is observed as under:-
"3. 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 the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on deathbed is so solemn and serene, is the 24 reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory 25 form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
4. xxx xxx xxx
5. The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab, (1999) 6 SCC 545 wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma v. State of Andhra Pradesh, (1999) 7 SCC 695 (at SCC p. 701, para
8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of 26 making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma v. State of Andhra Pradesh, (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562."
32. Keeping in view the ratio laid down in the above decision, on perusal of the evidence of PW.16, though in his evidence he has deposed that the injured Mallamma was in a position to speak and that he has recorded Ex.P17, but in his cross-examination he has admitted that in his examination-in-chief he has deposed that he has taken the left hand thumb impression of the injured Mallamma, but in Ex.P17- dying declaration, it has been mentioned that left leg thumb impression has been taken. He further admitted 27 that in Ex.P17 it has not been mentioned regarding as to why the left leg thumb impression of the injured was taken on the dying declaration. Further, he has deposed that the said dying declaration has been recorded by one FDA working in his office by name Sunil. But, there is no endorsement made on Ex.P17 to the effect that the said declaration said to have been given by the deceased has been taken to his dictation and the same is reduced into writing by the said Sunil and even no signature of the said Sunil has been obtained in this behalf as a scribe. Under the above said circumstances, it creates a doubt in the case of the prosecution.
33. Be that as it may, even immediately after recording the said declaration of the deceased, it has not been sent to the learned Magistrate and there is some delay. But, this witness has deposed that because of some lapse on the part of their staff, the dying declaration was not sent to the Court immediately. 28 When he has recorded a very imprtant document of the Court he could have taken care to send it immediately. Non sending of the same immediately creates doubt.
34. Be that as it may, even on perusal of the evidence of PW.3, who in the first instance came to the spot and he who shifted the injured to Basaveshwar Hospital, in his evidence he has deposed that when they brought the injured Mallamma to the Hospital, she was not in a position to speak. When that being the case, how PW.16 has recorded the dying declaration as per Ex.P17 creates a doubt in the case of the prosecution and no explanation has been given in this behalf to show the credibility and mental fitness of the declarant to make the said statement. Under such circumstances, we are of the considered opinion that the dying declaration alone can be accepted, if it reposes the confidence of the Court with its truthfulness and trustworthy. For the reasons, which we have discussed 29 above, we are of the considered opinion that the dying declaration which is said to have been recorded by PW.16 is not acceptable.
35. Even as could be seen from the evidence of PW.23, who received the information and went to the hospital, recorded a statement of the injured and registered the case, much importance cannot be given to the said declaration because of the reason that anybody can set the criminal law into motion and that it is he who has set the criminal law into motion. Even as could be seen from the records, as contended by the learned counsel for the appellant, he has recorded the said complaint on the say of the injured at about 5.00 p.m. and subsequently he got registered the case at 10.00 p.m. Thereafter, he issued the FIR. No doubt, some delay has been caused in registering the case. But, when the injured has been got admitted in the hospital and immediately thereafter she has been 30 shifted to Miraj Hospital and thereafter the statement has been recorded and a case has been registered in this behalf, that too when the accused himself has suffered the injuries and he has also been got admitted in the hospital, under such circumstances, we are of the considered opinion that much importance cannot be given.
36. As contended by the learned counsel for the appellant, the dying declaration was came to be recorded at about 3.00 p.m. and subsequently the complaint has been registered by the P.S.I. at about 5.00 p.m. before registration of the case. But, the records indicates that when once the wireless message has been received by the police station, an entry has been made in this behalf with regard to the admission of the injured in the hospital. Thereafter investigation has been started. In that light, the said contention is not acceptable.
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37. On perusal of the evidence, it goes to show that the accused was also present in the house when the alleged incident has taken place. The accused has not come up with any explanation either by leading his own evidence, nor any statement recorded by the Court under Section 313 of Cr.P.C. When the prosecution has clearly establish the fact that the accused used to ill-treat and harass the deceased and because of that she suffered injuries that too burn injuries, under such circumstances, the only inference which can be drawn is that, it is because of the ill-treatment and harassment, she suffered burn injuries and ultimately she died.
38. The question which arises before this Court is, whether the accused poured the kerosene and lit the fire or the injured herself poured the kerosene and lit the fire? But, in this behalf, the evidence is lacking and even though the dying declaration is not acceptable, the 32 only inference which can be drawn by this Court is that, because of the ill-treatment and harassment caused by the accused, the deceased committed suicide due to the abatement caused by the accused. Even there is material to show that accused has also suffered injuries. The prosecution has tried to explain by stating that the injured embraced the accused and as such he suffered injuries. But, when the dying declaration Ex.P17 is not acceptable, then under such circumstances, the said theory has remained without proof. In that light, the accused is liable to be convicted for the offence punishable under Section 306 of IPC instead of Section 302 of IPC. Taking into consideration the above said facts and circumstances, we pass the following:
ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the IV-Addl.
Sessions Judge at Gulbarga in S.C.No.174/2011 dated 33 09.11.2012 is modified. The conviction of the appellant-
accused for the offence punishable under Section 498-A of IPC is confirmed and the conviction of the appellant for the offence punishable under Section 302 of IPC is modified and the appellant-accused is hereby convicted for the offence punishable under Section 306 IPC and he is sentenced to undergo imprisonment for a period of ten years and to pay fine of Rs.5,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of three months.
The appellant is entitled for the benefit of set off under Section 428 of Cr.P.C.
In view of disposal of the appeal, I.A.2/2013 for suspension of sentence and bail does not survive for consideration and the same is dismissed. 34
Registry is directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE LG