Karnataka High Court
Harish Naik vs State Of Karnataka on 6 October, 2018
Bench: Aravind Kumar, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF OCTOBER 2018
:PRESENT:
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO 176 OF 2014
BETWEEN:
HARISH NAIK
S/O SOMLA NAIK,
AGED ABOUT 26 YEARS,
MADAKARIPURA VILLAGE,
CHITRADURGA TALUK
& DISTRICT-577 501
... APPELLANT
(BY SRI: G M ANANDA, ADVOCATE)
AND:
STATE OF KARNATAKA
THOUGH THE RURAL POLICE,
CHITRADURGA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI: VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 21.06.2013
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, CHITRADURGA IN S.C.NO.133 OF 2012 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 498A AND 302 OF IPC.
2
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND PAY FINE OF RS.10,000/-,
IN DEFAULT TO PAY FINE, HE SHALL UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 1 YEAR AND
PAY FINE OF RS.2,000/-, IN DEFAULT TO PAY FINE, HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF 2 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498A OF IPC. THE SUBSTANTIVE SENTENCES OF
IMPRISONMENT AWARDED FOR BOTH THE OFFENCES
SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED
PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, ARAVIND KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
The sole accused has preferred this appeal questioning the correctness and legality of the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Chitradurga, dated 21.06.2013 in S.C.No.133/2012, whereunder appellant/accused has been convicted for the offence punishable under sections 302 and 498A of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- and rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/- for the respective 3 offences with default sentence of six months and two months simple imprisonment respectively, with a direction that these substantive sentences to run concurrently.
2. Facts in brief which has led to filing of this appeal and as per the case made out by the prosecution before the trial court are as under:
Accused married one Smt.Lakshmibai about eight years prior to filing of the complaint on 22.03.2012 and out of the said wedlock, a boy and a girl were born. As per complaint, accused was idling his time and was addicted to vices like consumption of liquor and was torturing his wife.
It was also alleged that he was harassing and extorting money from his wife in order to meet his requirement for buying liquor and all the income that was being earned by the wife by doing coolie work was snatched away by the accused. It is further alleged that on 22.03.2012, at about 5.00 p.m., when wife was in the house, attending to her household work, accused is said to have demanded money to buy liquor and on account of not getting money from her, he poured kerosene on her and set her ablaze.
Immediately thereafter deceased is stated to have 4 screamed attracting the attention of neighbours and relatives who rushed to the scene of offence, extinguished the fire and shifted said Smt. Lakshmibai to the District Hospital, Chitradurga. On account of burn injuries sustained, she was shifted to Davanagere Hospital and later on, she died due to burn injuries. Chitradurga Rural Police recorded the statement of the injured at the hospital and registered a complaint for the offence punishable under section 302 of Indian Penal Code which was registered subsequent to her death and after holding investigation, charge-sheet came to be filed against the accused and he has faced trial before the learned Sessions Judge on charge being framed for the offences punishable under section 498A and 302 of Indian Penal Code, which came to be denied. The prosecution got examined 15 witnesses as PW.1 to PW.15 and in all, got marked 17 documents as per Ex.P1 to Ex.P17 and two material objects as M.Os.1 and 2 were got marked. On conclusion of prosecution evidence, statement of the accused under section 313 Cr.P.C. has been recorded and on total denial of incriminating circumstances, accused did not lead any evidence. The 5 learned Sessions Judge, after hearing the arguments of respective learned Advocates and on formulating points for determination, has rendered the judgment in question and convicted the accused for the offences as already noticed hereinabove.
3(i) Learned Sessions Judge has taken note of the evidence of the sister-in-law of the accused (PW.1) and also the paternal uncle (PW.4) and grandmother of deceased Lakshmibai (PW.2), who had stated that accused was at the spot when they went to the scene of incident where the deceased had been set ablaze and on seeing them accused had run away. The learned Sessions Judge also having noticed that the deceased who had lived for seven days after the date of occurrence of the incident had given her dying declaration as per Ex.P7 and same had stood the test of law and the contention of the accused that deceased had suffered 75% to 80% burn injures, as a result of which, she was unable to affix her signature is a mere possibility and has not accepted the contention of the accused and accordingly, rejected the said contention and dying declaration Ex.P7 came to be accepted. Infact, the 6 corroborating evidence tendered by Dr.Salimanjappa (PW.7) was also taken note of by the learned Sessions Judge to arrive at the conclusion that Ex.P7 namely dying declaration has been recorded in the Chitradurga Hospital and there is no suspicious circumstance to disbelieve the contents of it.
(ii) The evidence of PW.8 - the Panchayath Development Officer who had issued Ex.P8 namely the report relating to the scene of occurrence as well as evidence of the Doctor PW.9 who had conducted the post- mortem had also swayed in the mind of the learned Sessions Judge to arrive at a conclusion that it was a case of homicidal death and the death was on account of burn injuries sustained by the deceased.
(iii) The Investigating Officer came to be examined as PW.10 (CW.21) had produced the spot mahazar (Ex.P12) and deposition of the witnesses to the same examined by the prosecution was accepted which was also a factor which pursued the learned Sessions Judge to arrive at a 7 conclusion that accused had committed the offence punishable under section 302 of Indian Penal Code.
(iv) The Police Constable who submitted the request letter to the Court to include section 302 of Indian Penal Code in the FIR has been examined as PW.11 and through him, the memo for insertion of section 302 of Indian Penal Code in the FIR which was filed to the court has been marked as Ex.P15.
(v) The Police Constable who had carried M.Os.1 and 2 for FSL to Bengaluru was examined as PW.12 and the Police Constable who had detained the accused and produced him before the Investigating Officer was examined as PW.13. The Scientist (PW.14) has given his report Ex.P16 and also has identified the FSL model seal Ex.P17.
(vi) On overall consideration of the evidence and taking into the arguments advanced by the learned counsel appearing for the accused, learned Sessions Judge has convicted the accused for the offences as already noticed by us hereinabove.
8
4. We have heard the arguments of Sri.G.M.Ananda, learned counsel appearing for the appellant/accused and Sri.Vijayakumar Majage, Addl. SPP appearing for the respondent/State and we have perused the original records secured from the trial court.
5. It is the contention of Sri.G.M.Ananda, learned counsel appearing for the appellant/accused that there are no eyewitnesses to the alleged incident and no evidence of last seen is also tendered by the prosecution to establish that deceased and the accused were together in the house; Undisputedly, PW.2 and 4 had arrived at the scene of occurrence at a later point of time and he would draw the attention of the court to the evidence of PW.4 to buttress his argument that accused and deceased were residing in separate houses; he would also submit that PW.4 has clearly stated that accused was present in the hospital where he came to be arrested and the conduct of the accused would clearly establish that there was no guilt on his part and this factual aspect has been lost sight of by the learned trial court. He would also draw attention of the 9 court to the evidence of PW.8 who has submitted his report as per Ex.P8 depicting the topography of the area where the incident had occurred disclosing that it was an area measuring 7' x 7' and possibility of accused also suffering burn injuries or some injuries which was not found on accused has not been considered by the learned Sessions Judge and learned Sessions Judge erred in not considering the fact that in the normal course, when victim suffers from burn injury, would in all probability, hold on to a person who is nearby and it would result in such person also suffering some burn injuries, which was not found in the instant case and thereby, accused ought to have been acquitted for the offences alleged. He would also contend that neither the voluntary statement of the accused was recorded nor he was subjected to medical examination and the alleged two statements made by the deceased, one styled as complaint Ex.P2 and another styled as dying declaration Ex.P7 were all recorded on the same day and Ex.P2 was not signed by the deceased, but by her mother PW.3, whereas on Ex.P7 the deceased is alleged to have affixed her left thumb mark which gives room for a strong 10 suspicion surrounding existence of such dying declaration or recording of such dying declaration particularly when doctor admitting that deceased had suffered burn injuries to an extent of 70%. He would also contend according to PW.4, more than 50 persons had gathered at the house when the alleged incident took place and there being no independent witness examined by the prosecution nor their statements having been recorded by the Investigating Officer it would give scope for suspicion to arrive at conclusion that accused had committed said offence and hence, on these grounds, he seeks for allowing the appeal and prays for acquitting the accused.
6. Per contra, learned Additional SPP would support the judgment of trial Judge and would contend that learned Sessions Judge after noticing that Ex.P7 - dying declaration had been countersigned by PW.7 Dr.Salimanjappa and there was nothing elicited in the cross-examination to disbelieve his statement which disclosed that deceased was in a sound state of disposing mind, has accepted the same and there is no error, much less illegality committed by the trial court calling for 11 interference and hence, he has prayed for dismissal of the appeal.
7. Having heard the learned Advocates appearing for the parties and on perusal of records secured from the trial court and after bestowing our careful and anxious consideration to the rival contentions raised at the Bar, we notice that at the first instance, the complaint which came to be lodged as per Ex.P2 was by the deceased which has been countersigned by the mother of the deceased. In this regard, the evidence of the Doctor PW.7 requires to be noticed inasmuch as learned Sessions Judge after having noticed that Ex.P2 does not contain signature of the deceased, whereas in Ex.P7 - dying declaration the left thumb impression was forthcoming, had posed a question to PW.7 - the Doctor who had countersigned the dying declaration and the question so posed and answered by the Doctor reads as under:
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8. In the light of above evidence of doctor which is to the effect that signature of deceased was not taken on the complaint due to the fact that deceased had been admitted to the hospital just then and was shivering when contents of the complaint was noted down and alter when dying declaration Ex.P7 was recorded shivering had stopped has been rightly accepted by the learned Sessions Judge and no infirmity or illegality has been committed by learned trial Judge in that regard.
9. In the instant case, the Doctor PW.7 who has countersigned the dying declaration Ex.P7 has certified that deponent namely the person (deceased) who is making the statement is in fit condition to give her statement. The Hon'ble Apex Court in the case of RAMBAI vs. STATE OF CHHATTISGARH reported in (2002)8 SCC 83, has held that physical state of injuries on the declarant not by themselves is determinative of mental fitness of the 13 declarant to make such statement doubtful. It has been held that, "6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om Prakash and ors., (2001 (6) SCC 118), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came 14 and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart, from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission into the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 11 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence 15 of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below."
10. In the case of LAXMAN vs. STATE OF MAHARASHTRA reported in AIR 2002 SC 2973, Hon'ble Apex Court has held that, even in the absence of recording a certificate by the Doctor as to the fitness of mind of the declarant would not render the dying declaration unacceptable. It is further held that, what is essential is that the person who records such statement must be satisfied that the deceased was in a fit state of mind and such certificate by the Doctor would be a rule of caution. Voluntary and truthful nature of declaration can also be established otherwise. It has been further held: 16
"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 death bed is so solemn and serene, is the 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 to always 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, 17 therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look 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 is 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 form for such recording.18
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.
5. The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur Vs. State of Punjab 1999(6) SCC 545 case 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 19 reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 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 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 & Ors. vs. 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 20 Chunilal Savji & Another vs. State of Gujarat 1999(9) SCC 562 case."
11. In the light of the above referred authoritative pronouncements of the Hon'ble Apex Court, when the facts on hand are examined, it would not leave any doubt in our mind to arrive at a conclusion that prosecution in the instant case has proved execution of dying declaration made by the deceased as per Ex.P7 namely the statement made by the deceased clearly stating thereunder that accused had poured kerosene on her and set her ablaze which consequently resulted in deceased Smt.Lakshmibai sustaining grievous burn injuries, which resulted in septicemia and consequently led to her death after seven days. In that view of the matter, the contention raised by Mr.Anand, learned counsel for the appellant cannot be accepted and the finding recorded by the learned Sessions Judge in this regard deserves to be accepted and accordingly, it is hereby accepted.
12. Insofar as contention raised by learned counsel for appellant that prosecution had failed to establish that 21 accused was at the spot and the evidence of PWs.2, 3 and 4 when seen cumulatively it would indicate that accused came to the spot at a later stage requires to be considered for the purpose of outright rejection. A bare reading of the evidence of PW.2 and PW.4 would clearly disclose that said witnesses were neighbours and on hearing the screams of the deceased, they ran to the house of the deceased and found she had been set ablaze and accused was at the scene of incident and had ran away from the spot on seeing them. Infact, PW.2 and 4 who are the neighbours of deceased are residing in the vicinity of the scene of occurrence and their testimony has not been shaken in the cross-examination to disbelieve their statement. Infact in the cross-examination of PW.2 to the specific suggestion that accused was not at the spot or scene of occurrence has been categorically denied by her and she has asserted that he was at the spot or scene of occurrence when she arrived. Her evidence requires to be accepted, which has been so done by the learned trial court and she cannot be termed as an interested witness and she is none other than the elder sister of the father of the accused. If at all she 22 was interested it would have been the accused and not the deceased. She has spoken the truth, which came to be accepted by learned Sessions Judge and rightly so.
13. In this background, plea of the learned counsel appearing for the appellant with regard to there being no eyewitnesses to the incident and no evidence to the effect that the accused and the deceased were last seen together when considered or examined, the only conclusion which requires to be drawn by us is to reject said contention by placing reliance on the judgment of the Hon'ble Apex Court in the case of TRIMUKH MAROTI KIRKAN vs. STATE OF MAHARASHTRA reported in (2007)1 SCC (Cri) 80, where it was alleged in the said case that the accused had committed murder of his wife and it was held that the prosecution succeeded in leading evidence to show that shortly before commission of crime, they were seen together or the offence took place in the dwelling home where the husband also normally resided and 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 23 circumstance which indicates that he is responsible for commission of the crime. In this background, it is to be held that where any incriminating circumstance is put to the accused and accused offers no explanation or offers an explanation which is found to be untrue, then same becomes an additional link in the chain of circumstances to make it complete. It has been held by the Hon'ble Apex Court ....
"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. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khukhri' and the fact that the relations of the accused with her were strained would, in 24 the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete 25 and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
14. In many a circumstances, the accused himself would have knowledge of the incident and thus burden of proof as per section 106 of the Indian Evidence Act would be on the accused. Therefore, last seen theory together itself is not a conclusive proof but other circumstances 26 surrounding the incident, like relationship between accused and the deceased, enemity if any between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased may lead to presumption of guilt against the accused. The judgment of the Hon'ble Apex court in the case of ASHOK vs. STATE OF MAHARASHTRA reported in 2015 Crl.L.J. 2041 can be looked up which would fortify our view.
15. In the background of the aforesaid analysis of the case law, when facts on hand are examined, it would clearly indicate that though a plea came to be raised by the accused that he was not residing with his wife and also a plea having been raised by relying upon the evidence of PW.4 to contend that deceased and accused were residing separately, we are of the considered view that both contentions requires to be considered with utmost circumspection and same is liable to be rejected, inasmuch as all the witnesses who have been examined on behalf of the prosecution including PWs.2, 3 and 4 have consistently stated that accused was in the house when they reached the scene of occurrence after having heard the deceased 27 screaming and only after they arrived at the scene, accused had ran away from the house of deceased. That apart, the evidence of PW.4 disclosing that accused was residing separately cannot be read in isolation and the suggestion that the deceased and accused were residing separately and not with any of their family members though has been accepted by PW.4, only conclusion which we can draw is that accused and deceased were not living together and they were residing in separate houses and not with any of their family members. Nothing more can be added to the said admission of PW.4. However, this does not absolve the accused from not explaining the circumstance in which he was found in the house of the deceased at the time of the incident and he had utterly failed to prove the same or discharge the burden. In that view of the matter, contention raised by learned counsel for the appellant cannot be accepted.
16. Mere presence of the accused at the hospital after the incident, that too after running away from the scene of occurrence after deceased started screaming on account of burn injuries same would not be a ground to 28 give benefit of doubt to the accused that he was innocent of the offences alleged particularly when chain of events or circumstances laid out by the prosecution would prove the guilt of the accused beyond all reasonable doubt. It is no doubt true that there were no injuries found on the accused. However, that by itself, would not be the sole criteria on the basis of which the accused can be extended the benefit of doubt particularly when his aunt PW.2 has clearly stated that she had arrived at the scene of offence after hearing the screams of the deceased, and on her arrival, accused had ran away from the spot would clearly go to show that he wanted to avoid being at the place of scene of crime when PW.2 arrived.
17. On overall appreciation of the entire evidence as discussed by us hereinabove, we find that learned Sessions Judge has taken note of the evidence tendered by the witnesses have been corroborated and we find there is no infirmity in said findings of learned Sessions Judge whatsoever which would call for our interference. 29
In the light of the aforesaid discussions, we are of the considered view that appeal lacks merit and is liable to be rejected and accordingly, it is hereby rejected.
The impugned judgment and order of sentence dated 21.06.2013 passed in S.C.No.133/2012 by the Principal District and Sessions Judge, Chitradurga is upheld.
Sd/-
JUDGE Sd/-
JUDGE Bss.