MAHESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) BEING aggrieved by the judgment of conviction dated J8-4-1996 passed by the Sessions Judge, Bangalore City in S. C. No. 314 of 1994, the accused has preferred this appeal.

(2.) THE brief facts of the case are as follows: the deceased Channamma is the wife of accused Mahesh. They had led married life almost for a decade and in fact stated to have three children including P. W. 6-Mamata. According to the prosecution the accused was addicted to liquor and in the drunken condition used to pick up quarrel with the deceased. On the fateful day viz. , 28-1-1994 at about 3 O'clock in the afternoon, it is alleged that the deceased came in drunken condition to the house, picked up quarrel with his wife Channamma in the house and suddenly poured kerosene on her from a plastic can in the house and set her on fire. She was taken to the hospital and later at about 9. 30 p. m. in the night she breathed her last. According to the prosecution when Channamma was taken to the hospital, P. W. 14smt. Kalpana was the duty doctor who on examining her noted the history of burns in the accident register marked in this case as Ex. P. 1 and the entry at Ex. P. ll (a ). In the history, Channamma had stated that it was her husband who set her on fire. Thereafter intimation to the police was sent as it was a medico-legal case. P. W. 12-Shivaji Rao, H. C. was on duty on that day in the jurisdictional Police Station viz. , RMC yard Police Station. At about 5. 50 p. m. when the message was received, the SHO sent him to find out more information. Accordingly, P. W. 12 went to the Victoria Hospital and in the presence of P. W. 1-Dr. Trishula after verifying with her as to the condition of fitness of the injured channamma recorded her statement as to the incident as per Ex. P. 1. Treating the statement of the injured at Ex. P. 1 as the complaint, heregistered the case in Crime No. 21 of 1994 for the offence under Section 307 of the Indian Penal Code against the accused and investigation was taken. Later when Channamma succumbed due to injuries while undergoing treatment, the offence was altered to one under Section 302 of the indian Penal Code. During the investigation, the Investigating Officer held the spot mahazar, recorded statements of witnesses including the neighbour of the accused and the deceased. After completion of the investigation and securing the necessary reports, filed charge-sheet. On the basis of the material collected, the accused was charged for the offence under Section 302 of the Indian Penal Code. As the accused has denied charges and claimed to be tried, he was tried in S. C. No. 314 of 1994. The prosecution has examined in all 17 witnesses and got marked 16 documents so also M. Os. 1 to 5. In his 313 Criminal Procedure Code statement, the accused denied the prosecution case and stated that his wife (Channamma) received burn injuries due to stove burst and when he went to her rescue, he also received some burns and it was he who brought Channamma to the hospital. Appreciating the entire evidence, the Trial Court relying upon the dying declarations made by the deceased before the doctor and P. W. 12-HC found the accused guilty of the offences charged. Accordingly convicted him and sentenced him to undergo imprisonment for life. Hence, the present appeal. As this was a jail appeal and accused was not in a position to appoint a Counsel, this court had sought assistance of learned Counsel Sri Sanjaya Patil as amicus Curiae to argue the case on behalf of the accused/appellant.

(3.) SRI Sanjaya Patil, learned Amicus Curiae after taking us in detail through the evidence of the prosecution contended that the multiple dying declarations before the Court are defective in nature and as such could not have been relied upon as the sole basis by the Trial Court to convict the appellant. Elaborating his argument, he contended that the dying declaration recorded by P. W. 12-Shivaji Rao, HC vide Ex. P. 1 does not bear the necessary certification by the doctor to show the mental and physical fitness condition of Channamma to make such a statement. It is contended that except stating that this statement was recorded in his presence, there is absolutely no material to show that Channamma was in a fit condition to give such statement. As such in the absence of any certification, reliance placed by the Trial Court on such a document and conviction of the accused solely on the basis of this dying declaration is erroneous. Commenting upon the oral dying declaration made by Channamma before her daughter P. W. 6, it is contended that P. W. 6 was a minor aged about 11 years then and the deceased could not have made any dying declaration implicating the accused before such a minor. In addition, the learned Counsel pointed out Ex. D. 1 marked in her statement before the Police to contend that P. W. 6 did not visit the hospital on 28-1-1994 and it is only on the next day that too after the death of the mother, P. W. 6 had gone to the hospital. As such the learned Counsel contended that Channamma could not have made any statement before p. W. 6. Added to this, the learned Counsel contended that at the earliest point of time it was the accused who was present in the house and in fact he tried to rescue his wife, subside the fire and rescue his wife and in the process he too received some burn injuries on his hands and it was the accused himself who took her to the hospital. Highlighting these acts of the accused, it is contended that the conduct of the accused was not that of a murderer, but of a compassionate husband who in fact went to the rescue of his wife and in the process suffered some injuries also. As such he contended that the cumulative effect of the entire prosecution case would not by any stretch of imagination be held against the accused so as to find him guilty of murder of his wife by setting fire. On the other hand Sri B. C. Muddappa, learned Additional State Public prosecutor appearing on behalf of the State argued in support of the findings of the Trial Court.