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2015 DIGILAW 891 (KAR)

Shettawwa v. State of Karnataka

2015-08-10

A.V.CHANDRASHEKARA, H.G.RAMESH

body2015
JUDGMENT 1. The present appeal filed under Sec.374, CR.P.C. by the appellants is directed against the judgment of conviction and sentence passed in a sessions case bearing S.C.91/08 which was pending on the file of the Additional Sessions Court at Bidar. Both the appellants have been convicted for the offences punishable under Sections 448 and 302 read with Section 34 of I.P.C. and both of them have been sentenced to undergo imprisonment for life insofar as the offence punishable under Sec.302, I.P.C. is concerned and also to pay a fine of Rs.10,000/each and in default, to undergo simple imprisonment for 3 months and further to undergo S.I. for 3 months each and to pay a fine of Rs.1,000/each for the offence punishable under Sec.448, I.P.C. vide judgment dated 10.11.2010. 2. Several grounds have been raised in the present appeal. Both the appellants have been in judicial custody ever since they have been convicted by the sessions court. During the stage of investigation, the accused had been in judicial custody and on 2.3.2011, had been enlarged on bail vide order passed by the sessions court on 25.2.2009 under Section 439, Cr.P.C. 3. Facts leading to the filing of charge sheet and the consequential conviction are as follows: a) Accused no.1Smt.Shettavva is the motherinlaw of accused no.2, Mrs.Lakshmi. They are permanent residents of Bhemalkhed village of Humnabad Taluk in Bidar District. Deceased lady by name Yallamma, wife of Nagappa lived with her son, Balappa and daughterinlaw Mrs.Shobha and husbandNagappa in the same village, Bhemalkhed. The houses of the accused and the deceased are in the same locality. b) There was a tamarind tree in front of the house of Nagappa, husband of the deceased. Allegation against the accused is that both the accused had attempted to fell the said tamarind tree on the morning of 18.6.2007 at about 10.15 a.m. Then deceased Yallamma went there and asked both the accused as to why they had cut the tamarind tree. Being enraged by her question, both the accused threatened her that they would teach her a lesson. On hearing this, Nagappa who was stated to be present there, told his wife Yallamma to go back to the house and accordingly she went back to her house. Being enraged by her question, both the accused threatened her that they would teach her a lesson. On hearing this, Nagappa who was stated to be present there, told his wife Yallamma to go back to the house and accordingly she went back to her house. Within a few minutes thereafter, both the accused trespassed into the house of Yalalmma and accused no.1 i.e. 1st appellant herein took kerosene oil kept in the house of Yallamma and poured the same on her body and 2nd accusedLakshmi ignited Yallamma with a matchstick as a result of which she screamed because of burns. Suddenly Smt.Shobha, daughterinlaw of Yallamma who was in the house, came running out of the house screaming for help. c) On hearing her screaming voice, her fatherinlaw, Nagappa and neighbours of the locality came running and poured water and extinguished the fire. Suddenly the injured was shifted to Government Hospital at Bhemalkhed and the doctor who examined the injured, advised them to shift her to Govt. Hospital at Bidar immediately. In the meantime, the PSI of Bhemalkhed police station got a telephone call that a lady in Bhemalkhed had sustained serious burn injuries and that she had been shifted to Primary Health Centre at Bhemalkhed. He rushed to PHC and found that the injured was not in a condition to speak. Hence she was shifted to Bidar Govt. Hospital immediately with the assistance of a lady police constable. d) Then PSI, Mr.Mohan came to Bidar and requested the Tahsildar, i.e. Taluka Executive Magistrate, Bidar, to record the statement of the injured in Govt. Hospital, Bidar. Thereafter PSI, Mohan is stated to have visited Govt. Hospital at Bidar by about 1.30 p.m. and ascertained from the doctor that the injured was in a fit condition to talk. In the presence of the doctor, PSI is stated to have recorded the statement of the injured between 2.30 p.m. and 4.00 p.m. on 18.6.2007 and came to the police station and registered FIR in Crime No.68/07 for the offences punishable under Sections 448 and 307, I.P.C. e) Smt.Yallamma died in the hospital at 8.30 p.m. on 18.6.2007 and on receipt of the information from the husband Nagappa, included Section 302, I.P.C. and submitted a further report to the JMFC. f) According to the prosecution, Smt.Shobha was stated to be present in the house when the offence took place. f) According to the prosecution, Smt.Shobha was stated to be present in the house when the offence took place. Mr.Balappa, son of the deceased and husband of Shobha went to Bidar hospital and talked to his mother who is stated to have told him about the accused pouring kerosene oil on her and setting her on fire. Nagappa, husband of the deceased who is stated to have shifted the injured to Bidar is no more. 4. Prosecution has relied upon the dying declaration of Yallamma stated to have been recorded by the Tahsildar between 2.30 p.m. and 3.00 p.m. in the hospital at Bidar. This is in the form of question and answer. The cover containing the dying declaration recorded by the Tahsildar was opened in the court when the Tahsildar was examined before court. 5. Thus the prosecution has mainly relied upon the deposition of Smt.Shobha examined as PW11 and dying declaration of Yallamma given to Balappa, PW10 . Ex.P11, dying declaration of Yallamma recorded by PSI, Mohan and Ex.P16, dying declaration of Yallamma recorded by the Tahsildar, Bidar. 6. In order to bring home guilt of the accused, prosecution has examined in all 20 witnesses and has got marked 16 exhibits and 6 material objects. Accused have been examined under Section 313, Cr.P.C. Their defence is one of total denial of the prosecution case. They have attempted to probablise that Balappa was illtreating Yallamma and being disgusted with his attitude, she committed suicide by pouring kerosene herself. Further attempt is made to probablise that in view of a criminal case being filed by the accused against Yallamma and her family members, they have been falsely implicated in this case. 7. The learned counsel appearing for the accused – appellant has argued that the prosecution has mainly relied upon ex.p.11 and ex.p.16 and both of them are doubtful since they came into being simultaneously. It is further argued that there are inherent in consistencies in the version of PSI – Mohan examined as PW15 and Smt. Usha Rani, Tahisldar examined PW18. According to the learned counsel for the appellants Smt.Shobha is a planted witness and her presence in the house at that point of time is highly doubtful. 8. It is further argued that there are inherent in consistencies in the version of PSI – Mohan examined as PW15 and Smt. Usha Rani, Tahisldar examined PW18. According to the learned counsel for the appellants Smt.Shobha is a planted witness and her presence in the house at that point of time is highly doubtful. 8. Further attempt is made to impress upon the court that in view of the gravity of the injuries and the percentage of burns suffered in the victim, she was not in a fit condition to speak. It is argued that the scribe of Ex.P16 is not examined and this creates a great suspicion about the authenticity of Ex.P16. The initial burden cast upon the prosecution, according to the learned counsel for the accused, has not been effectively discharged by the prosecution and therefore the prosecution has failed to prove guilt of the accused beyond all reasonable doubt. 9. Per contra, Sri Yeli, learned Addl. SPP has argued that Ex.P16 is prepared by a disinterested witness, Smt.Usharani in the hospital that too, in the presence of the doctor and hence its credibility cannot be doubted. According to him, the evidence of Smt.Shobha and Balappa inspire confidence in the mind of the court. According to him, the evidence of Dr.Sudheer demonstrates that in spite of 95% burns, the injured was conscious and capable of talking and hence the same has been relied upon by the trial court. He has further argued that the inconsistencies found here and there are minor in nature and do not affect the core case of the prosecution and hence it is otherwise acceptable. 10. After going through the records and hearing the learned counsel, the following points arise for consideration of this court: 1) Whether the trial court is justified in relying upon Ex.P11, the dying declaration of deceased Yallamma stated to have been recorded by PSI, Mohan? 2) Whether the trial court is justified in relying upon the evidence of PW10, Balappa and PW11, Shobha, PW18, Usharani and PW20, Dr.Sudheer and Ex.P16? 3) Whether the trial court is justified in convicting the accused for the offences punishable under Sec.448 of IPC and 302, IPC? 4) Whether any concession can be shown to the accused insofar as the sentence of imprisonment and fine and if so, to what extent? REASONS 11. 3) Whether the trial court is justified in convicting the accused for the offences punishable under Sec.448 of IPC and 302, IPC? 4) Whether any concession can be shown to the accused insofar as the sentence of imprisonment and fine and if so, to what extent? REASONS 11. Point no.(1): The degree of proof required in a criminal case is one proof beyond all reasonable doubt. What is proof beyond reasonable doubt has been succinctly explained by the Hon’ble apex court in the case of KRISHNAGOPAL .v. STATE OF UTTAR PRADESH ( AIR 1988 SC 2154 ). Paragraph 13 of the said decision is relevant and the same is extracted below: ‘Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense, and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused person is not to be eroded, at the same time uninformed legitimization of trivialities would make a mockery of administration of criminal justice.’ 12. Ex.P11 is stated to be the dying declaration of deceased Yallalmma stated to have been recorded by PSI, Mohan between 2.30 p.m. and 4.00 p.m. in Govt. Hospital, Bidar, in the presence of the doctor. Ex.P11 is stated to be the dying declaration of deceased Yallalmma stated to have been recorded by PSI, Mohan between 2.30 p.m. and 4.00 p.m. in Govt. Hospital, Bidar, in the presence of the doctor. This is also the first information, according to the prosecution, under Section 154, Cr.P.C. On the basis of this Ex.P11, the PSI chose to register a case in Crime No.58/078 for the offences punishable under Sections 448 and 307, read with Sec.34, I.P.C. against both the appellants on 18.6.2007 at about 6.15 p.m. Ex.P11, dying declaration which is the first information and Ex.P12, FIR were handed over to P.C.931 at about 7.15 p.m. to be lodged before JMFC, Humnabad. To this effect, a note is made in column no.13 of Ex.P12, FIR. Both Exs.P11 and P12 were lodged before the JMFC, Humnabad, at 12.00 midnight. Following is the endorsement made by the JMFC on Ex.P12: ‘Received through P.C.931 on 18/19.6.2007 at 12.00 midnight with one annexure. Sd/18/19.6.2007 13. In the light of the death of the victim, Yallamma, Ex.P11, FIR has now become a dying declaration which is admissible under Section 32 of Indian Evidence Act. Uncorroborated dying declaration could be the basis for the conviction. The only caveat added is that the evidence in regard to the dying declaration should be assessed cautiously in order to rule out the possibility of tutoring or concoction. This Ex.P11 is stated to have been recorded by PSI, Mohan in Govt. Hospital at Bidar in the presence of the doctor of the said hospital between 2.30 and 4.00 p.m. Ex.P11 is in Kannada and bears the purported LTM of Yallamma and the signature of PSI, Mohan. 14. What is argued before this court by Mr.Yeli, Addl. SPP is that the certification by the doctor about the mental fitness of the declarant is not a sine qua non to vouchsafe the authenticity of the dying declaration. He has argued that the evidentiary value of such declaration would depend upon the facts and circumstances of the particular case. He has placed reliance on a Constitutional Bench decision of the Hon’ble apex court rendered in the case of LAXMAN .v. STATE OF MAHARASHTRA reported ion 2012(6) SCC 710. He has argued that the evidentiary value of such declaration would depend upon the facts and circumstances of the particular case. He has placed reliance on a Constitutional Bench decision of the Hon’ble apex court rendered in the case of LAXMAN .v. STATE OF MAHARASHTRA reported ion 2012(6) SCC 710. The relevant observation is found in paragraph 3 of the said decision and the same is extracted below: ‘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 the deathbed 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 courts 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 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 any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. A dying declaration can be oral or in writing and 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 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.’ The gist of Ex.P11 which is in Kannada is translated to English as noted below: ‘Being a resident of Malkhed, I am eking my livelihood as a coolie. I asked my husband’s aunt Shettavva, wife of Yallappa as to why she had cut the tamarind tree standing near her house. She replied as to who she was to question her and threatened her that she would teach her a lesson. Then my husband who was there, asked me to go back to the house and accordingly she went back. When Yallamma was in her house, Shettavva and her daughterinlaw, Lakshmi trooped into her house and took the can containing kerosene oil and Shettavva poured the same on her body (Yallamma) and Lakshmi ignited her cloth with a matchstick. Then my husband who was there, asked me to go back to the house and accordingly she went back. When Yallamma was in her house, Shettavva and her daughterinlaw, Lakshmi trooped into her house and took the can containing kerosene oil and Shettavva poured the same on her body (Yallamma) and Lakshmi ignited her cloth with a matchstick. This was witnessed by her daughterinlaw, Shobha and she ran out of the house to bring her fatherinlaw and suddenly both Shettavva and Lakshmi closed the door of the house and went away. In the meantime, her husband, Shobha and neighbours of the lane came running there and covered her body with a blanket and extinguished the flame by pouring water. Later on, her husband, Shobha and the neighbours took her to Bhemalkhed hospital and the doctor there referred her to Bidar Govt. Hospital for higher treatment. Doctors there treated her and she had sustained burn injuries on stomach, both hands, face and both legs, chest and back. This was done by both of them to kill her. Sd/LTM of YALLAMMA PSI Malkhed 15. Thus Ex.P11 is stated to have been recorded by PSI, Mohan after obtaining the opinion of the doctor about her mental fitness to give statement and he took after she regained consciousness. This was recorded between 2.30 p.m. and 4.00 p.m. During the course of cross-examination, PW15, Mohan has deposed that he gave a written requisition to the doctor to know the condition of the victim and doctor gave a separate letter to him about her condition. The husband of the victim was stated to be present when he recorded her statement in Govt. Hospital at Bidar. Of course, Sri Nagappa, husband of the victim is now no more and hence, he has not been examined, though cited as a witness in the charge sheet. It is the version of PW15 that the doctor was present throughout when he recorded the statement. He has admitted that no endorsement of the doctor was obtained by him on Ex.P11. PW15 has not mentioned the name of the doctor who was present at that time and the letter given by the doctor to PW15 about her mental condition is not produced before the court. 16. PW15, Mohan has deposed that he came to know of the Tahsildar recording the statement of Yallamma. PW15 has not mentioned the name of the doctor who was present at that time and the letter given by the doctor to PW15 about her mental condition is not produced before the court. 16. PW15, Mohan has deposed that he came to know of the Tahsildar recording the statement of Yallamma. Later, Ex.P16 is stated to be the statement of Yallamma recorded by the Tahsildar, Smt.Usharani (PW18) between 2.30 p.m. and 3.00 p.m. in the presence of the doctor. Ex.P16 is in the form of question and answer. PW20, Dr.Sudheer who was working as a senior specialist in Govt. Hospital, Bidar, on that day has deposed about the Tahsildar recording the statement of Yallamma in his presence. He has further deposed that she was capable of giving statement. Ex.P16(b) is his endorsement found on Ex.P16. The certificate of the Tahsildar is marked as Ex.P16(a) and that of Dr.Sudheer is marked as Ex.P16(b). The translation to English is as follows: Ex.P16(a): This is to certify that the dying declaration is recorded in the presence of the medical officer. Sd/TAHSILDAR Ex.P16(b): This is to certify that the above statement is recorded in my presence in Govt. Hospital, Bidar, on 18.6.2007 at 2.30 p.m. Sd/DOCTOR 17. Ex.P11 is the basis for lodging the FIR as per Ex.P12. Hence criminal investigating agency was set into motion through Ex.P11. Ex.P16 is the dying declaration of the victim Yallamma stated to have been recorded by the Tahsildar, Bidar, Smt.Usharani, between 2.30 p.m. and 3.00 p.m. in the presence of Dr.Sudheer, senior specialist at Govt. Hospital, Bidar. Dr.Sudheer has testified as PW20 that it was in his presence that Ex.P16 was recorded by the Tahsildar and he has certified to that effect. If the doctor was really present when Ex.P11 was recorded by PSI Mohan, nothing came in his way to have obtained the certification, though such a certification is not mandatory as per the decision rendered in the case of LAXMAN (supra). This assumes more importance in the light of the assertion of PW15 that the recorded statement of Yallamma in the presence of doctor, that too, after obtaining the letter from him about her mental condition. But Dr.Sudheer has not at all spoken anything about the presence of PSI, Mohan in Govt. Hospital, Bidar, or recording her statement in his presence. This is one strong circumstance to doubt the veracity of Ex.P11. 18. But Dr.Sudheer has not at all spoken anything about the presence of PSI, Mohan in Govt. Hospital, Bidar, or recording her statement in his presence. This is one strong circumstance to doubt the veracity of Ex.P11. 18. Ex.P11 and Ex.P16, according to the prosecution, came into being almost at the same time as is evident from the time of recording it. It is ununderstandable as to how PSI Mohan could record the statement of Yallamma at 2.30 p.m. when Smt.Usharani, Tahsildar had commenced recording the statement of the same victim at 2.30 p.m. This assumes importance in the light of the deposition of Mohan that except himself, Nagappa (deceased’s husband) and the doctor, nobody was present at that time. This is also a strong circumstance which creates a reasonable doubt in the mind of the court about the authenticity of Ex.P11. 19. In paragraph 14 of the judgment, the learned judge has made necessary discussion about Ex.P11 being recorded by Mohan and has opined that there is nothing placed on record to disbelieve Ex.P11 recorded by PW15, Mohan. But the learned judge has not tested the same on the basis of broad preponderance of probabilities, keeping in mind the two strong circumstances considered by this court. 20. Apart from this, the police is expected to lodge FIR before the jurisdictional judge without undue delay. If case was registered at 6.15 p.m. and Ex.P11 and P12 were handed over to the P.C. 931 at 7.15 p.m. on the same day, it is ununderstandable as to how they could be lodged at 12.00 midnight by P.C. 931 before the JMFC. Neither the constable is cited as a witness nor examined before court about the delay. This circumstance will also create a reasonable doubt about Ex.P11 being recorded between 2.30 p.m. and 4.00 p.m. by PSI, Mohan. 21. On assessment of the relevant evidence relating to Ex.P11, it can be said that it is very difficult to accept Ex.P11 as a credible evidence, more particularly to be considered as a dying declaration under Section 32 of the Indian Evidence Act. Hence the trial court is not justified in treating Ex.P11 as a dying declaration. Accordingly point no.(1) is answered in the negative. 22. Hence the trial court is not justified in treating Ex.P11 as a dying declaration. Accordingly point no.(1) is answered in the negative. 22. Point no.(2): The trial court has relied upon the evidence of Balappa examined as PW10 and Shobha examined as PW11 and the evidence of PW18, Usharani and also PW20, Dr.Sudheer to convict the accused. Further reliance is placed upon Ex.P16, dying declaration of Yallamma stated to have been recorded by the Additional Tahsildar (PW18). 23. Balappa is the son of deceased Yallamma. It is his case that he went to Government Hospital on the same day at about 2.00 p.m. and saw his mother. She was in a fit mental condition and told him about the cause of the injuries sustained by her. It is his case that his mother told him that Shettavva and Lakshmi entered her house, poured kerosene and then ignited her clothes with a matchstick and went away. The evidence of PW10 is the proof regarding the oral dying declaration. 24. Admittedly Balappa was not in the house when his mother sustained burn injuries. It is his case that he had gone to Humnabad for work and when he came to know of the incident, he came straight to the hospital and doctors were treating her. On enquiry, she is stated to have told him that on enquiring as to why they cut tamarind tree, they threatened her and later came to the house and set her ablaze. It is his assertion that his wifeShobha was very much present in the house. 25. PW10, Balappa has been crossexamined at length. His brothers are working at Mumbai. He has admitted that there was a dispute between them and the accused in respect of land and that accused had filed criminal case which was pending in Humnabad court. Shettavva is none other than his aunt. He is stated to have left at 10.00 a.m. on the day of the incident and the distance between Humnabad and Bheemalkhed is 35 kms. He does not remember as to who informed him about the incident when he was at Humnabad. It is his specific case that his wife was not in the hospital and his father and Gangamma were in the hospital. 26. In further crossexamination, PW10 has deposed that he came to Bidar at 2.00 p.m. and Yallamma and Thippavva also came. He does not remember as to who informed him about the incident when he was at Humnabad. It is his specific case that his wife was not in the hospital and his father and Gangamma were in the hospital. 26. In further crossexamination, PW10 has deposed that he came to Bidar at 2.00 p.m. and Yallamma and Thippavva also came. No police persons were there in the hospital and they came later. Suggestion put to him that his mother had set herself ablaze as she was quarrelling with his father and everybody knew that, is specifically denied. Suggestion that his mother was fully unconscious and was not able to make out anything has been specifically denied. A suggestion put to him that his mother did not tell him anything about the incident is also specifically denied. Though he has been crossexamined at length, nothing useful has been elicited to discredit his version. It is not suggested that he did not go to the hospital to see his mother. 27. We have the evidence of Dr.Sudheer (PW20). He was working as a senior specialist in Government Hospital at Bidar on that day. He has testified about the Tahsildar, Smt. Usharani seeing the patient Yallamma and inquiring with him about her mental condition and later on recording her statement. The fact that Dr.Sudheer was working as a senior specialist on that day is not in dispute. Though he had not treated the victim Yallamma and though he does not know as to the doctor who treated her, his presence in the hospital at that point of time cannot be doubted. Though he has feigned ignorance about the exact time of recording the dying declaration, suggestions put to him that he was not at all on duty and he did not state anything about the condition of the victim to the police and that the police obtained his signature on Ex.P16 in his office, have been specifically denied. 28. Ex.P16 is the dying declaration of Yallama stated to have been recorded by PW18, Smt.Usharani, working as Special Tahsildar at Bidar at that point of time. She has deposed that she recorded the dying declaration of Yallamma between 2.30 p.m. and 3.00 p.m. on 18.6.2007 in Government Hospital only after ascertaining from the doctor that Yallamma was capable of giving statement. The statement of Yalamma is in the form of question and answer. She has deposed that she recorded the dying declaration of Yallamma between 2.30 p.m. and 3.00 p.m. on 18.6.2007 in Government Hospital only after ascertaining from the doctor that Yallamma was capable of giving statement. The statement of Yalamma is in the form of question and answer. Ex.P16 bears her certificate in regard to recording the statement of Yallamma and the statement of Dr.Sudheer about her mental condition and the same being recorded in his presence. It is his case that he did not hand over the cover containing the dying declaration of Yallamma to the police, but it was sent to the court by his predecessor and it had been sealed. The sealed cover is marked as Ex.P17. 29. Admittedly Ex.P17 was opened in court and Ex.P16 was got marked through PW18 in the court. She has been crossexamined at length by the learned counsel for the accused. It is her case that she received a requisition letter from Bhemalkhed police station at 1.30 p.m. She had prepared the questions and then went to the hospital along with a case worker. At that time Yallalmma was being treated by doctors and has lot of burns on her body. It is her case that the relatives of Yallamma were not inside the room and outside the room. It is true that there is no mention about the requisition being received from the police in Ex.P16, but that is no ground to disbelieve the authenticity of the said document. In fact PW15 has specifically deposed that he had requested the TahsildarPW18 to go to the hospital and record the statement of the victim. 30. The statement vide Ex.P16 was recorded between 2.30 p.m. and 3.00 p.m. and the cover containing the dying declaration was sealed in the office of the doctor and on the cover it was mentioned as the statement of Yallamma, w/o Nagappa. It is the specific case of PW20 that he did not meet the husband of the deceased. PW18 is a disinterested witness being a Tahsildar. Her presence is vouchsafed by the presence of PW20, Dr.Sudheer who is also a disinterested witness. Suggestions put to them that the statement of the victim was not recorded in the Government Hospital at Bidar and that they are deposing falsely without recording the dying declaration have been specifically denied. PW18 is a disinterested witness being a Tahsildar. Her presence is vouchsafed by the presence of PW20, Dr.Sudheer who is also a disinterested witness. Suggestions put to them that the statement of the victim was not recorded in the Government Hospital at Bidar and that they are deposing falsely without recording the dying declaration have been specifically denied. Nothing has been elicited to disbelieve the credibility of these two important witnesses, viz., PW18 and PW20. 31. It is relevant to look to Ex.P16 which is in Kannada. As already discussed, it is in the form of question and answer. The translation of the same is reproduced below: APPENDIX III Statement for order, etc. (Chapter 14) Dying declaration of Yallamma, w/oNagappa recorded by Smt.Usharani, Tahsildar and TEM, Bidar on the basis of the letter of PSI Statement recorded in Kannada in Bidar: 18.6.2007 What is your name Yallamma, w/o Nagappa Name of father Not known Age Occupation grinding stone coolie What is your native place Bhemalkhed 1 Are you in a position to give statement? No 2 Are you in a position to speak? Little 3 Where are you now? Hospital 4 Who brought you here, when and how? Our village people of Bhemalkhed 5 At that time who was present? Motherinlaw, daughterinlaw were in house 6 What are their names? Shettavva, daughter in law Lakshmi 7 How do you identify them? My mother inlaw brother inlaw 8 How did you sustain injuries? House Shobha and Lakshmi both of them set me ablaze at11.00 in the morning 9 Can you tell the type of weapons Causing burns by Pouring oil 10 Which are the parts of the body injured? Face, hands, chest, hair of on the head, little on back 11 Are you in a position to know that you have sustained injuries? Yes 12 Can you answer as to how sustained injuries? you caught flame from terricot What is the reason for causing injuries? Shobha, Lakshmi LTM The presence of PW18, Smt.Usharani in the hospital is vouchsafed by the version of PW20, Dr.Sudheer. Cogent reasons have been assigned as to how the dying declaration stated to have been recorded by PW15 appears to be doubtful and it cannot be acted upon as a dying declaration. But Ex.P16 is vouchsafed by the evidence of its author, Smt.Usharani (PW18) and Dr.Sudheer (PW20). Cogent reasons have been assigned as to how the dying declaration stated to have been recorded by PW15 appears to be doubtful and it cannot be acted upon as a dying declaration. But Ex.P16 is vouchsafed by the evidence of its author, Smt.Usharani (PW18) and Dr.Sudheer (PW20). At the time of recording the statement, other than the doctor and case worker and Smt.Usharani, nobody was inside the room in which the victim was being treated. Both PWs18 and 20 have withstood the rigor of crossexamination and there is no reason to disbelieve their evidence. 32. On considering the overall evidence of these two witnesses, it could be said with certainty that Ex.P16 came into being between 2.30 p.m. and 3.00 p.m. and the victimYallamma was in a fit mental condition. 33. What is argued before this court by the learned counsel for the accused is that the injured could not have given any statement since she had sustained 9598% burns. In this regard, the evidence of PW20, Dr.Sudheer is relevant. In examinationinchief, he has deposed that Yallamma was capable of giving statement and therefore, the Tahsildar recorded her statement. 34. Nowhere it is suggested to him that she was not in a position to give any statement because of the burn injuries. Even in cases of 9598% burns, victims will be in a position to give statement and there is no presumption that the victim suffering from burns of a higher degree would be invariably in an unconscious state or unfit state to give statement. 35. The question and answer put to Yallamma would disclose that she was in a condition to speak. In fact Balappa, son of Yallamma has withstood the rigor of crossexamination. Nothing is brought out from his mouth even to remotely probablize that he was not present at 2.00 p.m. on that day in Bidar hospital to talk to his mother. He has further deposed that his wife was not in the hospital and his father and Gangamma were in the hospital at that time. A suggestion put to him that he did not go to Humnabad on that day and that his mother did not tell him anything and that she had set herself ablaze has been specifically denied. 36. He has further deposed that his wife was not in the hospital and his father and Gangamma were in the hospital at that time. A suggestion put to him that he did not go to Humnabad on that day and that his mother did not tell him anything and that she had set herself ablaze has been specifically denied. 36. On assessing the entire oral evidence of Balappa in the light of surrounding circumstances, this court is of the opinion that the trial court is justified in relying upon the oral dying declaration of Yallamma given to Balappa and that is proved beyond reasonable doubt. 37. Smt.Shobha is the daughterinlaw of Yalamma. It is forthcoming from the evidence of Balappa as also Shobha that in their house Nagappa, Yallamma, Balappa and Shobha were living together. The other brothers of Balappa, viz., Bheema and Hanumantha were working in Mumbai for quite a long time. The fact that Shobha, Balappa, Nagappa and Yallamma were living together in Bhemalkhed is not seriously disputed. What is deposed by Shobha is that the accused persons quarreled with her motherinlaw in regard to the cutting of tamarind tree by them and had threatened the victim. She has specifically deposed that the accused came to their house and poured kerosene and Lakshmi set her ablaze. She came out of the house screaming and the accused ran away. Suddenly her fatherinlaw and Gangamma rushed to her house and poured water and took the victim to Bhemalkhed hospital. 38. The evidence of a witness includes crossexamination. She has specifically deposed that there are 810 houses in the vicinity of their house. She has admitted that there was a land dispute between them and the accused. Therefore learned counsel for the accused has vehemently argued that because of the dispute, they have been falsely implicated. Motive could be a doubleedged weapon. It could be false implication or to commit an offence. A suggestion is put to her that Nagappa was not looking after Yallamma properly and had sold all the properties and therefore they were quarreling with each other often and therefore, upset with his attitude, she set herself ablaze. This suggestion has been specifically denied. Nothing is elicited from the mouth of material witnesses to probablize this suggestion even remotely. 39. This suggestion has been specifically denied. Nothing is elicited from the mouth of material witnesses to probablize this suggestion even remotely. 39. The fact that the death of Yallamma was due to burn injuries sustained as a result of kerosene being poured and subsequently ignited is not in dispute. It is true that during the course of her cross-examination, Shobha has stated that the accused had never come to their house earlier to the incident and did not know the things available in their house. Accused persons pushed her and entered the house and she came out of the house when they entered. It is her case that 2/3 houses next to her house, her mother was sitting in the house of Gangamma and she brought them. She has specifically deposed that she saw kerosene being poured on her motherinlaw and Lakshmi lighting the matchstick and setting ablaze. 40. What is sought to be argued by the learned counsel for the appellants is that normal tendency would be to save the injured and Shobha did not make any attempt. Different persons react differently under different circumstances. The moment she saw her motherinlaw being set ablaze, she came out of the house screaming in order to take the help of people. It is her specific case that her mother and fatherinlaw rushed to the house and tried to save Yallamma. A suggestion put to her that her motherinlaw was not capable of talking has been specifically denied. In fact, Shobha has also withstood the rigor of crossexamination. Just because she is the daughterinlaw of the deceased, her evidence cannot be rejected outright. The only caveat is to assess her evidence with caution. 41. On looking to the entire evidence of Shobha and surrounding circumstances, this court is of the opinion that the trial court is justified in relying on her evidence since she was an eyewitness to the incident in question. Thus the trial court is justified in relying on Ex.P16, dying declaration recorded by Usharani (PW18) in the presence of PW20, Dr.Sudheer and further justified in relying upon the evidence of PW10 (Balappa and his wife Shobha (PW11). Though there are some inconsistencies here and there, they do not go to the root of the case and their evidence is otherwise acceptable. Hence, point no.(2) is answered in the affirmative. 42. Though there are some inconsistencies here and there, they do not go to the root of the case and their evidence is otherwise acceptable. Hence, point no.(2) is answered in the affirmative. 42. Point no.(3): What is argued before this court is that the trial court is not justified in convicting the accused for the offence punishable under Section 302, I.P.C. and that exception 4 to Section 300, I.P.C. is squarely applicable to the facts of the present case. In this regard, learned counsel for the appellant has relied upon a decision of the Hon’ble apex court rendered in the case of K.RAVIKUMAR .v. STATE OF KARNATAKA reported in 2015(1) Crimes 7 (SC) wherein it is held that if there is no premeditation in commission of the crime and if there is no motive or enmity, and if the incident has taken place due to sudden quarrel or provocation and the consequence is death, it would be culpable homicide not amounting to murder. 43. As per the facts of the case of RAVIKUMAR (supra), Padma, daughter of Lakshmi examined as PW2 was married to Ravikumar. At the time of his marriage, Ravikumar was a trainee constable in KSRP and was later posted to Bangalore and was living with his inlaws. In 1996, the couple was blessed with a child and he shifted his family to his parental house at Mandya. After some time, he sent his wife to her parents’ house for delivery of the second child. In the meantime, Ravikumar was transferred to Mysore and he shifted his family to Kurubarahalli village. On 11.8.2004, he got a message that his aged father was seriously ill. Ravikumar asked his wifePadma to accompany him to live in Mandya. But Padma did not agree and told him that they could go the next day. The issue led to heated exchange of words and ultimately the appellantRavikumar lost his mental balance and allegedly stabbed Padma with a knife and poured kerosene. Leaving his wife in the house seriously injured, Ravikumar took his two sons to Mandya to see his ailing father. It is alleged that he gave Rs.20/and Rs.10/to his sons and told them not to divulge about the incident to anyone. 44. After 2 days, Ravikumar returned with his sons from Mandya and attempted to make others believe that Padma was alone and called the neighbours. It is alleged that he gave Rs.20/and Rs.10/to his sons and told them not to divulge about the incident to anyone. 44. After 2 days, Ravikumar returned with his sons from Mandya and attempted to make others believe that Padma was alone and called the neighbours. The door lock was opened with the help of skilled labour and they found the burnt body of Padma. Someone informed this to his brotherinlaw in Bangalore that Padma was taken to K.R.Hospital and on receiving the information, Lakshmi, mother of Padma, rushed to Kurubarahalli village with her son and younger brother. There she saw the burnt body of Padma. On enquiry with the children, specially Nandan, the elder son of the victim, he narrated the entire incident on the basis of which FIR was lodged by Lakshmi to Nazarbad police station. After concluding investigation, charge sheet was filed for the offences punishable under Sections 302 and 498A, I.P.C. 45. The appellant in the said case, i.e. Ravikumar was convicted by the sessions judge. The appeal filed before this court in Crl.A.689/06 was dismissed. What was argued before the Hon’ble apex court is that the said case had fallen within exception 4 to Section 300, I.P.C. and the incident took place due to a sudden fight which had ensured and there was no premeditation. It was argued that the act of stabbing Padma and pouring kerosene and igniting her was the outcome of heat of passion upon such quarrel. 46. Section 300, I.P.C. has four exceptions and it is reproduced below: 300. Murder: Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Exception 1: … Exception 2: … Exception 3: … Exception 4: Culpable homicide not amounting to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. As many as six illustrations have been appended to the exception to Section 300. 47. As per the facts in the case of RAVIKUMAR (supra), there was no enmity between the couple at any point of time. The heated exchange took place because of the reluctance of Padma to go to Mandya. As many as six illustrations have been appended to the exception to Section 300. 47. As per the facts in the case of RAVIKUMAR (supra), there was no enmity between the couple at any point of time. The heated exchange took place because of the reluctance of Padma to go to Mandya. Being enraged by her refusal to accompany him to see his ailing father, he stabbed her and poured kerosene. But in the present case, accused had filed a case against the deceased and other family members and there is specific admission to this effect. They were not on talking terms and the hidden enmity was evident. There was a verbal exchange of words between the deceased, accused and Nagappa is stated to have sent his wife back home. After some time, both the accused went inside the house, poured kerosene and ignited her. Thus the facts of the present case are clearly distinguishable with the facts forthcoming in the case of RAVIKUMAR. 48. In the said case, prosecution had not placed any evidence to prove any kind of constant quarrel ensued in the last 9 years between the couple. Therefore the said decision is not applicable to the facts of this case and the trial court is justified in convicting the accused for the offences punishable under Sections 448 since they had trespassed into the house with an intention to commit cognizable offence. The case on hand does not fall within any one of the exceptions to 300, I.P.C. and therefore the trial court was justified in convicting the accused under Section 302, I.P.C. Accordingly point no.(3) is answered in the affirmative. 49. Learned counsel for the appellants has vehemently argued that both the accused are ladies and are poor people and come from the downtrodden section of the society. In fact, when a person is convicted for the offence punishable under Section 302, I.P.C. and if the case on hand does not fall within the rarest of rare cases, imposition of life imprisonment is called for. The trial court has rightly assessed the oral and documentary evidence in right perspective and sentenced them to imprisonment for life and a fine of Rs.10,000/each for the offence punishable under Section 302, I.P.C. and to undergo imprisonment for 3 months each and to pay a fine of Rs.1,000/each. 50. The trial court has rightly assessed the oral and documentary evidence in right perspective and sentenced them to imprisonment for life and a fine of Rs.10,000/each for the offence punishable under Section 302, I.P.C. and to undergo imprisonment for 3 months each and to pay a fine of Rs.1,000/each. 50. In the light of the accused being ladies and being financially poor, there could be some concession insofar as fine amount is concerned. Taking into consideration the financial background of the ladies, fine could be reduced to Rs.5,000/each instead of Rs.10,000/imposed by the trial court for the offence punishable under Section 302, I.P.C. Insofar as the offence punishable under Section 448, I.P.C. is concerned, the sentence of fine could be given up. Accordingly the appeal will have to be allowed in part only to the extent of fine. All other findings of the trial court are to be confirmed. 51. In the result, the following order is passed: ORDER The judgment of conviction passed in S.C.91/08 for the offence punishable under Sections 448 and 302, I.P.C. is confirmed. The sentence of imprisonment for life for the offence punishable under Section 302, I.P.C. and three months for the offence punishable under Section 448, I.P.C. is affirmed. Imposition of fine of Rs.1,000/for the offence punishable under Section 448, I.P.C. is set aside. Insofar as the fine amount of Rs.10,000/imposed by the trial court relating to the offence punishable under Section 302, I.P.C. is concerned, it is reduced to Rs.5,000/each. All other findings of the trial court remain confirmed. Accordingly the appeal is allowed in part. Registry to provide a copy of this judgment free of cost to the appellants at the earliest.