JUDGMENT : 1. This appeal is preferred by the appellant – accused against the judgment of conviction and order of sentence passed by the II Additional District & Sessions Judge, Davanagere in S.C.No.102/2011 dated 4.3.2013 convicting the accused for the offence punishable under Sections 498A and 302 of IPC and sentencing him to undergo rigorous imprisonment of 1 year and to pay a fine of Rs.5,000/- for the offence punishable under Section 498A IPC, inclusive of default clause and further to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 IPC inclusive of default clause. The said judgment has been challenged in this appeal urging various grounds. 2. The factual matrix of the appeal is as under: On 13.05.2011 the victim Smt. Shivarudramma had given a statement before the Head Constable Suresh PW-15 at about 7.45 p.m. Based upon her statement, a case in Crime No.52/2011 for the offences punishable under Sections 498-A and 307 of the IPC came to be registered. In her statement, she had stated that about 16 years ago her marriage was performed with the accused Channabasappa as per the customs prevailing in the society. Subsequent to her marriage, she did not give birth to children. The said Channabasappa was addicted to consuming liquor and was in the habit of picking up quarrel with his wife frequently. He is also said to have given physical as well as mental harassment to her in the influence of alcohol. The harassment had been tolerated by her to lead her marital life with him. Despite of the same, he had continued to give harassment. On 12.05.2011 at about 3.30 p.m., her brother-in-law namely Umesha’s marriage was attended by herself and her husband Channabasappa. After the function, Channabasappa is said to have consumed alcohol and come to the house and picked up a quarrel with Shivarudramma abusing her in filthy language and then asked her to go and die. Saying so, the accused Channabasappa had brought the kerosene can and doused her with kerosene and then set her ablaze by lighting a matchstick. As a result, she sustained burn injuries all over her body. While she came out of the house full of flames, villagers on seeing her had extinguished the fire and then had secured a 108 ambulance and had taken her to Jagalur Government Hospital for treatment. As a result, she sustained burn injuries all over her body. While she came out of the house full of flames, villagers on seeing her had extinguished the fire and then had secured a 108 ambulance and had taken her to Jagalur Government Hospital for treatment. Shivarudramma had sustained burn injuries on the chest, back, stomach, both her hands as well as on the knee and was initially treated in the said Jagalur hospital. Later, on the advice of the Doctor, she was shifted to CG Hospital, Davanagere for better treatment. She was admitted in that hospital in Burn Ward Nos.73 and 74. She sustained burn injuries due to her husband Channabasappa pouring kerosene on her and setting her ablaze. Based upon her statement, initially the case in Crime No.52/2011 for the aforesaid offences came to be registered. Thereafter the case was proceeded for investigation. However, the said Shivarudramma succumbed to the injuries after three days in the CG Hospital, Davanagere. On requisition made by the police an offence under Section 302 IPC was invoked in the aforesaid crime number. 3. Heard the learned counsel for the appellant and the learned Additional SPP for the State. 4. In order to establish the guilt of the accused, the prosecution in all examined 24 witnesses as PW-1 to PW-24 and got marked Exhibits P-1 to P-32, apart from getting marked material objects MO-1 to MO-4. Subsequent to closure of the prosecution evidence, the accused was examined as required under Section 313 Cr.P.C. for incriminating statement appearing against the accused, wherein the accused has denied the evidence put forth by the prosecution. Subsequently, as contemplated under Section 233 Cr.P.C. the accused had also let in defence evidence as DW-1 and DW-2 and got marked Exhibits D-1 to D-9. Subsequently, the court below heard the arguments advanced by the prosecution and the defence counsel and thereafter arrived at a finding that the prosecution has proved the guilt of the accused for the offences under Sections 498A and 302 of IPC. It is the said judgment which is under challenge in this appeal. 5. Subsequently, the court below heard the arguments advanced by the prosecution and the defence counsel and thereafter arrived at a finding that the prosecution has proved the guilt of the accused for the offences under Sections 498A and 302 of IPC. It is the said judgment which is under challenge in this appeal. 5. The learned counsel for the appellant has strenuously contended that Exhibit P-13, the statement recorded by PW-15 Suresh, the Head Constable of Jagalur Police Station and Exhibit P-18, the dying declaration said to be recorded by PW-21 the Taluk Executive Magistrate, Davanagere, which are considered to be the basis for convicting the accused, are itself seriously doubted. Moreover, the Trial Court has not properly appreciated the oral and documentary evidence on record and has misdirected itself to convict the accused. The learned counsel has contended that the fire was accidental. The deceased Shivarudramma had gone to the kitchen to prepare tea and while lighting the fire with the help of kerosene, fire had caught the synthetic saree and thereafter she sustained severe burn injuries upto 80%. It is her brother Thippeswamy and another relative of the accused namely Venkatesh who had shifted her to Jagalur Hospital where she was provided first aid. Since the burns were extensive, as per the advice of the Doctor at Jagalur Hospital, Shivarudramma was then shifted to CG Hospital, Davanagere. It was her brother Thippeswamy who was the one who had signed the History sheet at Jagalur Hospital that the injured was conscious and well oriented where the history of the burns was given as accidental burns. Moreover, the accused Channabasappa was working as a cook in Government Backward Class Hostel at Jagalur and on that particular date of the incident, he had prepared food in the said hostel for the lunch as well as dinner. His presence in the hostel on 12.05.2011 is also evidenced by producing the attendance register. Though Shivarudramma and Channabasappa had no issues, they had been leading a happy marital life for more than 16 years and there was no reason for the accused to get rid of her. The learned counsel contends that a false case has been foisted against the accused in collusion with the Investigating authorities. Though Shivarudramma and Channabasappa had no issues, they had been leading a happy marital life for more than 16 years and there was no reason for the accused to get rid of her. The learned counsel contends that a false case has been foisted against the accused in collusion with the Investigating authorities. Further, the learned counsel contends that the dying declarations Exhibits P-13 and P-18 referred to above have been recorded in suspicious circumstances, since the deceased is said to have sustained 85% burns, that too both her hands had been wounded due to the fire spreading in her hands as well. Hence, she would not have been in a position to endorse her signature with her wounded palm and hands. Moreover, it cannot be believed that a person who had suffered 85% burns could have been in a befit mental and physical condition to give her statement. Hence, the statements recorded at Exhibits P-13 and P-18 are seriously doubted. There are a lot of discrepancies in the statements of the witnesses recorded by the Investigating Officer, which cannot be totally believed to be true. Hence, benefit of doubt ought to have been extended to the accused. However, the learned Trial Judge has misdirected itself in convicting the accused and sentencing him for the aforesaid offences. The learned counsel for the appellant – accused has placed reliance on the following judgments of the Apex Court to support his contentions: (i) SAWAL DAS vs. STATE OF BIHAR ( AIR 1974 SC 778 ) (ii) RASHEED BEG AND OTHERS vs. STATE OF M.P. ( AIR 1974 SC 332 ), (iii) K. RAMACHANDRA REDDY AND ANOTHER vs. THE PUBLIC PROSECUTOR ( AIR 1976 SC 1994 ) Hence, the learned counsel for the appellant prays that the judgment passed by the Trial Court be set aside and the appeal be allowed by acquitting the accused of the offences levelled against him. 6. Per contra, learned Additional SPP strenuously contended before the Court that though there are some minor discrepancies and some lapses on the part of the Investigating Officer in recording the statement of the witnesses, but the core of the prosecution is not disturbed even if the said lapses are taken into consideration. It cannot be ruled out that the deceased caught fire and died due to more than 85% burn injuries. It cannot be ruled out that the deceased caught fire and died due to more than 85% burn injuries. However, it is also not in dispute that the dying declarations at Exhibits P-13 and P-18 have been recorded by responsible persons. For instance, Exhibit P-18 dying declaration has been recorded by PW-21 Taluk Executive Magistrate in the presence of PW-20 Dr. Parvathamma who has stated in her evidence that she has personally subjected to examine the victim Shivarudramma whether she was in a position to speak and she was conscious and oriented to give her statement. Only subsequent to ascertaining that Shivarudramma was in a befit state of mind to give her statement, Exhibit P-18 the dying declaration has been recorded by PW-21 Taluk Executive Magistrate, Davanagere. Hence, the statement recorded cannot be doubted on the basis of surmises. PW-14 Dr. Tulasinaika had also examined the deceased Shivarudramma before PW-15 Suresh, Head Constable of Jagalur PS could record her statement and had given an endorsement at the end of Exhibit P-13 that the statement was given by the victim Shivarudramma as she was in a befit condition to give her statement. The victim Shivarudramma was responding to oral commands and she was in a befit mental condition to give her statement in respect of the incident. Therefore, the oral evidence of PW-14, PW-15, PW-20 and PW-21 said to be examined for the prosecution are corroborative with each other. It is on those material aspects placed by the prosecution the guilt of the accused has been proved. The material aspects discussed by the Trial Court and also the evidence of PW-14 and PW-20 coupled with the evidence of PW-21 Taluk Executive Magistrate and so also the evidence of PW-15 Head Constable Suresh who recorded her statement initially at Exhibit P-13 though these witnesses have been subjected to cross-examination thoroughly by the defence counsel and nothing worthwhile has been elicited to disbelieve the contents at Exhibit P-13 of the victim statement and based upon her statement, FIR has been recorded as per Exhibit P-14 and so also the contents at Exhibit P- 18 of the dying declaration recorded by PW-21 the Taluk Executive Magistrate and so also the post-mortem report at Exhibit P-12 wherein the victim Shivarudramma had sustained burn injuries reflected in the autopsy report. The dying declaration at Exhibits P-13 and P-18 which are said to be given by the deceased Shivarudramma have been appreciated by the Trial Court in a proper perspective, as the Doctor had also opined that she was in a befit mental condition to give her statement. She being oriented and capable of giving such statement, the same are true statements of the deceased. Therefore, the evidence of PW-14, PW-15, PW-20 and PW-21 have made it very clear to the court that though the deceased was suffering from severe burn injuries, but at the time of recording her statements, i.e., by PW-15 Head Constable Suresh on 13.05.2011 and by PW-21 Taluk Executive Magistrate, Davanagere on 14.05.2011, the victim was conscious and oriented and was in a befit mental condition to give her statement. The same has been appreciated by the Trial Court in a proper perspective and has rightly come to the conclusion that the prosecution has established the guilt of the accused beyond all reasonable doubt. It is further contended by the learned Additional SPP that if the material contents at Exhibits P-28, P-29 and P-30 and so also other documents on record placed by the prosecution reveals that while victim Shivarudramma was in Jagalur Hospital, MLC intimation was given to the Jagalur P.S. wherein PW-15 Head constable rushed to the said hospital and made an enquiry with one Venkatesh, the brother of the accused and recorded his statement as per Exhibit P-29 wherein the said Venkatesh has stated the case as accidental fire while the victim was preparing tea. But, on the basis of the material circumstances, police have treated the case as HMR.89/2011, whereas the evidence of PW-14 and 15 and so also the Investigating Officer and the documents at Exhibit P-13 goes to show that on 13.05.2011 on the basis of the intimation of Out Police Station of CG Hospital, Dvanagere, PW-15 Head Constable who rushed to the hospital and made an enquiry with the victim Shivarudramma and recorded her statement as per Exhibit P-13. The same reveals that she has sustained such burn injuries due to the direct act of the accused Channabasappa and accordingly, the police registered an FIR for offences punishable under Sections 498A and 307 IPC. But, while she was under treatment in the said hospital, she breathed her last due to the extensive burn injuries sustained by her. The same reveals that she has sustained such burn injuries due to the direct act of the accused Channabasappa and accordingly, the police registered an FIR for offences punishable under Sections 498A and 307 IPC. But, while she was under treatment in the said hospital, she breathed her last due to the extensive burn injuries sustained by her. The statement at Exhibit P-18 recorded by PW-21 Taluk Executive Magistrate also reveals the said fact. Therefore, all the materials are sufficient to hold that the accused is responsible for the death of the deceased Shivarudramma who was meted physical as well as mental harassment by her husband who had ultimately also set her ablaze, which was the cause of her death due to she sustaining extensive burn injuries. Therefore, the Trial Court has appreciated the evidence in a proper perspective and has come to the right conclusion in convicting the accused for the offences punishable under Sections 498A and 302 IPC. Hence, the judgment passed by the Trial Court does not call for any interference, as the prosecution has successfully proved the charges levelled against the accused. Therefore, it is contended that appeal be dismissed by confirming the impugned judgment of conviction and sentence. 7. On careful re-evaluation of the material on record both oral and documentary evidence and also on perusal of the impugned judgment of the Trial Court, the points that would arise for our consideration are: (i) Whether the judgment of conviction and sentence held against the accused is justifiable? 8. In order to appreciate and arrive at a proper conclusion and in order to answer the above said points, it is just and necessary for this Court to re-look into the evidence led by the prosecution and the relevant documents which were marked in evidence. Exhibit D7 which is the statement of Shri Thippeswamy who is none other than the brother of deceased Shivarudramma reveals that the incident occurred at 4.00 p.m. on 12.05.2011 at Shivarudramma’s house and that it was accidental. When Shivarudramma had gone inside the kitchen to prepare tea and when she tried to light the firewood with the help of kerosene, her saree had caught fire. This evidence has been given by her own brother which has been given at the first instance even before recording the dying declaration of the deceased. When Shivarudramma had gone inside the kitchen to prepare tea and when she tried to light the firewood with the help of kerosene, her saree had caught fire. This evidence has been given by her own brother which has been given at the first instance even before recording the dying declaration of the deceased. This is a very important evidence to give the benefit of doubt to the accused. This has been lost sight of by the Trial Court while convicting the accused. Exhibit D-9 is the case sheet maintained by the CG Hospital, Davanagere wherein the victim Shivarudramma was admitted in Ward Nos.73 and 74. In the said hospital, Thippeswamy, S/o. Durgappa had endorsed the case-sheet maintained by the hospital confirming the fact that his sister had sustained accidental burns. Exhibit D-9 reveals that she suffered from 85% burn injuries. The said Thippeswamy had given his consent to provide treatment to the deceased Shivarudramma. As a result, she was provided treatment in that hospital. Both Exhibits D7 and D9 which are said to be given by her brother Thippeswamy reveals that it was an accidental fire due to which Shivarudramma had sustained 85% burns as assessed by the Doctors in CG Hospital, Davanagere. Whereas the post-mortem report at Exhibit P-12 indicates that she sustained 75% burn injuries. Therefore, the learned counsel for the appellant has taken us through the contents of Exhibit D-7 and so also the contents of Exhibit D-9. These two are vital documents which ought to have been considered by the Trial Court. However, the same has not been appreciated by the Trial Court in a proper perspective. Hence, the same requires re-appreciation. The Investigating Officer PW-23 had laid the charge-sheet against the accused. In his evidence, he had stated that he had not secured certain documents relating to Shivarudramma where she took treatment in CG Hospital, Davanagere. But, Exhibits P-27, P-28 and P-29 have been got marked. Exhibit P-29 is said to be the statement of Venkatesha who is none other than the brother of the accused wherein he has stated that Shivarudramma sustained burn injuries due to accidental fire. Therefore, the contents at Exhibit P-29, the statement given by Venkatesha as well as the contents at Exhibits D-7 and D-9, statements said to be given by Thippeswamy are found to be consistent with each other relating to Shivarudramma sustaining burn injuries which were accidental. Therefore, the contents at Exhibit P-29, the statement given by Venkatesha as well as the contents at Exhibits D-7 and D-9, statements said to be given by Thippeswamy are found to be consistent with each other relating to Shivarudramma sustaining burn injuries which were accidental. The percentage of burn injuries to the extent of 85% as per the case sheet at Exhibit D-9 and to the extent of 75 % as per Exhibit P- 12 of PM report said to be issued by PW-13 Doctor who conducted autopsy though not relevant, the fact that the fire caught by her was accidental, ought to have been taken into considered by the Trial Court. Hence, this inconsistency requires to be re-appreciated in this appeal. The same has not been appreciated by the Trial Court in a proper perspective. Secondly, there are two statements of the deceased Shivarudramma said to have been recorded by PW-15 and PW-21, which have been considered as the dying declarations of Shivarudramma after her death. The first statement at Exhibit P-13 had been recorded by the Head Constable one Suresh of Jagalur Police Station in the CG Hospital, Davanagere. Before he could record the statement, Dr. Thulasinayaka PW-14 being the Doctor at CG Hospital, Davanagere had endorsed his signature to the effect that the deceased Shivarudramma was in a befit mental condition to give her statement as per Exhibit P-13. The second statement Exhibit P-18 was recorded by PW-21 being the responsible Taluk Executive Magistrate. PW-20 Dr. Parvatamma, Sr. Specialist at CG Hospital had endorsed her signature to the effect that Shivarudramma was in a befit mental condition to give her statement as per Exhibit P-18. As contended by the learned counsel for the appellant, the entire evidence of these witnesses for the prosecution appears to be camouflage. 9. Further, PW-1 to 7 are said to have given their statements as per Exhibits P-1 to P-7. However, these witnesses have not withstood their statements said to be recorded by the Investigating Officer during the course of investigation and it creates doubts in a theory projected by the prosecution. The records reveal that PW-1 / Chandramma and PW-2 / Gangamma have been subjected to examination by the prosecution in order to establish the guilt of the accused. However, these witnesses have not withstood their statements said to be recorded by the Investigating Officer during the course of investigation and it creates doubts in a theory projected by the prosecution. The records reveal that PW-1 / Chandramma and PW-2 / Gangamma have been subjected to examination by the prosecution in order to establish the guilt of the accused. Even though these witnesses have been examined in order to establish the guilt of the accused in respect of the offences under Sections 498A and 302 IPC, wherein the accused Channabasappa is said to have given physical as well as mental harassment to Shivarudramma and also made her to sustain burn injuries by dousing kerosene over her person and set her ablaze on 12.05.2011, but the said Channabasappa who worked as a cook in Government Hostel in Jagalur, was not very much present on 12.05.2011 at the scene of crime, it is having its vital consideration for the contention taken by the accused. However, at a cursory glance of the evidence of PW-1 and PW-2 as well as PWs 3, 4, 5, 6 and 7, it is seen that these witnesses have given a go-by to their versions and statements and so also their evidence runs contrary to the evidence of PW-15 Suresh being the Head Constable who recorded the statement of the deceased at Exhibit P-13 initially, based upon the statement of the victim Shivarudramma law had set in motion by recording an FIR and proceed with case for investigation and laid the charge sheet by the I.O., creates some clouds of doubts, as we opined. 10. Though Shivarudramma had given statements as per Exhibits P-13 and P-18, she has not disclosed as to how she had caught fire on 12.05.2011 and also she did not disclose even to her father PW-18 Hanumantappa who got information from one Ramappa of Siddammanahalli village about the incident of his daughter having sustained burn injuries. On receiving information, PW-18 Hanumantappa had immediately rushed to CG Hospital, Davanagere since she had already been shifted from Jagalur Hospital to provide higher treatment. It is revealed that PW-15 the Head Constable on instructions had proceeded to CG Hospital and recorded the statement of Shivarudramma as per Exhibit P-13. But in the evidence of PW-15, he has specifically stated that one Lingappa, police constable had also accompanied him and the statement was recorded by Lingappa. It is revealed that PW-15 the Head Constable on instructions had proceeded to CG Hospital and recorded the statement of Shivarudramma as per Exhibit P-13. But in the evidence of PW-15, he has specifically stated that one Lingappa, police constable had also accompanied him and the statement was recorded by Lingappa. But, the Investigating Officer has not recorded the statement of Lingappa and also not made any venture to secure him as a witness for the prosecution to establish their case. Further, the Investigating Officer has also not secured Ramappa who had telephonically informed Hanumantappa PW-18, the father of Shivarudramma about the incident, as a witness for the prosecution and had not made any venture to record his statement during investigation by I.O. 11. Therefore, there are clouds of doubt in the theory projected by the prosecution that on 12.05.2011 the accused Channabasappa, the husband of Shivarudramma had doused kerosene on her and set her ablaze by lighting a match stick. But, PW-23 Investigating Officer conducted seizure mahazar and also inquest over the dead body and laid the charge-sheet against the accused and it appears to be camouflage, as we opined. PW-24 is the PSI who had taken up the investigation in part. PW-15 is the Head Constable who had recorded the FIR based upon Shivarudramma’s statement at Exhibit P-13. However, subsequent to the death of the deceased Shivarudramma, her statement at Exhibit P-13 was termed as dying declaration and the same is requested to be appreciated in a greater care and caution coupled with other circumstantial evidence to prove the guilt of the accused as contended by the counsel for the accused. Therefore, the entire case of the prosecution revolves around the contents of Exhibits P-13 and P-18. These two documents are vital for the prosecution to prove the guilt of the accused. The second limb of the argument has been advanced is that DW-1 and DW-2 have been examined for the defence side and also got marked the relevant documents at Exhibits D1 to D9. But, the vital documents at Exhibit D-7 and another vital document at Exhibit D-9 have not been taken into consideration by the Trial Court while convicting the accused. In CG Hospital, Davanagere the deceased had survived for three days, i.e., till 15.05.2011 and while she was under treatment, she had died on that day. But, the vital documents at Exhibit D-7 and another vital document at Exhibit D-9 have not been taken into consideration by the Trial Court while convicting the accused. In CG Hospital, Davanagere the deceased had survived for three days, i.e., till 15.05.2011 and while she was under treatment, she had died on that day. Subsequent to the information given to the police, the police had given a requisition to the concerned Committal Magistrate Court and it is based upon the said statement that offences under Section 302 IPC has been invoked in the same crime number and the case was proceeded for investigation to lay the charge sheet. 12. It should not be lost sight of that Channabasappa, the husband of the deceased Shivarudramma had married her about 16 years back and they had led a happy marital life for a considerable period of 16 years. Till this period there was no incident of this nature. But on 12.05.2011 when the deceased was said to be preparing tea, at that time while she was lighting the firewood, fire came into contact with her saree and as a result she suffered injuries on her face, front part of her body as well as back portion of her body, which is indicated in the post-mortem report at Exhibit P-12 issued by PW-13 Doctor who conducted autopsy over the dead body. Moreover, she had sustained injuries on the upper parts of both her hands, i.e., epiderm. Since her hands including her palm were injured, it was not possible to subscribe her signature either on Exhibit P-13, the initial statement said to be given by her or on Exhibit P-18 dying declaration said to be recorded by PW-21 Taluk Executive Magistrate, Davanagere. Exhibit P-12 post-mortem report indicates that the victim sustained injuries on her stomach part as well as back portion including upper epiderm of both her hands. Therefore, she was not in a position to subscribe her signature. Whereas, the cross-examination of PW-13 Doctor who had given the autopsy report as per Exhibit P-12 revealed that her internal organs and lungs were fully reddish. Therefore, she was not in a position to subscribe her signature. Whereas, the cross-examination of PW-13 Doctor who had given the autopsy report as per Exhibit P-12 revealed that her internal organs and lungs were fully reddish. Therefore, learned counsel for the appellant has meticulously taken a contention that she would have felt pain in her internal organs and lungs as well and there were clouds of doubt as to whether she was in a befit physical as well as mental condition and was fully oriented to give her statement as per Exhibit P-18. Further, as contended by the learned counsel, we find that the Trial Court has misdirected as well as misread the entire evidence of the prosecution. Though the accused has not been present at the scene of crime on 12.05.2011 and also he did not douse the kerosene on Shivarudramma and set her ablaze, he has been implicated in the offence merely because of being her husband. Though attendance register of the Boys Hostel, Jagalur where Channabasappa worked as a cook had been produced to evidence the fact that he had attended to his work on 12.05.2011, the same has been brushed aside by the Trial Court. The pulse of Shivarudramma could not be examined when she was brought to CG Hospital, Davanagere. If a person is able to speak, then his blood pressure as well as pulse should be functioning properly. Since pain killing sedative drugs had been given her, the victim had given her statement as per Exhibit P-13. Her statement was completed at around 8.15 p.m. It is inferred that she was in a position to speak to give her statement as narrated at Ex.P.13 and so also at Ex.P.18. There is suspicion regarding the fact as to whether Shivarudramma was in a position to give her statement as per Exhibit P-13 which is said to be recorded by PW- 15, Suresh, Head Constable of Jagalur Police Station. The Doctor has not subscribed an endorsement bearing the signature of Shivarudramma. There is no endorsement to state that Suresh was deputed to record the statement of Shivarudramma as per Exhibit P-13. PW-20 Dr. Parvathamma had examined the victim Shivarudramma and had certified that she was in a befit mental condition to give her statement. Accordingly, on 14.05.2011, PW-21 Taluk Executive Magistrate had recorded her statement as per Exhibit P- 18. There is no endorsement to state that Suresh was deputed to record the statement of Shivarudramma as per Exhibit P-13. PW-20 Dr. Parvathamma had examined the victim Shivarudramma and had certified that she was in a befit mental condition to give her statement. Accordingly, on 14.05.2011, PW-21 Taluk Executive Magistrate had recorded her statement as per Exhibit P- 18. PW-20 the Doctor is said to have examined her pulse and also blood pressure and certified that she was in a position to speak. PW-21 Taluk Executive Magistrate had recorded her statement in question and answer format as per Exhibit P-18. The victim had stated that her marriage was performed with Channabasappa 18 years back and her husband was in the habit of drinking alcohol and harassing her. On 12.05.2011 he picked up a quarrel for simple reason and doused kerosene on her and threw a burning match stick on her. But in the cross-examination he has stated that he visited the burn ward where Shivarudramma was admitted, at that time Doctor and the nurse were present. But he did not know the Doctor who had provided treatment to the victim. The prosecution has placed much reliance on these witnesses relating to Exhibit P-13 of the statement said to be given by the victim Shivarudramma, subsequent to her death, it has been termed as her dying declaration. PW-15, Suresh, Head Constable had recorded her statement at Exhibit P-13. Exhibit P-18 is another dying declaration said to be recorded by PW-21 Taluk Executive Magistrate in the presence of Dr. Parvathamma. Therefore, the evidence of PW-14 and 15 as per Exhibit P-13 and the evidence of PW-20 and 21 as per Exhibit P-18 having a vital role for the prosecution. After the victim’s death, both Exhibits P- 13 and P-18 had become her dying declarations, which have to be considered with greater care and caution to connect the accused, but he same have not been appreciated by the Trial Court. Therefore, we are of the opinion to re-appreciate the same. Exhibits P-28 and 29 are also vital documents to support the case that it was an accidental fire and the accused was not responsible for the same. The statement of Venkatesh, S/o. Durgappa at Exhibit P-29 has been given by none other than the brother of the accused. Therefore, we are of the opinion to re-appreciate the same. Exhibits P-28 and 29 are also vital documents to support the case that it was an accidental fire and the accused was not responsible for the same. The statement of Venkatesh, S/o. Durgappa at Exhibit P-29 has been given by none other than the brother of the accused. DW-1 Channabasappa being the accused in this case had been examined for having let in defence evidence. He has stated that his marriage was performed with the victim about 18 years back and subsequent to their marriage, they did not have any children. Since 14 years, he was working as a cook in Government Boys Hostel, Jagalur. He did not know as to how fire came into contact with his wife Shivarudramma but he has deposed that his wife had gone to prepare tea when accidentally fire came into contact with her person and sustained injuries. The incident occurred at around 4.30 p.m. He was in Davanagere at that time and the said information was given to him by his brother Venkatesh. By the time his wife had been shifted from Jagalur Government Hospital to CG Hospital, Davanagere. He has deposed that he could not speak with his wife in the hospital, as she was not in a position to speak having sustained extensive burn injuries. DW-2 Dr. G. Sharanappa has stated in his evidence that he was the Doctor in CG Hospital, Davanagere. He brought the MLC record and also certified copies of documents of Jagalur Hospital including the case-sheet at Exhibits D7 and D8. Their evidence has not been considered by the Trial Court. Therefore, we are of the view that it has to be appreciated along with the statement given by victim at Exhibits P-13 and P-18 in a proper perspective to prove the guilt of the accused. If not it would lead to miscarriage of justice. 13. The Apex Court in the case of SAWAL DAS vs. STATE OF BIHAR ( AIR 1974 SC 778 ) with reference to Sections 103 and 106 of the Evidence Act, has held that, the burden of proving a plea specifically set up by an accused certainly lies upon him. But neither Section 103 nor Section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. But neither Section 103 nor Section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. In this case, Exhibits D7 and D9 have been got marked on the defence side to evidence the fact that the victim Shivarudramma had caught an accidental fire while she was preparing tea. Therefore, she sustained extensive burn injuries, 85% as per the case-sheet Exhibit D-9 maintained at CG Hospital, Davanagere. But however, Dr. Parvathamma PW-20 has deposed to the effect that she had subjected the victim to examination and that the victim was in a befit mental condition to give her statement. Accordingly, PW-15 has recorded her statement as per Exhibit P-13 and PW-21 has recorded her statement as per Exhibit P-18. Since the victim had sustained 85% burn injuries, there is a doubt regarding the dying declarations said to be given by the victim as narrated the involvement. Whether the victim was in a befit mental condition to give her statement is itself in serious doubt. The victim’s statement at Exhibits P-13 and P-21 runs contrary to Exhibits D-7 and D-9 and also the statement at Exhibit D-29 said to be given by one Venkatesh. The deceased Shivarudramma had been admitted to hospital by her brother Thippeswamy. One Ramappa of Siddammanahalli had given information about the incident to Shivarudramma’s father. But, however, Ramappa had not given statement and also he had not been subjected to examination by the prosecution. The Trial Court has committed an error in not examining both Thippeswamy and Ramappa who are important witnesses to the case of the prosecution. 14. In another judgment in the case of RASHEED BEG AND OTHERS vs. STATE OF M.P. ( AIR 1974 SC 332 ), the Apex Court has held that according to Section 32 of the Evidence Act, dying declaration recorded under suspicious circumstances should not be acted upon without corroborative evidence. In the case on hand, there are two dying declarations recorded, one at Exhibit P-13 and another at Exhibit P-18, which have been recorded under suspicious circumstances. In the case on hand, there are two dying declarations recorded, one at Exhibit P-13 and another at Exhibit P-18, which have been recorded under suspicious circumstances. Hence, on this ground also the accused deserves to be acquitted of the offences levelled against him. 15. Further, the Apex Court in the case of K. RAMACHANDRA REDDY AND ANOTHER vs. THE PUBLIC PROSECUTOR ( AIR 1976 SC 1994 ) has held as under: “The dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before action upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.” Whereas in this case, since the victim Shivarudramma having been admitted with 85% burns, her dying declarations recorded could not be given much credence since she could not have been in a fit condition to give her statement. Further, the plea of alibi set up has also not been appreciated by the Trial Court in a proper perspective coupled with the evidence of DW1 and DW2 as well the documents at Exhibit D1 to D9. 16. Further, the plea of alibi set up has also not been appreciated by the Trial Court in a proper perspective coupled with the evidence of DW1 and DW2 as well the documents at Exhibit D1 to D9. 16. In terms of the aforesaid reasons and findings, we are of the opinion that the prosecution has not established the guilt of the accused by putting forth positive, corroborative and acceptable evidence relating to the contents at Exhibit P-13 of the initial statement given by the victim which has been recorded by PW-15, Suresh, Head Constable and so also the contents at Exhibit P-18 dying declaration said to be recorded by the Taluk Executive Magistrate PW-21 in the presence of PW-20. Contents at Exhibits P-13 and P-18 have not been established by the prosecution with beyond all reasonable doubt since Exhibit D-9 case sheet discloses that the victim Shivarudramma had sustained severe burn injuries accidentally. Moreover, the prosecution had placed much reliance on the evidence of PW-14, 15, 20 and 21 to support the contention that the deceased was in a fit state of mind and well oriented to give her statement. But on a careful scrutiny of the contents at Exhibits P-13 and P-18 the dying declarations given by the deceased are not genuine. It is seen that the same are contrary to the contents at Exhibits D7 and D9. Therefore, we are of the opinion that the Trial Court has misdirected the evidence of these material witnesses and also misread the entire evidence on record. Exhibits P-13 and P-18 the dying declarations have not been proved by the prosecution with beyond all reasonable doubt. When a doubt arises in the mind of the court, it should be extended to the accused. Hence, in the totality of circumstances of the case, we are of the opinion that the impugned judgment of conviction and sentence rendered by the Trial Court requires to be revisited. Therefore, there are substance in the contention of the learned counsel for the appellant to call for interference. Accordingly, in terms of the aforesaid reasons, we are of the firm opinion that the accused deserves acquittal. 17. Therefore, for the aforesaid reasons and findings, the points framed by us are answered in the negative and accordingly, we pass the following order: The appeal is allowed. Accordingly, in terms of the aforesaid reasons, we are of the firm opinion that the accused deserves acquittal. 17. Therefore, for the aforesaid reasons and findings, the points framed by us are answered in the negative and accordingly, we pass the following order: The appeal is allowed. Consequently, the judgment of Conviction and Order of Sentence dated 04.03.2013 passed by the II Addl. District & Sessions Judge, Davanagere in S.C. No.102/2011, is hereby set aside. Consequently, the accused - Channabasappa, is hereby acquitted of the charges levelled against him for the offences punishable under Sections 498A and 302 of IPC. Accused who is said to be in judicial custody is ordered to be released from the custody forthwith, if he is not required in any other case. Registry of this Court shall communicate the operative portion of this order to the concerned Jail Authority forthwith, for compliance. If the accused has already deposited any fine amount, the same is ordered to be refunded to him, under acknowledgement.