JUDGMENT : J.M. KHAZI, J. 1. Being aggrieved by the judgment and order dated 10.10.2018 in S.C. No. 46/2014 on the file of Principal District and Sessions Judge, Bagalkot, by which she came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/- appellant, who is the sole accused, has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short). 2. For the sake of convenience, the appellant is referred to as accused. 3. Accused is the wife of the deceased. The deceased was suspecting the fidelity of his wife i.e. the accused is having an affair with other man and with this suspicion, he used to quarrel with the accused everyday and for this reason, he did not want the accused to go and work outside and he was a drunkard and also under the influence of alcohol he used to quarrel with the accused. It is the case of the prosecution that, in this background, the incident took place on 20.02.2014. On that day, deceased, accused and their son were the only inmates of the house and after finishing dinner, while the deceased slept on the cot, accused and their son slept on the floor of the house and at around 11.30 p.m. accused poured kerosene over the body of her husband i.e. deceased and set him on fire and while undergoing treatment, he died. 4. In support of the prosecution case, in all 22 witnesses are examined as PWs. 1 to 22, Exs.P1 to 26 and MOs.1 and 2 are marked. On behalf of the accused, portion of statement of PW-2 is marked as Ex.D1. 5. During the course of her statement under Section 313 of Cr.P.C. the accused denied the incriminating material put to her. She has not chosen to lead evidence on her behalf. On the other hand, she has filed a written statement..........After hearing the arguments of both sides, the learned Sessions Judge has come to the conclusion that based on the material placed on record, the prosecution has proved the allegations against the accused beyond reasonable doubt and it is sufficient to bring home the guilt to the accused and accordingly convicted and sentenced her. 6. 6. Assailing the impugned judgment and order, the learned counsel representing the accused submits that the impugned order is opposed to law, facts and probabilities of the case and liable to be set aside. He submits that the Trial Court has failed to notice that the accused and her minor son i.e. PW-15 were sleeping outside the house and no witnesses have spoken that the accused was inside the house when the incident took place. He would further submit that, in his dying declaration at Ex.P-19, made before the Taluka Executive Magistrate, the deceased has stated that he does not know how he caught fire and he did not suspect anybody. The Police Constable, who recorded the information given by the deceased is not examined and as such the prosecution has failed to prove the allegations against the accused as made in the first dying declaration. He would further submit that, PW-11 Dr. Santosh S. Sheelvant, who conducted the postmortem examination, has stated that there was no kerosene smell in the dead body and therefore, the charge that the accused poured kerosene on the deceased and set him on fire is not proved. He further submitted that, as per the medical records, the deceased suffered 97% burn injuries and both his hands were burnt and therefore the question of deceased giving first information or dying declaration is to be ruled out. Moreover the first information is not certified by the doctor that the victim was in a fit state of mind to give the statement. Therefore, the Court ought to have disbelieved the dying declaration. 7. The learned counsel further submitted that, the Trial Court has failed to notice that there is a possibility of deceased setting himself on fire as there are no signs of presence of kerosene on his body and it has come in the evidence of PWs. 2 and 5 that, earlier the deceased was admitted to mental hospital and his mental condition was not normal. The accused and deceased are having two children and in the prosecution case there is no reference to the presence of their daughter Aishwarya. He would submit that the Trial Court convicted the accused wholly on the basis of suspicion and prays to allow the appeal and upset the order of conviction. 8. The accused and deceased are having two children and in the prosecution case there is no reference to the presence of their daughter Aishwarya. He would submit that the Trial Court convicted the accused wholly on the basis of suspicion and prays to allow the appeal and upset the order of conviction. 8. On the other hand, the learned Additional State Public Prosecutor has taken us through the oral and documentary evidence placed on record and submits that, based on the evidence on the record, the learned trial Judge has rightly come to the conclusion that the charges leveled against the accused are proved beyond reasonable doubt and she being the inmate of the house, where the incident has taken place and having a special knowledge, has not come up with any explanation as to the cause of the burn injuries sustained by her husband and in the absence of such explanation, either through the cross-examination of the witnesses or during the course of her statement under Section 313 Cr.P.C. or stepping into the witness box to depose as to what actually transpired on the date of incident, the only conclusion which could be drawn is that, as stated in his dying declaration at Ex.P21, it is the accused who poured kerosene on the deceased and set him on fire and after the incident, when the neighbors and the relatives of the deceased arrived, she disappeared from the spot as having a guilty mind and he prays to dismiss the appeal as without any merit. 9. We have heard the arguments of the learned counsel representing the accused as well as the learned Additional State Public Prosecutor and perused the records. 10. The deceased and the accused are husband and wife and they were living together. This fact is not in dispute, although during the course of the argument, the learned counsel representing the accused is trying to make out a case that, when the incident took place, the accused was sleeping outside the house along with her son, while the deceased was sleeping inside on a cot and the accused was burnt on account of a kerosene lamp, which was kept on the ground near the cot of the deceased. 11. 11. After the incident, the deceased was shifted to the Kumareshwara Hospital and after receiving the information regarding the medico legal case, PW-22 Devendrappa Dhulkhed, who was working as PSI at the Bagalkot Rural P.S. has visited the hospital along with his staff at 2.00 a.m. and after meeting the medical officer and making sure that the deceased was in a fit condition to give statement, has recorded his statement at Ex.P21 in the presence of the doctor. He has deposed that, he recorded the statement of the deceased as narrated by him and it is taken down by the station writer Ningolli. He has specifically stated that, to that statement which is later treated as dying declaration, the deceased has affixed his LTM and the Medical Officer has also certified that the deceased was in a fit condition and that the statement is recorded in his presence. 12. Based on the statement of the deceased, which is taken at the earliest point of time, the Investigating Officer has registered the case at 5.00 a.m. and he has transmitted the FIR to the jurisdictional Magistrate and the learned Magistrate has received the FIR at 12.00 noon. Thereby the version of the incident as revealed by the deceased at the earliest point of time has come on record setting into motion the investigation. During his cross-examination, the police officer i.e. PW-22 who recorded the statement of the deceased has deposed that, based on the medico legal case report i.e. MLC report, he came to know about the incident at 1.00 a.m. and when he recorded the statement of the deceased, it was 2.30 to 3.00 a.m. and after returning to the police station, he registered the case at 5.00 a.m. He has stated that, the Kumareshwara Hospital, where the deceased was taking treatment, is about 4 to 5 kms from the police station. 13. The defence has tried to make much out of the fact that, the scribe of Ex.P21 is not examined. As deposed by PW-22, Ex.P21 is in the handwriting of the station writer, who accompanied PW-22. It is pertinent to note that, immediately after receiving the information regarding the medico-legal case, the Investigating Officer i.e. PW-22 has reached the hospital along with his writer. As deposed by PW-22, Ex.P21 is in the handwriting of the station writer, who accompanied PW-22. It is pertinent to note that, immediately after receiving the information regarding the medico-legal case, the Investigating Officer i.e. PW-22 has reached the hospital along with his writer. It is the usual practice for the Investigating Officer to get the statement of the injured recorded through the writer who are usually the persons having legible handwriting. It is the normal practice that, to the statements recorded under Section 162 Cr.P.C. which become dying declaration if the author of the statement subsequently die, normally signature of the scribe, i.e. station writer will not be taken. In this case also, the signature of the station writer is not taken. When PW-22 is the police officer who has recorded the statement of the deceased and he has given evidence, there was absolutely no need for citing the station writer as the witness and to examine him. The evidence of PW-22 insofar as recording the statement of the deceased in the hospital and in the presence of the medical officer is cogent and convincing. In fact, his evidence is corroborated by the testimony of PW-17 Dr. Rajagopal Jumavar, the Medical Officer, who was present when Ex.P21 was recorded. Therefore, the non-examination of the writer, in whose handwriting Ex.P21 was recorded is not fatal to the case of the prosecution and it would not enure to the benefit of the accused. 14. The very information elicited through the cross-examination of PW-22 is corroborated by the FIR. He has denied the suggestion that, even though he came to know that the incident occurred accidentally, at the instance of the brothers of the deceased, he has registered a false complaint against the accused. It is pertinent to note that, majority of the witnesses, who are close relatives of the deceased, have turned hostile and they have supported the accused. Such being the case, a suggestion made to PW-22 that, at the instance of the relatives of the deceased, he has registered a false case is absurd. 15. In fact, in the subsequent dying declaration recorded by the Taluka Executive Magistrate, which is marked as Ex.P19, the deceased has given a clean chit to the accused by stating that, he does not know who was responsible for causing the burn injuries to him. 15. In fact, in the subsequent dying declaration recorded by the Taluka Executive Magistrate, which is marked as Ex.P19, the deceased has given a clean chit to the accused by stating that, he does not know who was responsible for causing the burn injuries to him. It appears, after the deceased was admitted to the hospital, which is the same hospital where the accused was working, subsequently, he was prevailed upon either by the accused or his relatives to spare the accused, since she is having two young children to take care of. The possibility of being under such pressure, the deceased giving a clear go-bye to his earlier dying declaration that the accused has poured kerosene and set him on fire, cannot be ruled out. In his second dying declaration, which is recorded by the Taluka Executive Magistrate, the deceased has not stated that, while sleeping on the cot he accidentally caught fire by the kerosene lamp which was kept inside the room where he was sleeping. What he has stated is, while he was sleeping, suddenly, he caught fire and he immediately ran out of the house and he was shifted to the hospital. To this dying declaration also, the deceased has affixed his LTM and it is identified. 16. Both the dying declaration i.e. Ex.P19, which is recorded by the Taluka Executive Magistrate and Ex.P21 which is recorded by the PSI, in the form of complaint, are recorded in the presence of PW-20 Dr. Rajgopal Udayrao Jumavar. Before the Court PW-20 has deposed that, on 21.02.2014 in the early hours, the deceased was brought to the hospital with the history of burn injuries and the PSI has recorded the statement of the deceased in his presence and at that time the deceased was in a fit condition to give statement. He has identified the endorsement made by him and his signature at Ex.P21(a). While speaking about the second dying declaration recorded by the Taluka Executive Magistrate, this witness i.e. PW-20, has deposed that, the Taluka Executive Magistrate has given a requisition at Ex.P18 to ascertain whether the deceased was in a fit condition to give statement and on the same letter he has endorsed stating that the statement is taken in his presence. While speaking about the second dying declaration recorded by the Taluka Executive Magistrate, this witness i.e. PW-20, has deposed that, the Taluka Executive Magistrate has given a requisition at Ex.P18 to ascertain whether the deceased was in a fit condition to give statement and on the same letter he has endorsed stating that the statement is taken in his presence. It is pertinent to note that, Ex.P18 is the office copy maintained by the Taluka Executive Magistrate and the original copy of it was given to the Medical Officer and it will be maintained in the records of the hospital. Therefore, the copy which was maintained by the Taluka Executive Magistrate, on which the carbon traced endorsement of the Medical Officer is forthcoming, is marked as Ex.P18(b). 17. During his cross-examination, PW-20 has stated that, on 21.02.2014, i.e. from 08:00 pm of 20.02.2014 to 08:00 a.m. on 21.02.2014, he was on duty at the casualty. The deceased was brought to the hospital at around 11.45 p.m. on 20.02.2014 and within one hour he has sent MLC report and when the Police came, it was around 03.30 to 4.00 am. He has denied the suggestion that, when the statement of the deceased was recorded as per Ex.P21, he was not at all present before the deceased and on the other hand, he was sitting in his room and there he has made the endorsement. He has also denied the suggestion that, at the instance of the Police he is giving false evidence. As a responsible Medical Officer of the hospital, it cannot be accepted that he would give false evidence at the instance of the Police, especially when he is also the Medical Officer, who has endorsed regarding the fitness condition of the deceased, when Ex.P19 was recorded, which is favouring the accused. The defence has not at all cross-examined this witness regarding the fitness of the deceased while giving statement at Ex.P19, which is favouring the accused. 18. PW-2 Tippanna is the brother of the deceased. The defence has not at all cross-examined this witness regarding the fitness of the deceased while giving statement at Ex.P19, which is favouring the accused. 18. PW-2 Tippanna is the brother of the deceased. His evidence reveal that the deceased and accused were staying together and there used to be quarrel between the accused and the deceased and deceased used to complain to him that his wife i.e. accused does not listen to him and even though he did not want his wife to go to work, she continues to work and for this reason there used to be quarrel between them. His evidence also reveal that, with regard to the quarrel between the accused and the deceased, he had advised the accused and since he did not agree, she went to her parents house and after about 3-4 days, she came back. His evidence also establishes the fact that, accused and deceased were staying in a rented house belonging to one Yallappa Galagali, who is examined as PW-9. The evidence of PW-9 reveal that, about 5-6 months prior to his death, deceased and his wife started living in the house belonging to him as tenants. 19. The evidence of PW-2 Tippanna i.e. the brother of deceased reveal that, on the date of the incident at around 11:00 p.m. the accused called him over phone and informed that his brother i.e. deceased is burnt and immediately this witness alongwith his wife and brother went to the spot and found that the deceased was sitting in front of the house with burn injuries and when he enquired him as to how he suffered the burn injuries, the deceased revealed that, after taking food, he, his wife and son went to sleep and he was burnt by pouring oil (referring to kerosene) and when he got up, he found his wife and son not in the house and the door was closed and after opening the door, he came out and neighbours poured water and put out the flames. The evidence of PW-2 makes it evident that, when he went to the spot and was making enquiry, the accused was not found and she had left the place. He has also spoken to about the deceased reiterating the fact that, it was the accused, who poured kerosene and set him on fire, while undergoing treatment at the hospital. The evidence of PW-2 makes it evident that, when he went to the spot and was making enquiry, the accused was not found and she had left the place. He has also spoken to about the deceased reiterating the fact that, it was the accused, who poured kerosene and set him on fire, while undergoing treatment at the hospital. Cross-examination of this witness also establishes the fact that, after the marriage, deceased and accused were living together, separately from the other brothers of the deceased. His evidence corroborates the fact that, after the deceased was admitted to the hospital, the Police visited the hospital at around 01:30 or 02:00 a.m. 20. PW-5 Rangavva Tippanna Galagali is the wife of PW-2. She is the sister-in-law of the deceased. Her evidence also corroborates the evidence of PW-2. She has also spoken to about the frequent quarrel that used to take place between the accused and the deceased and that the deceased was not in favour of accused going to work, but the accused was not listening to him. She has also deposed that, few days prior to the incident, the accused quarrelled with the deceased and went to her mother’s place..........and she was brought back by her husband PW-2 and PW-8 Nagavva. She has specifically deposed that, after accused returned from her mother’s place..........accused and deceased started residing in a rented house at Muchakhandi and during this period also deceased used to complain that the accused always picking up quarrel with him and she is having an affair and she was going to work at Kumareshwara Hospital and it was opposed by the deceased. She has specifically stated that, at around 11:30 p.m. on the date of the incident, it was the accused who telephoned her husband i.e. PW-2 and informed him about the burn injuries sustained by the deceased and when she alongwith her husband went to the spot, they found the deceased sitting in front of the house with burn injuries all over his body and on enquiry, deceased revealed that while he was sleeping, accused poured kerosene and set him on fire and as there used to be frequent quarrel, she has burnt him. PW-5 has specifically stated that when she went to the spot, the accused was not to be found around. PW-5 has specifically stated that when she went to the spot, the accused was not to be found around. During her cross-examination, defence has made a suggestion that on the date of incident, deceased had consumed alcohol and he brought fish for dinner. This piece of evidence also corroborates the statement of the deceased at Ex.P21 which has become his dying declaration after his death. 21. As rightly held by the learned Trial Judge, the statement of the deceased before PWs. 2 and 5 regarding the cause of the injuries sustained by him stating that the accused poured kerosene and set him on fire is an oral dying declaration of the deceased. It is consistent with the statement given before the Police, as per Ex.P21, based on which jurisdictional Police have registered the case against the accused and investigated the matter. The conduct of the accused in vanishing from the scene of offence after the relatives and neighbours came to the spot is inconsistent with her innocence. If at all she was not responsible for commission of the offence, she could have stayed back and accompanied the deceased to the hospital. In fact, the evidence of PW-5 that while undergoing treatment, deceased was able to speak and he was saying that it was the accused, who set him on fire and after this witness and other witnesses went to the spot, she has left the home. PW-5 has specifically stated that since there used to be frequent quarrel, it was the reason for the accused setting the deceased on fire. 22. PW-6 Keludappa is the brother of the deceased. Though he has not supported the prosecution case and turned hostile, during the course of examination-in-chief, he has stated that he came to know that while the deceased was sleeping inside the house, he suffered burn injuries and at that time, his wife and son were present inside the house. This witness is not cross-examined by the defence with regard to the presence of the accused inside the house when the incident took place. 23. PW-9 Yallappa is the owner of the house where the accused and the deceased were residing as tenants. This witness is not cross-examined by the defence with regard to the presence of the accused inside the house when the incident took place. 23. PW-9 Yallappa is the owner of the house where the accused and the deceased were residing as tenants. Though he has stated that when the incident took place, he was in the land and as such, he do not know about it, his evidence establish the fact that about 5-6 months prior to the death of the deceased, he and accused came as tenants and were residing in the house belonging to this witness. This fact is not disputed by the defence. 24. PW-15 Shivanand is the son of the deceased and the accused. When he gave evidence, he was 14 years old. When the incident took place, he was 11 years old. Before the Court he has deposed that on the date of the incident, deceased slept inside the house and he and his mother slept outside the house and when he got up, he found that his father had suffered burns inside the house and the neighbours poured water and extinguished the fire. He has specifically stated that the deceased set himself on fire which is nobody’s case. 25. As already discussed, before the Trial Court, the accused has not taken up any defence as to how the deceased sustained burn injuries and only while arguing in this appeal, the learned counsel representing the accused made a submission that it was an accidental fire. The evidence of PW-15 i.e. the son of the deceased and accused that the deceased himself set on fire is contrary to this defence trying to put-forth before the Appellate Court. His cross-examination by the prosecution establish the fact that on the date of the incident, the deceased has brought fish and the deceased, accused and their son i.e. this witness had dinner together and before they went to sleep, there was a quarrel between the accused and the deceased. His evidence also reveal that the deceased slept on a cot. However, he has denied that it was the accused, who poured kerosene and set the deceased on fire and immediately went outside the house alongwith him and deceased also followed them. His evidence also reveal that the deceased slept on a cot. However, he has denied that it was the accused, who poured kerosene and set the deceased on fire and immediately went outside the house alongwith him and deceased also followed them. It was quite natural for PW-15, being the son of the accused and who has already lost his father to support the accused in order to save her. However, his evidence prove the fact that on the date of the incident and at the time of the incident, the accused and deceased were inside the house alongwith their son and for the sake of defence, now they are projecting as though the accused and her son were sleeping outside the house, probably to overcome the provisions of Section 106 of Evidence Act which requires burden of proving fact especially within the knowledge of the accused. Even where it is accepted that the accused and her son was sleeping outside the house, still being the wife of the deceased and one of the inmates of the house, the accused is not absolved from disclosing the facts which are within her knowledge. 26. Now coming to the dying declaration at Ex.P21, which is given at the earliest point of time. It is also to be seen whether in view of the subsequent dying declaration at Ex.P19 exonerating the accused, whether Ex.P21 is reliable and whether reliance to be placed on it to hold that the accused is responsible for causing the burn injuries resulting in the death of the deceased. 27. Before appreciating the contents of Ex.P21 wherein the deceased implicate the accused as responsible for causing the burn injuries sustained by him, it is necessary to refer to guidelines issued by the Hon’ble Supreme Court in some of the important judgments as to why as per Section 32 of the Indian Evidence Act, 1872, a dying declaration is admissible in spite of being a hearsay evidence and is an exception to the hearsay evidence and how such statement is to be appreciated. 28. 28. The Hon’ble Supreme Court in the case of Vikas and Others vs. State of Maharashtra, (2008) 2 SCC 516 , while re-iterating the principles underlying admissibility of dying declaration, held that the principles are reflected in the well-known legal maxim; nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie. Their Lordships noticed that “Truth” said Mathew Arnold “sits upon the lips of a dying man.” While analyzing Clause (1) of Section 32 of the Indian Evidence Act, it was held that Clause (1) of Section 32 of the Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that “hearsay evidence” is “no evidence” and the evidence which cannot be tested by cross-examination of a witness is not admissible in a court of law. It was further held that requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. Their Lordships in great detail analyzed the development of law surrounding dying declaration. It was noticed that in Koli Chunilal Savji (supra), the Hon’ble Supreme Court has held that requirement as to doctor’s endorsement as to mental fitness of the deceased was “only a rule of prudence” and the ultimate test was whether the dying declaration was truthful and voluntary. In Ravi Chander vs. State of Punjab, (1998) 9 SCC 303 , the Hon’ble Supreme Court has held that, in the absence of any circumstance or material on record to establish that the Executive Magistrate had any animus against the person or was in any way interested in fabricating the dying declaration, it ought to be accepted. 29. Keeping in mind the principles enunciated by the Hon’ble Supreme Court in the above decisions, now it is to be examined whether Ex.P21 is the true version of the incident that took place on 20.02.2014 at 11:30 p.m. resulting in the deceased suffering burn injuries. 30. As discussed earlier, the incident has taken place around 11:30 p.m. and immediately the injured was shifted to the hospital i.e. Kumareshwara Hospital and PW-20 Dr. Rajagopal Jumavar has attended on him. 30. As discussed earlier, the incident has taken place around 11:30 p.m. and immediately the injured was shifted to the hospital i.e. Kumareshwara Hospital and PW-20 Dr. Rajagopal Jumavar has attended on him. He has sent medico legal report to the Police and based on the said information, PW-22 has visited the hospital and after meeting the Doctor and getting his opinion that the injured was in a fit condition to give statement, he has recorded the statement of the deceased as per Ex.P21 in the presence of the Doctor. In his statement, the deceased has stated in unequivocal terms that on the night of the incident, he consumed alcohol and brought fish to the house and all the three i.e. he, his wife (accused) and son Shivanand (PW-15) together had dinner and thereafter he slept inside the house on the cot. He has specifically stated that his wife i.e. accused and son slept on the floor inside the house. He has also stated that while he was asleep, he found his wife pouring kerosene and setting him on fire and before he could realise, his entire body was on fire and his wife was present. He came out of the house and hearing to his cries, the neighbours and others came. He has specifically stated that, his wife poured kerosene and set him on fire with an intention of causing his death and attempted to commit his murder. The dying declaration of the deceased that, it is his wife who is responsible for causing the burn injuries on him is corroborated by the statement of PW-2 Tippanna and PW-5 Rangavva, who came to the spot after coming to know about the incident through the telephonic communication made by the accused herself. On enquiry, they came to know that it was the accused, who poured kerosene and set the deceased on fire. 31. However, while giving his statement before the Taluka Executive Magistrate, as per Ex.P19, the deceased has changed his version saying that he is not able to identify his assailant and while he was asleep he caught fire. As noted earlier, it has come on record that the accused was working at Kumareshwara Hospital, where the deceased was shifted for treatment. Except PWs. As noted earlier, it has come on record that the accused was working at Kumareshwara Hospital, where the deceased was shifted for treatment. Except PWs. 2 and 5, who are the brother and sister-in-law of the deceased supporting the version of the deceased, that it was accused who poured kerosene and set him on fire, the other relatives and neighbours of the deceased have turned hostile. It appears at the instance of his relatives, probably thinking that ultimately he would not survive, there will be no person to take care of his two young children, if the accused is also punished and sent to jail, the deceased has tried to save the accused. The very fact that the deceased is unable to state, if not by the accused, in what way he sustained burn injuries itself goes to show that he has been tutored not to disclose the true facts. 32. The learned counsel representing the accused during the course of his arguments submitted that the deceased caught fire on account of the kerosene lamp which was kept burning inside the house. It is relevant to note that, Ex.P26 is the photograph of the house of the accused and deceased where the incident took place, taken during spot mahazar at Ex.P20. In this photograph, the cot on which the deceased slept is also shown which is an iron cot. It is not a wooden cot or a cot made by spinning coir (Khatiya or Charpoy in Hindi) to say that on account of burning of kerosene lamp, the deceased caught fire. This very fact falsifies the defence attempted to putforth on behalf of the accused that it was an accidental fire on account of burning of kerosene lamp. 33. PW-11 Dr. Santosh Shivanand Sheelvant has conducted the postmortem examination of the deceased. He is working as a Medical Officer at Kumareshwara Hospital at Bagalkot. He has deposed in detail about the burn injuries sustained by the deceased and given opinion that the death was due to the neurogenic shock on account of the burn injuries sustained by the deceased. At Para-9 of his evidence, when a specific question was put to him as to whether the injury sustained by the deceased are possible, if kerosene is poured on a person, who is sleeping and then set on fire, the witness has answered in the affirmative. At Para-9 of his evidence, when a specific question was put to him as to whether the injury sustained by the deceased are possible, if kerosene is poured on a person, who is sleeping and then set on fire, the witness has answered in the affirmative. Practically the evidence of this witness has remained uncontroverted. Except questioning him whether during the postmortem examination, he smelt of kerosene and the witness has answered in the negative, this witness is not cross-examined on any other aspect. It is pertinent to note that immediately after the incident, the deceased was shifted to the hospital and the treatment was started. Necessarily the burn injuries will be treated by applying ointment on the surface of the burns. The incident has taken place on 20.02.2014. The deceased has succumbed to the burn injuries on 23.02.2014 at 09:00 a.m. The postmortem examination is conducted on the same day i.e. on 23.02.2014 in between 10:00 to 12:40 a.m. By that time, on account of the treatment being given, there may not be the smell of kerosene which itself will not falsify the case of the prosecution. However, the chemical report at Ex.P23 with regard to the contents of the plastic can and partly burnt blanket establish the fact that the traces of kerosene found in both the articles which corroborate the case of the prosecution. The nature of the injuries sustained by the deceased and also the traces of kerosene found on the blanket which the deceased was using are inconsistent with the defence tried to be put-forth at the time of argument before this Court. When the incident has taken place inside the house where deceased and accused were the occupants alongwith their son and allegations are being made against the accused, she has not come up with any explanation as to how the incident took place. Under Section 106 of the Indian Evidence Act, 1872, the accused has not chosen to explain the circumstances resulting in the deceased sustaining the burn injuries. After the prosecution has discharged the initial burden placed on it, the burden shifts on the accused to explain as to how the deceased came to sustain the burn injuries. In the absence of accused coming up with any plausible explanation for the said injuries, there is absolutely no impediment to accept the case of the prosecution. 34. After the prosecution has discharged the initial burden placed on it, the burden shifts on the accused to explain as to how the deceased came to sustain the burn injuries. In the absence of accused coming up with any plausible explanation for the said injuries, there is absolutely no impediment to accept the case of the prosecution. 34. While answering the questions under Section 313 Cr.P.C. the accused has chosen to deny every piece of evidence put to her. However, she has given a written statement stating that on the date of incident, her husband was sleeping on the cot inside the house, while she and her son were sleeping outside the house in front of the door and a kerosene lamp was lit for the purpose of light and at around 11:30 p.m. she woke up hearing the cries of her husband and found that her husband had caught fire and with the help of neighbours she tried to extinguish the fire. However, not even a single suggestion is made to any of the witnesses that the cause of burn injuries sustained by the deceased was due to accidental fire on account of the kerosene lamp which was kept in the house. It appears to be a clear after thought. In fact, through the son of the deceased i.e. PW-15, who has turned hostile to the prosecution, a statement is given before the Court that it is the deceased who set himself on fire. This piece of evidence of the son of the deceased and accused i.e. PW-15 Shivanand is contrary to the defence of the accused. This itself goes to show that the son of the deceased was tutored only to save the accused from the punishment. 35. PW-19 Mahadev Balabatti, Head Constable, who at the relevant point of time working at the complainant Police Station i.e. Bagalakote Rural Police Station has assisted the Investigating Officer by writing the spot mahazar, inquest mahazar. He has been cross-examined suggesting that to the house where accused and deceased were living, there is no electrical connection. Of course, he has denied the said suggestion. Throughout the accused has not taken up a contention that there is no electric connection to the house of the accused and deceased where the incident took place. He has been cross-examined suggesting that to the house where accused and deceased were living, there is no electrical connection. Of course, he has denied the said suggestion. Throughout the accused has not taken up a contention that there is no electric connection to the house of the accused and deceased where the incident took place. Since as an after thought, the accused has taken up a defence that the deceased suffered burn injuries accidentally with a kerosene lamp, a suggestion corroborating such defence is being made to PW-20. No such suggestions are made to other witnesses including PW-9 Yallappa Laxmappa Galagali owner of the house where the accused and deceased were living as tenants. Therefore, the suggestion made to PW-19 Mahadev Balabatti that there was no electric connection to the house where the incident took place is not of any consequence. 36. Thus from the above discussion, we have no hesitation to hold that the earliest version of the dying declaration as per Ex.P-21 is reliable and acceptable and it contains the true facts and the said statement is given without any pressure from anyone. It is corroborated by the testimony of PWs. 2 and 5 before whom the deceased has given his oral dying declaration regarding the injuries sustained by him immediately after the incident. On the other hand, Ex.P19 which is a subsequent statement given by the deceased before the Taluka Executive Magistrate while undergoing treatment at the Hospital, is an after thought and appears to be tutored to save the accused from the punishment. Therefore, we reject Ex.P19, the statement given by the deceased before the Taluka Executive Magistrate. 37. In support of his arguments, the learned counsel representing the accused has relied upon the decision of the Hon’ble Supreme Court reported in K. Ramachandra Reddy and Another vs. The Public Prosecutor, (1976) 3 SCC 618 wherein on appreciating the facts therein, the Hon’ble Supreme Court rejected the dying declaration of the deceased on the ground that he did not mention the names of the assailants on the three occasions earlier to the making of the declaration and the Magistrate, who recorded the statement has failed to confirm the fitness of the state of mind of the injured to give the statement and since all the assailants were not known to the deceased, there was doubt regarding the identification of the assailants by the deceased. However, in the present case, the assailant i.e. accused is none other than the wife of the deceased and both of them were living in the same house and after having dinner, they slept in the same house and in the middle of the night, the deceased sustained burn injuries and therefore there is no question of deceased not knowing the identity of his assailant. Therefore, the accused cannot take advantage of this decision and it is not applicable to the case on hand. 38. The learned counsel representing the accused has also relied upon the order passed in Criminal Appeal No. 2850/2010 by the learned Single Judge of this Court, wherein by observing that the dying declaration was recorded first and thereafter the Medical Officer has received the requisition for giving opinion as to the fit condition of the deceased to give statement and therefore, the dying declaration was rejected. However, this is not applicable to the case on hand wherein the dying declaration was recorded in the presence of the Medical Officer and his very presence supports the fact that the deceased was in a fit condition to give statement. 39. The learned counsel representing the accused has also relied upon the decision of the Hon’ble Supreme Court in Criminal Appeal No. 758/2010 decided on 07.05.2021 reported in Jayamma and Another vs. State of Karnataka, AIR 2021 SC 2399 . In this decision, the Hon’ble Supreme Court observed that, there were endorsement made by the Police Officer is in a different ink and have been inserted in between two lines of the dying declaration. Appreciating the facts and circumstances of the case therein, the Hon’ble Supreme Court has refused to rely upon such dying declaration. In the present case, there are no such insertions or any endorsement which would create doubt as to the veracity of the statement given by the deceased. Therefore, we hold that this decision is also not applicable to the case on hand. 40. Thus from the above discussion, we hold that the prosecution has proved the allegations against the accused beyond reasonable doubt. The dying declaration at Ex.P-21 which is at the earliest in point of time, is corroborated by the evidence of PWs. 2 and 5. Therefore, we hold that this decision is also not applicable to the case on hand. 40. Thus from the above discussion, we hold that the prosecution has proved the allegations against the accused beyond reasonable doubt. The dying declaration at Ex.P-21 which is at the earliest in point of time, is corroborated by the evidence of PWs. 2 and 5. From the material on record, it is also proved that, when the incident took place, alongwith the deceased, accused was present inside the house and she had an opportunity to take the extreme step of pouring kerosene on the deceased and setting him on fire. The defence put-forth by the accused that it was an accidental fire due to the kerosene lamp kept in the house is not proved and it is inconsistent with the nature of the injuries sustained by the deceased. 41. Taking into consideration all these aspects, minutely examining the oral and documentary evidence placed on record, the learned Trial Judge has come to a proper conclusion and it is a well reasoned judgment and we find no perversity to interfere with the same. 42. Consequently, the appeal filed by the accused fails and accordingly it is dismissed. 43. During the appeal, the accused was released on bail by this Court. She shall be taken into custody to undergo the punishment. 44. In view of dismissal of the appeal, the trial Court is directed to secure the presence of the accused to undergo sentence by issuing conviction warrant.