The dying declarations, supported by doctors' certificates and witness testimonies, were found to be credible and formed the basis for the conviction of the accused for the offences punishable under Sections 498A and 302 of IPC.

Mohan M. Shantana Goudar, J.

1. The judgment and order of conviction dated 18th February, 2011 passed by the I Additional District and Sessions Judge at Davangere in Session Case No. 67/2010 is appealed against by the convicted accused. By the impugned judgment and order, the trial Court has convicted the accused for the offences punishable under Sections 498A and 302of IPC.

2. The case of the prosecution in brief is that the deceased Prema is the wife of the accused-Mallikarjuna; their marriage was performed about 9 years prior to the death of deceased; two children are born out of their wedlock; The accused was addicted to consuming alcohol; he used to come fully drunk to the house and quarrel with the wife and assault her on one or the other reason; he used to demand money from his wife for the purpose of satisfying his habit of drinking alcohol and in that context, quarrels used to take place. On the date of the incident i.e., on 17.1.2010 the accused once again started quarreling with the deceased at about 10.00 p.m. in the matrimonial house and thereafter, he poured kerosene on the deceased and set her ablaze, consequent upon which, the deceased sustained number of burn injuries and she raised hue and cry. In the very incident, the accused also sustained certain injuries. Immediately, the neighbours of the accused and deceased including the uncle of the deceased (P.W. 12) rushed to the spot and called for ambulance and thereafter, he made arrangements to shift the victim/deceased to the hospital in an ambulance. The victim was admitted to Chigateri Government Hospital, Davangere at about 11.50 p.m. on very night of 17.1.2010; Dr. Gangadhar (P.W. 6) sent an intimation (Ex. P.5) to the jurisdictional police i.e., Extension Police Station, Davangere about the medico legal case. Though the said intimation was prepared during the night, the same was dispatched at 9.00 a.m. on 18.1.2010 by the hospital authorities. The police came to the hospital and started recording the statement of the victim at 12.30 p.m. on 18.1.2010. The Sub-Inspector of Police (P.W. 21) recorded the statement of the victim - dying declaration as per Ex. P.19 in presence of the doctor (P.W. 23) based on which a case in Crime No. 9/2010 came to be registered in Mayakonda Police Station at about 4.00 p.m. for the offences punishable under Sections 498A and 307 of IPC. At about 2.30 p.m. the Taluka Executive Magistrate (P.W. 20) was summoned to the hospital and he recorded the statement of the victim (dying declaration-Ex. P. 18) in presence of the doctor (P.W. 23) on the very day i.e., on 18.1.2010. After completion of the investigation, the Investigating Officer (P.W. 24) laid the charge sheet against the sole accused for the offences punishable under Sections 498A and 302 of IPC, in as much as the deceased died on 24.1.2010.

3. In order to prove its case, the prosecution in all examined 24 witnesses and got marked 23 exhibits and 3 material objects. On behalf of the defence, no witness is summoned. The trial on evaluation of the material on record, convicted the accused for the offences punishable under Sections 302 and 498A of IPC.

4. Sri B.S. Prasad, learned advocate appearing on behalf of the appellant taking us through the entire material on record submits that two dying declarations Exs. P.19 and 18 are conflicting with each other; the intimation sent by the hospital to the police as per Ex. P.5 which was the first in point of time, clearly reveals, that it is a case of suicidal death and not a case of homicidal death; the two children, who were residing with accused, are not examined before the Court; the two children would have been the best witnesses in the matter in as much as the incident might have taken place in front of them; the evidence of P.Ws. 14, 15 and 17 cannot be believed in as much as they are the mother and brothers of the deceased and their versions are interested versions; since the victim had sustained 95% to 96% burn inju