Rathnakala, J.

1. This appeal is by the accused assailing the judgment of conviction and sentence dated 29.7.2011 passed by the II Additional Sessions Judge, Mysore, in S.C.No.206/2009, thereby convicting the appellant/accused for the offences punishable under Sections 498A and 302 of IPC and sentencing him to undergo imprisonment for life.

2. Succinctly stated, the respondent/Police charge sheeted the accused/appellant herein for the offences under Sections 498A and 302 of IPC. The case of the prosecution is, the accused was married to deceased Rathnamma for about 12 years; one year after marriage, he started harassing the deceased for money to quench his thrust for alcohol and gambling. However, the deceased was bearing with him; twice or thrice panchayat was held and he was advised; still he persisted his harassment to the deceased. On 6.5.2009, he immolated her by setting fire on her to snatch her gold ear-stud and silver anklet;

3. After committal of the case, the accused was procured and charge for the offences under Sections 498A and 302 of IPC, when read over to him, he pleaded not guilty. Prosecution entered into trial, examined 31 witnesses as PW-1 to PW-31 and produced documents Exs.P1 to P29 and material objects M.O.1 to M.O.5. During the evidence of the prosecution witnesses, a portion of Ex.P10 was marked as Ex.D1. The accused denied the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, during his statement recorded under Section 313 CrP.C. He opted not to adduce defence evidence. After giving audience to both, the learned Sessions Judge held him guilty on both counts of Sections 498A and 302 of IPC. After hearing the accused on sentence, he was sentenced to undergo Rigorous Imprisonment of 6 months and to pay a fine of Rs.5,000/- with default clause in respect of offence under Section 498A of IPC and life imprisonment with fine of Rs.5,000/- with default clause in respect of offence under Section 302 of IPC.

4. Sri. Gangadhar Sangolli, learned Counsel appearing for the appellant submits, the allegation of the prosecution was, the accused was demanding money to meet his expenses and it was never the case of the prosecution that he was demanding money as dowry. All the kith and kin of the deceased examined as prosecution witnesses turned hostile. That by itself was sufficient to extend the benefit of doubt in favour of the accused. The alleged dying declaration was unreliable for the simple reason that she had suffered 70% - 80% burns and in all probability was under sedation. Hence, it is unlikely that she was in a position to talk; as per the Post Mortem report, her entire face was burnt, that is another factor which creates doubt about the capacity of the victim to speak. The dying declaration is said to have been attested with the thumb impression of the deceased. If really she had burns all over the body, where is the question of the victim affixing her thumb impression? Since there was no burn on the scalp, front portion of the abdomen, on the back and both feet, it cannot be a homicidal death. The appreciation of evidence by the court below was not from a proper perspective. The relatives of the deceased in their examination-in-chief evidence had clearly stated that the deceased and the accused were in good terms and there was no dispute between them. This evidence ought to have been appreciated by the court below though they had turned hostile to the prosecution case. The Trial Court has erroneously opined that PW-2 was won over and evidence of PW-11 (mother of the deceased) also falls in line with that of PW-2. But it was a wrong observation. The mother had stated that the accused used to assault deceased but not for dowry. PW-3 and PW-4 had stated only to the extent that whenever there was trouble, they used to be summoned by the accused but that cannot be imagined that accused was demanding money. None of the mahazars are proved by the evidence of inde