Reliability of dying declarations is crucial for conviction under IPC Section 304(ii); conviction upheld as statements were consistent and trustworthy.

1. This appeal is filed by the appellant / accused being aggrieved by the judgment of conviction and order on sentence dated 01.01.2013 passed in Sessions Case No.73/2012 on the file of Additional District and Sessions Judge at Bellary for the offence punishable under S.304 - ii of Indian Penal Code (for short 'IPC').

2. The ranks of the parties in the Trial Court will be considered henceforth for convenience.

3. Brief facts of the case:

It is the case of the prosecution that the deceased Smt. Ruksana and the appellant are husband and wife. The couple had three children. The appellant was running an auto for his livelihood. On 28.09.2011, the appellant started quarreling with his wife as he she had borrowed a sum of Rs.100/- from the neighbour. The deceased in order to threaten the appellant went inside the room and brought a kerosene can and informed him that she would die by pouring kerosene on her.

4. The appellant being frustrated by the act of his wife, he snatched the kerosene can and poured kerosene on her and set her ablaze. Consequently, she sustained injuries. Though the appellant tried to extinguish the fire, he ran away from the spot before the neighbours and others could come to the spot. Thereafter, the neighbours and others have extinguished the fire and took her to the hospital for treatment where she informed the jurisdictional police regarding the incident. The jurisdictional police registered a case in Crime No.225/2011 and submitted the charge sheet. After conducting the investigation, submitted the charge sheet.

5. To prove the case of the prosecution, the prosecution examined 20 witnesses as PWs.1 to 20 and got marked 14 documents as Exs.D1 to D14 and also identified M.O.1 and M.O.2. On the other hand, the defence marked two documents, namely, Exs.D1 and D1(a).

6. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction for the offence under S.304 - ii of IPC and sentenced the appellant herein to undergo rigorous imprisonment for 7 years and also ordered him to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo further simple imprisonment for six months.

7. Heard Sri. J. Basavaraj, learned counsel for appellant and Sri.Praveena Y.Devareddiyavara, learned High Court Government Pleader for the respondent - State.

8. It is the submission of the learned counsel for the appellant that the judgment of conviction and order of sentence passed by the Trial Court is contrary to the evidence on record and also the Trial Court erroneously appreciated the same, consequently, the impugned judgment is passed which is required to be set aside.

9. It is further submitted that the injured was admitted to the hospital on 28.09.2011, however, she died on 21.10.2011 after a lapse of almost 30 days and the said death was due to septicaemia, therefore, the conviction in respect of S.304 - ii of IPC cannot be sustained.

10. It is further submitted that there are some inconsistencies in the evidence of the eye - witnesses. Even though the deceased stated in her statement regarding the involvement of the appellant, P.W.6 who is the independent witness to the incident has stated that the accused was not present at the time of the incident. When the prosecution had failed to establish the presence of the accused, conviction on the strength of dying declaration ought not to have been passed against the accused.

11. It is further submitted that the Executive Magistrate on 29.09.2011 around 1.15 p.m., said to have recorded the statement of the injured in the hospital when sh