JUDGMENT
S.R. Bannurmath, J.
1. Being aggrieved by the judgment of conviction dated 3.11.2001, passed by the learned Sessions Judge, Bangalore, in S.C. No. 675/ 2000 finding the accused guilty of the offences under Sections 498A and 302 I.P.C. and sentencing him to undergo rigorous imprisonment for three years with fine and imprisonment for life with fine carrying default sentence, the present appeal is filed.
2. The brief facts as per the prosecution case are as follows:
Deceased Smt. Anitha was the wife of the accused Nirmal Louis and their marriage had taken place on 19.1.2000. According to the prosecution, the deceased was adopted by PW-2 Xavier and his wife PW-1 Jayanthi. As the prosecution evidence discloses, at the time of marriage certain jewellery and cash amount was given to the accused as dowry and inspite of giving the same, as the accused was often in need of money being a private photographer having loss in business, it is alleged that accused used to harass and treat cruelly the deceased to bring some more amount from PWs. 1 and 2 According to the prosecution, the accused and the deceased were alone living in a rented house and on 31.5.2000 at about 4.00 p.m. the accused picking up a quarrel with the deceased over not bringing the money as demanded by him from PWs 1 and 2, set her on fire after pouring kerosene on her. Hearing her cries, neighbours and others were attracted. The injured Smt. Anitha was taken to Victoria hospital and inspite of treatment given by the doctors, she breathed her last on 5.6.2000.
3. While Smt. Anitha was under treatment, on the very date of incident i.e. on 31.5.2000 at about 7.30 P.M. on receipt of the intimation of the medico legal case, PW-12 P.S.I. goes to the hospital and after ascertaining with the doctor as to the fitness condition of Smt. Anitha both mentally and physically, records her statement and treating this statement as the first information as per Ex.P. 18, registers a case in Cr.No. 310 /2000 initially for the offences under Section 498A and 307 I.P.C. against the accused. It has to be mentioned here itself that immediately after the death of Smt. Anitha, the offence of 307 is converted to one under Section 302 I.P.C
4. After registration of the case, investigation is taken up. Usual procedural aspects like holding spot mahazar, inquest proceedings in the presence of Executive Magistrate and recording of the statements of the witnesses is carried out. The accused is arrested and on his voluntary information, M.Os 1 to 4, ornaments of the deceased pledged with pawn brokers PWs. 4 and 5 are recovered. After receipt of all the necessary reports including FSL, autopsy and on completion of the investigation, charge sheet is filed against the accused for the offences under Section 498A and 302 of I.P.C.
5. After committal and framing of the charges, as accused denied all the charges and claimed to be tried, he is tried in S.C.No. 675/2000.
6. In order to establish the guilt of the accused, the prosecution has relied upon the evidence of 14 witnesses, got marked Ex.P.l to P26 as well as M.Os 1 to 11. Apart from denial of the prosecution case, the accused in his statement under Section 313 Cr.P.C. has stated as follows:
However, no defence evidence has been led by the accused. As already noted, the Trial Court on assessment of the evidence, held the accused guilty of the offences charged with and as such the present appeal.
7. We have heard Sri B.V. Pinto, learned Counsel for the appellant and Sri M. Marigowda, learned Counsel for the State – respondent and perused the records.
8. Challenging the findings of the Trial Court, Sri B.V. Pinto, learned Counsel for the appellant vehemently contended that the judgment of conviction and the findings arrived at by the Trial Court are illegal and perverse. He submitted that the accused had explained the possibility of suicidal death of his wife Smt. Anitha. He submitted that his conduct in taking the injured Smt. Anitha to hospital, which is admitted by the prosecution, as well as the fact that he did not abscond after the incident, prima facie shows that it was only a suicide and not murder committed by the accused. On these grounds, it is contended that appreciation of evidence by the Trial Court is illegal and liable to be set aside and accused be acquitted giving the benefit of doubt.
9. On the other hand, Sri M. Marigowda, learned Addl. S.P.P. argued in support of the findings of the Trial Court.
10. At the outset, the fact that Smt. Anitha died of burn injuries on 5.6.2000 at Victoria hospital is not much in dispute. Similarly, the relationship of the accused with the deceased is also not disputed. In cases of death by burn, either they can be due to accidental, suicidal or homicidal. So far as accidental burns are concerned, it is nobody’s case including that of the accused that Smt. Anitha died because of accidental fire on 31.5.2000. So far as suicidal aspect is concerned though the accused is not many words states the same as is evident from the answer given by him to question 80 of 313 Cr.P.C. statement that on 31.5.2000 at about 2 P.M. accused had returned home and his wife deceased left to the house of P.W.I. After taking the meals, while he was sleeping at about 4 P.M. he heard crying and then he saw his wife Smt. Anitha sitting in the bath room who had caught fire. This explanation probably appears to be given by the accused that the burn injuries on deceased were suicidal. Hence we have to find out whether the cause of death of the deceased was either suicidal or homicidal and if homicidal, whether the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt.
11. Out of the 14 witnesses examined by the prosecution, PWs 1 and 2 are wife and husband and the foster parents of deceased Smt. Anitha. PW-3 is the brother of PW-1. PWs 4 and 5 are the pawn brokers who have given evidence to the effect that on 25.2.2000 and 1.5.2000 respectively the accused had pledged gold ornaments of the deceased with them. PW-6 is a neighbour of the accused and deceased who had sent the injured to the hospital in an autorickshaw. PW-7 is a mahazar witness. PVV-8 is the Executive Magistrate who has conducted inquest as power Ex.P9. PW-9 is the Scientific Officer of FSL, and PW-14 is the doctor who speaks about the autopsy report as well as the dying declaration of deceased Smt. Anitha as per Ex.P. 18. Remaining witnesses are all members of investigation team.
12. On analyzing the entire evidence and re-appreciating the same, it is noted that the prosecution has relied upon the dying declaration of the deceased as per Ex. P18 recorded by one Dr. Bhaskar Purushotham as well as the oral dying declarations made before PWs. 1 to 3. As circumstantial evidence, it has also relied upon the conduct of the accused especially regarding his need for money by examining PWs 4 and 5, the pawn brokers with whom just few days prior to the incident the accused had pledged the ornaments.
13. As there arc two conflicting sets of circumstances projected, one by the State that it was accused who set the deceased on fire and as per the accused it was the deceased who committed suicide, we have to first find out as to what exactly is the cause established. It is to be noted here itself that except the statement while answering questions in 313 Cr.P.C, there is absolutely no material or even foundation laid down by the accused to say as to what was the reason for the deceased to commit the suicide. No doubt, he has stated that it was PWs 1 and 2 who were harassing the deceased to bring some more money from the ornaments of the accused. But he docs not say in clear terms that disturbed by the same, she committed suicide. No doubt, it is also true that futile attempts have been made in the cross-examination of PWs 1 to 3 in this regard, but as the suggestions have been denied by the witnesses, they remain only as suggestions an 1 cannot take place of concrete proof or even probabalising the defence version. As against this, the positive evidence of the prosecution especially in the form of PWs 4 and 5, the pawn biukers, pawn receipts Ex.P.10 and P. 12 and the mahazars Ex.P.9 and P. ll under which M.Os 1 to 4 the gold ornaments of the deceased were pledged just few days prior to the incident itself shows that the financial condition of the accused was bad or atleast that it was he who was in need of money. If this was the financial condition of the accused, there is probably no reason for the foster parents PWs 1 and 2 of the deceased to ask deceased to get money from the accused. As such it appears to us that it is only an after thought story of the accused. However, merely because the accused has failed to explain the circumstances under which the deceased died, it does not lead straight away to the conclusion that it was the accused who set her on fire. In this regard the prosecution has relied upon the recorded dying declaration Ex.P. 18 as well as oral dying declaration made by the deceased before PWs 1 to 3.
14. The law regarding acceptability of the dying declarations, whether oral or recorded, are well settled in the pronouncements. All the earlier conflicting views having now been considered and settled by a Constitutional bench of the Apex Court in the case of Laxman v. State Of Maharashtra, 2002 AIR SCW 3479.
15. The principle of admissibility of dying declarations is based on the maxim “Nemo moriturus presumitur mentire”. The general principle on which the species of evidence is admitted is that these are the declarations made by a dying person in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. A situation so solemn and so powerful is considered by the law and the courts as creating an obligation equal to which is imposed by a positive oath administered in a Court of justice.
16. Keeping in view this aspect, we have considered in detail in dying declaration especially Ex.P.18 which has been treated as first information. This dying declaration though not necessary as laid down by this Court and the Apex Court, also bears the certification of doctor who treated the deceased Smt. Anitha immediately after her admission to Victoria hospital. The doctor has specifically certified that the injured Smt. Anitha when brought and examined by him was conscious, well oriented and fit to give her statement.
17. Nodoubt it is contended by Sri B.V. Pinto, learned Counsel for the appellant that the said doctor has not been examined by the prosecution and as such the same is not admissible. We do not agree with this proposition. It has to be noted that as the said Dr. Bhaskar Purushotham was not available to the prosecution as by the time the evidence was recorded the prosecution has in fact examined PW-14 Dr. Gurumurthy who was the immediate higher officer of Dr. Bhaskar himself. Dr. Gurumurthy has identified the handwriting of Dr. Bhaskar as shown from Ex.P. 18. This is permissible mode of proof of a document as per Evidence Act. On going through the cross examination, we find absolutely no cross examination as to the veracity of the statement made by PW-14. PW-14 is a responsible medical officer who has no grudge against the accused to falsely identify the hand writing of Dr. Bhaskar or speak about the condition as disclosed from the records of the hospital. Though now it is well settled as per Laxman’s case, even this certification is not necessary, especially when the same is available, it carries much weight and Courts cannot ignore the same lightly. It is also to be seen that the deceased had survived almost for six days and as such her condition especially as to the physical and mental state, being able to give well oriented answers, cannot be over-ruled. On the basis of such positive evidence of the doctors and the certification of the doctor, we do not find any ground to discard this dying declaration as either false or concocted or even tutored one.
18. As can be seen from the defence version, the grievance of the accused is against PW-1 Jayanthi, foster mother and also sister- in-law of the deceased. On going through her evidence including cross examination part, we find that it is in fact PWs 1 and 2 who had adopted the deceased at the age of 11/2 years and had brought her up and in fact it is this couple who performed the marriage of Smt. Anitha with the accused. We do not find any suggestions even worth while to show that their financial condition was so weak that they wanted money or were depending upon the income or money brought by the deceased. On the other hand, as we have already noted, the financial condition of the accused himself was very bad as he had to resort to pledge the ornaments of the deceased i.e. his wife with pawn brokers even just few days prior to the incident itself. These two witnesses along with PW-3 who is none else than the brother of PW-1 has in cogent and consistent manner spoken as to the demand of money often made by the accused.
19. Hence on cumulative consideration of the entire evidence, we find that the prosecution has succeeded in showing that the accused was in need of money and was often making the demands, if that is so, what is stated in the dying declaration appears to be most believable truthful version. On careful scrutiny of the dying declaration and the circumstances under which it was made, we find no grounds to discard the dying declaration as either concocted or tutored one. Once the Courts believe the dying declaration as truthful version of a dying person, it carries heavier weight than any number of oral evidence of witnesses.
20. After giving our anxious considerations to the entire fact, we find that the dying declaration Ex. P. 18 being truthful clearly clinches the guilt of the accused beyond reasonable doubt. The Trial Court has considered all these matters at length and in detail. As we do not find any illegality or perversity in the appreciation of evidence by the Trial Court and especially on reassessment of the evidence, we too concur with the conclusion arrived at by the Trial Court and we find the appeal is devoid of merits.
21. In the result and for the reasons stated above, the appeal is dismissed as devoid of merits affirming the judgment of conviction and the sentence imposed by the learned Sessions Judge-, Bangalore by the judgment dated 3.11.2001 in S.C.No. 675/2000.