Full Judgment
1. This appeal is fifed for the State challenging the judgment dated 23.09 2004 passed by the 10 Additional Sessions Judge, Bangalore in S.C.No.615/2003 acquitting the respondents of the offence under Sections 302 and 506 r/w Sec. 34 of IPC.
2. It is the case of the prosecution that, in between 5th and 6TH of June 2003, accused Nos.1 and 2 have poured kerosene on the deceased by name Has math Begum on the pretext that the deceased had taken a loan of Rs.80,000/- from accused Nos.1 and 2 and the same was not returned to them, thereby, the accused have set fire to the deceased after pouring kerosene, which has resulted in her death, thereby they are alleged to have committed offence under Section 302 r/w Sec.34 IPC. It is further alleged that at the aforesaid place, date and rime, the accused have threatened CW-2 and CW-3 with the same act, thereby they are alleged to have committed offence under Section 506 r/w Sec.34 of IPC.
3. The prosecution in order to prove the case has examined in all l-"1 witnesses and got marked Exs.Pl to P16 and produced MOs - 1 to 5. The defence of the accused was one of total derail. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to acquit the accused of all the charges levelled against them. The State has filed this appeal.
4. PW-1 is Dr.Bharathi of Victoria Hospital who has suited that on 06.06.2003, deceased Hasinath Begum was admitted in the Victoria Hospital and has died on 15.06.2003 of the said mjuries. Ex.Pl is the intrmatbn sent by her to the police. Ex,P2 is the case history sheets containing 16 pages.
PW-2 is the daughter of the deceased. She has stated that the first accused is her mother's brother 2nd second accused is a relative to her mother. However, she has turned hostile to the case rti" the prosecution.
PW-3 Smt.Razia has also turned hostile to the case of the prosecution.
PW-4 Kumari Mubina is the grand daughter of the deceased who has stated that the accused has set fire on her grand mother after pouring kerosene oil. In the cross-examination, she has stated that she was sleeping at the time of the incident and she does not know anything about the incident.
PW-5 Mohammed AthauDa has stated that the deceased had been burnt and he came to know about it at about 4.00 p.m. after receiving phone call from Munni. Thereafter, he went to the house of the deceased and later shifted her to the hospital He has stated that, one week prior to the incident, deceased had come to him and has stated that she is due a sum of Rs.80,000/- to accused No.1 and requested him to advise them not take the money.
FW-6 Aslam Pasha has turned hostile.
PW-7 Dr.Y.Udayashankar is a doctor in the Victoria Hospital who has conducted the postmortem examination on the deceased.
PW-8 Dr. Gurumurthy has stated that the deceased was admitted in the hospital and he has identified the case sheet as per Ex.P2 and P8 is the extract of the records of the hospital. He has further stated that on 06.06.2003 at about 04.45 p.m., a woman aged about 45 years was brought to the hospital for burn injuries. He has certified that the deceased was in a position to give the statement. The police have thereafter taken the statement of the deceased, which is at Ex.P9. His signature is at Ex.P9(a).
PW-14 is the Investigating Officer who has conducted investigation and has filed charge sheet. It is from the evidence of these witnesses that the learned Sessions Judge has found that the prosecution evidence counsels for the respondents.
5. Heard Sn.N.S.Sampangiramaiah, learned HCGPand Sri.N.Udaya Kumar and Sri.B.Anand, learned.
6. It is Eden from the material on record that, at the first instance, the deceased had stated that her brother Naurhsad Pasha was present in front of the door and he has knocked and poured kerosene on her, whereas, in the dying declaration and further statement to the police, she has stated that both the accused were present and they have poured kerosene on her. Therefore, there are two statements of the injured, one given at Ex.P8 and another one at Ex.P9. There is a discrepancy- and therefore, at the time of recording dying declaration, the deceased had added one more name as being the person responsible for her setting fire. In the dying declaration Ex.P9, she has categorically stated that immediately on opening the door, Nyed Nayecm and Sikandar Khan both were seen and they had poured kerosene on her and lit fire by a match stick. In view of the discrepancy between Ex.PS and P9, we are of the opinion that though a truthful dying declaration can be made sole basis for commotion without any corroboration, in this case, the deceased herself has given different versions regarding the cause of her death. Hence, we hold that ii is unsafe to rely* on the dying declaration of the deceased even in respect of accused No.1.
7. We have gone through the judgment of the trial Court, the reasoning given by the trial Court is also iii consonance with the discussion made by us as herein above. Therefore, we hold that there is no ground to interfere with the order of acquittal passed by the learned Seas ions Judge and therefore, this appeal is liable to be dismissed, Accordingly, the appeal is dismissed.