- (1.) Appellant herein is the husband of the deceased Hussainbi. They were living at a village known as Dodwad. On 29.05.2004 at about 11.00 a.m., the appellant is said to have asked the deceased to put a shirt on their son Inayat. She allegedly did not do so. Appellant is said to have assaulted her with a broomstick. She was also allegedly abused by her mother-in-law and father-in-law. When allegedly she had fallen down, the accused No. 3 (mother-in-law) brought a wick stove and poured kerosene on her body and the accused No. 2 (father-in-law) ignited the matchstick setting her on fire. She suffered serious burn injuries. She was taken to the District Hospital. She was later on shifted to KLE Hospital Belgaum where she succumbed to her injuries on 3.06.2004. All the prosecution witnesses viz., PWs 1 to 7 and 9 to 12 who were material to prove the prosecution case turned hostile. Even her own parents, brothers and sister-in-law did not support the prosecution case. Appellant and his parents, however, who stood their trial for commission of murder of the deceased Hussainbi, were convicted for commission of the alleged offence under Section 302/34 of the Indian Penal Code relying on or on the basis of the dying declarations allegedly made by the deceased. The High Court, however, by reason of the impugned judgment while holding that the deceased suffered a homicidal death opined that despite the clear statement made by the deceased attributing the act of abusing her, pouring kerosene oil on her and setting her fire by parents-in-law acquitted them, while upholding the judgment of conviction passed by the learned Sessions Judge against the appellants, stating: "On reading both the dying declarations, though we find there is possibility of the accused Nos. 2 and 3 also taking part in the ghastly act, the second dying declaration having excluded their participation in setting her on fire, benefit of doubt has to be given to the accused Nos. 2 and 3. This is also in view of the fact that Ex. P22 dying declaration recorded by the A.S.I. shows an attempt by the accused No. 2 to extinguish the fire by pouring water on her. Taking into consideration all these factors, we find that the prosecution has proved the guilt of the accused No. 1 to the hilt. But as regards the accused Nos. 2 and 3, the circumstances create doubt about the participation of those two persons and the benefit has to be given to them."
(2.) A short question which arises for consideration before us is as to whether having regard to the contradictory and/ or inconsistent stands taken by the deceased in her dying declarations, the impugned judgment can be sustained in law.
(3.) The deceased had made four dying declarations; two before the medical officers, one before the Executive Magistrate and one before the police officer. In her statements before the medical officers, she alleged that while she had been cooking in her house in the morning at 11.00 hours on 29.05.2005, accidentally, the stove burst and she sustained burn injuries. In her dying declaration recorded by Parappa Gurappa Thotagi, ASI Doddawada Police Station on 30.05.2004 at about 8.30 a.m., she alleged: "I have been married with Sri Mehbooba Saheb Mamadapur 6 years ago. I have three children. My husband is a driver. He was again and again troubling me, beating me. My mother-in-law, father-in-law and husband were forcing me to bring golden chain. They have been giving harassment to me in this manner. On 29.05.04, in the morning at about 9.30 when I was in the house again my father-in-law, mother- in-law and husband started abusing me. My husband trashed me on my back. As soon as I fell down, they poured kerosene which was in the stove on my body and by lightening the match box they burnt me. I do not know what happened thereafter. Now I came to know that I have come to KLE Hospital and am availing medical treatment here. I came to know that my body has been fully burnt. As my husband, father-in-law and mother-in-law are responsible for pouring kerosene and burning me. I am giving this statement for getting appropriate punishment to my father-in-law, mother-in-law and to my husband and written on my telling and heard.";