Nagabhushan vs The State of Karnataka

HELD: 1.1 The High Court has specifically observed and held that the finding recorded by the trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverse and contrary to the evidence on record. The High Court has given cogent reasons while believing dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the trial Court, having found the finding recorded by the trial Court perverse. In the present case there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit D2. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits. The High Court in the impugned judgment and order has given cogent reasons to rely upon and believe the second dying declaration – Exhibit P5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has also taken note of the fact that in the second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein – original accused no.1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration – Exhibit P5. [Paras 6-8][609-E-H; 610-A-C]

1.2 The plea put forth by the defence that it was a case of an accident and while pouring the kerosene from kerosene can to the bottle, the same had fallen on the clothes placed on the ground and when the deceased tried to remove the clothes from that place, the candle fell on the ground, as a result, her clothes caught fire and she sustained burn injuries is disbelieved by the High Court considering the circumstances noted by the High Court that the deceased sustained injuries on the face, chest and back and to the upper limbs. The main injuries are found on the upper limbs of the body. Therefore, as rightly observed by the High Court, the aforesaid injuries can be possible when the kerosene is poured on the deceased. According to the defence and as per the evidence of DW1-A1, while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene. If that is the case, there would have been injuries to her feet also. However, no burn injuries are found on her feet. No stove was found at the place of occurrence. Therefore, the defence came out with a false case of accidental fire, which, as such, is not supported by any other reliable evidence. On the contrary, this evidence speaks otherwise. Therefore, when A1 came with a false defence and the dying declaration-Exhibit P5 is corroborated by other surrounding circumstances and evidence and after independent evaluation of Exhibit P5 and Exhibit D2, when the High Court has found that Exhibit P5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High Court has committed any error. In the present case the prosecution is successful in proving that the accused-appellant herein poured kerosene on the deceased. As per dying declaration Exhibit P5, it has been proved that the deceased was set ablaze by pouring kerosene on her. The act of the accused falls in clause fourthly of Section 300 IPC. The accused poured kerosene on the deceased and not only poured kerosene but also set her ablaze by the matchstick. Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC. No reason to interfere with the impugned judgment and order of conviction passed by the High Court. [Paras 9-11][610-F-H; 611-A-D; 611-E-F; 616-B-C]

Babu v. State of Kerala, (2010) 9 SCC 189 : [2010] 9 SCR 1039; Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10; Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436 : [2019] 6 SCR 994; Nallam Veera Stayanandam v. Public Prosecutor (2004)

10 SCC 769; Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343:[2020] 1 SCR 152; Ashabai v. State of Maharashtra (2013) 2 SCC 224 : [2013] 1 SCR 115; Santosh v. State of Maharashtra (2015) 7 SCC 641: [2015] 4 SCR 962 – relied on.