State vs Thara

Budihal R.B., J—This is the appeal preferred by the State challenging the judgment and order dated 20.7.2011 passed by the Presiding Officer, Fast Track Sessions Court-XVI, Bengaluru City in S.C. No. 1144/2010.

By the said judgment and order, the respondent accused has been acquitted of the offence punishable under Section 302 of IPC.

Brief facts of the prosecution case are that deceased Parvathi, daughter of Sannappa, aged about 20 years, resident of Sathenahalli, Nagamangala Taluk, Mandya District, was leading her life by doing tailoring work in the garments. Her native place was Sathenahalli, but she was residing at Chokkasandra, Bengaluru. Herself and accused (Thara) were staying in the same room and there used to be some dispute between them for petty matters. On 12.6.2010, morning at about 6.00 a.m., when the deceased Parvathi was sleeping, the accused (Thara) poured kerosene and lit fire stating as ''sorry Parvathi'' and went outside. The deceased Parvathi made an attempt to come out side, but the accused pushed her inside the house and again, lit fire to her. Because of the fire, the deceased sustained burn injuries on her face and the entire body. She sustained about 90% and above burn injuries. She submitted the true facts and requested to take action against the accused (Thara), who was responsible for the said incident. This statement of the deceased Parvathi was recorded in the presence of Dr. Shivakumar, CMO of Victoria hospital on 12.6.2010 at 10.30 a.m. The ASI was also present. On the basis of the said statement, which was marked as Ex. P. 7 and received in Peenya Police Station at 12.10 hours on 12.6.2010, case was registered in Crime No. 400/2010 for the offence under Section 307 of IPC and F.I.R. (Ex. P. 8) was issued.

The further statement of the deceased Parvathi was recorded on the same day in Victoria hospital wherein it is stated that she is residing in the address mentioned in the statement and they are four daughters to her father. She is the last daughter studied upto SSLC. She came to Bengaluru about two years back along with her eldest sister Bhagya S. and thereafter, started to work in the garments. For about one year, the deceased was staying in the house of her sister Bhagya at K.G. Halli. Thereafter, she came to her friend Asha, who was residing in a room at Chokkasandra and started to stay with her. About four months back, one Thara (accused) came to the said room and all the three were staying in the same room and were working in the garments. But Thara (accused) was not doing any work. Asha herself was paying the rent of the room on behalf of the accused. The deceased went to her native place about one month back to attend the marriage of her sister Padma. On the previous day of the incident, she came back to Bengaluru along with her father, whom she left at her sister Sukanya''s house at Dasarahalli and returned to her room. The accused (Thara) was present in the room. She kept her luggage in the said room and went back to the house of Sukanya and from there, herself and her father went to her eldest sister''s house at KG Halli. She left her father in the said house and after taking her clothes, came back to the house of Sukanya and from there, at 9.30 p.m., she came to her room where the accused (Thara) was present. Accused (Thara) Talked to her. Yatheesh, the boy friend of the accused came to her room and within short time, he went away and then, the accused (Thara) slept. Then the deceased Parvathi talked to Hareesh over phone, whom she wanted to marry. He was trying for the job in KSRTC and assured her that after getting the job, he would marry her. For that, she told that for two more years, she will not marry and slept at 11.30 p.m. Morning at 6.00 a.m., there was kerosene smell and the deceased asked the accused (Thara) as to why there was kerosene smell and why she has sprinkled the kerosene. In the meanwhile, the accused (Thara) pushed her down and lit fire to her stating ''sorry Paru''. At that time, the deceased embraced the accused, but the accused pushed her and after closing the door of the house, she went away. The accused (Thara) poured kerosene and lit fire to her with intention to cause her death. She does not know as to why the accused (Thara) did so. Hence, the deceased sought that the matter be investigated and justice be done to her. This was recorded in the presence of PSI and Dr. Smitha of Victoria hospital.

On the basis of the MLC information by the hospital informing the death of Parvathi on 15.6.2010 at 1.40 p.m. and after securing the death memo (Ex. P. 10) through the P.C. from Victoria Hospital Police station, the offence was moulded as Section 302 of IPC in place of Section 307 in crime No. 400/2010 of Peenya police station.

The investigating officer after conducting and completing the investigation filed charge sheet against accused (Thara) for the offence punishable under Section 302 of IPC. The Trial Court framed charge against the accused for the said offence.

The prosecution in order to prove its case, in all, examined 29 witnesses and got marked 16 documents and three material objects. On behalf of the accused, no witness was examined nor any documents were got marked.

We have heard the arguments of the learned High Court Government Advocate Sri Chethan Desai and also the arguments of the learned counsel appearing on behalf of the respondent accused.

The learned Government Pleader submitted that two dying declarations (Exs. P. 7 and P. 9) were recorded in the presence of the doctors. They have certified that the deceased was in a fit condition to give the statement. Exs. P. 7 and P. 9 are also supported by another document Ex. P. 16 i.e., the Accident Register extract of Victoria hospital. The doctor, who got admitted the deceased Parvathi, has deposed in his evidence that the deceased gave the history that it was the accused (Thara) who poured kerosene on her and lit fire to her. The learned Government Pleader submitted that even the evidence of the prosecution witnesses goes to show that deceased made the oral dying declaration stating that it was the accused who poured kerosene and lit fire to her. Hence, the oral as well as documentary evidence placed by the prosecution during the course of trial are not at all properly appreciated by the trial Court. The trial Court has considered only the technicalities in the matter in stead of appreciating the oral and documentary evidence and came to the wrong conclusion in holding that the dying declarations are not satisfactorily established by the prosecution and wrongly acquitted the accused. It is also the submission of the learned Government Pleader that there is no delay in recording the statement of the deceased Parvathi. The evidence of the witnesses goes to show that immediately after the incident, the deceased was shifted to Victoria hospital wherein in the extract of the register (Ex. P. 16) maintained by the hospital, the doctor has mentioned about the history given by the deceased Parvathi herself. It is further not in dispute that it is only the deceased and accused were staying in one room and the incident has taken place in the said room itself and in her statement under Section 313 of Cr.P.C., the accused has not at all explained as to how the incident has taken place. He further submitted that with regard to the explanation offered by the accused as mentioned in Exs. P. 15 and P. 16, it is not consistent and her explanation is totally inconsistent with each other. Hence, he submitted that prosecution has proved its case beyond all reasonable doubt, the appeal be allowed and the judgment and order of acquittal be set aside by convicting the accused for the offence under section 302 of IPC.

Per contra, learned counsel for the respondent accused submitted that looking to the judgment and order of acquittal impugned herein, the trial Court has extensively considered each and every aspect of the matter and has rightly disbelieved the dying declarations (Exs. P. 7 and P. 9) of the deceased Parvathi. He submitted that the dying declarations (Exs. P. 7 and P. 9) are not consistent and Ex. P. 16 is also the document which is created subsequently. In this connection, he submitted that Exs. P. 16 and P. 7 are said to have been recorded at 7.50 a.m. and 7.15 a.m. on the same day. But looking to the evidence of Ramu, (police official), who was examined as P.W. 29, he was directed to go to Victoria hospital to record the statements of the deceased and the accused. He went to the hospital at about 10.00 a.m. The learned counsel submitted that if P.W. 29 went to the hospital at 10.00 a.m., the statements (Exs. P. 16 and P. 7) could not have been recorded at 7.50 a.m. and 7.15 a.m. on the same day. So, this itself goes to show that the said documents were created by the police in collusion with the doctors. This aspect was discussed by the trial Court and came to the conclusion that the dying declarations said to be of the deceased Parvathi are not satisfactorily established. He also submitted that in her dying declaration (Ex. P. 7) itself, it is mentioned by the declarant that there are more than 90% burn injuries. This itself shows that she was not in a position to give the statement. It is his further contention that in one dying declaration (Ex. P. 7), there is said to be LTM of Parvathi, whereas in the accident register (Ex. P. 16) of Victoria hospital, it is mentioned as left big toe. He submitted that this also raises reasonable doubt as to whether really the deceased was in a position to give the statement when she was not able to put her LTM also on the statement. The learned counsel submitted that looking to the evidence of prosecution witnesses, they are not consistent with each other, on the contrary they are self contradictory. It is his further contention that if the statement was given in the early morning before the doctor as per Ex. P. 16 and even if the police rushed to the house in the early morning on coming to know of the incident, the same should have been the first information, whereas the F.I.R. shows the receipt of information at 12.10 p.m. Hence, he submitted that the prosecution has not proved the charge beyond all reasonable doubt and sought to dismiss the appeal confirming the judgment and order of acquittal of the trial Court.

Before discussing the evidence of the prosecution witnesses in detail it is convenient to refer to the prosecution witnesses in brief.

P.W. 1 is the panch witness for the spot mahazar Ex. P-1 he has not supported the case of the prosecution. P.W. 2 deposed that he does not know about Parvathi, so also the accused he does not know how Parvathi expired. P.W. 3 is the owner of the house in which the deceased and accused were staying and he is the signatory to the spot mahazar Ex. P-1. He has deposed that he had rented the house to the deceased and P.W. 5 Asha. At about 7.45 a.m. he learnt from P.W. - 11 that there was fire in the house, he has not supported the case of the prosecution and turned hostile. P.W. 4 is the Police Constable who was deputed to the hospital on 20.06.2010 and she arrested the accused and produced before the Investigating Officer. P.W. 5 is the common friend of deceased and accused, she was staying in the said house and she deposed that deceased has a boy friend by name Harish and she learnt from the sister about the incident, the parents of the deceased have not approved of the relationship of deceased with Harish. P.W. 6 is the Police constable who took F.I.R. Ex. P-8 to the court and submitted report as per Ex. P-3. P.W. 7 is the neighbour of the house, where the incident took place and she along with her husband P.W. 8 rushed to the spot and she has seen injured were shifted to the hospital in an ambulance. P.W. 8 is the neighbour he deposed that Parvathi was staying in the house opposite to his house; Asha and Thara were also residing with Parvathi, Parvathi died because of the burn injures but he does not know how she caught with fire. P.Ws. 9, 10 and 11 are the relatives/neighbours of the owner of the house (P.W. 3) and they have not supported the case of the prosecution. P.W. 12 is the ASI attached to Peenya Police Station and he reached to the spot on the instruction of P.W. 14 PSI at 6.30 a.m. and he spoke to the deceased, who disclosed to him about the incident. He secured the ambulance and sent both the injured to the hospital along with P.W. 8. P.W. 13 is the Police Constable attached to Peenya Police Station she was deputed to the hospital on 16.6.2010 to guard the dead body. P.W. 14 is the PSI attached to Peenya Police Station, who deposed that on the basis of Ex. P-7 he registered the case in Crime No. 400/2010 for the offence under Section 307 of IPC and issued F.I.R. as per Ex. P-8 and he also recorded the statement of injured at the hospital on the same day as per Ex. P-9 and also conducted part of the investigation. P.W. 15 is the doctor, who conducted Post-mortem on the dead body and issued the P.M. report as per Ex. P-12. P.W. 16 is the Head Constable attached to Peenya Police Station, who carried the material objects to FSL. P.W. 17 is the Police constable, who, on the information reached the spot and saw Parvathi and Thara were burnt and he secured the ambulance and sent both the injured to the hospital along with P.W. 8 and C.W. 29 also went along with them. P.W. 18, the sister and P.W. 19 the mother of the deceased, have deposed about the difference of opinion between the deceased and accused. P.W. 20 has turned hostile and not supported the case of the prosecution. P.W. 21 and P.W. 23, the relative of the deceased, who deposed that they met the injured Parvathi in the Hospital and enquired with her about the incident and deceased told before them that it is the accused Thara poured kerosene and lit fire to her. P.W. 22 is the panch witness for inquest mahazar Ex. P-14. P.W. 24 is the panch witness for the mahazar Ex. P-1 and seizure of M.Os. 1 and 2. P.W. 25 is the doctor, who endorsed in the Exs. P-7 and P-15 that Parvathi and Thara were fit to give the statement and he also deposed that he issued the death memo as per Ex. P-10. P.W. 26 is another doctor who got admitted both the injured namely Parvathi and Thara to the hospital and he issued the document Ex. P-16. P.W. 27 is the IO, who completed the investigation and filed the charge sheet. P.W. 28 is the IO, who conducted part of the investigation. P.W. 29 is the ASI, who went to the Hospital along with Bheemroy PSI on the instruction of Investigating Officer and he further deposed that he recorded the statement of deceased as per Ex. P-7 and the statement of the accused as per Ex. P-15

There are no eye witnesses to the incident in question. Case of the prosecution rests on the circumstantial evidence i.e. mainly on the dying declarations of the deceased Parvathi.

In this connection, it is useful to refer to the oral evidence of the witnesses, whose evidence is relevant in considering the dying declarations relied on by the prosecution.

P.W. 12-Kemparajaiah (ASI of Peeyna Police Station) has deposed in his evidence in the examination in chief that on 12.6.2010 at 6.15 a.m., PSI Puttaraju-C.W. 36 informed him over phone to come to Chokkasandra. Accordingly, he went there. People gathered there and he came to know from them that in the first floor of the house at the said place, a lady sustained burn injuries. He went to the said house, the girl was made lying outside the house. But she was in a position to speak. He enquired her. She told her name as Parvathi and also informed that one Thara set her ablaze and went away stating ''sorry''. The clothes and other articles in the house were burnt. Thara was also in the said place and she had also sustained burn injuries to some extent. When he asked Thara as to how she sustained the burn injuries, she told that as Parvathi embraced her, she sustained the said injuries. He sent both the injured to Victoria hospital in the ambulance along with one Haleshappa.

In the cross examination, P.W. 12 has deposed that when he had been to the spot, it was 6.30 a.m., both Parvathi and Thara were conscious. Parvathi had sustained injury over face, chest and upper and lower limbs. He sent them in the ambulance along with C.W. 29 P.C. 5228. He has deposed that within 15 minutes after reaching the spot, he shifted the injured to the hospital.

P.W. 14-T. Puttaraju (PSI of Peenya police station) has deposed in his evidence in the examination in chief that on 11.6.2010, he was in the night patrolling duty. On 12.6.2010 at about 6.15 a.m., he received a message from the control room informing that there was fire accident in the house of one Muniraju at Chokkasandra and asked him to immediately go to the spot. At that time, PC 5975 (C.W. 32) was also with him. They went to the spot and called P.W. 12 (C.W. 34) also to the spot. By the time he reached to the spot, the ambulance came there. Immediately, with the help of the public gathered there and through his staff, he sent both injured to the Victoria hospital in ambulance and there afterwards, ASI Ramu and PC 7007 (Bheemroy) were also sent to Victoria hospital asking them to get the memo and the statement of the injured. At 12.00 noon, they informed that they have brought the memo and the statement of the injured. Then he came to the police station and registered the case in PS Crime No. 400/2010 and issued F.I.R. The statement of injured Parvathi is at Ex. P. 7 and his signature is at P. 7(a). F.I.R. is at Ex. P. 8. Then he visited the spot and drew the scene of offence panchanama as per Ex. P. 1. There afterwards, on the same day in the evening, he went to Victoria hospital along with the writer Lakshmanaiah and in the presence of the doctor, recorded statement of the injured as per Ex. P. 9. Signature of the writer is taken as per Ex. P. 9(a) and his signature is at P. 9(b). The injured put her left thumb impression. On 15.6.2010, he secured the death memo of Parvathi and it is as per Ex. P. 10. He moulded the F.I.R. and it is as per Ex. P. 11.

In the cross examination, P.W. 14 has deposed that along with the injured, he sent one P.C. Bheemroy. At 7.30 a.m., by informing to the station, he asked ASI Ramu to go to Victoria hospital. He recorded the statements of neighbours. C.W. 35 produced the statement of the injured Parvathi before him and informed that as Thara was not in a position to give statement, he has not recorded the statement. He has further deposed that he recorded the statement of Parvathi in the hospital. Ex. P. 9 was recorded on that day between 5.30 and 6.00 p.m.

P.W. 15-Dr. Dilip Kumar has deposed in his evidence in the examination in chief that on 16.6.2010, in between 12.30 and 1.30 p.m., he conducted P.M. examination over the dead body of deceased Parvathi and issued report as per Ex. P. 12 and his signature is at P. 12(a). As the burn injuries were sustained prior to 48 hours of his conducting examination, he cannot say the percentage of injuries and also the gravity.

P.W. 17-Channegowda (Police Constable of Peenya Police station) has deposed in his evidence in the examination in chief that on 12.6.2010 at 6.00 a.m., he was informed by SHO that there is fire in the Muniswamappa building at Chokkasandra and asked him to go to the spot. Accordingly, he went there. One lady sustained burn injuries to the hands, face and chest. When he enquired with the said lady, she told that one Thara poured kerosene on her and set her ablaze and went outside stating ''sorry''. Then, he secured ambulance and sent her to Victoria hospital along with neighbour Haleshappa. He has further deposed that as Thara had also sustained injuries, she was also sent in the same ambulance. The lady, who sustained burn injuries, informed her name as Parvathi. Thara, who was also sent in the ambulance, is the accused and she is present before the Court.

In the cross examination, P.W. 17 has deposed that when he went to the spot, it was 6.00 a.m. C.W. 29 was also present along with him. Both the injured were in a position to talk. Parvathi told before him that she embraced Thara, when Thara was going out of the spot by setting her ablaze.

P.W. 18 Sukanya, who is the sister of the deceased Parvathi, has deposed in her evidence in the examination in chief that her sister deceased Parvathi was telling before her that one Thara was also joined them to stay in their room and she was not going to any work. She has further deposed that the deceased Parvathi was telling to her that without asking her, Thara was taking her money and using her make up set. It is further deposed that she enquired her sister as to how the incident had taken place. Her sister told that during the night, there was quarrel between herself and Thara in connection with money and thereafter, both were consoled themselves and slept. In the morning at 6.00 a.m., Thara poured kerosene on her and set her ablaze telling ''sorry''. When Parvathi went to caught hold Thara, she pushed her two times inside and at that time, Thara also sustained burn injuries to her and hands.

In the cross examination, P.W. 18 has deposed that when she had been to delivery, her sister Padma and Parvathi were staying together for about one year. She has denied the suggestion that she was knowing that Parvathi was loving a boy by name Hareesh. She has denied the further suggestion that as Hareesh belonged to another caste, they were not interested to give Parvathi to him. She has also denied that as the family members were not agreed for the marriage of Parvathi with Hareesh, she was disappointed in her life and committed suicide. She has deposed that Parvathi was in a position to speak.

P.W. 19-Prema (mother of the deceased Parvathi) has deposed in her evidence in the examination in chief that she came to Victoria hospital and saw Parvathi. When she enquired Parvathi as to the incident, she told that Thara poured kerosene on her and set her ablaze and when she tried caught hold Thara, she pushed her inside and latched the door.

In the cross examination, P.W. 19 has denied the suggestion that as they wanted to perform the marriage of Parvathi with another boy, she was disappointed and committed suicide.

P.W. 20 (Yatheesh) has deposed in his evidence in the examination in chief that Thara was working in Alka garments. He had acquaintance with the family members of Thara. There were talks for the marriage of himself with Thara. He was asked to marry Thara and for that, he told that he will consult his family members and then he will come back. He has further deposed that Thara had informed him that she was staying along with Asha and Parvathi at Chokkasandra. On 12.06.2010 at 11.00 a.m., the doctors of Victoria hospital informed him over phone that Thara sustained injuries because of stove burst. Then he went to the hospital and saw that Parvathi and Thara, both sustained injuries. He enquired Thara and she told that as there was burst of stove, herself and Parvathi sustained the injuries.

In the cross examination, P.W. 20 denied the suggestion that when he enquired Parvathi, she told before him that Thara poured kerosene on her and lit fire to her.

P.W. 21 (Nanjappa) has deposed in his evidence in the examination in chief that deceased Parvathi is his relative. He came to know that Parvathi sustained the burn injuries and admitted to Victoria hospital. Immediately, he came to Bengaluru and went to Victoria hospital and enquired with Parvathi as to why she had done so. For that, she told that she had not done anything. But Thara, who was staying with her, poured kerosene on her and set her ablaze and when she enquired Thara as to why she did like that, Thara said ''sorry'' and pushed her inside and went outside.

P.W. 25 Dr. Shiva Kumar has deposed in his evidence in the examination in chief that on 12.6.2010, one Thara (injured) was admitted in their hospital at 11.00 a.m. Along with her, one Paru @ Parvathi was also admitted because of the burn injuries. At 9.10 a.m. on the same day, Ramu, the ASI and Sunil, who is the PSI of Peenya Police Station also came to record the statement of both the injured. Both the police officials came to home and enquired as to whether both the injured were in a position to give statement. He verified that both the injured Parvathi and Thara were in the burns ward and informed the police officials that the injured are in position to give the statement. The statement of Thara is at Ex. P. 15 and his endorsement is at Ex. P. 15(a) and his signature is at Ex. P. 15(b). He made endorsement on the top of the statement of Thara that she is in fit condition to give statement. The statement of Parvathi is as per Ex. P. 7. As Parvathi sustained 95% burn injuries, her signature was not obtained, but her LTM was obtained. Her statement was recorded at 10.30 a.m. The statement of Parvathi was recorded in his presence and accordingly, he made the endorsement as per Ex. P. 7(d) and his signature is Ex. P. 7(e). Parvathi expired on 15.6.2010 at 1.40 p.m. The death memo is at Ex. P. 10.

In the cross examination, P.W. 25 has deposed that even though there are 95% burn injuries, the injured could talk. He has not issued a separate certificate stating that Parvathi sustained 95% burn injuries. But looking to the injuries sustained by Parvathi, he has stated that she has sustained 95% burn injuries. When Thara and Parvathi were giving their statement, ASI Ramu and PSI Sunil and himself were present. While giving statement, both the injured were conscious.

P.W. 26 (Dr. N. Santhosh) has deposed in his evidence in the examination in chief that since 1 1/2 years, he was serving as Medical Officer in Victoria Hospital. On 12.06.2010 at 7.50 a.m. one Parvathi was brought in ambulance for treatment by Chikkaramaiah (P.C. 5228) of Peenya Police Station. The injured was in conscious state and informed him that her friend Thara poured kerosene on her and lit fire to her at 6.00 a.m. The injured sustained the burn injuries on her face, neck, both the hands, chest, back and both lower limbs. He sent her to plastic surgery section. He mentioned all those details in the accident register of their hospital. He has produced the original accident register (Ex. P. 16) and the relevant page having details about the case is at Page No. 48, marked as per P. 16(a) and his signature is at P. 16(b). He has issued certified copy of Ex. P. 16(a), which is in two pages and both the pages are together marked as per P. 16(c).

In the cross-examination, P.W. 26 has deposed that the impression of Parvathi was obtained under Ex. P. 16 as her both hands were burnt. When Parvathi was sent to Plastic Surgery Section, she was conscious.

P.W. 29 (L. Ramu) has deposed in his evidence in the examination-in-chief that from the year 2005-2010, he worked as ASI in Peenya Police Station. On 12.06.2010, when he was on duty in the said Station, his superior officers informed him that there is memo and he has to go to Victoria Hospital to record the statement of the injured. Bheemroy (P.C. 7007) was also sent along with him. He consulted Dr. Shivakumar as to whether the injured is in a position to give statement. The Doctor told that she is in a position to give statement. Then himself and Bheemroy together went to burns ward and recorded the statement of the injured at 10.30 a.m. In the same ward, Thara was also admitted and they recorded her statement at 11.30 a.m. Then, he came back to the Police station and produced the statements. The statement of Parvathi is at Ex. P. 7 and his signature is at P. 7(f). Bheemroy wrote the contents of the statement and the signature of Bheemroy is at P. 7(g).

In the cross-examination, P.W. 29 has deposed that throughout the recording of the statement, Parvathi was conscious and he properly understood her words. He denied the suggestion that Parvathi and Thara have not at all given statements before him.

Looking to the evidence of prosecution witnesses, which is referred above, it is an admitted fact that Thara (accused) was residing along with Parvathi and Asha. It has also come on record that on the date of the incident, Thara and Parvathi were only staying in their room and Asha was not with them.

We have perused the extract of accident register of Victoria Hospital (Ex. P. 16). Perusing the entries in the said document, the name of the patient is mentioned as Parvathi, aged 19 years. The date is mentioned as 12.06.2010 at 7.50 a.m. At page 48 of the said document, it is stated as the alleged history of homicidal burning, her room-mate Thara poured kerosene and lit fire at around 6.00 a.m. on 12.06.2010. The patient was noticed by the neighbours and brought to hospital in 108 ambulance along with Police. Patient is conscious. Ex. P. 16 further includes the burns involving face, neck, both upper limbs, chest wall, back and both lower limbs. The doctor (P.W. 16) has deposed in his evidence about which we have already made reference that the injured Parvathi made oral statement before him that the accused (Thara) poured kerosene at 6.00 a.m. and set her ablaze. In the cross-examination of P.W. 16, nothing has been elicited from his mouth so as to disbelieve his evidence that the deceased Parvathi gave such statement before the doctor.

Ex. P. 7 (dying declaration), which was recorded by the Police, so also Ex. P. 9 (dying declaration), which was recorded in the evening at about 5.30 to 6.00 p.m. on 12.06.2010 clearly goes to show that the deceased made statement that accused (Thara) poured kerosene and set her ablaze stating ''sorry'' and pushed the victim inside the room.

Looking to cross-examination of the prosecution witnesses, absolutely, nothing has been elicited to show that Exs. P. 7 and 9 so also P-16 are falsely created in order to involve the accused (Thara) in the case. It is not doubt true, as argued by the learned counsel for the respondent-accused, that looking to Ex. P-9, it is in detail compared to Ex. P-7. But so far as the main event of pouring kerosene and setting Parvathi ablaze, there is consistency in all these documents namely Exs. P. 7, 9 and 16. Apart from the dying declarations, the evidence of sister and mother of the deceased so also the Police officials goes to show that Parvathi made the oral dying declaration before all of them stating that it is the accused (Thara), who poured kerosene on her and set her ablaze at 6.00 a.m. on the date of the incident. It is the contention of the learned counsel for the respondent-accused that P.W. 29 (Ramu), ASI of Peenya Police Station, has deposed in his evidence that when he reached hospital, it was 10.00 a.m. But Ex. P. 16 (extract of accident register) of Victoria Hospital bears the signature of Ramu and hence, this itself goes to show that Ex. P. 16 is the document created to suit the case of prosecution. It is no doubt true that there is signature of P.W. 29 on Ex. P. 16, but there is no material brought out by way of cross-examination that he also came to Victoria Hospital along with the injured, at the first instance though it may be his evidence that he came to hospital at 10.00 a.m. Apart from that, looking to the evidence of P.W. 26 (doctor of Victoria Hospital), his evidence indicates that Parvathi was brought in an ambulance and admitted to the hospital. The records clearly go to show that admission was at 7.15 a.m. In his cross-examination absolutely, there is no such suggestion that Ex. P. 16 was created along with Police for the purpose of this case. Therefore, the contention of learned counsel for the respondent-accused cannot be accepted at all. The materials placed on record cannot be considered in isolation but the entire material has to be read and appreciated together and the Court has to see as to what is cumulative effect of the entire materials placed on record.

Apart from the above materials, the contentions of accused (Thara) are also most important in coming to the right conclusion in the matter. In her statement (Ex. P. 15), the accused has stated that when she went to protect the deceased Parvathi, at that time, she also sustained the burn injuries, whereas the evidence of the Doctor (P.W. 26) goes to show that on verifying Thara that she was having conscious, he enquired her and she told that on 12.6.2010 morning at 6.00 a.m., her friend Parvathi poured kerosene on the bed and set fire and because of that, she also sustained the injuries. The other materials i.e., the evidence of P.W. 20 (Yatheesh) goes to show that when he enquired the accused (Thara) regarding the incident, she told before him that as stove was burst, both were sustained the burn injuries. It clearly goes to show that there is no consistent defence by the accused during the course of trial and for the purpose of escaping from the clutches of law, she took various contentions which itself goes to show that they are all false contentions. When in the said room, it was the deceased and accused only were staying during the night at the time of incident, it is for the accused to explain as to how the deceased sustained injuries, if she had not poured kerosene and set Parvathi ablaze. Looking to the examination of the accused under Section 313 of Cr.P.C., no such satisfactory explanation has been offered by her. Therefore considering all these materials on record, it is clear that the trial Court has not properly appreciated the materials, both oral and documentary and it wrongly came to the conclusion that the prosecution has failed to prove the dying declarations of deceased Parvathi with satisfactory materials and has wrongly acquitted the respondent accused. Therefore, the judgment and order of acquittal passed by the trial Court are not sustainable in law. Hence, we hold that the prosecution has established its case beyond reasonable doubt that the accused has committed offence in causing the death of the deceased Parvathi.

Accordingly, we pass the following:

ORDER

(i) Appeal is allowed.

(ii) The judgment and order dated 20.07.2011 passed by the Fast Track Sessions Court-XVI, Bangalore in S.C. No. 1144/2010 is hereby set aside.

(iii) The respondent-accused (Thara) is convicted for the offence punishable under Section 302 of IPC. The respondent accused is sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-. In default of payment of fine, the respondent accused has to undergo simple imprisonment for a further period of three months.

(iv) If the fine amount is realized, the same is to be paid P.W. 19 (Smt. Prema-mother of deceased Parvathi) as compensation as per Section 357 of Cr.P.C.

(v) The Trial Court to secure the accused so as to undergo the sentence.