MIRDHE, J.

This appeal is preferred by the appellant-accused against the Judgment dated 20-10-1994 passed by the IInd Additional Sessions Judge, Bijapur, in S.C. No. 95/1994 convicting the appellant-accused for the offence under Section 302, I.P.C. and sentencing him to undergo imprisonment for life.

2 We have heard Sri S. G. Rajendra Reddy appearing for Sri R. B. Deshpande, learned Counsel for the appellant, and Sri M. Rajagopal, learned Additional Government Pleader, for the respondent-State fully and perused the records of the case.

3. The case of the prosecution is as follows :

Deceased Sumithra, who was aged about 30 years at the time of her death, was the wife of the appellant-accused. They were living with their two children in a house in Gaddanakeri Cross. The accused was working as a waterman in the Panchayat. But, he was addicted to drinking liquor and, therefore, there used to be quarrels between the deceased and the accused often. About two years prior to the incident, the younger son of the deceased and the accused died in a motor accident. A compensation of Rs. 28,000/- was granted to them. An amount of Rs. 10,000/- was deposited in the Bank in the name of deceased Sumithra. There used to be quarrel between the accused and the deceased as the accused was insisting on the deceased to withdraw that amount and give it to him and the deceased was refusing to comply with that demand of the accused. On 28-3-1994, at about 9.00 a.m. when the deceased was in her house, the accused came. He was drunk and he asked the deceased to withdraw the fixed deposit amount which was in her name and return it to him. But, the deceased refused to comply with this demand of the accused. He beat her and took the tin containing kerosene oil, sprinkled the kerosene oil on her body and set fire to her by lighting a match-stick. The deceased started shouting. Hearing her shouts, the neighbouring witnesses, P.W. 3-Renuka, P.W. 4-Chandbi and other persons came there and extinguished the fire by pouring water. The accused ran away when the witnesses came there. Sumithra was shifted to the Bagalakote hospital for treatment. She was admitted by the doctor, P.W. 1. P.W. 1 informed the police. The P.S.I., P.W. 15, came to the hospital and recorded the complaint of Sumithra as per Exhibit P-2 and on the basis of Exhibit P-2, he registered a crime in No. 22/1994 and started investigation of the case. After the completion of the investigation, he filed charge-sheet against the accused.

4. It is the case of the prosecution that the deceased died a homicidal death. P.W. 1, who admitted Sumithra first into the Government hospital, has given evidence that she noticed extensive burn injuries on the person of the deceased and she informed the police. Her intimation to the police is at Exhibit P-1. P.W. 1 has further stated that the deceased died subsequently. P.W. 2 conducted the post-mortem examination on the dead body of the deceased. He has given the post-mortem report as per Exhibit P-3. He has given his opinion that the deceased died due to septicaemia as a result of burn injuries. P.W. 6 is the mahazardar for Exhibit P-4. Her evidence coupled with the evidence of P.W. 14 goes to prove that the police held inquest proceedings over the dead body of the deceased. From these pieces of evidence, it is apparent that the deceased was admitted with burn injuries to the hospital by P.W. 1, that subsequently the deceased died in the hospital, that inquest was conducted over her dead body, that her body was subjected to post-mortem examination and also that the doctor has opined that the deceased died due to septicaemia as a result of burn injuries sustained by her. In view of these pieces of evidence, the prosecution has proved beyond reasonable doubt that the deceased died a homicidal death.

5. The motive for the commission of the offence by the accused is said to be the dispute between the deceased and the accused regarding the amount of compensation that was kept in fixed deposit in the name of the deceased. The accused has been examined in this case under Section 313, Cr.P.C. after the prosecution closed its evidence. Question number 5 put to him is as follows :

The reply to the above question by the accused is as follows :

Exhibit P-6 is a letter of the Syndicate Bank which reads as follows :

"With reference to the above letter, we wish to inform you that, Smt. Saroja Yamanappa Choudhari has kept deposit in the name her son Kumar Manjunath (V.C.C. No. 4056) and Kumar Ranganath (V.C.C. No. 4057) with us. This is for your kind information."

Even P.W. 3 has also stated that out of the compensation amount which the accused got on account of the death of his younger son Srikantha, the accused had squandered Rs. 10,000/- and he had kept Rs. 5,000/- in the name of Sumithra and Rs. 5,000/- in the names of his two sons. Even this reason for the accused to commit the offence on that day is spoken to in the complaint Exhibit P-2. These pieces of evidence are not disputed by the accused. But, he has admitted in his statement under Section 313, Cr.P.C. that he had spent Rs. 10,000/-. The prosecution case is that there used to be quarrels between the accused and the deceased on account of the accused insisting on the deceased to withdraw the amount of Rs. 5,000/- kept in deposit in her name and the deceased refusing to comply with his demand. A suggestion made to P.Ws. 3 and 4 is that there was illicit connection between the deceased and one Yallappa Bashetty, a neighbour of the deceased, and that the accused had caught the deceased and Yallappa Bashetty when they were in compromising position. Of course, this suggestion is denied by those witnesses. But, from the suggestion, it is apparent that the accused was suspecting the character of his wife on the ground that she was having some illicit connection with Yallappa Bashetty. Question No. 34 and the reply given by the accused under Section 313, Cr.P.C. are as follows :

Therefore, the case of the prosecution that the relationship of the accused with his wife was strained is further corroborated. The prosecution has been able to prove beyond reasonable doubt that the accused had motive to commit the murder of his wife.

6. The prosecution is relying on the evidence of P.Ws. 3, 4 and 5 as the evidence of the witnesses who saw the incident. P.W. 3 has stated that the accused used to come home drunk every day and quarrel with his wife and that on the day of the incident i.e., 28-3-1994 also he came at 9.00 a.m. to his home after consuming liquor and started quarrelling with his wife and when questioned, both the accused and his wife went inside their house and that after some time she heard the shouts of the deceased and when she went and saw, the deceased was burnt and the accused pushed her aside and ran away. P.W. 3 is the landlady of the house where the accused and his wife were residing. P.Ws. 3, 4 and 5 being the neighbours are the most natural witnesses. Nothing is elicited in their cross-examination so as to disbelieve their evidence. They are the simple folks of the village and they have no axe to grind against the accused and they have also no interest in the deceased. Therefore, their evidence is natural and acceptable. All these witnesses have also stated that when they came near the deceased and put off the fire and asked the deceased about the incident, the deceased told them which P.W. 3 has stated in her evidence as follows :

P.Ws. 4 and 5 have corroborated P.W. 3. Not only the presence of the accused is admitted, a suggestion is also made to the witness that the accused came there and extinguished the fire. So, the presence of the accused at the spot is admitted. The witnesses are natural witnesses who have no grudge against the accused to involve him falsely in the case. They have also seen the accused there, when they came there on hearing the shouts of the deceased, who pushed them aside and ran away. Added to this is the dying declaration made by the deceased before these witnesses. Therefore, the trial Court was justified in believing these witnesses.

7. Besides the evidence of these witnesses, the prosecution is also relying on the dying declaration made by the deceased. Exhibit P-2 is the complaint of the deceased. Exhibit P-12 is the further statement of the deceased and Exhibit P-10 is projected as the dying declaration of the deceased. Exhibit P-10 is alleged to have been recorded by P.W. 13 - Dharmanagouda Gurappagowda Patil who was the Tahasildar of that place then. He has stated that he went to the hospital and recorded the statement of the deceased as per Exhibit P-10. He admits in his cross-examination that he had not put the time of recording of the dying declaration in Exhibit P-10 and also he did not ascertain from the doctor concerned as to whether the deceased was in a fit condition to make a dying declaration. He also admits that Exhibit P-10 is not in question and answer form. He also admits that he did not take the signature of the scribe. Therefore, in view of these infirmities in his evidence, we are of the opinion that it will not be safe for the Court to rely on Exhibit P-10 as the dying declaration of the deceased. Very revealing answer given by this witness is as follows :

So, as per this witness, the face of the deceased was not burnt. But, the medical evidence is to the effect that the face of the deceased was also burnt. The answer given by this witness leads to the inference that this witness did not see the injured at all. Otherwise, he would not have given such answer that the face of the deceased was not burnt when the evidence discloses that her face was burnt. Therefore, we are not ready to rely on Exhibit P-10 and his evidence. Hence, the evidence of P.W. 13 and Exhibit P-10 will have to be excluded from consideration.

8. Exhibit P-2 is the complaint given by the deceased and in her complaint she has given the reason for the accused to set her on fire and also the incident in detail. The learned counsel for the appellant-accused submitted that the police officer who recorded the complaint had not ascertained from the doctor concerned as to whether the deceased was in a fit condition to give her statement. P.W. 1 is the doctor who admitted Sumithra in the hospital on that day. He has stated that when she was admitted in the hospital, Sumithra was not in a position to speak. But, he has also further stated that when her staatement was recorded, she was in a fit condition to give her statement. P.W. 1 is the person who informed the police as per exhibit P-1. This witness is more than enough to dispel any doubt in the mind of the Court as to whether Sumithra was in a fit condition to give her statement or not. The deceased died some 4 days after her giving the statement. She has affixed her thumb mark at exhibit P-2(a). The doctor has also signed at exhibit P-2(a). P.W. 1 has also deposed to that effect. Therefore, there are no suspicious circumstances susrrounding exhibit P-2. It has been recorded after the doctor intimated the police regarding the admission of Sumithra in the hospital and the very fact that P.W. 1 has signed at exhibit P-2(a) below the word "vernacular matter is ommitted" leads to the inference that exhibit P-2 was recorded in the presence of P.W. 1. Therefore, exhibit P-2 can be safely relied upon as the dying declaration of the deceased.

9. The learned counsel for the appellant-accused argued that exhibit P-2 is inconsistent with the evidence of P.Ws. 3, 4 and 5. He submitted that all the details regarding the incident mentioned in exhibit P-2 are not to be found in the evidence of P.Ws. 3, 4 and 5. The evidence of P.Ws. 3, 4 and 5 is that the deceased when failed to comply with the demand for money by the accused, picked up quarrel with her and set fire to her. The incident is narrated in detail by the deceased in her dying declaration, exhibit P-2. There is no contradiction as such between exhibit P-2 and the evidence of P.Ws. 3, 4 and 5 regarding the dying declaration of the deceased. The deceased had given all details of the quarrel and the incident in exhibit P-2. Exhibit P-2 cannot be rejected on that ground. Exhibit P-12 is the further statement recorded of the deceased. In that statement, the deceased has stated regarding the quarrel between her and her husband on account of the demand of the deposit of compensation amount in the Bank. The said statement mostly relates to the motive aspect of the case and as discussed by us earlier, the motive aspect is almost admitted by the accused in the sense he admits regarding the deposit of the compensation amount in the Bank and his spending Rs. 10,000/- out of that amount. Therefore, exhibit P-12 does not directly relate to the cause of the death of the deceased. Hence, it will not be a dying declaration within the purview of Section 32 of the Evidence Act. The evidence that is reliable and acceptable in this case is the evidence of P.Ws. 3 to 5 and also the dying declaration exhibit P-2. All these pieces of evidence prove beyond reasonable doubt that the deceased was set to fire by the accused.

10. The learned counsel for the appellant-accused submitted that the deceased might have caught fire by accident. But, the defence taken by the accused in reply to question No. 34 in his statement under Section 313 Cri.P.C. is as follows :

The answer indicates that the deceased committed suicide by burning herself. The deceased was found in flames by P.Ws. 3 to 5 in the padashala. Even the mahazar of the scene of the offence and the things found go to show that the deceased was set on fire deliberately by the accused and it could not be an accidental fire. The learned counsel for the appellant-accused further submitted that the doctors have opined that the death of the deceased was due to septicemia due to burn injuries and, therefore, the accused could not be held guilty of committing the murder of his wife as the cause of the death was due to septicesmia which could have been developed due to the negligence on the part of the doctors who were treating those burn wounds. He has also submitted that the doctor has not given the percentage of burn injuries. But, in the cross-examination of P.W. 2 itself, it is elicited that if the percentage of burn injuries is more than 30%, the victim dies. From this it can be safely inferred that the percentage of the burn injuries on the deceased was more than 30%. There is no material elicited by the defence in the cross-examination of the two doctors to lead to the inference that there was any negligence on the part of the doctors in treating Sumithra and septicemia had developed as a result of their negligence. Septicemia set in due to the burn injuries that were caused to the deceased and there was no evidence to show that there was any negligence on the part of the doctors in treating Sumithra. Therefore, the argument of the learned counsel for the appellant-accused cannot be accepted.

11. The learned counsel for the appellant-accused further submitted that the accused cannot be held guilty of murder in this case because he was drunk and if at all he set fire to the deceased, it was in a quarrel and the offence would fall under Section 85 of the I.P.C. A person under intoxication can be excused if he had committed any offence provided intoxicating material was given to him without his knowledge and against his consent and a person cannot become himself drunk with liquor and commit an offence and then come and say that he had consumed the liquor and, therefore, the benefit of Section 85 should be given to him. It is something like devil quoting the scriptures. Therefore, this argument cannot be accepted. So far as the sudden quarrel is concerned, there is no basis to hold that the quarrel on that day was sudden. On the other hand, the evidence of P.Ws. 3 to 5 go to show that the accused was in the habit of coming home drunk and making galata every day on account of the amount in deposit in the name of the deceased. There is also no evidence to infer that the deceased gave any provocation to him on that day or she initiated the quarrel. Therefore, it is difficult for us to accept and appreciate the argument of the learned counsel for the appellant-accused that the incident took place in a sudden quarrel. Even if the incident were to occur in a sudden quarrel, the law lays down that the accused should not be the person to start the quarrel and he should not act in a cruel or inhuman manner. But, in this case, the act of the accused in seeting fire to the deceased is cruel and, therefore, it cannot be brought under that exception also.

12. Viewing the matter from any angle, we are of the opinion that the trial has rightly assessed the evidence on record and properly convicted the appellant for the offence punishable under Section 302 I.P.C.

13. The last argument of the learned counsel for the appellant is that lenient view may be taken of the matter as the accused has got two children. The accused himself is responsible for making them orphans by killing their mother. It is something like an accused killing his own parents and praying for mercy in the Court on the ground that he has become orphan. Moreover, the trial Court has awarded the minimum sentence that can be awarded for the offence punishable under Section 302 I.P.C. i.e., imprisonment for life. We do not see any ground to interfere with the judgment challenged in this appeal.

Hence, the appeal is dismissed.

Appeal dismissed.