Gopal vs State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 29 OF 2006

GOPAL ...APPELLANT

VERSUS

STATE OF KARNATAKA ...RESPONDENT

J U D G E M E N T

SIRPURKAR, J.

1. The appellant - Gopal challenges his conviction

under Section 302 I.P.C. in this appeal. The allegation

against the appellant-accused are that on 29.12.1998 at

about 5 p.m., he poured kerosene on the body of his wife

Mallavva and set her on fire. It has come in the evidence

that Mallavva was immediately taken to the hospital by PW-8

Nagavva and PW-15 Sushila and she was treated by PW-5 - Dr.

Noor Ahmed. PW-5 is said to have intimated to the police

station on which PW-13 PSI Ravi came there and recorded

her dying declaration. In that dying declaration, the

deceased has clearly alleged that the accused used to drink

liquor and quarrel with her. He also used to assault the

deceased in a drunken state. On 29.12.1998, accused had

given Rs. 200/- to her for purchase of ration. He

immediately took back Rs. 100 out of Rs. 200/- . She

purchased the ration of the remaining amount of Rs. 100/-.

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At about 5 p.m., on the same day, accused returned to the

house and demanded Rs. 100/- from her. Thereupon, the

deceased told the accused that she had already purchased

the ration but the accused asked her to return the ration

and get him Rs. 100/- back. On her refusal, the accused

became angry and tied her hands and poured kerosene on

her body and set her ablaze. On 19.1.1999, Mallavva

succumbed to the injuries.

2. We have heard learned counsel appearing for the

parties and gone through the record and judgments of the

courts below.

3. We are convinced that the findings of the trial

court as well as of the High Court that this dying

declaration can be made the sole basis for the conviction

of accused is a correct inference drawn by the courts

below.

4. We have ourselves examined the dying declaration.

What impresses us is that there is solely no explanation by

the accused anywhere as to how the presence of kerosene has

been found on the brassiere, saree and petti-coat of the

unfortunate lady. We have seen the FSL Report - Exhibit

P-25 for that purpose which endorses this fact. It is not

the defence of the accused that the death was suicidal or

accidental. There is nothing on record even to entertain

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such doubt. The presence of kerosene residue on the inner

and outer garments provides strong corroboration of the

version in the dying declaration.

5. It is true that the witnesses, who carried the

deceased to the hospital, turned hostile during their

examinations but that may not be an escape route for the

accused because the man may lie but the circumstances do

not. The circumstances in this case clinches the proof

that it is the accused and accused alone who has committed

this offence.

6. Mr. Ram Lal Roy, learned counsel appearing for the

accused pointed out that the investigating officer did not

make any attempt to get recorded the second dying

declaration of the deceased by a Magistrate. It is really

true. It would have been better if the investigating

officer had made an attempt to get recorded the second

dying declaration of the deceased by a Magistrate. But, in

our opinion, the dying declaration recorded by PW-13 and

supported by PW-5 Dr. Noor Ahmed and the endorsement made

by him to the effect that the deceased was in a fit mental

condition to depose before the police convinces us that

the dying declaration itself was a good dying declaration

and could have been acted upon.

7. We find no merit in this appeal. It is,

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accordingly, dismissed.

.....................J [ V.S. SIRPURKAR ]

.....................J [ T.S. THAKUR ] NEW DELHI APRIL 19, 2011.