Kamalavva & Anr vs State Of Karnataka

Kamalavva & Anr. .... Appellants

Versus

State of Karnataka .... Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. The present appeal arises out of the judgment and final order passed

by the High Court of Karnataka at Bangalore whereby and

whereunder the High Court set aside the judgment and order of

acquittal passed by the I Addl. Sessions Judge, Belgaum under

Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short `the IPC'). However, the High Court maintained the order of

acquittal passed by the trial court under Section 498-A IPC.

2. In order to appreciate the contentions advanced by the parties and

legal issues involved, it is necessary to state brief facts of the case :

Deceased Shoba was the daughter of the sister of Somappa Irappa

Hunji (PW-1). As the mother of the deceased Shoba was suffering from

typhoid fever after six months of the birth of Shoba, Shoba was being

maintained and looked after by PW-1. Shoba studied upto VII standard.

Subsequently, PW-1 arranged the marriage of deceased Shoba with one

Prakash (PW-5) as per their customs when she was 18 years old. PW - 1

gave certain articles and Rs. 5,000/- at the time of her marriage. For about 6

months after the marriage both Shoba and her husband were living happily.

Thereafter, Kamalavva (A-1) who is the mother-in-law of the deceased

Shoba and Siddawwa (A-2) who is the sister-in-law of A-1 started illtreating

Shoba by asking her to bring more money as dowry and also by alleging that

Shoba was not attending the household work etc.

3. On 09.04.1995 at about 6.00 p.m. a person from Hannikeri village

where Shoba was then residing with her husband informed PW-1 that

2 Shoba had sustained burn injuries and was admitted to Civil Hospital

at Belgaum. On receipt of this information, PW-1 along with his wife

Tangewwa (PW-2), his son Ishwar (PW-3), and others went to the

hospital at about 10.30 p.m. and found that Shoba had sustained burn

injuries and then they came to know from Shoba that A-1 had poured

petrol over her and A-2 had set fire to her as a result of which she had

sustained burn injuries. The neighbours came to the spot and put off

the fire and she was taken to the hospital by her husband Prakash

(PW-5). While admitting her at the hospital, the Resident Medical

Officer sent a requisition to the outpost of APMC Police Station,

Belgaum located at Civil Hospital, Belgaum on 09.04.1995 at about

4.00 p.m. to the effect that the Shoba had been admitted to the hospital

with burn injuries and her condition was serious and, therefore, her

dying declaration should be recorded. On receiving the said request

PW-15 sent a requistition to the Tehsildar requesting him for

recording the dying declaration of the deceased Shoba. The said

Tehsildar, who is also the Taluk Executive Magistrate, recorded the

dying declaration of the deceased Shoba on 09.04.1995 at the District

Hospital, Belgaum. The said Taluk Executive Magistrate was also

examined in the trial as PW-17 who has deposed extensively on the

3 recording of the aforesaid dying declaration. The said dying

declaration was in the question-answer form. The following question

was put to the deceased Shoba as question No. 5 to which the answer

was given by the deceased in the following manner :

"Question - 5 Who is responsible for the assault on you or for your present condition ?

Answer In the afternoon, my mother-in-law and sister-in-

law poured Petrol on me and have lit fire."

In response to another question, she had correctly given the names and

addresses of her mother-in-law (A-1) and sister-in-law of her mother-in-law

(A-2) who had poured petrol on her and lit the fire. Subsequently, Shoba

died on 11.04.1995 at 7.00 p.m. Thereafter, the police converted the case

which was registered against both the Accused Nos. 1 and 2 to a case for the

offences punishable under Section 498-A, 302 read with Section 34 IPC.

Thereafter, Piroji Jotiba Ghatagennavar, DSP (PW-20) took up further

investigation and after completing the investigation filed a charge sheet

against the accused persons. As the offences alleged against the accused

persons were exclusively triable by the Court of Sessions, the learned

Magistrate committed the case to the Court of Sessions at Belgaum in S.C.

No. 4/96 on the file of the I Addl. Sessions Judge, Belgaum.

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4. The learned Sessions Judge framed charges against the accused

persons for the offences punishable under Section 498-A, 302 read

with Section 34 IPC. The accused persons denied the allegations

made against them and claimed to be tried. During the trial, the

prosecution examined in all 20 witnesses and documents produced

were exhibited as Exs. P-1 to P-24 and M.Os. 1 to 4. The accused

persons did not lead any evidence in their defence. After examining

the witnesses and hearing rival arguments, the learned Sessions Judge

by his judgment dated 20.02.1998 acquitted both the accused persons

holding that the prosecution had failed to establish the charges against

the accused persons.

5. Aggrieved by the judgment and order of the trial court the State of

Karnataka preferred the appeal being Criminal Appeal No. 533 of

1998 in the High Court of Karnataka at Bangalore. The High Court by

its impugned judgment and order dated 20.08.2002 allowed the appeal

and partly set aside the judgment of the trial court. By the said

judgment both the accused persons were convicted under Section 302

read with Section 34 of IPC and sentenced to undergo rigorous

imprisonment for life and also to pay a fine of Rs. 500/- each in

5 default to undergo rigorous imprisonment for two months. However,

the High Court maintained the order of acquittal under Section 498-A

of IPC.

6. The learned counsel appearing for the appellants forcefully submitted

that the High Court committed an error of fact and also of law in

convicting the appellants for offence punishable under Section 302

read with Section 34 of IPC. It was submitted that there was

inordinate delay in lodging the FIR and there is no proper explanation

for the same. The LTI of the deceased was also not attested and the

person recording the same did not come forward to give evidence. It

was further submitted that as the upper limb of the deceased was

burnt, the possibility of her putting LTI was highly improbable.

7. It was contended that the dying declaration although was a recorded

dying declaration but it suffers from many infirmities and therefore the same

should not have been acted upon and should have been rejected as not

reliable by the courts below. It was submitted that the dying declaration was

not properly recorded as the PW-17 who recorded the dying declaration was

not the regular Taluka Executive Magistrate of Belgaum, and he was only

6 in-charge and that the signature of the deceased was also not attested. It was

further contended that as the said dying declaration did not have any

certificate of the doctor attached to it certifying that the deceased was in a fit

condition to make a statement, the aforesaid dying declaration should have

been discarded. It was also submitted that there was a long delay in

recording the FIR by the police having jurisdiction to record such statement

and to investigate.

8. On the other hand, learned counsel appearing for the State refuted the

above submissions and supported the judgment of the High Court.

9. In the light of the aforesaid submissions of the counsel appearing for

the parties, the main issues that arise for our consideration are twofold; (i)

Delay, if any in lodging the FIR and its effect on the prosecution case and

(ii) Whether the dying declaration referred to and relied upon by the High

Court is reliable, trustworthy and could be acted upon ?

10. So far as the first issue with regard to the delay in filing the FIR is

concerned, true and correct position that emerges on a careful reading of the

entire evidence on record before the Court is that immediately after

admission of the patient (the deceased) into the hospital, the Resident

7 Medical Officer of the Civil Hospital, Belgaum sent a requisition to the

police outpost located at the hospital itself requesting for getting the dying

declaration of the patient recorded as her condition was serious. The police

in the outpost in terms of the said request sent a requisition to the Taluka

Executive Magistrate who in terms of the request got the dying declaration

recorded on 09.04.1995 itself at the District Hospital, Belgaum. On

10.04.1995, the statement of the patient (the deceased) was recorded at the

District Hospital, Belgaum by the police wherein she specifically stated that

her mother-in-law took the petrol that had been kept in the house for the

purpose of putting to the engine used for sprinkling medicine and also lit the

fire on her. She also stated that the sister-in-law of the mother-in-law

instigated her to kill her i.e. the deceased Shoba. The patient died on

11.04.1995. PW-13 who was initially the investigating officer being the

SHO at Nesargi Police Station was examined in this connection, who

stated that on 12.04.1995 he received a Crime bearing No. 31 of 1995 from

APMC Police Station which was registered as an offence punishable under

Section 498-A, 109 read with Section 34 IPC. He also stated that since the

said patient namely, the deceased Shoba later on died he registered the same

on 12.04.1995 in Crime No. 33 of 1995 for offence under Section 498-A,

302, 109 and 34 IPC. He was also cross-examined and he stated that as per

8 the FIR of APMC the said case was registered on 10.04.1995 at 1.00 p.m.

He also stated that all the papers were handed over on 12.04.1995. In view

of the aforesaid evidence, a submission was made that there was a delay in

filing the FIR in as much as although the alleged incident of burning had

taken place on 09.04.1995 the same came to be recorded in the form of a

formal FIR only on 12.04.1995. On going through the records and its proper

examination we are unable to accept the said contention for the simple

reason that information was received about the incident of burning at the

police outpost of APMC Police Station located in the hospital itself on

09.04.1995 when requisition was sent for recording the dying declaration

pursuant to which the dying declaration was recorded on 09.04.1995. On

10.04.1995, a statement was taken from the deceased by the police officer

himself. Consequently, it is established that the formal FIR came to be

recorded on 12.04.1995 although the incident was reported on 09.04.1995 on

the basis of which the police started the investigation by sending a

requisition to the Taluka Executive Magistrate which was followed up by

recording of the statement of the deceased by the police. Delay, therefore, in

recording the formal FIR stands explained.

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11. The next and the most vital issue which was raised is regarding the

admissibility of the dying declaration stated to have been made by the

deceased before her death. Before dealing with the factual aspect of the

dying declaration, it would be necessary to know the exact legal position

which has been laid down and reiterated by this Court time and again.

12. The question as to admissibility of a dying declaration came up before

this Court in several cases. In Laxman v. State of Maharashtra (2002) 6

SCC 710, wherein also a question regarding the admissibility of the dying

declaration was raised. The Constitution Bench held that the Court must

decide that the declarant was in a fit state of mind to make the declaration,

but where the eye witnesses' evidence including the evidence of a

Magistrate who had recorded the dying declaration to that effect was

available, mere absence of doctor's certification as to the fitness of the

declarant's state of mind, would not ipso facto render the dying declaration

unacceptable. It was further held that the evidentiary value of such dying

declaration would depend upon the facts and circumstances of the each

particular case.

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13. In paragraph 3 of the said judgment, this Court discussed the juristic

theory regarding acceptability of a dying declaration in the following

manner:-

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathed is so solemn and serene, is the reason in law to accept the veracity of his statement....."

14. The Constitution Bench in that case also referred to an earlier decision

of this Court in Koli Chunilal Savji v . State of Gujarat (1998) 9 SCC 303,

wherein it was held that the ultimate test with regard to the admissibility of a

dying declaration is whether the dying declaration can be held to be a

truthful one and voluntarily given. In the said decision it was also held that

before recording the declaration, the officer concerned must find that the

declarant was in a fit condition to make the statement. The aforesaid ratio

of the said decision was affirmed by the Constitution Bench in Laxman case

(supra).

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15. In Vikas and Others v. State of Maharashtra reported in (2008) 2 SCC

516 wherein this Court elaborately discussed the previous relevant decision

governing the legality of dying declaration and observed in para 45 as

follows :

"45. The Court, referring to earlier case law, summed up principles governing dying declaration as under:

(Paniben case4, SCC pp. 480-81, para 18)

"18. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

12 (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."

16. After referring to the decision of this Court in Khushal Rao v. State of

Gujarat reported in AIR 1958 SC 22, this Court in Vikas & Ors. (supra)

reiterated the legal position that where a dying declaration is recorded by a

competent Magistrate, it would stand on a much higher footing inasmuch as

a competent Magistrate has no axe to grind against the person named in the

dying declaration of the victim and in absence of circumstances showing

anything to the contrary, he should not be disbelieved by the court.

17. In the case of Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,

A.P. reported in AIR 2008 SC 19, in paragraph 18 it was stated thus;

"18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. This Court in more than one decision cautioned that the courts

13 have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion."

18. In the aforesaid decision this Court while referring to the decision of

the Constitution Bench in Laxman case reiterated that there is no

requirement of law that the dying declaration must necessarily contain a

certification by the doctor that the patient was in a fit state of mind specially

when the dying declaration was recorded by a Magistrate. It was also held

in the said decision that it is the testimony of the Magistrate that the

declarant was fit to make statement gains the importance and reliance can be

placed upon declaration even in the absence of the doctor's certificate

provided the court ultimately holds the same to be voluntary and truthful.

19. In the backdrop of the aforesaid legal principles laid down by this

Court, we will now examine the admissibility of the dying declaration in the

case in hand.

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20. PW-17 (Tahsildar) has stated that he was asked by the police to record

the dying declaration of the deceased Shoba who was undergoing treatment

in the hospital. He proceeded to the hospital and recorded the statement in

the presence of Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17.

The aforesaid statement was recorded in the form of questions and answers.

From the nature of the answers the deceased has given, it cannot be said that

she has not understood the questions and has not given proper answers.

Therefore, it is not difficult to conclude that the mental capacity of the

deceased was sound and she was capable of giving answers to the questions

put forth by PW-17. The aforesaid dying declaration was recorded by PW-

17 in the presence of PW-18 who is a doctor attached to the same hospital.

He has categorically stated in his evidence that the doctor had given the

certificate to the effect that the injured was in a position to give the

declaration. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The

thumb impression of the deceased Shoba was also taken on Ext. P.17. The

doctor (PW-18) who was present at the time of recording the dying

declaration has also attached a certificate to the effect that the said dying

declaration was recorded in his presence.

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21. In view of the aforesaid clear and unambiguous factual position we

are of the considered opinion that the High Court was totally justified in

relying upon the dying declaration recorded by the Taluka Executive

Magistrate (PW-17) The technical objection raised by the counsel for the

appellant regarding the unavailability of doctor's certification and

endorsement as to mental fitness of the deceased, is liable to be rejected in as

much as the same has been held by this Court in numerous decisions as a

mere rule of prudence and not the ultimate test as to whether or not the said

dying declaration was truthful or voluntary.

22. PW-17, who recorded the dying declaration had in his deposition

categorically stated that the deceased while making the aforesaid statement

was conscious and in a fit mental condition to make such a statement. PW-

17 being a Public Officer, we find no reason as to why he will implicate a

person falsely. Accordingly, the aforesaid dying declaration could be relied

upon as the same was truthfully recorded and the said statement gave a vivid

account of the manner in which the incident had taken place. The same also

corroborates in all respect with the statement given by the deceased to the

police on 10.04.1995. The said statement was also recorded by the police

officer of the rank of ASI and the deceased also put her LTI in it. In our

16 considered opinion, the dying declaration is reliable and trustworthy and

gives an accurate version of the manner in which the incident had taken

place.

23. In view of the aforesaid discussion and taking an overall view of all

the facts and circumstances of the case and also the evidence on record, we

find no ground to interfere with the order of conviction and sentence

recorded by the High Court holding the appellants guilty of the offence

under Section 302 read with Section 34 of IPC. The present appeal

therefore deserves to be dismissed which we hereby do. The order of

conviction and sentence recorded against the appellants by the High Court

is, therefore, upheld.

.......................................J. [Dalveer Bhandari]

....................................J. [Dr. Mukundakam Sharma]

New Delhi, July 29, 2009

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