advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, November 14, 2013

Sec.302 , 498 A IPC & under Sections 3 and 6 of the Dowry Prohibition Act, 1961 = Though parents turned hostile, the dying declaration and corroborative evidence is enough to bring the accused under Section 304 Part-II of the IPC and sentenced him to undergo RI for six years and to pay a fine of Rs.1,000/-, in default, to undergo further sentence of three months. = ANJANAPPA …Appellant Versus STATE OF KARNATAKA …Respondent = published http://judis.nic.in/supremecourt/imgst.aspx?filename=40965

 Though parents turned hostile, the dying declaration and corroborative evidence is enough to bring the accused under Section 304 Part-II of the IPC and sentenced him to  undergo
RI for six years and to pay a fine of Rs.1,000/-,  in  default,  to  undergo
further  sentence  of  three  months.   =
Dying Declaration once
the doctor who examined the deceased, himself states that the  deceased  was
in a position to make a statement and that she  was  conscious,  absence  of
his endorsement on the statement  to  that  effect  is  of  no  consequence. =

  PW-4  Dr.  Parthasarathy’s  cross-examination  has  not  yielded  any
material which could be said to be favourable to the defence.  In the cross-
examination he stated that on 17/10/1991 he was on duty from  2.00  p.m.  to
8.00 p.m.  After he attended the last patient at 8.00  p.m.  another  doctor
relieved him.  He added that after 8.00 p.m. he was  working  in  the  ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns  Ward.
 He stated that Gowramma was admitted in Casualty  Ward.   He  advised  that
she should be taken to Burns Ward but before sending her to  Burns  Ward  he
recorded her statement.   He  further  stated  that  he  started  Gowramma’s
treatment in Burns Ward.  He gave her sedatives  but  he  has  categorically
denied the suggestion that when he recorded the statement  of  Gowramma  she
was not in a position to give statement.  He denied the suggestion that  she
was not conscious.  This shows that when Gowramma  gave  statement  she  was
not under the effect of sedatives.

13.   Evidence of PW-4 Dr. Parthasarathy inspires confidence.  There  is  no
reason why he should make-up a story.  There is nothing on  record  to  show
that he harboured any grudge against the appellant.  He  is  an  independent
witness who has given his evidence in a  forthright  manner.   His  evidence
establishes to the hilt that Gowramma was in a fit mental condition to  make
a statement and she implicated her husband.   He  stated  that  he  made  an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari.   The
High Court has noted that PW-4 Dr. Parthasarathy  has  made  endorsement  on
Exhibit-P19 that Gowramma was in a fit condition to make a  statement.   The
High Court has also noted that in Exhibit-17, which is  the  case  sheet  of
Gowramma, it is stated that she was conscious.  But,  assuming  he  has  not
made any endorsement on Gowramma’s dying declaration that she was in  a  fit
state of mind to make a statement that does not affect  the  credibility  of
the prosecution story.  He stated on oath in the court that Gowramma was  in
a position to give statement and, therefore, he permitted PW-5 HC  Ramachari
to  record  her  statement.   An  independent  professional  like  PW-4  Dr.
Parthasarathy must be trusted when he makes  such  a  categorical  statement
with  a  sense  of  responsibility.  
  Moreover,  in  Laxman   v.   State  of
Maharashtra[8] this Court has  made  it  clear  that  certification  by  the
doctor about the fitness of the declarant’s  mind  is  a  rule  of  caution.
But, if the doctor certifies that the patient was conscious,  but  does  not
certify that he was in a fit state of mind, the  dying  declaration  is  not
liable to be rejected if the Magistrate who records  the  statement  deposes
about the fit state of mind of the declarant. That would  be  sufficient  to
give the dying declaration legal acceptability.  


Besides, PW-4 Dr.  Parthasarathy  stated  that  Gowramma  had  received  34%
burns.  She died about five days after the incident.  Therefore, it  is  not
possible to hold that she could not have made any dying declaration. 
It  is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital  is  doubtful.
It is true that PW-4 Dr. Parthasarathy stated  that  he  was  relieved  from
Emergency Ward at 8.00 p.m.  But, he has clarified  that  he  was  in  Burns
Ward  till  morning  of  18/10/1991.   There  is  no  reason  to  doubt  his
statement.

In the ultimate analysis, therefore, we are of the view that the  High
Court was perfectly justified in interfering with the trial  court’s  order.
The acquittal of the  appellant  was  wrongly  recorded.   The  High  Court,
however, adopted  a  kindly  approach  and  convicted  the  appellant  under
Section 304 Part-II of the IPC and sentenced him to  six  years  RI  because
the incident is of the year 1991.  Surprisingly, the appellant  has  made  a
grievance about this and stated that the  appellant’s  case  does  not  fall
under Section 300 of the IPC and, therefore, it cannot  fall  under  any  of
its exceptions and that the High Court has  not  assigned  any  reasons  for
convicting  the  appellant  under  Section  304  Part-II.   This  submission
deserves to be rejected.  Besides, the High Court has  given  reasons.   So,
it is wrong to say that no reasons are assigned by the  High  Court.   Since
the State has not approached this Court with a grievance that  the  sentence
awarded is too low and should be enhanced, we  refrain  from  commenting  on
this argument.  Judgment of this  Court  in  State  of  U.P.   v.   Virendra
Prasad[10] is not at all applicable to  this  case  and  hence,  it  is  not
necessary to discuss it.  The High Court was merciful.  In  the  absence  of
State appeal, at this distance of time, we are inclined  to  simply  dismiss
the appeal.  The appeal is,  therefore,  dismissed.   The  appellant  is  on
bail.  His bail bonds  stand  cancelled.   He  shall  surrender  before  the
concerned court.





REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1223 OF 2008


ANJANAPPA                                    …Appellant

                                   Versus

STATE OF KARNATAKA                           …Respondent


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.    This appeal, once again like many other appeals,  presents  before  us
the plight of a woman who is burnt to death  by  her  husband.   Sadly,  her parents turned hostile in the court.  
This raises the  serious  question  of witness protection which is not addressed as yet.

2.    Deceased Gowramma was married to the appellant on 17/04/1987.   It  is
the prosecution case that at the time of  marriage  the  appellant  demanded
dowry and he received Rs.5,000/-, a motor bike, one gold chain  and  clothes
from  Hanumantharayappa,  the  father  of  Gowramma.   After  marriage   the
appellant was harassing the  deceased  for  bringing  more  dowry  from  her
parents.  The harassment was both physical and mental.   The  appellant  had
caused burn injuries on the thighs of Gowramma to compel her to  bring  more
dowry.
He had kept one Puttamma as his mistress, which caused mental  agony
to Gowramma.
On 17/10/1991 there was a quarrel between  the  appellant  and
Gowramma  on  the  question  of  transferring  Gowramma’s  property  in  the
appellant’s name.
At about 6.00 p.m. the appellant poured kerosene  on  her
and set her on fire. Gowramma was taken to the Victoria hospital. 
 At  about
7.00 p.m.  PW-4  Dr.  Parthasarathy  admitted  her  for  treatment  of  burn
injuries.  
When PW-4 Dr. Parthasarathy asked her  about  the  burn  injuries
she told him that on the same day at  about  6.30  p.m.  the  appellant  had
poured kerosene  on  her  and  set  her  on  fire.   
He  recorded  the  said
occurrence in the Accident Register. Gowramma’s statement  recorded  by  him
is at Exhibit-P16(b).  
He reported  the  matter  to  the  police.   PW-5  HC
Ramachari of Vijayanagara Police Station came to the hospital on  17/10/1991
at about 10.30 p.m.  and  sought  permission  to  record  the  statement  of
Gowramma from PW-4 Dr. Parthasarathy. 
 As Gowramma  was  in  a  position  to
give statement PW-4 Dr. Parthasarathy permitted PW-5 HC Ramachari to  obtain
her statement.  
Thereafter, PW-5 HC  Ramachari  recorded  her  statement  in
Burns Ward, which is Exhibit P-19.  She stated that her husband  had  poured
kerosene on her and set  her  on  fire.   PW-4  Dr.   Parthasarathy  put  an
endorsement on the said  statement  and  signed  it.   
After  recording  the
statement of Gowramma, PW-5 HC Ramachari presented the memo Exhibit-P18  and
statement  Exhibit-P19  before  the  Station  House   Officer.    
 PW-6   S.
Nanjundappa, who was at the relevant  time,  working  as  ASI,  Vijayanagara
Police Station, recorded the FIR at about 11.30 p.m. on  17/10/1991  on  the
basis of  Gowramma’s  statement  Exhibit-P19.  
 The  appellant  came  to  be
arrested and charged for offences under  Sections  3  and  6  of  the  Dowry
Prohibition Act, 1961 and under Sections 498A and 302 of the IPC.
3.    The prosecution examined  eight  witnesses.   Apart  from  the  police
witnesses and the  doctor,  the  prosecution  examined  PW-2  Chikkaeeramma,
mother of Gowramma and PW-3 Hanumantharayappa, father of Gowramma.

4.    The trial court acquitted the appellant. 
 The trial court  inter  alia
held that the dying declaration could not be relied upon because the  doctor
has not made any endorsement as  to  whether  the  deceased  was  in  a  fit
condition to make a statement.  
The trial court held that the  deceased  was
given sedatives, therefore,  in  all  probability  she  was  not  in  a  fit
condition to make a dying declaration.  
In the opinion of  the  trial  court
it is doubtful whether the doctor was present  when  the  dying  declaration
was being recorded.  
The fact that the  parents  of  the  deceased  did  not
support the prosecution case weighed with the trial court.

5.    The State of Karnataka carried an appeal to the High Court.  The  High
Court by the impugned order set aside the order of acquittal, convicted  the
appellant under Section 304 Part-II of the IPC and sentenced him to  undergo
RI for six years and to pay a fine of Rs.1,000/-,  in  default,  to  undergo
further  sentence  of  three  months.   The  said  judgment  and  order   is
challenged in this appeal.

6.    We have heard learned counsel for the parties.  We have  read  written
submissions filed on behalf of the appellant.   Mr.Shekhar  Devasa,  learned
counsel for the appellant submitted  that  the  prosecution  case  that  the
appellant poured kerosene on the  deceased  and  set  her  on  fire  is  not
supported by the parents of deceased Gowramma.  They stated that  the  death
of Gowramma was accidental.  This affects the veracity  of  the  prosecution
case.  Counsel submitted that
the dying  declaration  of  deceased  Gowramma
cannot be relied upon because PW-4 Dr. Parthasarathy has stated that he  had
given sedatives to the deceased.  
The deceased, therefore,  could  not  have
been in a fit condition to make a dying declaration.  
 Besides,  the  doctor
has not made any endorsement to that effect on the dying  declaration.  
 The
doctor has not stated that kerosene smell was emanating  from  the  body  of
the deceased.  
This is also not  mentioned  in  Exhibits  P16,  17  and  19.
There is a  serious  doubt  about  the  doctor’s  presence  when  the  dying
declaration  was  being   recorded.    
Counsel   submitted   that   in   the
circumstances the dying declaration must be rejected.
 In  support  of  this
submission he relied on Nallapati Sivaiah   v.    Sub-Div.  Officer,  Guntur
A.P.[1], Mehiboobasab Abbasabi Nadaf   v.   State of  Karnataka[2],  Rasheed
Beg and ors.   v.  State of M.P.[3] and Kake  Singh  @  Surendra  Singh   v.
State of M.P.[4].

7.    Counsel submitted that there is a delay  in  recording  FIR.   Counsel
further submitted that the FIR was recorded at  10.30  p.m.  on  17/10/1991.
But, it reached the Magistrate at  4.30  p.m.  on  18/10/1991.   This  delay
casts a shadow of doubt on the FIR.  In this connection he relied  on  Bijoy
Singh and Anr.   v.   State of Bihar[5] and Meharaj Singh    v.    State  of
U.P.[6].  Counsel further submitted that motive is  not  proved.   There  is
also discrepancy in the timing of the dying declaration.  Counsel  submitted
that the conviction of the appellant under Section 304 Part-II  of  the  IPC
is not maintainable as his case does not come within the purview of  Section
300 of the IPC.  It, therefore,  cannot  fall  in  the  exceptions  thereto.
Besides, no reasons are assigned for convicting the appellant under  Section
304 Part-II of the IPC which renders the order of conviction  unsustainable.
 In this connection he relied on State of U.P.    v.    Virendra  Prasad[7].
Counsel submitted that in the circumstances the impugned judgment and  order
deserves to be set aside.

8.    Ms. Anita Shenoy, learned counsel for the State of Karnataka,  on  the
other hand, submitted that parents of the deceased  were  won  over  by  the
appellant.   However,  the  prosecution  story   is   established   by   the
independent evidence of PW-4 Dr. Parthasarathy and PW-5  HC  Ramachari,  who
have deposed about the dying declaration of  the  deceased.   In  her  dying
declaration the deceased has implicated the  appellant.   Counsel  submitted
that the dying declaration inspires confidence and,  therefore,  the  appeal
deserves to be dismissed.

9.    It is well settled that an order of acquittal is not to be  set  aside
lightly.  If the view taken by the trial  court  is  a  reasonably  possible
view, it is not to be disturbed.  If two views are possible and if the  view
taken by the trial court is a reasonably possible view, then  the  appellate
court should not disturb it just because it feels that another view  of  the
matter is possible.   However,  an  order  of  acquittal  will  have  to  be
disturbed if it is perverse.  We have examined the trial  court’s  order  of
acquittal in light of above principles.  We are of  the  considered  opinion
that the High Court was justified in setting it aside as it is perverse.

10.   What has weighed with the trial court is the  fact  that  the  parents
have turned hostile.  They came out with a story which  even  the  appellant
did not have in mind.  He merely denied the prosecution story.  The  parents
stated that the deceased was  heating  water  on  stove.   She  caught  fire
accidentally and sustained burn injuries.  If this was true,  the  appellant
would have stated so in his statement recorded  under  Section  313  of  the
Code of Criminal Procedure (“the code”).  We have perused  the  evidence  of
the parents.  We have no doubt  that  they  were  either  won  over  by  the
appellant or pressurized into supporting the appellant.  Their  evidence  is
a tissue of lies.  In any case, even if it is obliterated and  kept  out  of
consideration, there is sufficient other evidence  on  record  to  establish
the appellant’s guilt.

11.   PW-4 Dr. Parthasarathy is an independent witness.  He stated  that  on
17/10/1991 at 7.00 p.m.  he  admitted  deceased  Gowramma  in  the  Victoria
Hospital.  Her husband and mother had accompanied her.  On a query  made  by
him, she told him that on the same  day  at  6.30  p.m.  the  appellant  had
poured kerosene on her  and  set  her  on  fire.   He,  then,  recorded  the
occurrence in the Accident Register.  The relevant  pages  of  the  Accident
Register are on record at Exhibit-P16(a).  The statement of the deceased  is
at Exhibit-P16(b) and the signature of the  witnesses  is  at  Exhibit-P(c).
According  to  PW-4  Dr.  Parthasarathy,  Gowramma  had  received  34%  burn
injuries.  Exhibit-P17 is the  case  sheet  of  Gowramma.   He  stated  that
Gowramma died on 21/10/1991 at 7.30  p.m.   He  reported  the  case  to  the
police vide Memo dated  17/10/1991,  which  is  at  Exhibit-P18.   PW-4  Dr.
Parthasarathy further stated that at 11.00 p.m. on  the  same  day  PW-5  HC
Ramachari of Vijayanagara Police Station came to  the  hospital  and  sought
permission to record Gowramma’s statement.  As Gowramma was  in  a  position
to give statement he permitted PW-5 HC Ramachari to  record  her  statement.
Thereafter, PW-5 HC Ramachari  recorded Gowramma’s statement in Burns  Ward.
 PW-4 Dr. Parthasarathy reiterated that even at that time Gowramma  repeated
the story that her husband poured kerosene on her and set her on  fire.   He
stated that he made endorsement on that statement.  The  said  statement  is
at Exhibit-19, the endorsement is at Exhibit-P19(a) and his signature is  at
Exhibit-P19(b).

12.    PW-4  Dr.  Parthasarathy’s  cross-examination  has  not  yielded  any
material which could be said to be favourable to the defence.  In the cross-
examination he stated that on 17/10/1991 he was on duty from  2.00  p.m.  to
8.00 p.m.  After he attended the last patient at 8.00  p.m.  another  doctor
relieved him.  He added that after 8.00 p.m. he was  working  in  the  ward.
He stated that till morning of 18/10/1991 he was on duty in the Burns  Ward.
 He stated that Gowramma was admitted in Casualty  Ward.   He  advised  that
she should be taken to Burns Ward but before sending her to  Burns  Ward  he
recorded her statement.   He  further  stated  that  he  started  Gowramma’s
treatment in Burns Ward.  He gave her sedatives  but  he  has  categorically
denied the suggestion that when he recorded the statement  of  Gowramma  she
was not in a position to give statement.  He denied the suggestion that  she
was not conscious.  This shows that when Gowramma  gave  statement  she  was
not under the effect of sedatives.

13.   Evidence of PW-4 Dr. Parthasarathy inspires confidence.  There  is  no
reason why he should make-up a story.  There is nothing on  record  to  show
that he harboured any grudge against the appellant.  He  is  an  independent
witness who has given his evidence in a  forthright  manner.   His  evidence
establishes to the hilt that Gowramma was in a fit mental condition to  make
a statement and she implicated her husband.   He  stated  that  he  made  an
endorsement on the Gowramma’s statement recorded by PW-5 HC Ramachari.   The
High Court has noted that PW-4 Dr. Parthasarathy  has  made  endorsement  on
Exhibit-P19 that Gowramma was in a fit condition to make a  statement.   The
High Court has also noted that in Exhibit-17, which is  the  case  sheet  of
Gowramma, it is stated that she was conscious.  But,  assuming  he  has  not
made any endorsement on Gowramma’s dying declaration that she was in  a  fit
state of mind to make a statement that does not affect  the  credibility  of
the prosecution story.  He stated on oath in the court that Gowramma was  in
a position to give statement and, therefore, he permitted PW-5 HC  Ramachari
to  record  her  statement.   An  independent  professional  like  PW-4  Dr.
Parthasarathy must be trusted when he makes  such  a  categorical  statement
with  a  sense  of  responsibility.
  Moreover,  in  Laxman   v.   State  of
Maharashtra[8] this Court has  made  it  clear  that  certification  by  the
doctor about the fitness of the declarant’s  mind  is  a  rule  of  caution.
But, if the doctor certifies that the patient was conscious,  but  does  not
certify that he was in a fit state of mind, the  dying  declaration  is  not
liable to be rejected if the Magistrate who records  the  statement  deposes
about the fit state of mind of the declarant. That would  be  sufficient  to
give the dying declaration legal acceptability.
On the  same  analogy  once
the doctor who examined the deceased, himself states that the  deceased  was
in a position to make a statement and that she  was  conscious,  absence  of
his endorsement on the statement  to  that  effect  is  of  no  consequence.
Besides, PW-4 Dr.  Parthasarathy  stated  that  Gowramma  had  received  34%
burns.  She died about five days after the incident.  Therefore, it  is  not
possible to hold that she could not have made any dying declaration. 
It  is
argued that PW-4 Dr. Parthasarathy’s presence in the hospital  is  doubtful.
It is true that PW-4 Dr. Parthasarathy stated  that  he  was  relieved  from
Emergency Ward at 8.00 p.m.  But, he has clarified  that  he  was  in  Burns
Ward  till  morning  of  18/10/1991.   There  is  no  reason  to  doubt  his
statement.

14.   PW-5 HC Ramachari has corroborated PW-4 Dr. Parthasarathy.  He  stated
that on 17/10/1991 when he received the information he went to the  Victoria
Hospital.  He requested PW-4 Dr. Parthasarathy to allow him  to  record  the
statement of Gowramma.  PW-4  Dr.  Parthasarathy  told  him  that  he  could
record her statement and accompanied him  to  Burns  Ward.   He  found  that
Gowramma was in a position to talk.  He, then, recorded her statement  which
is at Exhibit-P19.  He further stated that Gowramma told him  that  at  6.00
p.m. the appellant demanded that house property  should  be  transferred  to
his name and then he poured kerosene on her and set her on fire.  He,  then,
presented Memo Exhibit-P18 to the Station House Officer.  Thus, evidence  of
PW-4 Dr. Parthasarathy is fully corroborated by this witness.   We  have  no
hesitation to record that both these witnesses are truthful  and  the  trial
court erred in rejecting their evidence.

15.    As   we   have   already   noted,   PW-2   Chikkaeeramma   and   PW-3
Hanumantharayappa have turned hostile.  It is apparent that they have  tried
to help the  appellant.   In  that  effort  they  have  come  out  with  the
accidental death theory which was not even  urged  by  the  appellant.   The
appellant could have very easily come out with it in his statement  recorded
under  Section   313   of   the   Code.    PW-2   Chikkaeeramma   and   PW-3
Hanumantharayappa are, therefore, completely exposed.  It is sad  that  even
parents did not stand by their daughter.  We do not understand how a  woman,
particularly a mother, turned her back  on  the  daughter.   Possibly  these
witnesses were bought over by the appellant.  Such  conduct  displays  greed
and lack of compassion.  If they were threatened by the appellant  and  were
forced to depose in his favour it is a sad reflection on  our  system  which
leaves witnesses unprotected.  The reasons why witnesses so frequently  turn
hostile need to be ascertained.  There is  no  witness  protection  plan  in
place.  In  Zahira Habibullah Sheikh (5)   v.   State  of  Gujarat[9]   this
Court spoke  about  importance  of  witnesses  and  their  protection.   The
relevant paragraphs read as under:


      “  “Witnesses” as Bentham said: are the  eyes  and  ears  of  justice.
      Hence, the importance and primacy of the quality of trial process.  If
      the witness himself is incapacitated from acting as eyes and  ears  of
      justice, the trial gets putrefied and paralysed, and it no longer  can
      constitute a fair trial. The incapacitation  may  be  due  to  several
      factors, like the witness being not in a position for  reasons  beyond
      control to speak the truth in  the  court  or  due  to  negligence  or
      ignorance or some corrupt collusion. Time has become ripe  to  act  on
      account of numerous experiences faced by  the  courts  on  account  of
      frequent turning of witnesses  as  hostile,  either  due  to  threats,
      coercion, lures and monetary considerations at the instance  of  those
      in power, their henchmen and hirelings, political clouts and patronage
      and innumerable other corrupt practices ingeniously adopted to smother
      and stifle the truth and realities coming  out  to  surface  rendering
      truth and justice, to become ultimate casualties. Broader  public  and
      societal interests require that the victims of the crime who  are  not
      ordinarily parties to prosecution  and  the  interests  of  the  State
      represented by their prosecuting agencies do not suffer even  in  slow
      process but irreversibly and irretrievably,  which  if  allowed  would
      undermine and destroy  public  confidence  in  the  administration  of
      justice, which may ultimately pave way  for  anarchy,  oppression  and
      injustice resulting in complete breakdown and collapse of the  edifice
      of rule of law, enshrined and jealously guarded and protected  by  the
      Constitution. There comes the need for protecting  the  witness.  Time
      has come when serious and undiluted thoughts are to  be  bestowed  for
      protecting witnesses so that the ultimate truth  is  presented  before
      the court and justice triumphs and that the trial is not reduced to  a
      mockery.
                       …    …     …
                       …    …     …
      The State has a definite role to play in protecting the witnesses,  to
      start with at least in sensitive cases involving those in  power,  who
      have political patronage and could wield muscle and  money  power,  to
      avert  trial  getting  tainted  and  derailed  and  truth  becoming  a
      casualty. As a protector of its citizens it has to ensure that  during
      a trial in the court the witness could safely depose the truth without
      any fear of being haunted by those against whom he had deposed… … ….”



      We share the above sentiments.  Unless  the  witnesses  are  protected
the rise in unmerited acquittals cannot be checked.  It is unfortunate  that
this important issue has not received necessary attention.

16.   In any case, the trial court should have seen through the  insincerity
and dishonesty of PW-2 Chikkaeeramma and PW-3 Hanumantharayappa  and  having
regard to the independent evidence  of  PW-4  Dr.  Parthasarathy,  which  is
corroborated by the evidence of PW-5 HC Ramachari  the  trial  court  should
have held that the deceased was in a fit mental condition to  make  a  dying
declaration and, therefore, her dying declaration can be relied upon.


17.   It is well  settled  that  a  conviction  can  be  based  on  a  dying
declaration recorded  properly  when  the  declarant  is  in  a  fit  mental
condition to make it.  It should  be  truthful  and  voluntary.   All  these
tests are satisfied in the present case.  Judgments  on  which  reliance  is
placed by the appellant’s counsel are not applicable to the  case  on  hand.
In  Nallapati  the  medical  evidence  on   record   and   other   attendant
circumstances were altogether  ignored  and  dying  declaration  was  relied
upon.  In those circumstances this  Court  while  reiterating  its  view  in
Laxman rejected the dying declaration in the peculiar  facts  of  the  case.
In Mehiboobasab the deceased wife had made four dying declarations in  which
she had taken contradictory stands.  This Court was primarily  dealing  with
inconsistent dying declarations.  While  observing  that  a  conviction  can
indisputably be based on a  dying  declaration  if  it  is  voluntarily  and
truthfully made this Court set aside  the  conviction  based  on  the  dying
declarations on the ground of their inconsistency.  Inconsistency  in  dying
declaration is not a ground of attack in this case.  In any case,  there  is
consistency  between  the  statement  of  Gowramma  recorded  by  PW-4   Dr.
Parthasarathy,  which  is  at  Exhibit-P16(b),  the  history   recorded   in
Gowramma’s case sheet,  which  is  Exhibit-P17  and  statement  of  Gowramma
recorded by PW-5 HC Ramachari, which is at Exhibit-P19.  This  judgment  is,
therefore, not applicable to the present case.  Rasheed Beg  also  turns  on
its own facts.  There in the second dying declaration two  additional  names
were  added.   This  Court  found  it  not  safe  to  rely  on   the   dying
declarations.  This judgment must be restricted to its own facts and has  no
application to the present case.  In Kake Singh  a good part  of  the  brain
of the deceased was burnt.  The doctor had  not  categorically  stated  that
the deceased was conscious when he made the dying  declaration.   Hence,  no
reliance  was  placed  on  it.   In  the  present  case   the   doctor   has
categorically stated  that  the  deceased  was  in  a  position  to  make  a
statement.  No parallel can, therefore,  be  drawn  from  Kake  Singh.   The
doctor’s evidence which is supported by the evidence of  PW-5  HC  Ramachari
and other attendant circumstances establishes that the dying declaration  of
Gowramma is truthful and it was voluntarily made by her when she  was  in  a
fit state of mind.

18.   There is also no substance in the submission that there is no  motive.
 The appellant wanted the property standing in the name of the  deceased  to
be transferred to his name, which the  deceased  was  not  prepared  to  do.
There is no reason to disbelieve PW-5 HC Ramachari on this aspect.


19.   Besides,  the  conduct  of  the  appellant  speaks  volumes.   He  was
absconding and could be arrested  only  on  19/02/1992.   Moreover,  in  his
statement recorded under Section 313 of the Code he has  not  explained  how
the deceased received burn injuries.  He did  not  set  up  the  defence  of
alibi.   It was obligatory on him to explain how the deceased received  burn
injuries in his house.  His silence on this aspect gives rise to an  adverse
inference against him.  It forms a link in the chain of circumstances  which
point to his guilt.


20.   Minor discrepancy in  the  time  of  recording  of  dying  declaration
creates no dent in the prosecution story which is, otherwise,  substantiated
by reliable evidence.  Certain documents like inquest panchanama  and  post-
mortem notes do not state that kerosene smell was emanating  from  the  body
of Gowramma.  When there is overwhelming evidence  on  record  to  establish
that kerosene was poured on Gowramma and she was set on fire, it  is  absurd
to argue that the prosecution case should be disbelieved because it  is  not
mentioned in certain documents that kerosene smell was  emanating  from  her
body.


21.   The submission that  there  is  delay  in  lodging  the  FIR  must  be
rejected.  PW-5 HC Ramachari recorded the dying declaration at  about  10.30
p.m. on 17/10/1991.  He, then, presented Memo  Exhibit-P18  to  the  Station
House Officer.  Thereafter, PW-6 ASI S. Nanjudappa  of  Vijayanagara  Police
Station recorded the FIR at about 11.30 p.m.  In the facts of this case,  we
find that there is no  delay  in  recording  the  FIR.   Hence,  it  is  not
necessary to refer to Meharaj Singh which is relied upon on this aspect.

22.   Similarly, we find that there is no unexplained  delay  in  forwarding
FIR to the Magistrate.  FIR was recorded at about 11.30 p.m. on  17/10/1991.
 PW-6 ASI S Nanjudappa has explained that since the constable was  going  to
the Court on the next day, he gave the FIR to  him  on  the  next  day  i.e.
18/10/1991 and it reached the Magistrate at about 4.30 p.m.  on  18/10/1991.
In the facts of this case this time lag can hardly  be  described  as  delay
and,  in  any  case,  acceptable  explanation  is  offered  by  PW-6  ASI  S
Nanjudappa.  It is, therefore, not necessary to refer to Bijoy Singh   where
this Court was dealing with a case where FIR was  registered  on  25/08/1991
at about 2.30 a.m. and copy  thereof  was  received  by  the  Magistrate  on
27/08/1991.  It is pertinent to note that  even  in  that  case  this  Court
observed that sending copy of the special report  to  the  Magistrate  under
Section 157 of the Code is the only external check on  the  working  of  the
police agency imposed by law which is to be strictly  followed.   But,  that
delay by itself does not render  the  prosecution  case  doubtful.   If  the
delay is reasonably explained no adverse inference can be drawn against  the
prosecution.


23.   In the ultimate analysis, therefore, we are of the view that the  High
Court was perfectly justified in interfering with the trial  court’s  order.
The acquittal of the  appellant  was  wrongly  recorded.   The  High  Court,
however, adopted  a  kindly  approach  and  convicted  the  appellant  under
Section 304 Part-II of the IPC and sentenced him to  six  years  RI  because
the incident is of the year 1991.  Surprisingly, the appellant  has  made  a
grievance about this and stated that the  appellant’s  case  does  not  fall
under Section 300 of the IPC and, therefore, it cannot  fall  under  any  of
its exceptions and that the High Court has  not  assigned  any  reasons  for
convicting  the  appellant  under  Section  304  Part-II.   This  submission
deserves to be rejected.  Besides, the High Court has  given  reasons.   So,
it is wrong to say that no reasons are assigned by the  High  Court.   Since
the State has not approached this Court with a grievance that  the  sentence
awarded is too low and should be enhanced, we  refrain  from  commenting  on
this argument.  Judgment of this  Court  in  State  of  U.P.   v.   Virendra
Prasad[10] is not at all applicable to  this  case  and  hence,  it  is  not
necessary to discuss it.  The High Court was merciful.  In  the  absence  of
State appeal, at this distance of time, we are inclined  to  simply  dismiss
the appeal.  The appeal is,  therefore,  dismissed.   The  appellant  is  on
bail.  His bail bonds  stand  cancelled.   He  shall  surrender  before  the
concerned court.






                               .…………………………..J.
                           (Ranjana Prakash Desai)






                               .…………………………..J.
                              (Madan B. Lokur)
New Delhi;
November 12, 2013.

-----------------------
[1] (2007) 15 SCC 465
[2] (2007)13 SCC 112
[3] (1974) 4 SCC 264
[4] (1981) Suppl. SCC 25
[5] (2002) 9 SCC 147
[6] (1994) 5 SCC 188
[7] (2004) 9 SCC 37
[8] AIR 2002 SC 2973
[9] (2006) 3 SCC 374
[10] (2004) 9 SCC 37

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.