2003 Supreme(SC) 96

2003(2) Supreme 16
SUPREME COURT OF INDIA
(From Karnataka High Court)
S. Rajendra Babu & G.P. Mathur, JJ.
State of Karnataka -Appellant
versus
Shariff -Respondent
Criminal Appeal No. 662 of 1995
Decided on 27-1-2003
Counsel for the Parties :
For the Appellant : M. Veerappa, Advocate.
For the Respondent : Ajay Kumar Jain, Advocate (AC).

IMPORTANT POINT
High Court was clearly in error in discarding the dying declarations and Sessions Judge rightly based the conviction on them. The reasons of High Court are perverse and contrary to settled principles of law and therefore cannot be sustained.

Headnote:Indian Penal Code, 1860-Section 302-Respondent charged for having committed murder of his wife Muneera Begum by pouring kerosene-Sessions Judge convicted and sentenced to life imprisonment-High Court setting it aside-Appeal to Supreme Court-Evidence showing strained relations-9 years old son of deceased PW3 (Rasheed) deposing having seen his father burning his mother-Sessions Judge s non-reliance found incorrect (Para 15)-Reasons given by High Court for acquittal found perverse-Dying declarations, particularly to Doctor found true and reliable (Para 16)-Result-Appeal allowed-Conviction and sentence by Session Judge restored-Case law discussed.

       Held : In our opinion the view taken by the learned Sessions Judge that it would be unsafe to rely upon the testimony of PW 3 regarding the actual factum of incident is not correct. A boy aged 8/9 years would be near his mother and would be sleeping in the same house where she was sleeping. There was no occasion for him to go to the house of Jaina Bi and to sleep with her. If PW 3 was not present in the house and was in the house of her grand-mother in the night in question, he could not have conveyed the information about the incident to PW 1 and PW 2 nor they would have come to know about the incident forthwith. If PW 3 was present in the house he was bound to witness the incident, namely picking up quarrel by the accused with his wife and setting her on fire. There was absolutely no reason why PW 3 would give a false statement against his own father that he had tied the hands and legs of his mother and had burnt her. We are of the opinion that the testimony of PW3 is fairly reliable on the factum of the incident and the same cannot be discarded only on account of a stray sentence in his cross-examination where he has stated that when his mother caught fire he was in his grand-mother s house. The High Court did not examine the testimony of this witness carefully and we find ourselves unable to agree with the view taken by it. (Para 15)

       Held further : The other important piece of evidence against the accused is that of dying declarations and the most important one is that which was made by her to PW 12 Dr. KM Nagbhushan, Assistant Surgeon in the Victoria Hospital, Bangalore. He was the first doctor to examine her when she reached there at 9.30 a.m. The witness has clearly stated that the deceased gave her own statement with regard to the history and stated that she sustained burn injuries when her husband poured kerosene and set her on fire on the same day at 4.00 a.m. He recorded all these facts in the Accident Register and relevant extract of the same has been brought on record and has been proved by him as Ex. P. 12. There is absolutely no reason to discard the testimony of PW 12, who is a responsible government servant. The other two dying declarations were recorded by PW 11 BK Krishnappa ASI Victoria Police Station on July 24, 1986 and by PW 14 Kumar Swamy, PSI Anekal Police Station on July 26, 1986. These are fairly long dying declarations where she gave the background of the incident and also stated the fact that the accused picked up a quarrel in the morning of July 24, 1986 and thereafter after pouring kerosene set her on fire. These two dying declarations were recorded in the presence of PW 5 Dr. Rangarajan who was Assistant Surgeon in the Victoria Hospital at the relevant time. He made an endorsement that the dying declaration was recorded in his presence and thereafter he put his signature on the same. He has made a categorical statement that at the time when the statement of the deceased was being recorded on both the occasions, she was conscious and was in a fit condition to make a statement. In our opinion the aforesaid three dying declarations are wholly trustworthy and there is absolutely no reason at all to discard the same. Though PW 2 Syed Akbar and PW 6 Abdul Razak, who reached the spot in the village immediately after the occurrence, have also stated in their statements that the deceased told them that it was the accused who had set fire to her and their testimony in our opinion is trustworthy, but even if we do not take into consideration the aforesaid oral dying declaration of the deceased, the three dying declarations referred to above, are quite sufficient to fasten the liability upon the accused. (Para 16)

       We are a little surprised that the High Court took the view that having regard to the nature of injuries sustained by the deceased she could not have been in a position to make a statement. PW 12 Dr. K.M. Nagabhushan clearly recorded in the Accident Register that the patient was conscious, her orientation was good and that she answered well to the questions. He also noted that her pulse was 86/minute, CVS/RS was NAD. PW 5 Dr. Rangarajan before whom the statements of the victim were recorded by PW 11 and PW 14 on 24th and 26th July, 1986 respectively deposed that she was able to speak. He clearly stated that it is not true that the victim was not in a condition to make statement or that she was unconscious. In view of this clear statement of the Doctor that the victim was in a position to make a statement, the High Court, in our opinion erred in discarding the dying declarations merely on the basis of her injury report and post-mortem examination report. PW 4 Dr. KH Manjunath who had performed the post-mortem examination, had merely stated that he was not in a position to say if the victim was in a position to talk after sustaining the injuries and till she died. The last ground given by the High Court is regarding the language spoken by the deceased. PW 5 Dr. Rangarajan has stated in para 2 and 3 of his statement that the victim was answering in Kannada language in which language her statement was recorded by PW 11 and PW 14. We are therefore of the opinion that the view taken by the High Court is wholly perverse and also contrary to settled principles of law and therefore cannot be sustained. (Para 24)

       Held finally : In the result the appeal succeeds and is hereby allowed and the impugned judgment and order of the High Court is set aside and that of the learned Sessions Judge is restored. The accused-respondent shall surrender and undergo the sentence imposed by the learned Sessions Judge. The Chief Judicial Magistrate concerned shall take immediate steps to take the accused-respondent in custody. Shri Ajay Kumar Jain, learned Advocate, who appeared Amicus Curiae has rendered valuable assistance in deciding this case and we are beholden to him. (Para 25)