Judgment :-

S.B. Sinha, J.

1. Appellant is before us, aggrieved by and dissatisfied with a judgment of conviction and sentence dated 7.6.2004 passed by a Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No. 32 of 1999 reversing a judgment of acquittal dated 15.9.1998 in S.C. No. 30/91 passed in his favour by the 1st Additional Sessions Judge, Mysore.

2. There is a small village ‘Rammanahalli situate near the town of Mysore. It has two streets called ‘Kelaginakeri and ‘Melinakeri. A cinema tent was put therein. There were two groups in the village residing in one or the other said streets. One group intended the owner of cinema/theatre to exhibit films starring Dr. Rajkumar and the other group asked them to exhibit the films starring Sri Vishnuvardhan. They had been asking the proprietor of the theatre to release the films in which their favourite stars were acting. The occurrence took place at about 8.00 a.m. on 9.12.1990.

3. The prosecution case is as under:

Maruchhaiah, the deceased, had gone out of his house to have a cup of tea. A clash between two groups of people from the aforementioned streets ‘Kelaginakeri and ‘Melinakeri took place. During the said clash, appellant is said to have stabbed the deceased with a knife when he was sitting near ‘Garadimane (Gymnesium). Maruchhaiah was taken to K.R. Hospital at Mysore. He died on the next day, i.e. on 10.12.1990 at about 5.00 p.m. Appellant is said to have also caused injury to Madhu

(P.W.6) when he tried to intervene. The said occurrence is said to have been witnessed by P.W. 6- Madhu, P.W.1-Maruchhaiah son of the deceased Maruchhaiah and several others.

P.W. 1-son of the deceased was also known as Maruchhaiah. A first information report was lodged at the Mysore South Police Station, stating:

"On 9.12.1990 at 10 A.M. my father Maruchhaiah was sitting on the paial of Garadimane and at that time Rachimallaiah and Rangaiah assaulted my father and Rangaiah stabbed my father below the left shoulder. There is a dispute between one street Keelanakeri street and for this they have injured my father. At that time Chennaiah and Mahadevas wife were present. I pray to take action." (emphasis supplied)

4. Deceased allegedly made a dying declaration, which was recorded by P.W. 23 -J.S. Srikanta Murthy, Investigating Officer in the presence of duty doctor, Dr. Jagannath

C.W.21. Dr. Jagannath, however, was not examined. P.W. 23, in his deposition stated:

"He told before me in the presence of the Medical Officer C.W. 21 that on 9.12.1990 at 10.00 a.m. while he was sitting on the pial of his house, some people came in group and when he questioned those persons why they were creating galata, at that time, accused came and held him and stabbed him with knife. One Rachimallaiah (subsequently deleted in the charge sheet) assaulted him with club and stabbed with knife, as a result of the said injury, he fell bleeding and his son P.W. 1 admitted him to the hospital. He said that due to ill-will, accused (Rangaiah) stabbed him with the knife." (emphasis supplied)

5. P.W. 23, in his deposition, had accepted that he did not obtain any certificate from the doctor that the deceased was both in a mentally and physically fit condition to give a dying declaration. Admittedly, no judicial officer was asked to record a dying declaration although the deceased after receiving the injury was alive for about 32 hours.

6. P.W.3 Dr. Hemavathy examined Maruchhaiah, the deceased and found only one cut injury 1 = cm x = cms on the left side of the posterior exillery fold. She found ‘bleeding present; air bubble was also seen from the wound.

7. P.W. 1- Maruchhaiah is the complainant. He is son of the deceased. According to him, the people of ‘Kelaginakeri started chasing ‘Melinakeri people. Since they came near his house, he also started running towards Rama Mandir. At that time (i.e., while running), he saw the appellant stabbing his father below on the left shoulder near arm pit. Later a