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Supreme Court of India
THE HONOURABLE MR. JUSTICE DALVEER BHANDARI & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
Kamalavva & Another
Versus
State of Karnataka
CRIMINAL APPEAL NO.1136 OF 2002
Decided on: 29-07-2009
(b) Indian Evidence Act, 1872 – Section 32 – Dying declaration – Certification by doctor regarding fitness of deceased to give statement – Not a requirement of law – More so when recorded by a Magistrate – Testimony of Magistrate as to fitness of deceased to make statement can be relied upon – If voluntary and truthful, such declaration may be acted upon. (Para 18)
(2002) 6 SCC 710; (1998) 9 SCC 303; (2008) 2 SCC 516; AIR 1958 SC 22; AIR 2008 SC 19 – Relied upon
(c) Indian Evidence Act, 1872 – Section 32 – Dying declaration in form question-answer – answers of deceased showing her fir state of mind – Statement recorded in presence of doctor – Doctor also signing the statement – Thumb impression of deceased also taken on the statement – Dying declaration rightly relied upon by High Court. (Para 20, 21)
Facts of the case:
Deceased died of burn injuries in her matrimonial house. The deceased, in her dying declaration, indicted her mother in law and sister in law for her death. Both accused were charged u/s 302 and 498A r/w 34 IPC.
The trial court acquitted the accused persons.
The High Court convicted both the accused u/s 302 r/w 34 IPC but acquitted them from charges u/s 498A IPC.
Finding of the Court:
High Court was justified in convicting the accused.
Result:
Appeal dismissed.
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 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 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 of
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