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2002 Supreme(Kar) 777
Karnataka High Court
Shantaram Dattatraye - Appellant
Versus
State of Karnataka - Respondent
Decided On : 12-13-02
CRIMINAL APPEAL : 479 of 2001
B.C.Muddappa, H.S.CHANDRA MOULY, K.A.Chandrashekar
Headnote:Prosecution based on dying declaration
INDIAN PENAL CODE, 1860-
Sections 302, 324 r/w Section 34 -Family feud leading to murder of husband by wife -Taluk Magistrate recording dying declaration -deceased naming his wife and her brothers as accused -oral dying declaration conflicting with judicial dying declaration -accused entitled for acquittal.
[Kumar Rajaratnam & Manjula Chellur, JJ.] - The judicial dying declaration does not inspire confidence in the Court, since the deceased suffered 95% of burns and must have been in a state of shock and under sedation. No note had been appended by the Doctor or the Taluka Executive Magistrate to have that the deceased was in a fit state of mind to give a declaration. Although this is not a requirement of law, it would have been prudent considering the deceased had suffered burns to the extent of 95%. The oral dying declaration does not implicate the accused. P.Ws. 1, 2, 3 and 8 are independent witnesses and the oral dying declaration given to them only refers to the persons who are inimically disposed towards the deceased. All the witnesses including the Petrol Bunk owner from where it is alleged that the deceased had purchased petrol did not support the prosecution. In these circumstances, a conviction can be based solely on the judicial dying declaration which contradicts the oral dying declaration. Accordingly the order of the Trial Court is set aside and the criminal appeals stand allowed and the accused are acquitted for the offences for which they had been convicted and are directed to be set at liberty forthwith. The Court finds that an accused is deaf and dumb, the court may proceed with the enquiry or trial, but it should first enquire into the antecedents of the accused and try and help him to understand the proceedings and render all possible assistance in the trial.
( 1 ) CRL. A. NO. 479/2001 is filed by the appellants-accused Nos. 1 3 and 4 against the judgment of the Trial Court rendered by III Addl. Sessions Judge, Belgaum in S. C. No. 8. /1994 dated 17. 3. 2001 convicting accused -1, 3 and 4 for an offence punishable under sections 302 read with Section 34 IPC and Section 324 read with section 34 IPC. Under Section 302 read with 34 IPC, the accused were convicted and sentenced to imprisonment for life and to a fine of Rs. 5,000/- each, in default to undergo S. I. for a period of one year. Under Section 324 read with 34 I. P. C. . , the accused were sentenced to undergo imprisonment for 6 months. The sentences were ordered to run concurrently.
( 2 ) CRL. R. C. No. 1/2001 is filed by the petitioner-the Registrar general of the High Court of Karnataka, Bangalore under Section 318 of Criminal Procedure Code on the judgment of the Trial Court dated 17. 3. 2001 with respect to accused No. 2 respondent No. 2. At the stage of recording the statement under Section 313 of Cr. P. C. it was noticed by the Trial Court that accused No. 2 was short of hearing, practically a deaf. Hence a Reference on the report of the trial Court under Section 318 Cr. P. C. After the judgment, the accused no. 2, who was on bail during the trial has been remanded to judicial custody on 17. 3. 2001 and he is also in judicial custody since then.
( 3 ) CRIMINAL Appeal No. 479/2001 is filed by A-1, A-3 and A-4. Criminal Referred Case No. 1/2001 is filed by the petitioner-Registrar general of this Court with respect to accused No. 2. Apart from this a-2 who was convicted by the trial Court but not sentenced on account of the Criminal Referred Case No. 1/2001 filed by the registrar General is also before us with respect to the conviction and not sentence in Criminal Appeal No. 1089/2002.
( 4 ) THERE is a delay of 435 days in filing the Criminal Appeal No. 1089/2002. Heard the learned Public Prosecutor and the learned counsel for the appellant-accused No. 2. Considering the fact that the Reference No. 1/2001 with respect to A-2 is pending before this court, after hearing the learned Public Prosecutor and learned counsel for the appellant and in the facts and circumstances of the case the delay in filing the appeal is condoned and I. A. I is allowed and we have after condoning the delay admit Criminal Appeal No. 1089/2002.
( 5 ) ACCORDINGLY Criminal Appeals Nos. 479/2001 and 1089/2002 and the Criminal Referred Case No. 1/2001 are taken up together and a common Judgment is rendered since the criminal referred case as well as the criminal appeals arise out of the same Judgment and with respect to the same alleged occurrence.
( 6 ) THE prosecution case, in brief, is as follows:- deceased Venkatesh was the conductor on duty in the KSRTC bus bearing No. CAF 3502. P. W. 8 was the driver on duty in respect of the said bus. On the night of 17. 8. 1993 the bus reached Sutagatti village and was parked near the society office, a little away from the village. The deceased and the P. W. 8 the driver were admittedly sleeping in the said bus on the night of 17. 9. 1993. The deceased was sleeping in the rear portion of the bus and the driver P. W. 8 was sleeping in the front portion of the bus.
( 7 ) ACCORDING to the evidence of P. W. 8 who was the driver of the bus and according to P. W. 4 who was co-conductor in the KSRTC bus deceased was suspended from his duties as a conductor. He was subsequently reinstated with back wages.
( 8 ) THE bone of contention was the award of back wages. Sumitrathe wife of the deceased was insisting upon the deceased that she should be given the back wages. However, the deceased Venkatesh apparently gave the amount received as back wages to his mother. This was not relished by Sumitra the wife of the deceased. It was further alleged that Sumitra being annoyed that her mother-in-law got the backwards committed the murder of the deceased s mother on 2. 4. 1992. A complaint in Crime No. 82/1
