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2017 Supreme(Kar) 572
IN THE HIGH COURT OF KARNATAKA
K.S. MUDAGAL, B.A. PATIL, JJ.
Suresh @ Gurumurthy - Appellant
Versus
The State of Karnataka, By N.R. Pura Police - Respondent
Criminal Appeal No. 580 of 2012
Decided On : 17-10-2017
Advocate Appeared:
For the Appellant : Nishan Unni
For the Respondent: Vijaykumar Majage
The admissibility of dying declaration under Section 32 of the Indian Evidence Act and its corroboration with eyewitness testimony to establish guilt beyond reasonable doubt.
Headnote:
Dying Declaration - Murder - IPC Section 302 - Evidence Act Section 32 - [Dying Declaration] - [Murder] - [IPC Section 302, Evidence Act Section 32] - The court discussed the dying declaration and its admissibility under Section 32 of the Indian Evidence Act. The defense argued that the dying declaration was not recorded in question and answer form and lacked certification by the attending doctor, while the prosecution contended that the dying declaration was corroborated by eyewitness testimony. The court found that the dying declaration was not recorded in the prescribed form and lacked certification by the doctor, but the eyewitness testimony provided sufficient corroboration, establishing the guilt of the accused beyond reasonable doubt.
Fact of the Case:
The accused was convicted for pouring kerosene on the deceased and setting her ablaze, resulting in her death. The prosecution presented eyewitness testimony and a dying declaration to establish the guilt of the accused. The defense challenged the admissibility of the dying declaration and argued that the death was a suicide.
Finding of the Court:
The court found that the dying declaration was not recorded in the prescribed form and lacked certification by the doctor, but the eyewitness testimony provided sufficient corroboration, establishing the guilt of the accused beyond reasonable doubt. The court rejected the defense's claim that the death was a suicide, citing the accused's conduct after the incident as evidence of his guilt.
Issues: Admissibility of dying declaration, Corroboration of dying declaration with eyewitness testimony, Suicide vs. Homicide
Ratio Decidendi: The dying declaration was not recorded in the prescribed form and lacked certification by the doctor, but the eyewitness testimony provided sufficient corroboration, establishing the guilt of the accused beyond reasonable doubt. The accused's conduct after the incident indicated his responsibility for the death of the deceased.
Final Decision: The appeal was dismissed, and the judgment and order of conviction and sentence passed by the trial Court was confirmed.
B.A. Patil, J.
1. The present appeal is preferred by the accused, assailing the judgment and order of conviction & sentence dated 26/28.12.2011 passed by the Additional Sessions Judge at Chikmagaluru, in SC.No.14/2009.
2. The genesis of the case as per the prosecution is that on 10.10.2008 at about 10.00 p.m., accused-appellant herein picked up quarrel with the deceased Smt. Gowramma in respect of loan raised by them for constructing a house under "Ashraya" Scheme. During the said quarrel accused poured kerosene and set her ablaze with an intention to commit her murder, as a result of which she sustained burn injuries. She was shifted to Government Hospital, Koppa, on the next day morning and subsequently on 12.10.2008 at about 3.45 p.m., she succumbed to the burn injuries. On the basis of the complaint, case was registered against the accused and after completion of investigation, charge sheet came to be filed against the accused. After filing of the charge sheet and after following the procedure laid dounder Section 207 of Cr.P.C., the committal Court committed the case. Thereafter, the Sessions Court took the cognizance and after hearing the accused before charge, framed the charge to which the accused pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution in all has examined eighteen witnesses as per PWs.1 to 18 and marked twenty-one documents as per Exs.P1 to P21 and MO.Nos.1 to 4. On behalf of the accused, no evidence was led. Thereafter, the statement of the accused came to be recorded under Section 313 Cr.P.C. by putting incriminating materials against him. After hearing the learned counsel for the accused and the learned Public Prosecutor, the trial Court passed the impugned judgment convicting the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment. Against which, the accused has filed the present appeal.
4. We have heard Sri Nishan Unni P., learned counsel who has been appointed by the Karnataka Legal Services Authority to appear on behalf of the appellant- accused and to assist the Court and Sri Vijaykumar Majage, learned Additional SPP appearing on behalf of the respondent-State.
5. Learned counsel for the appellant-accused has contended that the dying declaration is not recorded in the form of question and answer as per the decision of this Court in the case of State of Karnataka Vs. Shivaraj & others, reported in 2002 Cri.L.J. 2493. The dying declaration at Ex.P6 does not disclose the endorsement of the doctor who attended the patient certifying that the injured Gowramma was in a fit state of mental condition to give her statement as per Ex.P6. There is no consistency between Ex.P6 and the evidence of PW.11 who recorded Ex.P6. He has also contended that the injured was treated with sedative drugs because of the burn injuries sustained by her and even the doctor who got admitted her has also deposed to the said effect and even during the course of cross-examination, the doctor has admitted that the deceased Gowramma was semi-conscious and was speaking in a feeble voice. Under the said circumstances, Ex.P6 cannot be considered to be a dying declaration under Section 32 of the Indian Evidence Act. It is his further contention that though PWs.1, 2, 6 and 7 are the eye witnesses to the incident in question, on perusal of their evidence, it makes clear that presence of the said witnesses is doubtful at the place of incident. He has further contended that there was no motive for the accused to pour the kerosene on the deceased and set her ablaze. The suicidal death has been converted into a case under Section 302 of IPC. In the absence of the motive, the trial Court ought to have acquitted the accused. Though the alleged incident has taken place on 10.10.2008, the FIR has been delivered on 11.10.2008. The said delay has not been considered and appreciated by the trial Court. On these grounds, he requests for allowing the app
