Karnataka High Court
State Of Karnataka vs Shivaraj And Ors. on 19 February, 2002
Equivalent citations: 2002CRILJ2493, 2002 CRI. L. J. 2493, 2002 AIR - KANT. H. C. R. 1432, (2002) ILR (KANT) (2) 2065, (2002) 2 HINDULR 222, (2002) 3 ALLCRILR 33
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT M.F. Saldanha, J.
1. The law with regard to dying declarations has been the subject- matter of several decisions wherein the Courts have had occasion to expound different facets of the legalities and this appeal has thrown up for consideration one more very useful angle. We have had the benefit of two very competent counsel on either side who have very ably contributed towards the resolution of the issues involved which in our considered view virtually and one more dimension to the law. Briefly stated, the question that fell for determination arose out of an unusual situation insofar as the Investigating Officer (hereinafter referred to as the I.O.) submitted a written request to the doctor of the hospital where the injured person had been taken that the doctor should accord permission for recording the statement of dying declaration as the case may be since the injured was in a precarious condition and this request was conveyed in the form of an application which also effectively desired the doctor to not only accord the permission if the condition of the injured person so permitted but to also certify that this was the case. The doctor has superscribed in his own handwriting on the application his consent also certifying that the injured Narsing was in a fit condition to make a statement. This document which is Ex. P-8 is the centre point of the controversy between the two sides namely the prosecution and the defence represented by the learned Counsel. The allegation was that Narsing had been severely assaulted by the accused at about 9 a.m. on 29-4-1994 in the village, that his wife Rangamma who is PW.10 had rused to the Police Station and that the Police Officer accompanied her to the village only to find Narsing lying there is a serious condition. The police took the injured person to the hospital and since the case had already been reported to them, an offence was registered and one of the first steps taken by the I.O. was to record the dying declaration. The dying declaration is Ex. P-11. It contains an elaborate account of the incident which took place in broad day light and it squarely implicates the accused as the person who assaulted Narsing. Admittedly, the injured had been taken to the hospital in a police jeep, he was accompanied by his wife and it is her deposition that he was resting on her during this period and that he had told her that it was the four accused before the Court (one of them died during the trial) who had assaulted him. However, there is hardly any allegation thrown out by the defence that Narsing was either hostile to the accused because the record seems to be that they were on reasonably good terms land secondly, there is no charge against the wife Rangamma that she had instigated him to falsely implicate the accused and threfore the defence challenged the dying declaration on the ground of legal acceptability. The Courts over a period of time have progressively tightened up on the acceptability of dying declarations the reason being very clear namely that the deponent has died and is not available for cross-examination and if the dying declaration which is a very strong piece of evidence is accepted by the Court a conviction is possible in a given case soley on the basis of a reliable dying declaration. The Courts have however been extremely strict with regard to the procedural aspects relating to the dying declarations, the first of them being that the Court has to be 100% satisfied among other aspects that the injured person was in a fit condition both mentally and physically to understand questions, answer them cogently and correctly and more importantly, to make a statement that correctly reproduces the circumstances under which the injured person sustained the injuries. The Courts are conscious of the fact that a seriously injured person who is hanging at death's door is obviously in extreme pain, such as the unfortunate victims in dowry death cases who have undergone extensive burns. The Courts are also aware of the fact that in order to minimise the suffering various transquilizes and pain killers are given which have the immediate effect of drowsiness and at times reducing the patient to a semi-conscious condition. The Court takes stock of the fact that when a serious offence resulting in grave injuries have taken place, that the injured person has been through a very high level of trauma and that a combination of all these factors often times reduces the patient, who though conscious may not really be in a fit state physically and mentally to make a correct and cogent statement. That is precisely where the role of the doctor comes in because it is also an admitted position that as a result of the treatment often times the pain subsides or is controlled, the trauma is also taken care of, the condition physically and mentally stabilises and that in such a situation it is perfectly permissible to record a correct statement. The law takes cognizance of the fact that the injured person is the best person to indicate who the assailants were and how the injuries were sustained and that consequently, this evidence should not be lost because the victim has died and it is therefore necessary to record this very crucial evidence before it is lost. Taking into account all these factors, the Courts have invariably insisted that the dying declaration must be certified by the doctor and that the doctor will have to certify that the condition of the patient when the dying declaration was recorded was sufficiently stable and passes the test of scrutiny. Recently, the Apex Court added on one more dimension to the law by prescribing that it is desirable for the doctor to not only certify that the dying declaration was recorded when the patient was fit to make a statement but that it would be desirable for the doctor to certify after the recording was complete, that this condition prevailed right through the period of time when the statement was recorded. This safety clasue was added because the Courts took note of the fact that an injured person who is precarious could very quickly lapse into an unfit condition even though the patient appeared fit sometime earlier. The Courts have also insisted that the certificate must be superscribed on the document itself as a safety precaution in order to avoid the investigating authorities managing to get such a certificate at some other point of time. It is necessary that the certificate be contemporaneous. That is the core issue of the current controversy. We may mention here, that in the decision , the Supreme Court had emphasised the need for the doctor to be satisfied prior to the dying declaration being recorded because in the majority of cases this certificate was found at the end of the statement which meant that in all probability the doctor certified the condition after the statement was recorded possibly being unaware of what the condition was right through the earlier period of time.
2. As indicated by us, in the present case the dying declaration Ex. P-11 is not in question and answer form but is in a narrative form. The learned trial Judge for a variety of reasons, the main one being that the certificate from the doctor Ex. P-8 is not to be found on the same document, rejected the dying declaration and acquitted the accused and the present appeal is directed against that order.
3. We have heard the learned S.P.P. on behalf of the appellants and learned Counsel Mr. C.H. Jadhav on behalf of the respondents-accused. They have taken us through the record threadbare and we have re-evaluated the entire case in keeping with the principles that are in consonance with appeals against acquittals. The learned Counsel who represents the respondents was very emphatic about the fact that this was a case in which the learned trial Judge has discussed and analysed the evidence in its entirety. He has not overlooked anything and the submission was that if the trial Court has recorded reasons that are logical and findings that are plausible, that this Court should not interfere merely because another view is possible. We are conscious of these principles which are undoubtedly correct but what was pointed out by the learned S.P.P. was that it is not merely a question of another view but it is the result that is paramount and if it can be demonstrated that the dying declaration is acceptable, that the evidence is also good enough then, the order of acquittal would constitute miscarriage or a failure of justice and interference was absolutely essential.
4. The learned S.P.P. submitted that it is very important that the true significance of the principles that have been laid down in relation to the rejection or acceptance of dying declarations be analysed. He has drawn our attention to a decision of the Supreme Court , wherein the Apex Court has emphasised the fact that the certification process is essentially a rule of prudence so that the Court can be satisfied about the veracity of the dying declaration and more importantly, its evidentiary value. The learned S.P.P. submitted that merely because the Courts have laid down certain caution signals that it is no ground for the trial Courts to straightway start rejecting all the dying declarations on the ground that the process was not followed. He drew our attention to the observations of the Supreme Court in the decision reported supra wherein the Supreme Court has laid down that these guidelines are essentially for purposes of the Court satisfying itself that the dying declaration was valid and a 100% genuine piece of evidence. There could be other supportive facts and circumstances from which the prosecution can establish this and in a given case merely because the certificate is either not there or defective would not necessarily mean that the dying declaration had to be rejected. This is a very important principle of criminal law and we need to emphasise in the strongest terms that where a dying declaration is under scrutiny or where the defence attempts to shoot it down that the Courts must ascertain as to whether that piece of evidence requires to be watered down, whether it is required to be treated as weak evidence or whether it is so hopelessly bad that it must be rejected outright. in other words, the learned S.P.P. was right when he submitted that the effort of the Court though an incisive exercise must be geared towards saving the evidence where it is possible rather than throwing it out on technicalities.
5. It was submitted before us by the learned S.P.P. that the scrutiny of the evidence of PW. 15 the Investigating Officer Chidanand, P.S.I, very clearly indicates that unlike in many other cases, the officer has done a genuinely good job. It was demonstrated to us that his evidence, despite very rigorous cross-examination has remained unshaken and that in order to keep everything strictly on record, the I.O. made an application or a letter of request to the doctor so that this could be on record and was not oral as in most cases. The result of having followed this very laudable process was that the doctor put down in writing his certificate and signed the same. It is submitted that this procedure was even better than the one that is normally followed insofar as everything was on record. The only vulnerable area arose from the fact that Mr. Jadhav, learned Counsel who represents the accused vehemently submitted that the Courts have invariably laid down the principle that the certification should be on the dying declaration itself in order to avoid subsequent cover ups and that since the certificate is on a separate sheet of paper that there is every possibility that this was subsequently obtained, possibly even after the injured had died in order to cover up for not having obtained the certificate earlier on the dying declaration itself. His submission was that in keeping with the earlier principles, that the trial Court was fully justified in having rejected the dying declaration.
6. While we do subscribe to all the principles that have been laid down earlier, we need to take cognizance of the fact that law is ever growing, that sometimes a case throws up a new angle and in keeping with that principle we need to hold that the procedure followed in the present case is a superior one to that which was hitherto in vogue. The advantage of having submitted a written letter of request to the doctor is that nothing is left to conjecture insofar as the document is on record and it also makes it clear that the doctor is very conscious of his duty and what is expected of him. We need to however emphasise that it is always safer to obtain the certificate on the dying declaration itself for a variety of reasons but that the present procedure wherein the certificate would be on the letter of request submitted to the doctor is equally good provided there is unimpeachable evidence before the Court that it was contemporaneous and was not obtained at a later point of time. We propose at the end of this judgment to lay down certain further guidelines for the benefit of the investigating authorities and the doctors in relation to this class of cases. However, in our considered view the principle laid down in the Supreme Court decision referred to by us earlier and which has been following by a Division Bench of our High Court in ILR (2000) Karnataka 4917 (N.S. Hajeri v. State of Karnataka) is a valid and acceptable principle. Having satisfied ourselves that the dying declaration in this case passes the test of scrutiny, we hold that the Court can place full reliance on it. We need to add however that Mr. Jadhav brought it to our notice that the trial Court has upheld the defence objection that the scribe who was writer Ganapathi has not been examined and that this is a serious lacuna. While examination of Ganapathi would have added to the credibility, we need to hold that the non-examination is not fatal to the prosecution.
7. The only other reliable head of evidence in this case is the evidence of PW. 10 Rangamma who is the wife of the deceased. She states that on coming to know that her husband was being assaulted she made her way towards that place but that she was stopped at some distance before the scene of offence by persons who told her that she would also be beaten up if she goes there and therefore she went all the way to the closest police station, reported the matter to the police and returend along with them. She is very clear about the fact that deceased Narsing told her on the way to the hospital that the four accused had assaulted him and that they had used various implements, the two women having injured him by pelting stones. Though she is an ordinary rustic villager, Rangamma's evidence has withstood the very rigorous, and if one may say so, harsh cross-examiantion exercise and there is really no ground on which her evidence can be discarded. While the learned S. P.P. submitted that even though she is not an eye-witness, that she fully corroborates the dying declaration, Mr. Jadhav submits that PW. 10 Rangamma has been put up by the prosecution. He submits that as the wife when she came to know that her husband was being brutally assaulted, that her first duty was to saved him and as always happens even at the risk of her life she would have rushed to the scene of offence. His submission is that Rangamma not having done so very clearly indicates that she was nowhere around that place. Secondly, he points out that there has been an abnormally long time lag between the incident which took place at about 9 A.M. and Rangamma reaching the police station, the police coming there and taking the injured to the hospital which was a full.four hours later at about 1 P.M. in the afternoon. Rangamma has given certain reasons for the delay namely the fact that there is hardly any proper transport available in that rural area and we do find that these explanations more or less pass scrutiny. We are reinforced by the fact that the Couts have to be true to reality and that even if the, police were available when Rangamma reached the police station that they are not going to respond in double quick time on the complaint of a poor villager. There are many factors that could have contributed to the delay but more importantly Rangamma herself has stated that her not having gone upto the scene of offence was because she was physically stopped by others and was warned that she would meet the same fate if she went there and it is obvious to us that she did the next best thing by rushing to the police for help. We see nothing wrong in her conduct and in our considered view her evidence is perfectly acceptable. Another aspect of the case is that the accused persons were all absconding for various lengths of time and in our considered view this is a guilty circumstance. Also, the weapons used for the assault were recovered at the instance of the accused and there is hardly any dispute about this. All factors taken cumulatively lead to the only conclusion that it was the accused persons who assaulted the deceased Narsing, and that the injuries caused in the course of this ' assault led to his death. At this stage, we need to however uphold one submission canvassed by learned Counsel Mr. Jadhav who pointed out to us that for as long as four full hours Narsing did not receive any medical assistance, that he had lost a lot of blood and that the injuries, none of which were really serious enough to endanger life in their own right resulted in his death obviously because of the fact that he did not receive requisite help. This would really mean that a conviction even if recorded would not come under Section 302, IPC. Also, from the fact that none of the injuries are on the vital parts of the body and the gravity of the injuries as appears from the medical evidence of PW. 12 Dr. Shantappa wold indicate that they were not serious enough to cause death in their own right and that consequently, at the highest the accused could be held guilty of having caused grievous hurt i.e. under Section 326 r/w. Section 34, IPC.
8. On the question of sentence, though the learned S.P.P. has submitted that persons who take the law into their own hands and that too in a public place require to be severely dealt with, Mr. Jadhav has pointed out that it is very clear that, the intention was only to assault and not to kill and he has also submitted that having regard to the status of the accused persons that this Court should take into account the fact that they have served considerable periods of time in custody during the trial and at this late stage that they should not be reconsigned to prison. There is no premeditation nor is this a case of extreme brutality and again, Mr. Jadhav is right when he points out to us that the accused are agriculturists and not seasoned or regular criminals and consequently, that they would deserve sympathetic treatment at the hands of the Court. We are guided in this regard by the several instances wherein at a late stage even though an acquittal was reversed, the Supreme Court has confined the sentence to the period already undergone.
9. In the result, the appeal succeeds. The order of acquittal passed by the trial Court is set aside. Accused Nos. 1, 2 and 4. are convicted of the offences punishable under Section 326 r/w. Section 34 IPC and it is directed that they shall undergo imprisonment for the period already undergone by them in custody. We however prescribe that in addition to this, they shall pay a fine computed at Rs. 2000/- each. The fine amount to be deposited in the trial Court within a period of twelve weeks from today. No indefault sentence is awarded. If there is default, the trial Court to recover the amount from the accused and once the amount is recovered, the trial Court to issue notice to PW10, wife of the deceased, Rangamma and to pay over the said amount to her as compensation. The appeal suceeds to this extent and stands disposed of.
10. Before parting with this judgment, we need to lay down that in keeping with the principles that have, now undergone a slight amendment that hereinafter the Home Department shall ensure that a prescribed printed pro forma is prepared which shall be used by the investigating authorities in all cases where dying declarations are to be recorded. It would be desirable that this pro forma should be in the form of a double sheet of paper, the outer jacket being printed. The jacket shall, in the first instance, contain the brief particulars of the case, the name of the injured person, the name of the police officer who is investigating the case, the name of the scribe and more importantly, the name and designation of the person recording the dying declaration. Below this, the form shall indicate the name of the doctor who is incharge of the patient, the time and date when the request was made for recording the dying declaration and sufficient space shall be kept below this for the certificate from the doctor. There shall be a note on the form indicating that the doctor shall examine the patient and the case papers and shall in appropriate cases certify that the patient is in a fit condition physically and mentally to understand questions, to answer them and to make a statement giving the true account of the manner in which the injuries were sustained. in our considered view, if this pro forma is used in all cases of dying declarations, it will totally eliminate many of the errors that are being committed by the investigating officers and the doctors but more importantly, in the large number of cases such as dowry death cases where the dying declaration is about the only reliable evidence, that it will completely eliminate the failures of the prosecution that are now rampant because of defects in the dying declaration. The note to the doctor shall make it clear that apart from the condition of the patient, the doctor shall certify the time when the dying declaration was recorded, the fact that the doctor has certified the condition of the patient, both prior to the dying declaration being recorded and after it has been completed.
11. Dowry death cases have been on the increase and the rate of acquittals in this class of cases has unfortunately risen from 82% ten years ago to 97.6% in the year 2001. in other words, while wife burning or any other equally horrifying method employed in this class of cases is not only degrading to human dignity but it is a class of attrocity against women which requires to be ruthlessly dealt with, that in actual fact, from the abnormally high percentage of acquittals the wrong signals have been emanating to persons indulging in these criminal activities that there is virtually a certainty of their getting away with the atrocity. These are crimes against humanity and the manner in which they are committed especially since burning is the favourite method employed particularly in the State of Karnataka which incidentally has the highest recorded number of wife burning cases statewise and Bangalore city state capitalwise, that the Courts are called upon to devise a fool-proof system whereby not a single one of the culprits is allowed to get away.
12. Barring a few cases wherein the wife out of desperation commits suicide by hanging, consuming poison or jumping into the closest well, in the majority of this class of cases where the woman is severely burnt, she is brought to the hospital and survives for a short period of time, the entries in the medico-legal register are of crucial importance because invariably it is the culprit himself in order to deceive the public eye and make it appear as though it was a typical cooking accident, and his relatives, take advantage of the seriousness of the victim's condition and get an entry recorded that it was an accident. The defence thereafter capitalizes on this entry by stating that the deceased herself had given this as the history of the case. in order to ensure true and accurate recording in every one of this class of cases the doctor on duty shall take the precaution of ascertaining from the victim herself as to what the true cause of the burning was. in order to give the victim a totally fair and unhindered opportunity of stating the truth, the duty doctor shall ensure with the assistance of the police that all other persons are sent away and kept totally out of sight, that the victim is informed that she is obliged to state the truth, that she can do so without any sense of fear and the cause of the incident shall then be ascertained and recorded in the medicolegal register by the doctor and signed by him. As in the case of the F. I. R., a true copy of the entry shall be signed and certified by the doctor and forwarded through the investigating authorities to the Court in order to avoid any subsequent tampering.
13. From this stage onwards from the point of view of the safety of the victim who would necessarily require for medical reasons total peace and seclusion also from the point of view of avoiding infections, the hospital shall ensure that relations, friends etc. shall not be permitted to have any access to the victim. Even as far as the next of kin are concerned, they shall only be permitted for very short periods of time under the sanction of the doctor and this shall be at a stage after the dying declaration of the victim has been recorded. This is in order to avoid the possibility of the defence alleging that the victim has been tutored or influenced. The doctor shall certify on the form wherein the dying declaration has been recorded that the victim was not allowed any access, any relations or friends prior to the recording of the dying declaration. Also, the pro forma shall specify that the original of the dying declaration is lodged with the Court at the earliest like the F.I.R. and only xerox copies be retained in the case papers.
14. In the vast majority of dowry death cases the only reliable evidence is the dying declaration and for a variety of technical lapses that document is attacked and where the Courts are required to uphold the objections the accused gets the full benefit, of an acquittal. While there is no dispute about the fact that in a given case where the accused is innocent, that the benefit of an acquittal is a legitimate outcome, that it is equally necessary to plug the traditional escape routes in this class of cases where the wife burning and dowry deaths in this day and age have become the most serious blemish of society and the most deplorable attack on the diginity of women, and yet the crimes go unpunished.
15. The Registrar General shall forward a copy of this judgment to the Secretary to Government, Home Department. Health Dept. and to the Director General of Police, Karnataka State as also to the Chief Secretary to Government with instructions to each of the concerned authorities to report written compliance back to the High Court as the matter is of extreme importance. in particular, the Police and Doctors will have to be warned that any single lapse in future will involve stringent disciplinary action.
16. As an additional guideline, since serious disputes arise with regard to the veracity of the dying declarations in many cases, it would be useful if the doctor and the authority who has recorded the dying declaration certifies that preferably the signature or the thumb impression of the patient was obtained in the presence of that authority and in those of the cases where neither of these are possible, the reasons for the same shall be indicated in writing.