Karnataka High Court
Shivappa vs The State Of Karnataka on 9 December, 2009
Bench: K.Sreedhar Rao, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT
DHARWAD
DATED THIS THE 9"" DAY or" DECEMBER 2z;:109\;;,..f f
BEFORE
THE HON'BLE MR. JUSTICE K. SREEDEFIARC Régo'
ANDCCl._"=.
THE HON'BLE MR. $.1jSTICE----l§.:A~V'I "MALl'MkAAT}'l§
Between:
Shivappa s/o Kanakap-pa i":§¥'ar_1da.yal.'V _ _
Aged about 30 yeats, O§cc:.7'2\gri.eulft-uire, A
R/o Shal<hapura,p_fl'al'u.lp{"i'Ct:s_l1tag__i;' "
Dist. Koppai. .('Aceused_no.1"§.1' lbepfbrne the .
Trial Court. Now'--tnj.udidi'a1pCustody) ' '
(by Sri s.s. Koti, Admcate.) 0
and»
Thelfltate ofK'arnatakal
(complement beforeppthleetrial Court)
sri AR'; Patliil, A'{s.P.P.)
S
Crl. A.
- Appellant
- Respondent
.1 0' ll..'A»This---._Criminal Appeal is filed u/S 374(2) Cr.P.C. by the 'Advoeate--.fo.i' the appellant against the judgment dated 19.12.2006 l'_pa_ssed by the 13.0., FTC-I, Koppal in SC. No. . appellaml/accused for the offence punishable u/S 302 of IPC. 68/05 convicting the *5 _} viliagers came and quell the flames. The deceased was admitted to Government Hospital, Kustagi about 5.30 pm. The who received telephone message about the incident"A«l.\jirenta.l:to'dither hospital. The statement of the deceased was reco'rded_at.; 1' same was registered as F.I.R. The, iI'aluk'a.tExecutii/.ei..l$/Iagistrate-'W P.W.21 on intimation came to the hospiltalttat He recorded the dying declaration The duty Doctor at the hospital has endorsed "arid Ex.P.18 that the said statements. The deceased succumb to the around 11.45 pm. AI and A2 are offences punishable 11/8 302 r/W Sec. 34 IPC. .
3l'.lg_ lit. the prosecution that deceased before he was taken made oral dying declaration to P.W.1 to I0, and 0the.rsv.':l'llThe said witnesses have turned hostile. P.W.i9 4: .hTasl"t.suppo.r_tedl"the prosecution version to the effect that he has 'lll\«-iecgfidecl statement of c at Ex.P.15 which later on assumes the character of dying declaration after the death of Karibasappa. P.W.13~Doctor has made an endorsement on Ex.P.l5 that the statement is recorded in his presence and also testify to the-'taet"~«tha,t Ex.P.l8 is recorded by Taluka Executive Magistrate in it The Doctor has stated in his evidence that themdeceased wa_s"cr_msC'iious"'i and fit to give statement at the time ofrecordiia1giEx.P.1SV_'and'ExiP.iI'8l.ii' The Taluka Executive Magistrate hasii"als"o given" the deceased has given statement Report-Ex.P.19 discloses that death is due shoc,l<..yo_i§,iaiiseajpiticaemia due to burn injuries, the '8fi5i% to 90% and that the death is Court on the basis of above evidence convicte'd«.._A 1, it'ior_'iiiciovihiiiittiing offence punishable u/S 302 IPZ.-C» ._A2 i«acq_uitted. V appeal. The State has not filed any appeaitagainsst ievc'quiittal of A2.
S.S.vV__i3Koti, learned counsel submitted the following 'cVircurinstan_c_e--s to assaii the order of conviction. (1) (2) (3) 5 All the close relatives of the deceased who are witnesses to the oral dying declaration have all turned hostile. It is alsopinthe evidence that the proposed marriage of the deceasedionle Smt. Eramma fell through and deceased He i attempted to commit suicide by consuming} poi"son;. ways.' addicted to alcohol and behaving entaticallyrw'v:an.dnthpatll the deceased had suicide tendenciesili: it The dying declarations V clearly indict A1 and A2. The tri4al;'Court:' Al. The logic oftrial i P.M. report. disclioasfespftE1at"the*death is as a result of septicaemia on accountsof bu1*n._in;§.u'rie_si; The Medical Jurisprudence and learne.d. author Modi 23" edition page no. 638 rnakersl an_iob°servation that narrates burn injuries on account of septiicaeijaiatngoluld set in afier 36 hours. In the instant case the V'-«death has taken place within 10 hours after the incident. ii --Th--er.eifore burn injuries should have been caused much earlier %/ (4) (5) (6) to the time stated by the Prosecution and that the Police have concocted the dying declaration.
The deceased had sustained burn injuries completetyg possibility of taking LTM of deceased could possible.
The name of AI is Shivappa s[o_KaniaE:aippa Nan,dyai' in the dying declaration the dieceiased st'ates'*the name as Shivappa hiregowdar. T'h._ere is discreipars~.r.§y'*in the name. The date in Ex.p.l.8 is intergioltateid. The. of Ex.P.I5~ statement of4_vdiece¥ase_d I5.S.:l';"'iidiscloses that the deceased was.notf-folly°coi'1scio'us when the statement was recorded.
The'-counsel. in.__v~iew of _ the above discrepancies contended that case t»-..against tlieiiappella'h't_i.is concocted and evidence of dying declaration is . be rejected*~and that order of conviction recorded is bad in law. | 9 A1. Order of conviction is sound and proper. Accordingly app6;al___is dismissed.
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