Karnataka High Court
State By Gonibeedu Police vs Singari And Anr. on 6 June, 2002
Equivalent citations: 2002(6)KARLJ52
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT
1. These two criminal appeals are directed against the judgment and order in Sessions Case No. 35 of 1994, dated 1-1-1997 on the file of the learned Principal Sessions Judge. Chickmagalur. The allegation against the two accused were that, on the night of 25-4-1994 at about 8.30 p.m. they are alleged to have been involved in an incident wherein a firearm was used and gunshot injuries resulted to deceased Kitta. The injured person was first taken to the Mudigere hospital, given some treatment there and then transferred to the hospital at Mangalore where he died after three days. According to the prosecution on the 27-4-1994, P.W. 13 who is the Sub-Inspector of Police was deputed to Mangalore to record the statement of the injured person in the hospital and he recorded the dying declaration which is Ex. P. 15 in which the deceased stated that the two accused were involved in the incident of shooting him and that was how he had sustained the gunshot injuries. The accused who are coolies were arrested and the prosecution contends that pursuant to a statement made by accused 1 that he took the police to a place near the scene of offence and produced the gun in question. On completion of the investigation, both the accused were charge-sheeted and put up for trial and the learned Trial Judge after a very careful and detailed analysis of the evidence on record acquitted accused 2. Accused 1 was convicted of the offence punishable under Section 304(11) of the IPC and awarded a sentence of five years rigorous imprisonment. He was also convicted for an offence under Section 3 read with Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default of fine, to undergo rigorous imprisonment for one month. To keep the record straight, we need to clarify that as far as the main, offence was concerned that apart from the sentence, accused 1 was awarded a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for a period of one month. Accused 1 has filed Cri. A. No. 74 of 1997 challenging the validity of his conviction and the State has filed Cri. A. No. 303 of 1997 challenging the acquittal of accused 2 and has also assailed the acquittal of accused 1 for the offence punishable under Section 302 of the IPC. Both the appeals have been clubbed together and we propose to dispose off them through a common order.
2. We have heard the learned Counsels on both sides. We need to record that the learned. Counsel who represents the appellant-accused has taken us through the whole of the record which we have reviewed and he has very vigorously and we need to add, very competently attacked the conviction which is almost extensively based on the dying declaration, Ex. P. 15. In the first instance, he submitted that for whatever reason even though the injured person was in the hospital at Mudigere for some time that no statement of his was recorded and that it is obvious that since the case was one of some seriousness that the doctor had recommended his transfer to the bigger hospital at Mangalore. Learned Counsel submits that despite the grave condition of the injured and the journey to Mangalore that this statement is alleged to have been recorded only on the 27th which is just one day before the accused died. He points out to us that from the case papers that Kitta died of septicaemia and consequently quite apart from the after-effects of the treatment and of the injuries, that the build up of his condition alone would have taken the condition of the injured steadily downhill and that it is unbelievable that he could have been in a stable condition to make a valid dying declaration. In answer to this, the learned State Public Prosecutor pointed out to us that unlike in many other cases, we have the evidence on record of P.W. 13-Sub-Inspector, Puttamallegowda who is the Police Officer who recorded the statement and he states that before recording the statement he obtained sanction from the duty doctor who examined the patient and satisfied himself that he was in a sufficiently fit condition to make a statement. Apart from the formal evidence, this witness has in turn stated that the condition of Kitta was good enough for him to make a valid and a cogent statement. In addition to this evidence, we have the deposition of P.W. 17 which the learned State Public Prosecutor relies upon heavily namely, Dr. Ramachandra who is the duty doctor from Mangalore and the one who granted the sanction for the recording of the statement. This doctor has in terms deposed to the effect that Kitta was in a fit and stable condition at the time when the statement was recorded and in the course of cross-examination he has even gone on record to state that the condition was good. The learned State Public Prosecutor submits that from this material the Trial Court was more than fully justified in having placed total and complete reliance on the dying declaration insofar as the necessary safeguards have been observed at least as far as the present case is concerned.
3. Appellant's learned Counsel Mr. Shankarappa submitted that the Courts have considered over the last several years numerous cases of the present type wherein the dying declaration does not contain the requisite certificate in the prescribed form to the effect that the condition of the injured was good enough, that he was in a condition to understand questions, that he was in a condition to recall correctly what had happened and more importantly he was in a condition to make a cogent statement. He has relied on a host of decisions, many of them are of this Court and of the Supreme Court in which we do not dispute the fact that the Courts had laid down certain guidelines, the first being that the certificate must be contemporaneous and that an attempt to correct that lacuna in the witness-box is not good enough and furthermore that if the statement is not superscribed on the dying declaration itself in the form in which it is required and if the doctor's endorsement only indicates that it was recorded before him that it is incomplete and insufficient. We do not dispute for a moment that these are well-settled propositions of law and the learned Counsel is fully justified in relying on them and on the decisions wherein these principles have been upheld. What we need to take cognizance of is that there has been a further refinement of the law in the recent past wherein the Supreme Court has held that where the record is such that it can inspire sufficient confidence in the mind of the Court with regard to the veracity and credibility and acceptability of the dying declaration that the mere absence of the doctor's certificate is not a good enough technical lapse for purposes of discarding this dying declaration and even for purposes of watering down its evidentiary value. In the present case from the quality of the evidence of P.W. 13 we have no hesitation in holding that he is a responsible police officer who was aware of his duties and has carried them out diligently and there is no suggestion anywhere from the defence that P.W. 13 was out to falsely implicate the accused or for that matter nothing has come on record from the side of the accused to justify the allegation that the deceased would falsely implicate them. The statement of Dr. Ramachandra, P.W. 17 lends further support to the evidence of P.W. 13 and we see no ground on which we could doubt the validity of the dying declaration even for a minute. We shall deal with another argument canvassed by Sri Shankarappa presently but as far as this head of attack is concerned, having regard to the change of law it would not have been permissible for us to uphold the challenge.
4. It was then pointed out by the learned Counsel that one can deduce from the record that the dying declaration which was recorded on 27-4-1997 was for some reason retained by the Investigating Officer and was produced before the Court only along with the charge-sheet. His submission is that there is every possibility that when Kitta died in the hospital that the Police Officer suddenly realised the seriousness of the case and there was no difficulty for them to fabricate such a document in collusion with the doctor. In the first instance, the defence has not challenged the late submission by pulling up the Investigating Officer when he was in the witness-box but more importantly, we find it difficult to accept that a responsible doctor in a serious case would collude with the Police Officer even if they wanted to fabricate a document and having regard to the basic credibility of the evidence which we have referred to earlier we see really no substance in this head of challenge. The dying declaration would therefore have to be accepted and deceased Kitta in no uncertain terms implicates both accused 1 and 2 as having been present at the scene of offence though the act of shooting is ascribed to accused 1. The learned Trial Judge has set-out a series of very valid grounds on the basis of which he has held that even assuming accused 2 was present at the time when the incident took place that there is no evidence to establish criminal culpability. The learned Counsel who represents the accused vehemently submitted that the highest that is alleged against accused 2 is that he was carrying a bag in which the pellets and another material were contained and it is his submission that even if accused 1 were to be convicted, that the acts ascribed, to accused 2 cannot assume any criminality. The learned State Public Prosecutor has submitted in support of the State appeal that the accused had come together, both their names are mentioned at all times and if accused 2 facilitated the act by assisting accused 1 insofar as he has provided the ammunition and other requirements for the gun that he would be liable for the offence under Section 34. In our considered view, though this is a borderline case the learned defence Counsel is right when he points out that it would require stronger evidence to establish meeting of minds and that on the facts of the present case accused 2 has acted innocuously and it is for this reason that we confirm the order of acquittal recorded in his favour by the Trial Court.
5. The other head of challenge is with regard to the firearm which is alleged to have been recovered pursuant to a statement made by accused 1. Though, there is a serious challenge as far as the recovery is concerned, particularly when the respondent's learned Counsel points out that the one pancha who was produced is hostile and that apart from the Police Officer there is no other evidence, we need to again revert to the present position in law as laid down by the Supreme Court wherein the evidence of the Police Officers in situations such as this which inspire total confidence is good enough. We find no grounds on which the recovery evidence could be assailed and we find that the learned Trial Judge has rightly accepted it and held it against accused 1.
6. As far as the evidence of P.W. 5-the Ballistic Expert is concerned, the appellant's learned Counsel vehemently submitted that the facts of this case are unusual insofar as it was a shot gun that was used and that there were a number of pellets that were ejected. His submission is that unlike situations where a bullet or a cartridge is used and where with a degree of certainty the matching is done between the gun and the bullet or cartridge that in this case admittedly no such conclusive matching is possible. In our considered view, this argument is almost academic because P.W. 5 who is a very reputed Ballistic Expert has stated that he did the requisite tests and has certified that these pellets had been fired from this gun. This position has not been seriously disputed or called into question when he was in the witness-box and in our considered view it is too late now to assail that evidence.
7. Lastly, appellant's learned Advocate submitted that the State appeal is liable to be dismissed because the Trial Court has very rightly held on the facts of the present case that Section 302 will not apply. His submission is that from the weapon used, the distance from which it was fired and from the nature of the incident, at the highest, it could be held that there was an intention to cause injury but certainly not one of causing death. We have very carefully assessed these arguments but here again we must record that the defence is justified in its plea that Section 302 ought not to be invoked because it is true that the gun was used only once and there is nothing on record to show that the accused knew or had reason to believe that death would result. We also uphold what is pointed out by the learned defence Counsel that the injuries themselves could perhaps not be regarded as fatal because the deceased has died of septicaemia for which perhaps the hospital and the doctors may have to share some blame but on the question of legal liability, the conviction under Section 304(11) of the IPC, is upheld. Since there is a finding that a firearm was used, the conviction, sentence and fine awarded under the Arms Act vis-a-vis accused 1 will have to be confirmed.
8. Having regard to the aforesaid situation, the State appeal fails and stands dismissed. The appeal filed by accused 1 is partially allowed insofar as even though we confirm the conviction for the offence under Section 304(11) of the IPC having regard to the principles laid down by the Supreme Court in some of the recent decisions and more importantly having regard to the fact that accused 1 is a very poor coolie, we reduce the sentence of five years rigorous imprisonment awarded to him by the Trial Court to that of the period already undergone by him. As far as the conviction and sentence under the Arms Act are concerned, the same to stand confirmed but that sentence has run concurrently with the sentence which the accused has undergone in custody under the main, head of charge. In view of this position, it would not be necessary for accused 1 to have to undergo any further sentence. As far as the aggregate fine amount of Rs. 1,500/- is concerned, we maintain this fine and we afford the accused 1 a period of twelve weeks within which to deposit the same in the Trial Court failing which, the in default sentence will take effect. If the fine amount is recovered, the Trial Court to issue notice to the wife/legal heir of deceased Kitta and pay over the whole of the amount of Rs. 1,500/- to the wife/legal heirs of deceased Kitta. With these directions, both the appeals to stand disposed off. Bail bond of accused 1 and 2 is cancelled.