STATE OF KARNATAKA Vs. SHIVALINGAPPA

JUDGEMENT

(1.) WE have heard the learned SPP on merits and at length in this case because the facts are rather distressing. The learned SSP points out to us that admittedly the accused was the paramour of the deceased and it is alleged that because she refused to marry him that he had set the hut on fire after she had locked the door of the hut and this is how her clothes caught fire and she sustained injuries. His submission is that the dying declaration squarely implicates the accused. As regards the fact that the same has not been attested by the Doctor, the learned SPP submits that this would not be destructive of the said evidence, it might only slightly lower the evidentiary value. That position is undoubtedly correct in law. However, the learned trial Judge has expressed some doubt with regard to the document because the medical evidence does support the view that the hands of the deceased were burnt in the fire and in these circumstances it is not really explainable as to how three thumb impressions have been obtained by the police. One is to take into account the fact that the dying declaration is the most important of evidence and if this piece of evidence becomes shaky then, with all the other supportive evidence a conviction would still not be tenable. We have noted the fact that the panchanama of the scene of offence runs counter to the prosecution case. On a careful consideration of the facts and the law, we have no option except to hold that on this material the order of acquittal was justified and that the same cannot be interfered with. The appeal accordingly fails on merits and stands dismissed.

(2.) WE make no secret of our indignation at the brazenness with which the doctors in the Government Hospitals have been systematically and contemptuously disregarding the High Court directions in relation to dying declarations. Where the victim is in a position to recall the incident and makes a statement narrating who caused the injures and how, this is the strongest and most reliable evidence for the prosecution. In several instances, such as Dowry Death cases it is also the most crucial and the most vital head of evidence, and one on which is conviction can be based. The law prescribes stringent safeguards in order to ensure absolute reliability of the document recording the dying declaration because the victim has died and is not available before the Court for cross-examination. The doctor before whom it is recorded has to therefore realise how extremely strategic his/her role is in reassuring the Court about the condition of the patient at the precise point of time when the dying declaration was recorded. That is why this Court has repeatedly directed the doctor to ensure that there is a contemporaneous endorsement on the dying declaration itself first of all certifying the physical and mental condition of the victim. It is absolutely essential that the doctor certifies taht the victim was fully conscious, that the victim was able to fully hear, understand and comprehend the questions put and that the victim was in a sound mental condition to give cogent answers to the questions put. It would be additionally useful if the doctor were to record the time and date and above all, the persons present when the dying declaration was recorded.

(3.) REGISTRAR General to forward a copy of this judgment to the Secretary to Government (Home) and (Health) with the request that compliance of the directions be reported within a period of 30 days. Appeal dismissed.