STATE Vs. SINGARI

JUDGEMENT

(1.) THESE two criminal appeals are directed against the judgment and Orderin 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 Secrion 304 (ii) of the ipc and awarded a sentence of five years rigorous imprisonment. He was also convicted for an offence under Secrion 3 read with Secrion 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 Secrion 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.