STATE OF KARNATAKA Vs. SHIVARAJ

JUDGEMENT

(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 and 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 reported in 1999 (7) Supreme Today 640 : (AIR 1999 SC 3455 : 1999 Cri LJ 4321), 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.