STATE OF KARNATAKA Vs. SHEFI AHMED

JUDGEMENT

(1.) THIS is one more of the extremely sad wife burning cases where the accused-husband has been acquitted on the ground that the only piece of evidence against him namely Ex. P-13, the dying declaration, cannot be relied upon. The deceased Naheema had been married to the accused for something like 11 years and she was the mother of three children. The prosecution alleges that the accused Shefi ahamed used to not only treat her with high levels of unkindness but that he was not even providing for the family's necessities and on top of it that he used to come home drunk. On the evening of 19-1-1996 he came home drunk and demanded his food from the wife, who unfortunately told him that she was able to prepare very limited quantity of food which was only sufficient for the children and that it was not possible for her to give it to him. There was a violent quarrel between them and the husband had taken the can of kerosene oil and doused Naheema and set her on fire. She raised an alarm and ran out of the house screaming and the neighbours put off the fire. She was taken to the hospital with 65% burns virtually in an unconscious condition. The next morning her statement was recorded, in which she implicated the husband as the person who set her on fire and this statement has been treated as the F. I. R. After a couple of days Naheema got herself discharged from the hospital against medical advice. She was brought back to the hospital on 24-1-1996 as septicaemia had developed and she was pronounced dead on admission. The charge was altered to one under Section 302, I. P. C. The accused was charge sheeted and put up for trial. The trial Judge, in what we consider to be an excellent judgment, has meticulously dealt with every relevant aspect of the record. He has taken cognizance of the fact that every single witness, except the doctor and the Investigating Officer, have failed to support the prosecution. The learned Judge has taken cognizance of the law on the point particularly the decision of the Supreme Court, reported in the case of khushal Rao v. State of Bombay, AIR 1958 sc 22 : (1958 Cri LJ 106) wherein it has been laid down that a dying declaration which inspires total confidence can form the sole basis of a conviction and having discussed the law on the point the learned trial judge has proceeded to do a very careful and correct analysis of Ex. P-13. While it is true that Naheema has implicated the accused in Ex. P-13, the learned trial Judge has held that the doctor, P. W. 15, has admitted that he has only superscribed his signature to the dying declaration indicating that it was recorded before him, but in cross-examination he has admitted that he was not present all through the recording. More importantly, the learned trial Judge holds that, in his evidence before the Court the doctor has nowhere even indicated that the patient was in a fit condition mentally and physically to understand and answer questions. The learned trial Judge has finally rejected the dying declaration Ex. P-13 and has acquitted the accused for want of evidence. Having regard to the complexion of the case the State has filed the appeal against the order of acquittal.

(2.) WE have heard the learned Addl. State public Prosecutor, both on facts and law, and have done a total and meticulous review of the record. We have heard the learned advocate Sri B. Anand, who has been requested to appear as amicus curiae and who as usual, has done a very competent handling of the brief. Sri Anand draws our attention to an earlier Division Bench judgment of this Court, reported in the case of State of Karnataka v. Basavaraj, 2002 Crilj 843 : (2002 AIR Kant HCR 362), to which one of us was party, wherein the Court had occasion to reject the dying declaration principally because the requisite endorsement or certification from the doctor was not superscribed on it, also because of the timing and because of the finding of the Court that the condition of the deceased in that case could not have been good enough to qualify her for making a correct and cogent statement. Taking on from this decision Sri anand brings it to our notice that in the present case the doctor was specifically asked as to what was the drug that was administered to Naheema after her admission to the hospital and the doctor has stated that she was given a large dose of Compose on the night of her admission and the effect of this sedative would last for at least six hours if not more. On the following morning the doctor admits that the patient was given a dose of Cargactil which is a relatively a strong sedative and the doctor has also accepted the position that these drugs, among other things, would cause drowsiness. Mr. Anand submits that this evidence is sufficient, regardless of what the doctor or the Investigating Officer who recorded the dying declaration may have to say, to conclusively establish that Naheema would not have been in a 100% mentally clear position to make a correct and cogent statement. We do need to uphold the submission canvassed by the learned counsel for the Respondent.

(3.) THE principal reason why the Courts are extremely strict with regard to the factual examination of this aspect of the case is because persons who are brought to hospital in a precarious condition such as naheema, who in this case was brought to the hospital with 65% burns, are in a state of shock and trauma plus a degree of extreme pain and the combination of these factors such as situations where an injured person had been through a lot of bleeding, have the effect of causing extreme levels of weakness. The human body has its own defence system and the doctor has admitted that Naheema was unconscious on the night when she was admitted to the hospital. We do concede that there are times when, with competent treatment, the condition of the patient takes a turn for the better, but that is required to be positively proved and there is no evidence to that effect in this case. Normally, in this class of cases the patient is going down-hill and in order to keep the patient "comfortable" as the medical profession calls it, it is only merciful to administer powerful sedatives, as otherwise the patient is in great agony and extremely restless. In such a physical and mental condition, if questions are put and the patient mutters some answers it can hardly be regarded as a fair and correct narration of what exactly transpired. Psychiatrists have pointed out that there are situations in which a human being in distress may consciously or unconsciously hit back at somebody against whom there are hostile feelings or somebody who has not treated the injured person well or has been responsible for causing a lot of pain and torture. It is principally for all these reasons that the law insists on mental clarity and a fair degree of physical well being and the only person who can certify this is a doctor and if the doctor does not issue a contemporaneous certificate then it would be hazardous to rely on that document. We are conscious of the fact that in some of the later cases the Supreme court has taken cognizance of the situation wherein there is sufficient independent evidence to establish that the dying declaration was correctly recorded and that the patient was in a fit condition mentally and physically to make that statement and that is why the Court has held that if the dying declaration inspires confidence in the Court and if the surrounding circumstances support the view that the Court can base a conviction on that document merely because the doctor's statement is non existent or not in the correct form that it will not prevent a court from recording a conviction. The real parameter is the quality of the dying declaration and the confidence in the Court from the record that it represents the whole and the absolute truth. We have carefully applied these principles to the document Ex. P13 and we must fairly concede that the learned advocate is right when he points out that this document cannot pass the test of scrutiny and that the trial Court was right in law in having not relied on it. Barring this document there is virtually no evidence in this case and consequently, we are left with no option except to confirm the order of acquittal.