ADEVAPPA NAGAPPA ANAGOLKAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS is one more of the unfortunate and deplorable cases of wife burning and the accused/husband who had married the deceased Laxmi hardly eight days earlier, was put on trial on a charge of murder. The prosecution alleges that the young couple had come to stay at her mother's place and that on the evening of 4-6-1994 at about 5. 30 p. m. the accused desired to take Laxmi with him for a picture. She is supposed to have not only refused to come but abused him in the course of the argument whereupon it is alleged that he doused her clothes with kerosene in the kitchen on the first floor of the residence and thereafter caught her by the hair and pulled her against the stove as a result of which her clothes caught fire. Laxmi ran downstairs screaming for help with her clothes aflame and her mother and sister and several other persons who were neighbours who had gathered rushed there and extinguished the fire. According to them, the accused ran away from that place and that they covered Laxmi with some other clothes and that she was taken to the hospital in a tempo by the Fire Officer who had arrived on the spot by then. The doctor who examined her found that she had about 90% burns. She was given emergency treatment and admitted to the hospital. Something later, the Asst. Commissioner of Police came to the hospital and recorded her statement which was treated as a complaint. In this statement Laxmi has mentioned that pursuant to the quarrel over her refusal to go to see the picture that the accused threw kerosene, on her, caught her by the hair and pushed her against the stove whereupon her clothes caught fire. The police took the precaution, having regard to her condition being precarious, of sending for the Tahsildar who recorded her dying declaration at about 9. 45 p. m. on the same night. Laxmi's condition worsened and she died after four days. The police completed the investigations and put the accused up for trial on the charge of murder. The defence of the accused was that he had gone for a move with Laxmi's brother Umesh and that he was not even present in the house. The police have falsely, implicated him. The learned trial Judge placed heavy reliance on the complaint, the dying declaration and the evidence of the sister PW 4 as also the other persons who had assembled in the house immediately after the incident all of them consistenlty said that Laxmi told them that it was the accused who had set her on fire. The trial Court held that the charge of murder had been established and the accused was convicted of the offence punishable under Section 302, IPC, and sentenced to imprisonment for life. The present appeal is directed against that conviction and sentence. Mr. Patil, learned advocate who represents the appellant submitted that even though the complaint and dying declaration appear to be conclusive, that there are several latent defects and infirmities in these but more importantly, that the allegations to the effect that it was the accused who was responsible for the fire cannot be accepted by the Court. For the purpose, he submitted that it is very necessary for the Court to look at the evidence in a certain sequence and he has commenced by pointing out the evidence of DW 1 Dr. Dhonadkari who at the relevant time was the Deputy Chief Medical Officer, Civil Hospital, Belguam. He was the Casualty Officer, on duty at the hospital when Laxmi was brought there. He mentions that she had 90% burn injuries though her faculties were normal. She was conscious and was in a position to make a statement. He has very clearly stated that he recorded the history of the patient as told by her in the medico legal register and the relevant entry has been produced at Ex. D2. This entry supports his evidence in so far as it clearly states that the patient was conscious and was in a position to make a statement and in the entry in question, it is very clearly recorded that the burns were due to an accident when Laxmi was preparing tea. Mr. Patil submitted that the doctor has been cross-examined and that nothing has been brought on record to indicate that he is either interested or that he has recorded anything that was incorrect and his submission is that the doctor is a Senior Medical Practitioner attached to the Civil Hospital, an independent and reliable witness and what is crucial is that the doctor has recorded in no uncertain terms as to what was the version at the earliest point of time. What Mr. Patil seeks to emphasise is that this document Ex. D. 2 has come into existence even prior to the complaint or F. I. R. and that therefore, the Court must place maximum reliance on it. There is considerable substance in this submission and there is no reason whatosever why this evidence should not be accepted in its entirity.

(2.) STARTING with this material, Mr. Patil proceeds to demonstrate that the police have come on the scene almost 3 hours later and that it has also come on record that the deceased was accompanied by some of her relatives to the hospital. It is his contention that during this period of time it is obvious that since the accused had run away, the relatives came to the conclusion that he must have been responsible for Laxmi having sustained the burns and as a result of these consultations Laxi changed her version completely when the police officer recorded her statement and for the first time made an allegation that it was the accused who had set fire to her. It is true that the statement of the police or the F. I. R. has been followed some time later on the same night by the dying declaration which has been recorded by the Tahsildar PW 8. The dying declaration in question sets out the same version as the complaint to the police and Mr. Patil submitted that once Laxmi prevailed upon to make the accusation against the accused that it is not surprising that she would have repeated the same thing when the Tahsildar came. As far as the dying declaration is concerned, Mr. Patil has levelled another head of challenge which we feel requires to be considered seriously.

(3.) THE learned Advocate pointed out to us that the dying declaration is in a cyclostyled form and that this is not the best way to record dying declaration. Though it is well settled law that a dying declaration should preferably be in question and answer form and that as far as possible the exact words used by the injured must be reproduced, it is certainly not desirable for cyclostyled forms to be prepared as has happened in the present case because it reduced the entire operation to a mechanical exercise and there is plenty of scope for malpactices particularly in stituation where certain parts of the form may be left unfilled. It is therefore much safer to keep the dying declaration short, concise and to the point and to write out the questions and answers that have been elicited. The more serious challenge presented by Mr. Patil is with regard to the all important aspect of whether or not the patient was in a position to make a dying declaration either at the point of time when the police are supposed to have recorded the complaint statement and later on that night when the dying declaration was recorded by PW 8. Learned advocate has pointed out to us, and with some justification, that the Casualty Medical Officer certified on an initial examination that Laxmi had suffered 90% burns but he relies on the post mortem note wherein the doctor has pointed out that the burns were to the extent of 98% and that they were not superficial but that the burns were deep in several areas. He submits that in such a traumatic situation the doctors would obviously give the patient heavy dose of pain killers apart from other forms of medication and it was therefore imperative for the doctor who certified that she was conscious and was in a position to make the statement, to have substantiated this statement before the trial Court. This is is an argument of considerable significance because Mr. Patil is right when he submits that the maker of the dying declaration is not available for cross-examination, the person who recorded the dying declaration is an independent officer who will maintain that it is correctly recorded and the all important aspect as to what was the mental and physical condition of the partient has got to be proved by the prosecution through positive evidence which burden of proof in serious cases where the accused is facing a death sentence or a life imprisonment sentence cannot be discharged by merely producing a certifcate. It is most necessary in cases of this type, that the doctor who certifies the condition of the patient must substantiate that position because once that evidence comes, it lends an air of total authenticity to the dying declaration. Conversely, where that evidence is not forthcoming, the defence loses the most valuable right of being able to establish that either because of the pain and injuries or the effect of the medication that the patient may not have been in either a fit mental or physical condition to cogently understand quetions put and to give correct answers thereto. The learned S. P. P. has submitted that a certificate issued by a responsible doctor of a hospital must be presumed to be correct and furthermore, that the officer who has recorded the dying declaration and who has given evidence must be believed when he states that the patient was conscious and was in a position to make a statement. As regards the first of the submissions we are afraid that it may be difficult in cases of such seriousness to impose the level of trust and confidence in the doctors which the learned S. P. P. requests us to do, as the experience in a large number of instances has been otherwise. It is therefore a rule of prudence that the certificates must be substantiated. Also, in this case Mr. Patil has drawn our attention to one other serious defect namely that the certificate from the doctor is separately issued and has not been endorsed on the dying declaration itself. His submission is that there is no guarantee that the certificate in question was in fact simultaneously issued which is an absolute necessity. As regards the second submission canvassed by the learned S. P. P. in this regard namely that the evidence of the officer who recorded the dying declaration is sufficient to establish that the deponent was in a fit mental and physical condition to make a statement, we need to clearify here that a Govt. officer or a police officer who casually comes to the hospital puts questions and takes down answers is certainly not the authority to be able to authoritatively conclusively indicate the exact condition of the patient. The fact that the person was in a position to hear something and give replies does not indicate that the person's physical and mental faculties were in such a condition as to be able to provide absolutely true and correct answers. Since this Court had occasion to deal with the law and procedure relating to dying declaration. We would like to lay down that as a rule of caution it would be desirable that specific instructions are issued by the Home Dept. to the concerned police authorities that in all cases where a dying declalration is being recorded, similar to cases in which statements under Section 164, Cr. P. C. are recorded, the authority concerned should make an effort to satisfy himself that the maker of the statement has not been influenced, tutored or induced to say something which is not correct. If this precaution is taken and if for instance a note is made as to who was present in the hospital during the time preceding the recording of the dying declaration, it would inspire a lot of confidence in the mind of the Court that the declaration is fair and correct.