State Of Karnataka vs Naga @ Nagaraju on 21 October, 2010

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IN THE HIGH COURT OF KARNATAKA AT  ._
DATED THIS THE 21ST DAY OF OCTOBER';     I-
PRESENT_M__ Mk 'V. M u
THE HONBLE MR. JUsTIcE:¥K.sI§E5§DiI§IR' I1"
   '  ' ., .
THE HoN'BL12__:_ MR.  
CRL.AI_«.._I§T'O,   _
BETWEEN»      i . 'V  V

State of  _. _     ' 

3y K.R.s.Po1iceé_:----,    '-  
  ;f_   I A "  Appellant

{By Sri G.I"BhaVani";i3ingi'II»SPP)  

ANI} 1

1. Naga'@._N'agarajfi,_ '
.%ed about 25'"years,
 /V0} Fate Muniyappa,
A A  R/*6; D1=,No.25/ 1, Official Colony,
_ " '~ I  ' .S'agé'1r_T0wn,
V  S.R.'--..Pafnaf£~'a1uk.

2.  J age: @ f.Sathosh Kumar,
"Aged about 20 years.
S'/Qflate Mahadeva,
., "  4_ Bazaar Linc, K.R. Sagar Town,
r __ SR. Patna Taluk.

VA  _ 3.? S. Sathish @ Gunda,
V  " Aged about 21 years,
S/0. Swamy,
Dr.N0.a.58,

 



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on him on the date of incident by means of weapons. He

therefore submits that the dying declaration can be bjasedtor

convicting the accused persons whose names _ate  iii' ~

the dying declaration and their __€.).V6_$"E acts" V'.VC'1v€:i'&Z%.VI"I'3rv' ll"

mentioned in the dying dec1arati;on.;"'sI:i*e l3.as~ 
following decisions in support*of'h_is cont.entions:."'  

(1') STATE OF RAJASTHA1'I  reported in
(2009) 3 Supreme ;_Ce.urt.'Case"s  507

Evidence Act,"-1--"dcsclaration-Absence
of cerhficate"g:.gof' doctori on; fitnessaf deceased Qf make the

staten1erit_-Ef}'ectj_Lvhe*re"sta'terf:ent recorded in presence of

doctor'  -. attested thumb impression of
deceased ondthe  Conviction based solely on

such la"dy_Vir1gf de-claration--Sustainability--Respondent 1

V _'  to havepoured kerosene on the deceased and set
it  herfonjfire, pursuant to quarrel-High Court, in appeal by
_  against conviction, acquitting him,
  that as the doctor had not certified that the

V  deceased was in a fit state of mind to make a statement
 it  before the investigating officer, and had not treated her,
if-no reliance can be placed thereon-PW 10 (doctor) present
when dying declaration was recorded and after it was

done attesting deceased's thumb impression as also her

statement before the investigating officer~Held,

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technically though there could be no attestation of such
statement but what the doctor meant by issuingsuch a

certificate in the dying declaration was that theijstafterrzent

of the deceased was made by her before 

officer in his presence and the same hadlv_A'beenA_l.recordeld_=  

correctly-- Moreover, the doctor'  a 'medicalijziristr and

the deceased had revealed the':eni:ire~ lncidentlto It-It

{ii} SATISH AMBAN1=iA'.,;3ANsol3E _  7-[1s:FA.T;i:' on '

MAHARASHTRA reported  ' (2Q09j "3::Suprle§me Court
Cases (C11) 1306:,"   '    

Penal Code,__ V1:l85o"v"_}{;_. --3o2§ir;;.i§'*der trial~Dying
declaration'~Convic;tion on  of-Sustainability-

Accused :alleg.ed--.."tof.'have poured kerosene on

deceased 1aagteigtyifii---.._se'i"l.her on fire--Postvmortem report
V.svhowin*g _that';-- death" it was due to "septicaemia" shock

 to 95%"'si:p.e[ficial to deep bums--Dying declaration

A  recorded,by Head Constable after obtaining opinion of
 asregards fitness of victim to make a statement-
 Subgmisgsion by appellant that evidence of the doctor

it clearly'. indicated that the victim was not in a condition

 it  tohglive dying declaration and that the statement was
the result of tutoring~Held, so far as the statement of the
doctor is concerned, a hypothetical answer was given to

a question regarding the effect of the patient who

suffered bums of a very high percentage -- However, in



 

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truthfuiiy. PW25 m Doctor has categoricaily stated ~ jt1ra_'t«.:ti1,e

injured was in a position to speak and give stat-ement"' '

further he has signed Ex.P.22. Underathese  It 'A it

couid be gathered that PW25 M thé:.Me'a1c'ar officer 

only a person present when i;":2__<'.P,.22 was recoitdefl'.4.1';-Istfaiso * it

asserted that the patient was__'_iri»v:a'vposition.to give such
statement. However, on"'car*efd.I  of Ex.P.22, it is
seen that the name 'No.5 has been
added    of any officer by
the sideof  the colour of the ink
differs  afiandwfiting. In View of the foregoing
discussionsdwe dying deciaration of deceased

Pradeep _--  'genuine and has been recorded by

   in the presence of PW25 --

  the deceased was in fit condition to

give'~.._statern_er»1t and hence, a conviction can be based on the

 ' " --  "said  deciaration.

H 17. So far as the capacity of the deceased to narrate

" the incident regarding the cause of his injuries is concerned,

on perusal of Ex.P.3 the accident register it is clear that

 



 

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PW1. no where it is brought out that accident 

Ex.P.3 has been tampered regarding the name ,of~~theg '

Who gave the statement. Further,_ it is evidentiifthat Vibothu if

Vyramudi and Urnesh were positively p;¥fesent'ffin"'the 

when Pradeep was taken to the'llospitallwhichv'is§._evi.denced r L'

by their signature in the registerk Under the
circumstances, we haveknio the version
as per Ex.P.3  names of five
persons narn_eiv    and Gunda are
clearly  writing or correction. In
view  it above, we hold that the
prosecutionihasfprovedbthefigpgufilt of Accused No. 1 to Accused

No.4 a11dA.Accaused'N'o.6x'for the offence U/s.302 {PC and they

'V'are'Iiab1{e'for conviction for the said offence. However, in View

   PW15 not supporting the case of the

prosecuti'on_t~he offences U/s.307 of IPC and 326 of PC are

 proved beyond reasonable doubt against the accused

A   persons. Therefore, the acquittal for the said offences by the

   Willfiéal Court does not call for interference. In the result, the

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ORDER

The appeal is allowed in part.

The order of acquittal passed,against.’Acclu’s.&gd :1_ to All

Accused No.4 and Accused No.6 the

and 302 r/W. Sec. 149 of {PC _h’erebyAset are * A

convicted for the said offences_,__l:l?Ve_i1old thattdthiusiiis not a
rarest of rare case A’ sentenced to
undergo imprisomnent of Rs.1,000/–
each in

No.4 and Accused No.6
are further .R.l. for a period of one year
for the odffence /’

; Both The»sentenc’es shall run concurrently.

” . order of accluittal passed against the Accused No.5

‘=– .,«warr:; :’1’s hereby confirmed.

A Tlfre’bVa~ilAlbonds of Accused No.1 to Accused No.4 and

All’A”~._l:”Accused…§§Io.6 shall stands cancelled and the Accused No.1

t,o’ACcused No.4 and Accused No.6 are directed to surrender

ll wbeifore the trial Court to undergo the sentence herein above

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imposed failing which the triai Court is directed tof
the sentence.

1
judge

Gps*