GOPAL Vs STATE OF KARNATAKA
Bench: V.S. SIRPURKAR,T.S. THAKUR, , ,
Case number: Crl.A. No.-000029-000029 / 2006
Diary number: 3827 / 2005
Advocates: RAM LAL ROY Vs
V. N. RAGHUPATHY
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 29 OF 2006
GOPAL ...APPELLANT
VERSUS
STATE OF KARNATAKA ...RESPONDENT
J U D G E M E N T
SIRPURKAR, J.
1. The appellant - Gopal challenges his conviction
under Section 302 I.P.C. in this appeal. The allegation
against the appellant-accused are that on 29.12.1998 at
about 5 p.m., he poured kerosene on the body of his wife
Mallavva and set her on fire. It has come in the evidence
that Mallavva was immediately taken to the hospital by PW-8
Nagavva and PW-15 Sushila and she was treated by PW-5 - Dr.
Noor Ahmed. PW-5 is said to have intimated to the police
station on which PW-13 PSI Ravi came there and recorded
her dying declaration. In that dying declaration, the
deceased has clearly alleged that the accused used to drink
liquor and quarrel with her. He also used to assault the
deceased in a drunken state. On 29.12.1998, accused had
given Rs. 200/- to her for purchase of ration. He
immediately took back Rs. 100 out of Rs. 200/- . She
purchased the ration of the remaining amount of Rs. 100/-.
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At about 5 p.m., on the same day, accused returned to the
house and demanded Rs. 100/- from her. Thereupon, the
deceased told the accused that she had already purchased
the ration but the accused asked her to return the ration
and get him Rs. 100/- back. On her refusal, the accused
became angry and tied her hands and poured kerosene on
her body and set her ablaze. On 19.1.1999, Mallavva
succumbed to the injuries.
2. We have heard learned counsel appearing for the
parties and gone through the record and judgments of the
courts below.
3. We are convinced that the findings of the trial
court as well as of the High Court that this dying
declaration can be made the sole basis for the conviction
of accused is a correct inference drawn by the courts
below.
4. We have ourselves examined the dying declaration.
What impresses us is that there is solely no explanation by
the accused anywhere as to how the presence of kerosene has
been found on the brassiere, saree and petti-coat of the
unfortunate lady. We have seen the FSL Report – Exhibit
P-25 for that purpose which endorses this fact. It is not
the defence of the accused that the death was suicidal or
accidental. There is nothing on record even to entertain
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such doubt. The presence of kerosene residue on the inner
and outer garments provides strong corroboration of the
version in the dying declaration.
5. It is true that the witnesses, who carried the
deceased to the hospital, turned hostile during their
examinations but that may not be an escape route for the
accused because the man may lie but the circumstances do
not. The circumstances in this case clinches the proof
that it is the accused and accused alone who has committed
this offence.
6. Mr. Ram Lal Roy, learned counsel appearing for the
accused pointed out that the investigating officer did not
make any attempt to get recorded the second dying
declaration of the deceased by a Magistrate. It is really
true. It would have been better if the investigating
officer had made an attempt to get recorded the second
dying declaration of the deceased by a Magistrate. But, in
our opinion, the dying declaration recorded by PW-13 and
supported by PW-5 Dr. Noor Ahmed and the endorsement made
by him to the effect that the deceased was in a fit mental
condition to depose before the police convinces us that
the dying declaration itself was a good dying declaration
and could have been acted upon.
7. We find no merit in this appeal. It is,
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accordingly, dismissed.
.....................J [ V.S. SIRPURKAR ]
.....................J [ T.S. THAKUR ]
NEW DELHI APRIL 19, 2011.