LexKAMALAVVA & ANR. versus STATE OF KARNATAKA
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[2009] 11 S.C.R. 498 A KAMALAWA & ANR. v. STATE OF KARNATAKA (Criminal Appeal No. 1136 of 2002) B JULY 29, 2009 [DALVEER BHANDARI AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: s.302 r.w. s.34 - Conviction under, c challenged on the ground of delay in lodging FIR and absence of certificate of doctor to the effect that deceased was in fit condition to make the dying declaration - On facts, Held: Delay in lodging FIR was explained by prosecution - Dying declaration was recoded by the magistrate in the presence of D doctor - Magistrate deposed that while making statement, deceased was conscious and in fit condition to make such a statement - No reason to interfere with the order of conviction. • Prosecution case was that the deceased was E tortured by her mother in law and sister in law and was burnt to death. Charges were framed against the accused under Section 302 r.w. Section 34 and Section 498A IPC. Trial Court acquitted both the accused. High Court partly allowed the appeal of State and convicted the accused under Section 302 r.w. Section 34 IPC. The two accused F filed present appeal. The question before this Court was whether there was delay in lodging the FIR which had adverse effect on the prosecution case and whether the dying declaration G relied upon by the High Court was reliable, trustworthy and could be acted upon. Dismissing the appeal, the Court ,. H 498 KAMALAWA & ANR. v. STATE OF KARNATAKA 499 HELD: 1. On 09.04.1995, information was received A about the incident of burning at the police outpost and requisition was sent for recording the dying declaration. Pursuant to this, the dying declaration was recorded on 09.04.1995. On 10.04.1995, a statement was taken from the deceased by the police officer himself. Consequently, it B is established that the formal FIR came to be recorded on 12.04.1995 although the incident was reported on 09.04.1995 on the basis of which the police started the investigation by sending a requisition to the Taluka Executive Magistrate which was followed up by c recording of the statement of the deceased by the police. Delay, therefore, in recording the formal FIR is explained. [Para 10] [506-F, G] 2.1. There is no requirement of law that the dying declaration must necessarily contain a certification by the D doctor that the patient was in a fit state of mind especially when the dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make statement gains the importance and reliance can be placed upon declaration even in the absence of E the doctor's certificate provided the court ultimately holds the same to be voluntary and truthful. [Para 18] [510-E] Laxman v. State of Maharashtra (2002) 6 SCC 710, - relied on. F 2.2. PW-17 (Tahsildar) had stated that he was asked by the police to record the dying deClaration of the deceased who was undergoing treatment in the hospital. He proceeded to the hospital and recorded the statement in the presence of doctor (PW-18). The said statement G was recorded in the form of questions and answers . .; From the nature of the answers the deceased gave, it cannot be said that she did not understand the questions and did not give proper answers. Therefore, it is not H 500 SUPREME COURT REPORTS (2009) 11 S.C.R. A difficult to conclude that the mental capacity of the deceased was sound and she was capable of giving answers to the questions put forth by PW-17. The dying declaration was recorded by PW-17 in the presence of PW-18 who is a doctor attached to the same hospital. He B categorically stated in his evidence that the doctor gave the certificate to the effect that the injured was in a position to give the declaration. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb impression of the deceased was also taken on Ext. P.17. The doctor (PW- C 18) who was present at the time of recording the dying declaration also attached a certificate to the effect that the said dying declaration was recorded in his presence. PW- 17 categorically stated that the deceased while making the statement was conscious and in a fit mental condition 0 to make such a statement. PW-17 was a Public Officer. There is no reason to hold that he would falsely implicate a person. Accordingly, the said dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid a
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