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2003 DIGILAW 750 (KAR)

RURAL POLICE, SHIMOGA v. TANVEER @ THANVEER PASHA

2003-09-04

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( 1 ) WE have heard the learned Counsel on both sides. ( 2 ) WE have applied our mind very seriously to the records of this case, because the allegation is that the accused has been convicted for the offence under Section 498-A IPC, he was also responsible for the death and the State had appealed against the acquittal under the main charge. ( 3 ) THE learned Government Advocate has vehemently argued that at the point of time when the deceased Shabana was on fire and the neighbors intervened, that she only shouted out asking them to save her and that it would not be an appropriate occasion for her to disclose as to who had set her on fire. Also her the submission is that the entry in the Medical/ Legal Register is not of much assistance to the accused because that is only the summary of information conveyed to the doctor and that consequently, the Court must rely on the two dying declaration and the fact that there is an adverse verdict of 498-A IPC which establish that the accused was habitually torturing his wife. The submission canvassed is that this head of evidence clearly establishes the main charge also. ( 4 ) AS against that, one of the aspects that is pointed out to us by the respondents learned Advocate, who has been appointed as an Amicus Curiae Counsel, is that the learned trial Judge has done a very careful, correct and detailed analysis of the evidence on record. Among other things, he has found several serious infirmities in the dying declaration including the fact there were interpolations and has recorded a finding that this head of evidence is not safe to rely upon. ( 5 ) WE have done an independent and careful reconsideration and in our considered view, the learned trial Judge was perfectly correct in both facts and in law in refusing to accept this evidence, because of serious infirmities that caused serious doubt with regard to its creditability. We, therefore, confirm the order of acquittal for the offence punishable under Section 302 IPC and we leave the other conviction for the offence punishable under Section 498-A IPC and the sentence and fine awarded intact. We, therefore, confirm the order of acquittal for the offence punishable under Section 302 IPC and we leave the other conviction for the offence punishable under Section 498-A IPC and the sentence and fine awarded intact. ( 6 ) BEFORE parting with the judgment, we need to observe that the entire complexion of the case would obviously have been different had the Tahsildar PW17 responded to the request from the Police that he should record the dying declaration of Shabana. We need to remind this Officer and other similarly situated Officers that the Law prescribes that an independent Authority other than the Police such as one of the local Government Officers should be asked to record the dying declaration in order to add creditability and also to ensure that this is properly done. This is a case in which PW17 admits that the request was conveyed to him and that he turned it down on the ground that he is busy with census work. This Court takes a serious view of what has happened and desires to make it very clear that the request from the police to record dying declaration is a top priority matter, that it cannot wait at all and this obligation cannot be avoided and that his court will be required to take stringent action against the Officers who abdicate their responsibility as has happened in the present case. The consequences are obvious because the trial Court and the High Court were required to reject the dying declaration, which may not have otherwise happened. Since, this is not the first time where an incident of this type has taken place resulting in the case going by default, the Registrar General to forward a copy of this judgment to the Principal Secretary to the Government, who in turn shall bring it to the notice of all the Officers in the State that under no circumstances can or should they decline the request from the Police to forthwith record dying declarations. ( 7 ) THE appeal accordingly fails on merits and stands dismissed. we direct the Office to pay a sum of Rs. 1,000/- as professional charges to the learned Advocate who ahs appeared as Amicus Curiae. --- *** --- .