STATE OF KARNATAKA Vs. S P DEVARAJU

JUDGEMENT

(1.) THE State of Karnataka has, through this appeal assailed the order of acquittal recorded by the learned Additional Sessions Judge, Hassan, in Sessions Case No. 54 of 1988. By judgment and order dated 29th of November 1995, the trial Court before which the respondent-accused No. 1 was tried for an offence under Section 302 read with 109, I. P. C. had been acquitted. The prosecution alleged that on the night of 1-2-1988 at about 10. 00 p. m. , the accused had inflicted two stab injuries on deceased Puttaraju, who was immediately rushed to the S. C. Hospital, Hassan, and was then transferred the same day to Victoria Hospital, Bangalore. Despite medical treatment, Puttaraju succumbed to the injuries on 5-2-1988. Shortly, after his admission in the Hospital at Hassan, the Police had recorded his statement which was in the form of dying declaration which statement was also treated as the F. I. R. in this case. The learned trial Judge had recorded several inconsistencies in the evidence and held that in view of the infirmities it would not be permissible to record an adverse verdict and accordingly acquitted the accused. It is against this order that the present appeal has been directed.

(2.) WE have heard the learned Additional S. P. P. in support of the appeal as also the learned Advocate Sri B. L. Sanjeev, who has been appointed as "amicus Curiae" by the Court as the respondent has not engaged any private Advocate. The learned Advocates have taken us through the entire record of the case and we have heard them on facts and on points of law. The appellant's learned counsel has very vehemently submitted that the infirmities which have been highlighted by the trial Court are both minor and insignificant and that they do not in any way impeach upon the credibility of the prosecution evidence. He has, in the first instance, relied heavily on the oral evidence of PW. 1 - Nagendra. He has pointed out to us that Nagendra on his own admission was a friend of both accused-1 and the deceased, that he had accompanied them on that night to a Bar where they had consumed a few rounds of drinks and he states that thereafter they had gone to the room of the accused. The deceased and accused-1 had gone out of the room for a short time as the deceased had expressed the desire of wanting to relieve himself. Shortly, thereafter decased Puttaraju came back holding his chest and abdomen. He was bleeding and he stated that accused No. 1 had stabbed him with a knife and that he had given the reason that he had done so at the instance of Accused-2, who was aggrieved because of a land dispute. It was in this background that P. W. 1 took the injured person to the Hospital at Hassan. He was admitted and given necessary treatment and the Doctor sent an intimation to the Police at about 10. 50 p. m. , and the Police came to the Hospital and recorded the statement of Puttaraju at 11. 30 p. m. Subsequently on medical advice, the injured was shifted to the Victoria Hospital at Bangalore where he underwent treatment and finally passed away on 5-2-1988. The learned counsel has drawn the Court's special attention to certain features of this evidence. His first contention is that even though P. W. 1 was an eye-witness that he was present at the closest spot to where the incident took place and that he was the first person to whom the deceased indicated that it was accused No. 1 who had stabbed him. Secondly, it is pointed out that despite rigorous cross-examination that the evidence has not been diluted nor are three any material omissions or contradictions and more importantly that the defence has not succeeded in establishing any reason why P. W. 1 should falsely implicate the accused.

(3.) THE learned counsel has then straightway taken us to the dying declaration which was recorded without any delay. We have checked the original documents and the learned counsel very rightly points out to us that Puttaraju has clearly mentioned at the earliest point of time in the dying declaration that it was accused-1, who had stabbed him with a knife. This document has been duly attested by the Doctor who has certified that it was recorded in his presence. The learned counsel submits that there is no conceivable ground on which this evidence can be called into question because the Doctor has been examined and he has certified that the deceased was conscious and in a position to make the statement at that point of time and further more that the I. O. , who is the scribe of the dying declaration which is Ex. P10, has himself deposed to the effect that Puttaraju was conscious and in a position to make a cogent statement at that point of time. The learned counsel has thereafter pointed out that the medical evidence and the evidence of recovery such as the blood stained clothes, weapon etc. , fully corroborates the main heads of evidence and that accused No. 1 must be convicted for the offence punishable under Section 302, I. P. C.