Certificate of fitness is not mandatory in a dying declaration: Karnataka High Court

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 20TH DAY OF NOVEMBER 2020 THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV THE HON’BLE MR.JUSTICE P.KRISHNA BHAT CRIMINAL APPEAL No.200141 2016 Vijay @ Vijendra S o Subhash Suravase Age: 26 years Occ: Student r o. JavalagaTq: Aland Dist: Kalaburagi By Sri Shivasharana Reddy Advocate) The State of Karnataka Through Aland Police Station By Addl. SPP High Curt Building) By Sri Prakash Yeli Addl. SPP) … Appellant … Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to allow the appeal by setting aside the judgment and order passed by IV Addl. District and Sessions Judge Kalaburagi dated 23.01.2016 in S.C.No.153 2011 by convicting the appellant under Sections 447 504 and 302 of IPC and acquit the appellant of the above said offence in the interest of justice and equity. This appeal having been heard reserved for judgment on 04.11.2020 and coming on for pronouncement of judgment this day P.Krishna Bhat J. delivered the following: The accused has come up in this appeal seeking to set aside judgment dated 23.01.2016 S.C.No.153 2011 passed by the learned IV Additional District and Sessions Judge Kalaburagi. CW.1 Pushpa is the deceased victim. PW.4 and PW.5 are her parents. Accused is related to the victim and it is the case of the prosecution that for some time prior to occurrence of the crime on 27.04.2009 accused had been pursuing and pressuring the victim to marry him professing love to her and when she repudiated the same he started resorting to abusive tactics. PW.1 is the younger sister of PW.4. On 27.04.2009 PW.4 had taken PW.5 to a hospital for treatment leaving behind CW.1 victim and PW.1 in the house. At about 12.45 p.m. when the victim and PW.1 were watching TV in the house accused entered the house and started telling the victim girl that she should marry him and if she rejected him he would not allow her to marry anybody else and thereupon when the victim rejected his proposal he whipped out a knife and went on stabbing on her chest on her abdomen and on her shoulder etc. causing seven to eight serious injuries. When PW.1 tried to intervene and raised hue and cry and when people started gathering there accused left the house leaving the blood dripping weapon of offence behind and ran away from there. Some time thereafter PW.4 and PW.5 returned to the house only to see their daughter lying in a pool of blood but still alive. She narrated the manner of occurrence of the incident to her parents and PW.1 was also present at that time. Thereafter she was shifted to a local hospital and from there she was shifted to Ashwini Hospital Solapur and also YMC Hospital Pune where she breathed her last on 07.06.2009 while undergoing treatment. It is the further case of the prosecution that on 27.04.2009 immediately after CW.1 victim was admitted to the hospital PW.10 PSI had gone there and recorded her statement at 1.30 p.m. and on his return based on the said statement he registered a case against the accused as per FIR for the offences punishable under Sections 504 325 and 307 of Indian Penal Code 1860 which on her death partakes the character of a dying declaration it was voluntary and she was in a fit state of mind at that time a certificate regarding the fitness to make such statement by a doctor is not mandatory. The law on this subject is very clear. It is restated by the Constitution Bench of the Hon’ble Supreme Court of India in Laxman Vs. State of Maharashtra reported in6 SCC 710 11. The second but intrinsically connected with the aforestated aspect of the case is whether PW.1 was present at the time of the incident and therefore she is an eyewitness to the same There is no dispute about the fact that PW.1 is the younger sister of PW.4 the father of the victim CW.1. Her presence is stated in the earliest version of the incident Ex.P8. The case was registered based on Ex.P8 in FIR Ex.P9. The endorsement of learned jurisdictional JMFC on Exs.P8 and P9 clearly show that they had reached the Court by 7.00 p.m. on 27.04.2009 itself. Therefore there was no unreasonable delay in either registering the case or delivering the FIR with Ex.P8 to the Court. Learned Sessions Judge has extracted the text of Ex.P8 in paragraph No.20 of the judgment. As already noticed in Ex.P8 there is a clear mention about the presence of PW.1 and the time of the incident and also arrival of PW.4 and PW.5 soon after the incident. Ex.P8 also states that the victim had narrated the incident to PW.4 and PW.5. Ex.P8 was recorded by PW.10 the PSI. 12. In his evidence P.W.10 has stated very clearly that on receiving the information he had gone to the hospital and recorded the statement of the victim and based on the same he had registered the case. Even though he has been cross examined on behalf of the accused there is absolutely nothing elicited so as to disbelieve the version of PW.10 that he had in fact recorded the statement from CW.1 as per Ex.P8. Even though learned counsel for the appellant accused now contends before this Court that victim CW.1 was not in a fit condition to make statement as per Ex.P8 there was absolutely no cross examination of PW.10 on the said aspect. There is no cross examination of PW.10 on the aspect that she had not made the said statement voluntarily either. 13. Yet another aspect which requires to be noticed is that PW.10 has stated that he had recorded the statement of PW.1 PW.4 and PW.5 in the hospital on 27.04.2009 itself. This aspect of the evidence of PW.10 has not been seriously controverted during his cross examination. In the above circumstances noticed by us there is no reason for us to disbelieve the version of the prosecution that PW.10 had gone to the hospital at about 1.30 p.m. on 27.04.2009 and he had recorded the statement of CW.1 as per Ex.P8 and based on the same he registered the case under FIR Ex.P9. Nothing is elicited from PW.10 to show that CW.1 was not in a fit mental condition to make statement as per Ex.P8 and it was not voluntary. 15. Now to turn our attention to the version of the eyewitness PW.1 there is a ring of truth to the version given by her before the Court. Her presence in the house at the time of the incident is very natural she being the younger sister of PW.4 and her statement was recorded on 27.04.2009 itself. In her evidence before the Court also she has stated that accused had entered the house and started insisting with the deceased to marry him and when she repudiated his proposal and told him unambiguously that she had to consult her parents he went on stabbing her with a knife and thereafter he had run away. No material omission or contradiction was noticed in her evidence by the learned Sessions Judge and none was pointed out to us either. There is nothing elicited during her cross examination to discredit her version and the learned Sessions Judge has believed her and has held that she is an eyewitness to the incident and we entirely agree with him. Her version completely supports the case of the prosecution. 16. Close perusal of the evidence discloses that PW.4 and PW.5 had reached the scene of occurrence very soon after the incident and they had ascertained the manner of happening of the offence from the mouth of CW.1 the victim. The consistent version of the prosecution is found from Ex.P8 as well as the statements of PW.4 and PW.5 recorded by the Investigating Officer on the very day of the incident itself. The learned Sessions Judge has rightly believed their version before the Court. 17. Learned counsel for the appellant accused submitted before us that a lenient view is required to be taken in as much as accused had acted under grave and sudden provocation. We have no hesitation in rejecting this contention as from the facts proved it is evident that the accused himself had gone to the house of the deceased with a knife in his hand and imposed himself upon CW.1 by asking her to marry him and on her refusal he had stabbed her. In other words he was trying to assert some kind of domain over CW.1 only because he was a male and he was unwilling to reconcile to the situation that CW.1 as a woman could rebuff the same and assert her individual autonomy and agency to take a decision on the choice of her life partner. The circumstance in which he had committed the offence clearly shows that he could not stand the fact that a woman could refuse his proposal to marry him. In such a situation it is completely absurd to contend that there was grave and sudden provocation from the side of the deceased especially when while she was rejecting the proposal what she was essentially doing was asserting her individual autonomy which was entirely legitimate for her to do. What is of significance in this case is that he had gone inside the house of C.W.1 fully armed and determined not to take a `no’ for an answer. 18. Accused as the evidence shows has betrayed utter disdain to the inherent right of C.W.1 as a human to her individual autonomy to choose who to love and to her right to choose a husband and even to defer to the wishes of her parents in matters of significance in her life which in itself is a conscious “choice”. This in essence is a fundamental right guaranteed to every individual under Articles 14 19 (a) and 21 of Constitution of India. To permit the accused to take a defence of ‘grave and sudden provocation’ in the facts and circumstances of this case apart from being “obnoxious” [(2017) 7 SCC 780] will result in negation of the fundamental rights of the deceased under Articles 14 19 (a) and 21 of the Constitution of India and as such opposed to public policy. Therefore we reject the said contention. While on this we must hasten to add that we are not unmindful of the general position that fundamental rights not excluding those under Articles 14 19(1)(a) and 21 are all guarantees against actions of State and its instrumentalities and not against criminal offences by one citizen against another. We are even more conscious of the felt necessities of the time that wherever text does not inhibit and context demands ordinary laws of the land should be given such construction and scope of defences available so mapped that lofty principles enshrined under the above Articles are given full effect to and dehumanizing effect of the defences are suitably pruned without doing violence to the statute creating such defence while at the same time making it resonate with the current understanding of the concept of gender justice and dignity of The Declaration of Independence of July 4 1776 says in ringing tones we hold these truths to be self evident that all men are created equal that they are endowed by their Creator with certain unalienable Rights that among these are Life Liberty and the pursuit of Happiness. That to secure these rights Governments are instituted among Men deriving their just powers from the consent of the governed That whenever any Form of Government becomes destructive of these ends it is the Right of the people to alter or to abolish it and to institute new Government laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their Safety and happiness......". 20. Life Liberty and pursuit of Happiness is an entitlement and a right without which there cannot be a ‘right to life’ for an individual and shorn of the same it will only be a creature existence. Thus viewed extending the protective umbrella of ‘grave and sudden’ the accused facts and circumstances of this case will have the effect of robbing the victim of her right to express her `choice . In other words the defence of grave and sudden provocation shall not avail an accused if the result of permitting such a defence is to dehumanise the person of victim stultify her individual autonomy agency and In sum PW.1 who is an eyewitness has completely supported the case of the prosecution and her evidence is clear and clinching. Learned Sessions Judge is right in believing her version which clearly shows that on 27.04.2009 accused had entered the house of the deceased with a deadly weapon like knife in his hand and had threatened her and thereafter had stabbed her on various parts of the body and with the of medical institutionalized treatment she could not be saved. As rightly held by the learned Sessions Judge there is no iota of doubt that Ex.P8 is a dying declaration and CW.1 had made the said statement in a fit state of mind and voluntarily. Ex.P8 also corroborates the version of PW.1. Similarly evidence also clearly shows that immediately after the incident CW.1 had narrated the same to her parents PW.4 and PW.5. They have also supported the case of the prosecution before the Court. In this regard it is apposite to refer to the following observation of the Hon’ble Supreme Court of India in Laltu Ghosh vs. State of West Bengal reported in 2019) 15 SCC 344 as follows: “19. . More so where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW18 who recorded the statement of deceased which was ultimately treated as his dying declaration has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the Court. Moreover in this case the evidence of the eye witnesses which is fully reliable is corroborated by the dying declaration in all material particulars. The High Court on reappreciation of the entire evidence before it has come to an independent and just conclusion by setting aside the judgment of acquittal passed by the Trial Court. The High Court has found that there are substantial and compelling reasons to differ from the finding of acquittal recorded by the Trial Court. The High Court having found that the view taken by the Trial Court was not plausible in view of the facts and circumstances of the case has on independent evaluation and by assigning reasons set aside the judgment of acquittal passed by the Trial Court.” 22. For the foregoing the finding of the learned Sessions Judge that the prosecution has proved the offences punishable under Sections 447 504 and 302 of IPC against the appellant accused is fully supported by the evidence and therefore we affirm the same and consequently the appeal is liable to be dismissed. Hence the following: The appeal is dismissed. Sd Sd 

Summary: It is the fundamental right of every individual to choose who they want to marry and love. This is an extension to right to life, liberty and pursuit of happiness. This remarkable judgement was passed by the Kalaburagi bench of the Karnataka High Court, consisting of Justice S Sunil Dutt Yadav and  Justice P Krishna Bhat in the matter of Vijay @ Vijendra v The State of Karnatak, [Criminal Appeal No. 2000141/ 2016].  The accused is alleged to have been in love with the deceased and intended to marry her. In light of the same, he went to the deceased’s house to profess his love for her and asked her to marry him to which she said she needed to consult her parents, and refused. The accused stabbed her seven to eight times with a knife he was carrying, with the deceased’s sister being present in the house. Thus, she was the key witness in this scene of crime. The deceased before dying, explained in detail the injuries caused to her and by whom which was later considered as the dying declaration. The accused argued that the dying deceleration was a cooked up document and not reliable. He argued that there was no endorsement  certificate from the medical officer confirming the fact that the victim was in the state of mind to give her statement against the accused. Further, what supported his argument was that during the entire duration of which the victim was admitted in hospital, no statement was recorded by the medical officer, which again results in her statement being unreliable. Lastly, the accused took the defence of grave and sudden provocation, which was blatantly rejected by the court on the following grounds. Firstly,  it was the accused who went to the victim’s house to ask her hand for marriage and secondly, he went with a weapon, which suggests that he had planned to attack her if she refuses to accept his proposal. The Court relied on Laxman v State of Maharashtra, [(2002) 6 SCC 710]  while it opined on the dying declaration that, “it was voluntary and she was in a fit state of mind at that time , a certificate regarding fitness by a doctor is not mandatory”.