GOPALversusSTATE OF KARNATAKA

                     [2011] 5 S.C.R. 501


                           GO PAL                                  A
                               v.
                  STATE OF KARNATAKA
              (Criminal Appeal No. 29 of 2006)
                       APRIL 19, 2011
                                                                   8
       [V.S. SIRPURKAR AND T.S. THAKUR, JJ.)

      Penal Code, 1860: s.302 - Conviction under-Allegation
that accused-husband poured kerosene on the body of his
wife and set her on fire - Dying declaration recorded by police    C
officer and endorsed by the doctor to the effect that victim was
in a fit mental condition to depose before the police -
Conviction by courts below, on the basis of dying declaration
- Justification of- Held: Justified - The dying declaration was
rightly 1made the sole basis for the conviction of accused -       D
Thero/was no explanation by the accused anywhere as to how
the presence of kerosene was found on the inner and outer
garments of his wife - FSL Report endorsed the said fact - It
was not the defence of the accused that the death was suicidal
or accidental - The circumstances clinched the proof that it       E
was the accused alone who committed this offence - Evidence
- Dying declaration.

     The prosecution case was that the appellant poured
kerosene on the body of his wife and set her on fire. The
victim was rushed to hospital. The doctor, PW-5 intimated F
the police station. The police officer, PW-13 recorded the
statement of the victim. After few days, the victim
succumbed to the burn injuries. The trial court convicted
the appellant under Section 302 ~PC. The High Court
upheld the same. The instant appeal was filed challenging .. G
the conviction.
    Dismissing the appeal, the Court

                             501                                   H
    502      SUPREME COURT REPORTS             [2011] 5 S.C.R.


A        HELD: 1. The findings of the trial court as well as of
    the High Court that the dying declaration can be made
    the sole basis for the conviction of accused is a correct
    inference. There was no explanation by the accused
    anywhere as to how the presence of kerosene was found
B on the brassiere, saree and peti-coat of the unfortunate
    lady. The FSL Report endorsed this fact. It w~s not the
    defence of the accused that the death was suicidal or
    accidental. There was nothing on record even to
    entertain such doubt. The presence of kerosene residue
c on the inner and outer garments provided strong
    corroboration of the version in the dying declaration. 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
D may lie but the circumstances do not. The circumstances
    in this case clinches the proof that it is the accused and
    accused alone who committed this offence. The
    investigating officer did not make any attempt to get
    recorded the second dying declaration of the deceased
    by a Magistrate. It would have been better if the
E · investigating officer had made an attempt to get recorded
    the second dying declaration of the victim by a
    Magistrate. But, the dying declaration recorded by PW-
    13 and supported by PW-5 and the endorsement made
    by him to the effect that the victim was in a fit mental
F condition to depose before the police convinces that the
    dying declaration itself was a good dying declaration and
    could have been acted upon. [Paras 3 to 6] [503-G-H; 504-
    A-F]
G       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 29 of 2006.
        From the Judgment & Order dated 03.11.2003 of the High
    Court of Karnataka (DB) in Criminal Appeal No. 460 of 2000.

H         Ram Lal Roy for the Appellant.
                           -
         GOPAL v. STATE OF KARNATAKA                        503

   Gurudatta Ankolekar, Azeem              Kalebudde,     V.N.     A
Raghuparthy for the Respondent.

    The Judgment of the Court was delivered by

     SIRPURKAR, J. 1. The appellant - Gopal challenges his
conviction under Section 302 l.P.C. in this appeal. The · B
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 Nagawa and PW-15 Sushila and she was treated by C
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           o
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/-.

     At about 5 p.m., on the same day, accused returned to the     E
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         F
her ablaze. On 19.1.1999, Mallawa 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.                                                      G
     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.
                                                                   H
    504     SUPREME COURT REPORTS                  (2011) 5 S.C.R.


A      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-
B 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 such
  doubt. The presence of kerosene residue on the inner and
  outer garments provides strong corroboration of the version in
C 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
D 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
E 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
F 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.

G       7. We find no merit in this appeal. It is, accordingly,
    dismissed.

    D.G.                                       Appeal dismissed.