State of Karnataka Vs. Shankar and Another - Court Judgment

Excerpt:

.....of the scribe of the will is of no legal consequence in proof of will and does not meet the stipulation under section 69 of the evidence act. on facts held, the will (ex.d1) has neither been proved in terms of section 68 nor section 69 of the evidence act and hence, the courts below are justified in holding that the defendants have failed to prove the due execution of ex.d1 (will) by late narasamma. indian evidence act, 1872 sections 67 to 69: [a.n.venugopala gowda,j] proof of execution of the document-mandatory requirement of section 69 - proof of a document where no attesting witness found held, section 68 of the act lays down the mode of proof of a document. the mandatory requirement is that, at least one of the attesting witnesses should be examined. section 69 provides for proof of a document where no attesting witness is found. the provision of section 69 contemplates that, the handwriting of atleast one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. the proof of handwriting and/or the signature of a scribe is not the stipulation under section 69 of the act. on facts held,..........who are the most important witnesses haveturned hostile and we are left with nothing other than the dying declaration. normally, a court would have relied on this document and it could have also formed the sole basis of a conviction but the difficulty that has arisen is that the condition of the deceased was bad, she was not in a position to make any statement on the date of the incident and we do not have any certificate from the doctor, that on the next day when the dying declaration was recorded, that the deceased was in a fit condition, mentally and physically to understand and answer questions. the learned state public prosecutor submitted that the doctor has in his evidence indicated that the statement was made before him and that the deceased was in a fit condition. this is not good enough insofar as the law requires a contemporaneous certificate from the doctor which must be endorsed on the dying declaration itself. more so, when there is no other evidence and the conviction is sought to be based on the dying declaration alone, it would be unsafe to record a conviction in the absence of the certificate in question. having regard to this position, we have no option except.....

Judgment:

ORDER

M.F. Saldanha, J.

This is one more of the distressing wife-burning cases where the allegation was that due to the non-return of the gold ring and the harassment and cruelty meted out to the deceased wife that she burnt herself. Though the prosecution has alleged that the accused had ill-treated her and were responsible for the incident, the mother and brother of the deceased who are the most important witnesses haveturned hostile and we are left with nothing other than the dying declaration. Normally, a Court would have relied on this document and it could have also formed the sole basis of a conviction but the difficulty that has arisen is that the condition of the deceased was bad, she was not in a position to make any statement on the date of the incident and we do not have any certificate from the doctor, that on the next day when the dying declaration was recorded, that the deceased was in a fit condition, mentally and physically to understand and answer questions. The learned State Public Prosecutor submitted that the doctor has in his evidence indicated that the statement was made before him and that the deceased was in a fit condition. This is not good enough insofar as the law requires a contemporaneous certificate from the doctor which must be endorsed on the dying declaration itself. More so, when there is no other evidence and the conviction is sought to be based on the dying declaration alone, it would be unsafe to record a conviction in the absence of the certificate in question. Having regard to this position, we have no option except to refuse interference with the order of the Trial Court.

The appeal accordingly fails on merits and stands disposed off.