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the dying declaration was made after due certification of fitness by the doctor and was recorded by a police officer in discharge of his normal functions. The statement was made by the deceased voluntarily and was a truthful description of the events. This version is fully supported by PW3, the witness who had accompanied the deceased at all relevant times, right from inflicting of the injury till the time of his death. The serological report, Ex.P16, duly established that the blood group on the knife used for the assault and that of the deceased was O+. This knife had been recovered vide Mahazar Ex.P-12 by PW11 Srinivasa PSI in furtherance to the voluntary statement of the appellant in presence of PW14, the Panch. The father of the deceased, PW5, has also clearly stated that there was previous animosity between the deceased and the appellant. In other words, the complete chain of events, pointing unexceptionally towards the guilt of the appellant has been established by the prosecution thereby proving the case of the prosecution beyond any reasonable doubt.

REPORTABLE

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 79 OF 2010

 
M.SARVANA @ K.D. SARAVANA …Appellant
Versus
STATE OF KARNATAKA …Respondent

 

 

 

J U D G M E N T
Swatanter Kumar, J.

1. The present appeal is directed against the judgment of the High
Court of Karnataka, Bangalore, dated 4th December, 2007 confirming the
judgment of conviction and order of sentence passed by the Fast Track
(Sessions) Judge-III, Bangalore City, dated 26th October and 28th October,
2004, respectively convicting the appellant under Section 302 of the Indian
Penal Code, 1860 (for short, the ‘IPC’) and awarding him sentence of
rigorous imprisonment for life and a fine of Rs.10,000/-, in default
thereto to undergo further rigorous imprisonment for a period of three and
a half years.

2. The facts leading to the demise of the deceased Kuppa can be stated
as follows:

Head Constable Sadashivaiah, PW2, received an intimation at about
10.30 p.m. in the night of 14th February, 2003 from the doctor on duty at
the Victoria Hospital stating that a badly injured person had been admitted
to the Victoria Hospital. After receiving this information, PW2 proceeded
to Victoria Hospital and approached the duty doctor, Dr. Girija. The said
police officer found the deceased in a sound state of mind and the duty
doctor duly endorsed regarding fitness of the deceased to make a statement.
Accordingly, the Head Constable recorded the statement of the deceased
Kuppa and the same was exhibited as Ex.P2. When PW2 was examined as a
witness in the Court, he identified the MLC report, Ex.P3 and also
identified the endorsement of the duty doctor on the said dying declaration
regarding fitness of the injured as Ex.P2 (b). After recording the
statement, the same was handed over to the PSI Shivanna for further
investigation. According to the statement of the deceased, as recorded by
PW2, there was previous animosity between him and the appellant and on 14th
February, 2003 at 7.45 p.m. when he and PW3 were proceeding to have meals
and go to their house after the day’s work, they met the appellant who said
that he would do away with the deceased and stabbed him with knife on his
stomach due to which he fell down. Even thereafter, the accused did not
spare him and repeatedly assaulted him with glass bottles on his head and
face, causing grievous injuries. Anthoni, PW3, took him to the hospital
and got him admitted.

3. PW3 has stated in his statement before the Court that on 14th
February, 2003 at about 7.15 p.m., he and the deceased were proceeding
towards hotel for tiffin, at Double Road, Lal Bagh when they were near the
MP Stores, the appellant was standing there. Looking at Kuppa, the
appellant had started abusing Kuppa and uttered that he would commit murder
of Kuppa. Immediately thereafter, the appellant started assaulting Kuppa
on the right side of his stomach with a knife and caused grievous injuries.
Kuppa fell down, meanwhile, the appellant assaulted him with a bottle on
the forehead and ran away. The people had gathered there. Then, he had
taken Kuppa to the hospital and got him admitted. This witness duly
identified the knife, MO-1 used by the appellant as well as the broken
glass pieces of the bottle marked as MO-2. He even identified the T-shirt
that Kuppa was wearing on the day of the incident which was blood-stained
marked as MO-3. Moreover, he identified the towel as MO-4 and the blood-
stained pant of Kuppa as MO-5. This witness stated that he knew both the
deceased and the accused for the last more than 12 years. According to
this witness, the street light was there at the time of the incident.

4. Unfortunately, Kuppa succumbed to his injuries and died in the
hospital on 15th February, 2003 at 7.00 a.m. Dr. Naveen (PW1) informed the
police and prepared the death memo, Ex.P1. Dr. Udayashankar (PW8)
performed the post-mortem on the body of the deceased and noticed the
injuries of the deceased and the cause of death as follows: –

“Injuries :-

External examination :-Length of the body is 170 cms. Well
built. Dark brown complexion. Rigor mortis is present all over
the body and liver mortis faintly present on the back. Hospital
bandage is present over lower chest and abdomen, intravenous
injection mark present over left forearm. Face is smeared with
dried blood stains and also both palms foot.
External injuries: 1. Surgically sutured shaped wound present
over the vertex. Long limb measures 6 cms. Short limb
measures 5 cms. On removal of the sutures, they are cut wounds,
skull deep.
Scalp skull : External injuries described. Extra vasation of
blood present around corresponding external injuries. Skull
intact. Membranes pale.
Brain – Pale.”
“Opinion as to cause of death :-
Death was due to shock and haemorrage consequent to injuries
sustained.”

 
5. We may also notice here that Dr. K.M. Chennakeshava (PW13) was
examined to identify the signature and writing of Dr. Girija who had
endorsed the dying declaration as she had left the Victoria Hospital and
had gone to America prior to the time when the matter came up for recording
of evidence in the Court. PW9, Nanjunappa, the Officer from the Forensic
Science Laboratory (FSL) had identified MOs1 to 5 and 7 and stated that
they contained blood stains and MOs 3 to 5 and 7 were containing blood
having ‘O’ positive group which was the blood group of the deceased.

6. Besides the above, the prosecution, in order to establish its case,
had examined 15 witnesses and exhibited Exhibits P1 to P20. After
completion of the prosecution evidence, the appellant was examined and in
his statement under Section 313 of the Code of Criminal Procedure, 1973
(CrPC), he took the stand of complete denial and stated nothing more.

7. The learned counsel appearing for the appellant contended that there
was inordinate delay in lodging the First Information Report (FIR) and in
any case, the FIR having been lodged by a person who was not an eye-
witness, would render the same inadmissible. Then it is contended that PW7
had been declared hostile as he did not support the case of the prosecution
and further that the dying declaration recorded by the police is
inadmissible and cannot be made the sole basis for conviction of the
appellant. The contention, therefore, is that the appellant is entitled to
acquittal.

8. We find no merit in either of these contentions raised on behalf of
the appellant. Firstly, there was no inordinate delay in lodging the FIR.
The incident occurred at 7.45 p.m. on 14th February, 2003. People had
gathered at the place of the incident and PW3, who was accompanying the
deceased at the relevant time, had taken him to the hospital. The doctor
on duty, after having seen the injured person, had reported the matter to
the police and then the FIR was lodged. This FIR, Ex.P.10, was lodged at
11.30 p.m. on the same day. We do not think that there had been any
inordinate delay in lodging the FIR. The conduct of both the doctor on
duty and PW3 was very normal. The priority for PW3 was not to go to the
police station and lodge the FIR but to take the deceased, who was
seriously injured at that time, to the hospital at the earliest. He did
the latter and correctly so. The doctor had cared first to take steps to
give medical aid to the injured and make every effort to save the deceased
rather than calling the police instantaneously. However, without any undue
delay, the doctor informed the police. The police came to the hospital and
it was only after the concerned police officer (PW2) had met the duty
doctor and seen the injured and recorded his statement that the FIR was
registered. It is a settled principle of law that an FIR can be lodged by
any person, even by telephonic information. It is not necessary that an
eye-witness alone can lodge the FIR. In view of these facts, no court can
hold that there is inordinate delay in lodging the FIR by accepting the
contention raised on behalf of the appellant.

9. Coming to the first leg of the second submission raised by the
learned counsel for the appellant, the contention is that PW7, who was
stated to be an eye-witness did not completely support the case of the
prosecution, when he was examined before the court. The mere fact that one
of the witnesses produced by the prosecution had been declared hostile and
did not support the case of the prosecution would not be fatal to the case
of the prosecution, particularly when the prosecution has been able to
prove its case by other cogent and reliable evidence. In the present case,
the prosecution has not only proved its case by independent witnesses, eye-
witnesses, medical evidence and the report of the FSL, but has also
established its case beyond reasonable doubt on the strength of the dying
declaration of the deceased himself. Reference in this regard can be made
to the decisions of this Court in Atmaram & Ors. v. State of Madhya Pradesh
[(2012) 5 SCC 738]; Jodhraj Singh v. State of Rajasthan [(2007) 15 SCC
294]; and Sambhu Das @ Bijoy Das & Anr. v. State of Assam [(2010) 10 SCC
374].

10. We may notice, at this stage that the court can even take into
consideration the part of the statement of a hostile witness which supports
the case of the prosecution. Therefore, it cannot be said that whenever
prosecution witnesses are declared hostile, it must prove fatal to the case
of the prosecution. Reference in this regard can be made to the judgment
of this Court in the case of Bhajju @ Karan Singh v. State of M.P. (2012)
4 SCC 327; Govindaraju @ Govinda v. State by Sriramapuram Police Station
and Anr. (2012) 4 SCC 722.

11. Coming to the admissibility and evidentiary value of the dying
declaration made by the deceased, the factum of death of the deceased has
been proved. PW3 has given the eye-version of the occurrence. He was a
witness to the hurling of abuses as well as inflicting of both the fatal
injuries by the appellant – one by knife and the other with a glass bottle
on the forehead of the deceased. He had taken injured-Kuppa to the
hospital and has categorically stated that on his way to the hospital, the
deceased was conscious, though in great pain. After reaching the hospital,
the duty doctor, Dr. Girija, who could not be examined as a witness because
she had left the service, had informed about admission of an injured person
in the hospital to Head Constable, PW2, who came to the hospital and after
getting the certification from the duty doctor in regard to fitness of the
deceased to make a statement, had recorded the statement of the deceased
under Section 161 of the CrPC. This statement became the dying declaration
of the deceased because he expired on the very next day, i.e. 15th
February, 2003 in the morning. According to the said dying declaration,
the appellant had clearly stated that he would murder him whereafter he
took out the knife and stabbed the deceased. Still not satisfied with this
assault, the appellant went to the shop of one Kaka and brought a bottle
and spilled the liquid all over his head and then inflicted bleeding injury
on his forehead. The deceased in his statement has categorically and with
clarity stated that the accused K.D. Saravana had inflicted both injuries
upon his body. These injuries proved fatal leading to the death of the
deceased.

12. We may refer to some of the judgments of this Court in regard to the
admissibility and evidentiary value of a dying declaration. In the case of
Bhajju (supra), this Court clearly stated that Section 32 of the Evidence
Act, 1872 was an exception to the general rule against admissibility of
hearsay evidence. Clause (1) of Section 32 makes statement of the deceased
admissible, which has been generally described as dying declaration. The
court, in no uncertain terms, held that it cannot be laid down as an
absolute rule of law that dying declaration could not form the sole basis
of conviction unless it was corroborated by other evidence. The dying
declaration, if found reliable, could form the basis of conviction.
Similar principle was stated by this Court in the case of Surinder Kumar
v. State of Haryana (2011) 10 SCC 173 wherein the Court, though referred to
the above principle, but on facts and because of the fact that the dying
declaration in the said case was found to be shrouded by suspicious
circumstances and no witness in support thereof had been examined,
acquitted the accused. However, the Court observed that when a dying
declaration is true and voluntary, there is no impediment in basing the
conviction on such a declaration, without corroboration.

13. In the case of Chirra Shivraj v. State of Andhra Pradesh (2010) 14
SCC 444, the Court added a caution that a mechanical approach in relying
upon the dying declaration just because it is there, is extremely
dangerous. The court has to examine a dying declaration scrupulously with
a microscopic eye to find out whether the dying declaration is voluntary,
truthful, made in a conscious state of mind and without being influenced by
other persons and where these ingredients are satisfied, the Court
expressed the view that it cannot be said that on the sole basis of a dying
declaration, the order of conviction could not be passed.
14. In the case of Laxman v. State of Maharashtra (2002)6 SCC 710, the
Court while dealing with the argument that the dying declaration must be
recorded by a magistrate and the certificate of fitness was an essential
feature, made the following observations. The court answered both these
questions as follows:

“3. The juristic theory regarding acceptability of a dying declaration
is that such declaration is made in extremity, when the party is at
the point of death and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man is induced by the
most powerful consideration to speak only the truth. Notwithstanding
the same, great caution must be exercised in considering the weight to
be given to this species of evidence on account of the existence of
many circumstances which may affect their truth. The situation in
which a man is on the deathbed is so solemn and serene, is the reason
in law to accept the veracity of his statement. It is for this reason
the requirements of oath and cross-examination are dispensed with.
Since the accused has no power of cross-examination, the courts insist
that the dying declaration should be of such a nature as to inspire
full confidence of the court in its truthfulness and correctness. The
court, however, has always to be on guard to see that the statement of
the deceased was not as a result of either tutoring or prompting or a
product of imagination. The court also must further decide that the
deceased was in a fit state of mind and had the opportunity to observe
and identify the assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental condition to make the
dying declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state
to make the declaration, the medical opinion will not prevail, nor can
it be said that since there is no certification of the doctor as to
the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any
adequate method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive and
definite. In most cases, however, such statements are made orally
before death ensues and is reduced to writing by someone like a
Magistrate or a doctor or a police officer. When it is recorded, no
oath is necessary nor is the presence of a Magistrate absolutely
necessary, although to assure authenticity it is usual to call a
Magistrate, if available for recording the statement of a man about to
die. There is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is
recorded by a Magistrate there is no specified statutory form for such
recording. Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the facts and
circumstances of each particular case. What is essentially required is
that the person who records a dying declaration must be satisfied that
the deceased was in a fit state of mind. Where it is proved by the
testimony of the Magistrate that the declarant was fit to make the
statement even without examination by the doctor the declaration can
be acted upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a
rule of caution and therefore the voluntary and truthful nature of the
declaration can be established otherwise.”

 
15. In Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr.
[(2012) 4 SCC 722], the court inter alia discussed the law related to dying
declaration with some elaboration: –

“23. Now, we come to the second submission raised on behalf of the
appellant that the material witness has not been examined and the
reliance cannot be placed upon the sole testimony of the police
witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the
number of witnesses that matters but it is the substance. It is also
not necessary to examine a large number of witnesses if the
prosecution can bring home the guilt of the accused even with a
limited number of witnesses. In Lallu Manjhi v. State of Jharkhand
(2003) 2 SCC 401, this Court had classified the oral testimony of the
witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and
see if the statement of such witness is corroborated, either by the
other witnesses or by other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is
a sole witness to the incident, his evidence has to be accepted with
caution and after testing it on the touchstone of evidence tendered by
other witnesses or evidence otherwise recorded. The evidence of a sole
witness should be cogent, reliable and must essentially fit into the
chain of events that have been stated by the prosecution. When the
prosecution relies upon the testimony of a sole eyewitness, then such
evidence has to be wholly reliable and trustworthy. Presence of such
witness at the occurrence should not be doubtful. If the evidence of
the sole witness is in conflict with the other witnesses, it may not
be safe to make such a statement as a foundation of the conviction of
the accused. These are the few principles which the Court has stated
consistently and with certainty.

 

26. Reference in this regard can be made to Joseph v. State of Kerala
(2003) 1 SCC 465 and Tika Ram v. State of M.P. (2007) 15 SCC 760.
Even in Jhapsa Kabari v. State of Bihar (2001) 10 SCC 94, this Court
took the view that if the presence of a witness is doubtful, it
becomes a case of conviction based on the testimony of a solitary
witness. There is, however, no bar in basing the conviction on the
testimony of a solitary witness so long as the said witness is
reliable and trustworthy.

 
27. In Jhapsa Kabari (supra), this Court noted the fact that simply
because one of the witnesses (a fourteen-year-old boy) did not name
the wife of the deceased in the fardbeyan, it would not in any way
affect the testimony of the eyewitness i.e. the wife of the deceased,
who had given a graphic account of the attack on her husband and her
brother-in-law by the accused persons. Where the statement of an
eyewitness is found to be reliable, trustworthy and consistent with
the course of events, the conviction can be based on her sole
testimony. There is no bar in basing the conviction of an accused on
the testimony of a solitary witness as long as the said witness is
reliable and trustworthy.

 
28. In the present case, the sole eyewitness is stated to be a police
officer i.e. PW 1. The entire case hinges upon the trustworthiness,
reliability or otherwise of the testimony of this witness. The
contention raised on behalf of the appellant is that the police
officer, being the sole eyewitness, would be an interested witness,
and in that situation, the possibility of a police officer falsely
implicating innocent persons cannot be ruled out.

 
29. Therefore, the first question that arises for consideration is
whether a police officer can be a sole witness. If so, then with
particular reference to the facts of the present case, where he alone
had witnessed the occurrence as per the case of the prosecution.

 
30. It cannot be stated as a rule that a police officer can or cannot
be a sole eyewitness in a criminal case. It will always depend upon
the facts of a given case. If the testimony of such a witness is
reliable, trustworthy, cogent and duly corroborated by other witnesses
or admissible evidence, then the statement of such witness cannot be
discarded only on the ground that he is a police officer and may have
some interest in success of the case. It is only when his interest in
the success of the case is motivated by overzealousness to an extent
of his involving innocent people; in that event, no credibility can be
attached to the statement of such witness.

 
31. This Court in Girja Prasad (2007) 7 SCC 625 while particularly
referring to the evidence of a police officer said that it is not the
law that police witnesses should not be relied upon and their evidence
cannot be accepted unless it is corroborated in material particulars
by other independent evidence. The presumption applies as much in
favour of a police officer as any other person. There is also no rule
of law which lays down that no conviction can be [pic]recorded on the
testimony of a police officer even if such evidence is otherwise
reliable and trustworthy. The rule of prudence may require more
careful scrutiny of their evidence. If such a presumption is raised
against the police officers without exception, it will be an attitude
which could neither do credit to the magistracy nor good to the
public, it can only bring down the prestige of the police
administration.”

 
16. The dying declaration is the last statement made by a person at a
stage when he in serious apprehension of his death and expects no chances
of his survival. At such time, it is expected that a person will speak the
truth and only the truth. Normally in such situations the courts attach
the intrinsic value of truthfulness to such statement. Once such statement
has been made voluntarily, it is reliable and is not an attempt by the
deceased to cover up the truth or falsely implicate a person, then the
courts can safely rely on such dying declaration and it can form the basis
of conviction. More so, where the version given by the deceased as 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.

17. Reverting to the facts of the present case, the dying declaration was
made after due certification of fitness by the doctor and was recorded by a
police officer in discharge of his normal functions. The statement was
made by the deceased voluntarily and was a truthful description of the
events. This version is fully supported by PW3, the witness who had
accompanied the deceased at all relevant times, right from inflicting of
the injury till the time of his death. The serological report, Ex.P16,
duly established that the blood group on the knife used for the assault and
that of the deceased was O+. This knife had been recovered vide Mahazar
Ex.P-12 by PW11 Srinivasa PSI in furtherance to the voluntary statement of
the appellant in presence of PW14, the Panch. The father of the deceased,
PW5, has also clearly stated that there was previous animosity between the
deceased and the appellant. In other words, the complete chain of events,
pointing unexceptionally towards the guilt of the appellant has been
established by the prosecution thereby proving the case of the prosecution
beyond any reasonable doubt.

18. Thus, we see no reason to interfere with the concurrent judgments of
conviction and order of sentence passed by the Courts below. The appeal,
therefore, is dismissed.

 

……………..…………………………….J.
(Swatanter Kumar)

 

…….…………………………………….J.
(Fakkir Mohamed Ibrahim Kalifulla)

New Delhi,
July 24, 2012
[pic]

 

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