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Dying Declaration – Statement recorded become and treated as Dying Declaration – Sanctity of the same – when it was not recorded word by word , when it was interpolated with new names – when the time was corrected – when the scribe admitted that it was recorded at dictation – Trial court rightly acquitted the accused – High court unnecessarily interfered with the acquittal – Apex court held that The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, in our opinion, this by itself creates a lot of suspicion about credibility of such statement and the prosecution has to clear the same to the satisfaction of the court. The trial court on over-all consideration of the evidence of PW-25, PW-30 and PW-36 coupled with the fact that there was over-writing about the time at which the statement was recorded and also insertion of two names by different ink did not consider it safe to rely upon the dying declaration and acquitted the accused for want of any other evidence. In the circumstances, in our view, it cannot be said that the view taken by the trial court on the basis of evidence on record was not a possible view. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court. = Muralidhar @ Gidda & Anr. … Appellants Versus State of Karnataka … Respondent= 2014 (April.Part) http://judis.nic.in/supremecourt/filename=41400

Dying Declaration – Statement recorded become and treated as Dying Declaration – Sanctity of the same – when it was not recorded word by word , when it was interpolated with new names – when the time was corrected – when the scribe admitted that it was recorded at dictation – Trial court rightly acquitted the accused – High court unnecessarily interfered with the acquittal – Apex court held that The sanctity is attached  to  a  dying  declaration  because  it comes from the mouth of  a  dying  person.    If  the  dying  declaration  is recorded not directly from the actual words of the maker but as dictated  by somebody else, in our opinion, this by itself creates  a  lot  of  suspicion about credibility of such statement and the prosecution  has  to  clear  the same to the  satisfaction  of  the  court.   The  trial  court  on  over-all consideration of the evidence of PW-25, PW-30 and  PW-36  coupled  with  the fact that there was over-writing about the time at which the  statement  was recorded and also insertion of two names by different ink did  not consider it safe to rely upon the dying declaration and  acquitted  the  accused  for want of any other evidence.  In the circumstances, in our  view,  it  cannot be said that the view taken by the trial court on the basis of  evidence  on record was not a possible view. The accused were entitled to the benefit  of doubt which was rightly given to them by the trial court. =

 

Ex.P-22 is in  Kannada,  which

in English translation reads:

           

“The  statement  of  Pradeep  son  of  Swamygowda,   28   years,

           Vakkaligaru by community, agriculturist residing  at  Majigepura

           village, Srirangapatna Taluk. 

Today at about 8.30 p.m. night,  I

           was sitting in front of shaving shop by  the  side  of  shop  of

           Javaregowda on K.R.S. – Majigepura  Road  along  with  Vyramudi,

           Prakash and Umesh.  

At that time Naga, S/o Ammayamma, Jagga  S/o

           Sentu Kumar’s sister, Gunda, Gidda, S/o Fishari Nanjaiah, Swamy,

           Manju and Hotte Ashoka and others who  were  having  old  enmity

           assaulted me by means of chopper, long on my  hand,  head,  neck

           and on other parts of the body with an intention to kill me  and

           they have assaulted Umesh who was with me.  

Vyramudi said do not

           kill us and went away. Prakash ran  away.   

Please  take  action

           against those who have attempted to kill me.”

 

3.          After registration of the First Information Report  (Exhibit  P-

5) on the basis of the above statement made  by  Pradeep  which  has  become

dying declaration in view of his death,  the  investigation  commenced.=

 

The sanctity is attached  to  a  dying  declaration  because  it

comes from the mouth of  a  dying  person.   

If  the  dying  declaration  is

recorded not directly from the actual words of the maker but as dictated  by

somebody else, in our opinion, this by itself creates  a  lot  of  suspicion

about credibility of such statement and the prosecution  has  to  clear  the

same to the  satisfaction  of  the  court.   

The  trial  court  on  over-all

consideration of the evidence of PW-25, PW-30 and  PW-36  coupled  with  the

fact that there was over-writing about the time at which the  statement  was

recorded and also insertion of two names by different ink did  not  consider

it safe to rely upon the dying declaration and  acquitted  the  accused  for

want of any other evidence.  

In the circumstances, in our  view,  it  cannot

be said that the view taken by the trial court on the basis of  evidence  on

record was not a possible view. 

The accused were entitled to the benefit  of

doubt which was rightly given to them by the trial court.

20.         The High Court on consideration of  the  same  evidence  took  a

different view  and  interfered  with  the  judgment  of  acquittal  without

properly keeping in mind that the presumption of innocence in favour of  the

accused has been strengthened by their acquittal from the  trial  court  and

the view taken by the trial court as to the credibility of Ex.P-22  and  the

evidence of PW-25, PW-30 and PW-36 was a  possible  view.   The  High  Court

while upsetting the judgment of acquittal has not  kept  in  view  the  well

established  principles  in  hearing  the  appeal  from  the   judgment   of

acquittal.

21.               Accordingly,  the  appeals  are  allowed.  

 

2014 (April.Part) http://judis.nic.in/supremecourt/filename=41400

R.M. LODHA, SHIVA KIRTI SINGH
REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.551 OF 2011

 

 
Muralidhar @ Gidda & Anr. … Appellants
Versus

State of Karnataka … Respondent
WITH
CRIMINAL APPEAL NO.791 OF 2011
AND
CRIMINAL APPEAL NO.1081 OF 2011

 
JUDGMENT
R.M. LODHA, J.
These three criminal appeals arise from the common judgment
and, therefore, they were heard together and are being disposed of by the
common judgment.
2. The statement (Ex.P-22) recorded by the police on 17.08.2002
between 9.55 P.M. and 10.20 P.M. at K.R. Hospital, Mandya triggered the
prosecution of the appellants and one Swamy. Ex.P-22 is in Kannada, which
in English translation reads:
“The statement of Pradeep son of Swamygowda, 28 years,
Vakkaligaru by community, agriculturist residing at Majigepura
village, Srirangapatna Taluk. Today at about 8.30 p.m. night, I
was sitting in front of shaving shop by the side of shop of
Javaregowda on K.R.S. – Majigepura Road along with Vyramudi,
Prakash and Umesh. At that time Naga, S/o Ammayamma, Jagga S/o
Sentu Kumar’s sister, Gunda, Gidda, S/o Fishari Nanjaiah, Swamy,
Manju and Hotte Ashoka and others who were having old enmity
assaulted me by means of chopper, long on my hand, head, neck
and on other parts of the body with an intention to kill me and
they have assaulted Umesh who was with me. Vyramudi said do not
kill us and went away. Prakash ran away. Please take action
against those who have attempted to kill me.”

3. After registration of the First Information Report (Exhibit P-
5) on the basis of the above statement made by Pradeep which has become
dying declaration in view of his death, the investigation commenced. In
the course of investigation, 37 witnesses were examined. The investigating
officer, on completion of investigation, submitted challan against Naga @
Bagaraju (A-1), Jaga @ Santhosh Kumar (A-2), S. Sathish @ Gunda (A-3),
Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6).
4. The concerned Magistrate then committed the accused to the
court of Sessions for trial. The Court of Sessions Judge, Fast Track
Court–I, Mandya conducted the trial against A-1 to A-6 for the offences
punishable under Sections 302, 307, 144, 148 read with Section 149 of the
Indian Penal Code, 1860 (for short, “IPC”). The prosecution examined 37
witnesses of which PW-4 (Umesha), PW-5 (Prakash) and PW-15 (Vyramudi) were
produced as eye-witnesses. Exhibit P-22 is recorded by PW-30 (Rajashekar)
on the oration of PW-36 (Kodandaram, PSI) in the presence of PW-25 (Dr.
Balakrishna).
5. The three eye-witnesses PW-4, PW-5 and PW-15 have turned
hostile to the case of prosecution and have not supported the prosecution
version at all. In the circumstances, the only evidence that has become
significant is the dying declaration (Ex.P-22). The trial court by its
judgment dated 28.09.2004 on consideration of the entire oral and
documentary evidence reached the conclusion that prosecution had failed to
prove the offence against the accused persons and, accordingly, acquitted
them.
6. The State of Karnataka preferred an appeal before the Karnataka
High Court against the judgment of the Fast Track Court-I, Mandya
acquitting the accused. The High Court on hearing the public prosecutor
and the counsel for the accused vide its judgment dated 21.10.2010
maintained the acquittal of A5 (Swamy) but convicted A1 to A4 and A6 for
the offences under Section 302 read with Section 149 IPC and sentenced them
to undergo imprisonment for life with fine and defaulting sentence. The
High Court has also convicted them for the offence under Section 148 IPC
and they were sentenced to suffer rigorous imprisonment for one year. Both
sentences have been ordered to run concurrently. It is from this judgment
that these appeals, by special leave, have arisen.
7. The High Court has convicted the appellants on the basis of
dying declaration alone, as in its view the dying declaration is credible
and genuine. In this regard, the reasoning of the High Court is broadly
reflected in paragraphs 16 and 17 which reads as follows:
“16. Having heard both sides and carefully gone through the
evidence of the witnesses and on reappreciation of the evidence
we find that Ex. P22 which is the dying declaration of the
deceased has been recorded naturally and truthfully. PW25 –
Doctor has categorically stated that the injured was in a
position to speak and give statement and further he has signed
Ex.P.22. Under these circumstances, it could be gathered that
PW25 – the Medical Officer was not only a person present when
Ex. P.22 was recorded, but also asserted that the patient was
in a position to give such statement. However, on a careful
scrutiny of Ex.P.22, it is seen that the name of Swamy –
Accused No.5 has been added subsequently and there is no
initial of any officer by the side of the name of Swamy and the
colour of the ink differs from the other handwriting. In view
of the foregoing discussions we hold that the dying declaration
of deceased Pradeep – Ex. P.22 is genuine and has been recorded
by PW30 – Rajshekhar in the presence of PW25 – Dr. Balakrishan
when the deceased was in fit condition to give statement and
hence, a conviction can be based on the said dying declaration.

 
17. So far as the capacity of the deceased to narrate the
incident regarding the cause of his injuries is concerned, on
perusal of Ex. P.3 the accident register it is clear that
Ex.P.3 was brought into existence at 9.30 p.m. and in Ex.P3 it
is mentioned that the assault was by six persons and the names
of all the six persons are mentioned therein without any over
writing. The over writing pertains only to the presence of
Vyramudi and it is the contention of the learned counsel for
the accused that over the name of Vyramudi name of Pradeep is
written. In Ex.P.23 – requisition letter it is seen that
signature of Vyramudi is separately taken by the doctor as
brought by him and, therefore, the presence of either Vyramudi
or Pradeep in the hospital at the time when the deceased was
brought to the hospital cannot be disputed at all.”

 
8. The trial Court, however, held that it was not safe to act on
the dying declaration (Ex.P-22). The trial court on consideration of Ex.P-
22 and the evidence of PW-25, PW-36 and PW-30 concluded that the time of
recording Ex. P-22 did not inspire confidence and the credibility of
Exhibit P-22 had not been established to the satisfaction of the court and
conviction cannot be based on Exhibit P-22 and the deposition of PW-36, PW-
25 and PW-30.
9. The only question that arises for our consideration in these
appeals is, whether the High Court was justified in upsetting the view of
the trial court on re-appreciation of the evidence of PW-25, PW-30 and PW-
36 and Exhibit P-22.
10. Lord Russell in Sheo Swarup[1], highlighted the approach of the
High Court as an appellate court hearing the appeal against acquittal.
Lord Russell said, “… the High Court should and will always give proper
weight and consideration to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses.” The opinion of the Lord Russell has
been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while
dealing with the powers of the High Court in an appeal against acquittal
under Section 417 of the Criminal Procedure Code observed, “……….the High
Court has full power to review the evidence upon which the order of
acquittal was founded, but it is equally well settled that the presumption
of innocence of the accused is further reinforced by his acquittal by the
trial court, and the findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be reversed only for
very substantial and compelling reasons.”
12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan
Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G.
Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11],
Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15],
K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19],
Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23],
K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not
necessary to deal with these cases individually. Suffice it to say that
this Court has consistently held that in dealing with appeals against
acquittal, the appellate court must bear in mind the following: (i) There
is presumption of innocence in favour of an accused person and such
presumption is strengthened by the order of acquittal passed in his favour
by the trial court, (ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the appellate court in considering
the appeals against acquittal are as extensive as its powers in appeals
against convictions but the appellate court is generally loath in
disturbing the finding of fact recorded by the trial court. It is so
because the trial court had an advantage of seeing the demeanor of the
witnesses. If the trial court takes a reasonable view of the facts of the
case, interference by the appellate court with the judgment of acquittal is
not justified. Unless, the conclusions reached by the trial court are
palpably wrong or based on erroneous view of the law or if such conclusions
are allowed to stand, they are likely to result in grave injustice, the
reluctance on the part of the appellate court in interfering with such
conclusions is fully justified, and (iv) Merely because the appellate court
on re-appreciation and re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of acquittal is not
justified if the view taken by the trial court is a possible view. The
evenly balanced views of the evidence must not result in the interference
by the appellate court in the judgment of the trial court.
13. In Ghurey Lal[27], the Court has culled out the principles
relating to the appeals from a judgment of acquittal which are in line with
what we have observed above.
14. Now, we shall examine whether or not the impugned judgment
whereby the High Court interfered with the judgment of acquittal is
justified.
15. Of the 37 witnesses examined by the prosecution, PW-4, PW-
5 and PW-15 are the eye-witnesses but they have turned hostile to the case
of prosecution. The first medical examination of the deceased Pradeep and
so also the injured Umesha was done by PW1 (Dr. Latha) at about 9.30 P.M.
on 17.08.2002. She has not certified that Pradeep was in fit state to make
any statement. PW-25 (Dr. Balakrishna) at the relevant time was Assistant
Professor of Surgery at K.R. Hospital where deceased Pradeep was taken
immediately after the incident. At about 9.40 p.m. on 17.08.2002, PW-36
(Kodandaram, PSI) gave a memo to PW-25 stating that one patient (Pradeep)
was admitted in the hospital and requested him to verify as to whether the
patient was in a position to give statement. In his cross-examination, PW-
25 has stated that at 9.35 P.M., he saw the patient (Pradeep) when he was
kept in operation theatre of casualty for emergency treatment. He has also
deposed that a group of doctors was providing treatment to him. His
deposition does not establish that Pradeep was under his treatment. The
recording of Pradeep’s statement by a constable (PW-30) as dictated by PW-
36 (PSI) in this situation raises many questions. The trial court found
this absurd. It is the prosecution version that PW-30 has recorded Ex.P-22
as dictated by PW-36 (PSI). Thus, Ex.P-22 is not in actual words of the
maker. The trial court in this background carefully considered the
evidence of PW-25, PW-30 and PW-36 along with Ex.P-22. The trial court has
noted that PW-25 failed to confirm in his testimony that he was treating
deceased Pradeep when he was brought to the hospital. Moreover, PW-25
admitted over-writing with regard to the time written on Ex.P-22. The
trial court also observed that though there was lot of bleeding injuries
found on the person of Pradeep, PW-25 did not say anything about the
quantity of loss of blood.
16. Dealing with the testimony of PW-30, the trial court has
observed that in his cross-examination, he has admitted that he did not
record the statement in the words of the maker (Pradeep) but wrote the
statement as dictated by PW-36. Moreover, PW-30 in his cross-examination
had admitted that at the time Pradeep was attended to by the doctors, he
was not inside.
17. Then, in respect of Ex.P-22, the trial court observed that the
names of accused Gunda (A-3) and Swamy (A-5) appear to have been inserted
in different ink later on.
18. On a very elaborate consideration of the entire evidence, the
trial court was of the view that Ex.P-22 did not inspire confidence and the
credibility of Ex.P-22 has not been established to the satisfaction of the
court. Accordingly, the trial court held that conviction of the accused
persons cannot be based on Ex.P-22 and the deposition of PW-36, PW-25 and
PW-30.
19. The sanctity is attached to a dying declaration because it
comes from the mouth of a dying person. If the dying declaration is
recorded not directly from the actual words of the maker but as dictated by
somebody else, in our opinion, this by itself creates a lot of suspicion
about credibility of such statement and the prosecution has to clear the
same to the satisfaction of the court. The trial court on over-all
consideration of the evidence of PW-25, PW-30 and PW-36 coupled with the
fact that there was over-writing about the time at which the statement was
recorded and also insertion of two names by different ink did not consider
it safe to rely upon the dying declaration and acquitted the accused for
want of any other evidence. In the circumstances, in our view, it cannot
be said that the view taken by the trial court on the basis of evidence on
record was not a possible view. The accused were entitled to the benefit of
doubt which was rightly given to them by the trial court.
20. The High Court on consideration of the same evidence took a
different view and interfered with the judgment of acquittal without
properly keeping in mind that the presumption of innocence in favour of the
accused has been strengthened by their acquittal from the trial court and
the view taken by the trial court as to the credibility of Ex.P-22 and the
evidence of PW-25, PW-30 and PW-36 was a possible view. The High Court
while upsetting the judgment of acquittal has not kept in view the well
established principles in hearing the appeal from the judgment of
acquittal.
21. Accordingly, the appeals are allowed. The impugned
judgment is set aside. The judgment of the court of Sessions Judge, Fast
Track Court–I at Mandya dated 28.09.2004 is restored. The appellants shall
be set at liberty forthwith, if not required in any other case.

…..………………………….J.
(R.M. Lodha)
…..………………………….J.
(Shiva Kirti Singh)
New Delhi,
April 09, 2014.
———————–
[1] Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227]
[2] Surajpal Singh v. State; [AIR 1952 SC 52]
[3] Tulsiram Kanu v. State;[AIR 1954 SC 1]
[4] Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637]
[5] Atley v. State of U.P.; [AIR 1955 SC 807]
[6] Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217]
[7] Balbir Singh v. State of Punjab; [AIR 1957 SC 216]
[8] M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200]
[9] Noor Khan v. State of Rajasthan; [AIR 1964 SC 286]
[10] Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450],
[11] Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793]
[12] Lekha Yadav v. State of Bihar; [(1973) 2 SCC 424]
[13] Khem Karan v. State of U.P.; [(1974) 4 SCC 603]
[14] Bishan Singh v. State of Punjab; [(1974) 3 SCC 288]
[15] Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228]
[16] K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355]
[17] Tota Singh v. State of Punjab [(1987) 2 SCC 529]
[18] Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248]
[19] Madan Lal v. State of J&K; [(1997) 7 SCC 677]
[20] Sambasivan v. State of Kerala; [(1998) 5 SCC 412]
[21] Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85]
[22] Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002)
6 SCC 470]
[23] C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1]
[24] State of Karnataka v. K. Gopalakrishna; [(2005) 9 SCC 291]
[25] State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755]
[26] Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]
[27] Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450]

———————–
13

 

 

 

 

R.M. LODHA, SHIVA KIRTI SINGH

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