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Wednesday, July 25, 2012

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

                        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]