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Thursday, April 10, 2014

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 as Dying Declaration after his death - 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]

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