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