- Appellants1 (six in number) have filed this appeal against the judgment and order dated 21st September 2010 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1795 of 2004 whereby the appeal filed by the State against the verdict of acquittal in favour of all 29 accused, vide judgment and order dated 25th September, 2004 in S.C. No.162 of 1999, passed by the Additional Sessions Judge – Presiding Officer, Fast Track Court II, Kolar, was partly allowed. Overturning the same in respect of A-1 to A-5 and A-7, the Court while convicting them for having committed an offence punishable under Sections 143, 144, 146, 147, 148, 447, 324, 326, 504 and 506 r/w Section 149 of Indian Penal Code, 1860 sentenced each one of them to undergo rigorous imprisonment for a period of 4 years and pay a fine of ₹ 5000 each.
FACTUAL PRISM
- The facts, as set out by the Courts below, shorn of unnecessary details are :-
2.1 On 6th August 1997, the deceased namely Byregowda2 and his brothers, T.V. Narayanaswamy (PW4), T.V. Gopalreddy (PW5), T.V. Rajanna (PW10) and Marappa (PW2) had gone to the fields to work when, allegedly, all the accused armed with weapons such as clubs, iron rods and choppers came and threatened them. PW2, PW4, PW5 and PW10 managed to escape but while the deceased, was attempting to do so, he was greviously assaulted by A1, A2 and A3 by means of iron rod and a steel edged weapon (chopper). Immediate medical treatment was administered to the deceased at the Sidlaghatta General Hospital by Dr. Loganayaki (PW1) who also informed the police. V.M. Sonnappa (PW19), the then Sub-Inspector of Police took his statement (Ex. P1) and as a consequence therefore, registered FIR being Crime No. 249/1997 dated 08.08.1997 under several penal provisions.
2.2 After due investigation, the challan came to be filed and the case was committed to the Court of Additional Sessions Judge-Presiding Officer, Fast Track Court-II, Kolar. All the accused denied the charges under section 120B, 143, 447, 302 read with Section 149 IPC and claimed trial. Accused Nos.6 and 8 are recorded to have died and therefore, the proceedings against them stood abated at this stage.
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PRINCIPLES IN REGARD TO DYING DECLARATIONS
- Section 32 the Indian Evidence Act, 18723 relates to statements, written or verbal of relevant fact made by a person who is dead or who cannot be found, in other words, dying declaration. The various principles laid down by pronouncements of this court in respect of dying declarations can be summarised as under: –
11.1 The basic premise is “nemo moriturus praesumitur mentire” i.e. man will not meet his maker with a lie in his mouth.
11.1.1 In Laxman v. State of Maharashtra [(2002) 6 SCC 710 [5 Judge Bench]] a constitution bench of this court observed: –
“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 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.”
11.2 For a statement to be termed a “dying declaration”, and thereby be admissible under Section 32 of IEA, the circumstances discussed/disclosed therein “must have some proximate relation to the actual occurrence”.
11.3 The Privy Council in Pakala Narayana Swamy v. Emperor [AIR 1939 PC 47 [5 Judge Bench]] explained the phrase “circumstances of the transaction” as under:-
“……………………..”
11.3.1 In the well-known case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 [3 Judge Bench]] principles in respect of the application of section 32 have been noted as under: –
“…………………………”
11.4 Numerous judgments have held that provided a dying declaration inspires confidence of the court it can, even sans corroboration, form the sole basis of conviction. In this regard, reference may be made to Khushal Rao v. State of Bombay [AIR 1958 SC 22 [3 Judge Bench]], Suresh Chandra Jana v. State of West Bengal [(2017) 16 SCC 466] and Jayamma v. State of Karnataka [(2021) 6 SCC 213 [3 Judge Bench]].
11.5 In order to rely on such a statement, it must fully satisfy the confidence of the court, since the person who made such a statement is no longer available for cross examination or clarification or for any such like activity.
11.5.1 In Madan v. State of Maharashtra [(2019) 13 SCC 464 [2 Judge Bench]], while referring to an earlier decision in Ram Bihari Yadav v. State of Bihar11 it was observed that a Court must rely on dying declaration if it inspires confidence in the mind of the court.
11.5.2 On a similar note, this Court in Panneerselvam v. State of T.N [(2008) 17 SCC 190 [3 Judge Bench]] has observed: –
“Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness.”
11.5.3 However, a note of caution has also been sounded. If such a declaration does not inspire confidence in the mind of the court, i.e., there exist doubts about the correctness and genuineness thereof, it should not be acted upon, in the absence of corroborative evidence.
11.5.3.1 In Paniben v. State of Gujarat [(1992) 2 SCC 474 [2 Judge Bench]] it was observed-
“The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination.”
A reference may also be made to K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 [2 Judge Bench]].
11.6 The Court must be satisfied that at the time of making such a statement, the deceased was in a “fit state of mind”. In Shama v. State of Haryana [(2017) 11 SCC 535 [2 Judge Bench]] a fit state of mind has been held to be a prerequisite, alongside the ability to recollect the situation and the state of affairs at that point in time in relation to the incident, to the satisfaction of the court.
11.6.1 In Uttam v. State of Maharashtra [(2022) 8 SCC 576 [2 Judge Bench]], it was discussed that it is for the court to determine, from the evidence available on record, the state of mind being fit or not.
11.6.2 In order to make a determination of the state of mind of the person making the dying declaration, the court ordinarily relies on medical evidence [(2008) 4 SCC 265 [2 Judge Bench] ]. However, equally, it has been held that if witnesses present, while the statement is being made, state that the deceased while making the statement was in a fit state of mind, such statement would prevail over the medical evidence [(2002) 6 SCC 710 [5 Judge Bench]] The statement of witnesses present prevailing over the opinion of the doctor has been reiterated in Uttam (supra).
11.6.3 It has also, however, been held in Laxman (supra) that the mere absence of a doctor’s certificate in regard to the “fit state of mind” of the dying declarant, will not ipso facto render such declaration unacceptable. This position had been once again recognised in Surendra Bangali @ Surendra Singh Routele v. State of Jharkhand [Criminal Appeal No. 1078 of 2010 [2 Judge Bench]].
11.7 In case of a plurality of such statements, it has been observed that it is not the plurality but the reliability of such declaration determines its evidentiary value. The principle as held in Amol Singh v. State of M.P [(2008) 5 SCC 468 [2 Judge Bench]] was: –
“……………………….”
11.7.1 Faced with multiple dying declarations, this Court in Lakhan v. State of M.P [(2010) 8 SCC 514[2 Judge Bench]] observed-
“……………………………..”
11.7.2 This Court, in Jagbir Singh v. State (NCT of Delhi) [(2019) 8 SCC 779 [2 Judge Bench]], in this respect, concluded as under: –
“………………….”
11.8 The presence of a Magistrate in recording of a dying declaration, is not a necessity but only a rule of Prudence. To this effect in Jayamma (supra), this Court observed:
“…law does not compulsorily require the presence of a judicial or executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by judicial or executive Magistrate. It is only a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a judicial or executive Magistrate so as to muster additional strength to the prosecution case.”
Referring to the Constitution bench in Laxman (supra) the principle of a dying declaration not necessarily to be recorded by a Magistrate stands reiterated in Rajaram v. State of Madhya Pradesh [2022 SCC OnLine SC 1733 [2 Judge Bench]].
11.9 Dying Declaration is not to be discarded by reason of its brevity is what is held in Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 [2 Judge Bench]].
11.9.1 It was observed in the State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 [2 Judge Bench]] that if the dying declaration, while being brief, contains essential information, the courts would not be justified in ignoring the same.
11.9.2 In fact, the Constitution bench in Laxman reiterated this principle, stating: –
“Marely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.”
11.10 Examination of the person who reduced into writing, the dying declaration, is essential. Particularly, in the absence of any explanation forthcoming for the production of evidence is what stands observed in Govind Narain v. State of Rajasthan [1993 Supp (3) SCC 343 [2 Judge Bench]].
11.10.1 In fact, in Kans Raj v. State of Punjab [(2000) 5 SCC 207 [3 Judge Bench]] it was held: –
“11. …To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.” and;
In Sudhakar v. State of Maharashtra [(2000) 6 SCC 671[3 Judge Bench]], this Court categorically observed: –
“5. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.”
11.11 The questions that a court must ask when dealing with a case concerning a dying declaration, as listed out by this Court in Irfan@Naka v. State of U.P. [2023 SCC Online SC 1060 [3-Judge Bench]] along with the principles culled out hereinabove form the complete gamut of consideration required on part of a court when deciding the weightage to be awarded to a dying declaration.
CIRCUMSTANTIAL EVIDENCE
- The law on circumstantial evidence, is well settled. The locus classicus on the issue is Sharad Birdhichand Sarda, (supra) which stands consistently followed up until very recently in Kamal v. State (NCT of Delhi) [2023 SCC OnLine SC 933 [2 Judge Bench]].
14.1 Illustratively, in Gargi v. State of Haryana [2019) 9 SCC 738 [2 Judge Bench]] this court has, referring to various earlier judgments, summarised the principles relating to circumstantial evidence. The principle, is that the sum total of circumstances, when examined should point to the guilt of the accused, while ruling out all other possible hypotheses including his innocence and absence of second party guilt. Further reference may be made to Indrajit Das v. State of Tripura [2023 SCC OnLine SC 201 [2 Judge Bench]] and Prakash Nishad v. State of Maharashtra [2023 SCC OnLine SC 666 [3 Judge Bench]].
APPRECIATION OF DYING DECLARATION
- Well then, who recorded the same?, What was his name?, What was his designation if he was a police personnel? remains unstated by her. Significantly, this witness also does not testify to the correctness or otherwise of the contents thereof. It was testified that at the time of recording of such statement “there were many persons around”. Who these persons were, is another aspect that remains unclear. Whether these persons were examined is unknown. The dying declaration was signed by thumb impression by the deceased but, it is not the case of the prosecution that the deceased was illiterate. The Doctor also does not state that the injured was in a condition to sign. Then why the thumb impression, remains a mystery casting a serious doubt about its authenticity or correctness of such declaration.
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The reason for the non-examination of the scribe, however, does not bear itself. Nowhere has it been stated, either by the trial court or the High Court that scribe could not be examined for which or what particular reason. In Sudhakar (supra) this Court has held that if the original dying declaration is lost and therefore not available, the prosecution could adduce secondary evidence in support thereof. The logical extension of such holding would be that, if the scribe, for reasons beyond control, such as incapacitation or death, would be unavailable, it would be open for the prosecution to take necessary aid of secondary evidence. That not being the case however, such unexplained non examination would, as a consequence of the holdings in Govind Narain (supra), Kans Raj (supra) and Sudhakar(supra), render the case to be doubtful if not, land a fatal blow to the prosecution case.
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It is trite in law that given the nature of a dying declaration, it is required that such statement be free from tutoring, prompting, or not be a product of imagination. But it has emanated from the statement of the Doctor, PW1, that at the time of the dying declaration being made, there were numerous people present near him. In such a case, can it be categorically ruled out that the statement made by the deceased, is free from tutoring or prompting?
OPEN PLACE DISCOVERY
- The next aspect is the recovery of the alleged weapons, we have noted the particulars thereof while discussing the findings of the Trial Court. Such recoveries were discarded by the trial court stating that the clubs were recovered from a place accessible to the public and, the chopper and the rods were recovered from a house where other persons were also residing which compromises the sanctity of such recovery and takes away from the veracity thereof.
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- Prima facie, in the present facts, the 3 conditions above appear to be met. However, the Trial Court held, given that the discoveries made were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made. We find this approach of the trial court to be correct.
27.1 This court has, in various judgments, clarified this position. Illustratively, in Jaikam Khan v. State of U.P [(2021) 13 SCC 716] it was observed: –
“One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan i.e. the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.”
27.2 Also, in Nikhil Chandra Mondal v. State of W.B. [(2023) 6 SCC 605] the Court held:-
“20. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra judicial confession.”
- As reflected from record, and in particular the testimony of PW-15 it is clear that the discoveries (stick as shown by A10, for instance) was a eucalyptus stick, found from the eucalyptus plantation, which indisputably, is a public place and was found a week later. A second and third stick purportedly found half kilometre away on that day itself, was found by a bush, once again, a place of public access. Two further sticks recovered at the instance A6 and A7, were also from public places. An iron chain produced from the house of A1 and A2, is not free from the possibility that any of the other occupants of their house were not responsible for it. We, further cannot lose sight of the fact that sticks, whether bamboo or otherwise, are commonplace objects in village life, and therefore, such objects, being hardly out of the ordinary, and that too discovered in places of public access, cannot be used to place the gauntlet of guilt on the accused persons.
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As a result, the acquittals handed down by judgment and order dated 25th September 2004 in S.C. No. 162 of 1999, passed by the Additional Sessions Judge- Presiding Officer, Fast Track Court-II, Kolar, are restored. The judgment of conviction and sentence, as awarded by the High Court, stands set aside.
Accused Acquitted.
Party
MANJUNATH & ORS vs. STATE OF KARNATAKA – CRIMINAL APPEAL NO. 866 OF 2011 – 6th November, 2023
https://main.sci.gov.in/supremecourt/2010/38010/38010_2010_8_1501_48072_Judgement_06-Nov-2023.pdf
