S.P. Devaraju Vs.
State Of Karnataka  INSC 304 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 180 OF 2002 S.P.
Devaraju ...Appellant Versus State of Karnataka ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Karnataka High
Court allowing the State's appeal and setting aside the judgment of acquittal
passed by learned Additional Sessions Judge, Hassan, in ASE No. 54 of 1988. The
High Court held the appellant guilty and convicted him for offence punishable
under Section 304 part II of the Indian Penal code, 1860 (for short IPC.
persons faced trial in the aforesaid sessions case; one of them Dasegowda A2
died during the pendency of the trial.
version in a nutshell is as follows:
A-1 and A-2 were
close friends. A-2 and one Channegowda (PW5) of A. Guduganahally had land
disputes. A2 belongs to Dasarakoppalu, Hassan taluk and A-1 is from Salagame,
Hassan Taluk. Panchayat was held in the house of M.Raju (CW-17) S/o M.L.
Annappa, a cloth merchant, New line road, Hassan, in respect of the said land
dispute. But there was still ill-will between them in spite of the settlement
in the panchayat. C.B. Nagendra (PW1) who was a member of the mandal panchayat
and residing at Hassan is a friend of A-1 as well as deceased Puttaraju. On
1.2.1988 the deceased Puttaraju went to the house of PW1 at about 7 p.m. He
asked PW1 to accompany him to Bazar, Hassan. Both of them went towards Hassan
bus stand. A1 was present there. A1 told to PW1 that persons belonging to
Sachin Liquor shop had made a mistake and asked them to accompany them. PW1,
A-1 and the deceased went to Sachin Liquor shop and there they were told that
A-1 demanded free liquor and had created nuisance. Then PW1 scolded A-1 himself
and then all of them were returning from the said shop. Then they came near
`Shobha Liquors'. A-1 told PW1 and deceased that he would give a party to them.
They went to `Shobha Liquors'.
PW-2 was a vendor in
Shobha Liquors. PW3 Puttaraju was working as cashier.
Then A-1 ordered for
one bottle of rum. 180 ML of rum was supplied and all the three consumed it.
Further, A1 ordered for 90 ML of Rum and again for 60 ML of rum and he consumed
it. The deceased Puttaraju who belonged to A. Guduganahalli said that he had to
go to the village as it was late. A-1 told him that he would take him to his
village even at 1 a.m. and not to worry. Then the deceased Puttaraju said that
he had a room at Hassan and they could go there. A- 1 paid the bill of Rs.39.75
and they went to that room in the Housing Board colony. The other portion of
the building was let out to a tenant. After reaching the room at about 10 pm.
A-1 removed his shoes and he invited the deceased to come along with him as he
wanted to ease himself. PW-1 remained in that room and A-1 and the deceased
went out and within 5 minutes, the deceased Puttaraju came to the room holding
his stomach and he had two knife injuries one on the right side of the stomach
and the other on the right nipple. Then the deceased said that A1 told him
Dasegowda (A2) had sent him to finish him. The deceased was immediately taken
in a rickshaw by PW-1 to S.C. Hospital, Hassan. While he was bringing him in
the auto, the deceased pointed out a drainage situated near the house of one
Advocate stating, that, that was the place of occurrence. At the S.C. Hospital,
Dr.N.L. Viswanatha (PW11) who was working as medical officer at Hassan,
examined and treated the deceased and he found two injuries. He issued the
wound certificate as per Ex.P-8. He gave intimation to the Extension Police
Station about the injured as per intimation Slip Ex.P-9. He also referred the
patient to the surgeon. Dr. Puttaraju (PW-18) also examined the injured. S.B.
Abdul Rawoof (PW-15) Head Constable 58 who was working at Extension Police
Station and who was in charge of the police station at that time, immediately
rushed to the hospital on getting intimation and in the presence of PW11, he
recorded the statement of the injured. He returned to the police station and
registered a case in Cr.No.16/88 for the offence under Section 307 IPC. He has
produced the bloodstained cloth of the injured before the PSI R. Puttaswamaiah
(PW17). PW17 took up further investigation and he seized the bloodstained shirt
MO-4 as per the panchanama Ex.P-16. Shivanna (PW-16) is a witness to this
panchanama which is drawn on 2.2.1988 from 7.15 a.m. to 7.45 a.m. in the police
station. The case sheet regarding the injured is as per Ex.P-18. PW1 after
admitting the injured to the hospital went to the village of the deceased i.e.,
A Guduganahalli which is at a distance of 29 KMs. from Hassan and he reached
the village at about 12 0' clock in the midnight. He informed the parents and
brother of the deceased about the incident. PW1 and 5, father of the deceased
came to Hassan and on the doctor's advice they shifted the injured in a car to
Bangalore and admitted him in Victoria hospital at about 6 a.m. PW5 told PW1 that
he would bring his daughter and son-in-law who were at Bangalore.
Jayamma(PW4)is a daughter of PW5 and sister of the deceased. She resides at
Bangalore with her husband. PW5 went and informed her about the incident. PW4
also came to the hospital. The deceased after regaining consciousness, told PW4
and PW5 that A-1 told him that because of the land dispute between PW5 and A-2
he had come to finish him. The deceased succumbed to the injures on 5.2.88 at
about 2 a.m. Dr.S.B. Patil (PW13) who was working as Lecturer in the Department
of Forensic Medicines in BMC College attached to Victoria Hospital received the
dead body along with requisition from the Victoria hospital police through
Nagaiah (PW 9) who was police constable 7623, to conduct post mortem. He
conducted post mortem from 11.15 am to 1.15 pm. He has issued his report as per
Ex.P-11. Ex.P-12 is the requisition along with particulars as per Ex.P.13.
Subsequently inquest proceeding was conducted. PW 14 is one of the witnesses to
the inquest panchanama Ex.P-14.
After completion of
investigation charge sheet was filed. As the accused persons pleaded innocence
trial was held. As noted above, A2 died during trial.
The trial court found
the evidence to be inadequate and therefore directed acquittal.
In appeal, the High
Court found that the analysis done by the trial court was erroneous and the
conclusions were based on presumptions and surmises.
present appellant was convicted for offence punishable under Section 304 Part
II IPC and was sentenced to undergo five years imprisonment.
support of the appeal learned counsel for the appellant submitted that the
appeal was disposed of without service of notice on the appellant. The evidence
of PW 1 is at variance with the dying declaration (Exh. P. 10). The magistrate
should have recorded the dying declaration. The head constable (PW 15) should
not have recorded the dying declaration.
counsel for the respondent-State, on the other hand, supported the judgment. So
far as the dying declaration is concerned there is no requirement that it
should be recorded only by a magistrate. This position has been reiterated by
this Court in several cases. [See: Ramawati Devi v. State of Bihar (AIR 1983 SC
is a case where the basis of conviction of the accused is the dying
declaration. The situation in which a person is on the deathbed is so solemn
and serene when he is dying that the grave position in which he is placed, is
the reason in law to accept the veracity of his statement. It is for this
reason that the requirements of oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded it will result in miscarriage
of justice because the victim being generally the only eyewitness in a serious
crime, the exclusion of the statement would leave the court without a scrap of
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 a nature as to
inspire full confidence of the court in its correctness. The court has to be on
guard that the statement of the deceased was not as a result of either
tutoring, or prompting or a product of imagination. The court must be further
satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary, undoubtedly, it can base its
conviction on the same without any further corroboration. It cannot be laid
down as an absolute rule of law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. This Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as under as
indicated in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp. 480-81,
paras 18-19) (i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. [See: Munnu Raja v.
State of M.P.(1976 (3) SCC 104)] (ii) If the court is satisfied that the dying
declaration is true and voluntary it can base conviction on it, without
corroboration. (See: State of U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and
Ramawati Devi v. State of Bihar 1983(1) SCC 211)) (iii) The court has to
scrutinise the dying declaration carefully and must ensure that the declaration
is not the result of tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in a fit state to
make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor(1976(3)
SCC 618)]) (iv) Where a dying declaration is suspicious, it should not be acted
upon without corroborative evidence. [See: Rasheed Beg v. State of M.P. (1974(4)
SCC 264)] (v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected. [See: Kake Singh
v. State of M.P.(1981 Supp. SCC 25)] 8 (vi) A dying declaration which suffers
from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State
of U.P.(1981(2)SCC 654] (vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be rejected. (See State
of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC 455)] (viii)
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth. [See:
Surajdeo Ojha v. State of Bihar (1980 Supp.SCC 769)] (ix) Normally, 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 eyewitness
said that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of
M.P.(1988 Supp. SCC 152)] (x) Where the prosecution version differs from the
version as given in the dying declaration, the said declaration cannot be acted
upon. [See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)] (xi) Where there
are more than one statements in the nature of dying declaration, the one first
in point of time must be preferred. Of course, if the plurality of the dying
declaration could be held to be trustworthy and reliable, it has to be
accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC
the light of the above principles, the acceptability of the alleged dying
declaration in the instant case has to be considered. The dying declaration is
only a piece of untested evidence and must, like any other evidence, satisfy
the court that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce the deceased to make a false
statement and if it is coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even if there is no
corroboration. (See Gangotri Singh v. State of U.P.(1993 Supp(1)SCC 327).
is no material to show that the dying declaration was the result or product of
imagination, tutoring or prompting. On the contrary, the same appears to have
been made by the deceased voluntarily. It is trustworthy and has credibility.
is not correct as contended by learned counsel for the appellant that evidence
of PW 1 is at variance with the dying declaration. As a matter of fact, the
dying declaration refers to one of the parts of the incident as described by
PW1. Even otherwise the dying declaration clearly implicates the accused
appellant. To add to that is the recovery of the weapon of assault.
Unfortunately, the trial court did not discuss the evidence relating to
recovery and discarded the same without indicating any reason. There was no
discussion by the trial court to discard the dying declaration.
plea that there was no service of notice is clearly without substance.
Records clearly show
that notice was duly served.
being the position, we find no merit in the appeal which is accordingly
(Dr. ARIJIT PASAYAT)