Full Judgment Text
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
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High Court of Karnataka, Bangalore, dated 4 December, 2007
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confirming the judgment of conviction and order of sentence
passed by the Fast Track (Sessions) Judge-III, Bangalore City,
th th
dated 26 October and 28 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
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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
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at about 10.30 p.m. in the night of 14 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
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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
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and the appellant and on 14 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
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14 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.
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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
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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
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the hospital on 15 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.
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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.
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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
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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.
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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
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lodging the FIR. The incident occurred at 7.45 p.m. on 14
February, 2003. People had gathered at the place of the incident
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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
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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.
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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
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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,
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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
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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
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day, i.e. 15 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
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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
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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,
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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
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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
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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
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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:
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(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.
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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.
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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,
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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
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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
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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
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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
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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)
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...….…………………......................J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
July 24, 2012
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