SUPREME COURT REITERATES FACTORS TO BE CONSIDERED FOR DETERMINING CREDIBILITY AND GENUINENESS OF DYING DECLARATION

A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Sanjay Karol passed a Judgment dated 06-11-2023 in the matter of Manjunath and Others Vs State of Karnataka, Criminal Appeal No. 866 of 2011 and reiterated the factors to be considered to determine the credibility of dying declaration, ocular evidence / testimony of eye-witness, circumstantial evidence, etc for basing conviction of accused.

Facts

i) In the present case, the Accused persons had allegedly grievously assaulted the Deceased- Byregowda and his brothers, T.V. Narayanaswamy (PW4), T.V. Gopalreddy (PW5), T.V. Rajanna (PW10) and Marappa (PW2), when the latter were working in their fields. Although immediate medical treatment was given to the Deceased at the Sidlaghatta General Hospital, Karnataka, but he succumbed to his injuries.

ii) Thereafter, the Police registered FIR being Crime No. 249/1997 dated 08-08-1997 against 29 Accused persons.

iii) The case was committed to the Ld. Court of Additional Sessions Judge – Presiding Officer, Fast Track Court II, Kolar (Trial Court).

iv) The Trial Court observed as follows:

a) The evidence was categorized into five heads – (1) ocular; (2) dying declaration; (3) circumstantial evidence; (4) recovery of incriminating material; and (5) motive.

b) The Prosecution Witnesses did not support the version of the Prosecution. Hence, the Trial Court did not rely on the ocular evidence.

c) The Sub-Inspector of Police had not recorded the dying declaration of the Deceased, rather one of his staff members had recorded the same, who was not examined as witness. Thus, the Trial Court did not rely on the Dying Declaration of the Deceased.

d) The eye witness- PW2 had not implicated any of the Accused in the circumstance relating to a mob approaching the fields. As per the other Prosecution Witness’s statements, it was the Deceased who told them that he was assaulted by the Accused, but nobody had actually witnessed the same. Hence, the Trial Court did not find ‘the web of circumstances to be unable to point “unerring, cogently and positively” to the guilt of the accused.’

e) Further, the weapons recovered by the Police at the instance of the Accused persons, were recovered from a place of common access. Also, the amount of injury that the weapons could have caused, could not have been caused as a result of the weapons that were supposedly recovered at the Accused person’s instance. “The Trial Court, therefore, concluded that the incriminating objects or weapons were not of any assistance in the case against the accused.”

f) Lastly, although there was some dispute between the Parties regarding the obstruction of a pathway, for which criminal prosecution was initiated against the Accused persons but the latter were eventually acquitted. Thus, the Trial Court concluded that the motive was absent.

v) Hence, the Trial Court passed an Order dated 25-09-2004 in C. No.162 of 1999 and acquitted all 29 Accused persons.

vi) Aggrieved, the State filed an Appeal in Criminal Appeal No. 1795 of 2004 before the High Court of Karnataka at Bangalore against the Trial Court Order of acquittal of all 29 Accused persons.

vii) The High Court observed that the Doctor who was treating the Deceased had certified that the latter was in a fit condition to give statement; the Dying Declaration that was corroborated by other Prosecution Witnesses was clear evidence against the Accused and the injuries sustained by the Deceased matched with the narration of the incident.

viii) Therefore, the High Court passed an Order dated 21-09-2010 and thereby, partly allowed the Appeal filed by the State. The High Court convicted A-1 to A-5 and A-7 (A-6 and A-8 were recorded to have died) for offences punishable under Sections 143 of the Indian Penal Code, 1860 (IPC) (Punishment), 144 IPC (Joining unlawful assembly armed with deadly weapon), 146 IPC (Rioting), 147 IPC (Punishment for rioting), 148 IPC (Rioting, armed with deadly weapon), 447 IPC (Punishment for criminal trespass), 324 IPC (Voluntarily causing hurt by dangerous weapons or means), 326 IPC (Voluntarily causing grievous hurt by dangerous weapons or means), 504 IPC (Intentional insult with intent to provoke breach of the peace) and 506 IPC (Punishment for criminal intimidation) read with Section 149 IPC (Every member of unlawful assembly guilty of offence committed in prosecution of common object) and sentenced each one of them to undergo rigorous imprisonment for a period of 4 years and pay a fine of Rs. 5000/- each.

Supreme Court Observations

Aggrieved by the High Court Order dated 21-09-2010, the Appellants-Accused, A-1 to A-5 and A-7 filed Criminal Appeal No. 866 of 2011 before the Supreme Court. The Apex Court passed an Order dated 06-11-2023 and made the following observations:

1) That Section 32 of the Evidence Act 1882 (Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant) relates to admissibility of a dying declaration and the principle underlying the same is that “a man will not meet his maker with a lie in his mouth”.

2) That Section 32 of the Evidence Act requires that the circumstances disclosed need to have some proximate relation to the actual occurrence and general expressions indicating fear or suspicion, not directly related to the occasion of the death, will not be admissible.

3) Further, “Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.”

4) Thus, the Supreme Court has in several cases held that a dying declaration that is corroborated may form the sole basis of conviction. Provided the Court is fully satisfied with the credibility and genuineness of such dying declaration and other evidence in the following ways:

(4.1) By satisfying itself about the fitness of mind of the person at the time of making the dying declaration, as the person who made such a statement is no longer available for cross-examination or clarification:

(i) The state of mind of the deceased at the time of making the dying declaration may be proved by medical evidence.

(ii) It may also be determined by the statement of witnesses present at the time when the deceased was making such statement.

(iii) A dying declaration may also be recorded in the presence of a Magistrate to muster additional strength to the prosecution case.

(4.2) If the dying declaration is brief but contains essential information, the Court may still consider the same and not merely ignore it by reason of its brevity.

(4.3) The person who reduced the dying declaration into writing may be examined.

(4.4) The person who heard the deceased making the statement may be examined.

(4.5) The testimony of an eye-witness including sole eyewitness / ocular evidence may be considered and if the court finds it as “wholly reliable”, then the court can base conviction thereupon.

5) In the present case, the Dying Declaration of the Deceased was made in the presence of the Doctor (PW-1) and the Sub-Inspector of Police (PW-19). However, it was unclear as to who reduced the same into writing. Furthermore, a thumb impression of the Deceased was affixed in the Dying Declaration, however, he was not an illiterate person and the Doctor also did not state that the Deceased was not in a condition to sign. Hence, there is a serious doubt about the authenticity and correctness of the Dying Declaration.

6) Further, the eye witness- PW2 had not witnessed any of the Accused assaulting the Deceased. Hence, the Bench held that PW-2’s status as an ocular witness / circumstantial witness in this case, is rendered questionable.

7) The statements of other Prosecution Witnesses were also found unreliable and not credible, as their testimonies differed / contradicted on material facts such as the number of persons who assaulted the Deceased, how they assaulted, etc.

8) Further, as per the Doctors’ testimony, the injuries caused to the Deceased, owing to which he died, could not have been caused as a result of the weapons that were supposedly recovered at the Accused person’s instance. Hence, the circumstantial evidence did not conclusively point towards the guilt of the Accused.

9) Furthermore, the Bench upheld the findings of the Trial Court that the weapon discoveries made by the Police, were either from a public place or from an area where other persons also resided, hence, reliance cannot be made on the said evidence to prove the guilt of the Accused.

Conclusion

Thus, based on the aforesaid observations, the Apex Court held that the Dying Declaration, the statements of Prosecution Witnesses, eye-witness, circumstantial evidences, etc were held unreliable and undependable in order to place reliance on the same to hold the Accused persons guilty of having committed an offence. As a result, the Appeals filed by the Appellants-Accused, A-1 to A-5 and A-7 was allowed and thereby, the Trial Court Order dated 25-09-2004 acquitting the Accused persons was upheld and the High Court Order dated 21-09-2010 convicting the Accused was set aside.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer