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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  

High Court of Karnataka, Bangalore, dated 4th December, 2007  

confirming the judgment of conviction and order of sentence  

passed by the Fast Track (Sessions) Judge-III, Bangalore City,  

dated 26th October and 28th 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  

at about 10.30 p.m. in the night of 14th 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  

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 14th 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  

14th 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.  

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  

the hospital on 15th 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.

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  

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  

lodging the FIR.  The incident occurred at 7.45 p.m. on 14th  

February, 2003.   People had gathered at the place of the incident  

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.

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,  

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  

day, i.e. 15th 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  

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  

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:

(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.

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 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  

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)    

...….…………………......................J. (Fakkir Mohamed Ibrahim Kalifulla)  

New Delhi, July 24, 2012

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