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                                                                               REPORTABLE

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.551 OF 2011

Muralidhar @ Gidda & Anr. … Appellants

    Versus

State of Karnataka             … Respondent

WITH

CRIMINAL  APPEAL NO.791 OF 2011

AND

CRIMINAL  APPEAL NO.1081 OF 2011

JUDGMENT   

R.M. LODHA, J.  

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These  three  criminal  appeals  arise  from  the  common  

judgment and, therefore, they were heard together and are being disposed  

of by the common judgment.

2. The statement (Ex.P-22) recorded by the police on 17.08.2002  

between 9.55 P.M. and 10.20 P.M. at K.R. Hospital, Mandya triggered the  

prosecution of the appellants and one Swamy.  Ex.P-22 is in Kannada,  

which in English translation reads:

“The statement of Pradeep son of Swamygowda, 28  years,  Vakkaligaru  by  community,  agriculturist  residing  at  Majigepura  village,  Srirangapatna  Taluk.  Today at about 8.30 p.m. night,  I was sitting in front  of shaving shop by the side of shop of Javaregowda  on K.R.S. – Majigepura Road along with Vyramudi,  Prakash  and  Umesh.   At  that  time  Naga,  S/o  Ammayamma,  Jagga  S/o  Sentu  Kumar’s  sister,  Gunda, Gidda, S/o Fishari  Nanjaiah, Swamy, Manju  and Hotte Ashoka and others who were having old  enmity assaulted me by means of chopper, long on  my hand, head, neck and on other parts of the body  with an intention to kill  me and they have assaulted  Umesh who was with me.  Vyramudi said do not kill  us and went away. Prakash ran away.  Please take  action against those who have attempted to kill me.”

3. After registration of the First Information Report (Exhibit P-5)  

on the basis of the above statement made by Pradeep which has become  

dying declaration in view of his death, the investigation commenced.  In the  

course of investigation, 37 witnesses were examined.  The investigating  

officer, on completion of investigation, submitted challan against Naga @  

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Bagaraju (A-1), Jaga @ Santhosh Kumar (A-2), S. Sathish @ Gunda (A-3),  

Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6).

4. The concerned Magistrate then committed the accused to the  

court  of  Sessions  for  trial.   The  Court  of  Sessions  Judge,  Fast  Track  

Court–I, Mandya conducted the trial  against A-1 to A-6 for the offences  

punishable under Sections 302, 307, 144, 148 read with Section 149 of the  

Indian Penal Code, 1860 (for short, “IPC”). The prosecution examined 37  

witnesses  of  which  PW-4  (Umesha),  PW-5  (Prakash)  and  PW-15  

(Vyramudi) were produced as eye-witnesses.  Exhibit P-22 is recorded by  

PW-30 (Rajashekar) on the oration of PW-36 (Kodandaram, PSI) in the  

presence of PW-25 (Dr. Balakrishna).  

5. The three eye-witnesses PW-4, PW-5 and PW-15 have turned  

hostile to the case of prosecution and have not supported the prosecution  

version at all.  In the circumstances, the only evidence that has become  

significant  is  the  dying  declaration  (Ex.P-22).   The  trial  court  by  its  

judgment  dated  28.09.2004  on  consideration  of  the  entire  oral  and  

documentary evidence reached the conclusion that prosecution had failed  

to  prove  the  offence  against  the  accused  persons  and,  accordingly,  

acquitted them.  

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6. The  State  of  Karnataka  preferred  an  appeal  before  the  

Karnataka  High  Court  against  the  judgment  of  the  Fast  Track  Court-I,  

Mandya acquitting the accused.   The High Court  on hearing the public  

prosecutor  and  the  counsel  for  the  accused  vide its  judgment  dated  

21.10.2010 maintained the acquittal of  A5 (Swamy) but convicted A1 to  

A4 and A6 for the offences under Section 302 read with Section 149 IPC  

and  sentenced  them  to  undergo  imprisonment  for  life  with  fine  and  

defaulting  sentence.   The  High  Court  has  also  convicted  them for  the  

offence under Section 148 IPC and they were sentenced to suffer rigorous  

imprisonment  for  one year.   Both sentences have been ordered to  run  

concurrently.  It is from this judgment that these appeals, by special leave,  

have arisen.  

7. The High Court has convicted the appellants on the basis of  

dying declaration alone, as in its view the dying declaration is credible and  

genuine.   In  this  regard,  the  reasoning  of  the  High  Court  is  broadly  

reflected in paragraphs 16 and 17 which reads as follows:

“16. Having  heard  both  sides  and  carefully  gone  through  the  evidence  of  the  witnesses  and  on  reappreciation of the evidence we find that Ex. P22  which is the dying declaration of the deceased has  been  recorded  naturally  and  truthfully.  PW25  –  Doctor has categorically stated that the injured was  in a position to speak and give statement and further  he has signed Ex.P.22.  Under these circumstances,  it could be gathered that PW25 – the Medical Officer  

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was not only a person present when Ex. P.22 was  recorded, but also asserted that the patient was in a  position  to  give  such  statement.   However,  on  a  careful scrutiny of Ex.P.22, it is seen that the name  of  Swamy  –  Accused  No.5  has  been  added  subsequently and there is no initial of any officer by  the side of the name of Swamy and the colour of the  ink differs from the other handwriting.  In view of the  foregoing  discussions  we  hold  that  the  dying  declaration  of  deceased  Pradeep  –  Ex.  P.22  is  genuine  and  has  been  recorded  by  PW30  –  Rajshekhar  in  the  presence  of  PW25  –  Dr.  Balakrishan when the deceased was in fit condition  to give statement and hence, a conviction can be  based on the said dying declaration.  

17. So  far  as  the  capacity  of  the  deceased  to  narrate  the  incident  regarding  the  cause  of  his  injuries  is  concerned,  on  perusal  of  Ex.  P.3  the  accident register it is clear that Ex.P.3 was brought  into  existence  at  9.30  p.m.  and  in  Ex.P3  it  is  mentioned that the assault was by six persons and  the  names  of  all  the  six  persons  are  mentioned  therein without any over writing.  The over writing  pertains only to the presence of Vyramudi and it is  the  contention  of  the  learned  counsel  for  the  accused that over the name of Vyramudi name of  Pradeep is written.  In Ex.P.23 – requisition letter it  is  seen  that  signature  of  Vyramudi  is  separately  taken  by  the  doctor  as  brought  by  him  and,  therefore,  the  presence  of  either  Vyramudi  or  Pradeep  in  the  hospital  at  the  time  when  the  deceased  was  brought  to  the  hospital  cannot  be  disputed at all.”

8. The trial Court, however, held that it was not safe to act on the  

dying declaration (Ex.P-22).  The trial court on consideration of Ex.P-22  

and the evidence of PW-25, PW-36 and PW-30 concluded that the time of  

recording Ex. P-22 did not inspire confidence and the credibility of Exhibit  

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P-22  had  not  been  established  to  the  satisfaction  of  the  court  and  

conviction cannot be based on Exhibit P-22 and the deposition of PW-36,  

PW-25 and PW-30.   

9. The only  question that arises for our consideration in these  

appeals is, whether the High Court was justified in upsetting the view of the  

trial court on re-appreciation of the evidence of PW-25, PW-30 and PW-36  

and Exhibit P-22.

10. Lord Russell in Sheo Swarup1, highlighted the approach of the  

High  Court  as  an  appellate  court  hearing  the  appeal  against  acquittal.  

Lord Russell said, “… the High Court should and will always give proper  

weight and consideration to such matters as (1) the views of the trial Judge  

as to the credibility of the witnesses; (2) the presumption of innocence in  

favour of the accused, a presumption certainly not weakened by the fact  

that he has been acquitted at his trial; (3) the right of the accused to the  

benefit  of  any  doubt;  and  (4)  the  slowness  of  an  appellate  court  in  

disturbing a finding of fact arrived at by a Judge who had the advantage of  

seeing the witnesses.”  The opinion of the Lord Russell has been followed  

over the years.    

1 Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227]  

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11. As  early  as  in  1952,  this  Court  in  Surajpal  Singh2  while  

dealing with the powers of the High Court in an appeal against acquittal  

under Section 417 of the Criminal Procedure Code observed,  “……….the  

High Court has full power to review the evidence upon which the order of  

acquittal was founded, but it is equally well settled that the presumption of  

innocence of the accused is further reinforced by his acquittal by the trial  

court, and the findings of the trial court which had the advantage of seeing  

the witnesses and hearing their evidence can be reversed only for very  

substantial and compelling reasons.”

12. The  approach  of  the  appellate  court  in  the  appeal  against  

acquittal  has  been  dealt  with  by  this  Court  in  Tulsiram Kanu3,  Madan  

Mohan Singh4, Atley5 , Aher Raja Khima6, Balbir Singh7, M.G. Agarwal8,   

Noor Khan9, Khedu Mohton10, Shivaji Sahabrao Bobade11, Lekha Yadav12,   

Khem Karan13, Bishan Singh14, Umedbhai Jadavbhai15, K. Gopal Reddy16,   

2 Surajpal Singh v. State; [AIR 1952 SC 52]  3 Tulsiram Kanu v. State;[AIR 1954 SC 1] 4 Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637] 5 Atley v. State of U.P.; [AIR 1955 SC 807] 6 Aher Raja Khima v. State of Saurashtra;   [AIR 1956 SC 217] 7 Balbir Singh v. State of Punjab; [AIR 1957 SC 216] 8  M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200] 9 Noor Khan v. State of Rajasthan; [AIR 1964 SC 286] 10 Khedu Mohton v. State of Bihar;  [(1970) 2 SCC 450],    11 Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793] 12 Lekha Yadav v. State of Bihar;  [(1973) 2 SCC 424] 13 Khem Karan v. State of U.P.; [(1974) 4 SCC 603] 14 Bishan Singh v. State of Punjab; [(1974)  3 SCC 288]  15 Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228] 16 K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355]

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Tota Singh17, Ram Kumar18, Madan Lal19, Sambasivan20, Bhagwan Singh21,   

Harijana  Thirupala22,  C.  Antony23,  K.  Gopalakrishna24,  Sanjay  Thakran25  

and Chandrappa26.   It  is  not  necessary  to  deal  with  these  cases  

individually.  Suffice it to say that this Court has consistently held that in  

dealing with appeals  against  acquittal,  the appellate  court  must  bear in  

mind the following: (i) There is presumption of innocence in favour of an  

accused person and such presumption  is  strengthened by the order  of  

acquittal passed in his favour by the trial court, (ii) The accused person is  

entitled to the benefit of reasonable doubt when it deals with the merit of  

the appeal against acquittal,   (iii) Though, the power of the appellate court  

in considering the appeals against acquittal are as extensive as its powers  

in appeals against convictions but the appellate court is generally loath in  

disturbing the finding of fact recorded by the trial court.  It is so because  

the trial court had an advantage of seeing the demeanor of the witnesses.  

If  the  trial  court  takes  a  reasonable  view  of  the  facts  of  the  case,  

interference by the appellate court  with the judgment  of  acquittal  is  not  

17 Tota Singh v. State of Punjab [(1987) 2 SCC 529] 18  Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248] 19 Madan Lal v. State of J&K;  [(1997) 7 SCC 677] 20 Sambasivan v. State of Kerala; [(1998) 5 SCC 412]  21 Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85]  22 Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002) 6 SCC 470] 23 C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1] 24  State of Karnataka v. K. Gopalakrishna;  [(2005) 9 SCC 291] 25 State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755]  26 Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]

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justified.  Unless, the conclusions reached by the trial court are palpably  

wrong or based on erroneous view of the law or if such conclusions are  

allowed to stand, they are likely to result in grave injustice,  the reluctance  

on the part of the appellate court in interfering with such conclusions is fully  

justified,  and (iv)  Merely  because the appellate court  on re-appreciation  

and  re-evaluation  of  the  evidence  is  inclined  to  take  a  different  view,  

interference with the judgment of acquittal is not justified if the view taken  

by the trial court is a possible view.  The evenly balanced views of the  

evidence must not result in the interference by the appellate court in the  

judgment of the trial court.

13. In Ghurey Lal27, the Court has culled out the principles relating  

to the appeals from a judgment of acquittal which are in line with what we  

have observed above.

14. Now, we shall examine whether or not the impugned judgment  

whereby the High Court interfered with the judgment of acquittal is justified.

15.              Of the 37 witnesses examined by the prosecution, PW-4, PW-

5 and PW-15 are the eye-witnesses but they  have turned hostile to the  

case  of  prosecution.    The  first  medical  examination  of  the  deceased  

Pradeep and so also the injured Umesha was done by PW1 (Dr. Latha) at  

about 9.30 P.M. on 17.08.2002.  She has not certified that Pradeep was in  

27 Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450]

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fit state to make any statement. PW-25 (Dr. Balakrishna) at the relevant  

time was Assistant Professor of Surgery at K.R. Hospital where deceased  

Pradeep was taken immediately after the incident.  At about 9.40 p.m. on  

17.08.2002,  PW-36 (Kodandaram, PSI) gave a memo to PW-25 stating  

that one patient (Pradeep) was admitted in the hospital and requested him  

to verify as to whether the patient was in a position to give statement.   In  

his cross-examination,  PW-25 has stated that at  9.35 P.M., he saw the  

patient (Pradeep) when he was kept in operation theatre of casualty for  

emergency treatment.  He has also deposed that a group of doctors was  

providing treatment to him.  His deposition does not establish that Pradeep  

was  under  his  treatment.  The  recording  of  Pradeep’s  statement  by  a  

constable (PW-30) as dictated by PW-36 (PSI) in this situation raises many  

questions.  The trial court found this absurd.  It is the prosecution version  

that  PW-30 has recorded Ex.P-22  as dictated by PW-36 (PSI).   Thus,  

Ex.P-22  is  not  in  actual  words  of  the  maker.   The  trial  court  in  this  

background carefully considered the evidence of PW-25, PW-30 and PW-

36 along with  Ex.P-22.   The trial  court  has noted  that  PW-25 failed to  

confirm in his testimony that he was treating deceased Pradeep when he  

was brought to the hospital.  Moreover, PW-25 admitted over-writing with  

regard to the time written on Ex.P-22.  The trial court also observed that  

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though there was lot of bleeding injuries found on the person of Pradeep,  

PW-25 did not say anything about the quantity of loss of blood.

16. Dealing  with  the  testimony  of  PW-30,  the  trial  court  has  

observed that in his cross-examination, he has admitted that he did not  

record the statement in the words of the maker (Pradeep) but wrote the  

statement  as  dictated  by  PW-36.   Moreover,  PW-30  in  his  cross-

examination had admitted that at the time Pradeep was attended to by the  

doctors, he was not inside.

17. Then, in respect of Ex.P-22, the trial court observed that the  

names of accused Gunda (A-3) and Swamy (A-5) appear to have been  

inserted in different ink later on.

18. On a very elaborate consideration of the entire evidence, the  

trial court was of the view that Ex.P-22 did not inspire confidence and the  

credibility of Ex.P-22 has not been established to the satisfaction of the  

court.   Accordingly,  the  trial  court  held  that  conviction  of  the  accused  

persons cannot be based on Ex.P-22 and the deposition of PW-36, PW-25  

and PW-30.

19. The  sanctity  is  attached  to  a  dying  declaration  because  it  

comes  from the  mouth  of  a  dying  person.   If  the  dying  declaration  is  

recorded not directly from the actual words of the maker but as dictated by  

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somebody else, in our opinion, this by itself creates a lot of suspicion about  

credibility of such statement and the prosecution has to clear the same to  

the satisfaction of the court.  The trial court on over-all consideration of the  

evidence of PW-25, PW-30 and PW-36 coupled with the fact that there  

was over-writing about the time at which the statement was recorded and  

also insertion of two names by different ink did not consider it safe to rely  

upon the dying declaration and acquitted the accused for want of any other  

evidence.  In the circumstances, in our view, it cannot be said that the view  

taken by  the  trial  court  on the  basis  of  evidence  on  record  was  not  a  

possible view. The accused were entitled to the benefit of doubt which was  

rightly given to them by the trial court.

20. The High Court on consideration of the same evidence took a  

different view and interfered with the judgment of acquittal without properly  

keeping  in  mind  that  the  presumption  of  innocence  in  favour  of  the  

accused has been strengthened by their acquittal from the trial court and  

the view taken by the trial court as to the credibility of Ex.P-22 and the  

evidence of PW-25, PW-30 and PW-36 was a possible view.  The High  

Court while upsetting the judgment of acquittal  has not kept in view the  

well  established  principles  in  hearing  the  appeal  from the  judgment  of  

acquittal.

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21. Accordingly,  the appeals are allowed.   The impugned  

judgment is set aside.  The judgment of the court of Sessions Judge, Fast  

Track Court–I  at Mandya dated 28.09.2004 is restored.  The appellants  

shall be set at liberty forthwith, if not required in any other case.         

…..………………………….J. (R.M. Lodha)

…..………………………….J. (Shiva Kirti Singh)

New Delhi, April 09, 2014.

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