REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   180   OF 2002

S.P. Devaraju ...Appellant

Versus

State of Karnataka ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge 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.

2. Two  persons  faced  trial  in  the  aforesaid  sessions  case;  one  of  them

Dasegowda A2 died during the pendency of the trial.

3. Prosecution 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

2

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

3

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

4

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.

5

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.

Accordingly, the present appellant was convicted for offence punishable under

Section 304 Part II IPC and was sentenced to undergo five years imprisonment.

4. In 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.   

5. Learned 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 164)].   

6. This 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

6

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 evidence.

7. Though 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

7

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

9

reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State

of Maharashtra (1982 (1) SCC 700)]

8.  In 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).

9.  There 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.

10

10. It  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.

11. The plea that there was no service of notice is clearly without substance.

Records clearly show that notice was duly served.  

12. Above  being  the  position,  we  find  no  merit  in  the  appeal  which  is

accordingly dismissed.

.....................................................J. (Dr. ARIJIT PASAYAT)

......................................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 12, 2009

11