R.M Lodha, J.— 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 (Ext. P-22) recorded by the police on 17-8-2002 between 9.55 p.m and 10.20 p.m at K.R Hospital, Mandya triggered the prosecution of the appellants and one Swamy. Ext. 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 (Ext. P-5) on the basis of the above statement made by Pradeep which has become the 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 alias Bagaraju (A-1), Jaga alias Santhosh Kumar (A-2), S. Sathish alias Gunda (A-3), Muralidhar alias Gidda (A-4), Swamy alias Koshi (A-5) and Manju (A-6). The Magistrate concerned then committed the accused to the Court of Session for trial.
4. 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 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 eyewitnesses. Ext. 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 eyewitnesses PW 4, PW 5 and PW 15 have turned hostile to the case of the prosecution and have not supported the prosecution version at all. In the circumstances, the only evidence that has become significant is the dying declaration (Ext. P-22). The trial court by its judgment dated 28-9-2004 on consideration of the entire oral and documentary evidence reached the conclusion that the prosecution had failed to prove the offence against the accused persons and, accordingly, acquitted them.
6. The State of Karnataka preferred an appeal before the Karnataka High Court against the judgment of 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 Criminal Appeal No. 656 of 2005 maintained the acquittal of A-5 (Swamy) but convicted A-1 to A-4 and A-6 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 paras 16 and 17 which read 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 Ext. P-22, which is the dying declaration of the deceased has been recorded naturally and truthfully. PW 25 doctor has categorically stated that the injured was in a position to speak and give statement and further he has signed Ext. P-22. Under these circumstances, it could be gathered that PW 25, the Medical Officer was not only a person present when Ext. P-22 was recorded, but also asserted that the patient was in a position to give such statement. However, on a careful scrutiny of Ext. P-22, it is seen that the name of Swamy, Accused 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, Ext. P-22 is genuine and has been recorded by PW 30 Rajshekhar in the presence of PW 25 Dr Balakrishan when the deceased was in a 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 Ext. P-3 the accident register, it is clear that Ext. P-3 was brought into existence at 9.30 p.m and in Ext. P-3 it is mentioned that the assault was by six persons and the names of all the six persons are mentioned therein without any overwriting. The overwriting 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 Ext. 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 (Ext. P-22). The trial court on consideration of Ext. P-22 and the evidence of PW 25, PW 36 and PW 30 concluded that the time of recording Ext. P-22 did not inspire confidence and the credibility of Ext. P-22 had not been established to the satisfaction of the court and conviction cannot be based on Ext. 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 reappreciation of the evidence of PW 25, PW 30 and PW 36 and Ext. P-22.
10. Lord Russell in Sheo Swarup (1933-34) 61 IA 398, (1934) 40 LW 436, AIR 1934 PC 227 (2), highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said: (IA p. 404)
“… 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 Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh AIR 1952 SC 52, 1952 Cri LJ 331 while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed: (AIR p. 54, para 7)
“7. … 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 Kanu AIR 1954 SC 1, 1954 Cri LJ 225, Madan Mohan Singh AIR 1954 SC 637, 1954 Cri LJ 1656, Atley AIR 1955 SC 807, 1955 Cri LJ 1653, Aher Raja Khima AIR 1956 SC 217, 1956 Cri LJ 426, Balbir Singh AIR 1957 SC 216, 1957 Cri LJ 481, M.G Agarwal AIR 1963 SC 200, (1963) 1 Cri LJ 235, Noor Khan AIR 1964 SC 286, (1964) 1 Cri LJ 167, Khedu Mohton (1970) 2 SCC 450, Shivaji Sahabrao Bobade (1973) 2 SCC 793, Lekha Yadav (1973) 2 SCC 424, Khem Karan (1974) 4 SCC 603, Bishan Singh (1974) 3 SCC 288, Umedbhai Jadavbhai (1978) 1 SCC 228, K. Gopal Reddy (1979) 1 SCC 355, Tota Singh (1987) 2 SCC 529, Ram Kumar 1995 Supp (1) SCC 248, Madan Lal (1997) 7 SCC 677, Sambasivan (1998) 5 SCC 412, Bhagwan Singh (2002) 4 SCC 85, Harijana Thirupala (2002) 6 SCC 470, C. Antony (2003) 1 SCC 1, K. Gopalakrishna (2005) 9 SCC 291, Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415. 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 powers 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 demeanour 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 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 reappreciation 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 Lal (2008) 10 SCC 450, 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 Criminal Appeal No. 656 of 2005 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 eyewitnesses but they have turned hostile to the case of the prosecution. The first medical examination of the deceased Pradeep and so also the injured Umesha was done by PW 1 (Dr Latha) at about 9.30 p.m on 17-8-2002. She has not certified that Pradeep was in a 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 17-8-2002, 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 Ext. P-22 as dictated by PW 36 (PSI). Thus, Ext. 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 Ext. 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 overwriting with regard to the time written on Ext. P-22. The trial court also observed that 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. Then, in respect of Ext. 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.
17. On a very elaborate consideration of the entire evidence, the trial court was of the view that Ext. P-22 did not inspire confidence and the credibility of Ext. 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 Ext. P-22 and the deposition of PW 36, PW 25 and PW 30.
18. 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 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 overall consideration of the evidence of PW 25, PW 30 and PW 36 coupled with the fact that there was overwriting 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.
19. 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 Ext. 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.
20. Accordingly, the appeals are allowed. The impugned judgment Criminal Appeal No. 656 of 2005 is set aside. The judgment of the Court of Sessions Judge, Fast Track Court I at Mandya dated 28-9-2004 is restored. The appellants shall be set at liberty forthwith, if not required in any other case.