# CASE DETAILS MANJUNATH & ORS v. STATE OF KARNATAKA

- **Citation:** 2023 INSC 978
- **Court:** Supreme Court of India
- **Decided:** 2023-11-06
- **Case number:** Criminal Appeal No. 866 of 2011
- **Bench:** Abhay S. Oka, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-manjunath-ors-v-state-of-karnataka-36692
- **Pages:** 34

## Headnote

Issue for consideration: In a case primarily involving a dying
declaration in addition to the ocular and circumstantial evidence, the Trial
Court acquitted the appellants-accused along with other accused persons,
whether the High Court was justifi ed in overturning the same in respect of
the appellants.
Evidence - Dying declaration - Reliance upon in addition to the
ocular and circumstantial evidence - Legality:
Held: The dying declaration, although undoubtedly a substantive
piece of evidence upon which reliance can be placed, in the present facts is
rendered nugatory as the person who took down such declaration was not
examined, nor did the police offi cer (PW19) endorse the said document with
details of who took down the declaration - Examination of the person who
reduced into writing, the dying declaration, is essential - Particularly, in
the absence of any explanation forthcoming for the production of evidence
- Given the nature of a dying declaration, it is required that such statement
be free from tutoring, prompting, or not be a product of imagination - But
it has emanated from the statement of the Doctor, PW1, that at the time of
the dying declaration being made, there were numerous people present near
him - It is also not clear as to in front of which of the relatives of deceased
was the same taken down - Further, the circumstantial evidence present
on record also does not point to the hypothesis of the guilt of the accused
persons - None of the eyewitnesses-PWs 2, 3, 15, as referred to by the
trial court succeeded in attributing a particular role to any of the accused
728
SUPREME COURT REPORTS
[2023] 14 S.C.R.
persons and equally so, to the appellants, whose acquittals were overturned
by the High Court - View taken by the Trial Court was a possible view and
there being no error in appreciation of evidence as also application of law;
the High Court without assigning any cogent reasons ought not to have
interfered with such fi ndings - Impugned judgment set aside - Acquittal
restored - However, since the sentence awarded by the High Court u/s.304
Part II was for 4 years, and the application of exemption from surrender
was disallowed by this Court in 2010, the Appellants appear to have already
served the sentence awarded to them - Fine made payable by each of the
accused, as a result of the impugned judgment be refunded - Bail bonds
discharged - Penal Code, 1860 - ss.143, 144, 146, 147, 148, 304 Part II,
324, 326, 447, 504 and 506 r/w s.149. [Paras 11.10, 20, 29.1-29.3, 30, 31]
Evidence - Ocular evidence:
Held: Ocular evidence fares better than other kinds of evidence and
is considered evidence of a strong nature - The principle is that if the
eyewitness testimony is "wholly reliable", then the court can base conviction
thereupon - This applies even in cases where there is a sole eyewitness - In
the present case, the testimonies of the prosecution witnesses are found to
be unreliable, unworthy of credence - The testimonies diff er on essential
material facts, such as the number of persons, how the accused came to lay
where he did, when discovered etc. - None of these witnesses, eye-witnesses
as they may be, to have established beyond reasonable doubt, the guilt of
the accused persons - There is a contradiction in testimonies in regard
to the number of persons who formed part of the unlawful assembly - A
testimony cannot be given value, in isolation - For an eye-witness to be
believed, his evidence should be of sterling quality - It should be capable
of being taken at face value - Numerous contradictions and inconsistencies
have borne from record, rendering prosecution witnesses to be unreliable
and undependable so as to place reliance on the same to hold the accused
persons guilty of having committed an off ence. [Paras 12, 21.8, 21.12, 22]
Evidence - Dying declaration - Principles in regard to - Discussed.
Evidence Act, 1872 - s.27:
Held: Discovery made, to be one satisfying the requirements of s.27,
must be a fact t

## Text

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[2023] 14 S.C.R. 727 : 2023 INSC 978
727
 CASE DETAILS
MANJUNATH & ORS.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 866 of 2011)
NOVEMBER 06, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: In a case primarily involving a dying
declaration in addition to the ocular and circumstantial evidence, the Trial
Court acquitted the appellants-accused along with other accused persons,
whether the High Court was justifi ed in overturning the same in respect of
the appellants.
Evidence - Dying declaration - Reliance upon in addition to the
ocular and circumstantial evidence - Legality:
Held: The dying declaration, although undoubtedly a substantive
piece of evidence upon which reliance can be placed, in the present facts is
rendered nugatory as the person who took down such declaration was not
examined, nor did the police offi cer (PW19) endorse the said document with
details of who took down the declaration - Examination of the person who
reduced into writing, the dying declaration, is essential - Particularly, in
the absence of any explanation forthcoming for the production of evidence
- Given the nature of a dying declaration, it is required that such statement
be free from tutoring, prompting, or not be a product of imagination - But
it has emanated from the statement of the Doctor, PW1, that at the time of
the dying declaration being made, there were numerous people present near
him - It is also not clear as to in front of which of the relatives of deceased
was the same taken down - Further, the circumstantial evidence present
on record also does not point to the hypothesis of the guilt of the accused
persons - None of the eyewitnesses-PWs 2, 3, 15, as referred to by the
trial court succeeded in attributing a particular role to any of the accused
728
SUPREME COURT REPORTS
[2023] 14 S.C.R.
persons and equally so, to the appellants, whose acquittals were overturned
by the High Court - View taken by the Trial Court was a possible view and
there being no error in appreciation of evidence as also application of law;
the High Court without assigning any cogent reasons ought not to have
interfered with such fi ndings - Impugned judgment set aside - Acquittal
restored - However, since the sentence awarded by the High Court u/s.304
Part II was for 4 years, and the application of exemption from surrender
was disallowed by this Court in 2010, the Appellants appear to have already
served the sentence awarded to them - Fine made payable by each of the
accused, as a result of the impugned judgment be refunded - Bail bonds
discharged - Penal Code, 1860 - ss.143, 144, 146, 147, 148, 304 Part II,
324, 326, 447, 504 and 506 r/w s.149. [Paras 11.10, 20, 29.1-29.3, 30, 31]
Evidence - Ocular evidence:
Held: Ocular evidence fares better than other kinds of evidence and
is considered evidence of a strong nature - The principle is that if the
eyewitness testimony is "wholly reliable", then the court can base conviction
thereupon - This applies even in cases where there is a sole eyewitness - In
the present case, the testimonies of the prosecution witnesses are found to
be unreliable, unworthy of credence - The testimonies diff er on essential
material facts, such as the number of persons, how the accused came to lay
where he did, when discovered etc. - None of these witnesses, eye-witnesses
as they may be, to have established beyond reasonable doubt, the guilt of
the accused persons - There is a contradiction in testimonies in regard
to the number of persons who formed part of the unlawful assembly - A
testimony cannot be given value, in isolation - For an eye-witness to be
believed, his evidence should be of sterling quality - It should be capable
of being taken at face value - Numerous contradictions and inconsistencies
have borne from record, rendering prosecution witnesses to be unreliable
and undependable so as to place reliance on the same to hold the accused
persons guilty of having committed an off ence. [Paras 12, 21.8, 21.12, 22]
Evidence - Dying declaration - Principles in regard to - Discussed.
Evidence Act, 1872 - s.27:
Held: Discovery made, to be one satisfying the requirements of s.27,
must be a fact that is discovered as a consequence of information received
729
MANJUNATH & ORS. v. STATE OF KARNATAKA
from a person in custody - In the present case, the Trial Court held, given
that the discoveries made were either from a public place or from an area
where other persons also resided, reliance thereupon, could not be made -
This approach of the trial court is correct. [Paras 26, 27]
Code of Criminal Procedure, 1973 - s.378:
Held: In the present case, the High Court did not appreciate the severity
of the allegations involved to the full extent - A Court of Appeal should be
circumspect in overturning its judgment of acquittal - An acquittal will only
be overturned in the presence of very compelling reasons - Presumption
of innocence in favour of the accused is bolstered if the trial court hands
down an acquittal. [Para 32]
LISTS OF CITATIONS AND OTHER REFERENCES
Laxman v. State of Maharashtra (2002) 6 SCC 710 - followed.
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116:
[1985] 1 SCR 88 - relied on.
Khushal Rao v. State of Bombay AIR 1958 SC 22: 1[958] SCR 552;
Suresh Chandra Jana v. State of West Bengal (2017) 16 SCC 466: [2017] 13
SCR 1; Jayamma v. State of Karnataka (2021) 6 SCC 213; Madan v. State
of Maharashtra (2019) 13 SCC 464: [2018] 4 SCR 1003; Ram Bihari Yadav
v. State of Bihar (1998) 4 SCC 517: [1998] 2 SCR 1097; Panneerselvam
v. State of T.N (2008) 17 SCC 190: [2008] 8 SCR 962; Paniben v. State of
Gujarat (1992) 2 SCC 474: [1992] 2 SCR 197; K. Ramachandra Reddy v.
Public Prosecutor (1976) 3 SCC 618: [1976] Suppl. SCR 542; Shama v.
State of Haryana (2017) 11 SCC 535: [2016] 11 SCR 857; Uttam v. State
of Maharashtra (2022) 8 SCC 576; Sher Singh & Anr. vs. State of Punjab
(2008) 4 SCC 265: [2008] 2 SCR 959; Surendra Bangali @ Surendra
Singh Routele v. State of Jharkhand Criminal Appeal No. 1078 of 2010;
Amol Singh v. State of M.P (2008) 5 SCC 468: [2008] 8 SCR 956; Lakhan
v. State of M.P (2010) 8 SCC 514: [2010] 9 SCR 705; Jagbir Singh v. State
(NCT of Delhi) (2019) 8 SCC 779: [2019] 11 SCR 1137; Rajaram v. State
of Madhya Pradesh 2022 SCC OnLine SC 1733; Surajdeo Ojha v. State of
Bihar 1980 Supp SCC 769; State of Maharashtra v. Krishnamurti Laxmipati
730
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Naidu 1980 Supp SCC 455; Govind Narain v. State of Rajasthan 1993 Supp
(3) SCC 343; Kans Raj v. State of Punjab (2000) 5 SCC 207: [2000] 3 SCR
662; Sudhakar v. State of Maharashtra (2000) 6 SCC 671: [2000] 1 Suppl.
SCR 507; Irfan@Naka v. State of U.P. 2023 SCC Online SC 1060; Anil
Phukan vs state of Assam (1993) 3 SCC 282: [1993] 2 SCR 389; Kamal v.
State (NCT of Delhi) 2023 SCC OnLine SC 933; Gargi v. State of Haryana
(2019) 9 SCC 738: [2019] 13 SCR 1; Indrajit Das v. State of Tripura 2023
SCC OnLine SC 201; Prakash Nishad v. State of Maharashtra 2023 SCC
OnLine SC 666; Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi);
(2012) 8 SCC 21: [2012] 6 SCR 1153; Ganesan v State (2020) 10 SCC 573:
[2020] 8 SCR 768; Naresh @ Nehru v State of Haryana Criminal Appeal
No.1786 Of 2023; Mohd. Inayatullah v. State of Maharashtra (1976) 1
SCC 828: [1976] 1 SCR 715; Jaikam Khan v. State of U.P (2021) 13 SCC
716; Nikhil Chandra Mondal v. State of W.B. (2023) 6 SCC 605; Tulsiram
Kanu v State AIR 1954 SC 1; Ghurey Lal v State of U.P. (2008) 10 SCC
450: [2008] 11 SCR 499 - referred to.
Pakala Narayana Swamy v. Emperor AIR 1939 PC 47; Pulukuri
Kotayya v. King Emperor 1946 SCC OnLine PC 47; Sheo Swarup v King
Emperor AIR 1934 PC 227(2) - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.866
of 2011.
From the Judgment and Order dated 21.09.2010 of the High Court of
Karnataka at Bangalore in CRLA No.1795 of 2004.
Appearances:
Amit Sibal, Sr. Adv., Ms. Bina Madhavan, S. Udaya Kumar Sagar,
Lakshay Saini, Narayana Kumar Relangi, Darpan Sachdeva, Vinay Tripathi,
Vinamra Kopariha, Anshul L, Manoj S.N., M/s. Lawyer S Knit & Co., Advs.
for the Appellants.
V. N. Raghupathy, Manendra Pal Gupta, Advs. for the Respondent.
731
MANJUNATH & ORS. v. STATE OF KARNATAKA
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL, J.
1. Appellants1 (six in number) have fi led this appeal against the
judgment and order dated 21st September 2010 passed by the High Court
of Karnataka at Bangalore in Criminal Appeal No.1795 of 2004 whereby
the appeal fi led by the State against the verdict of acquittal in favour of all
29 accused, vide judgment and order dated 25th September, 2004 in S.C.
No.162 of 1999, passed by the Additional Sessions Judge - Presiding Offi cer,
Fast Track Court-II, Kolar, was partly allowed. Overturning the same in
respect of A-1 to A-5 and A-7, the Court while convicting them for having
committed an off ence punishable under Sections 143, 144, 146, 147, 148,
447, 324, 326, 504 and 506 r/w Section 149 of Indian Penal Code, 1860
sentenced each one of them to undergo rigorous imprisonment for a period
of 4 years and pay a fi ne of ₹ 5000 each.
FACTUAL PRISM
2. The facts, as set out by the Courts below, shorn of unnecessary
details are :-
2.1 On 6th August 1997, the deceased namely Byregowda2 and his
brothers, T.V. Narayanaswamy (PW4), T.V. Gopalreddy (PW5), T.V.
Rajanna (PW10) and Marappa (PW2) had gone to the fi elds to work
when, allegedly, all the accused armed with weapons such as clubs,
iron rods and choppers came and threatened them. PW2, PW4, PW5
and PW10 managed to escape but while the deceased, was attempting
to do so, he was greviously assaulted by A1, A2 and A3 by means
of iron rod and a steel edged weapon (chopper). Immediate medical
treatment was administered to the deceased at the Sidlaghatta General
Hospital by Dr. Loganayaki (PW1) who also informed the police. V.M.
1
Manjunath (s/o Bachanna) A-1; Ramegowda (s/o Bachanna) A-2; Ramappa (s/o
Narayanappa) A-3; Ramesh (s/o Chikka Venkatarayappa) A-4; Manjunath (s/o
Ramappa) A-5; Dyavappa (s/o Narayanappa) A-7.
2
Hereinafter, the deceased
732
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Sonnappa (PW19), the then Sub-Inspector of Police took his statement
(Ex. P1) and as a consequence therefore, registered FIR being Crime
No. 249/1997 dated 08.08.1997 under several penal provisions.
2.2 After due investigation, the challan came to be fi led and the case
was committed to the Court of Additional Sessions Judge-Presiding
Offi cer, Fast Track Court-II, Kolar. All the accused denied the charges
under section 120B, 143, 447, 302 read with Section 149 IPC and
claimed trial. Accused Nos.6 and 8 are recorded to have died and
therefore, the proceedings against them stood abated at this stage.
FINDINGS OF THE TRIAL COURT
3. The prosecution in order to prove the charges levied, examined 28
witnesses; exhibited 24 documents and three material objects. The accused
did not lead any evidence save and except producing fi ve witnesses to
contradict the version of PW 4, Gopala Reddy (PW5), Chandrappa (PW15),
T.V Krishnappa (PW17) and T.S Ramakrishna (PW13) respectively.
4. The evidence led was categorized into fi ve heads - (a) ocular; (b)
Dying declaration; (c) circumstantial evidence; (d) recovery of incriminating
material; and (e) motive.
4.1 PW2, PW3 and PW15 are eyewitnesses and PW2 and PW15 have
not supported the case of the prosecution. PW2 has deposed that he had
heard from the family members of the deceased that he had sustained
various injuries and upon reaching there found the latter to be lying
a little away from his own lands and later fi nd out that he had died.
PW3 has deposed that he had seen the accused persons assaulting the
deceased, and it is they who had laid the deceased, post such assault,
on the eucalyptus leaves on the fi elds of PW11. PW15 stated that he
saw the deceased lying on southern side of the eucalyptus plantation
where PW2, PW4 and PW5 were also present. PW15 has deposed
that he saw the accused persons armed with weapons and proceeding
towards the garden. He followed them and found that the accused had
chased and assaulted the deceased. It is a point of confl ict whether
the accused had, as per the statement of PW3, laid the deceased down
on the eucalyptus fi elds of PW11 - Raghava or was it PW15 who had
done so. No other witnesses have deposed to that eff ect.
733
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
 The Trial Court, therefore, did not rely on the ocular evidence.
4.2 In respect of the dying declaration, it was observed that the evidence
clearly shows PW19 to not have recorded the declaration. It has borne
out from cross examination of this witness that it was one of his staff
members, namely Nataraj who had recorded the statement who was
neither cited nor examined as a witness. Moreover, this deponent has
not even endorsed such a statement.
4.3 In respect of the medical evidence furnished, it was observed that
PW1 admitted non stating of who furnished history of injuries- whether
it was injured himself or another person who had brought him to the
hospital. This, read alongside PW1's earlier statement that numerous
persons were present with the injured/deceased led the Trial Court to
believe that, on account of severe head injury he was not in a position
to give a statement and it was other persons present who furnished
necessary details to form the same.
4.4 In respect of circumstantial evidence, it was observed that PW2
has not implicated any of the accused in the circumstance relating to
a mob approaching the fi elds in the morning of 6 August 1997. PW15
had deposed, as noted above that the deceased was laid on eucalyptus
leaves in an injured state. It was however not his case that the deceased
had informed him about who caused his injuries. This, led the Trial
Court to observe "falsity" in the evidence of PWs 4,5,6 and 7 who
stated the deceased had told that the accused assaulted him.
4.4.1 For PW3 and PW13, it was observed that their conduct did
not refl ect that of an "ordinary prudent man" as the former did
not rush to the village or to the rescue of the deceased but instead,
ostensibly, to invite the villagers to a hiding place; and the letter
since he claimed to have heard the accused persons conspiring
to attempt to take the lives of the deceased and his brothers and
further claimed that later he heard the persons state that while
one of them was caught, others ran away. Despite hearing this
he proceeded to leave to attend the marriage of someone at
Vijayapura. This, the Court, found to be a conduct, against of a
prudent person who proceeded as normal, despite hearing of a
conspiracy to kill a fellow man.
734
SUPREME COURT REPORTS
[2023] 14 S.C.R.
4.4.2 It is in light of above conclusions that the Trial Court
held the web of circumstances to be unable to point "unerring,
cogently and positively" to the guilt of the accused.
4.5 On recovery of weapons, the Court observed that although the
weapons had been recovered at the instance of accused persons - clubs
at the instance of A10, A3, A5, A6 and A7; iron rod at the instance of
A1 and A2 and chopper at the instance of A4, but doubted the veracity
of the seizure on the ground that the clubs were recovered from a place
of common access and the chopper as well as the rods were recovered
from places where others also resided. Further, it was observed that the
clubs seized (M.O. 3) were of 4 ft in length and 3 inches, in diameter
which could cause such as abrasion(s), contusion(s), and laceration(s).
However, the medical evidence of PW1 did not record any such injury.
The Court, therefore, concluded that the incriminating objects or
weapons were not of any assistance in the case against the accused.
4.6 On motive, it was observed that although a dispute had taken place
on the night of 4th August, 1997 between PW4 and A1, A2, A4, A7, A8,
A9, A11 and A12 regarding the obstruction of a pathway, resulting into
criminal prosecution against the persons involved but leading only to
their acquittals. Therefore, in view of the Court, motive was absent.
4.7 Two other aspects were also urged on behalf of the prosecution,
one; regarding the place of occurrence of off ence and two; the delay
in recording the statements of the ocular and circumstantial witnesses.
On both these grounds as well, the court did not fi nd anything to be
pointing towards the guilt of the accused persons.
4.8 In view of such fi ndings, the court acquitted all accused persons.
5. The State, aggrieved by the acquittals en masse, appealed to the
High Court.
FINDINGS OF THE HIGH COURT
6. It was noted that the deceased had specifi cally named as certain
accused as also attributed specifi c roles to them. Having appreciated the
evidence on record and the submissions of the learned counsel for the
accused, who stated that the doctor had not certifi ed the deceased fi t to give
a statement and in the absence of such a certifi cate of fi tness, his declaration
735
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
could not be relied upon; and the learned counsel for the state who submitted
that the dying declaration categorically indicts A1-A7.
7. The Court found :-
7.1 The dying declaration makes a clear case against A1 to A7;
7.2 The injuries sustained by the deceased correspond to narration
of the incident to PW19 (S. Narayanaswamy) and that PW1 (Dr.
Loganayagi) certifi ed the deceased to have been in a fi t condition to
give a statement.
7.3 The dying declaration of the deceased stood corroborated by PW3,
PW4, PW5 as well as other witnesses.
7.4 On submission of the learned counsel for the accused that the
injuries infl icted upon the deceased were on non-vital parts of the body,
no intention could be gathered on part of the accused; hence the Court,
in its wisdom, convicted the above specifi ed accused under Section
304 Part II, IPC to undergo a sentence of rigorous imprisonment for a
period of four years and pay fi ne of Rs. 5000/- each. All other accused
were acquitted.
8. The position of the accused persons as it presently stands is indicated
in a tabular form as under :-
Sl
no.
Name of Accused
Sentenced
b y Tri al
Court
Sentenced by
High Court
Punishment
awarded
1.
Manjunath
S/o Bachanna
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
2.
Ramegowda
S/o Bachanna
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
3.
Ramappa
S/o Narayanappa
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
4.
Ramesh
S/o Chikka
Venkatarayappa
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
5.
Manjunatha
S/o Ramappa
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
736
SUPREME COURT REPORTS
[2023] 14 S.C.R.
6.
Ramanjanappa
S/o Muniswamappa
(Dead)
Expired
-
7.
Dyavappa
S/o Narayanappa
Acquitted
Convicted u/s 304
Part II, IPC
4 years RI and fi ne
of Rs. 5000/-
8.
Dyavappa
S/o Chikka Miniswamappa
(Abated)
Abated
-
9.
Venugopala
S/o Pillappa
Acquitted
Acquitted
10.
Chowda Reddy
S/o Narayanappa
Acquitted
Acquitted
11.
Jayachandra
S/o Bachappa
Acquitted
Acquitted
12.
Narayana Swamy
@Beema
S/o Munegowda
Acquitted
Acquitted
13.
Bachegowda,
S/o Pillappa
Acquitted
Acquitted
14.
Narayana Swamy
S/o Pillappa
Acquitted
Acquitted
15.
Krishanappa
S/o Guttappa
Acquitted
Acquitted
16.
Mune Gowda
S/o Venkatarayappa
Acquitted
Acquitted
17.
Aswath
S/o Gateppa
Acquitted
Acquitted
18.
Aswathappa
S/o Nanjegowda
Acquitted
Acquitted
19.
Murthy
S/o Venkatappa
Acquitted
Acquitted
20.
Ramesh
S/o Mune Gowda
Acquitted
Acquitted
21.
Ramesh
S/o Byamma
Acquitted
Acquitted
22.
Nagaraja
S/o Narayanappa
Acquitted
Acquitted
737
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
23.
Dayappa
S/o Pillappa
Acquitted
Acquitted
24.
Naryanaswamy
S/o Bachappa
Acquitted
Acquitted
25.
Ramappa
S/o Chennarayappa
Acquitted
Acquitted
26.
Manjunatha
S/o Naryanappa
Acquitted
Acquitted
27.
Sonne Gowda
S/o Chennarayappa
Acquitted
Acquitted
28.
Mahesh
S/o Jayachandra
Acquitted
Acquitted
29.
Lokesh S/o Bachanna
Acquitted
Acquitted
9. Proceeding further, we notice, that this is a case involving primarily
a dying declaration made by the accused in addition to the ocular and
circumstantial evidence.
10. In fact, the dying declaration (Ext. P1) proven by PW19, is the
main foundation of the prosecution case. It would be benefi cial to appreciate
the principles that the courts must adhere to when adjudicating a case of
this nature.
PRINCIPLES IN REGARD TO DYING DECLARATIONS
11.Section 32 the Indian Evidence Act, 18723 relates to statements,
written or verbal of relevant fact made by a person who is dead or who
cannot be found, in other words, dying declaration. The various principles
laid down by pronouncements of this court in respect of dying declarations
can be summarised as under: -
11.1 The basic premise is "nemo moriturus praesumitur mentire" i.e.
man will not meet his maker with a lie in his mouth.
11.1.1 In Laxman v. State of Maharashtra4 a Constitution bench
of this court observed: -
3
For brevity, "IEA"
4
(2002) 6 SCC 710 [5 Judge Bench]
738
SUPREME COURT REPORTS
[2023] 14 S.C.R.
"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 only the 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."
11.2 For a statement to be termed a "dying declaration", and thereby
be admissible under Section 32 of IEA, the circumstances discussed/
disclosed therein "must have some proximate relation to the actual
occurrence".
11.3 The Privy Council in Pakala Narayana Swamy v. Emperor5
explained the phrase "circumstances of the transaction" as under:-
"The circumstances must be circumstances of the transaction : general
expressions indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the occasion of the
death will not be admissible. But statements made by the deceased
that he was proceeding to the spot where he was in fact killed, or
as to his reasons for so proceeding, or that he was going to meet a
particular person, or that he had been invited by such person to meet
him would each of them be circumstances of the transaction, and
would be so whether the person was unknown, or was not the person
accused. Such a statement might indeed be exculpatory of the person
accused. 'Circumstances of the transaction' is a phrase no doubt that
conveys some limitations. It is not as broad as the analogous use in
'circumstantial evidence' which includes evidence of all relevant facts.
It is on the other hand narrower than 'res gestae'. Circumstances must
have some proximate relation to the actual occurrence : though, as
for instance, in a case of prolonged poisoning they may be related to
dates at a considerable distance from the date of the actual fatal dose.
It will be observed that 'the circumstances' are of the transaction which
resulted in the death of the declarant. It is not necessary that there
should be a known transaction other than that the death of the declarant
5
AIR 1939 PC 47 [5 Judge Bench]
739
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
has ultimately been caused, for the condition of the admissibility of
the evidence is that 'the cause of (the declarant's) death comes into
question'."
11.3.1 In the well-known case of Sharad Birdhichand Sarda v.
State of Maharashtra,6 principles in respect of the application
of section 32 have been noted as under: -
Per S. Murtaza Fazal Ali J.,-
"21. ...
(1) 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. In this respect,
as indicated above, the Indian Evidence Act, in view of the peculiar
conditions of our society and the diverse nature and character of our
people, has thought it necessary to widen the sphere of Section 32 to
avoid injustice.
(2) The test of proximity cannot be too literally construed and
practically reduced to a cut-and-dried formula of universal application
so as to be confi ned in a straitjacket. Distance of time would depend or
vary with the circumstances of each case. For instance, where death is
a logical culmination of a continuous drama long in process and is, as
it were, a fi nale of the story, the statement regarding each step directly
connected with the end of the drama would be admissible because the
entire statement would have to be read as an organic whole and not
torn from the context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to
light only after the death of the deceased who speaks from death.
For instance, where the death takes place within a very short time of
the marriage or the distance of time is not spread over more than 3-4
months the statement may be admissible under Section 32.
6
(1984) 4 SCC 116 [3 Judge Bench]
740
SUPREME COURT REPORTS
[2023] 14 S.C.R.
(3) The second part of clause (1) of Section 32 is yet another exception
to the rule that in criminal law the evidence of a person who was not
being subjected to or given an opportunity of being cross-examined by
the accused, would be valueless because the place of cross-examination
is taken by the solemnity and sanctity of oath for the simple reason that
a person on the verge of death is not likely to make a false statement
unless there is strong evidence to show that the statement was secured
either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of
homicide alone but includes suicide also, hence all the circumstances
which may be relevant to prove a case of homicide would be equally
relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written
by the deceased which are directly connected with or related to her
death and which reveal a tell-tale story, the said statement would clearly
fall within the four corners of Section 32 and, therefore, admissible.
The distance of time alone in such cases would not make the statement
irrelevant."
11.4 Numerous judgments have held that provided a dying declaration
inspires confi dence of the court it can, even sans corroboration, form
the sole basis of conviction. In this regard, reference may be made to
Khushal Rao v. State of Bombay7, Suresh Chandra Jana v. State
of West Bengal8 and Jayamma v. State of Karnataka9.
11.5 In order to rely on such a statement, it must fully satisfy the
confi dence of the court, since the person who made such a statement
is no longer available for cross-examination or clarifi cation or for any
such like activity.
11.5.1 In Madan v. State of Maharashtra10, while referring to
an earlier decision in Ram Bihari Yadav v. State of Bihar11 it
7
AIR 1958 SC 22 [3 Judge Bench]
8
(2017) 16 SCC 466 [2 Judge Bench]
9
(2021) 6 SCC 213 [3 Judge Bench]
10 (2019) 13 SCC 464 [2 Judge Bench]
11 (1998) 4 SCC 517 [2 Judge Bench]
741
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
was observed that a Court must rely on dying declaration if it
inspires confi dence in the mind of the court.
11.5.2 On a similar note, this Court in Panneerselvam v. State
of T.N12 has observed: -
"Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of crossexamination. 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 nature as to
inspire full confi dence of the court in its correctness."
11.5.3 However, a note of caution has also been sounded. If
such a declaration does not inspire confi dence in the mind
of the court, i.e., there exist doubts about the correctness and
genuineness thereof, it should not be acted upon, in the absence
of corroborative evidence.
11.5.3.1 In Paniben v. State of Gujarat13 it was observed-
"The Court has to be on guard that the statement of deceased
was not as a result of either tutoring, prompting or a product of
imagination."
A reference may also be made to K. Ramachandra
Reddy v. Public Prosecutor14
11.6 The Court must be satisfi ed that at the time of making such a
statement, the deceased was in a "fi t state of mind". In Shama v. State
of Haryana,15 a fi t state of mind has been held to be a prerequisite,
alongside the ability to recollect the situation and the state of aff airs
at that point in time in relation to the incident, to the satisfaction of
the court.
11.6.1 In Uttam v. State of Maharashtra16, it was discussed
that it is for the court to determine, from the evidence available
12 (2008) 17 SCC 190 [3 Judge Bench]
13 (1992) 2 SCC 474 [2 Judge Bench]
14 (1976) 3 SCC 618 [2 Judge Bench]
15 (2017) 11 SCC 535 [2 Judge Bench]
16 (2022) 8 SCC 576 [2 Judge Bench]
742
SUPREME COURT REPORTS
[2023] 14 S.C.R.
on record, the state of mind being fi t or not.
11.6.2 In order to make a determination of the state of mind of
the person making the dying declaration, the court ordinarily
relies on medical evidence.17 However, equally, it has been held
that if witnesses present, while the statement is being made, state
that the deceased while making the statement was in a fi t state of
mind, such statement would prevail over the medical evidence.18
The statement of witnesses present prevailing over the opinion
of the doctor has been reiterated in Uttam (supra).
11.6.3 It has also, however, been held in Laxman (supra) that the
mere absence of a doctor's certifi cate in regard to the "fi t state
of mind" of the dying declarant, will not ipso facto render such
declaration unacceptable. This position had been once again
recognised in Surendra Bangali @ Surendra Singh Routele
v. State of Jharkhand19.
11.7 In case of a plurality of such statements, it has been observed that
it is not the plurality but the reliability of such declaration determines
its evidentiary value. The principle as held in Amol Singh v. State
of M.P20 was:-
"13. ... it is not the plurality of the dying declarations but the
reliability thereof that adds weight to the prosecution case. If a
dying declaration is found to be voluntary, reliable and made in fi t
mental condition, it can be relied upon without any corroboration
[but] the statement should be consistent throughout. ... However,
if some inconsistencies are noticed between one dying declaration
and the other, the court has to examine the nature of the
inconsistencies, namely, whether they are material or not [and]
while scrutinising the contents of various dying declarations, in
such a situation, the court has to examine the same in the light
of the various surrounding facts and circumstances."
17 (2008) 4 SCC 265 [2 Judge Bench]
18 (2002) 6 SCC 710 [5 Judge Bench]
19 Criminal Appeal No. 1078 of 2010 [2 Judge Bench]
20 (2008) 5 SCC 468 [2 Judge Bench]
743
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
11.7.1 Faced with multiple dying declarations, this Court in
Lakhan v. State of M.P21 observed-
"21. .... In such an eventuality no corroboration is required.
In case there are multiple dying declarations and there
are inconsistencies between them, generally, the dying
declaration recorded by the higher offi cer like a Magistrate
can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case
there are circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not supported
by the other evidence, the court has to scrutinise the facts
of an individual case very carefully and take a decision as
to which of the declarations is worth reliance."
11.7.2 This Court, in Jagbir Singh v. State (NCT of Delhi)22,
in this respect, concluded as under: -
"32. We would think that on a conspectus of the law as
laid down by this Court, when there are more than one
dying declaration, and in the earlier dying declaration, the
accused is not sought to be roped in but in the later dying
declaration, a somersault is made by the deceased, the case
must be decided on the facts of each case. The court will not
be relieved of its duty to carefully examine the entirety of
materials as also the circumstances surrounding the making
of the diff erent dying declarations. If the court fi nds that
the incriminatory dying declaration brings out the truthful
position particularly in conjunction with the capacity of the
deceased to make such declaration, the voluntariness with
which it was made which involves, no doubt, ruling out
tutoring and prompting and also the other evidence which
support the contents of the incriminatory dying declaration,
it can be acted upon. Equally, the circumstances which
21 (2010) 8 SCC 514[2 Judge Bench]
22 (2019) 8 SCC 779 [2 Judge Bench]
744
SUPREME COURT REPORTS
[2023] 14 S.C.R.
render the earlier dying declaration, worthy or unworthy
of acceptance, can be considered."
11.8 The presence of a Magistrate in recording of a dying declaration, is
not a necessity but only a rule of Prudence. To this eff ect in Jayamma
(supra), this Court observed :
"...law does not compulsorily require the presence of a judicial
or executive Magistrate to record a dying declaration or that a
dying declaration cannot be relied upon as the solitary piece of
evidence unless recorded by judicial or executive Magistrate. It
is only a rule of prudence, and if so permitted by the facts and
circumstances, the dying declaration may preferably be recorded
by a judicial or executive Magistrate so as to muster additional
strength to the prosecution case."
Referring to the Constitution bench in Laxman (supra) the principle
of a dying declaration not necessarily to be recorded by a Magistrate
stands reiterated in Rajaram v. State of Madhya Pradesh23
11.9 Dying Declaration is not to be discarded by reason of its brevity
is what is held in Surajdeo Ojha v. State of Bihar24.
11.9.1 It was observed in the State of Maharashtra v.
Krishnamurti Laxmipati Naidu25 that if the dying declaration,
while being brief, contains essential information, the courts
would not be justifi ed in ignoring the same.
 11.9.2 In fact, the Constitution bench in Laxman reiterated this
principle, stating: -
"Marely because a dying declaration does not contain the
details of the occurrence, it cannot be rejected and in case
there is merely a brief statement, it is more reliable for
the reason that the shortness of the statement is itself a
guarantee of its veracity."
23 2022 SCC OnLine SC 1733 [2 Judge Bench]
24 1980 Supp SCC 769 [2 Judge Bench]
25 1980 Supp SCC 455 [2 Judge Bench]
745
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
11.10 Examination of the person who reduced into writing, the dying
declaration, is essential. Particularly, in the absence of any explanation
forthcoming for the production of evidence is what stands observed
in Govind Narain v. State of Rajasthan26.
11.10.1 In fact, in Kans Raj v. State of Punjab27 it was held: -
"11. ...To make such statement as substantive evidence, the
person or the agency relying upon it is under a legal obligation to
prove the making of such statement as a fact. If it is in writing, the
scribe must be produced in the Court and if it is verbal, it should
be proved by examining the person who heard the deceased
making the statement." and;
In Sudhakar v. State of Maharashtra28, this Court categorically
observed: -
"5. If it is in writing, the scribe must be produced in the court
and if it is verbal, it should be proved by examining the person
who heard the deceased making the statement. However, in cases
where the original recorded dying declaration is proved to have
been lost and not available, the prosecution is entitled to give
secondary evidence thereof."
11.11 The questions that a court must ask when dealing with a case
concerning a dying declaration, as listed out by this Court in Irfan@
Naka v. State of U.P.29 along with the principles culled out hereinabove
form the complete gamut of consideration required on part of a court
when deciding the weightage to be awarded to a dying declaration.
12. Ocular evidence undoubtedly fares better than other kinds of
evidence and is considered evidence of a strong nature. The principle is
that if the eyewitness testimony is "wholly reliable", then the court can
base conviction thereupon. This applies even in cases where there is a sole
eyewitness.30
26 1993 Supp (3) SCC 343 [2 Judge Bench]
27 (2000) 5 SCC 207 [3 Judge Bench]
28 (2000) 6 SCC 671[3 Judge Bench]
29 2023 SCC Online SC 1060 [3-Judge Bench]
30 (1993) 3 SCC 282 [2 Judge Bench]
746
SUPREME COURT REPORTS
[2023] 14 S.C.R.
13. The facts at hand, the trial court has disbelieved such evidence. The
discarding of eye-witness testimony is a fact-specifi c inquiry, and therefore
the correction of such an action by the trial court shall be discussed later.
14. The law on circumstantial evidence, is well settled. The locus
classicus on the issue is Sharad Birdhichand Sarda, (supra) which stands
consistently followed up until very recently in Kamal v. State (NCT of
Delhi)31.
14.1 Illustratively, in Gargi v. State of Haryana32 this court has,
referring to various earlier judgments, summarised the principles
relating to circumstantial evidence. The principle, is that the sum
total of circumstances, when examined should point to the guilt of the
accused, while ruling out all other possible hypotheses including his
innocence and absence of second party guilt. Further reference may
be made to Indrajit Das v. State of Tripura33 and Prakash Nishad
v. State of Maharashtra34.
CONSIDERATION BY THIS COURT
15. The dying declaration, which forms the primary basis for
prosecution of the above-named accused, reads as follows-
"T.V. Byregowda S/o Venkatappa, 41 years, Vokkaliga, Agriculture,
R/o Thotliganahalli, Shidlaghatta Taluk.
I am residing at the above mentioned address and eking out livelihood
from agriculture. This day i.e., on 6/8/97 at about 8 AM, myself and
my brothers, Nrayanaswamy, Rajanna and Gopalreddy and our workers
Marappa went to our land for work. When we were doing our work in
our land, at about 9.30 AM, the sons of bacchanna of our village namely
(1) Manjunath, (2) Ramegowda (3) Rayappa S/o Narayanappa sons
of Bacchanna (4) Ramesh s/o Chikkavenkatarayappa (5) Manjunatha
(6) Ramanjanappa (7) Dyavappa S/o Narayanappa (8) Dyavappa S/o
Chikka Munishamappa and others formed unlawful assembly and
31 2023 SCC OnLine SC 933 [2 Judge Bench]
32 (2019) 9 SCC 738 [2 Judge Bench]
33 2023 SCC OnLine SC 201 [2 Judge Bench]
34 2023 SCC OnLine SC 666 [3 Judge Bench]
747
MANJUNATH & ORS. v. STATE OF KARNATAKA
[SANJAY KAROL, J.]
holding deadly weapons in their hands, came to our land and abused
myself and my brothers in fi lthy language and assaulted with weapons.
On seeing the Accused persons, my workers and my brothers ran
away to escape from the accused persons. I also tried to escape from
the Accused, at that time Manjunath forcibly assaulted with iron rod
at my head, I fell down and immediately Ramesh assaulted me with
sickle at my legs, Ramegowda assaulted me with sickle at right leg.
Rayappa and others assaulted me with clubs holding in their hands
and all over my body. My both hands and legs got dislocated resulting
in blood injuries. I also sustained blood injuries. Thereafter, Marappa
S/o Anjanappa, B.K. Ramesh Gowda, S/o Krishnappa and Chandrappa
S/o Venkate gowda, residents of our village released me from the
hands of the Accused and admitted me to Government Hospital,
Shidlaghatta for treatment.