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 officer (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 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 findings – 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 differ 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 offence. [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 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 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.
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