Supreme Court: In an appeal filed against the Judgment passed by the Karnataka High Court, wherein the Court overturned the acquittal order in respect of A1 to A5 and A7, and convicted them for offence under Section 304 Part II, of the Penal Code, 1860 (‘IPC’) and sentenced them to undergo rigorous imprisonment for a period of 4 years and pay a fine of Rs. 5000 each., and acquitted the other accused persons, the division bench of Abhay S. Oka and Sanjay Karol*, JJ. while setting aside the impugned judgment, upheld the view taken by the Trial Court and said that the High Court, without assigning any cogent reasons, should not have interfered with such findings.
The Court noted that this is a case involving primarily a dying declaration, in addition to the ocular and circumstantial evidence. Thus, it examined the principles regarding dying declaration.
Further, the Court took note of Anil Phukan v. State of Assam, (1993) 3 SCC 282, wherein it was said that ocular evidence undoubtedly fares better than other kinds of evidence and is considered evidence of a strong nature. 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.
The Court reiterated that given the nature of a dying declaration, it is required that such a statement be free from tutoring, prompting, or not be a product of imagination. Further, it noted that the statement of the Doctor, that at the time of the dying declaration being made, there were numerous people present near him. In such a case, can it be categorically ruled out that the statement made by the deceased is free from tutoring or prompting.
After evaluating the testimonies, the Court said that witness 2 has not supported the prosecution and despite being declared hostile and cross examined extensively, nothing fruitful, benefiting the prosecution case could be elicited from his testimony. Further, the mother of the deceased stated that, in the hospital, the deceased informed her that the “accused persons before the Court” had beaten and wounded him. But, as per the Court this does not in any manner help the prosecution as it is hearsay and not have been taken note by the police during the investigation and as such appears to be a mere improvement and exaggeration. A similar effect is of the testimony of wife of the deceased. The testimony of other witnesses is of no consequence, as they are not witnesses to the occurrence of the incident.
The Court said that none of these eyewitnesses have established beyond reasonable doubt the guilt of the convicts. There is a contradiction in testimonies regarding the number of persons who formed part of the unlawful assembly- one witness testified the presence of 50-60 persons while others testified to the group being of 25-30 persons; there is no clarity as to how the deceased ended up in the lands of witness 11. There is a material contradiction between two supposed eyewitnesses. Witness 3 in his Examination in Chief stated that he had signed the mahazar, but, in his cross-examination, it was stated that he was not able to read or write. No reasons stand supplied for his presence at the scene of the incident, as neither he is a resident of the village, nor does he have land in said village. Further, it said that it’s not logical that a person who is not a resident of the village would visit the spot only to see as to what is happening, whereas the other close relative(s) have attempted to flee from the scene. The Bench reiterated that a testimony cannot be given value, in isolation.
The Bench also noted that witness 15 has stated that the deceased was seen by him in an already injured state, meaning thereby that he has not actually witnessed the convicts assaulting the deceased. Therefore, his status as an ocular witness is rendered questionable. Further, it noted that the conduct of the brother of the deceased was unusual, as despite being a relative, his act, is that of a stranger, i.e., running away from the dispute; leaving the deceased defenseless; he did not accompany the deceased who was in an injured state to the hospital.
Thus, the Court said that the testimonies of the prosecution witnesses are unreliable, unworthy of credence. The testimonies differ on essential material facts, such as the number of people, how the deceased came to lay where he did, when discovered etc.
The Court reiterated that for an eyewitness to be believed, his evidence should be of sterling quality. It should be capable of being taken at face value. Further, it said that none of the witnesses of the prosecution would qualify per this standard. Numerous contradictions and inconsistencies have borne from record, rendering such witnesses to be unreliable and undependable to uphold the conviction.
The Court agreed with the Trial Court that, as the discoveries made, were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made.
The Bench said that while it may be true that the deceased had died due to injuries sustained, however, the said injuries could not have been caused because of the weapons that the convicts were allegedly yielding, and the ones that were supposedly recovered at their instance. Thus, it said that the circumstantial evidence on record, does not conclusively point towards guilt of the convicted persons.
Thus, the Court concluded the following:
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 endorsed the said document with details of who took down the declaration. It is also not clear as to in front of which of the relatives of deceased was the same taken down.
The circumstantial evidence on record does not point to the hypothesis of the guilt of the convicts.
None of the eyewitnesses have succeeded in attributing a particular role to any of the convicts and equally so, to A-1 to A-5 and A-7, whose acquittals have been overturned by the High Court.
[Manjunath v. State of Karnataka, 2023 SCC OnLine SC 1421 , decided on 06-11-2023]
*Judgment Authored by: Justice Sanjay Karol