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2009 Supreme(SC) 257
SUPREME COURT OF INDIA
THE HONOURABLE DR. JUSTICE ARIJIT PASAYAT & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
S.P. Devaraju - Appellant
Versus
State of Karnataka - Respondent
CRIMINAL APPEAL NO.180 OF 2002
Date of Judgment : 12-02-2009
For the Appellant:NDB Raju (for Guntur Prabhakar), Advocate. For the Respondent:Anil Kr. Mishra, Amit Kr. Chawla and A. Rohan Singh (for Sanjay R. Hegde), Advocates.
IMPORTANT POINT
Conviction can be based on dying declaration alone if it is voluntary, trustworthy and credible.
Headnote:Criminal trial – Conviction – Dying declaration – Voluntary, trustworthy and credible – Not at variance with evidence of PW1 – Clearly implicating accused-appellant – High Court rightly convicted the accused-appellant. (Para 10)
AIR 1983 SC 164: (1983) 1 SCC 211; (1992) 2 SCC 474; (1976) 3 SCC 104; (1985) 1 SCC 552; (1976) 3 SCC 618; (1974) 4 SCC 264; 1981 Supp. SCC 25; (1981) 2 SCC 654; 1980 Supp. SCC 455; 1980 Supp.SCC 769; 1988 Supp. SCC 152; (1989) 3 SCC 390; (1982) 1 SCC 700; 1993 Supp (1) SCC 327 – Relied upon
Facts of the case:
A-1 and A-2 were close friends. A-2 and one Channegowda (PW5) had land disputes. Panchayat was held in the house of M.Raju (CW-17) in respect of the said land dispute. But there was still ill-will between them in spite of the settlement in the panchayat.
On 1.2.1988 A-1, PW1 and the deceased had liquor in a shop and then went to the room of the deceased. A-1 took the deceased out of the room with him on pretext of easing himself. Within 5 minutes the deceased returned 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 told PW-1 that A1 told him that Dasegowda (A2) had sent him to finish him. On way to Hospital the deceased showed the place of occurrence.
The deceased succumbed to the injuries on 5.2.88.
The trial court found the evidence to be inadequate and therefore directed acquittal.
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.
Finding of the Court:
There is no infirmity in conviction.
Result:
Appeal dismissed.
JUDGMENT :
Dr. Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court allowing the States 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 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 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 produ
