MANJUNATH & ORS.versusSTATE OF KARNATAKA

                  [2023] 14 S.C.R. 727 : 2023 INSC 978



                             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 justified 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 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
                                     727
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 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
        MANJUNATH & ORS. v. STATE OF KARNATAKA                             729


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.
        MANJUNATH & ORS. v. STATE OF KARNATAKA                            731



       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     SANJAY KAROL, J.
      1. Appellants1 (six in number) have filed 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 filed 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 Officer,
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 offence 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 fine 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 fields 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 filed and the case
      was committed to the Court of Additional Sessions Judge-Presiding
      Officer, 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 five 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 five 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 find 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 fields 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 conflict whether
      the accused had, as per the statement of PW3, laid the deceased down
      on the eucalyptus fields of PW11 - Raghava or was it PW15 who had
      done so. No other witnesses have deposed to that effect.
  MANJUNATH & ORS. v. STATE OF KARNATAKA                             733
           [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 fields 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 reflect 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 offence and two; the delay
      in recording the statements of the ocular and circumstantial witnesses.
      On both these grounds as well, the court did not find anything to be
      pointing towards the guilt of the accused persons.
      4.8 In view of such findings, 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 specifically named as certain
accused as also attributed specific 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 certified the deceased fit to give
a statement and in the absence of such a certificate of fitness, his declaration
         MANJUNATH & ORS. v. STATE OF KARNATAKA                             735
                  [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) certified the deceased to have been in a fit 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 inflicted 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 specified accused under Section
       304 Part II, IPC to undergo a sentence of rigorous imprisonment for a
       period of four years and pay fine 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    Name of Accused         Sentenced Sentenced by         Punishment
                               by Trial
 no.                                     High Court           awarded
                               Court
 1.    Manjunath               Acquitted Convicted u/s 304    4 years RI and fine
       S/o Bachanna                      Part II, IPC         of Rs. 5000/-
 2.    Ramegowda               Acquitted Convicted u/s 304    4 years RI and fine
       S/o Bachanna                      Part II, IPC         of Rs. 5000/-
 3.    Ramappa                 Acquitted Convicted u/s 304    4 years RI and fine
       S/o Narayanappa                   Part II, IPC         of Rs. 5000/-
 4.    Ramesh                  Acquitted   Convicted u/s 304 4 years RI and fine
       S/o Chikka                          Part II, IPC      of Rs. 5000/-
       Venkatarayappa
 5.    Manjunatha              Acquitted   Convicted u/s 304 4 years RI and fine
       S/o Ramappa                         Part II, IPC      of Rs. 5000/-
736         SUPREME COURT REPORTS                          [2023] 14 S.C.R.



6.    Ramanjanappa            Expired     -
      S/o Muniswamappa
      (Dead)
7.    Dyavappa                Acquitted   Convicted u/s 304 4 years RI and fine
      S/o Narayanappa                     Part II, IPC      of Rs. 5000/-
8.    Dyavappa                Abated      -
      S/oChikkaMiniswamappa
      (Abated)
9.    Venugopala              Acquitted   Acquitted
      S/o Pillappa
10.   Chowda Reddy            Acquitted   Acquitted
      S/o Narayanappa
11.   Jayachandra             Acquitted   Acquitted
      S/o Bachappa
12.   Narayana Swamy          Acquitted   Acquitted
      @Beema
      S/o Munegowda
13.   Bachegowda,             Acquitted   Acquitted
      S/o Pillappa
14.   Narayana Swamy          Acquitted   Acquitted
      S/o Pillappa
15.   Krishanappa             Acquitted   Acquitted
      S/o Guttappa
16.   Mune Gowda              Acquitted   Acquitted
      S/o Venkatarayappa
17.   Aswath                  Acquitted   Acquitted
      S/o Gateppa
18.   Aswathappa              Acquitted   Acquitted
      S/o Nanjegowda
19.   Murthy                  Acquitted   Acquitted
      S/o Venkatappa
20.   Ramesh                  Acquitted   Acquitted
      S/o Mune Gowda
21.   Ramesh                  Acquitted   Acquitted
      S/o Byamma
22.   Nagaraja                Acquitted   Acquitted
      S/o Narayanappa
           MANJUNATH & ORS. v. STATE OF KARNATAKA                         737
                    [SANJAY KAROL, J.]

 23.     Dayappa                  Acquitted   Acquitted
         S/o Pillappa
 24.     Naryanaswamy             Acquitted   Acquitted
         S/o Bachappa
 25.     Ramappa                  Acquitted   Acquitted
         S/o Chennarayappa
 26.     Manjunatha               Acquitted   Acquitted
         S/o Naryanappa
 27.     Sonne Gowda              Acquitted   Acquitted
         S/o Chennarayappa
 28.     Mahesh                   Acquitted   Acquitted
         S/o Jayachandra
 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 beneficial 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]
        MANJUNATH & ORS. v. STATE OF KARNATAKA                            739
                 [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 confined 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 finale 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 confidence 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
       confidence of the court, since the person who made such a statement
       is no longer available for cross-examination or clarification 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]
         MANJUNATH & ORS. v. STATE OF KARNATAKA                            741
                  [SANJAY KAROL, J.]

            was observed that a Court must rely on dying declaration if it
            inspires confidence 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 cross-
            examination. 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 confidence 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 confidence 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 satisfied that at the time of making such a
      statement, the deceased was in a “fit state of mind”. In Shama v. State
      of Haryana,15 a fit state of mind has been held to be a prerequisite,
      alongside the ability to recollect the situation and the state of affairs
      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 fit 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 fit 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 certificate in regard to the “fit 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 fit
             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]
        MANJUNATH & ORS. v. STATE OF KARNATAKA                            743
                 [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 officer 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 different dying declarations. If the court finds 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 effect 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 justified 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]
         MANJUNATH & ORS. v. STATE OF KARNATAKA                              745
                  [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-specific 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]
        MANJUNATH & ORS. v. STATE OF KARNATAKA                          747
                 [SANJAY KAROL, J.]

     holding deadly weapons in their hands, came to our land and abused
     myself and my brothers in filthy 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. I request to take legal action against the
     accused persons who have assaulted me causing grievous injuries and
     provide protection to us.
                                              Read over and found correct
                                                 LTM of T.V. Byregowda”
                                                      (Emphasis supplied)
      16. It emanates from the testimony of the PW1(The Doctor) and
PW19 (The Police Officer) that the dying declaration of the deceased was
made in their presence. PW1 stated “When police recorded the statement
of the injured. I was present and also endorsed that statement in Ex.P.1
statement now marked, Ex.P.1 (a) is my endorsement and Ex.P.1 (b) is
my signature” and PW19 stated “I rushed to the hospital and enquired the
injured Byregowda in presence of the doctor and recorded the statement.
The statement is marked as Ex. P.1 and my signature is marked Ex. P.1 (b).
The Doctor has also signed on the said statement”
      17. It further emanates from the record, i.e., the testimony of PW19
that although he signed on the dying declaration made by the deceased, but
the cross-examination reveals that he had not himself written the same. It
was stated: -
     “The contents in Ex. P.1 are not in my handwriting. The said
     document does not contain the endorsement as who has written the
     said document.”
748           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      Further, in his re-examination, he states that-
           “The contents in Ex. P1 are in the hand writing of Nataraj, staff
           of our station. The said statement was taken as stated by the
           deceased and as told by me. Since the deceased had sustained
           injury on his right hand also, he was not in a position to sign
           the same…”
     And PW1 stated in regards of the person who recorded the dying
declaration as under :-
           “I cannot say by name designation of the police person who
           recorded the statement of the injured. Again our records also do
           not disclose as to the time of recording of alleged statement of the
           injured. It is true that, before recording of the alleged statement
           of injured, neither the police had requested me to writing nor I
           had permitted them in writing for recording the statement of the
           injured. It is true when alleged statement of injured was recorded
           there were many persons around him. It is not true to suggest
           that on that day the injured was not in a position to give any
           statement and police did not record his statement at that point
           of time as stated in Ex. P.1.”
       18. Well then, who recorded the same?, What was his name?, What
was his designation if he was a police personnel? remains unstated by her.
Significantly, this witness also does not testify to the correctness or otherwise
of the contents thereof. It was testified that at the time of recording of such
statement “there were many persons around”. Who these persons were, is
another aspect that remains unclear. Whether these persons were examined
is unknown. The dying declaration was signed by thumb impression by the
deceased but, it is not the case of the prosecution that the deceased was
illiterate. The Doctor also does not state that the injured was in a condition
to sign. Then why the thumb impression, remains a mystery casting a serious
doubt about its authenticity or correctness of such declaration.
      19. The reason for the non-examination of the scribe, however, does not
bear itself. Nowhere has it been stated, either by the trial court or the High
Court that scribe could not be examined for which or what particular reason.
In Sudhakar (supra) this Court has held that if the original dying declaration
        MANJUNATH & ORS. v. STATE OF KARNATAKA                             749
                 [SANJAY KAROL, J.]

is lost and therefore not available, the prosecution could adduce secondary
evidence in support thereof. The logical extension of such holding would
be that, if the scribe, for reasons beyond control, such as incapacitation or
death, would be unavailable, it would be open for the prosecution to take
necessary aid of secondary evidence. That not being the case however, such
unexplained non-examination would, as a consequence of the holdings in
Govind Narain (supra), Kans Raj (supra) and Sudhakar (supra), render
the case to be doubtful if not, land a fatal blow to the prosecution case.
      20. It is trite in law that 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. In such a case, can it be categorically
ruled out that the statement made by the deceased, is free from tutoring or
prompting?
      21.For finding an answer, we have independently evaluated the
testimonies, relevant to adjudication of the present appeal, forming part
of record.
     21.1 Prosecution has endeavoured to establish the guilt of the accused
     by way of ocular evidence through the testimonies of numerous
     independent witnesses.
     21.2 PW-2 has not supported the prosecution and despite being declared
     hostile and cross examined extensively, nothing fruitful, benefitting
     the prosecution case could be elicited from his testimony. All that he
     states is that “a group of 50 to 60 persons from the direction of the
     village approached towards the land. Seeing the same, I went towards
     the village.” The ladies of the house of the deceased came and informed
     that the deceased had to be treated in the hospital for he has sustained
     injuries. He has denied having affixed his thumb impression on the
     documents prepared by the police and significantly the same has not
     been proved through any scientific evidence.
     21.3 On this issue we also take note of the testimony of PW-9 (mother
     of the deceased) who only states that in the hospital, the deceased
     informed her that the “accused persons before the Court” had beaten
750           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      and wounded him but then this does not in any manner help the
      prosecution for the same is in the nature of not only hearsay but also
      not to have been taken note by the police during the course of the
      investigation and as such appears to be a mere improvement and
      exaggeration. To similar effect, is the testimony of PW-10 (wife of the
      deceased). Testimony of PW-11 and PW-12 is of no consequence for
      they are not witnesses to the occurrence of the incident.
      21.4 PW3 stated that a group of 25 to 30 people were proceeding
      towards the deceased and others, i.e., PW5, PW6, PW7, and PW2,
      who were working in lands near the village. It is he who had taken
      the deceased to the hospital. However, in the cross-examination part
      of his questioning, it comes forth that his recollection of events on
      the fateful day was vague. He had been examined thrice. It also is
      revealed that numerous aspects, this witness had not deposed before
      the investigating authorities. He does state the presence of eucalyptus
      trees at the place where the deceased was laid. It however does not
      appear in his testimony as to who laid the accused at that particular spot.
      21.5 According to PW4, the brother of the deceased, prior to the date
      of the incident, on 4th August, 1997 another quarrel had taken place, in
      regards to the use of a pathway, between PW4 and one Shankarappa.
      On the fateful day, he has testified that a group of 25 to 30 persons
      holding weapons such as iron chains, sticks, and sickles came to the
      lands where he along with others, were working. He stated that when
      they returned, after 10 or 15 minutes, having run away out of fear, upon
      approach by this armed group of persons, others including PW6 were
      present near the deceased person. He has also testified to the fact of
      enmity between the accused persons and the family of the deceased.
      He has stated it to be false that after assaulting his brother, certain
      persons had dumped him in the land of PW11.
      21.6 PW15, in his testimony has stated that upon returning from the
      eucalyptus plantation he found the accused in an injured state lying
      towards the southern side of the Plantation Garden. PWs 4 and 5 were
      present there. With the deceased having been taken to the hospital, this
      witness returned to the village. He testified that, approximately a week
      after the incident several recoveries were made and he, being present
  MANJUNATH & ORS. v. STATE OF KARNATAKA                              751
           [SANJAY KAROL, J.]

there signed on various mahazars. In respect of the enmity between
the accused and the deceased, he submitted that the same had ended
in a compromise.
21.7 Having noted that no other witness has deposed the manner in
which they saw the deceased laid on the eucalyptus leaves, similar to
the manner as deposed by PW15, the trial court concluded that not
much was to be gained from the ocular evidence on record.
21.8 We find that 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- 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 PW11 - a material contradiction
between two supposed eye-witnesses, PW3 and PW15. PW3 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/write.
No reasons stand supplied for his presence at the scene of the incident-
neither is he a resident of the village, nor does he have lands in said
village. Further, the reasons for him being examined thrice, are left to
imagination. Similarities, differences in such statements, if any, have
not been brought forth. After all, it is also well-settled that a testimony
cannot be given value, in isolation. It does not apply to logic 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. We notice that the police had
thrice made enquiries from him and recorded his statements. Why is
it so? Is left to the imagination. His version that the accused had said
“this fellow has come to end now and come let us go” is not recorded
in his previous statement in which he was confronted. It has to be
read as a whole. It is evident from a bare perusal of the testimony of
PW15 that the deceased was seen by him in an already injured state,
meaning thereby that he has not actually witnessed the accused persons
assaulting the deceased. Therefore, his status as an ocular witness is
rendered questionable. PW2 has deposed that he had seen a large group
of people approaching from the direction of the village towards the
752          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      lands where they were and seeing the same, he had proceeded towards
      the village, i.e., in the opposite direction. PW-4 is the brother of the
      deceased, but his conduct at best can be described as unusual, or it
      other words, one that defies logic. Despite being a relative, his act,
      is that of a stranger, i.e., running away from the dispute; leaving the
      deceased defenceless; he did not accompany the deceased who was in
      an injured state to the hospital. After all, immediately preceding the
      instant occurrence was the altercation involving him, and therefore,
      if the assailants had any motive- the same would be against him, and
      none else. Having noticed such conduct, we do not find his testimony
      worthy of credence.
      21.9 We cannot, in our considered view, say that this witness,
      has deposed the truth. Not only that, when we perused the cross-
      examination part of the testimony, we found his version to be
      uninspiring in confidence. He does not remember as to whether the
      police have carried out an investigation on the spot where his brother
      was lying. He does not remember the police having visited the village.
      Does such an unexplained denial render the witness unreliable and
      unworthy of credit? It appears that the witness was not present on the
      spot and was introduced by the prosecution with suggestions, in fact,
      as put to him by the accused.
      21.10 We notice that the testimony of PW-5 is on similar lines as that
      of PW-4. He added that the accused persons came armed and started
      shouting “catch hold them, and we shall kill them”. He also states that
      seeing the accused all the members of the victim party fled away from
      the spot, while the deceased was fleeing, and the assailants attacked
      him with rod, stick and sickle. Significantly, in his cross-examination,
      he admits several improvements made by him; he does not remember
      having informed the police of the accused moving towards the village
      holding the weapons they had brought. In fact, not only is his version
      self-contradictory but also in contradiction to that of other witnesses.
      He states that persons other than the assailants were also present
      and were part of their group. The whereabouts of such persons are
      undisclosed and, significantly, this witness does not state as to which
      one of the accused was carrying which weapon and which one of them
      had actually assaulted or inflicted injuries on the body of the deceased.
         MANJUNATH & ORS. v. STATE OF KARNATAKA                        753
                  [SANJAY KAROL, J.]

      He admits to having run to a distance of about a furlong and hidden
      under/behind the trees for about 10 minutes and returned to the spot
      only after the accused had left the spot and since long.
      21.11 PW-19 admits that “on 06.08.1997, the AW2 to 10, 12 to 17 did
      not inform me as to who assaulted the deceased, where and how. All
      the said persons were not available for giving statement”.
      21.12 Having noted the above aspects of the testimonies of the
      prosecution witnesses we find them 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.
     22. For an eye-witness to be believed, his evidence, it has been held,
should be of sterling quality. It should be capable of being taken at face
value. The principle has been discussed in Rai Sandeep @ Deepu alias
Deepu v. State (NCT of Delhi)35 as follows-
      “22. In our considered opinion, the “sterling witness” should be
      of very high quality and caliber whose version should, therefore,
      be unassailable. The court considering the version of such witness
      should be in a position to accept it for its face value without any
      hesitation. To test the quality of such a witness, the status of the
      witness would be immaterial and what would be relevant is the
      truthfulness of the statement made by such a witness. What would
      be more relevant would be the consistency of the statement right
      from the starting point till the end, namely, at the time when the
      witness makes the initial statement and ultimately before the court.
      It should be natural and consistent with the case of the prosecution
      qua the accused. There should not be any prevarication in the version
      of such a witness. The witness should be in a position to withstand
      the cross-examination of any length and howsoever strenuous it may
      be and under no circumstance should give room for any doubt as to
      the factum of the occurrence, the persons involved, as well as the
      sequence of it. Such a version should have co-relation with each and


35   (2012) 8 SCC 21 [2 Judge Bench]
754           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      every one of other supporting material such as the recoveries made,
      the weapons used, the manner of offence committed, the scientific
      evidence and the expert opinion. The said version should consistently
      match with the version of every other witness. It can even be stated
      that it should be akin to the test applied in the case of circumstantial
      evidence where there should not be any missing link in the chain
      of circumstances to hold the accused guilty of the offence alleged
      against him. Only if the version of such a witness qualifies the above
      test as well as all other such similar tests to be applied, can it be
      held that such a witness can be called as a “sterling witness” whose
      version can be accepted by the court without any corroboration and
      based on which the guilty can be punished. To be more precise,
      the version of the said witness on the core spectrum of the crime
      should remain intact while all other attendant materials, namely, oral,
      documentary and material objects should match the said version in
      material particulars in order to enable the court trying the offence to
      rely on the core version to sieve the other supporting materials for
      holding the offender guilty of the charge alleged.”
                                                        (emphasis supplied)
     This was quoted with profit by this Court in Ganesan v State36.
Recently, this principle was further reiterated in Naresh @ Nehru v State
of Haryana37.
      23. As the above discussion would show vis-à-vis the delineation on the
qualities of a sterling witness, 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 so as to place reliance on the same to hold the accused persons
guilty of having committed an offence.
      24. On circumstantial evidence, the trial court has examined the
testimonies of PWs 1-5, 10, 13 and 15. We have, above, discussed PWs
1, 2, 3, and 4 along with 15. We now proceed to discuss PWs 10, and 13,


36 (2020) 10 SCC 573 [3 Judge Bench]
37 Criminal Appeal No.1786 Of 2023 [2 Judge Bench]
       MANJUNATH & ORS. v. STATE OF KARNATAKA                             755
                [SANJAY KAROL, J.]

independently. PW5, although classified as a circumstantial witness, a
reading of the same suggests the witness to be an eyewitness.
     24.1 PW10 stated that upon seeing the group of persons, I ran in
     different directions with him running towards Thadhooru. While there,
     he heard of his brother (deceased) having sustained various injuries.
     Pursuant to such information he went to the hospital where he stated
     that the deceased himself stated that “Manjunath and his henchmen
     of our village assaulted him” he stated, he never went to the place
     where the deceased was lying nor could he say who informed him of
     his brother’s injuries. Hence, his statement is the nature of hearsay.
     24.2 The circumstances, which are mentioned within the testimonies
     relied on by the trial court, we find, that they do not, conclusively
     point to the guilt of all the accused. The following conclusions from
     the circumstantial evidence on record, support our conclusion- apart
     from PW15 none of the witnesses relied on, name all accused persons;
     a group of 25 to 30 people is generally referred to- a general description
     does not indicate guilt. Secondly, the factum of enmity although
     repeatedly testified to by numerous witnesses, upon itself cannot thrust
     upon the accused, the guilt for having killed the deceased person. This
     view is supported by the fact that the criminal case lodged as a result of
     the altercation between a brother of the deceased and certain accused
     persons resulted in their acquittal, as has been noted by the trial court.
     24.3 It is true that certain witnesses such as PW4 categorically
     mentioned certain accused persons holding particular weapons. As a
     solitary aspect, it can be seen as indicating a particular act done by
     the accused, aiding the death of the deceased person. However, the
     medical evidence of PW1 negates that possibility as well. The relevant
     extract of the testimony is reproduced: –
     “ I see the clubs at M.O. 3. they are of about 4 feet length and 3 inches
     in diameter. If a person is assaulted repeatedly by such clubs, he would
     sustain several abrasions, contusions and lacerations.
     When I examined the deceased Byregowda clinically, I did not found
     any abrasions lacerations of contusions on his back or chest and so
     also on the abdomen. I did not find any incised injury on the body of
     the deceased.”
756           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      24.4 While it may be true that the deceased had died due to injuries
      sustained, as the above-extracted testimony of PW1 shows, the said
      injuries could not have been caused as a result of the weapons that
      the accused persons were allegedly yielding, and the ones that were
      supposedly recovered at their instance.
      24.5 It is on both these counts, we find the circumstantial evidence
      on record, not to conclusively point towards guilt of the accused
      persons. We further find the eyewitness testimony to also be rendered
      questionable, since the weapons, which the accused were holding, and
      were subsequently recovered at their instance, do not correspond to
      the injuries found on the body of the deceased, as borne out from the
      cross-examination of PW1, reproduced supra.
     25. The next aspect is the recovery of the alleged weapons, we have
noted the particulars thereof while discussing the findings of the Trial Court.
Such recoveries were discarded by the trial court stating that the clubs were
recovered from a place accessible to the public and, the chopper and the
rods were recovered from a house where other persons were also residing
which compromises the sanctity of such recovery and takes away from the
veracity thereof.
      26. Further discovery made, to be one satisfying the requirements
of Section 27, Indian Evidence Act it must be a fact that is discovered
as a consequence of information received from a person in custody. The
conditions have been discussed by the Privy Council in Pulukuri Kotayya
v. King Emperor38 and the position was reiterated by this Court in Mohd.
Inayatullah v. State of Maharashtra39, in the following terms:-
      “12…It will be seen that the first condition necessary for bringing
      this section into operation is the discovery of a fact, albeit a relevant
      fact, in consequence of the information received from a person
      accused of an offence. The second is that the discovery of such fact
      must be deposed to. The third is that at the time of the receipt of the
      information the accused must be in police custody. The last but the



38 1946 SCC OnLine PC 47
39 (1976) 1 SCC 828
        MANJUNATH & ORS. v. STATE OF KARNATAKA                           757
                 [SANJAY KAROL, J.]

     most important condition is that only “so much of the information”
     as relates distinctly to the fact thereby discovered is admissible. The
     rest of the information has to be excluded. The word “distinctly”
     means “directly”, “indubitably”, “strictly”, “unmistakably”. The
     word has been advisedly used to limit and define the scope of the
     provable information. The phrase “distinctly relates to the fact thereby
     discovered” is the linchpin of the provision. This phrase refers to that
     part of the information supplied by the accused which is the direct and
     immediate cause of the discovery…”
                                                       (Emphasis supplied)
      27. Prima facie, in the present facts, the 3 conditions above appear
to be met. However, 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. We find this approach of
the trial court to be correct.
     27.1 This court has, in various judgments, clarified this position.
     Illustratively, in Jaikam Khan v. State of U.P40 it was observed: –
           “One of the alleged recoveries is from the room where deceased
           Asgari used to sleep. The other two recoveries are from open
           field, just behind the house of deceased Shaukeen Khan i.e. the
           place of incident. It could thus be seen that the recoveries were
           made from the places, which were accessible to one and all and
           as such, no reliance could be placed on such recoveries.”
                                                       (Emphasis supplied)
     27.2 Also, in Nikhil Chandra Mondal v. State of W.B.41 the Court
     held:-
     “20. The trial court disbelieved the recovery of clothes and weapon on
     two grounds. Firstly, that there was no memorandum statement of the
     accused as required under Section 27 of the Evidence Act, 1872 and
     secondly, the recovery of the knife was from an open place accessible


40 (2021) 13 SCC 716
41 (2023) 6 SCC 605
758          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      to one and all. We find that the approach adopted by the trial court
      was in accordance with law. However, this circumstance which, in our
      view, could not have been used, has been employed by the High Court
      to seek corroboration to the extra-judicial confession.”
                                                         (Emphasis supplied)
       28. As reflected from record, and in particular the testimony of PW-15
it is clear that the discoveries (stick as shown by A10, for instance) was a
eucalyptus stick, found from the eucalyptus plantation, which indisputably,
is a public place and was found a week later. A second and third stick
purportedly found half kilometre away on that day itself, was found by a
bush, once again, a place of public access. Two further sticks recovered at the
instance A6 and A7, were also from public places. An iron chain produced
from the house of A1 and A2, is not free from the possibility that any of
the other occupants of their house were not responsible for it. We, further
cannot lose sight of the fact that sticks, whether bamboo or otherwise, are
commonplace objects in village life, and therefore, such objects, being hardly
out of the ordinary, and that too discovered in places of public access, cannot
be used to place the gauntlet of guilt on the accused persons.
      CONCLUSIONS
      29. Our conclusions, therefore, are thus:
      29.1 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. It is also not clear as to in front
of which of the relatives of deceased was the same taken down.
      29.2 The circumstantial evidence present on record does not point to
the hypothesis of the guilt of the accused persons, for the reasons discussed
above.
     29.3 None of the eyewitnesses-PWs 2, 3, 15, as referred to by the trial
court have succeeded in attributing a particular role to any of the accused
persons and equally so, to A-1 to A-5 and A-7, whose acquittals have been
overturned by the High Court.
        MANJUNATH & ORS. v. STATE OF KARNATAKA                            759
                 [SANJAY KAROL, J.]

     30. In our considered view, the view taken by the Trial Court was a
possible view and there being no error in correct and complete appreciation
of evidence as also application of law; the High Court, without assigning
any cogent reasons ought not to have interfered with such findings.
      31. For the aforesaid reasons, the judgment impugned before us in
Criminal Appeal Number 1795 of 2004 dated 21 September 2010, is set
aside. The appeal is, accordingly, allowed.
      32. Having allowed the appeals as above, we are constrained to observe
that the Criminal Appeal u/s 378 Code of Criminal Procedure, 1973 the
High Court has not appreciated the severity of the allegations involved to
the full extent. That a Court of Appeal should be circumspect in overturning
its judgment of acquittal, is not a principle that requires reiteration. It has
been held time and again that an acquittal will only be overturned in the
presence of very compelling reasons.42 Further, right from the Privy Council43
onwards, it is been held that the presumption of innocence in favour of the
accused is bolstered if the trial court hands down an acquittal.44 We find the
High Court not to have observed the said principles in deciding the appeals.
Quite opposite thereto, perfunctory reasons stand recorded to restore the
convictions of the Appellants herein. The observations of the trial court along
with the principle of a bolstered principle of innocence, were summarily cast
aside. The same cannot be said to be in accordance with the law.
     33. As a result, the acquittals handed down by judgment and order
dated 25th September 2004 in S.C. No. 162 of 1999, passed by the Additional
Sessions Judge- Presiding Officer, Fast Track Court-II, Kolar, are restored.
The judgment of conviction and sentence, as awarded by the High Court,
stands set aside.
      34. Since the sentence awarded by the High Court under Section 304
Part II of the IPC was for 4 years, and the application of exemption from
surrender was disallowed by this Court, vide order dated 13th December
2010, the Appellants appear to have already served the sentence awarded
to them.


42 Tulsiram Kanu v State AIR 1954 SC 1
43 Sheo Swarup v King Emperor AIR 1934 PC 227(2)
44 Ghurey Lal v State of U.P. (2008) 10 SCC 450
760            SUPREME COURT REPORTS                       [2023] 14 S.C.R.


     35. It is however directed, that the fine made payable by each of
the accused, as a result of the impugned judgment be refunded to them.
Consequently, bail bonds, if in effectuation, shall stand discharged. The
appeal is accordingly, allowed.
     36. In view of the above, interlocutory applications, if any, shall stand
disposed of.


Headnotes prepared by:                                          Appeal allowed.
Divya Pandey