MURALIDHAR @ GIDDA & ANR.versusSTATE OF KARNATAKA

                     (2014] 4 S.C.R. 817


              MURALIDHAR @ GIDDA & ANR.                            A
                               v.
                  STATE OF KARNATAKA
           (Criminal Appeal No. 551 of 2011 etc.)
                       APRIL 09, 2014.
                                                                   B
      [R.M. LODHA AND SHIVA KIRTI SINGH, JJ.]

     EVIDENCE:

      Dying declaration - Evidentiary value of -- Trial of         c
accused for offences punishable u/ss. 302, rlw s. 149 and s.
148 /PC - Witnesses turned hostile - Prosecution case based
on dying declaration - Acquittal by trial court - Conviction by
High Court - Held: If the dying declaration is recorded not
directly from the actual words of the maker. but as dictated by    0
somebody else, this by itself creates suspicion about
credibility of such statement and prosecution has to clear the.
same to the satisfaction of court - In the instant case, dying
declaration was not recorded in actual words of victim, but was
recorded by witness on the dictation of PSI - Further, there was   E
overwriting on the time of recording of statement as also
insertion of two names in different ink - On facts, trial court
rightly did not consider it safe to rely upon dying declaration
and rightly acquitted the accused - High Court without
considering the principles of dealing with an appeal against       F
acquittal erred in upsetting the judgment of acquittal -
Judgment of High Court set aside -Penal Code, 1860 -- ss.
302, rlw s. 149 and s. 148 /PC.
    APPEAL:
                                                                   G
    Appeal against acquittal - Principles of hearing an appeal
against acquittal - Culled out..
    The five appellants (A1 to A4 and AS) along with AS
were prosecuted for commission of offences punishable
                           817                                     H
    818    SUPREME COURT REPORTS             [2014] 4 S.C.R.


A u/ss. 302, 307, 144, 148 read wifh 149, IPC, on the basis
  of the statement made by the victim that while he was
  sitting in front of a shop, the six accused attacked him
  and PW4. The victim died subsequently and his
  statement became the dying declaration. The three eye
B - witnesses, namely, PW4, PW5 and PW15 turned hostile.
  The trial court held that the dying declaration did not
  inspire confidence and acquitted the accused. Howeyer,
  the High Court maintained the acquittal of A5, but
  convicted accused- appellant A1 to A4 and A6 u/s 302 r/
c w s.149 and s. 148 IPC on the basis of the dying
  declaration alone, and sentenced them to imprisonment
  for life.

      . Allowing the appeal, the Court

D      HELD: 1.1 Sanctity is attached to a dying declaration
  because it comes from the mouth of a dying person. If
  the dying declaration is recorded not directly from the
  actual words of the maker but as dictated by somebody
  else, this by itself creates suspicion about credibility of
E such statement and the prosecution has to clear the
  same to the satisfaction of the court. In the instant case,
  the trial court on an over-all consideration of the evidence
  of PW-25, PW-30 and PW-36 coupled with the facts that ·
  the dying declaration was recorded by PW30 as dictated
F by PW36 (PSI) and was not in actual words of maker, and
  that there was over-writing about the time at which the
  statement was recorded and also insertion of two names
  by different ink, did not consider it safe to rely upon the
  dying declaration and acquitted the accused for want of
  any other evidence. In the circumstances, it cannot be
G said that the view taken by the trial court on the basis of
  evidence on record was not a possible view. The accused
  were entitled to the benefit of doubt which was rightly
  given to them by the trial court. [Para 19] (830-0-G]
H
   MURALIDHAR@ GIDDA & ANR. v. STATE OF                    819
              KARNATAKA
    1.2 This Court has consistently held that in dealing          A
with appeals against acquittal, the appellate court must
bear in mind the following:

    (i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened
                                                                  B
by the order of acquittal passed in his favour by the trial
court;

    (ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal;                                         c
      (iii) Though, the power of the appellate court in
considering the appeals against acquittal are as extensive
as its powers in appeals against convictions, but the
appellate court is generally loath in disturbing the finding 0
of fact recorded by the trial court. It is so because the
trial court had an advantage of seeing the demeanor of
the witnesses. If the trial court takes a reasonable view
of the facts of the case, interference by the appellate
court with the judgment of acquittal is not justified. . E
Unless, the conclusions reached by the trial court are
palpably wrong or based on erroneous view of the law
or if such conclusions are allowed to stand, they are
likely to result in grave injustice, the reluctance on the
part of the appellate court in interfering with such
conclusions is fully justified; and                          F

     (iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is inclined
to take a different view, interference with the judgment of
acquittal is not justified if the view taken by the trial court   G
is a possible view. The evenly balanced views of the
evidence must not result in the interference by the
appellate court in the judgment of the trial court. [Para 12]
[828-A-F]
                                                                  H
    820       SUPREME COURT REPORTS              [2014] 4 S.C.R.


A        Surajpal Singh v. State 1952 SCR 193 =AIR 1952 SC
    52; Tulsiram Kanu v. State AIR 1954 SC 1; Madan Mohan
    Singh v. State of UP. AIR 1954 SC 637; Alley v. State of U.P.
    AIR 1955 SC 807; Aher Raja Khima v. State of Saurashtra
    1955 SCR 1285 = AIR 1956 SC 217; Balbir Singh v. State
B   of Punjab AIR 1957 SC 216; Madan Mohan Singh v. State
    of UP. AIR 1954 SC 637; Atley v. State of UP. AIR 1955
    SC 807; M.G. Agarwal v. State of Maharashtra 1963 SCR
    405 = AIR 1963 SC 200; Noor Khan v. State of Rajasthan
    1964 SCR 521 = AIR 1964 SC 286; Khedu Mohton v. State
C   of Bihar 1971 (1) SCR 839 = (1970) 2 SCC 450; Shivaji
    Sahabrao Bobade v. State of Maharashtra 1974 (1) SCR 489
    = (1973) 2 SCC 793; Lekha Yadav v. State of Bihar (1973)
    2 SCC 424; Khem Karan v. State of UP. 1974 ( 3 ) SCR
          =
    863 (1974) 4 SCC 603; Bishan Singh v. State of Punjab
D   (1974) 3 SCC 288; Umedbhai Jadavbhai v. State of Gujarat
    1978 (2) SCR 471= (1978) 1 sec 228; K. Gopal Reddy v.
    State of A.P. 1979 (2) SCR 265 = (1979) 1 SCC 355; Tota
    Singh v. State of Punjab 1987 (2) SCR 747 =(1987) 2 SCC
    529; Ram Kumar v. State of Haryana 1994 (4) Suppl. SCR
          =
    335 1995 Supp (1) SCC 248; Madan Lal v. State of J&K
E                             =
    1997(3) Suppl. SCR 337 (1997) 7 SCC 677; Sambasivan
    v. State of Kera/a 1998 ( 3) SCR 280 = (1998) 5 SCC 412;
    Bhagwan Singh v. State of M.P. (2002) 4 SCC 85; Harijana
    Thirupala v. Public Prosecutor, High Court of A.P. 2002 (1)
    Suppl. SCR 379 = (2002) 6 SCC 470; C. Antony. v. K. G.
F   Raghavan Nair (2003)1 SCC 1; State of Karnataka v. K.
    Gopalakrishna (2005) 9 SCC 291; State of Goa v. Sanjay
    Thakran 2001 (3) SCR 507 = (2007) 3 SCC 755;
    Chandrappa v. State of Karnataka 2007 (2) SCR 630          =
    (2007) 4 SCC 415; Ghurey Lal v. State of U.P. 2008 (11) SCR
G   499 = (2008) 10 sec 450 - relied on.
        Sheo Swarup v. King Emperor AIR 1934 Privy Council
    227 - referred to.
      1.3 In the instant case, the High Court on
H consideration of the same evidence took a different view
    MURALIDHAR@ GIDDA & ANR. v. STATE OF                 821
               KARNATAKA
and interfered with the judgment of acquittal without           A
properly keeping in mind that the presumption of
innocence in favour of the accused has been
strengthened by their acquittal from the trial court and the
view taken by the trial court as to the credibility of Ext.P-
22 and the evidence of PW-25, PW-30 and PW-36 was a             B
possible view. The High Court while upsetting the
judgment of acquittal has not kept in view the well
established principles in hearing the appeal from the
judgment of acquittal. Accordingly, the judgment of the
High Court is set aside and that of the Court of Session,       c
restored. [Para 20-21] [830-G-H; 831-A-C]
                     Case Law Reference:
    AIR 1934 Privy Council 227 referred to        para 10
    1952 SCR 193                   relied on      para 12       D

    AIR 1954 SC 1                  relied on      para 12
    AIR 1954 SC 637                relied on      para 12
    AIR 1955 SC 807                relied on      para 1~       E
    1955 SCR 1285                  relied on      para 12
    AIR 1957 SC 216                relied on      para 12
    1963 SCR 405                   relied on      para 12
                                                                F
    1964 SCR 521                   relied on      para 12
    1971 (1) SCR 839               relied on      para 12
    1974 (1) SCR 489               relied on      para 12
                                                                G
    1974 (3) SCR 863               relied on      para 12
    (1974) 3 sec 288               relied on      para 12
    1978 (2) SCR 471               relied on      para 12
    1979 (2) SCR 265               relied on      para 12       H
    822      SUPREME COURT REPORTS               [2014] 4 S.C.R.


A         1987 (2) SCR 747               relied on     para 12
          1994 (4) Suppl. SCR 335        relied on     para 12
          1997 (3) Suppl. SCR 337        relied on     para 12
          1998 (3) SCR 280               relied on     para 12
B
          (2002) 4 sec 85                relied on     para 12
          2002 (1) Suppl. SCR 379        relied on     para 12
          (2003) 1 sec 1                 relied on     para 12
c
          (2005) 9 sec 291               relied on     para 12
          2007 (3) SCR 507               relied on     para 12
          2007 (2) SCR 630               relied on     para 12
D         2008 (11) SCR 499              relied on     para 12

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 551 of 2011.

        From the Judgment and Order dated 21.10.2010 of the
E   High Court of Karnataka at Bangalore in Criminal Appeal No.
    656 of 2005.
                                  WITH
    Criminal Appeal Nos. 791 and 1081 of 2011.
F
        Sanjay R. Hegde, H. Chandra Shekhar, V.K. Biju, S. Nithin,
    K.M.D. Muhilan, A.V. Manavalan for the Appellants.

          V.N. Raghupathy for the Respondent.

G         The Judgment of the Court was delivered by

        R.M. LODHA, J. 1. These three criminal appeals arise
    from the common judgment and, therefore, they were heard
    together and are being disposed of by the common judgment.
H
    MURALIDHAR @ GIDDA & ANR. v. STATE OF                      823
          KARNATAKA [R.M. LODHA, J.]
    2. The statement (Ex.P-22) recorded by the police on              A
17.08.2002 between 9.55 P.M. and 10.20 P.M. at K.R. Hospital,
Mandya triggered the prosecution of the appellants and one
Swamy. Ex.P-22 is in Kannada, which in English translation
reads:
                                                                      8
     ''The statement of Pradeep son of Swamygowda, 28
     years, Vakkal.igaru by community, agriculturist residing at
     Majigepura village, Srirangapatna Taluk. Today at about
     8.30 p.m. night, I was sitting in front of shaving shop by
     the side of shop of Javaregowda on K.R.S. - Majigepura           C
     Road along with Vyramudi, Prakash and Umesh. At that
     time Naga, S/o Ammayamma, Jagga S/o Sentu Kumar's
     sister, Gunda, Gidda, S/o Fishari Nanjaiah, Swamy, Manju
     and Hotte Ashoka and others who were having old enmity
     assaulted me by means of chopper, long on my hand,
     head, neck and on other parts of the body with an intention      D
     to kill me and they have assaulted Umesh who was with
     me. Vyramudi said do not kill us and went away. Prakash
     ran away. Please take action against those who have
     attempted to kill me."
                                                                      E
     3. After registration of the First Information Report (Exhibit
P-5) on the basis of the above statement made by Pradeep
which has become dying declaration in view of his death, the
investigation commenced. In the course of investigation, 37
witnesses were examined. The investigating officer, on                F
completion of investigation, submitted challan against Naga @
Bagaraju (A-1), Jaga@ Santhosh Kumar (A-2), S. Sathish@
Gunda (A-3), Muralidhar@ Gidda (A-4), Swamy@ Koshi (A-
5) and Manju (A~6).

     4. The concerned Magistrate then committed the accused           G
to the court of Sessions for trial. The Court of Sessions Judge,
Fast Track Court-I, Mandya conducted the trial against A-1 to
A-6 for the offences punishable under Sections 302, 307, 144,
148 read with Section 149 of the Indian Penal Code, 1860 (for
                                                                      H
    824       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A short, "IPC"). The prosecution examined 37 witnesses of wtiich
  PW-4 (Umesha), PW-5 (Prakash) and PW-15 (Vyramudi) were
  produced as eye-witnesses. Exhibit P-22 is recorded by PW-
  30 (Rajashekar) on the oration of PW-36 (Kodandaram, PSI)
  in the presence of PW-25 (Dr. Balakrishna).
B
      5. The three eye-witnesses PW-4, PW-5 and PW-15 have
  turned hostile to the case of prosecution and have not
  supported the prosecution version at all. lri the circumstances,
  the only evidence that has become significant is the dying
  declaration (Ex.P-22). The trial court by its judgment dated
C 28.09.2004 on consideration of the entire oral and documentary
  evidence reached the conclusion that prosecution had failed to
  prove the offence against the accused persons and,
  accordingly, acquitted them.

o       6. The State of Karnataka preferred an appeal before the
  'Karnataka High Court against the judgment of the Fast Track
   Court-I, Mandya acquitting the accused. The High Court on
   hearing the public prosecutor and the counsel for the accused
   vide its judgment dated 21.10.2010 maintained the acquittal of
E A5 (Swamy) but convicted A 1 to A4 and A6 for the offences
   under Section 302 read with Section 149 IPC and sentenced
   them to undergo imprisonment for life with fine and defaulting
   sentence. The High Court has also convicted them for the,
   offence under Section 148 IPC and they were sentenced         to
F suffer rigorous imprisonment for one year. Both sentences have
   been ordered to run concurrently. It is from this judgment that
   these appeals, by special leave, have arisen.

      7. The High Court has convicted the appellants on the
  basis of dying declaration alone, as in its view the· dying
G declaration is credible and genuine. In this regard, the
  reasoning of the High Court is broadly reflected in paragrap~s
  16 and 17 which reads as follows:

          "16. Having heard both sides and carefully gone through
H         the evidence of the witnesses and on reappreciation of the
MURALIDHAR @ GIDDA & ANR. v. STATE OF                    825
      KARNATAKA [R.M. LODHA, J.]

evidence we find that Ex. P22 which is the dying·               A
declaration of the deceased has been recorded naturally
and truthfully. PW25 - Doctor has categorically stated that
the injured was in a position to speak and give statement
and further he has signed Ex.P.22. Under these
circumstances, it could be gathered that PW25 - the             B
Medical Officer was not only a person present when Ex.
P.22 was recorded, but also asserted that the patient was
in a position to give such statement. However, on a careful
scrutiny of Ex.P.22, it is seen that the name of Swamy -
Accused No.5 has been added subsequently and there is           c
no initial of any officer by the side of the name of Swamy
and the colour of the ink differs from the other handwriting.
In view of the foregoing discussions we hold that the dying
declaration of deceased Pradeep - Ex. P.22 is genuine
and has been recorded by PW30 - Rajshekhar in the
                                                                0
presence of PW25 - Dr. Balakrishan when the decea!)ed
was in fit condition to give statement and hence, a
conviction can be based on the said dying declaration.

17. So far as the capacity of the deceased to narrate the
incident regarding the cause of his injuries is concerned,      E
on perusal of Ex. P.3 the accident register it is clear that
Ex.P.3 w~ brought into existence at 9.30 p.m. and in
Ex.P3 it is mentioned that the assault was by six persons
and the names of all the six persons are mentioned therein
without any over writing. The over writing pertains only to     F
the presence of Vyramudi and it is the contention of the
learned counsel for the accused that over the name of
Vyramudi name of Pradeep is written. In Ex.P.23 -
requisition letter it is seen that signature of Vyramudi is
separately taken by the doctor as brought by him and,           G
therefore, the presence of either Vyramudi or Pradeep in
the hospital at the time when the deceased was brought
to the hospital cannot be disputed at all."

8. The trial Court, however, held that it was not safe to act   H
    826       SUPREME COURT REPORTS                       [2014] 4 S.C.R.


A on the dying declaration (Ex.P-22). The trial court on
  consideration of Ex.P-22 and the evidence of PW-25, PW-36
  and PW-30 concluded that the time of recording Ex. P-22 did
  not inspire confidence and the credibility of Exhibit P-22 had
  not been established to the satisfaction of the court and
a conviction cannot be based on Exhibit P-22 and the deposition
  of PW-36, PW-25 and PW-30.

      9. The only question that arises for our consideration in
  these appeals is, whether the High Court was justified in
C upsetting the view of the trial court on re-appreciation of the
  evidence of PW-25, PW-30 and PW-36 and Exhibit P-22.

        10. Lord Russell in Sheo Swarup 1, highlighted the
  approach of the High Court as an appellate court hearing the
  appeal against acquittal. Lord Russell said," ... the High Court
D should and will always give proper weight and consideration
  to such matters as (1) the views of the trial Judge as to the
  credibility of the witnesses; (2) the presumption of innocence
  in favour of the accused, a presumption certainly not weakened
  by the fact that he has been acquitted at his trial; (3) the right
E of the accused to the benefit of any doubt; and (4) the slowness
  of an appellate court in disturbing a finding of fact arrived at by
  a Judge who had the advantage of seeing the witnesses." The
  opinion of the Lord Russell has been followed over the years.

       11. As early as in 1952, this Court in Surajpal Singh2 while
F dealing with the powers of the High Court in an appeal against
  acquittal under Section 417 of the Criminal Procedure Code
  observed, " .......... the High Court has full power to review the
  evidence upon which the order of acquittal was founded, but it
  is equally well settled that the presumption of innocence of the
G accused is further reinforced by his acquittal by the trial court,
  and the findings of the trial court which had the advantage of
  seeing the witnesses and hearing their evidence can be

    1.   Sheo Swarup v. King Emperor (AIR 1935 Privy Ciouncil 227].
H   2.   Surajpal Singh v. State; [AIR 1952 SC 52].
      MURALIDHAR @ GIDDA & ANR. v. STATE OF                               827
            KARNATAKA [R.M. LODHA, J.]
 reversed only for very substantial and compelling reasons."                      A
     12. The approach of the appellate court in the appeal
 against acquittal has been dealt with by this Court in Tu/siram
 Kanu 3, Madan Mohan Singh 4 , Atley 5 , Aher Raja Khima 6,
 Balbir Singh 7, M.G. Agarwa/8, Noor Khan 9, Khedu Mohton 10,
                                                                                  B
 Shivaji Sahabrao Bobade 11 , Lekha Yadav12, Khem Karan 13,
 Bishan Singh 14, Umedbhai Jadavbhai 15, K. Gopa/ Reddy16,
 Tota Singh 17, Ram Kumar18, Madan La/ 19, Sambasivan 20,
 Bhagwan Singh 21 , Harijana Thirupa/a 22, C. Antony23, K.
 Gopalakrishna24, Sanjay Thakran 25 and Chandrappa 26 • It is
                                                                                  c
 3.   Tulsiram Kanu v. State; [AIR 1954 SC 1].
 4.   Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637].
 5.   Alley v. State of U.P.; [AIR 1955 SC 807].
 6.   Aher Raja Khima v. State of Saurashtra;      [AIR 1956 SC 217].
 7.   Balbir Singh v. State of Punjab; [AIR 1957 SC 216).                         D
 8.   M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200].
 9.   Noor Khan v. State of Rajasthan; [AIR 1964 SC 286).
 10. Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450] .
. 11. Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793].
 12. Lekha Yadav v. State. of Bihar; [(1973) 2 SCC 424].                          E
 13. Khem Karan v. State of U.P.; [(1974) 4 SCC 603].
 14. Bishan Singh v. State of Punjab; [(1974) 3 SCC 288).
 15. Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228].
 16. K. Gopal Reddy v. State of A.P.; [(1979) 1 SCC 355].
 17. Tota Singh v. State of Punjab [(1987) 2 SCC 529].                            F
 18. Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248].
 19. Madan Lal v. State of J&K; [(Hl97) 7 SCC 677].
 20: Sambasivan V. State of Kerala; [(1998) 5 sec 412].
 21. Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85].
 22. Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002) 6 SCC   G
     470].
 23: C. Antony v. K. G. Raghavan Nair; [(2003)1 SCC 1].
 24. State of Kamataka v. K. Gopalakrishna; [(2005) 9 SCC 291].
 25. State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755].
 26. Chandrappa v. State of Kamataka; [(2007) 4 SCC 415].                         H
    828        SUPREME COURT REPORTS                        [2014] 4 S.C.R.

A not necessary to deal with these cases individually. Suffice it
  to say that this Court has consistently held that in dealing with
  appeals against acquittal, the appellate court must bear in mind
  the following: (i) There is presumption of innocence in favour
  of an accused person and such presumption is strengthened
B by the order of acquittal passed in his favour by the trial court,
  (ii) The accused person is entitled to the benefit of reasonable
  doubt when it deals with the merit of the appeal against
  acquittal, (iii) Though, the power' of the appellate court in
  considering the appeals against acquittal are as extensive as
c its powers in appeals against convictions but the appellate court
  is generally loath in disturbing the finding of fact recorded by
  the trial court. It is so because the trial court had an advantage
  of seeing the demeanor of the witnesses. If the trial court takes
  a reasonable view of the facts of the case, interference by the
  appellate court with the judgment of acquittal is not justified.
0
  Unless, the conclusions reached by the trial court are palpably
  wrong or based on erroneous view of the law or if such
  conclusions are allowed to stand, they are likely to result in
  grave injustice, the reluctance on the part of the appellate court
  in interfering with such conclusions is fully justified, and (iv)
E Merely because the appellate court on re-appreciation and re-
  evaluation of the evidence is inclined to take a different view,
  interference with the judgment of acquittal is not justified if the
  view taken by the trial court is a possible view. The evenly
  balanced views of the evidence must not result in the
F interference by the appellate court in the judgment of the trial
  court.

        13. In Ghurey LaP7 , the Court has culled out the principles
  relating to the appeals from a judgment of acquittal which are
G in line with what we have observed above.

         14. Now, we shall examine whether or not the impugned
    judgment whereby the High Court interfered with the judgment
    of acquittal is justified.
H   27. Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450].
    MURALIDHAR @ GIDDA & ANR. v. STATE OF                    829
          KARNATAKA [R.M. LODHA, J.]

     15. Of the 37 witnesses examined by the prosecution, PW~       A
4, PW-5 and PW-15 are the eye-witnesses but they have
turned hostile to the case of prosecution. The first medical
examination of the deceased Pradeep and so also the injured
Umesha was done by PW1 (Dr. Latha) at about 9.30 P.M. on
17.08.2002. She has not certified that Pradeep was in fit state     B
to make any statement. PW-25 (Dr. Balakrishna) at the relevant
time was AS$istant Professor of Surgery at K.R. Hospital where
deceased Pradeep was taken immediately after the incident.
At about 9:40 p.m. on 17.08.2002, PW-36 (Kodandaram, PSI)
gave a memo to PW-25 stating that one patient (Pradeep) was         c
admitted in the hospital and requested him to verify as to
whether the patient was in a position to give statement. In his
cross-examination, PW-25 has stated that at 9.35 P.M., he saw
the patient (Pradeep) when he was kept in operation theatre
of casualty for emergency treatment. He has also deposed that       D
a group of doctors was providing treatment to him. His
deposition does not establish that Pradeep was under his
treatment. The recording of Pradeep's statement by a
constable (PW-30) as dictated by PW-36 (PSI) in this situation
raises many questions. The trial court found this absurd. It is
                                                                    E
the prosecution version that PW-30 has recorded Ex.P-22 as
dictated by PW-36 (PSI). Thus, Ex.P-22 is not in actual words
of the maker. The trial court in this background carefully
considered the evidence of PW-25, PW-30 and PW-36 along
with Ex.P-22. The trial court has noted that PW-25 failed to
confirm in his testimony that he was treating deceased              F
Pradeep when he was brought to the hospital. Moreover, PW-
25 admitted over-writing with regard to the time written on Ex.P-
22. The trial court also observed that though there was lot of
bleeding injuries found on the person of Pradeep, PW-25 did
not say anything about the quantity of loss of blood.               G

    16. Dealing with the testimony of PW-30, the trial court has
observed that in his cross-examination, he has admitted that
he did not record the statement in the words of the maker
(Pradeep) but wrote the statement as dictated by PW-36.             H
    830     SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A   Moreover, PW-30 in his cross-examination had admitted that
    at the time Pradeep was attended to by the doctors, he was
    not inside.

         17. Then, in respect of Ex.P-22, the trial court observed
    that the names of accused Gunda (A-3) and Swamy (A-5)
8
    appear to have been inserted in different ink later on.

        18. On a very elaborate consideration of the entire
   evidence, the trial court was of the view that Ex.P-22 did not
   inspire confidence and the credibility of Ex.P-22 has not been
C established to the satisfaction of the court. Accordingly, the trial
   court held that conviction of the accused persons cannot be
   based on Ex.P-22 and the deposition of PW-36, PW-25 and
 . PW-30.

0       19. The sanctity is attached to a dying declaration because
  it comes from the mouth of a dying person. If the dying
  declaration is recorded not directly from the actual words of the
  maker but as dictated by somebody else, in our opinion, this'
  by itself creates a lot of suspicion about credibility of such
  statement and the prosecution has to clear the same to the
E satisfaction of the court. The trial court on over-all consideration
  of the evidence of PW-25, PW-30 and PW-36 coupled with the
  fact that there was over-writing about the time at which the
  statement was recorded and also insertion of two names by
  different ink did not consider it safe to rely upon the dying
F declaration and acquitted the accused for want of any other
  evidence. In the circumstances, in our view, it cannot be said
  that the view taken by the trial court on the basis of evidence
  on record was not a possible view. The accused were entitled
  to the benefit of doubt which was rightly given to them by the
G trial court.

       20. The High Court on consideration of the same evidence
  took a different view and interfered with the judgment of
  acquittal without properly keeping in mind that the presumption
H of innocence in favour of the accused has been strengthened
    MURAUDHAR@ GIDDA & ANR. v. STATE OF                       831
         KARNATAKA [R.M. LODHA, J.]
by their acquittal from the trial court and the view taken by the    A
trial qourt as to the credibility of Ex.P-22 and th~ evidence of
PW-25, PW-30 and PW-36 was a possible view. The High
Court while upsetting the judgment of acquittal has not kept in
view the well established principles in hearing the appeal from
the judgment of acquittal.                                           B

     21. Accordingly, the appeals are allowed. The impugned
judgment is set aside. The judgment of the court of Sessions
Judge, Fast Track Court-I at Mandya dated 28.09.2004 is
restored. The appellants shall be set at liberty forthwith, if not   C
required in any other case.

R.P.                                            Appeal allowed.