TMI Blog2015 (9) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants and one Swamy. Ex.P-22 is in Kannada, which in English translation reads: The statement of Pradeep son of Swamygowda, 28 years, Vakkaligaru 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 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 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. 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 completion of inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reappreciation of the evidence we find that Ex. P22 which is the dying 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 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 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 presence of PW25 Dr. Balakrishan when the deceased 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, on pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 reversed only for very substantial and compelling reasons. 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State;[AIR 1954 SC 1] , Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637] , Atley v. State of U.P.; [AIR 1955 SC 807] , Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217] , Balbir Singh v. State of Punjab; [AIR 1957 SC 216] , M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200] , Noor Khan v. State of Rajasthan; [AIR 1964 SC 286] , Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450], ,Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793] , Lekha Yadav v. State of Bihar; [(1973) 2 SCC 424] Khem Karan v. State of U.P.; [(1974) 4 SCC 603] , Bishan Singh v. State of Punjab; [(1974) 3 SCC 288] , Umed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 13. In Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450], the Court has culled out the principles relating to the appeals from a judgment of acquittal which are 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. 15. Of the 37 witnesses examined by the prosecution, PW-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 to make any statement. PW-25 (Dr. Balakrishna) at the relevant time was Assistant 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 Ex.P-22 and the 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. 21. Accordingly, the appeals are allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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