Thurukanni Pompiah And Anr. vs State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 September 1964

Coram: A.K. Sarkar, N. Rajagopala Ayyangar, R.S. Bachawat

The case, Thurukanni Pompiah and Another versus State of Mysore, was decided by the Supreme Court of India on 25 September 1964, with the judgment authored by Justice R.S. Bachawat. The accused were Thurukanni Pompiah, Siddaiah, Singapurada Hussaini and Nitravatti Rudramuni, each charged under Section 302 of the Indian Penal Code for allegedly murdering Ullegadde Eranna. The alleged murder was said to have occurred on 29 September 1961 at about eleven a.m. on the road between Kampli and Shanapur, roughly a mile from the town. The Sessions Judge at Bellary convicted all four persons of an offence under Section 325 read with Section 34 of the Indian Penal Code and imposed a term of imprisonment of three years on each. All four accused, as well as the State, promptly filed separate appeals challenging the Sessions Court’s judgment in a timely manner. The High Court dismissed the appeals of Pompiah and Hussaini, upheld their convictions, but allowed the appeals of Siddaiah and Rudramuni, setting aside their convictions and acquitting them. The State also appealed, and the High Court allowed the State’s appeal in part, altering the convictions of Pompiah and Hussaini to Section 326 read with Section 34 and increasing their imprisonment to four years. Pompiah and Hussaini then filed applications seeking special leave to appeal the High Court’s order to this Supreme Court. The deceased, Eranna, was a resident of Tekkalakota village in Sirugappa Taluk of Bellary District and had been a close friend of Pompiah. Pompiah maintained a mistress named Shankaramma; during visits by Eranna to Pompiah’s house, Eranna formed an intimate relationship with Shankaramma, leading Pompiah to expel her. Later Eranna kept Shankaramma as his own mistress, and this development caused a strain in the friendship between Eranna and Pompiah. Siddaiah and Pompiah were brothers, Rudramuni was the husband of their sister, and Hussaini was employed as a farm servant in their household; the prosecution alleged that the enmity provided the motive for the murder. According to the prosecution, on the morning of 29 September 1961 Eranna set out from Kampli to Shanapur to visit Shankaramma. While traveling on the road that branched toward Mushtur, he was attacked by the four accused who were armed with sickles and sticks. The prosecution stated that Eranna suffered several incised and stab wounds, fell on the roadside, and that his injuries consisted of a wound on the right shoulder and an internal lung injury. In addition, he sustained multiple injuries to the lower portions of his hands and legs, as documented by the medical report. Shortly after the assault, while still at the spot where he fell, Eranna gave two separate statements that were recorded as exhibits P‑2 and P‑1(a). He was subsequently taken to the hospital at Kampli, and at approximately twelve fifteen p.m. he made another declaration, which was entered into the trial record.

Exhibit P‑9 recorded that Eranna died in the Kampli hospital on the same day, around two thirty in the afternoon, and that his death resulted from shock and haemorrhage caused by the injuries he had sustained. The prosecution alleged that four eyewitnesses to the assault were Shaik Sab, Sha Sab, Bandeppa and Korappa. The High Court rejected the testimony of those witnesses and decided that no eyewitness to the assault existed. Nevertheless, the High Court accepted the prosecution’s presentation of exhibits P‑2, P‑1(a) and P‑9. Both exhibits P‑2 and P‑1(a) had been written by a man named Chennaiah, who recorded Eranna’s statements at the scene of the incident. Exhibit P‑2 had been prepared in the presence of a person named Tippanna and was addressed to Veerabhadrappa, Eranna’s brother‑in‑law, urging him to come to Kampli immediately because Pompiah, Hussaini and other villagers had attacked Eranna on his way to Shanapur, cutting his legs and hands with sickles and axes; the document did not mention Siddaiah or Rudramuni. Following Eranna’s request, Tippanna delivered Exhibit P‑2 to the Kampli police station and informed Head Constable Gangadhar that Eranna lay injured on the roadside between Kampli and Shanapur. Immediately after the preparation of Exhibit P‑2, Chennaiah entered the statement in Eranna’s diary, designated Exhibit P‑1(a), indicating that all four accused had assaulted Eranna; this note was placed in Eranna’s shirt pocket. During the inquest held later that afternoon, Head Constable Gangadhar retrieved Exhibit P‑1(a) from the shirt pocket and also seized Exhibit P‑2 from Tippanna’s possession. Although Chennaiah later turned hostile, the High Court, after weighing the remaining evidence, concluded that both exhibits P‑2 and P‑1(a) had indeed been written at the spot by Chennaiah under Eranna’s dictation.

Exhibit P‑9 was a declaration made by Eranna at the Kampli hospital at twelve fifteen in the afternoon of September twenty‑nine, 1961, bearing the impression of his left thumb. The declaration had been recorded by Constable Bagwadi and attested by Head Constable Gangadharan, and Medical Officer‑in‑charge Dr Dasa Rao attached a certificate confirming that the statement had been taken in his presence while Eranna remained conscious. The High Court determined that Exhibit P‑9 accurately reproduced Eranna’s own words, and that he had voluntarily made the statement without any prompting. In this declaration, Eranna identified all four accused as his assailants. The text of Exhibit P‑9 read: “I am a resident of Tekkalakota village. On the date twenty‑ninth September 1961, I came from Tekkalakota to Kampli and was going to Shanapur from Kampli. I was walking along the road leading to Shanapur at a distance of one mile from Kampli. At that time four persons namely (1) Thurakanni Pompiah, son of Eraiah who was armed with ‘Kodaga Katthi’, (2) Pompanna’s younger brother Shiddiah who was armed with a stick, (3)…”. The Court noted that before his death Eranna had made three separate statements, recorded in exhibits P‑12, P‑1(a) and P‑9 respectively. Although the High Court dismissed the eyewitness testimony, it concluded that a conviction could be sustained solely on the basis of the dying declaration contained in Exhibit P‑9, without any additional corroboration. However, because Siddaiah and Rudramuni had not been named in the initial statement recorded in Exhibit P‑2 and because of other surrounding circumstances, the Court felt it was not safe to rely solely on that later declaration.

The declaration recorded by Constable Bagwadi stated that Thurukara Hussaini and Nittoor Bandeyya’s son Rudramuni, both of whom were residents of Tekkalagota, stopped the deponent and struck him. According to the deponent, they attacked him on his right forearm, below his left knee and on his right arm, using weapons described as kudugolu, jollu and kathi. The deponent further reported that his right hand and left leg were fractured and that his whole body was covered with blood. He added that the assault took place at about eleven o’clock in the morning on 29 September 1961. The deponent alleged that the assailants beat him because of his concubine, Chippagiri Shankaramma, and affirmed that the statement had been read over and heard and was correct.

The record shows that before his death Eranna gave three separate statements, which were documented as Exhibits P‑12, P‑1(a) and P‑9. Although the High Court did not accept the eyewitness testimony, it concluded that a conviction could be based solely on the dying declaration contained in Exhibit P‑9, even though no other corroboration was available. However, the High Court observed that Siddaiah and Rudramuni were not identified as assailants in the earliest statement recorded in Exhibit P‑2. Because of this omission and other surrounding circumstances, the High Court felt it was unsafe to rely on the dying declaration for those two accused and consequently granted them the benefit of doubt, resulting in their acquittal. The Court remarked that “Whatever may be the reason, the fact remains that in the very first record which he got made to his dictation, Eranna did not mention the names of the second and the fourth accused. The mentioning of the names of the second and the fourth accused in the two subsequent documents, namely, Exhibits P‑1(a) and P‑9 may have been due to an afterthought.”

Nevertheless, the High Court held that even without corroboration it could safely convict Pompiah and Hussaini on the basis of the dying declaration alone. The Court reasoned that “When A‑1 had not in any way wronged Eranna, there was no reason for Eranna to have any grievance against A‑1. Therefore, there is no good ground to suspect that Eranna, in his dying declaration, had falsely implicated A‑1. Accused 3 is no other than a farm servant of A‑1 and there is nothing improbable in A‑3 joining his master, in making an attack on Eranna.” It is noted that Pompiah is identified as Accused No. 1 and Hussaini as Accused No. 3. The present Court believes that the High Court erred in convicting those two accused solely on the dying declaration without any supporting evidence. Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, a statement made by a deceased person concerning the cause of his death or the circumstances of the transaction leading to his death is a relevant fact in cases where the cause of death is in dispute. Such a statement is relevant irrespective of whether the declarant was, at the time of making it, under an expectation of death, and irrespective of the nature of the proceeding in which the cause of death is examined.

The Court observed that when the issue before the tribunal is the cause of a person’s death, the dying declaration of that person becomes a relevant and material piece of evidence. It further explained that a dying declaration, if truthful and reliable, may alone support a conviction even in the absence of any corroborating evidence. However, the Court stressed that it must first be satisfied that the declaration is indeed truthful. To determine truthfulness, the Court must examine the declaration very closely, bearing in mind that it was made when the accused were not present and therefore could not be cross‑examined to test its veracity. The Court held that if, after such scrutiny, it finds that the declaration is not completely reliable and that a significant and essential part of the deceased’s account of the incident is false, then, considering all the circumstances, it would be unsafe to convict the accused solely on the basis of that declaration without any supporting evidence.

The Court then referred to the principle articulated by Sinha, J. in Khusal Rao v. State of Bombay, stating: “Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross‑examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.” The Court noted that this principle requires a thorough assessment of both the truthfulness and the completeness of the declaration.

The State’s counsel argued that the High Court had merely extended the benefit of doubt to Siddaiah and Rudramuni and, by applying the reasoning in Khusal Rao’s case, the dying declarations could safely form the basis for convicting Pompiah and Hussaini without any corroboration. The Court rejected this argument, stating that it could not accept such a contention. The Court then examined the facts of Khusal Rao’s case, where several dying declarations identified Khusal and Tukaram as the perpetrators. In one declaration, Tukaram was described as a Teli, while the accused before the Court was a Kolhi, and the evidence showed that three or four individuals named Tukaram lived in the neighbourhood, some of whom were Telis. Because of this ambiguity, the High Court acquitted accused Tukaram, giving him the benefit of doubt arising from the similarity of names. In contrast, Khusal was convicted solely on the basis of the dying declarations, and this conviction was upheld by this Court. The Court emphasized that in Khusal Rao’s case, “no part of the dying declarations has been shown to be false” and that there were “no reasons to doubt the truth of the dying declarations.”

In this case, the Court observed that the dying statements recorded in exhibits P‑2, P‑1(a) and P‑9 were taken at different moments. The declaration in exhibit P‑2 was made almost at the same time as the other two, while the statement in exhibit P‑9 was recorded shortly afterwards. In the statement recorded in exhibit P‑2, the deceased Eranna identified only Pompiah and Hussaini as the persons who had attacked him. However, in the later statements recorded in exhibits P‑1(a) and P‑9, Eranna added the names of Siddaiah and Rudramuni to the list of his alleged assailants. The Court considered the addition of Siddaiah and Rudramuni to be an afterthought and concluded that this alteration undermined a material and integral part of the deceased’s account of the incident. Because this portion of the narrative was unreliable, the Court found that the overall truthfulness of the dying declarations could not be accepted without doubt. The prosecution’s case, taken as a whole, failed to inspire confidence. The eyewitnesses presented by the prosecution had been judged unreliable, and the Court noted that, taken together, the circumstances showed that the dying statements suffered from a serious infirmity. Consequently, the Court held that the statements could not, on their own, provide a safe basis for convicting the appellants, and that no additional corroborating evidence was offered. Although the prosecution demonstrated that there was animosity and a strained relationship between Eranna and Pompiah, the Court stated that a possible motive for the killing did not amount to corroboration of the dying statements. In light of all these considerations, the Court decided that the appellants were entitled to the benefit of the doubt and therefore should be acquitted.

The Court therefore allowed the appeal, set aside the convictions and sentences of the appellants, and ordered that the appellants be acquitted. Accordingly, the Court directed that the appellants be released from custody immediately.