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CASE NO.: Appeal (crl.)  1026 of 1997

PETITIONER: Sabbita Satyavathi

RESPONDENT: Bandala Srinivasarao & Ors.

DATE OF JUDGMENT: 15/03/2004

BENCH: N. Santosh Hegde & B.P. Singh.

JUDGMENT: JUDGMENT

B.P.SINGH, J.

       This appeal by special leave has been preferred by the  wife of the deceased, who is said to have been murdered by  respondents 1, 2 and others on January 9, 1992 at about 6.30  p.m.  The appellant has impugned the judgment and order of the  High Court acquitting the respondents 1 and 2 herein of the  charge under Section 302 IPC and convicting them instead  under Sections 326 and 324 IPC respectively.  The aforesaid  respondents shall be referred to hereinafter as A-1 and A-2.   According to the appellant, the facts proved by the prosecution  clearly established an offence under Section 302 IPC and  therefore, the High Court was not justified in acquitting them of  the  charge under Section 302 IPC and convicting them under  Section 324 IPC respectively.   

       The occurrence giving rise to the instant appeal is alleged  to have taken place at about 6.30 p.m. on January 9, 1992.  The  case of the prosecution was that six persons including A-1 and  A-2 way laid the deceased and assaulted him with knife, iron  rods and sticks as a result of which, he succumbed to his  injuries in the hospital.  All the six accused A-1 to A-6 were  tried by the Additional Sessions Judge, West Godavari  Division, Eluru charged of offences under Sections 148 and 302  read with Section 149 IPC in Sessions Case No.130 of 1992.   A-1, A-2 and A-6 are brothers while accused A-3 to A-5 are  alleged to be their associates.  The trial court by its judgment  and order of November 21, 1994 acquitted A-3 to A-6 of the  charges levelled against them and found only A-1 and A-2  (respondents herein) guilty of the offence under Section 302  IPC for which it sentenced them to undergo imprisonment for  life.         A-1 and A-2 preferred an appeal before the High Court  of Judicature Andhra Pradesh at Hyderabad being Criminal  Appeal No. 238 of 1995.  The High Court by its judgment and  order of July 3, 1996 acquitted A-1 and A-2 of the charge under  Section 302 IPC but found them guilty of lesser offences.  A-1  was found guilty of the offence under Section 326 IPC and  sentenced to four years rigorous imprisonment while A-2 was  found guilty of the offence under Section 324 IPC and  sentenced to two years rigorous imprisonment.  The impugned  judgment of the High Court has been challenged by the wife of  the deceased to seek the conviction of A-1 and A-2 under  Section 302 IPC thereby seeking enhancement of their sentence  A-1 and A-2 (respondents) on the other hand contend that the

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evidence on record is highly suspicious and doubtful and does  not justify their conviction at all.  Since an appeal has been  preferred for enhancement of their sentence, they contend that  this Court should consider the evidence on record and direct  their acquittal since the evidence on record is unworthy of   belief and does not prove the case of the prosecution.   

       In view of the contentions urged on behalf of the parties,  we consider it necessary to appreciate the evidence on record  since the appeal is wide open before us and not confined to the  question of nature of offence or sentence.

       The prosecution evidence in this case rests on the  testimony of three alleged eye witnesses, namely, PWs 2, 3 and  4.  The prosecution also relies upon the dying declaration made  by the deceased to PW-1 as also the statement made to the  Medical Officer, PW-13 when he was examined by her at the  Narsapur Hospital.  The second dying declaration forms part of  the wound certificate prepared by PW-13 and has been marked  as Ex.P-10.

       The case of the prosecution is that on January 9, 1992 at  about 6.30 p.m. the deceased and PW-1 were returning to their  village Mangaliguntapalem from Narsapur.  They were both  coming on their bicycles and on the way they met  Satyanarayana, PW-5. The deceased stopped and started talking  to PW-5 while PW-1 proceeded ahead.  After he had covered a  distance of about 2 furlongs PW-4 G. Anil Kumar came from  behind and told him that six persons were assaulting the  deceased.  After giving this information PW-4 proceeded ahead  while PW-1 returned to the place of occurrence and found the  deceased in an injured condition.  When he asked the injured as  to how he had sustained injuries, he was told by the deceased  that A-1, A-2, A-6 and three others had assaulted him saying  that he was obstructing them in all matters.  They abused him  and thereafter A-2 beat him with an iron rod on his left fore arm  and A-6 also beat with an iron rod on the left fore arm.  A-1  stabbed him with a knife on the left side of his abdomen and the  other three persons beat him with sticks on his head.  A-1 again  stabbed him on the left side of his abdomen.  Thereafter, PW-1  took the deceased to the Government Hospital at Narsapur on a  rickshaw.  According to PW-1, while the statement of the  injured was being recorded by the doctor, he died.  Several  other persons had assembled at the hospital which included the  local MLA and some other political personalities.  After the  death of the deceased he went to the Police Station Narsapur  and lodged the FIR Ex. P-1.  According to this witness, several  persons were present when the doctor recorded the statement of  the deceased.  He was also present and he heard the statement  given by the deceased.  The recording of the statement took   about 1-1/2 hours.

       He further deposed that when he came to the place of  occurrence he found profuse blood on the ground. He lifted the  deceased and made him walk for some distance till he got a  rickshaw and placed him upon the rickshaw.  He denied the  suggestion that the deceased had not named A-6.  He also  denied that in the FIR as also in his statement recorded under  Section 161 Cr.P.C. he had stated that the deceased had told  before him that only A-1 and A-2 and one other unknown  person had attacked him.  He was confronted with his earlier  statement where it was so recorded.  He also denied the  suggestion that the deceased was unconscious by the time he  reached him, and that he succumbed to his injuries on the way  to the hospital.

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PW-13, Dr. P. Martho was the Assistant Civil Surgeon at  the Government Hospital, Narsapur, where the deceased was  brought in an injured condition at 8.45 p.m. PW-13 examined  the injuries of the deceased and found the following injuries :-

"1.  Stab injury chest, on the left side, over 6 to 7th  intercoastal space in the anterior axillory line.  It is  spindle shape, edges clean tissues cut sharply  obliquly, directed and 1-<" x = x depth leading  into the thoracic cavity.

2.  Incised injury =" x <" x 1" depth suspected to  enter into the thoracic cavity.  Present over the left  side of the chest in the posterior axillary line 7-8  inter costal space bleeding.

3.      Lacerated injury of 1-<"  x  <" x = "  over the  head on the frontal area in the mid line.   Transversed placed 2-1/2" above the forehead  from hair line.

4.  Contused swelling 4" x 4" over the left hand.   Fracture metacarpal bone suspected.

5.  Incised injury over the left hand little finger  over palmaic dorsal aspect measure 1" x <" x <"   bleeding oblique.

6.  Incised injury of <" x <" x 1/8" over the  forehead in the \005.

7.  Incised injury >" x <" x <" over the left  elbow.  

8.  Incised injury =" x <" x <" over the left fore  arm near to wrist on the post aspect bleeding.

9.  Fracture of left middle finger.

10. Incised injury over left leg."         PW-13 claimed that she had recorded the statement of the  deceased in the wound certificate itself Ex.P-10.  The same  doctor conducted the post-mortem examination over the dead  body of the deceased and found the following injuries on  internal examination :- "Internal examination:-  Incised injury <" x <"  depth opens into the left cavity oblique.   Present over the 7th intercoastal space. Oblique.  Edges clear cut spindle shape.  7th rib left side  fracture at the site of injury.  Corresponds to the  external injury No.3.  Another incised injury  over the 8th inter coastal space on the left side  of the chest =" x <" x =" over the space.  It is  not external into the plural cavity.  It is oblique  edges clear cut.  Thoracic cavity on the left side  contains dark blood about 2 litre of blood.  On  the right side contains about 500 cc of dark  blood.  Left lung present with an incised injury  =" x <" x <" over the anterior surface over the  lower lobe.  Another incised injury of <" x <"  x <" on the post aspect, the same lower lobe  left right lung.  Opinion as to cause of death;  congested: Heart : Congested it present with an  incised injury =" x <" x =" over the ventricle

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area of the heart, over the anterior aspect.  Injuries over the heart left lung communicates  with the external injury No.3.  Pericardium  of  heart contains 100 cc of blood".

       In her opinion, the deceased died due to injuries to his  vital organs such as heart and left lung causing hemorrhage,  shock and injuries to the skull.         In cross-examination, PW-13 stated that the patient was  alive for 1-20 minutes in the hospital.  She asked the deceased  as to what had happened and whatever was stated by the  deceased was recorded in the wound certificate.  The treatment  and the recording of his statement were done simultaneously.  5  or 6 minutes after she started the treatment of the injured, she  recorded his statement which took about 10 or 15 minutes.  At  the time of the recording of the statement, PW-1 was present  apart from the local MLA and other political leaders.  At about  9.15 p.m. the patient was gasping for breath and became  unconscious.  She further stated that having regard to the  injuries sustained by the deceased he would not be able to walk  with the assistance of anyone.  She admitted that even if there  was loss of 2- = litres of blood the patient will become  unconscious.  She had not recorded any injury on the  pericardium 100 cc of blood was found in the pericardium sack.   In her opinion, the injury to the heart meant that the injured  must have become unconscious and was likely to die at any  time.  There was injury on the left ventricle and such an injury  makes the patient unconscious.

       It may be noticed that so far as the statement recorded by  the Medical Officer is concerned, the deceased did not mention  about the presence of A-3 to A-6 and had only stated that he  was assaulted by A-1, A-2 and one unidentified person.  

We may now consider the evidence of the alleged eye  witnesses.  PW-2 was declared hostile, as he did not support the  case of the prosecution.  PW-3 claimed to be an eye witness and  according to him, when he witnessed the occurrence PW-2 was  with him.  According to PW-3, on the date of occurrence at  about 7.00 p.m. when he and PW-2 were going to village  Mangaliguntapalem from Narsapur, they had heard the  deceased crying for help.  When they went near him they saw  A-2 and A-6 beating the deceased with rods while A-3 to A-5  were assaulting him with sticks.  A-1 stabbed the deceased with  a knife on the left side of his abdomen twice. Seeing the  occurrence he got frightened and returned to Narsapur.  He  stayed at Narsapur for two days and when he came to know  thereafter that the police had visited the village he went to the  village whereafter his statement was recorded by the police.   According to this witness, it was a moonlit night and he had  witnessed the occurrence from about a distance of 10 yards.  He  stated that though he had no fear to go to the police station, he  neither went to the police station nor did he inform anyone at  Narsapur about the occurrence.  He had stayed with his sister at  Narsapur but he did not inform any member of the family there  about the occurrence.  

The only other witness who claimed to have witnessed  the occurrence is PW-4.  We have earlier noticed the fact that  after witnessing the occurrence he had informed PW-1 about  what he had seen and thereafter he had proceeded ahead.  In  cross-examination, this witness admitted that he did not inform  anyone in village Mangaliguntapalem about the occurrence nor  did he inform any of the relatives of the deceased.  He could not

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identify the accused.  He did not know A-1, A-2 and A-6.  He  could not say whether these accused were present at the time of  occurrence.   

The prosecution also examined PW- 6 and PW-9 to prove  the motive for the commission of the offence.  From their  evidence, it was sought to be established that the deceased was  a village elder and whenever any occurrence took place he  intervened and took active part to secure justice to the person  aggrieved.  When A-1 had a quarrel with PW-6 or had assaulted  PW-9, he had been instrumental in admonishing A-1 and in  lodging a report against him with the police.  These two  occurrences relating to which PW-6 and PW-9 have deposed  took place on 30.12.1991 and 16.9.1991.  The case of the  prosecution is that on account of such interference by the  deceased A-1 and his associates were aggrieved and they,  therefore, had a motive to commit the murder of the deceased.   

The trial court having noticed the evidence of the eye  witnesses has rightly not attached much importance to the  evidence of PW-3 because this witness admitted that he neither  went to the police station nor did he inform anyone about the  occurrence for about two days. He had named all six accused as  the assailants, which does not appear to be true.   So far as PW- 4 is concerned, the trial court accepted his evidence to the effect  that he had, after witnessing the occurrence reported the matter  immediately to PW-1, who returned to the place of occurrence  and thereafter took the injured to the Narsapur Hospital. Even  assuming that this witness may have seen the occurrence, his  evidence does not implicate the accused because he admitted in  his deposition that he did not identify the assailants nor did he  know A-1, A-2 and A-6.  He also could not say whether these  accused were present at the time of occurrence.  The other thing  to be noticed in the evidence of this witness is that according to  him, he had informed PW-1 that 5 or 6 persons armed with  rods, sticks and knives were assaulting the deceased which also  appears to be untrue.  This witness has, therefore, implicated 5  or 6 persons whom he could neither name nor identify.  We,  therefore, do not consider it safe to place reliance upon these  two witnesses, namely PWs. 3 and 4.  

Considering the two dying declarations, one made before  PW-1 and the other before the medical officer, PW-13, the trial  court found that in those two statements made by the deceased,  only A-1 and A-2 had been named and the third person who  participated with them in the assault was unidentified.  Having  regard to these two dying declarations, the trial court found the  evidence of PW-1 unacceptable to the extent that in his  deposition he had stated that the injured had named all the six  accused.  The trial court, therefore, came to the conclusion that  the two dying declarations only proved the complicity of A-1  and A-2.  Accordingly it acquitted the remaining four accused  persons.

The High Court on an appreciation of the evidence on  record excluded the participation of A-2 to A-6.  However, it  noticed that injuries found on the person of the deceased were  more in number than those mentioned by the witnesses.   Though, the participation of A-1 and A-2 could not be doubted,  having regard to the evidence on record, it was not possible to  conclude that they had committed the offence under Section  302 IPC.  There was a doubt as to the role played by each of the  accused, the nature of arms used and the nature of injuries  caused by them on the deceased.  The evidence on record only  justified the conviction of A-1 under Section 326 IPC and of A-

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2 under Section 324 IPC.

Having gone through the evidence on record, we are  satisfied that PW-1 cannot be categorized as a fully reliable  witness.  In the FIR lodged by him soon after the death of the  deceased he had mentioned about the dying declaration made to  him by the deceased which implicated only A-1 and A-2 apart  from another unidentified person.  However, in the course of  deposition, he sought to implicate four other persons.  He was  obviously not speaking the truth because we find from the  second dying declaration recorded by the Medical Officer that  to her also the deceased is alleged to have reported that he was  assaulted by A-1, A-2 and another unidentified person.  It will,  therefore, be dangerous to rely upon the oral dying declaration  alleged to have been made by the deceased to PW-1.  We shall,  therefore, keep that dying declaration out of consideration.

The next question is whether the second dying  declaration made to the Medical Officer can be acted upon to  convict A-1 and A-2.  We have found on a careful scrutiny of  the evidence on record, a few features which have remained  unexplained.  According to the prosecution, only A-1 was  armed with a sharp cutting weapon such as knife and according  to the prosecution evidence, A-1 stabbed the deceased twice.   However, we find as many as seven incised injuries on the  person of the deceased.  There is only one lacerated injury and  one contused swelling apart from the fracture of the left little  finger.  The manner of occurrence, therefore, as alleged by the  prosecution does not fit in with the findings of the Medical  Officer having regard to seven incised injuries found on the  person of the deceased.

There is yet another reason which casts a serious  suspicion on the second dying declaration.  According to the  Medical Officer, PW-13, the injured was brought to the hospital  at about 8.45 p.m. and was alive for about 1-20 minutes  thereafter.  She started the treatment of the injured in right  earnest and 5 or 6 minutes thereafter she recorded the statement  of the deceased which took about 10 to 15 minutes.  According  to her, at 9.15 p.m. the patient started gasping for breath and  became unconscious.  The picture that we get is that as soon as  the Medical Officer completed recording his statement the  injured became unconscious.  He is said to have ultimately died  at about 10.10 p.m. The respondents have contended that the  presence of large number of political personalities at the  hospital, having regard to the fact that the deceased was also a  person well-known in the locality makes it doubtful whether the  statement was correctly recorded or recorded at all.  In fact, it is  contended that having regard to the injuries sustained by the  deceased, he would not have been in a position to make any  statement even if he was alive.  He must have become  unconscious soon after suffering the injuries and there was no  question of his either making a statement before PW-1 or before  the Medical Officer.  There is substance in the argument  advanced on behalf of A-1 and A-2.  PW-13 admitted that death  of the deceased was due to injuries to vital organs such as heart  and left lung.  We find from the post-mortem report that the left  lung had suffered incised injuries at two places.  Apart from the  injuries to the left lung, it was also found that one of the injuries  caused on the left side of the chest had pierced the body to such  an extent that the ventricle of the heart also suffered an incised  injury over the anterior aspect.  It appears from the post-mortem  report that the same stab injury caused damage to the left lung  as also to the heart.  This only indicates that the stab injuries  were caused to the deceased with such great force that they not

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only fractured one of his ribs but also entered the thoracic  cavity and injured the left lung and the ventricle of the heart.   With such injuries, we entertain serious doubts as to whether  the injured could have given two dying declarations as alleged  by the prosecution, one at about 7.00 p.m. and the other at  about 8.45-9.00 p.m.  This is also supported by the medical  evidence on record in as much as PW-13 has herself stated that  if such an injury is caused to the heart, the injured would  become unconscious immediately.  It, therefore, appears to us  that after suffering the injuries the deceased must have become  unconscious immediately.  There was, therefore, no question of  his making a dying declaration to anyone thereafter.  We also  notice the fact that according to PW-1 after making a dying  declaration, the accused walked a few steps with him with his  help till such time they got a rickshaw which carried them to  the hospital.  According to the Medical Officer, PW-13, a  person with such injuries could not walk at all even with the  help of someone else. Having regard to the sever nature of  injuries and the vital organs involved which suffered incised  injuries such as heart and the lungs, we entertain a serious  doubt about the recording of the second dying declaration by  the Medical Officer almost two hours after the occurrence.

In this state of the evidence on record, we are not  satisfied that the prosecution has proved its case beyond  reasonable doubt.  A-1 and A-2 (respondents herein) are  entitled to the benefit of doubt.  We, therefore, dismiss this  appeal but having regard to our findings, we acquit the  respondents of the charges levelled against them.