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PETITIONER: NAVAKOTI VEERA RAGHAVULU

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       15/01/1997

BENCH: M.K. MUKHERJEE, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE, J.      This appeal is directed against the judgment dated June 11, 1991  rendered by  Andhra Pradesh High Court in Criminal Appeal No. 624 of 1990 whereby, it reversed the acquittal of the appellant  of the charge under Section 302 of the Indian Penal Code and convicted and sentenced him thereunder.      The deceased  Navakoti  Gagarin  was  the  son  of  the appellant and  at the  time of  his death  was aged about 21 years. In  his childhood he had become a victim of polio and hence he  used to  move around  in a tri-cycle. According to the prosecution  case  his  parents  used  to  illtreat  and neglect him  for his  physical  disability  and  their  such inhuman attitude towards their own son prompted his maternal grand-father Ingilala  Polaiah to  take him  to  his  house, where he  (Polaiah) use  to stay  with his  divorced  sister Polamma, and  adopt him as his son. In the year 1980 Polaiah died leaving behind 40 ankanama of non agricultural land and a house.  With a view to grabbing the above properties which were  inherited   and  looked  after  by  the  deceased  the appellant persuaded  him to come to his village Manubolu and stay with  him but  a few  days later  he  returned  to  his earlier home.      It is  alleged by  the prosecution  that on October 26, 1988 at  or about 10.30 P.M. when the deceased was returning home from  Muthyalapet Centre of Gudur town on his tri-cycle the appellant  accosted him  on the  lane  by  the  side  of Pollaluru Kotareddy  Mica Factory.  He then  poured kerosene oil on the deceased and set him on fire. The deceased raised a cry  and hearing  the same  Krishnaiah (P.W.1),  Seshagiri (P.W.2), Murlikrishna (P.W.3) and Parvate Ramanaiah (P.W.4), who were  nearby, rushed  to his rescue. In the meantime the appellant had managed to flee away.      The   deceased   was   immediately   removed   to   the Headquarters Hospital,  Nollore where  Dr. M.C.  Narasimhulu (P.W.9) examined  him at  11.45 P.M.  To P.W.9  the deceased disclosed that  his  father  had  set  him  on  fire.  After recording  the  statement  of  the  deceased  in  the  wound certificate (Ex.  P.11), P.W.9 sent intimation to Gudur Town Police Station  as also  to the  local Munsiff-Magistrate to

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record his  dying declaration.  On receipt of the intimation Sk.  Allabakash  (P.W.12),  Head  Constable  of  the  Police Station reached  the hospital at 12.15 A.M. and recorded the statement of  the deceased  (Ex. P.16).  Following P.W.  12, Shri N.V.S. Talpasayve (P.W.8) the District Munsiff of Gudur reached the  hospital at  1.10 A.M.  and recorded  his  (the deceased’s) statement  in presence  of P.W.9 (Ext. P.10). On the  following   morning  the   deceased  succumbed  to  his injuries.      The appellant  denied the  accusation levelled  against him and  asserted that  he was  falsely  implicated  at  the instance of Sundaram (P.W.5), with whom he had enmity. To sustain  the charge  levelled against  the appellant  the prosecution relied  mainly upon  the  above  three  recorded dying declarations of the deceased. Besides, the prosecution examined P.Ws.  1 to  4 to  prove that they reached the site immediately after  the incident  took place  and  heard  the utterances of the deceased implicating the appellant.      On perusal of the judgments of the learned Courts below we find  that both  the Courts held that all the three dying declarations, namely  Ext.P.11, Ext.  P16 and Ext. P.10 were made by  the deceased  while he  was in for that matter, the prosecution case  on the  grounds that  it signally filed to prove the  motive ascribed  to the  appellant for committing the murder  of his own son, that the dying declarations were made by  the deceased  at the  instance and  instigation  of Sundaram (P.W.5),  a distant  relation of  the deceased, and that  there   was  no  evidence  to  corroborate  the  dying declarations. In reversing the above findings the High Court observed that  there was  not an  iota of material on record from which  the trial  Court  could  infer  that  the  dying declarations were  made at  the dictates  of P.W.5  and held that the  deceased had  no reason  to falsely  implicate his father. According  to the  High Court  all the  three  dying declarations were  made at  the earliest opportunity and the declarations clearly proved that the appellant committed the murder of his son owing to dispute over property.      This being  a statutory  appeal we  have carefully gone through the  entire evidence  on record.  The  unimpeachable evidence of P.W.9 and P.W.8 clearly proves that the deceased made his  dying declarations  before them  in a fit state of mind and they were properly recorded. While in his statement before the  doctor (P.W.9),  which was recorded in the wound certificate, (Ext.  P.11),  the  deceased  stated  that  his father set  him on fire, in his statement before the Munsiff (P.W.8) which  was recorded  in a  question and answer form, and in presence of P.W.9, he further stated that there was a dispute between  him and his father over property and out of that enmity  he set  him on  fire. On  the face  of  such  a statement  the   finding  of   the  trial   Court  that  the prosecution failed to prove any motive for he murder must be said to  be patently  wrong. The  other finding of the trial Court that the dying declaration was the outcome of tutoring by P.W.5  is also  perverse for,  as rightly observed by the High Court,  there is  no  material  whatsoever  in  support thereof. It  is, of  course, true that P.W.5 accompanied the deceased to  the hospital  but that  fact by  itself does no indicate  that   be  influenced   the  deceased  to  falsely implicate his  father. Indeed, in cross examination of P.W.5 no suggestion to that effect was even put to him.      While on  this point  we cannot  also lose sight of the evidence of  P.Ws. 1,  2, 3  and 4  which goes a long way to support the  prosecution case  but was not at all considered by the  learned Courts below. At the material time P.W.2 was an employee  of the tyre shop of P.W.1 which is near Raghava

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Reddy Lane, where the deceased was set on fire. He testified that when  he was  working in the shop he heard cries ‘catch hold of  my father, catch hold of my father’ from that lane. Accompanied by  P.W.1 he rushed there and found Gagarin (the deceased) in flames. After extinguishing the fire by a gunny bag and a mat when they questioned the boy he told them that his father  had pushed  him down  from the tri-cycle, poured kerosene oil  and set  him on  fire. P.W.1, however, did not fully support  the version  of P.W.2 for he corroborated him only to the extent that he along with Seshagiri (P.W.2) went to Raghava  Reddy lane and found a boy burning in flames and crying ‘catch  hold of  my father, catch hold of my father’. He was  then declared  hostile by  the prosecution and cross examined as  during investigation  he claimed  to have heard the deceased  also saying  that his  father had  set him  on fire. P.W.3, who was working as a clerk in the office of the Lorry Owner’s Association, Gudur, which was at a distance of 12 yards  from Raghava Reddy Lane, stated that he heard some cries ‘save me, save me’ from the lane. He was also declared hostile as  he resiled  from his  statement  recorded  under Section 161  Dr. P.C.  wherein  he  spoke  about  the  dying declaration of  the deceased also. The last witness examined on this  point, namely,  P.W.4, deposed that while he was in his tractor  repairing shop  saw a  boy being  taken to  the hospital in  a rickshaw.  P.W.4 was  also declared  hostile. Since all  the above  four witnesses  were, at  the material time, in their respective working places, they were the most natural and probable witnesses and we do not find any reason to disbelieve  their evidence,  particularly, that of P.W.2. The evidence  of P.W.2  along with the evidence of the above three witnesses  clearly proves that the deceased was set on fire in  the lane  and that  he made  a statement  that  his father was the culprit. The dying declaration so made by the deceased at  the spot  immediately after the occurrence also demonstrates that  the finding  of the  trial Court that the three dying  declarations were  the result  of  tutoring  by interested party is wholly untenable.      For the  foregoing discussion  we do not find any merit in this appeal. It is accordingly dismissed.