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CASE NO.: Appeal (crl.)  758 of 2006

PETITIONER: J. Ramulu

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 26/02/2008

BENCH: P. P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 758 OF 2006 WITH

CRIMINAL APPEAL NO. 763 OF 2006 G. Venkatesh                                                   .....        Appellant Versus State of Andhra Pradesh                                      .....       Respondent

Lokeshwar Singh Panta, J.

1.      The above-said two appeals relate to single incident and  are directed against common Judgment dated 22nd December,  2005 passed by the High Court of Judicature, Andhra Pradesh  at Hyderabad in Criminal Appeal No.2290 of 2004, they are  heard together and shall stand disposed of by this common  judgment. 2.      Criminal Appeal No.763 of 2006 has been filed by G.  Venkatesh (A-1) against his conviction under Section 302 of  the Indian Penal Code [for short ’IPC’] and sentence to undergo  imprisonment for life and to pay a fine of Rs.2000/-, in default  thereof to suffer simple imprisonment for two months.   Criminal Appeal No.758 of 2006 has been filed by J. Ramulu  (A-2) against his conviction under Section 302 read with  Section 34 of IPC and sentence to undergo imprisonment for  life and to pay a fine of Rs.2000/-, in default thereof to suffer  simple imprisonment for two months, passed by II Additional  Metropolitan Sessions Judge, Hyderabad and confirmed by the  High Court in Criminal Appeal No. 2290 of 2004.   3.      In all, nine accused persons were tried by the II  Additional Metropolitan Sessions Judge, Hyderabad, in  Sessions Case No.352 of 2001 for the offences under Section  302, IPC, and Section 302, IPC, read with Section 34 of IPC  and Section 109 of IPC.  A-1 and A-2 were found guilty of the  murder of G.Janardhan, while other seven accused were  acquitted of the charges. 4.      Briefly stated, the case of the prosecution against A-1, A- 2 and other accused persons is that G. Janardhan was  resident of Anandnagar Colony, Malakpet.  A-1 is resident of  R.K. Puram, whereas A-2 and A-7 are residents of  Dilshuknagar and A-3 and A-6 are residents of Chaitanyapuri.  A-4 is resident of Vanaparthy, Mahaboobnagar District, A-5 is  resident of Kothakota, Mahaboobnagar District, and A-8 & A-9  are residents of Jadcherla, Mahaboobnagar District.  A-1, A-2  and G. Janardhan were partners in Manjunadha Rice Mill and  they had some disputes between themselves and other

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partners regarding the mill transactions.  G. Janardhan filed  O.S. No.92 of 1999 on the file of the I Additional Senior Civil  Judge, Ranga Reddy, against A-1 and A-2 for dissolution of  the partnership of the mill.  Second suit O.S.No.579 of 1994  on the file of the II Additional Senior Civil Judge, Ranga  Reddy, is also pending between the parties.  G. Janardhan  also filed C.C. No.114 of 1998 on the file of the Additional  Judicial First Class Magistrate, Hyderabad, inter alia alleging  that the accused persons cheated him in the transactions of  the rice mill. 5.      On 08.07.2000 at about 4.00 P.M., G. Janardhan along  with his eldest paternal uncle G. Satyanarayana went to  Ramkrishna Muth and after completing of their prayers, they  came back to their residence by city bus.  After getting down  from the bus, G. Satyanarayana went to his house, while G.  Janardhan proceeded to go to his house.  A-1 and A-2 stated  to have come from the rice mill road on a Scooter.  A-1 was  pillion rider, he sprinkled acid on the face of G. Janardhan  with a Mug.  G. Jandardhan shouted for help which attracted  the attention of G. Raju, son (PW-1), Jamuna Rani, daughter  (PW-2), G. Savithri, wife of G. Janardhan (PW-3), who were  sitting in the verandah of their house.  They immediately came  to the spot and took G. Janardhan to Yashoda Hospital for  medical treatment.  G. Janardhan received burn injuries on  his face, chest and neck.  PW-1 went to the Police Station  Chaderghat, Hyderabad and handed over complaint (Ex.P1) to  Shri B. Sivaranireddy (PW-9), who, at the relevant time, was  Sub-Inspector of the Police Station, Chaderghat.  On the basis  of the said complaint, FIR (Ex.P26) was registered under  Section 307 read with Section 34 of IPC.  G. Guravaiah (PW- 13), Sub-Inspector of Police took up investigation of the crime  at 10.20 P.M. on the same day.  He went to Yashoda Hospital,  Malakpet, where injured G. Janardhan was admitted in  emergency ward.  He recorded the statements of PWs-1, 2, 3 and G. Anuradha (PW-4) wife of PW -1 and daughter-in-law of  injured G. Janardhan.  On the next day, i.e. 09.07.2000, at  about 7.00 A.M., the Investigating Officer recovered burnt  leaves of small plants and acid-mixed earth and control earth  from the place of occurrence.  He again went to Yashoda  Hospital where the injured G. Janardhan gave his statement  by gestures and writing on small chits to him.  The statement  of injured G. Janardhan was recorded after obtaining  permission from the Doctor.  On the same day at about 8.00  P.M., the Investigating Officer apprehended A-1 and A-2 on the  road in front of the house of A-1.  He recorded the disclosure  statement of A-1 which is marked as Ex.P24 and on the basis  of the said statement, Scooter bearing No. AP 28 L 2745 was  recovered and one green colour mug was taken into  possession, from inside the ducky of the Scooter.  On  requisition Ex.P27 sent by the Inspector of Police, B.  Gyaneshwar Rao (PW-11) XIV Metropolitan Magistrate,  Hyderabad, at midnight of 11/12.07.2000, went to Yashoda  Hospital and recorded statement made by G. Janardhan to  him by gestures and signs as the injured was unable to see  and talk due to burn injuries.  On 25.07.2000, P. William  Caruy (PW-12) received information in regard to the death of  injured G.Janardhan at about 12.30 A.M.  He converted the  offence in the FIR from Section 307 of IPC to Section 302 of  IPC.  After receipt of the dead body and completion of the  investigation, charge-sheet was filed against the above-said  nine accused persons. 6.      The accused pleaded not guilty to the charges and  claimed to be tried.  The prosecution examined as many as 13  witnesses and produced on record 32 documents in support of  its case.  The accused persons in their statements recorded

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under Section 313 Cr.P.C. pleaded not guilty to the charges  and claimed to be tried.  No defence witness has been  examined by them.  The trial court, on appreciation of the oral  and documentary evidence, found A-1 and A-2 guilty of the  charge of murder of G. Janardhan and convicted and  sentenced them as aforesaid, while no case has been found  against A-3, A-4 and A-6 to A-9, therefore they are acquitted of  the charge.  During the pendency of the trial, A-5 had expired,  therefore, the trial stood abated against him. 7.      Being aggrieved against the Judgment and Order of the  learned Trial Judge, A-1 and A-2 filed appeal under Section  374 (2) of the Cr.P.C. before the High Court.  The High Court  dismissed their appeal and confirmed their sentence.  Hence,  A-1 and A-2 have filed these appeals by special leave. 8.      We have heard Mr. U.U. Lalit, learned senior Advocate  appearing on behalf of A-1, Mr. Sushil Kumar, learned senior  Advocate appearing on behalf of A-2, and Ms. Altaf Fathima,  Advocate for respondent\026State, and with their assistance, we  have examined the entire oral and documentary evidence on  record.  The learned counsel for A-1 and A-2, inter alia,  contended: (a) that in the Yashoda Hospital record where  injured G. Janardhan was admitted on 08.07.2000, it was  specifically stated therein that some unknown offenders had  thrown acid on the face of the injured G. Janardhan, the  general diary number column in the FIR has been left blank,  which would suggest that the first recorded information, being  the intimation by the Hospital authorities referring to  unknown persons as the culprits, has been suppressed; (b)  PW-1, the son of G. Janardhan, clearly stated that on the  evening of 09.07.2000, Police got complaint (Ex.P1) made from  him in which the names of A-1 and A-2 were disclosed at the  instance of their relatives, on the basis of which tutored FIR  (Ex.P25) came to be registered; (c) PW-4, daughter-in-law of G.  Janardhan, also clearly stated that Police got complaint  (Ex.P1) recorded from her husband (PW-1) at the instance of  their relatives; and (d) the so-called dying declaration (Ex.P28)  recorded by PW-11 - the Magistrate, on 11/12.07.2000 at  midnight mentioning the names of A-1 and A-2 along with the  names of A-3 to A-9, was as a result of due deliberation and  tutoring of G. Janardhan by his relatives as per the admission  of PW-1 and the statement allegedly made by G. Janardhan  before the Magistrate was vague and there is no specific  reference to A-1 and A-2 implicating them in the commission  of the offence.  Lastly, the learned counsel submitted that the  trial court and the High Court have considered the alleged  dying declaration as partly untrue in respect of accused A-3 to  A-9, who were acquitted of the charges and partly true against  A-1 and A-2 without any corroboration from independent  evidence and, therefore, no implicit reliance could have been  placed on tutored dying declaration. 9.      Per contra, the learned counsel appearing on behalf of  the respondent\026State contended that the evidence of PW-11 is  very clear, who recorded dying declaration (Ex.P28) of G.  Janardhan in which the names of A-1 and A-2, who poured  acid on his face which caused his death, were mentioned by  the deceased.  The learned counsel also contended that the  trial court as well as the High Court have appreciated the  entire evidence in its right perspective and this Court shall be  slow to interfere in the well-reasoned and well- merited  judgments of the courts below. 10.     We have given our anxious and thoughtful consideration  to the respective contentions of the learned counsel for the  parties.  We may, at the outset, record that PW-1, son, PW-2,  daughter, PW-3, wife, and PW-4, daughter-in-law of G.  Janardhan, the alleged witnesses of the occurrence, have not

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supported the case of the prosecution at all and despite  searching cross-examination by the learned Public Prosecutor,  no material evidence is elicited from their testimony to  implicate A-1 and A-2 in the commission of the crime.  PW-1,  the son of the deceased, on 08.07.2000 submitted report  (Ex.P1) to the police at Police Station, Chaderghat, on the  basis of which FIR (Ex.P25) was registered at the Police  Station.  He deposed before the Court that he gave complaint  (Ex.P1) to the Police at the instance of their relatives.  Even  this witness did not say in his statement under Section 164 of  the Code of Criminal Procedure that he and his sister (PW-2),  his mother (PW-3) and his wife (PW-4) witnessed the incident  and/or his father disclosed the names of A-1 and A-2 who  sprinkled acid on his face.  It is his evidence that on the day of  the occurrence they heard the sound of cry of his father near  the gate of their house and he along with PWs-2 and 3 rushed  to the spot and found acid burns on the face and neck of his  father who was not in a position to speak nor he could open  his eyes.  The incident took place in front of the house of  injured G. Janardhan at around 8 P.M.  PW-1 categorically  stated that he noticed two unknown persons going on Scooter  at the place of occurrence.  PW-1 deposed that his father had  given the names of A-1 and A-2 and other seven accused  persons to PW-11 the Magistrate, on having tutored by their  relatives.  This witness in cross-examination conducted by the  learned counsel for A-1 and A-2 categorically stated that he  did not know the persons who poured acid on the face of his  father.  It is his evidence that their relatives came to Yashoda  Hospital where his father was taken immediately after the  incident.  The Police also reached at the Hospital and wanted  to record his father’s statement but his father was not in a  position to speak, so his statement could not be recorded.  He  stated that his father before the incident had been telling him  that naxalites were threatening him with dire consequences, if  money was not paid to them.   11.     PW-2 \026 daughter of G. Janardhan, deposed that on the  day of incident, i.e. 08.07.2000, she was not at the house of  her parents, but she was at a house in Warasiguda when at  about 7.00 or 7.30 P.M. she received telephone call that her  father had been taken to Yashoda Hospital for medical  treatment for acid burns.  She deposed that she did not know  who caused acid burns injuries to her father.  She denied the  suggestion of the prosecution that she deposed against the  prosecution in order to help the accused.  It is the evidence of  PW3 \026 wife of the deceased that on 08.07.2000 at about 7.30  or 8.00 P.M. when she was in her house, she heard some  sound of cry.  She came out of her house and saw her  husband coming inside the gate of their house, who was  unable to speak.  He was shifted to Yashoda Hospital as he  received acid burns.  She did not see the persons who caused  acid burns to him.  The suggestion of the Public Prosecutor  that she has resiled from her earlier statement in order to help  A-1 and A-2, is denied by her.  Similarly, PW4 \026 wife of PW-1  has not supported the prosecution version.  According to this  witness, her father-in-law received acid burns at 7.30 or 8.00  P.M. near their house when she along with her husband and  mother-in-law was present in the house.  They took injured  G.Janardhan to Yashoda Hospital where he was admitted in  emergency ward.  She was not allowed to go inside the ward  while PWs 1, 2 and 3 were allowed to go inside the ward.   Their relatives were also present in the hospital.  In cross- examination by the learned Public Prosecutor, she stated that  her father-in-law was in Intensive Care Unit for 15 days and  thereafter he was shifted to Apollo Hospital.  Their relatives  were regularly visiting her father-in-law in the unit.  She

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stated that on 09.07.2000, their relatives and police got a  report drafted from her husband against A-1 and A-2.   12.     The oral evidence of the eye-witnesses, discussed above,  who are none else than the son, daughter, wife and daughter- in-law of the deceased, have not supported the prosecution  version to prove that it were A-1 and A-2 who poured acid on  the face, neck, etc. of the deceased \026 G.Janardhan on the day  of occurrence.  PWs 1, 2, 3 and 4 are the truthful witnesses  whose testimony has to be accepted without any  embellishment.  The family members of G. Janardhan would  have not spared A-1 and A-2, if they in fact were the real  culprits who caused acid burns injuries on his person.  The  evidence of the eye-witnesses clinches that the deceased had  named A-1 and A-2 as assailants in dying declaration made to  PW-11, the Magistrate, on the intervening night of  11/12.07.2000 on being tutored by his relatives during the  period 07/08.07.2000 to 11/12.07.2000, when they had gone  to visit him in the ward of the hospital.  PW-11 recorded  original dying declaration of the deceased G.Janardhan in  Telugu.  The evidence of PW-11 would show that on  11/12.07.2000 at 12 O’ Clock mid-night he received  requisition (Ex.P27) from the Inspector of Police, Police Station  Chaderghat requesting him to record dying declaration of  G.Janardhan at Yashoda Hospital.  He stated that the  declarant was not able to speak and see due to burn injuries  but he was responding by gestures to the questions put to  him.  He gave him pen and a paper to write his statement who  wrote the answers on the proceedings of the dying declaration.   On perusal of the dying declaration, it reveals that the  deceased had given the names of A-1 and A-2 and other  accused persons who were acquitted by the trial court.  It has  come in the cross-examination of PW-11 that he did not make  any endorsement on the proceedings of the dying declaration  that the declarant was physically and mentally fit throughout  the proceedings.  Similarly, the Doctor on duty also did not  specifically state in his endorsement that the declarant was  physically and mentally in a fit state to make the statement.   PW-11 also admitted suggestion of the defence that in Ex.P28  he did not mention that he disclosed his identity to the  declarant before recording dying declaration. 13.     We have carefully examined the reasons recorded by the  learned Sessions Judge and the High Court for accepting the  dying declaration as credible and for accepting the evidence of  Magistrate who recorded the alleged dying declaration (Ex.P28)  as bringing home the charge of murder against A-1 and A-2  beyond shadow of reasonable doubts.  The dying declaration  allegedly made by the deceased, in our view, is not free from  doubt and embellishment.  It is the specific case of PW-13 G.  Guravaiah, Sub-Inspector, who went to the hospital  immediately on receipt of the complaint (Ex.P1) and found  injured G.Janardhan admitted in the Yashoda Hospital on  09.07.2000 that he took the permission of the duty Doctor in  regard to the physical and mental condition of the deceased.   As per his version, the Doctor certified that injured  G.Janardhan was fit to make statement.  He recorded the  statement of injured G.Janardhan on small chits which he did  not place on record of the case.  This version of the  Investigating Officer clearly and plainly shows that on  09.07.2000 G.Janardhan made some statement to the  Investigating Officer which in all probability did not contain  the names of A-1 and A-2 who were responsible for throwing  acid on his face, neck and chest.  Those chits were important  documentary evidence which was deliberately withheld by the  prosecution from the Court with clear intention of suppressing  the true version of G. Janardhan subscribed by him on some

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paper chits at the first available opportunity.  G.Janardhan  remained in Yashoda Hospital from 08.07.2000 till 24.07.2000  on which date he left the hospital and got himself admitted in  Apollo Hospital where he died on the next day.  The medical  report of Yashoda Hospital reveals that injured G.Janardhan  had refused to undergo surgery and got discharged from the  hospital against medical advice.  PWs-2 and 4 clearly and  plainly deposed that the deceased made tutored statement to  PW-11 at the behest of their relatives who had been the  regular visitors of the ward where the deceased before death  was lying and they had compelled the deceased to mention the  names of A-1 and A-2 along with other accused.  The  suppression and withholding of the first dying declaration of  the deceased recorded by PW-13 on 09.07.2000, by itself   creates suspicion and reasonable doubt as to the correctness  and truthfulness of the dying declaration allegedly made by  the deceased to PW-11, XIV Metropolitan Magistrate. 14.     This Court in P. Mani v. State of T.N. [(2006) 3 SCC 161],  while dealing with the question of dying declaration, held that  conviction can be recorded on the basis of the dying  declaration alone but the same must be wholly reliable.  In a  case where suspicion can be raised as regards the correctness  of the dying declaration, the Court before convicting an  accused on the basis thereof would look for some corroborative  evidence.  Suspicion is no substitute for proof.  If evidence  brought on records suggests that such dying declaration does  not reveal the entire truth, it may be considered only as a  piece of evidence in which event conviction may not be rested  only on the basis thereof.    The question as to whether a dying  declaration is of impeccable character would depend upon  several factors; physical and mental condition of the deceased  is one of them.   15.     As noticed above, the medical report raised a number of  questions which have not been satisfactorily answered, which  precluded implicit acceptance of the dying declaration  (Ex.P28).  First, PWs 1 and 3, who took injured G.Janardhan  to Apollo Hospital and got him admitted there, have deposed  that at that time G.Janardhan was not physically and  mentally fit to make the statement.  Second, who was the  doctor on duty at the time of admission?  PWs-1 and 2 did not  say about it and the history sheet reveals that the injured was  alleged to have sustained multiple burns over face and upper  part of chest and neck when attacked with acid by unknown  persons near his residence at about 8.15 P.M.  PW-13  recorded the first dying declaration of the injured  G.Janardhan on 09.07.2000 in the presence of some doctor,  but the name of the Doctor has not been mentioned by him.     The Doctor, in whose presence PW-11 recorded dying  declaration (Ex.P28), has not been examined by the  prosecution to corroborate the correctness and truthfulness of  the dying declaration on which conviction of A-1 and A-2 has  been recorded by the Trial Court and confirmed by the High  Court, while the same document was not accepted by the  courts below in respect of A-3 to A-9 whose names were also  mentioned in the dying declaration.  The dying declaration  shows that the deceased was not in a position to speak and  see and in such state of mind, it is highly doubtful and  unbelievable that the deceased had written such a lengthy  statement running in more than 3 pages containing various  details by sign and gestures.  The contents of the dying  declaration are shrouded by doubts and suspicion and the  entire evidence, discussed above, suggests that the dying  declaration does not reveal the entire truth, it has to be  considered only as a piece of evidence on which no implicit  reliance can be placed and in which event conviction cannot

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be rested solely on the basis of such doubtful dying  declaration.  In the facts and circumstances, we are not  satisfied with the findings recorded by the Trial Judge and the  High Court holding A-1 and A-2 guilty of the offence on the  basis of weak and slender evidence led on record by the  prosecution.   16.     In our view, A-1 and A-2 are entitled to benefit of doubt.   In the result, we allow the appeals and set aside the  judgments of the High Court and the Trial Court.  A-1 and A-2  are acquitted of the charges against them. 17.     G. Venkatesh and J. Ramulu shall be set at liberty  forthwith, unless required to be detained in connection with  any other case.