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PETITIONER: P. BABU

       Vs.

RESPONDENT: STATE OF A.P.(Jayachandra Reddy, J.)

DATE OF JUDGMENT08/10/1993

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J)

CITATION:  1994 SCC  (1) 388        JT 1993 (5)   699  1993 SCALE  (3)923

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by K.   JAYACHANDRA  REDDY,  J.-  There  are  three  appellants original accused 1, 2 and 3. They were tried along with four others  for offences punishable under Sections 148, 302  and 302/149  IPC.   These  appellants were  also  charged  under Section  302 simpliciter.  The trial court acquitted all  of them.   The State preferred an appeal against the  acquittal and the High Court while confirming the acquittal of A-4  to A-7, convicted the appellants under Sections 302/34 IPC  and sentenced  each  of them to undergo imprisonment  for  life. Hence the present appeal. 2.   The  prosecution case is as follows: P. Narasinga  Rao, the  deceased  in  the  case was  working  as  a  welder  at Secunderabad.   He had a vegetable shop also in  the  market and he used to attend to his shop in the evening.  PW 16  is the maternal uncle of the deceased.  He has also a vegetable shop  in  the same market.  The accused are all  related  to each other.  A-4’s younger brother was murdered on August 4, 1978.   The deceased and two others were prosecuted in  that case  and  the  same ended in acquittal.   All  the  accused herein  and  also  the  absconding  accused  Sriramulu  were aggrieved  with  the acquittal and bore grudge  against  the deceased.   The  deceased told PW 16 that the  accused  were intending  to kill him.  On March 21, 1979 at about 5  p.m., PW  7,  a neighbour of PW 16 was doing painting  work  in  a house  in  Picket, Secunderabad and  after  completing  that work,  he was going home.  At about 7 p.m. he came near  the State  Bank  and saw A-1 to A-7 and the  absconding  accused Sriramulu and heard Sriramulu telling A-1 and A-4 to do away with  the deceased.  After coming home, PW 7 informed PW  16 about what he had heard.  On that day at about 6.30 p.m., PW 2  who  worked  under  the deceased, went  to  the  shop  of deceased to meet him on a cycle.  The deceased asked him  to take  him  to  the  police station as he  had  to  mark  his attendance.   Then  both of them went on the  cycle  to  the

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market  police station.  After marking the attendance,  both of  them  were coming back to the shop of  the  deceased  on cycle.  When they reached the State Bank, A- 1 emerged  from the  lane and caught hold of the deceased.  A-2 to A-7  also joined  A-1.  A- 1 stabbed the deceased with a knife on  his chest.  A-2 and A-3 axed the deceased on his back with axes. A-4 to A-7 stabbed the deceased with knives on various parts of  his  body.   PW 2 ran to the police station  to  give  a report about the incident to the Inspector of Police, PW  21 who  made an entry in the general diary and along  with  SIs and head constables rushed to the scene of occurrence.  They carried  the  deceased to the hospital.  PW  10,  the  Civil Assistant Surgeon who was on duty, examined the injured  and found 10 390 injuries  and issued the wound certificate Ex.  P-6.  PW  10 admitted the injured into Cardio-Thoracic Ward and asked the SI   to  fetch  the  Magistrate  for  recording  the   dying declaration.  The SI returned after 15 minutes and  reported that  the Magistrate was not available at his  residence  at that  time.   PW  21 also was present at that  time  in  the hospital.   He asked PW 1, who was working as House  Surgeon in  the Casualty Department to record the dying  declaration of the deceased.  PW 1 recorded the dying declaration of the deceased Ex.  P-1 which was read out to the deceased and his thumb impression was taken.  PW 1 handed over Ex.  P-1 to PW 21  in  the presence of PW 19, another police  officer,  who registered  a case and issued express FIR.  PW 21  continued the  investigation.  PW 20, Assistant Professor of  Thoracic Surgery was contacted and he came to the hospital at about 9 p.m.  and  found  the deceased to be  in  a  bad  condition. Therefore  he  could not undertake any  surgical  treatment. The  injured expired at about 11.10 p.m. and an altered  FIR was  issued.  The dead body was sent for postmortem and  the Doctor found a number of incised injuries, which could  have been  caused by knives and axes.  The accused were  arrested except  Sriramulu  and the accused who  were  arrested  were charge-sheeted and tried. 3.   The prosecution relied on the dying declaration Ex.  P- 1  and  also  on the evidence of PWs 2  to  5.  The  accused pleaded  not  guilty.  The trial court  discarded  Ex.   P-1 pointing out certain infirmities and also held that the same was not recorded at 8.35 p.m. as claimed by the  prosecution but  it was brought into existence later.  The  trial  court also discarded the evidence of PWs 2 to 5, the  eyewitnesses pointing  out certain inconsistencies.  Accordingly all  the accused were acquitted.  The High Court mainly relied on the dying  declaration  Ex.   P-1 recorded by PW  1,  the  House Surgeon  whose  evidence  is also  corroborated  by  another Doctor,  PW  10 who was on duty at that time.  In  the  said dying declaration, the overt acts were attributed to A- 1 to A-3.  Since no overt acts were attributed to A-4 to A-7, the High  Court  confirmed  their acquittal but  set  aside  the acquittal  of  A-1 to A-3 and convicted  them  as  mentioned above.   The High Court, however, relied on the evidence  of PWs 2 and 4 also and held that the same lends  corroboration to the dying declaration so far as A-1 to A-3 are concerned. The  High Court also observed that the dying declaration  by itself is sufficient to convict A-1 to A-3. 4.   Learned  counsel  for  the  appellants  submitted  that normal  safeguards  to be observed in  recording  the  dying declaration have not been strictly observed and the evidence of  PWs  1  to 10 regarding the manner in  which  the  dying declaration was recorded and the time at which the same  was recorded,  does  not inspire confidence and that  the  dying

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declaration  was  recorded  at the instance of  PW  21,  the Investigating  Officer and the said declaration was  brought into  existence later and that the view taken by  the  trial court  is  quite  reasonable and the  High  Court  erred  in interfering with the findings of the trial court. 5.   As  noted above, the injured was immediately rushed  to the hospital.  PW 1, Dr Pratap Kumar, the House Surgeon  was on duty in the hospital at       391 that time.  He deposed that at about 7.40 p.m. the  deceased was in the Casualty Department and that PW 10, Dr C. Srihari Rao,  the  Casualty Medical Officer was also  present.   The condition  of  the injured Narasing Rao was serious.   PW  1 further  deposed  that he was asked by PW 10 to  record  the statement  of the injured Narasing Rao and accordingly PW  1 recorded  the same and obtained the thumb impression of  the injured in the presence of PW 10 and after recording, handed over  the  same to the Inspector of Police, PW 21,  who  was present in the hospital at that time.  The dying declaration reads thus :               "Ex.  P-2 Dated March 21, 1979               Statement of Narasing Rao Recorded by PW 1               Statement of Shri P. Narasing Rao s/o Rajaiah,               age 23 years, resident of Sajanlal Street.               Today  i.e., on 21.3.79 at about 7.40  p.m.  I               went to Market Police Station and returning to               my home.  When I reached Rajeswar Talkies  two               persons namely Babu and Daya caught hold of me               and  Raju A-3 beat me. I fell down.  Then  all               the  three  inflicted injuries  with  axe  and               knives.   I received injuries on  chest,  back               side and on right side of the neck.  They took               revenge on me due to previous enmity.               Statement is read over to me and explained  in               Telugu  and  accepted  to  be  correct.    The               incident   was  witnessed  by  one   Daya   of               Kalasiguda who was came (not clear).               Recorded  by  Dr  P.B.  Pratap  Kumar,  Gandhi               Hospital.               LTI of P. Narasing Rao LTI of             8.35               p.m.               P. Narasing Rao             Pratap Kumar" It can be seen that the deceased has mentioned that A-]  and A-2  caught hold of him and Raju, A-3 beat him and  he  fell down.  Thereafter all the three inflicted injuries with axes and  knives.   He  also  mentioned  that  the  incident  was witnessed by PW 2. The main criticism levelled against  this dying declaration is that PW 1, the Doctor, who recorded the same,  has not taken care to verify whether the injured  was in  a  fit  condition to make the  statement  and  that  the evidence of three Doctors, PWs 1, 10 and 20 would show  that the condition of the deceased was very bad and therefore the injured  would not have been in a position to make the  said statement  and that the statement was recorded when  PW  21, the  Inspector  of Police was there.  Learned  counsel  also contended  that some of the admissions made by PWs 1 and  10 in their cross-examinations would throw any amount of  doubt on the authenticity of this dying declaration.  We shall now proceed to consider the evidence of PWs 1, 10 and 20.  PW 1, in  his  chief examination, as  already  mentioned,  clearly stated  that he recorded Ex.  P-1 as stated by the  injured. He also stated that he obtained the thumb impression of  the declare in the presence of the Casualty Medical Officer,  PW 10 and thereafter he handed it over to PW 21.  In the cross- examination, PW 1 admitted that the treatment of the injured

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was not entrusted to him.  However, he was asked at about 8 392 p.m.  to  record  the statement of the injured.   PW  1  had further  admitted  that the injured gave  the  statement  in Telugu  and  he  recorded the same in English.   PW  1  also admitted  that  PW  21  was present  there  and  that  after recording the statement, he handed over the same to him.  He denied the suggestion that Ex.  P- 1 was not recorded in the manner  stated  by  the injured and  that  it  was  prepared subsequently at the instance of the Circle Inspector. 6.   PW  1  is  a  young doctor  and  a  highly  independent witness.   There  is no reason whatsoever for him  to  speak falsehood.   The  recording of Ex.  P- 1 by PW 1 is  not  in dispute.  PW 1 has clearly stated that the injured gave  the said  statement  and he duly recorded it  and  obtained  his thumb  impression.  PW 10, the Casualty Medical Officer  who examined the injured and admitted him, asserted that Ex.  P- 1 was recorded by PW 1 as per his instructions.  PW 10  also deposed  that he asked the Inspector to secure the  presence of  the Magistrate but he was told that the  Magistrate  was not available.  Therefore the Circle Inspector requested him to record the dying declaration.  He, however, asked PW 1 to record the same.  PW 10’s evidence shows that he was present when  the dying declaration was being recorded by PW  1  and that  the  patient  was  fully  conscious  when  the   dying declaration was recorded.  PW 10 further deposed that  after the statement was recorded, he verified it and the same  was read over to the victim who affirmed the same to be  correct and  therefore  his thumb impression was taken.  PW  10  was cross-examined  at  length.  In the first  instance  he  was cross-examined about the availability of the Magistrate  and the  time taken to get the information that  the  Magistrate was   not  available.   Then  he  was  cross-examined   with reference to actual recording.  PW 10 asserted in the cross- examination that he asked PW 1 to record and he himself  had gone through the entire dying declaration recorded by PW  1. PW  10 also stated that they noted in the accident  register that  the dying declaration was recorded.  Ex.  P-6  is  the injury certificate.  It appears that it was noted in Ex.  P- 6  against an entry that the injured was said to  have  been stabbed  by somebody.  Placing much reliance on this  entry, PW  10 was asked in the cross-examination as to how  it  was made.  PW 10 stated that the deceased stated so in the first instance.   The  learned counsel relying on  this  admission sought to contend that the deceased was not aware as to  who stabbed  him.  We see no force in this submission.  It is  a matter  of  common knowledge that such entry in  the  injury certificate does not necessarily amount to a statement.   At that stage the doctor was required to fill up that column in a  normal  manner and it was not the duty of the  doctor  to enquire from the injured patient about the actual assailants and that the inquiry would be confined as to how he received the  injuries  namely  the weapons used  etc.   It  is  next submitted that the condition of the injured was very serious and  therefore it is highly doubtful whether he  would  have been  in  a position to make the statement.  In  support  of this submission, the learned counsel relied on the  evidence of  PW  20 and also PW 9 another Doctor, who  conducted  the postmortem.  PW 20 deposed that he found that the  condition of the injured was serious and that the Magistrate should be informed  for recording the dying declaration.   Relying  on this admission made by PW 20, the learned counsel  contended that the condition                 393 of  the injured was serious and therefore it would not  have

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been  possible to record the dying declaration.   The  other submission is that since PW 20 made an  entry    that    the Magistrate should be informed, it becomes doubtful that  Ex. P-1  was  already  recorded and if, in fact,  the  same  was already recorded, PW 20  would not have made such an  entry. We do not find any substance in this submission.  PW 20 does not  say  that  he  inquired of  PW  10  whether  any  dying declaration  was  recorded already.  Further,  the  accident register itself reveals that PW IO had already made an entry in  the  relevant  column that  the  dying  declaration  was recorded.  Therefore the entry made by PW 20 that he visited the hospital at about 9 p.m. would not in any manner  affect the  veracity  of  the  evidence of PWs 1  and  10  who  are respectable doctors. 7.   The  next  submission is that as PW 1 knew  Telugu,  he should  have  recorded  the dying declaration  in  the  same language.   PW  1 has clearly stated that he  can  read  and write  Telugu.  Therefore, there cannot be any  doubt  about the  contents of the dying declaration which is recorded  in English and what is more, PW 10 clearly stated that he  read out the statement and explained to the injured, who admitted it to be correct.  Having carefully examined the evidence of PWs  1 and 10, we see absolutely no grounds to reject  their evidence.   They are independent and truthful witnesses  and their evidence establishes beyond all reasonable doubt  that Ex.   P-1 was duly and sincerely recorded as stated  by  the deceased.   The view taken by the trial court that Ex.   P-1 was  fabricated, is highly erroneous and unsound.  The  High Court was fully justified in reversing the said finding. 8.   Learned   counsel  also  contended  that  the   medical evidence namely that of PW 9, who conducted the  postmortem, is  in  conflict  with  the  version  given  in  the   dying declaration  that  after the deceased fell down,  the  three appellants inflicted injuries with knives and axes.  PW 9 in the cross-examination gave his opinion that the injuries  as found  would show that they might have been inflicted  while the   injured   was  standing.   No  doubt  in   the   dying declaration, it is mentioned that the deceased was beaten by A-3 and he fell down.  But that does not mean that he  would not  have made an attempt to get up and stand.  The  opinion given  by  PW 9 is not in direct conflict with  the  version given  in  the  dying declaration.   Apart  from  the  dying declaration, Ex.  P-1, there is evidence of PWs 2 to 4  also which  has  been relied upon by the High Court also.   PW  2 after  witnessing the occurrence immediately rushed  to  the police station and informed the police.  As a matter of fact his name was mentioned in the dying declaration itself.   PW 4 deposed that he was selling groundnuts on a push-cart.  He knew  the  accused and deposed that  these  accused  persons attacked the deceased.  The evidence of these two  witnesses lends   ample  corroboration  to  the   dying   declaration. Therefore  we see no grounds to interfere with the  findings of the High Court. 9.   It  is  reported that A-1, P. Babu  is  dead.   Learned counsel   for  the  appellants  also  confirms   the   same. Consequently appeal against A-1 stands abated.  So far as A- 2, G. Dayanand and A-3 M. Rajender are concerned, the appeal is dismissed. 394 The Judgment of the Court was delivered by K.JAYACHANDRA  REDDY, J.- The appellant Smt Nirmal  Devi, who  is the sole accused in the case, has been found  guilty under  Section  302  R.P.C.  of  J  &  K  and  sentenced  to imprisonment  for  life for the offence  of  committing  the murder  of her husband by administering poison.  The  appeal

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filed  by  her was dismissed by the High Court.   Hence  the present appeal. 2.The appellant was married to the deceased Girdhari  Lal about 17 or 18 years prior to the occurrence.  For 11 or  12 years they lived together.  Later the appellant went to  her parental   house  without  the  consent  of   the   husband. Thereafter  she never returned to the house of the  husband. It is alleged that in her parental house she started leading an  adulterous  life  which was resented  by  the  deceased. About  13  or 14 months prior to the occurrence  she  joined training course of midwifery in a hospital at Jammu and  she continued  her  activities  of indulging  in  immoral  acts. About  15 or 16 days before the date of the occurrence,  the appellant  gave  birth to an illegitimate  daughter  in  the Jammu  Hospital.  After that she went to her parental  house in  Village  Siote only 6 or 7 days before  the  occurrence. During the wedlock the appellant gave birth to two sons  and a daughter and the deceased husband had great affection  for those  children.   When  the accused came  to  her  parental house, the deceased went to see his children in the house of his  in-laws  on June 16, 1975.  Only the  accused  and  the children  were present in the house.  During that visit  the appellant, however, behaved well with her husband and showed great love for him.  She prepared pakoras and tea and served the  same  to the deceased.  The deceased after  eating  the pakoras and drinking the tea left for  From  the  Judgment and Order dated June 12,  1980  of  the Jammu & Kashmir High Court in Crl.  F.A. No. 16 of 1976 395 his  house.   On  the way he felt pain in  his  abdomen  and burning  sensation in his throat causing  restlessness.   He reached  the  home with great difficulty and rested  on  the bed.   After some time he vomitted and he asked his  younger brother,  PW 3 with gestures to bring a paper and a pen  and in the note-book given, the deceased could hardly write "one cup-two  cups tea half Pao Pakora" and  became  unconscious. His family members took him to the hospital where he expired on  the same night.  The Medical Officer, Dr Surendra  Singh who  treated  the deceased, was examined  in  the  committal court but could not be examined in the Sessions Court as  he was  transferred.   He informed the police as  he  suspected some  foul  play.  SI, PW 25 took  over  the  investigation. Inquest  was held and the postmortem was conducted  and  the viscera  was sent to the Chemical Examiner.  The  report  of the  Chemical Examiner showed that a heavy concentration  of arsenic was found in the viscera.  A case under Section  302 R.P.C.  was  registered and thereafter  the  witnesses  were examined.   After  completion  of  the  investigation,   the charge-sheet was laid. 3.   When  examined  under Section 342  CrPC  the  appellant admitted that she had been staying in her parental house for the  last  4 or 5 years and since he found it  difficult  to make  both ends meet she went to her parental house and  she denied  having  indulged in immoral acts.  The rest  of  the case  was denied by her.  The prosecution mainly  relied  on the  evidence of PWs 6, 7 and 8 and also on the evidence  of PW 3, the brother of the deceased who gave the note-book  on which  the  deceased  scribbled about two cups  of  tea  and pakoras.   The  said note-book was marked as Ex.   PB.   The learned  Sessions Judge relying on the evidence of PWs 6,  7 and 8 who spoke about the serving of the tea and pakoras and the  immediate  movements  of the  deceased,  convicted  the accused. 4.   The  High Court again has discussed their  evidence  in great  detail and held that these witnesses are  independent

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witnesses  and their statements are natural and  cogent  and accordingly confirmed the conviction. 5.   Learned  counsel  for the appellant  submits  that  the witnesses  were examined at a belated stage nearly  after  a month  or so and that the courts below erred in  relying  on Ex.  PB namely the writing of the deceased in the  note-book and  that no report was given immediately when the  deceased came  to  his  house  and  informed  his  mother  about  the discomfort  in the stomach.  His further submission is  that the presence of arsenic is not enough to connect the accused with the alleged administration of poison. 6.   As  noted by both the courts below, PWs 6, 7 and 8  are independent witnesses.  PW 6 deposed that he was coming from the  water mill with a bag full of flour and on the  way  he met  the deceased.  He found him to be feeling  very  uneasy and  on being asked, the deceased told him that he had  gone to  his wife who had come from Jammu and she served tea  and pakoras and immediately after taking the tea and pakoras  he developed  pain in the stomach and that the tea also  tasted bitter.  PW 7 deposed that he knew the deceased and on  that day he went around the village to purchase a goat and 396 as he was feeling thirsty went near the water spring.   Then on  the way he went in front of the house where he  saw  the accused  and the deceased.  The deceased enquired him as  to wherefrom  he came and he saw the accused serving tea  along with  pakoras to the deceased and after taking the  tea  the deceased  left  the  house.  PW 7 also  deposed  that  while taking  the  tea,  the deceased remarked that  the  tea  was tasting bitter.  He came to know that the deceased was  dead and that he informed the father of the deceased that he  has seen on that day the deceased taking tea and eating  pakoras in  the  house of his in-laws.  PW 8 was also known  to  the deceased and the accused.  On the day of occurrence he  went to  Subedar  Nanak  Chand  to  have  some  consultation   in connection with the construction of a temple and when he was passing  through the village at about 7.40 a.m. he  saw  the deceased going towards the house of his in-laws.  PW 8 after finishing  his  talks with Subedar came back at 9  a.m.  and again  met the deceased at a distance of 150 yards from  his in-laws house.  The deceased called him by gestures and told him that he had been to his in-laws house and there his wife namely  the accused served tea and pakoras and after  taking them, he was feeling burning sensation in his throat and  he was  also holding his abdomen with his hands and was  unable to walk.  These three witnesses have been cross-examined  at length  and  nothing  significant has  been  elicited  which affects   their  evidence.   Both  the  courts  below   have discussed their evidence in great detail and have given good reasons for accepting their evidence.  PW 2 is the mother of the  deceased.   She deposed that on that day  the  deceased went to his in-laws house and came back at about 11.30  a.m. and immediately after coming he laid himself on the cot  and could not speak.  She saw the deceased beating his chest and he  made  gestures to PW 3 his brother to give a pen  and  a paper  and he scribbled on the note-book given to him.   She also  deposed about the adulterous life led by the  accused. From  their  evidence  it  can be  seen  that  the  deceased immediately  after eating pakoras and taking tea  fell  ill. Then  we have the evidence of other witnesses to the  effect that  the  deceased was taken to the hospital where  he  was treated  but  he died.  This evidence establishes  that  the deceased  fell  ill  immediately after  eating  pakoras  and drinking   tea  served  by  the  accused.    Therefore   the prosecution has firmly established that the tea and  pakoras

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served  by  the accused caused illness.  Then  we  have  the evidence of the doctor who suspected foul play and  informed the  police  and  the  viscera was  sent  and  the  Chemical Examiner  found  heavy  concentration  of  arsenic  in   the viscera.  Therefore all the connecting links are complete to form a chain which conclusively incriminate the accused. 7.   The  criticism that there was delay in registering  the case in these circumstances, is not at all material.  It was only after the Chemical Examiner’s report that it was firmly established  that the deceased died due to  arsenic  poison. Consequently  if  there  was  any  delay  in  examining  the witnesses  that  is  also not  material.   The  question  of registration  of a case also would not have  arisen  because nobody could at that stage predict that the illness was  due to poisoning.  Yet another submission of the learned counsel is  that the prosecution has not established as to  how  the appellant came into 397 possession of arsenic poison.  We are of the view that  this by  itself  does not affect the prosecution  case  when  the other  evidence  is  clinching.   The  accused  was  earlier working  as a nurse and it is quite possible that she  could have  easily procured the arsenic.  Learned counsel  further submitted that the courts below ought not to have placed any reliance on Ex.  PB, the scribbling made by the deceased  to come  to the conclusion that it was the accused  who  served the tea and pakoras.  We have seen the judgments of both the courts below.  It is only observed that Ex.  PB supports the evidence  of  PWs  6, 7 and 8. Even without  Ex.   PB  their evidence is wholly sufficient to bring home the guilt to the accused.   For all these reasons, we see no merits  in  this appeal.  It is accordingly dismissed.  The appellant, who is on bail, shall surrender and serve out the sentence.