REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 373 OF 2008

Vallabhaneni Venkateshwara Rao …..Appellant

Versus

State of A.P.    …..Respondent

(With Criminal Appeal No.393 of 2008)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These two appeals are directed against the common judgment of the  

Andhra Pradesh High Court.  Seven accused persons had filed the appeal  

before the High Court questioning their conviction for offences punishable  

under Sections 302 read with Sections 149, 148 of the Indian Penal Code,

1860 (in short the ‘IPC’).  Additionally, A1 appellant in present Criminal  

Appeal no.373 of 2008 was convicted for offence punishable under Section  

341  IPC.   Charge  was  made  against  all  the  accused  persons  that  on  

9.10.2002 at about 11.30 a.m. all of them formed an unlawful assembly near  

the  fish  tanks  of  Chevuru  village  and  beat  Adusumalli  Ranga  Rao  

(hereinafter referred to as the ‘deceased’) with casuarian sticks and caused  

his death.     

2. The version of the prosecution as put forth is to the effect that all the  

material witnesses as well as the accused are residents of Chevuru village of  

Mudinepalli  Mandal,  Krishna  District  and  there  have  been  ill  feelings  

between the accused and the prosecution witnesses. Accused Nos.1 and. 2  

are brothers, 4 and 5 are the sons of A.1 and A.2. A.3 is the cousin and A.6  

and A.7 are brothers-in aw of A.1. PWs 1 to 6 belong to one group, and the  

deceased  is  the  brother  of  PWs 3 and 5.  PW.4 is  the  sister's  son of  the  

deceased. On 9-10-2002 PW.1 went to Singarayapalem village to bring a  

doctor by name B.Satynarayana (LW.2) to attend his maternal grandmother  

who was suffering from ill-health. While bringing the doctor on his scooter,  

at that time the deceased was also walking along on the road. When PW.1  

crossed Singarayapalem Centre, the deceased stopped his scooter for a lift.  

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Then the deceased was picked up on his  scooter  and when they reached  

Chevurupalem Anjaneya Swamy temple, at that time PW.2 was also coming  

by walk. Since the road repair works were going on, PW.1 asked the doctor  

(LW2) and the deceased to get down and when he was coming on the road  

margin along with the scooter and reached the tanks of Dr.Vijay Kumar, by  

stopping his scooter and was waiting for the arrival of the Doctor (LW2) as  

well as the deceased, at that point of time all the accused who were holding  

stout  sticks and were proceeding towards Singarayapalem started abusing  

the deceased. Later, accused No.1 caught hold of the deceased and beat with  

a stout stick on the head of the deceased. A.4 and A.5 beat the deceased on  

the right shoulder. A.2 and A.3 also beat the deceased on the left thigh and  

further beat near the joint of leg. A.6 and A.7 also beat the deceased on the  

right leg. At that time the road coolies who are attending road works also  

raised cries requesting not  to beat  the deceased.  Later  PW.1 went to the  

village and informed about the incident to PW.3. Thereafter, PW.3 came to  

the  scene  of  offence  and  came  to  know  about  the  incident  through  the  

deceased. Immediately for some time the deceased was taken to the hut of  

Jagan (LW.15) situated on the tank bund and thereafter, the deceased was  

shifted to Mudinepalli Police Station in Car. Assistant Sub-Inspector, PW.8  

who was in the Police Station recorded the statement of the deceased under  

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Ex.P.12  and  initially  registered  a  case  in  Crime  No.96  of  2002  for  the  

offences  punishable  under  Sections  341,  324,  325  read  with  34  IPC  in  

P.S.Mudinepalli  and issued FIR to all  the concerned. Ex.P.13 is  the FIR.  

Afterwards,  the  deceased  was  referred  for  treatment  to  the  Government  

Hospital, Gudivada through PC No.795 along with a hospital memo. PW.10  

is the doctor treated the deceased. Ex.C.2 is the relevant entry in Ex.C.1 the  

accident register pertaining to the treatment of the deceased.

Later on PW.8 took up investigation and went to Gudivada  hospital  

and  recorded  the  statement  of  the  deceased  while  he  was  alive,  under  

Ex.P.14 and recorded the statements of PWs 3, 5, 4 and left the Gudivada  

Hospital and reached Chevuru village and also examined and recorded the  

statements of PW.1 and LW.2 and again visited Chevuru village examined  

and recorded the statements of LWs.12 and 13 and secured the presence of  

mediators  PW.6  and  LW.21  and  observed  the  scene  of  offence  in  the  

presence of the above mediators  and got  prepared the observation report  

under Ex.P.1.  Further,  he seized one pair  of Hawai chappals  (MO8) and  

drew the rough sketch and thereafter examined PWs. 15 and 16 and visited  

the house of the accused and came to the Police station at about 6.30 p.m. on  

9-10-2002. Meanwhile Police Constable 975 came to the Police Station and  

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handed  over  the  death  intimation  of  the  deceased  under  Ex.P.15  and  

consequently PW.8 altered the Section of law into one under Sections 147,  

148, 341, 302 read with 149 IPC. Ex.P.16 is the altered F.I.R.

Subsequently, PW.9, the Circle Inspector of Police took up further  

investigation. On  a  requisition  given  by  PW.9,  the  Judicial  First  Class  

Magistrate Kaikaluru sent the material objects to RFSL, Vijaywada along  

with  a  letter  of  advice  under  Ex.P.17.  After  receipt  of  the  RFSL report  

under  Ex.P.19  and  post  mortem  certificate  under  Ex.P.20,  PW.9  filed  

charge sheet before the Judicial First Class Magistrate, Kaikaluru and later  

on, the case was committed to the Court of Session.

As accused persons pleaded innocence trial was held.  

On consideration of the evidence on record the trial Court found that  

the accused persons were guilty as aforenoted.  Reliance was placed on two  

dying declarations i.e. Ext.P-12 and Ext.P-14.  Questioning their conviction  

7 convicted persons filed appeal before the High Court which as noted above  

held that A4 and A7 were not guilty and they were acquitted of the charges.  

For their acquittal main reason is that Ext.P-14 was disbelieved. So far as  

accused 1 to 3 are concerned, the appeal was dismissed.  

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The present two appeals are by A1 to A3. It is to be noted that there  

were three dying declarations.  The High Court has given various reasons for  

rejecting Ex.P14 for recording acquittal of A4 to A7.  

4. According  to  learned  counsel  for  the  appellant  the  reasons  for  

rejecting  Ex.P14 are  equally  applicable to  the Ex.P12 and,  therefore,  the  

present appellant are entitled to acquittal.  A1 is the appellant in Criminal  

Appeal  No.373 of 2008 while A2 and A3 are the appellants  in Criminal  

Appeal no.393 of 2008.    

5. It is submitted that apart from the reasons relating to Ex.P14 there are  

several other reasons which would warrant rejection of Ex.P12.  

6. Learned counsel for the respondent, on the other hand, supported the  

judgment  of  the  High  Court.  It  would  be  necessary  to  take  note  of  the  

reasons given by the High Court for the rejection of Ex.P14.

“1. P.W.10  Doctor  has  stated  the  deceased  would  have  become  

unconscious  after  receipt  of  head  injury  and he  could  not  be  in  a  

position to speak. In view of the Doctor's evidence, the deposition of  

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P.W.8 that  he  has  recorded Ex.P.14  at  the  hospital  is  not  reliable.  

Further Ex.P14 was not recorded in the presence of the Doctor.

2. Ex.P.14, the 2nd dying declaration, is the improved version of  

Ex.P12  first  dying  declaration  implicating  new set  of  accused  and  

introducing  new  set  of  eyewitness.  So  Ex.P14  is  to  be  rejected.  

Consequently,  the  presence  of  P.W1  and  P.W.2  at  the  scene  as  

mentioned in Ex.P14 has to be held doubtful.

3. P.W.10 Doctor says when the injured deceased was admitted in  

the  hospital  he was  not  able  to  speak  and therefore  he  questioned  

P.W.3  about  the  incident  and  recorded  his  statement  in  Ex.C-2  

Accident Register. So the deceased who was not able to speak could  

not have given Ex.P14 statement at the hospital to P.W.8 A.S.I.

7. In order to appreciate the stand taken by the appellants who contend to  

Ex.P12 has also to be rejected the following factors need to be noted:  

(1) P.W.8 A.S.I stated that on 9.10.2002 at 12.45 P.M. the injured  

deceased was brought to police station by his elder brother P.W.3 and  

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at  the  Police  Station  the  Ex.P12  Statement  was  recorded  from the  

injured deceased by P.W.8 A.S.I of Police between 12.45 P.M. and  

1.15 P.M. Ex.P.12  would indicate, that  P.W.8 obtained the L.T.I of  

deceased. The evidence of P.W.8 and Ex.P12 statement cannot be true  

because P.W.10 the Doctor stated that :

(i) The victim after receipt of first injury on the head would have  

become unconscious; and

(ii) That he could not have been in a position to speak.; and

(iii) That because of the injury No.6 in the left elbow joint, he could  

not be in a position to put left thumb impression.

Thus  the  above  statement  of  P.W.10  Doctor  falsifies  the  

deposition of  P.W.8 who stated  that  he recorded Ex.P12 from the  

deceased and deceased put LTI in Ex.P12.

According  to  P.W.8  after  recording  Ex.P12,  the  1st dying  

declaration he sent the injured deceased to the hospital along with a  

constable  and  Hospital  Memo.  This  statement  can  not  be  true  

because,  P.W.10 doctor specifically stated that the injured was not  

sent by the police and there was no hospital memo. He further stated  

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that  since injured was not  in a  fit  condition to  give statement,  he  

asked  P.W.3  who  accompanied  the  deceased  about  the  incident.  

P.W.10 Doctor admits while referring to Ex-C-2 that police did riot  

accompany the deceased and that was the reason as to why Ex.C-2  

does not contain the reference about the Hospital Memo sent by the  

Police  or  the  requisition  of  the  Police  and  number  of  the  Police  

Constable who was said to have taken the deceased to hospital. Ex.C-

2 shows, the victim deceased was brought to the Hospital by P.W.3  

alone and not by the police. Hospital Memo was not marked. The  

concerned Police Constable also has not been examined. There is no  

explanation  from  the  prosecution  in  this  regard  such  there  is  no  

corroboration  for  the  statement  of  P.W.8,  on  the  other  hand  the  

evidence of P.W.10 and Ex.C-2 is contradictory to the evidence of  

P.W.8.  The  fact  that  it  is  not  established  that  Police  Constable  

accompanied the victim deceased to the hospital along with Hospital  

Memo, would indicate that P.W.3 would have come to the Hospital  

directly from the scene of offence without going to the Police Station.  

Therefore, the evidence of P.W.8 that he recorded the statement of  

injured person in Ex.P12 at the Police Station is not reliable.

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According to P.W.3, when the deceased was sitting in the car in  

front of the Police Station, P.W.8 came out of the Police Station and  

recorded Ex.P12 statement from the injured deceased. But according  

to P.W.8, the injured deceased was brought inside the station from the  

car  and his  statement  Ex.P12 was recorded at  the  verandah of  the  

Police Station. Thus there is a variation. But the fact remains that both  

had stated Ex.P12 was recorded at the Police Station before reaching  

the  hospital.  If  this  is  true  P.W.3 would have  stated  to  the  doctor  

P.W.10 that 3 persons attacked the deceased with sticks as refer to in  

Ex.P12. On the other hand P.W.3 specifically stated to P.W.10 Doctor  

that 10 persons attacked the deceased with crow bar as referred to in  

Ex.C-2.  As  such  the  statement  of  P.W.3  to  the  Doctor  P.W.10  is  

contradictory to Ex.P12. This shows Ex.P.12 was never recorded by  

P.W.8 in the police station in the presence of P.W.3 before reaching  

the hospital as they directly went to the hospital. It was suggested to  

P.W.3 that they shifted the deceased directly to the hospital from the  

scene of offence without going to the Police Station.

Ex.P.14  is  not  a  mere  improvement  of  Ex.P12.  The  story  

projected in Ex.P12 is entirely different from Ex.P14. As per Ex.P12  

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from the bus stop the injured deceased proceeded to the village by  

walk and at that time A-1 to A-3 attacked him in the presence of one  

eye witness Jagan. But according to Ex.P.14 the deceased came to the  

road side along with PW.1 Sriniva Rao and one R.M.P. Doctor in the  

scooter and at that point of time A-1 to A-7 appeared and attacked the  

deceased. The story in Ex.P.12 has been given up and new case has  

been projected in Ex.P-14 by introducing new set of eyewitnesses and  

new  set  of  accused.  Hence  both  Ex.P12  and  Ex.P14  can  not  be  

believed.

It  is  seen  from  the  records,  3  different  stories  have  been  

projected by the prosecution. As per Ex.P12 recorded at 12.45 P.M., 3  

persons attacked with sticks in the presence of one eye witness Jagan.  

As per C-2 recorded at 2.30 P.M. ten persons attacked with crow bar.  

As per Ex.P14 recorded by P.W.8 before the death of deceased at 2.50  

P.M. seven persons attacked with sticks in the presence of two new  

eye  witnesses.  No  clear  answer  comes  from the  prosecution  as  to  

which of the three versions is believable.

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Ex.P12 suffers from two infirmities. Firstly, medical evidence  

is  contradictory.  Secondly,  only  eye  witness  Jagan  mentioned  in  

Ex.P12  was  not  examined.  The  non-examination  of  the  said  

eyewitness would result in the lack of corroboration to Ex.P-12.

8. It is to be noted that the High Court wrongly states that Ex.P14 does  

not  refer  to  Ex.P12.  In  fact,  it  clearly  states  that  the police  recorded his  

statement which is Ex.P12.  

9. Above being the position, it would be unsafe to convict the accused-

appellants.   Their  convictions  are  accordingly  set  aside.   They  be  set  at  

liberty forthwith if not required to be in custody in any other case.

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………………………………...J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, May 08, 2009

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