Andhra Pradesh High Court - Amravati
Boya Marutla Narayana Swamy, ... vs P.P., Hyd on 4 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
IN THE HIGH COURT OF ANDHRA PRADESH
***
Criminal Appeal No.364 of 2015
Between:
Boya Marutla Narayana Swamy .... Appellant
and
State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court at Hyderabad for the State of
Telangana and State of
Andhra Pradesh, Hyderabad .... Respondent
Date of Judgment pronounced on : 04.09.2020
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.KRISHNA MOHAN
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
of the Judgment?
* HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.KRISHNA MOHAN
+ Criminal Appeal No.364 of 2015
% 04.09.2020
# Boya Marutla Narayana Swamy,
son of Narasimhappa, aged about 40 years,
R/o D.No.2/146, Kuderu Village,
Koderu Mandal, Ananthapur District.
... APPELLANT
Vs.
$ State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court at Hyderabad
for the State of Telangana and State of
Andhra Pradesh, Hyderabad
... RESPONDENT
! Counsel for the Petitioner : SRI P.VISHNUVARDHAN REDDY
Counsel for the Respondent : PUBLIC PROSECUTOR;
G.P. FOR COMMERCIAL TAX
<Gist :
>Head Note:
? Cases referred:
1. (2011) 9 SCC 479
2. (2016) 3 SCC 108
3. 1982 CrLJ 1398 (Raj)
4. 1989 CrLJ 2050 (DB)(Mad.)
5. 2002 (3) Crimes 415 (DB)(HP)
6. 2003 (1) Crimes 162 (AP-DB)
7. 2003 SCC (Crl.) 112
8. 1999 (4) Crimes 256 (SC)
9. AIR 1978 SC 1096
10.AIR 1975 SC 1400
11.AIR 1976 SC 294
12.(1980) 1 SCC 30
13.(2001) 6 SCC 118
14.(2002) 1 SCC 577
15.AIR 1994 SC 963
16.AIR 2000 SC 1374
17.AIR 2000 SC 1876
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.KRISHNA MOHAN
Criminal Appeal No.364 of 2015
JUDGMENT :(Per Hon'ble Sri Justice C.Praveen Kumar)
1. The sole accused in Sessions Case No.4 of 2013 is the appellant herein. He was tried for the offence punishable under Section 302 I.P.C. for causing the death of one Venkata Ramudu, by stabbing him with a knife on the left side of his abdomen, in front of a cool drink shop at Kuderu on 27.1.2012 at 8.30 PM. By its judgment dated 30.1.2015, the III Additional District & Sessions Judge, Fast Tract Court, Ananthapuram, convicted the accused and sentenced him to suffer imprisonment for life and to pay a fine of Rs.10,000/-.
2. Challenging the same, the present appeal came to be filed. P.W.1 is the wife of the deceased, while P.Ws.2 to 5 are residents of Kuderu. Since the material witnesses P.Ws.1 to 4, 9, 10, 11, 12, 13 and 14 did not support the prosecution case, it will be necessary to refer to the averments in the charge-sheet to know the basic facts of the case, which are as under :
The deceased married the daughter of one Anjineyulu (first wife) of Kuderu and after her death, about 10 years back, he married P.W.1, who is a resident of Kandukuru Village. The deceased has one sister, who was given in marriage to one Sangappa, who is the brother of the accused.
About 10 years prior to the date of the present incident, deceased Venkata Ramudu stabbed his brother-in-law Sangappa, resulting in his death. Since then, the accused is said to have bore grudge against the deceased. On 27.1.2012, the deceased went to Kuderu and visited the house of his father-in-law (father of his first wife) as he was sick. On the very date, at about 8.30 PM, while the deceased was sitting in front of the cool drink shop, the accused is said to have gone there and stabbed the deceased on the left side of his abdomen. This was said to have been witnessed by P.Ws.2 to 5. Immediately thereafter, the deceased was shifted to Government General Hospital, Ananthapur, where he took treatment from 27.1.2012 to 16.2.2012 and thereafter, he was discharged from the hospital. As his wound did not heal and as he was getting severe pain, he again got himself admitted in the Government Hospital, Ananthapur on 17.2.2012, but the Doctor advised P.W.1 to take the injured to Hyderabad for treatment. Pursuant thereto, the injured was admitted in Government General and Chest Hospital, Hyderabad on 18.2.2012 and at about 1.00 PM, he died in the said hospital. In substance, this is the case of the prosecution in the charge-sheet.
3. The evidence available on record shows that, on 27.1.2012 P.W.6 admitted the injured Venkata Ramudu in the Government Hospital, Anantapur and sent intimation to Police outpost. Ex.P7 is the said intimation. Police came and recorded the statement of the injured, which is placed on record as Ex.P8. P.W.6, who is the Civil Assistant Surgeon, also sent intimation to the Magistrate for recording the dying declaration of the injured. At about 11.59 PM, P.W.16 - AJFCM, Ananthapur, recorded the statement of the injured, which is placed on record as Ex.P22. P.W.16 obtained the certificate of the Doctor both before and after recording the dying declaration. The material on record further show that on 28.1.2012, while P.W.18 was in the Police Station, he received intimation about the admission of the injured and immediately, registered a case in crime No.6 of 2012 under Section 307 I.P.C. Ex.P28 is the medical admission intimation. Ex.P8 is the statement of the deceased Venkata Ramudu, which was signed by him. Ex.P29 is the F.I.R. Thereafter, he left the Police Station and visited the Government Hospital at 2 AM where he examined the informant and his wife and recorded their statements. He also seized blood stained shirt of the injured under Police Proceedings marked as Ex.P30. He reached the scene of offence and prepared a rough sketch under Ex.P24. At the scene, he examined P.Ws.2 to 5. On 30.1.2012, he received credible information about the accused and as such, secured P.Ws.7 and 8 and along with them and staff went to Krupa Petrol Bunk at Kuderu and found one male person moving in suspicious circumstances. When he tried to run away, he was arrested and one knife was seized from a mud heap pursuant to a confession made by the accused. Ex.P14 is seizure proceedings.
4. As stated by us earlier, the injured was discharged from the Hospital, as per the charge-sheet, on 16.2.2012, but, however, on the very next day i.e., on 17.2.2012 in the morning hours, he was admitted in the Hospital in Anantapur, but, however, the Doctor advised P.W.1 to take the injured to Hyderabad, where he died on the next day. P.W.14, the Constable working in the Outpost Police Station, Government Hospital, Anantapur, on receiving the medical intimation, went to casualty and recorded the statement of the injured and intimated about the same was given to Kuderu Police Station along with covering letter through Home Guard.
5. On 19.2.2012, at about 10.30 AM, P.W.1 came to the Police Station and gave a written report, basing on which, section of law was altered to Section 302 I.P.C. Meanwhile, P.W.18 also received the death intimation from the Government Hospital, Anantapur. Ex.31 is the report given by P.W.1. Ex.P32 is the altered F.I.R. As it is a grave offence, P.W.18 handed over the investigation to P.W.17.
6. Basing on the information received from P.W.18, P.W.17, the Inspector of Police, took up further investigation in this case. On 19.2.2012, he claims to have visited mortuary room at Government General Hospital, Anantapur and noticed the dead body of the deceased. In the presence of P.Ws.10 and 11, he conducted inquest over the dead body. Ex.P23 is the inquest report. During inquest, he examined P.Ws.1,9,10 and 11 and thereafter, sent the body for post-mortem examination. P.W.15 - Assistant Professor in Forensic Medicine at Anantapur, conducted autopsy over the dead body of the deceased on 20.2.2012 and issued Ex.P20 - post-mortem certificate and Ex.P21 is his final opinion. According to him, there were five external injuries on the body and out of five external injuries, he opined that, external injury Nos. 1,2,4 and 5 and internal injury No.1 appears to have been caused by the hospital doctors for treatment purpose. External injury No.3 is the stab injury as per hospital records, which shows healing process. According to him, the deceased died due to consequence of complications of the injury sustained. P.W.17 proceeded with the investigation, got the accused remanded. He also got prepared rough sketch, which is placed on record as Ex.P24.
7. After receiving the PME report and FSL report, P.W.17 filed charge-sheet, which was taken on file as P.R.C. No.95 of 2013 on the file of the Additional Judicial First Class Magistrate, Anantapur. On appearance of the accused, all the documents as required under Section 207 Cr.P.C. were furnished and later on it was committed to the Court of sessions under Section 209 Cr.P.C. On appearance of the accused, charge under Section 302 I.P.C. came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
8. In support of its case, the prosecution examined P.Ws.1 to 18 and got marked Exs.P1 to P33. Out of 18 witnesses examined by the prosecution, P.Ws.1 to 5, 9, 10, 11, 12 and 13 did not support the case of the prosecution and were decaled hostile. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, but not adduce either oral or documentary evidence.
9. Relying upon the two dying declarations, the learned Sessions Judge convicted the accused.
10. Sri P.Vishnuvardhan Reddy, learned counsel for the appellant, would contend that no credence can be given to two dying declarations recorded by the Police and by the Magistrate, which are placed on record as Ex.P8 and Ex.P22, as they are an outcome of tutoring. Referring to the admissions made by P.W.1 in the cross-examination, he would contend that these dying declarations cannot be made basis to convict the accused. He would further contend that in view of the finding given by the learned Sessions Judge that one of the statement of the deceased was not brought on record, he would submit that the prosecution is not coming forward with a true version of the case and the plea that these two dying declarations are an outcome of tutoring gains support.
11. On the other hand, the learned Public Prosecutor would contend that the admissions elicited by the accused from the witness, who turned hostile and not supported the case of the prosecution, cannot be accepted. According to him, if the answers elicited by the accused from a hostile witness are to be made the basis to decide a case, then every case would end in acquittal, because invariably the said witness would answer in affirmative to every suggestion given by the counsel for the accused. Further, he would plead that the statements of the deceased recorded by the Police, Magistrate and also the Doctor cannot be said to be an outcome of tutoring, as there was no material to show that these statements came to be made after tutoring. If really the incident did not happen in the manner suggested by the prosecution, definitely there was no need for the witness, who are turned hostile, to narrate in their earlier statement, more particularly at the time of lodging the F.I.R. and also at the time of inquest, the manner in which the incident took place; hence, pleads that the conviction imposed by the trial court needs no interference.
12. Replying to the argument advanced by the learned Public Prosecutor, counsel for the appellant would submit that, incident happened on 27.1.2012 and thereafter he was discharged from the hospital, which is evident from the charge-sheet. After going home, he again developed some pain, as a result of which, he was brought to hospital, where the Doctor advised P.W.1 to take him to Hyderabad, where he succumbed on 18.2.2012. Thereafter he was brought back to Anantapur. From the above, he pleads that even accepting the case of the prosecution and medical evidence available on record, conviction under Section 302 I.P.C. cannot be sustained.
13. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt for an offence punishable under Section 302 I.P.C. or, whether the facts warrant scaling down of the offence?
14. As seen from the record, P.Ws.2 to 5 were examined as eyewitnesses to the incident, but all four of them did not support the prosecution case and they were treated hostile by the prosecution. P.W.1 is the wife of the deceased. She was also declared hostile by the prosecution, when she stated that there was no dispute between the accused and the deceased. According to her, her husband received injury on the abdomen due to injury caused by the horns of the bull at Kuderu. According to her, on receipt of information about the incident, she proceeded to the Government Hospital at 10 PM. Her husband was treated for twenty days and thereafter discharged from the hospital. On the same night, pain increased and next day morning, again they went to Hospital, where the Doctors advised them to go to Kurnool, but, however, they shifted the injured to Osmania Hospital, Hyderabad, from there to Erragadda Chest Hospital. It is said that a surgery was conducted at 12.30 PM and immediately thereafter, her husband died. Thereafter the dead body of the deceased was brought to Government Hospital, Anantapur. She further states that she did not lodge any report and that she does not remember whether the police examined her, but, however, she admits her signature on Ex.P1. Her version, in her chief-examination, with regard to the incident; being treated in Government Hospital, Anantapur, for nearly 20 days; thereafter, being shifted to Hyderabad, where he died within two days, corroborates with other material on record. Therefore, to this extent it can be accepted. After declaring her hostile, learned Public Prosecutor cross-examined the witness, wherein she denies the version stated by her in Section 161 Cr.P.C. statement.
15. In the cross-examination by the counsel for the accused, she admits all the suggestions given by the counsel, more particularly, the manner in which the report came to be drafted and that her husband (deceased) being tutored by her relatives to give false report against the accused. In the last sentence of that portion she again says that, the accused has no connection with the death of her husband.
16. It will be necessary to extract the answers elicited by the counsel for the accused from P.W.1 after she was declared hostile, since the entire argument now is based on these answers, which are as under :
"It is true that my husband's relatives suspected my husband for said murder. The complaint in this case was got drafted by my relatives keeping in mind about the murder of Sangappa. When police examined my husband our relatives tutored my husband to give a false complaint against the accused. Hence, my husband also stated against the accused before the Magistrate at the time of recording my husband's statement. There is no connection of the accused for the death of my husband."
17. As stated, the main plea of the accused is that the two dying declarations cannot be believed, since they are an outcome of tutoring. He mainly relies upon the answers given by P.W.1 in her cross-examination, to the suggestions given by the counsel for the accused, after the witness was declared hostile by the prosecution.
18. In Mrinal Das v. State of Tripura 1 the Apex Court held as under :
"It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance 1 (2011) 9 SCC 479 of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
19. In Krishan Chander vs. State of Delhi 2 the Apex Court considered in detail the evidentiary value of hostile witness. The relevant portion of the judgment reads as follows :
"This Court is of the view that whenever a prosecution witness turns hostile, his testimony cannot be discarded altogether. In this regard, reliance is placed by the ASG on the decision of this Court in the case of Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233]. The relevant para 12 of the aforesaid case reads thus:
12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh v. State of Haryana Bhagwati, J., speaking for this Court observed as follows:2
(2016) 3 SCC 108 The prosecution could have even avoided requesting for permission to cross-examine the witness Under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-
examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
20. A witness who goes against his earlier version and decides to support an accused betraying truth and respect for oath, he is not to be treated as a truthful witness. Once the testimony is tainted, it is immaterial what the reasons are for it -- Administrator, Municipal Board, Gangapur v. Om Prakash3. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of hostility'. It is to be liberally exercised whenever the court from the witnesses demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. It is to be noted that, the grant of such permission does not amount to an adjudication by the court as to the veracity of the witness.
21. In Sait v. State4, it has been held that, where a witness turns hostile wholesale to the prosecution, his evidence 3 1982 CrLJ 1398 (Raj) 4 1989 CrLJ 2050 (DB) (Mad.) cannot at all be relied upon for any purpose whatever and the same has to be eschewed out of consideration. However, in Ian Royalance Stillman v. State of H.P.,5 it is held that, when a witness called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such witness loses credibility and cannot be relied upon by the defence.
22. In a criminal trial where a prosecution witness is cross- examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon part of the testimony of such witness if that part of the deposition is found to be creditworthy. See Boina Mallaiah v. State of A.P.6.
23. In Balu Sonba Shinde v. State of Maharashtra7 the Hon'ble Supreme Court held that, the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance.
5 2002(3) Crimes 415(DB)(HP) 6 2003(1) Crimes 162 (AP-DB) 7 2003 SCC (Crl.) 112
24. As held by the Hon'ble Supreme Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat8 , the evidence of a hostile witness can be relied upon to an extent it supports the prosecution version; there is no legal bar to base his conviction upon the testimony of a hostile witness if corroborated by other reliable evidence.
25. In Keshoram v. State of Assam9 the Hon'ble Apex Court held that, that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, but it is equally well settled that when once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a witness. Hence, his version cannot be treated as the version of the prosecution itself. However, in Jagir Singh v. State10 it has been held that, when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony.
8 1999(4) Crimes 256 (SC) 9 AIR 1978 SC 1096 10 AIR 1975 SC 1400
26. Section 154 of the Evidence Act reads as under :
"154. Question by party to his own witness.--
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness."
27. A reading of Section 154 of the Act makes it clear that Court may permit in its discretion the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Clause (2) postulates that nothing in the Section shall disentitle the person so permitted under sub-Section (1) to rely on any part of the evidence of such witness. A plain reading of Section 154 shows that permission shall be given by the Court to cross-examine the witness by party who calls the witness.
28. As held by the Apex Court in Sat Paul v. Delhi Administration11 when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after 11 AIR 1976 SC 294 reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto. Similar such view was taken by the Apex Court in Syad Akbar v. State of Karnataka 12 and the said judgment was also referred to in Krishan Chander's case (2 supra).
29. Referring to Section 145 of the Evidence Act, the Court, in the above referred judgment, observed the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross- examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultness of the memory in the case of such a witness would be another object of cross- 12
(1980) 1 SCC 30 examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross- examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way.
30. From the above, it is clear that the evidence of a hostile witness shall not get effaced altogether. It carries its own weight and more particularly the prosecution can take advantage of, to the extent it gets corroboration. But, at the same time, the accused will not lose his right to cross- examine that witness, in view of Section 137 of Indian Evidence Act.
31. If the answers elicited from the cross-examination of a witness who turned hostile, by the counsel for the accused are to be believed, as urged by the learned counsel for the appellant, then in every case where a witness turns hostile and where the counsel for the accused cross-examine that witness, he would invariably put such questions falsifying the presence of the accused or totally denying the presence and involvement of the accused in the crime, and such suggestions would be affirmed by the said witness, can the other oral evidence or the dying declarations recorded subsequently be disbelieved, more so in a case when all other witnesses turned hostile and the case rests only on the dying declarations. This is what appreciation of evidence is all about. Can such a witness be called as wholly reliable witness.
32. Normally when a witness resiles from his/her earlier statement and supports the case of the accused, definitely her evidence would be in line with the case of the accused, when subjected to cross-examination. Such a witness cannot be treated as a wholly reliable witness.
33. In the instant case, all the eyewitnesses turned hostile and the case is based on the two dying declarations. Though it is not the version of P.W.1 in his statement recorded under Section 161 Cr.P.C. that she has seen tutoring of the deceased, but, in the cross-examination by the counsel for the accused, it was suggested that the statements recorded are out of tutoring, which was accepted by the witness. We feel that acceptance of such suggestion by the witness, to the effect that the statements made before the Magistrate and the Police are an outcome of tutoring and then now asking to Court to disbelieve those two dying declarations, in our view, would be a mockery of criminal justice system. If the argument of the counsel for the appellant is accepted, then in every case where the witnesses are managed to go back on their earlier statements and if it is elicited in cross- examination of the hostile witness, by the counsel for the accused, that the statement of deceased is an outcome of tutoring, then every case has to be thrown out, which we are not inclined to accept.
34. The answers given by P.W.1 in her cross-examination at the instance of the counsel for the accused, after resiling from earlier statement, is beyond her purview. She is not the proper person to say as to whether the deceased was tutored. It was not suggested, as to who were those persons who tutored the deceased, nor does the answer given show that this witness has seen tutoring of the deceased by her relatives. A vague statement with regard to tutoring, that too after resiling from the earlier statement, cannot be used to impeach the two dying declarations. The accused independently has to prove and show that the Magistrate, Doctor and the Police Constable, who recorded dying declarations, are not speaking the truth or that statements recorded by them were an outcome of tutoring. Therefore, we feel that such a witness has to be branded as wholly unreliable witness. When the answers elicited in the evidence of this witness, are eschewed from consideration, the declarations recorded by the Police and the Magistrate assume significance. In fact, as observed earlier, though the witness in the cross-examination, made by the counsel for the accused after declaring her hostile by the prosecution, states that the deceased-husband was tutored by relatives, she does not disclose the names of those relatives who tutored the deceased. Apart from that, her evidence does not anywhere show that she was present in the hospital at the time when Police or Magistrate recorded the dying declarations. Therefore, the argument of the learned counsel for the appellant that the answers elicited in the cross-examination of P.W.1 by the counsel of the accused have to be given due weight for discarding the two dying declarations cannot be accepted.
35. Coming to the two dying declarations, the evidence on record shows that, immediately after the incident, the injured was taken to Government General Hospital, Anantapur, where the Casualty Officer sent an intimation about the admission of the injured with a stab injury. P.W.14, the Outpost Police Station Constable is said to have gone to casualty ward and recorded the statement of the injured, in the presence of the duty Doctor. He also claims to have read over the statement to the injured, obtained his thumb impression on the statement and then sent message to Kuderu Police Station. The medical intimation and the statement recorded by him were also sent through Home Guard to Kuderu Police Station. Ex.P8 is the statement, while Ex.P7 is the medication intimation. A perusal of Ex.P9- endorsement show that the statement recorded by P.W.14 was read over to the deponent-injured, who admitted it to be correct. A reading of the said statement would show that, on 27.1.2012 at about 8.30 PM, while the deceased was sitting at a cool drink shop, the accused came there scolding him in vulgar language. Saying that nobody is there to save him, stabbed him on the left side abdomen with knife causing a bleeding injury on the left abdomen. Thereafter, the injured was shifted to Government Hospital, Anantapur, through 108 ambulance. It has been categorically stated that as the deceased killed Sangappa, his brother Narayana Swamy, who is the accused herein, stabbed him with an intention to kill him. This statement was made the basis to set the law into motion.
36. P.W.16, the Magistrate, received intimation about the admission of the injured in the Hospital and also for recording the dying declaration. Pursuant thereto, he reached the Hospital at about 12.10 AM, on the intervening night of 27/28-1-2012 and after ascertaining the state of mind of the injured and after putting some preliminary questions, recorded the statement of the injured. Ex.P22 is the statement of the deceased recorded by him. A perusal of the said statement would show that before recording the dying declaration of the deceased, he obtained medical certification from the Doctor, who categorically stated that the patient is conscious and coherent to record the dying declaration. The evidence of P.W.6 - the Medical Officer, who gave initial treatment at the Government Hospital, Anantapur, show that no anaesthesia or pain killer was given to the deceased till the dying declaration was recorded. He further states that Ex.P10 is the medical intimation sent to the Magistrate for recording the dying declaration and Exs.P11 and P12 are the endorsements regarding the mental condition of the patient.
37. A perusal of the statement recorded by the Magistrate would show that, "on the date of incident at 6.30 PM, the deceased went to Kuderu village where the brother of Sangappa stabbed him, because of earlier disputes in which the deceased is said to have stabbed and killed Sangappa. To a question as to whether there are any other disputes, he states that they are due to him some amount, namely, that the deceased has paid about Rs.20,000/- to the family of Sangappa." This statement of the deceased made before the Magistrate makes it very clear that it was the accused, who was responsible for causing the stab injury on the abdomen of the deceased. This statement corroborates the contents of the statement recorded by the Police, which was made the basis for issuance of first information report. It may be true that one of the statement recorded by the Police was not brought on record, but the first statement recorded by the Police Constable, attached to the Outpost Police Station, Anantapur, was immediately dispatched to the concerned Police Station, which formed the basis for issuing F.I.R. Further, within no time, the Magistrate recorded the second statement of the injured, which is placed on record as Ex.P22. As observed by us, these two statements corroborate with each other and we do not find any inconsistency or anomaly in these two statements. Further, there is no motive for the Magistrate to speak falsehood.
38. In Laxmi (Smt.) v. Om Prakash and Others13 the Hon'ble Supreme Court reiterated the principle that the conviction can be solely based on dying declaration, but Court can look for corroboration if the dying declaration suffers from infirmities.
39. In Panchdeo Singh v. State of Bihar 14 the Supreme Court reiterated the principle that if the dying declaration inspires confidence of the Court, it can be acted upon for convicting the accused and corroboration would be necessary in case of infirmity only.
40. In the absence of any infirmities, the statement recorded by the Magistrate, which gets ample corroboration from the statement recorded by the Police can be believed and made the basis to convict the accused.
41. At this stage, learned counsel for the appellant would contend that even accepting the case of the prosecution to be true, no offence under Section 302 I.P.C. is made out. As 13 (2001) 6 SCC 118 14 (2002) 1 SCC 577 seen from the evidence on record, only one stab injury was inflicted on abdomen and thereafter the accused ran away. The deceased took treatment in Government General Hospital, Anantapur from 27.1.2012 to 16.2.2012 and thereafter, he was discharged from the Hospital. On the very same day night, he again developed pain and came back to the Hospital. The Doctors in the Hospital advised him to be taken to Kurnool. Pursuant thereto, the injured was taken to Osmania Hospital, Hyderabad and from there he was directed to be taken to Chest Hospital at Erragadda, Hyderabad, where he underwent an operation at 12.00 noon and immediately thereafter died. The post-mortem certificate, which has been placed on record through P.W.15, show five external injuries and out of those five external injuries, as per the evidence in-chief of P.W.15, injuries 1,2,4 and 5 and internal injury No.1 are caused by the hospital doctors for treatment purpose. It will be useful to extract the same, which is as under :
"The external injuries 1,2,4 and 5, internal injury No.1 are appears to be caused by the hospital doctors for the treatment purpose, showing healing process."
42. In so far as external injury No.3 is concerned, the Doctor in his evidence deposed that it is stab injury and it is showing healing process. In the cross-examination he admits that, injury No.3 was healed at the time of autopsy and as the injury was not fresh and healed, he did not obtain its measurements. However, the suggestion that the said injury was by piercing of a horn of the bull was denied by him. He further admits that basing on the hospital records, he opined that victim died due to complication of injuries.
43. In Panchaiah and others vs. State of Karnataka15, the Hon'ble Apex Court was dealing with a case where one injury was caused by a cycle chain on the head of the deceased, which was found to be serious. It was held that there was no intention to cause death and the conviction was altered. In the case of Camilo vs. State of Goa16, accused hit the victim with danda on vital part of body namely head with force causing his death knowingly that it was likely to cause death. The Court held that the case would fall under Part II of section 304, Indian Penal Code and accordingly altered the same. In the case of Masumsha Hasanasha Musalman vs. State of Maharashtra17, the Apex Court was dealing with a situation where the accused gave only one blow with a sharp edged weapon which resulted in the death of deceased, while other injuries found on the body of the deceased were due to scuffle. As the circumstances show that accused had no intention to kill deceased, the court held that the offence would be culpable homicide not amounting to murder. 15 AIR 1994 SC 963 16 AIR 2000 SC 1374 17 AIR 2000 SC 1876
44. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellant caused single injury on the left abdomen of the deceased with a knife, which is a sharp edged weapon; after taking treatment for 20 days, the injured/deceased was discharged from the hospital and thereafter again went back to the Government Hospital, where he was directed to be taken to Kurnool; an operation came to be performed on 18.2.2012 in the Government General and Chest Hospital, Hyderabad, leading to his death; and in view of the admission of the Doctor that death was due to complication of injuries, it cannot be said that the stab injury attributed to the accused was alone responsible for the death of the deceased, but, it can be safely said that it was the accused, who stabbed the deceased with the knowledge that such an injury is likely to cause death of the deceased. Having regard to the manner in which the incident took place and the death, we hold that it is a case where the nature of offence can be scaled down to Section 304-II I.P.C. from Section 302 I.P.C. Accordingly, the sentence of imprisonment for life imposed on the appellant is hereby modified to Rigorous Imprisonment for seven years.
45. With the above modification, the Criminal Appeal is partly allowed.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
________________________________ JUSTICE C.PRAVEEN KUMAR ______________________________ JUSTICE B.KRISHNA MOHAN Date : 04.09.2020.
Note : L.R. copies to be marked.
B/O skmr