Andhra HC (Pre-Telangana)
Savalam Suranna Dora vs State on 24 July, 2003
Equivalent citations: 2003(2)ALD(CRI)742, 2004CRILJ427
ORDER S.R.K. Prasad, J.
1. This criminal appeal arises against the judgment rendered in S.C. No. 287 of 1997 by the Principal Sessions Judge, East Godavari District at Rajahmundry, convicting and sentencing the accused to undergo Rigorous Imprisonment for a period of five years and also directing to pay a fine of Rs. 100/-, in default of payment of fine, Simple Imprisonment for a period of one month for the offence punishable under Section 304, Part I, I.P.C.
2. The case of the prosecution can be briefly stated as follows: The accused is the husband of the deceased, Savalam Singaramma. They are residents of Paragasanipada village of Devipatnam Mandal. On 30-3-1997 at about 10.30 p.m., while the said Singaramma was sleeping along with her daughter on the coir cot placed in the varandah of the house belonging to Tati Singanna Dora, the accused asked her to sleep together and have an intercourse with him. When she refused to do so, the accused stabbed her with a knife on her stomach near umbilicus. P.Ws. 1, 2 and 3 have witnessed the incident. She was brought to the police station at 2.30 a.m. on 30-3-1997. P.W. 12, the Head Constable of Devipatnam police station recorded her statement and the same has been registered as Crime No. 13 of 1997. She was removed in a jeep from Devipatnam police station to Rampachodavaram hospital and thereafter from Rampachodavaram to Rajahmundry Government Hospital and she died at the hospital. On receipt of Ex. P-15, death intimation from the Government Hospital, Rajahmundry, Devipatnam police altered the F.I.R., in Crime No. 13 of 1997 from Section 307, I.P.C. to Section 302, I.P.C. under Ex. P-16. After completion of investigation, P.W. 13, Inspector of Police filed charge sheet before the Sub-Divisional Magistrate, Rampachodavaram. The Sub-Divisional Magistrate examined the eye-witnesses, who saw the incident, and thereafter he committed the case to the Court of Session under the Code of Criminal Procedure, 1898 which is applicable to agency tracts of Andhra Pradesh. The plea of the accused is one of denial for the charge under Section 302, I.P.C. The trial was held by the Principal Sessions Judge, Rajahmundry. The learned Sessions Judge examined 13 witnesses on behalf of the prosecution. P.W. 1, Savalam Venkatalakshmi speaks about herself and her brother sleeping in coir cot and her mother is sleeping on another coir cot at the house of Singanna Dora, who is her maternal uncle. She also deposed that at about 10.30 p.m., she heard cries 'Ammoi and Baabol'. Then P.W. 3 put on torchlight and she saw the accused running away and she also saw her mother and the knife was inserted into the abdomen below the 'boddu'. She could able to see the handle portion of the knife as the rest of the knife was pierced into abdomen. Then she sent word to Singanna Dora through Kangala Ramanna Dora about the stabbing of her mother by her father. She also deposed about taking her mother on a double bullock cart to Devipatnam police station and herself, Kangala Ramanna Dora, Kangala Naganna Dora, Kunjam Chellanna Dora, Kommara Venkanna Dora and Singanna Dora accompanying her mother. She also deposed that a jeep is provided to go to Rampachodavaram Government Hospital and the doctor directed to take her mother to Rajahmundry Government Hospital. The Court did not record the evidence of P.W. 2, Savalam Ramesh after putting some questions, as the witness was unable to answer the questions properly. P.W. 3 Pannuri Bhaskaram is a neighbour. According to his version, there is little gap in between his house and the house of the deceased. He deposed that himself and his daughter (sic) sleeping on two cots in the varandah belonging to Singanna Dora. On Sunday night he heard cries of the deceased as 'babboi podichesadu chachhipotunnanu'. Then he woke up and put on torchlight and observed the accused running away. Again the witness says that he did not see the accused running away. Then he observed the knife was found pierced into the abdomen of the deceased and he also observed the handle of the knife, which was outside the abdomen. P.W. 4 is Tati Signanna Dora. According to his version when he was at tobacco barron, Kangala Ramanna Dora came and informed him that his brother-in-law stabbed his sister. Then it was 10.00 p.m. Then he took the injured Singaramma to the Devipatnam police station in a cart and the police directed him to take the injured to Rampachodavaram Government Hospital. There is a knife pierced inside the lower abdomen and he saw the handle portion of the knife. The doctor advised to take the injured to the Government Hospital, Rajahmundry. A jeep is also provided by the Devipatnam police station. Thereupon, they took the injured to Government Hospital at Rajahmundry where she died. It is also his version that P.W. 12 recorded the statement of the injured and obtained her thumb impression on it. P.W. 5 is Kangala Sreeramulu Dora. He speaks about the elders scolding the accused for committing the theft of chillies and admonishing him not to commit the theft further. P.W. 6 is Chintalapudi Suguna. She spoke about the theft of chillies committed by the accused and 15 days prior to the death of the deceased the accused sold 15 K.Gs., of chillies to her and she paid Rs. 50/- to the accused. She also stated that the elders advised her not to purchase anything from the accused and they also advised the accused not to commit thefts. P.W. 7 is the Driver-cum-owner of the Jeep bearing No. AIK 2916. He spoke about the taking of one lady with stab injury from Devipatnam Police Station to Rampachodavaram Government Hospital. As there is no operation facility at Rampachodavaram Government Hospital, the injured was taken in his jeep to Government General Hospital, Rajahmundry. According to him they were reached Rajahmundry at about 5.00 or 6.00 a.m. P.W. 8, Madakam Gangannadora is the V.A.O., of Manturu village. He was incharge of Pudipalli and Devipatnam villages. He spoke about acting as mediator along with Nookala China Pentayya. He also spoke about the observation of scene of offence and drafting observation report, about the doctor producing M.O.I. knife and M.O.2 Saree and seizing of the same by the S.H.O., Devipatnam Police Station under the cover of mediators report, Ex. P-4. He also spoke about the holding of inquest over the dead body of the deceased by the C.I. of Police at the mortuary of Government Hospital. P.W. 9, P. Mohana Rao speaks about the taking of the dead body of the deceased to the Medical Officer for conducting post-mortem examination. After the post-mortem he handed over the dead body to the blood relations of the deceased. P.W, 10 is Dr. M. Lova Raju, who is working as Deputy Civil Surgeon, Government Hospital at Rajahmundry. He speaks about the examination of the injured and finding a knife in the abdomen near umbilicus. He observed 4" of the knife from the handle portion and the rest of the portion was pierced inside the abdomen. According to him. Dr. P. Mohana Rao, who worked as Civil Assistant Surgeon, Government Hospital, Rajahmundry, is no more and he can acquaint with the handwriting and signature of Dr. P. Mohanarao. Ex. P-7 post-mortem certificate is given by Dr. P. Mohana Rao. In Ex. P-7 he opines that the death is due to injury to the vital organs. He also deposed that he issued the wound certificate Ex. P-8 and the injury noted therein was grievous. P.W. 11 is the Photographer. He deposed that the photos of the dead body of the deceased were taken by him. Exs. P-9 and P-10 are the negatives and Exs. P-11 and P-12 are the corresponding positive prints. According to him he was paid Rs. 100/- for taking photos by the police. P.W. 12 is the Head Constable of Maredumilli P.S. Previously, he worked as Head Constable of Devipatnam Police Station, According to his statement, he was incharge of S.H.O. of Devipatnam Police Station on 30-3-1997 as his Sub-Inspector was on leave. He deposed that at about 2.30 a.m., the injured Singaramma was brought on a double bullock cart by the villagers of Paragasanipadu. He recorded Ex. P-2 statement of the injured. He found the knife pierced in her stomach. The handle portion of the knife is about 4" outside the abdomen of the injured and the rest of iron portion was pierced in her abdomen. He sent the injured in a jeep with a memo to the Ramapachodavaram Hospital through P.W. 9. Thereafter he received the message about referring of the injured to the Rajahmundry Head Quarters Hospital. He also deposed about the registering of the case as Crime No. 13 of 1997 for the offence under Section 307, IPC. Ex. P-13 is the F.I.R. He also deposed about the visiting of the scene along with mediators and observed the scene of offence and recording of statements. He also deposed about the seizure of M.Os. 1 and 2 at the Government Hospital, Rajahmundry. He received the death intimation from the Government Hospital, Rajahmundry that the injured Singaramma was died on 1-4-1997 at 11.00 a.m. Ex. P-15 is the death intimation. Then he altered the F.I.R., from Section 307, IPC to Section 302, IPC. Ex. P-16 is the altered F.I.R. He deposed that the further investigation was done by Circle Inspector of Police. P.W. 13, G. Sankara Rao is the Inspector of Police. He speaks about the receipt of altered F.I.R. and taking over the investigation from P.W. 12. He speaks about the examination of the scene of offence, conduction of inquest over the dead body and arrest of the accused on 4-4-1997 at 6.00 p.m., and recording of confessional statement of the accused. Ex. P-6 is the confessional statement of the accused. After completion of the trial, the learned Sessions Judge recorded finding of guilt under Section 304, Part-I, IPC against the accused and convicted and sentenced Rigorous Imprisonment for five years and ordered to pay a fine of Rs. 100/-, in default of payment of fine. Simple Imprisonment for a period of one month. Aggrieved by the same, the accused has preferred this appeal through jail. He is defended by Sri B. Sriramulu, learned counsel appointed by the A. P. High Court Legal Services Committee.
3. The point that arises for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubt for the offence under Section 304, Part-I, IPC.
4. In order to establish the original charge of murder, the prosecution has placed the ocular evidence, dying declaration and medical evidence. The Court has to see whether the ocular evidence is reliable and trustworthy. It has also to see whether the dying declaration is truthful and can be relied on. I state at the very outset that the trial of the case is being conducted under the old Code of Criminal Procedure, 1898 which applies to agency tracts. It is most unfortunate thing that even after passing of new Code of Criminal Procedure, 1973 and is made applicable to the entire country, no attempt is made to apply these provisions to the agency tracts, thereby discrimination is shown in between trials conducted against the accused in agency area and the trial conducted in the plain area. Moreover, the promise made under the Constitution of India to separate the judiciary from the executive was not fulfilled insofar as the people residing in the agency tracts were concerned. Whereas that benefit has been extended to all the citizens of India except the agency tracts of Andhra Pradesh and other areas. This is high time to have a look at the discriminatory attitude adopted in conducting the trials for tribals and non-tribals in the agency tracts and plain areas. The discrimination is being continued even after so many years as if the tribals are not entitled to the benefits of modernization of systems. When old Code has been amended with introduction of new thoughts and new provisions, there is no reason why they have to be deprived of the benefits that are enjoyed by all the people in plain areas. I hope and trust that the legislature will take note of the observation made by this Court in the judgment and see that no discrimination is made in conducting trials in respect of offences committed in tribal and non-tribal areas. Lest, it will reduce the tribals into a second grade citizens when the provisions of the new Code are not applied to them and separate procedure is adapted to them as there is no rationale in showing discrimination. Moreover, it is a case where the Sub-Divisional Magistrate has examined the witnesses and committed the case. Before the committal the Magistrate has to examine all the eyewitnesses. The Magistrate has to follow the procedure mentioned in Section 207-A of the Code of Criminal Procedure, 1898, which reads as follows :
"Section 207-A : Procedure to be adopted in proceedings instituted on police report : (1) When, in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date.
(2) If, at any time before such date the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless for reasons to be recorded, he deems it unnecessary to do so.
(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.
(4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
(5) The accused shall be at liberty to cross-examine the witnesses examined under Sub-section (4), and in such case, the prosecutor may re-examine them.
(6) When the evidence referred to in Sub-section (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
(8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost.
(9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial :
Provided that the Magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before the High Court, nothing in this sub-section shall be deemed to preclude the accused from giving, at any time before his trial to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial.
(10) When the accused, on being required to give in a list under Sub-section (9), has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment.
(11) When the accused has given in any list of witnesses under Sub-section (9) and has been committed for trial the Magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed :
Provided that where the accused has been committed to the High Court, the Magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly :
Provided also that if the Magistrate thinks that any witness is included in the list for the purpose of vexation or delay, or of defeating the ends of justice, the Magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses.
(12) Witnesses for the prosecution, whose attendance before the Court of Session or High Court is necessary and who appear before the Magistrate shall execute before him bonds binding themselves to be in attendance when called upon by the Court of Session or High Court to give evidence.
(13) If any witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the Magistrate may detain him in custody until he executes such bond or until his attendance at the Court of Session or High Court is required, when the Magistrate shall send him in custody to the Court of Session or High Court as the case may be.
(14) When the accused is committed for trial, the Magistrate shall issue an order to such person as may be appointed by the State Government in this behalf notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session or where the commitment is made to the High Court to the Clerk of the State or other officer appointed in this behalf by the High Court.
(15) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record.
(16) Until and during the trial, the Magistrate shall subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody."
5. It is clear from the said Section that any evidence is being taken, such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. The charge has to be explained to the accused and a copy thereof shall be given to him free of cost. The said procedure has not been followed by the Sub-Divisional Magistrate while committing the case. It is most unfortunate thing that a senior officer of the rank of Sub-Divisional Magistrate has not framed any charge in this case. He has not examined the accused regarding the charge. If the committal order passed by the Sub-Divisional Magistrate is taken into consideration, I cannot but observe that the letter and spirit of Section 207, Cr. P.C. (old Code), has not been followed. Had there been separation of judiciary from the executive, the Judicial Officers, who are competent enough to know the provisions, would have followed them. The separation of judiciary from the executive in agency tracts is of immediate necessity. Lest, the committals are made in violation of the provisions of Section 207-A of the old Code. This case is a glaring example. Hence, It is clear that the charge was not framed, accused was not examined and his plea was not recorded. The accused was directly committed to the Court of Sessions. The Sessions Court has framed the charge. It is absolutely necessary that the Executive Magistrate who are entrusted with the judicial work under the Code of Criminal Procedure, 1898 shall follow the provisions scrupulously and they cannot be allowed to apply as they pleases. There is also need to give training to Executive Magistrates working in agency tracts and doing judicial work.
6. Coming to the ocular evidence placed before the Court, it is most unfortunate thing that an important evidence of the witness has not been recorded on that ground that the witness is not capable to understand the questions and answers put to him. P.W. 2 is said to be sleeping with his sister. In the description portion of P.W. 2, the age is recorded as 10 years. But in the evidence portion it is recorded as 6 to 7 years. Oath may not be administered to those witnesses. It is not known whether he is 10 or 6 to 7 years. The appellate Court is handicapped to know about his age. Moreover, the witness is studying third class. The Court ought to have continued his examination by putting questions whether he has seen a person who is said to have stabbed his mother, which led to her death. The non-recording of evidence of the witness appears to be a shortcut method adopted by the learned Sessions Judge, which led to the sorry state of affairs. The child witness has to be examined whether he is aged 6 or 7 or 10 years.
7. According to the version of P.W. 1, herself and her younger brother slept on country coir cot and her mother slept on another country coir cot at the house of P.W. 4, who was her maternal uncle. It is also in her evidence that P.W. 3, Panuri Bhaskaram also slept in the house. At about 10.30 p.m., she heard the cries of her mother as "Ammoi and Baaboi". Then P.W. 3 put on torchlight and she had seen her father running away and she had also seen her mother and the knife was found inserted into abdomen below the umbilicus. It is her version that she has seen the handle portion of the knife as the rest of the knife was pierced into abdomen.
8. The learned State brief counsel for the accused contends Vulavala Krishna, Kunjam Peddabbai and Ponnuri Bandava used to come to the house of the deceased for her and the accused objected for the same and due to that reason this case was foisted since there were disputes in between the wife and husband and they used to quarrel with each other. It is also further contended that the theory of torch light has been introduced subsequently and in support of his case he has placed reliance on the contents of Ex. P-13, FIR.
9. Adverting to the same, it is well settled law that FIR cannot be an encyclopedia of the facts and events that took place. It need not narrate all the particulars with minute details, Non-mentioning of the said fact of seeing with the help of torchlight cannot in any way show that they are false one. No doubt, the torchlight is not seized by the Investigating Officer and it is not produced before the Court. P.Ws. 1 and 3 have categorically stated that they have seen the accused through the focus of the torchlight. It is clear from the evidence of witnesses that day is a no moon day. In view of the corroboration found in between the evidence of P.Ws. 1 and 3 regarding focusing of torchlight, I disagree with the contention of the learned counsel for the accused that it has been introduced in the evidence of P.W. 3 also stating at one stage that when he put on the torchlight the accused was running away and immediately he corrected himself and stated that he did not see the accused running away. The significance of that word that he did not see the accused running away does not mean that he had not seen the accused at all going away. Moreover, P.W. 1 is the daughter of the accused. There is no motive for her to speak falsehood against her own father. Her evidence is natural. There are no inherent improbabilities in her evidence. Her version is in corroboration with the evidence P.W. 3. P.Ws. 1 and 3 have categorically stated with one voice that on hearing the cries of the deceased they woke up and P.W. 3 focussed the torchlight and P.W. 1 saw his father running away. The ocular evidence placed before the Court appears to be truthful and reliable. They are illiterate and rustic witnesses and there is no need to disbelieve their version. When the daughter speaks against her own father that evidence has to be given more weight as there is no motive for her to speak falsehood and she did not nurture any grouse against her own father. Evidence has been let in and placed on record about the alleged theft of chillies committed by the accused and the elders chiding him. P.W. 6 spoke about the purchase of chillies from the accused after paying Rs. 50/-. P.W. 5 also spoke about the alleged commission of theft of chillies. Hence, there is corroboration forthcoming regarding commission of theft by the accused regarding chillies. That absolutely has no relevance for the purpose of this case. What is alleged by the prosecution and P.W. 1 is that differences arose in between the deceased and accused at the time of commission of theft due to that only the accused returned back to the house on Saturday after absconding and lateron Sunday and stayed in the house. It is also the case of the prosecution that she refused to sleep with him and then the accused had committed the offence. There is no oral evidence coming forth on this aspect. In so far as this aspect is concerned, it can only be culled out from the dying declaration, which is being dealt with subsequently at the time of discussing under the head of dying declaration. I also state that it is in the prosecution evidence that M.O.1 as well as M.O.2 produced do not tally with the knife seized by the police as can be seen from the evidence of P.W. 3. Moreover, there is also confusion created by P.W. 13. In fact, it is stated that blade portion of M.O. 1 is 16 inches and odd and it may be 17 cm. Total length of M.O. 1 is 23 cm. In Ex. P-4 also there is no mention of yellow stripes in M.O.2 saree. These discrepancies found in the evidence of P.W. 13 do not in any way falsify the version of eye-witness account given by P.Ws. 1 and 3. I also find that length of M.O. 1 was given in centimeters, whereas it is given by the analyst in his report in inches. He gave the blade portion measured as 161/2 inches in length, whereas it is mentioned as 23 centimeters. The blade portion of length of the knife is measuring about 17 cms. In view of the discrepancies in the length of the blade portion of the knife given in Ex. P-4 and Ex. P-20 analyst report, there may be some force in the contention of the learned counsel for the accused that M.O. 1 produced may not be the same knife which has been used in the commission of offence. It is a case where P.Ws. 1 and 3 have seen the knife pierced under umbilicus. The ocular evidence inspires confidence. The person sleeping adjacent to the deceased noticed immediately as to what happened. Hence, I believe the ocular evidence.
10. Coming to the investigation, inquest was conducted by P.W. 13. Ex. P-5 is the inquest report drafted by P.W. 8, V.A.O. He spoke about the conduction of inquest at the hospital. The inquest report can only be looked into to know whether the death is suicidal or homicidal. The injury found on the body has been mentioned in the inquest report. Hence, it is clear that it is not suicidal death and only homicidal death.
11. Coming to the aspect of dying declaration, it is the prosecution case that the injured, namely, Savalam Singaramma was removed to the Devipatnam Police Station where P.W. 12, Head Constable recorded her statement. Ex. P-2 is the said statement and later it has been registered as FIR under Ex. P-16. It is mainly contended by the learned counsel for the accused that it does not contain the endorsement of the doctor about the conscious state of mind of the injured to depose the same. Hence, it cannot be relied upon. It is further contended by him that there is a bar for the police to record dying declaration and only a Judicial Magistrate has to record the dying declaration. The Supreme Court has laid down the guidelines in respect of dying declaration in a decision reported in Charipalli Shankararao v. Public Prosecutor, and held that whenever there is no possibility of securing the Magistrate, the police is competent to record the same in the circumstances of the case. It is also observed by the Apex Court in a decision reported in Paparambaka Rosamma v. State of Andhra Pradesh, , which reads as follows :
"The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr. K. Vishnupriya Devi (P.W. 10) who was attached to Tenali Government Hospital examined Smt. Venkata Ramana on 4-3-1994 at 1.30 p.m. She then sent a requisition (Ex. P-9) to the Magistrate Shri K. Lakshmana Rao (P.W. 13) to record the dying declaration of the injured. All that Dr. K. Vishnupriya Devi has stated in that the injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It has come on record that Smt. Venkata Ramana had sustained 90% burn injuries. K. Lakshmana Rao (P.W. 13) who recorded the dying declaration has made a note in Ex. P-14 - the dying declaration after putting same preliminary questions to the injured and it reads as under :
"On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit disposing" state of mind to make a declaration."
Thereafter, the learned Magistrate proceeded to record the dying declaration. At the end, Dr. K. Vishnupriya Devi (P.W. 10) has appended a certificate saying "patient is conscious while recording the statement". The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and the only circumstances relied upon by the prosecution is the dying declaration."
It is clear from the principles laid down in the above referred decision that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. The entire law with regard to dying declarations has been summarized in Kishan Lal v. State of Rajasthan, as under :
"Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law, for its admissiblity, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissiblity rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak only the truth. If evidence is a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of the case."
It is also held by this Court in Kodadi Srinivasa Lingam v. State of Andhra Pradesh. (2000) 2 Andh LT (Cri) 507 : (2001 Cri LJ 602) at para 21 as follows :
"The law requires that the dying declaration must be attested by the Medical Officer in whose presence the dying declaration is recorded by the Magistrate or any other person. The Doctor is to certify regarding the mental condition of the patient showing that she is mentally fit to give dying declaration. Though Dr. V. Raghuram signs Ex. P-8, he is only certified to show that the deceased had received 70% of the burn injuries but he has not certified the mental condition of the patient. For this purpose, this document could be used against the accused though it is admitted by the defence under Section 294, Cr. P.C. If there would have been an endorsement of the Doctor that the patient is mentally fit to give a statement by the Doctor under Section 294, Cr. P.C., there would be a sufficient compliance under Section 294, Cr. P.C. The conviction could be based on such document. But one limb in the present case is missing where the Doctor did not certify regarding the mental condition of the patient."
12. It is clear from the above decision that a certificate of the doctor has to be insisted. This principle cannot be applied to every case when the dying declaration is recorded at a remote place in a village where clinics are not available. It is clear from the principles laid down by the Apex Court that ordinarily a Judicial Magistrate has to record dying declaration and it carries weight. If it is recorded by any other person, he has to speak to the state of mind of the declarant. There may be a case where the police alone are available and others are not available. In order to cover all such contingencies, the Supreme Court has held in Laxmi v. Om Prakash, 2001 SCC (Cri) 993 : (2001 Cri LJ 3302) at paras 1 and 29 as follows :
" 1. Nemo moriturus praesumitur mentire -- no one at the point of death is presumed to lie. A man will not meet his Maker with a life in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration.
"A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration."
Is the statement of law summed up by this Court in Kundula Bala Subrahmanyam v. State of A.P., . The Court added -- such a statement, called the dying declaration, is relevant and admissible in evidence "provided it has been made by the deceased while in a fit mental condition". The above statement of law, by way of a preamble to this judgment, has been necessitated as this appeal, putting in issue the acquittal of the accused-respondents from a charge under Section 302/34, IPC, seeks reversal of the impugned judgment and invites this Court to record a finding of guilt based on the singular evidence of dying declaration made by the victim. The law is well settled : dying declaration is admissible in evidence. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances as its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming a safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand, if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.
29. A dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of accessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinize all the relevant attendant circumstances (see Tapinder Singh v. State of Punjab, . One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das v. State of Rajasthan, , the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh v. State of M.P., (1981) Supp SCC 25 : (1982 Cri LJ 986), the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh v. State of Punjab, , this Court found that the deceased could not possibly have been in apposition to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh v. State of Punjab, 1981 Supp SCC 18 : (1981 Cri LJ 998), the dying declaration was recorded by the Investigating Officer. This Court excluded the same from consideration for failure of the Investigating Officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present."
It is categorically stated in these decisions that the practice of recording dying declaration by the police officials is disproved. But when there is no possibility of taking the deponent to the Magistrate, as the condition of the deceased is precarious, the Police Officer can record the dying declaration. It has to be judged by testing its reliability and also scrutinize all the relevant attendant circumstances.
13. It is also contended by the learned counsel for the accused that there is no possibility of giving such a lengthy statement by a person who sustained grievous injury and almost on the collapse point. No doubt, that has to be considered. The only persons available at the time of giving statement are P.Ws. 1, 3 and 12. They have categorically stated that she gave the said statement to P.W. 12, Head Constable. There is corroboration and cogency in the said evidence. There is no need to doubt about the statement given by the injured in this case. Hence, the statement recorded by P.W. 12, Head Constable, which amounts to dying declaration, is truthful and reliable and can be acted upon. It is mentioned therein that the accused wanted his wife to sleep with him and have an intercourse and she refused for the same, which led to the stabbing incident.
14. Coming to the medical evidence, the person who conducted the post-mortem examined died and P.W. 10 only identified the signature on the post-mortem certificate, Ex. P-7. He has also treated the injured and issued Ex. P-8 wound certificate. He observed 4 inches of the knife from the hand portion and the rest of the portion was found pierced inside the abdomen. According to him the blood vessels of the injured were cut and there was no possibility for her survival. Hence, the evidence of P.W. 10 clearly indicates that the injury is caused due to knife and in all probability death has been caused due to the said injury. The contents of Ex. P-7 also indicate the same. The fact that the death of the deceased was due to stab injury is amply probabilised by the medical evidence. The Court has to find out as to the person who caused the said injury. P.Ws. 1 and 3 have categorically stated that the husband of the deceased being the accused caused the injury. The dying declaration also clearly shows that the accused caused the stab injury, which led to the death. The infirmities and irregularities relating to the colour of the saree and size of the knife do not in any way improbabilise the prosecution theory or falsify the reliable evidence of P.Ws. 1 and 3. There is corroboration forthcoming regarding the accused stabbing the deceased. It is also contended that the offence falls under Section 323, IPC, as there is no knowledge in causing the injury. Reliance is placed on the decision reported in Kadapagunta Swaminatha Reddy v. State of Andhra Pradesh, (1996) 1 Andh LT (Cri) 228 : (1996 Cri LJ 1387). The relevant portion at para 7 reads as follows :
"Now, the important legal point that falls to be analysed in this case is, as to whether the accused had inflicted the alleged injuries on the person of the deceased with the knowledge they were likely to cause his death. The evidence available on record does not point out to any such injury, which was so grievous as to constitute knowledge in the mind of the accused that by infliction of such injuries, he was likely to cause the death of the deceased. In other words, there is nothing on record in regard to the injuries found on the person of the deceased pointedly to show that the act of the accused was done with the knowledge that he was likely to cause his death. True, death was the resultant, but this resultant could not be attributed to the knowledge of the accused because of the obvious fact that the alleged injuries found on the person of the deceased were not such so as to constitute knowledge on the part of the accused. In an offence punishable under Section 304, Part-II, IPC "knowledge" is an important element, but I find, that this is missing in the instant case, and hence, it remains simplicitor an offence of 'voluntarily cause hurt' as defined under Section 321 of the Indian Penal Code and punishable under Section 323 of the IPC. Thus, I am of the opinion, that in the instant case, only an offence punishable under Section 323 of the IPC is made out against the accused-appellant."
What it is stated in the aforesaid decision is knowledge is an important element to constitute the offence punishable under Section 304, Part-II, IPC. Hence, it remains simplicitor an offence of voluntarily causing hurt as defined under Section 321, IPC and punishable under Section 323, IPC. Obviously, the accused has caused the injury with knife and the injury caused is dangerous to life of the person, which amounts to grievous hurt. The lower Court found that the offence falls under Section 304, Part-I, IPC. In the aforesaid decision the Court was dealing with the case under Section 304, Part-II, IPC. It is clear when a person caused injury with knife on vital part, namely, abdomen, intention can be presumed regarding causing such injury is likely to cause death. It certainly falls under Section 304, Part-I, IPC. The learned Sessions Judge has rightly sentenced the accused to suffer Rigorous Imprisonment for a period of five years and ordered to pay a fine of Rs. 100/-, in default of payment of fine Simple Imprisonment for a period of one month for the offence under Section 304, Part-I, IPC in this case. The accused is said to be in Jail from 31-3-1997 till this date. The learned counsel for the accused contends that the accused has already undergone the sentence awarded. Hence, I confirmed the sentence of Rigorous Imprisonment for five years and also the imposition of fine of Rs. 100/-. As the accused has already undergone the sentence, he is ordered to be released, if he is in custody, henceforth.
The criminal appeal is, accordingly, dismissed.
Registrar is directed to mark a copy of this judgment to the Sub-Divisional Magistrate in agency tracks to follow the provisions of the Code of Criminal Procedure, 1898 scrupulously.