Andhra HC (Pre-Telangana)
Chakiri Saidulu And Ors. vs State Of Andhra Pradesh on 4 August, 1994
Equivalent citations: 1994CRILJ3782
JUDGMENT M.N. Rao, J.
1. A1 to A4 in SC No. 287 of 1992 on the file of the III Additional Sessions Judge, Guntur, are the appellants. They were convicted by the learned Judge for the offence under section 302 IPC and each of them was sentenced to imprisonment for life.
2. Eight accused were tried by the learned Sessions Judge in connection with the murder of one Addanki Katamaraju on 21-1-1991 at about 10.00 a.m., at the bus-stand centre in Mutyalampadu village.
3. The prosecution case, in brief, is that there were factions among the 'Yadavas' in the village of Mutyalampadu. The deceased Katamaraju was the leader of one faction and A5 is the leader of the opposite faction - both belonging to Yadava caste. The deceased was the supporter of Congress partly while the accused are the followers of Telugu Desam Party. On 21-1-1991, at about 10.00 a.m., the deceased-Katamaraju, after taking tea in the hotel of one Chavali Nagalaxmamma, P.W. 5, was sitting at the bus-stand centre. A1 to A4 and some others came there armed with bombs, axes and spears. A1 and A2 hurled bombs, as a result of which the deceased fell down; his clothes were burnt and his body also was burnt. Then the accused attacked the deceased with spears and axes. The incident was allegedly witnessed by P.W. 3, Anantharavamma, the wife of the deceased and P.W. 4, Koteswaramma, P.W. 6, Latchaiah and P.W. 7, Kotamaraju. P.W. 14, the Head Constable of Dachepalli Police Station, was the in-charge Station House Officer on 21-1-1991. He received information that there was some 'galata' in Mutyalampadu village and, therefore, he rushed to the place in a jeep, reaching there at about 12.30 p.m. He saw the deceased lying in front of the pan shop of one Chengu Venkateswarlu. The Head Constable recorded the statement of the injured-Katamaraju in the presence of P.W. 8, Mattapalli and Kota Daveed. Ex. P. 9 is the statement. Immediately the injured was removed in the jeep to the police station and from there, through a constable, he was sent to the Government Hospital, Gurazala. The Head Constable registered, on the basis of Ex. P. 9, Crime No. 9 of 1991 under sections 147, 148, 286 and 307 r/w 149 IPC. Ex.P16 is the F.I.R. sent to the court. P.W. 16, the Sub-Inspector of Police, Dachepalli Police Station, on receipt of the information, reached the police station at about 1.40 p.m., and took up investigation. He went to Gurazala Government Hospital at 2.00 p.m., and recorded Ex. P. 24, statement of the injured-Katamaraju. The blood stained clothes, M.Os. 1 to 3 were also seized by the Sub-Inspector under Ex. P. 10. As there was no Medical Officer at Gurazala Government Hospital, the injured-Katamaraju was sent to the Government Hospital, Macherla, where P.W. 13, Dr. Dhananjaneyulu, Civil Assistant Surgeon, examined him at 3.30 p.m., and found the following injuries :
"1. Lacerated wound 4 x 1/2 cm., oblique on the left side of fore head, extending upto the bone, edges red and swollen.
2. Lacerated wound 7 x 1 cm. running from side to side on the left parietal region of the scalp extending upto the bone. Edges red and swollen.
3. Lacerated wound 4 x 1/2 cm. on the left side of occipital region of the scalp extending upto the bone, edges red and swollen.
4. Contusion 22 x 2 cm. oblique on the front of right side of chest, red in colour.
5. Incised wound 1.5 x 0.5 cm. on the front of left side of chest, edges red and swollen.
6. Incised wound 4 x 1 cm. vertical on the back of the left forearm 1/4 cm. deep - Edges red and swollen.
7. Incised wound 1 x 1 cm. on the palmar aspect of left hand 1/2 cm. deep. Edges red and swollen.
8. Incised wound 1 x 1/2 cm. on the dorsum of left hand. 1/2 c.m. deep, edges were red and swollen.
9. Lacerated wound 8 x 2 cm. on the back of right foot extending upto the bone, edges red and swollen.
10. Lacerated wound 7 x 1 cm. horizontal on the back of left foot 1/2 cm. deep. Edges were red and swollen."
Ex. P. 14 is the wound certificate. The doctor sent a requisition, Ex. P. 1, to Shri P. Jagannadha Rao, the Judicial First Class Magistrate at Macherla, P.W. 1, for recording the dying declaration of the injured-Katamaraju. The Magistrate, P.W. 1, reached the hospital and recorded Ex. P. 2, the dying declaration, between 4.20 and 4.30 p.m. The doctor, P.W. 13, certified that the patient-Katamaraju was in a fit condition to make the statement. Thereafter, the injured was shifted to the Government Hospital, Guntur for treatment, where, 10 days later on 31-1-1991 at 3.00 p.m., while undergoing treatment in the orthopaedic ward, he died because of the injuries sustained in the incident that happened on 21-1-1991.
4. P.W. 15, the Assistant Professor of Forensic Medicines, Guntur Medical College, conducted autopsy on the body of the deceased 2-2-1991 and he found the following external and internal ante-mortem injuries :
"External injuries :
1. A sutured wound of 4 cms. length with 4 sutures over left temple, obliquely placed, bone deep, infected.
2. Semi circular sutured infected wound of 11 cms. length with 10 sutures over parietal region of scalp on both sides obliquely placed, bone deep infected extending 2 cms. behind the left parietal eminence, passed semi circulary backwards towards right side.
3. Healed abrasion of 3 x 2 cm. over front of right shoulder. Scab formed and dried, fallen off.
4. Contusion of 6 x 5 cm. over outer side and back sides of right upper arm 3 cms. below the shoulder.
5. Incised wound of 3 x 2 cm. bone deep, horizontally placed over right side of outer aspect of chest 11 cms. below the armpit.
6. Infected wound of 4 x 3 cm. bone deep over back of right elbow.
7. Infected wound of 3 x 2 cm. over front of left side of chest 1 cm. inner to nipple.
8. Healed abrasion of 4 x 3 cm. over front of medial side of left elbow, scab fallen off.
9. Infected wound of 6 x 3 cm. bone deep vertically placed over back of left fore arm 5 cms. below the elbow.
10. Infected wound of 3 x 2 cm. muscle deep over palmar aspect of left hand at the junction of index and middle fingers with hand.
11. Infected wound of 5 x 4 cm. bone deep over back of right foot cms. below the ankle.
12. Multiple small abrasions of varying sizes over dorsal aspect of middle and diatal phalanges of big and the 2nd toe and 3rd toes of right foot, scab formed and dried.
13. Infected wound of 6.5 x 5 cms. over back of left foot 1 cm. below the ankle, bone deep.
14. Multiple small abrasions of varying sizes over dorsal aspect of distal phalanges of left big toe, 2nd toe of left foot scab formed and dried.
Internal injuries :
1. Fracture of right humerus bone of right upper arms at the junction of neck with body with damage to surrounding tissues.
2. Fracture of 8th and 9th ribs of right side of back of chest wall at posterior curvature with multiple small lacerations of varying sizes over posterio-lateral surface of middle lobe of right lung.
3. Fracture of 4, 5, 6 and 7 ribs on back of left side of chest wall at posterior curvature with multiple small lacerations of varying sizes over postero lateral surface of middle and lower lobes of left lung."
Ex. P. 17 is the post-mortem certificate. The cause of the death, according to the doctor, was "due to complications of the multiple injuries". After receiving the information of the death of Katamaraju, the section of law was altered by P.W. 16, the Sub-Inspector of Police, to Section 302 IPC, Ex. P. 19 is the altered F.I.R. sent to the court.
5. At the trial, all the eye witnesses - P.Ws. 3 to 7 - turned hostile and did not support the case of the prosecution. They were cross-examined by the learned Public Prosecutor. The learned Sessions Judge, accepting the three dying declarations of the deceased - Exs. P. 9, P. 24 and P. 2 - convicted A1 to A4, the appellants herein, under Section 302 IPC and sentenced each of them to imprisonment for life. All the eight accused were acquitted of the charge under Section 148 IPC. AI and A2, who were charged under section 286 IPC, were acquitted of that charge.
6. It is contended by Sri Padmanabha Reddy, learned counsel for the appellants, that of the three dying declarations, the one recorded by the Sub-Inspector of Police, Ex. P. 24, should be rejected at the threshold stage since it was produced for the first time in the court by the Sub-Inspector, P.W. 16, while giving evidence on 14-7-1993.
It was recorded only as Section 161 Cr.P.C. statement and a copy of it was not supplied to the accused nor submitted to the court. As regards the rest of the dying declarations, in Ex. P. 9, the one recorded by the Head Constable, P.W. 14, at 12.30 P.W., on 21-1-1991, the deceased had mentioned the names of two assailants - A1 and A2 and the rest of the names of the assailants he did not mention. The weapons used, as mentioned in Ex. P. 9, were spears and axes. But in Ex. P. 2, the dying declaration recorded by the Magistrate, P.W. 1, the deceased had mentioned the names of A1 to A4 as the assailants. A1 and A2 were armed with spears and bombs and A3 and A4 with spears and that since others also participated in the attack on him, was the version given by the deceased in Ex. P. 2. There was no mention of 'axes' in Ex. P. 2 as the weapons of attack. Since two more persons were implicated in Ex. P. 2 by the deceased, there are inconsistencies between Ex. P. 9 and Ex. P. 2 and, therefore, on the authority of the decision of the Supreme Court in Pompiah v. State of Mysore, both the dying declarations - Ex. P. 2 and Ex. P. 9 - must be rejected. In opposition to this, Sri Bhagiratha Rao, the learned Public Prosecutor, argues that as between the two dying declarations, Ex. P. 9 and Ex. P. 2, there was no inconsistency except that two more names are found in the latter dying declaration, (Ex. P. 2), but as there is consistency with regard to the attacks made on the deceased by A1 and A2, since their names are found in both the dying declarations, they must be convicted of the offence under section 302 IPC even if benefit of doubt is given to A3 and A4. He also says that at the time when the first dying declaration, Ex. P. 9, was made by the deceased before the Head Constable, P.W. 14, he was in great pain and no medical treatment, by then, was given to him. In that condition, in all likelihood, he had forgotten to mention the names of all the assailants, After treatment was administered to him at the hospital in Macherla, he was in a fit condition to narrate in greater detail the entire incident and, therefore, he was able to state the names of all the assailants.
7. We have no hesitation at the outset, to reject Ex. P. 24, the dying declaration allegedly recorded by the Sub-Inspector of Police, P.W. 16. According to the evidence of P.W. 16, he recorded the statement of the injured person in the hospital but as he was inexperienced, he did not submit it in the court nor supplied a copy thereof to the accused. He claimed that Ex. P. 24 was recorded on 21-1-1991 at 2.00 p.m., but it was produced for the first time before the trial court on 14-7-1993 when the Sub-Inspector was in the witness box. This document is, therefore, not entitled to any credence.
8. Both Exs.P. 9 and P. 2 are in Telugu. Ex. P. 9, the dying declaration, was recorded by the Head Constable, P.W. 14, at 12.30 p.m., near the bus-stand centre of Mutylampadu village. The deceased stated in Ex. P. 9 :
"A1, A2 and some others, keeping in view the past rivalries and with an intention to kill me, hurled bombs at me and also stabbed me with spears and hacked me with battle axes. They hacked me on my head with battle axes and speared me on the left hand. They also hacked me with battle axes and stabbed with spears on the legs and all over the body. Because of the blasting of the bombs, my shirt was burnt resulting in injuries. I can identify the rest of the accused".
9. In the dying declaration, Ex. P. 2, recorded by the Magistrate, P.W. 1, the deceased had stated :
"A1 and A2 hit me with spears and bombs. A2, Amaraiah, hit me with a spear on the head, A-3, Venkataratnam and A4, Audeyya, hit me with spears. I went to the hotel to take tea. Earlier, we shouted at each other and that is why they attacked me."
What is glaringly inconsistent between the two dying declarations - Exs.P. 9 and P. 2 - is the omission of the names of A3 and A4 in the first dying declaration, Ex.P9, recorded by the Head Constable, PW 14. It is true that at the time when Ex. P. 9 was recorded, the deceased was lying with injuries at the place where the incident allegedly happened. His condition, according to the Head Constable, P.W. 14, who recorded the dying declaration was :
"The injured made the statement with pauses. He was suffering from pain by the time I went there. The injured was lying there and he was not talking with anybody and even after I went there, the injured person did not talk to any other person".
After the deceased was admitted to the hospital on the same day in the afternoon, his condition, according to the evidence of P.W. 13, Dr. Dhananjaneyolu, was :
"The injured did not express any pain. The injured was not suffering from any pain. Pulse was fast. Lower blood pressure. The injured complained to me of breathlessness ..... When the Magistrate, P.W. 1, came, the injured was under the intra-veinous fluid administration".
10. Although it was stated by the Head Constable, P.W. 14, who recorded Ex. P. 9, dying declaration, that the deceased was suffering from pain, it cannot be inferred that his physical condition disabled him from remembering the names of his assailants. He specifically mentioned the names of A1 and A2 and as regards the rest, he merely stated that he can identify, which clearly implies that he was not aware of their names. Had he been aware of their names, he would not have withheld disclosing the same to the Head Constable, P.W. 14. We cannot ignore the fact that the deceased was the leader of one faction of the 'Yadavas' and the rivalry was between the two factions among them. There are only 30 houses of Yadavas in the village and if really persons other than A1 and A2 known to the deceased had participated in the attack, there was no possibility for him to forget their names. It is thus clear that the deceased had deliberately implicated A3 and A4 in the second dying declaration, Ex. P. 2, recorded by the Magistrate.
11. Can it be said that there is consistency between Exs.P. 2 and P. 9 as to the weapons of attack or the assailants that participated in the attack ? We are of the considered view that the answer is in the negative. Even when he made the first statement, Ex. P. 9, the deceased, being a faction leader, was making provision for improvement by mentioning that he can identify the other assailants. There were criminal cases pending between the two factions and not being a stranger to figuring as witness or an accused in the criminal cases, the deceased was aware of the consequence of a statement of the nature that "I can identify the other assailants". He was only looking forward to implicating the persons belonging to the opposite faction. That opportunity he got on the very day itself when Ex. P. 2 was recorded by the Magistrate. Although Ex. P. 2 was recorded by P.W. 1, the Magistrate, by following the prescribed procedure and it was certified by the doctor, P.W. 13, that the patient was in a fit condition to make the statement, the infirmity springs in, in our view, not from any procedural irregularity in its recording but from the primordial fact that the maker of the document did not disclose the truth.
12. A statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, assumes relevancy under S. 32 of the Evidence Act in cases in which the cause of that persons's death comes into question. In Kushal Rao v. State of Bombay, , the leading case in which the Supreme Court had considered the tests to be adopted for placing reliance on a dving declaration, it was held (at page 113; of Cri LJ) :
"......... in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
In the absence of the Court coming to the conclusion that the dying declaration, on which reliance was insisted upon by the prosecution, is the truthful version as to both the circumstances of the death and the assailants of the victim, it cannot be accepted without further corroboration.
13. In the present case, Ex P. 2, one of the dying declarations, not being a truthful version as to the assailants of the victim - inasmuch as two more names, not found in the earlier declaration Ex. P. 9, were added - unless there is further corroboration, it is not safe to act upon Ex. P. 2, despite the fact that it was recorded by a Magistrate. As all the material witnesses turned hostile, it is impossible to seek any corroboration for Ex. P. 2 from any other evidence on record.
14. In Pompiah (supra), the facts are somewhat similar to the case on hand. There were three dying declarations. In the first dying declaration, the names of two assailants were mentioned and in the second and third dying declarations, the deceased therein added two more names. The High Court having found that two names were common in both the dying declarations, convicted the two persons. On appeal, the Supreme Court, while reversing the view taken by the High Court, held (at page 33; of Cri LJ) :
"If the court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration".
Dealing with the aspect that there was inconsistency in the two dying declarations brought on record, the Supreme Court observed :
"In the instant case, the declarations recorded in Exs.P. 2 and P. 1(a) were made almost simultaneously and the declaration recorded in Ex. P. 9 was made shortly thereafter. In Ex. P. 2, Eranna named Pompiah and Hussaini only as his assailants whereas in Exs.P. 1(a) and P. 9, he named not only Pompiah and Hussaini, but also Siddaih and Rudramuni as his assailants. Now, his version that Siddaiah and Rudramuni attacked him has been found to be an afterthought. We thus find that a material and integral portion of the deceased's version of the entire occurrence is unreliable. The truthfulness of the dying declarations as a whole is not free from doubt".
We do not think that the case on hand falls within the ambit of the law laid down by the Supreme Court in Godhu v. State of Rajasthan, . In that case, rejecting the contention that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The Supreme Court ruled that in cases where a part of the dying declaration which is found to be correct, is inextricably linked with the other part, then the court would be justified in rejecting the whole of the dying declaration. In cases where the two parts of a dying declaration may be severable and the correctness of one part does not depend on the correctness of the other, the court would not act upon that part of the dying declaration unless it is corroborated in material particulars by the other evidence on record. The other ruling - K. R. Reddy v. Public Prosecutor, , Munnu Raja v. State of M.P., , Kusa v. State of Orissa, , Kamla v. State of Punjab, 1992 (3) Scale 205 : 1993 Cri LJ 68, and Kundula Bala Subrahmanyam v. State of A.P., 1993 (9) SCC 684 : 1993 Cri LJ 1635 - relied upon by the learned Public Prosecutor, in our considered opinion, did not lay down a proposition of law different from the one laid down in Pompiah (supra).
15. In K. R. Reddy (4 supra), the well accepted principle viz., that if the court is satisfied that the dying declaration is true and voluntary, it can form the basis for a conviction without further corroboration was reiterated by the Supreme Court. In Munnu Raja (5 supra, the same principle was restated : the court should not look for corroboration unless it comes to the conclusion that the dying declaration suffers from any infirmity. In Kusa (6 supra), while adverting to Kushal Rao (2 supra) it was held that if the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in basing the conviction on such a dying declaration even if there is no corroboration.
16. In Kundula Balasubrahmanyam (supra), there were two oral dying declarations made by the deceased to her friends. It was found by the Supreme Court :
"Both the dying declarations are consistent with each other and appear to have been made by the deceased voluntarily in the natural course of events. They have a ring of truth about them".
Adverting to the importance of dying declarations, the Court observed (at page 1642; of Cri LJ) :
"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. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same."
In Kamla (supra), there were as many as four dying declarations and on examination of each of those four dying declarations, the Supreme Court noticed certain "glaring inconsistencies" as to the person who had exactly poured kerosene oil and set fire to victim or whether she caught fire accidentally. A particular observation made in that case was (at page 70; of Cri LJ) :
"In a case where there are more than one dying declarations, if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
17. Basing upon the aforesaid observations, the learned Public Prosecutor says that it is the duty of this court to compare both the dying declarations - Exs.P. 9 and P. 2 - in order to ascertain the points of commonality between the two. We are not inclined to accept this contention. The aforesaid statement of law only implies that where there are more than one dying declaration, all the dying declarations should be consistent. The consistency must be with regard to the assailants and the manner in which the incident had happened. We find it impossible to hold that in a case where there are more than one dying declaration, the court has to compare all the dying declarations in order to assess the extent of incrimination. The law laid down in Kamla (7 supra) cannot be construed as in any manner inconsistent with the view taken in Pompiah (1 supra).
18. Ex. P. 2, the second dying declaration, is definitely an improvement over the earlier dying declaration, Ex. P. 9. This improvement has introduced a serious infirmity in Ex. P. 2 and in the absence of any other evidence on record corroborating the version contained in Ex. P. 2, it cannot be accepted.
19. We, therefore, hold that the view taken by the learned III Additional Sessions Judge, Guntur, that the appellants are guilty of the offence under S. 302, I.P.C. relying upon the three dying declarations is impermissible in law. The criminal appeal is, therefore, allowed; the convictions recorded and sentences awarded against the appellants are set aside. The appellants - A-1 to A-4 - shall be set at liberty forthwith unless they are required in connection with any other case.
20. Appeal allowed.