Andhra Pradesh High Court - Amravati
Muppuri Lakshmi Narasimha Rao ... vs State Of A.P., Rep. By P.P., H.C., ... on 2 May, 2023
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI DUPPALA VENKATA RAMANA
CRIMINAL APPEAL No.1131 OF 2012
JUDGMENT: (per Hon'ble Sri Justice A.V.Sesha Sai)
Sole accused in S.C.No.226 of 2007 on the file of the
Court of the learned V Additional District & Sessions Judge
(FTC), Guntur is the appellant in the present Criminal
Appeal, preferred under Section 374 (2) of the Code of
Criminal Procedure.
2. Judgment, dated 05.11.2012, rendered in the
aforesaid Sessions Case, is under challenge in this appeal.
By way of the said judgment, the learned Judge convicted
the accused for the offence under Section 302 IPC and
sentenced him to suffer life imprisonment and to pay fine
of Rs.2000/- and in default to suffer simple imprisonment
for one month.
3. The case of the prosecution, in brief, is as follows:
The accused, who is a resident of Venkataraopet,
Guntur is the eldest son-in-law of the deceased, one
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Smt.Kanigiri Polamma, and the deceased owned three
terraced houses, one four portioned tiled house and a
vacant site of 350 Sq.Yards at Venkataraopet, Guntur. The
deceased was blessed with four daughters and son, by
name Srinivasa Rao. The daughter of the accused, who is
the grand daughter of the deceased, namely Chowdamma,
was given in marriage to the said Srinivasa Rao. The
deceased gave three terraced houses to her son and
retained four portioned tiled house and 350 sq.yards
vacant site for herself for giving to her daughters equally at
the end of her life. About four years prior to 04.12.2006,
the son of the deceased i.e., Srinivasa Rao died due to AIDS
after begetting a female child with Chowdamma and since
then the said Chowdamma, daughter of the accused, is
residing with him. Since then, the accused had been
demanding the deceased to give away the four portioned
tiled house and vacant site of 350 sq.yards also to his
daughter i.e., the daughter-in-law of the deceased, but the
deceased resisted the same which made the accused to
take a decision to do away with the deceased. In
furtherance of the same, at 9.00 p.m., on 04.12.2006, the
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accused took his Ape Auto AP7 TT 7236 and a knife
available in his house and went to the shop of the deceased
situated at the house of the deceased in Venkataraopet and
had hacked on the right hand of the deceased with the
knife, finding fault with the deceased for not giving
property to his daughter, and the deceased fell down and
raised alarm. P.W.2, daughter of the deceased, and L.W.3
were preparing food in the house of the deceased and
L.W.4, who is a tenant in the house of the deceased, came
out and noticed that the accused was hacking twice on the
head and on the right side of the stomach of the deceased
which resulted in bleeding injuries. In the meanwhile,
L.Ws.5 to 7, who were not examined during trial, came out
of their houses. On noticing the arrival of the said persons,
the accused went away from the shop with knife in his
Auto. L.Ws.5 to 7 noticed the departure of the accused with
blood stained knife in his Auto and the deceased fell
unconscious. The accused went home and took two pairs
of clothes and had gone to Vijayawada and P.W.2, Rebba
Govindamma, M.Kiran, M.Suri Babu shifted the deceased
to GGH, Guntur where the deceased gave statement to
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P.W.8-Head Constable and the Sub-Inspector of Police
registered the same as Cr.No.170 of 2006 under Section
307 IPC on the file of the Old Guntur Law & Order Police
Station and, on 28.12.2006 at 3.05 a.m., the injured
succumbed to injuries in Government General Hospital,
Guntur and, on receipt of the death information, the
provision of law was altered as Section 302 IPC and the
police, after conducting the investigation, filed a charge
sheet for the offence punishable under Section 302 IPC.
4. In order to prove its case, the prosecution examined
P.Ws.1 to 12 and got marked Exs.P1 to P13 apart from
M.O.1. On behalf of the defence, accused examined himself
as D.W.1 and got marked Exs.D1 to D6.
5. On the basis of the material available on record, the
learned Judge framed the following point for consideration:
"Whether the prosecution could able to
establish charge under Section 302 IPC against
the accused beyond all reasonable doubt?"
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6. The learned Judge, eventually, by way of the
impugned judgment, convicted and sentenced the accused
in the manner indicated supra. Hence, the present appeal.
7. Heard Sri P.Veera Reddy, learned Senior Counsel
representing Sri Dilip Jayaram, learned counsel for the
appellant, and Sri S.Dushyanth Reddy, learned Additional
Public Prosecutor for the State, apart from perusing the
entire material available on record.
8. Submissions/contentions of the learned counsel for
the appellant:
i) The judgment rendered by the
learned Additional Sessions Judge is
contrary to law, weight of evidence and
probabilities of the case.
ii) The learned Judge grossly erred
in placing reliance on the highly
discrepant testimony of P.Ws.1 to 4, 8
and 12. The learned Judge ought to
have seen that, in the evidence of
P.Ws.1 and 2, there are a number of
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contradictions and omissions and the
same would falsify their version that
they witnessed the incident.
iii) The learned Additional Sessions
Judge ought to have seen that there
was abnormal delay in giving report
and the reaching of report to the
learned Magistrate.
iv) The learned Additional Sessions
Judge ought to have rejected the
alleged oral Dying Declaration said to
have been made by the deceased before
P.W.4.
v) The learned Judge failed to
notice that, having regard to the nature
of injuries suffered by the deceased,
the deceased would not have been in a
position to speak or make any
declaration.
vi) The learned Judge grossly erred
in placing reliance on Ex.P7 said to
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have been recorded by P.W.8-Head
Constable. The learned Judge failed to
notice that the evidence of P.W.12-
Doctor, who examined the deceased,
initially would improbablize the
evidence of P.W.8.
vii) The learned Judge ought to
have seen that, though the deceased
was alive for more than twenty days
from the date of sustaining injuries, no
steps were taken to get her Dying
Declaration recorded by the learned
Magistrate.
viii) The learned Judge failed to give
any valid reasons for not accepting the
evidence of the accused, D.W.1. There
is no eye witness for the alleged
incident and the presence of P.Ws1
and 2 at the scene of offence is highly
doubtful and that the accused-
appellant herein was falsely implicated.
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ix). According to Ex.P1-sworn
statement of P.W.1 recorded under
Section 164 Cr.P.C., the accused
attacked the deceased on 04.12.2006
and cut her with a knife and P.W.1
never stated about the number of
injuries inflicted.
x) According to the charge
framed, the accused-appellant herein
hacked the deceased on her right hand
with a knife which resulted in her death
on 28.12.2006 and the said charge
framed by the learned Sessions Judge
does not indicate about the injuries as
per the Post Mortem report. Ex.P7 is a
fabricated document and the police
obtained endorsement and the
signature of P.W.12 at a later point of
time.
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xi) Admittedly, there are property
disputes among the family members.
xii) The deceased was never taken to
the hospital on 04.12.2006 and Ex.D3
shows the same in clear and
unequivocal terms. No Wound
Certificate was produced by the
prosecution. The auto driver was not
examined nor any neighbours were
examined. Statements recorded under
Section 161 Cr.P.C., were also
suppressed.
9. In support of his submissions and contentions, the
learned Senior Counsel takes the support of the following
decisions:
1.
Judgment, dated 16.03.2023, of the
Hon'ble Supreme Court in
Crl.A.No.1179 of 2012.
2. (2019) 7 SCC 781.
3. ( 1976) 4 SCC 355.
4. (2021) 6 SCC 213.
5. (2008) 11 SCC 232.
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6. Judgment of the Punjab & Haryana
High Court in Crl.A.No.348 of 1991,
reported in 2002 L.S.(P&H) 1223.
10. Submissions/contentions of the learned Additional
Public Prosecutor:
i) There is absolutely no error nor there
exists any infirmity in the impugned judgment
and, in the absence of the same, the questioned
judgment is not amenable for any correction
under Section 374 (2) Cr.P.C.
ii) By adducing cogent and convincing oral
and documentary evidence, the prosecution
proved the guilt of the accused beyond
reasonable doubt, as such, the impugned
judgment warrants no interference of this Court
under Section 374 (2) of Cr.P.C.
iii) Having regard to the oral evidence of
the eye witnesses, P.Ws.1 and 2, and Ex.P7-
statement of the deceased, dated 04.12.2006,
recorded by P.W.8-Head Constable, the
conviction cannot be faulted.
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iv) In order to prove the admission of the
deceased on 04.12.2006, P.W.12, the Duty
Doctor was examined and the evidence of
P.W.11 also supports the same.
v) Ex.D4-General Diary also clearly discloses
about the recording of the statement of the
deceased by P.W.8 and the same would
corroborate the evidence of P.Ws.8, 11 and 12.
vi) Ex.P.7-statement recorded by P.W.8-Head
Constable is required to be taken as Dying
Declaration and the statement made by the
deceased to P.W.4 (daughter of the deceased) is
also required to be treated as Dying
Declaration.
vii) The entire incident was witnessed by
P.Ws.1 and 2 and their evidence is consistent
and the minor discrepancies and
contradictions, if any, are not fatal to the case
of the prosecution.
viii) D.W.1 also categorically stated about the
shifting of his mother-in-law-deceased, who
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sustained injuries, to the GGH, Guntur for
treatment on 04.12.2006.
ix) Delay in lodging the F.I.R. is not fatal to the
case of the prosecution.
x) Charge sheet is a piece of evidence collected
by the Investigating Officer and, after
commencement of the trial, the same loses its
significance and the defective framing of the
charge also would not be fatal to the case of the
prosecution.
xi) Non-examination of the Doctor, who
conducted Postmortem on the dead body, is
also not fatal to the case of the prosecution.
xii) The defective investigation, if any,
conducted by the Investigating Agencies would
not vitiate the entire prosecution case.
11. In support of his submissions and contentions,
learned Additional Public Prosecutor takes the support of
the following judgments:
1. (2022) SCC Online SC 1494.
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2. (2013) 2 SCC 81.
3. (2005) SCC 507.
4. (2017) 11 SCC 222.
5. (2009) 13 SCC 722.
6.(2023) 2 SCC 353.
12. In the above background, now the points that arise
for consideration of this Court in the present Criminal
Appeal are:
1. Whether the prosecution proved the guilt
of the accused beyond reasonable
doubt?.
2. Whether the learned Additional Sessions
Judge is correct in convicting the accused
for the offence punishable under Section
302 IPC?.
3. Whether the impugned judgment
warrants any interference of this Court
under Section 374 (2) Cr.P.C.?.
13. A perusal of the material available on record
demonstrates that the entire case of the prosecution rests
on the oral evidence of P.Ws.1, 2, 4, 8 and 12 and the
documentary evidence placed on record. Therefore, it
would be highly essential and appropriate to refer to the
same.
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14. The grand daughter of the deceased, namely
Ch.Mary, was examined as P.W.1, who deposed that she
used to help her deceased grand mother, who was running
a buddy business. She deposed that, on 04.12.2006, at
about 9.00 p.m., when she and the deceased were sitting
in the buddy shop, the accused namely, M.Lakshmi
Narasimharao, who is her Senior Paternal Uncle, came
with a knife and hacked the deceased on her head, hands
and body and when she interfered, she was pushed aside
by him and the accused hacked the deceased with knife
stating that the deceased did not put any of her properties
in the name of his daughter. P.W.1 further deposed that
the deceased owned 350 sq.yards of site and one old tiled
house, consisting of four portions, and the accused used to
dispute with the deceased stating that his daughter
became widow and the deceased should give her properties
to his daughter but the deceased refused to do so.
According to her, the same being the reason for the
commission of the offence by the accused. P.W.1 further
deposed that, immediately after the accused hacked the
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deceased, she loudly raised cries and, on hearing the same,
P.W.2 (mother of P.W.1, Ch.Padma), P.W.2 and L.W.3,
junior maternal aunt of P.W.1, Govindamma, and P.W.3,
M.Kiran, a tenant in the house of the deceased, came to
the spot, but, in view of the threat given by the accused
with knife, they did not interfere.
15. According to P.W.1, the deceased was taken to GGH,
Guntur by her mother (P.W.2), junior maternal aunt,
Govindamma, and P.W.3 (tenant) and the police came to
the GGH and recorded Ex.P.7-statement of the deceased on
04.12.2006 in her presence and the Doctor was also
present at that time and she also stated that the thumb
mark affixed on Ex.P7-statement belongs to the deceased
and she further stated that the deceased died on
28.12.2006 at early hours, while undergoing treatment in
the hospital, and the police examined her and recorded her
statement and that due to hacking by the accused, the
deceased lost her life. P.W.1, during the course of cross-
examination, stated that she was examined by the Sub-
Inspector of Police on 05.12.2006 during morning hours
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and again on 28.12.2006 i.e., on the date of death, by the
Inspector of Police at the time of inquest. P.W.1, during the
course of cross-examination, categorically denied the
suggestions made by the defence counsel that
immediately after the incident, Chowdamma, daughter of
the accused, raised cries and, on hearing the same, P.W.3
came first and later P.Ws.1 and 2 came to the place of
incident.
16. The mother of P.W.1 and the daughter of the
deceased, one Ch.Padma, was examined as P.W.2, who
deposed about the stay of P.W.1 along with the deceased
after discontinuing Tenth Standard and, apart from
deposing in the same lines as P.W.1, she also stated that
on hearing the cries of P.W.1, she, her sister (L.W.3) came
to the spot and that, by that time, the accused was hacking
the deceased with knife and that the accused went away in
his auto. P.W.3 turned hostile.
17. One of the daughters of the deceased, namely Smt.
G.Venkayamma, who is a resident of Epurupalem, near
Chirala, was examined as P.W.4 and, according to her, on
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04.12.2006 at about 9.00 p.m., P.W.2 and L.W.3 informed
her by phone about the hacking of the deceased by the
accused. She further stated that, by the time of her arrival,
the deceased was taking treatment in GGH, Guntur and
she came there on 05.12.2006 at about 7.00 or 7.30 p.m.
She further stated that, on being questioned, the deceased
informed that the accused insisted her to hand over all the
properties to his daughter and the deceased refused to do
so and informed him that the property would be
partitioned among her daughters and, as such, accused
had grouse and hacked the deceased in front of the house
and that P.W.4 was present at the time of death of the
deceased on 28.12.2006. She also spoke about the
presence of P.W.1 and L.W.3 at the hospital when she went
there.
18. One Sri G.Srinivasa Rao, who was working as a Head
Constable at the relevant point of time, was examined as
P.W.8 who stated that on receipt of telephone call at about
10.00 p.m. on 04.12.2006 about the incident, he went to
GGH, Guntur and, by that time, the deceased-Polamma
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was lying in Emergency Ward of GGH, Guntur with injuries
and he recorded Ex.P7-statement of the deceased and the
said recording took place between 11.30 to 12.15 a.m. on
the next day in the presence of the Medical Officer. He
further stated that the deceased affixed the thumb mark on
Ex.P7 in the presence of P.Ws.1 to 3 and later L.W.3 came
to the hospital. P.W.12, Doctor-P.Vijaya Lakshmi, who
worked as Casualty Medical Officer during the relevant
period, deposed that she examined the deceased who was
brought by P.W.2 on 04.12.2006 at 9.30 p.m. to GGH,
Guntur. She also spoke about drafting of Ex.P7 by P.W.8
and, according to her, the deceased was conscious and
coherent while recording the statement. P.W.9, an
Assistant Professor in Forensic Medicine, Guntur, who
spoke about the death of Sri G.V.Daniel, who conducted
autopsy on the dead body of the deceased, deposed that he
could identify the signature of Sri G.V.Daniel and P.W.9
identified the same on Ex.P.8-Postmortem report.
19. According to Ex.P.8-Postmortem report, the following
injuries were found:
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i) Irregular laceration of size 9 X 4 cms, lane
deep precedent over right forearm in its lower end
with both bones of right forearm i.e. radius and ulna
are fractured and dislocated at the lower radio-ulna
joint.
ii) Irregular laceration of size 5 X 3 cms, brain
deep present over right parietal area of head.
iii) A depressed fracture of size 6X4 cms
present over right parietal area of skull which is
found continuing as a filscred fracture of length 8 cm
out of occipital area of skull.
iv) A suitured surgical wound of length 3 cm
present over right side of chest.
v) Diffusal arch and haemorrhage present all
over the brain.
vi) A decubitus ulcer of size 11 X 13 cm present
over right buttock.
20. One K.Deva Kumar, a mediator for arrest and seizure
and who was examined as P.W.6, though turned hostile,
did not dispute his signature on Ex.P4-Mediatornama.
P.W.11 stated about the arrest and seizure of crime
weapon under Ex.P4.
21. Accused examined himself as D.W.1 and, during the
chief-examination, he stated that after the death of his
son-in-law in the year, 2003, his daughter and the
deceased were living together in one room. He further
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stated in the chief-examination that, on 04.12.2006 at
about 2.00 p.m., he went out in auto for hire and returned
to his residence at 10.30 p.m., and when he arrived to his
house, his daughter told him that two persons came and
beat the deceased and went away and the deceased
sustained injuries and the deceased was taken to GGH,
Guntur for treatment. During the course of cross-
examination, D.W.1 categorically admitted about the filing
of O.S.No.888 of 2007 on the file of the Court of the I
Additional Senior Civil Judge, Guntur by one Sri
V.Nageswara Rao against his wife and his daughter,
Chowdamma, and his three sisters-in-law. Ex.D2 is the
judgment and the decree in the said suit. In the said suit,
the daughter of the accused, Smt.K.Chowdamma, was
examined as D.W.1. The said suit was instituted against
the Legal Representatives of the deceased for recovery of a
sum of Rs.6,85,333/- on the basis of a promissory note,
executed by the deceased- Polamma.
22. A perusal of the said judgment, dated 18.11.2011,
shows that D.W.1-K.Chowdamma deposed that, during
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the life time of Polamma, she never informed that she
borrowed amounts from anybody and during the cross-
examination, she deposed that there was no possibility of
knowing what happened in regard to Polamma subsequent
to 2004, since they have been living separately since 2003.
The said version of Smt.K.Chowdamma would undoubtedly
falsify the version of D.W.1, accused, that after the death of
his son-in-law, his daughter and the deceased were staying
together in one room. Therefore, the version of the accused
that his daughter was in the shop along with the deceased
and his daughter raised cries at the time of incident
cannot be given any credence and is not trustworthy. It is
not the case of the defence that they went to the hospital
after coming to know about the serious condition of the
deceased. The accused is no other than the eldest son-in-
law of the deceased.
23. In the judgment cited by the learned counsel for the
appellant in Narendrasinh Keshubhai Zala vs. State of
Gujarat (Criminal Appeal No.1179 of 2012), the Hon'ble
Supreme Court, at paragraph Nos.7 and 8, held as follows:
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7. In the considered view of this Court this case
primarily rests solely upon the testimony of PW-3,
which is full of blemishes, absolutely uninspiring in
confidence and the witness not having deposed the
truth.
8. It is a settled principle of law that doubt cannot
replace proof. Suspicion, howsoever great it may be,
is no substitute of proof in criminal jurisprudence
[Jagga Singh v. State of Punjab, 1994 Supp (3)
SCC 463]. Only such evidence is admissible and
acceptable as is permissible in accordance with law.
In the case of a sole eye witness, the witness has to
be reliable, trustworthy, his testimony worthy of
credence and the case proven beyond reasonable
doubt. Unnatural conduct and unexplained
circumstances can be a ground for disbelieving the
witness. This Court in the case of Anil Phukan v.
State of Assam, (1993) 3 SCC 282 has held that:
" 3. ... So long as the single eyewitness is a
wholly reliable witness the courts have no difficulty
in basing conviction on his testimony alone.
However, where the single eyewitness is not found
to be a wholly reliable witness, in the sense that
there are some circumstances which may show that
he could have an interest in the prosecution, then the
courts generally insist upon some independent
corroboration of his testimony, in material
particulars, before recording conviction. It is only
when the courts find that the single eyewitness is a
wholly unreliable witness that his testimony is
discarded in toto and no amount of corroboration can
cure that defect..."
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The same principle has been enunciated in: Amar
Singh v. State (NCT of Delhi), (2020) 19 SCC
165.
24. In the case of Balwan Singh vs. State of
Chhattisgarh and Another [(2019) 7 SCC 781], the
Hon'ble Apex Court, at paragraph Nos.11 to 15, held as
follows:
11. The prosecution also relies upon the evidence
relating to recovery of sticks and tabbal which were
bloodstained. Such evidence may not be helpful to
the prosecution in this case inasmuch as there is no
evidence to show that these articles were stained
with human blood, and more particularly with
blood of the same blood group as that of the
deceased. As per the forensic science laboratory
report, the bloodstains were disintegrated, and
their origin could not be determined.
12. In Sattatiya v. State of Maharashtra, one of the
crucial factors that had led this Court to reverse the
conviction was that the bloodstains on the items
seized in the recovery could not be linked with the
blood of the deceased. This factor was treated as a
serious lacuna in the case of the prosecution.
13. Similarly, in Shantabai and Ors. v. State of
Maharashtra, the bloodstains on some of the
clothes seized from the accused in recovery
belonged to a different blood group from that of the
blood group of bloodstains found on the clothes of
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the deceased and on the sample of soil, axe, stones
etc. which were taken from the spot by the
investigating officer. As a result of this mismatch, it
was held that this circumstance was not proved
against the accused.
14. It is also important to note the following
observations made by a Constitution Bench of this
Court in Raghav Prapanna Tripathi & Ors. v. State
of U.P:
"21. In this connection, reference may also be made
to circumstances 9 and 10, relating to the recovery
of the bloodstained earth from the house. The
bloodstained earth has not been proved to be
stained with human blood. Again, we are of opinion
that it would be far−fetched to conclude from the
mere presence of bloodstained earth that earth was
stained with human blood and that the human
blood was of Kamla and Madhusudhan. These
circumstances have, therefore, no evidentiary
value." (emphasis supplied)
Therefore, the five−judge Bench had ruled that in
that case the prosecution needed to prove that the
bloodstains found on the earth or the weapons
were of a human origin and were of the same blood
group as that of the deceased.
15. We are also conscious of the fact that, at times,
it may be very difficult for the serologist to detect
the origin of the blood due to the disintegration of
the serum, or insufficiency of bloodstains, or
haematological changes etc. In such situations, the
Court, using its judicious mind, may deny the
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benefit of doubt to the accused, depending on the
facts and circumstances of each case, if other
evidence of the prosecution is credible and if
reasonable doubt does not arise in the mind of the
Court about the investigation.
25. In Ishwar Singh vs. State of U.P. [(1976) 4 SCC
355], the Hon'ble Apex Court, at paragraph No.8, held as
follows:
8. Appellant Ishwar Singh was however found guilty
under Section 302 simpliciter of the Indian Penal
Code for the murder of Chauhal Singh. He died of
shock and haemorrhage due to the sharp punctured
wound on his chest caused, according to Dr. A. P.
Mathur, Additional Civil Surgeon, Meerut, who
conducted the post-mortem examination, by "some
sharpedged pointed weapon". He added that the
wound "might have been caused with a ballam". But
whose hand was it that dealt this fatal blow with a
"sharpedged pointed weapon"? P.W. 1 Mahabir, P. W
2 Satyapal, P.W. 6 Ram Rikh and P.W. 7 Jait Singh
have all repeated that it was Ishwar Singh who
struck Chauhal Singh with a ballam. But for the
reasons we have already given implicit acceptance
of their evidence is not possible and one must look
for independent corroboration of the fact. The
evidence of Sub-Inspector Karam Chand (P.W. 8) is
that a ballam was recovered from Ishwar Singh's
house, and a bhala from Harpal's. Dr. Mathur who
said that the fatal injury "might have been" caused
by a ballam, admitted on cross-examination that he
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did not know the difference between a ballam and a
bhala. By ballam he meant "such weapon as is
sharpedged on both sides, pointed, and less than 2
cm. in width" and he added that "if a bhala is of this
very shape this injury is possible." It is not disputed
that ballam and bhala are weapons of a similar
type. Had the doctor seen the weapons seized from
the houses of Ishwar Singh and Harpal, it might
have been possible for him to say which of them
caused the injury. But the weapons seized were not
shown to the doctor. In Kartarey v. State of U.P.
this Court emphasized the importance of eliciting the
opinion of the medical witness who had examined
the injuries of the victim:
It is the duty of the prosecution, and no less of the
Court, to see that the alleged weapon of the offence,
if available, is shown to the medical witness and his
opinion invited as to whether all or any of the
injuries on the victim could be caused with that
weapon. Failure to do so may sometimes, cause
aberration in the course of justice.
In this case it is impossible to say with certainty
whether the injury was caused by the ballam or the
bhala that were seized, and, therefore, whether it
was Ishwar Singh or Harpal who was responsible
for it, even if one believed that on the day of the
occurrence the former carried a ballam and the latter
a bhala. Ishwar Singh's conviction under Section 302
of the Indian Penal Code cannot also be sustained in
these circumstances.
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26. In Jayamma and Another vs. State of Karnataka
[(2021) 6 SCC 213], the Hon'ble Supreme Court, at
paragraph No.13, held as follows:
13. It is most relevant to mention at this stage that
we have also perused the original dying declaration
(in Kannada language). The original dying
declaration begins with the statement of the injured,
which is purportedly based upon the questions
asked by the police officer (PW 11), and right below
the statement, there is the thumb impression of
injured (deceased). Immediately below there are
signatures of the police officer (PW 11) who recorded
the dying declaration in his own handwriting. Since
very less space was left on the page, Dr. A.
Thippeswamy (PW 16) has on the left side of the
paper written a line in broken words which goes
from south−west to north− east, endorsing that the
"Patient was in a sound state of mind at the time." In
the leftover available space on the right hand side,
the police officer (PW 11) has remarked that the
statement was recorded by him on 22.09.1998 in
the night at 1.15 am in Thalak Hospital and
thereafter he came to the police station and
registered a case Crime No.101 of 1998 under
Sections 504, 307 read with Section 34 IPC. These
remarks by PW 11 are written in a different ink,
and it further appears that PW 11 also used the
same pen to make a "small correction" in the original
dying declaration i.e., some words, written in a
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different ink, have been inserted between two lines
of the dying declaration.
27. In Arun Bhanudas Pawar vs. State of
Maharashtra [(2008) 11 SCC 232], the Hon'ble Supreme
Court, at paragraph No.25, held as follows:
25. It is well-settled law that the oral dying
declaration made by the deceased ought to be
treated with care and caution since the maker of the
statement cannot be subjected to any cross-
examination. In the present case, admittedly, the
alleged dying declaration had not been made to any
doctor or to any independent witness, but only to the
mother who, as stated above, arrived at the hospital
only on the following day at about 3.30 p.m. when
Dr. Nitin had already operated Raju for his injuries
and thereafter he was lying on the bed in
unconscious condition with oxygen tubes having
been inserted in his nostrils. The prosecution has not
brought on record any medical certification to prove
that after operation the deceased was in a fit
condition to make the declaration before his mother.
The evidence of alleged oral dying declaration by the
deceased Raju to his mother PW Sundarbai relied
upon by the prosecution and accepted by the trial
court and the High Court, in our view, was not
cogent, satisfactory and convincing to hold that
deceased Raju before his death was in a fit
condition to make oral declaration to his mother.
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Crl.A.No.1131 of 2012
28. In State of Punjab vs. Kikkar Singh, High Court
of Punjab & Haryana (D.B) [2002 Law Suit (P & H) 1223],
the High Court of Punjab & Haryana, at paragraph No.22,
held as follows:
22. The sole point for determination in this case
would be whether this court should give the finding
of conviction on the sole alleged incriminating factor
of FIR by treating it as a dying declaration. We are of
the considered opinion that in view of the
circumstances of the case, the bald statement of the
injured Smt.Amarjit Kaur is not sufficient to record
the finding of guilt specially when there is no
evidence that the entire statement of the injured was
recorded in the presence of the doctor. As we stated
above that the Investigating Officer did not make
any effort to approach the Magistrate for recording
the dying declaration of the injured/deceased.
29. In the judgment cited by the learned Additional
Public Prosecutor in State of Jharkhand vs. Shailendra
Kumar Rai [(2022) SCC Online SC 1494], the Hon'ble
Supreme Court, at paragraph Nos.45 to 48, held as follows:
45. There is no rule to the effect that a dying
declaration is inadmissible when it is recorded by a
police officer instead of a Magistrate.4 Although a
dying declaration ought to ideally be recorded by a
Magistrate if possible, it cannot be said that dying
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declarations recorded by police personnel are
inadmissible for that reason alone The issue of
whether a dying declaration recorded by the police is
admissible must be decided after considering the
facts and circumstances of each case.
46. In Khushal Rao v. State of Bombay, this Court
formulated the yardstick against which dying
declarations may be evaluated:
"16. ... (1) that it cannot be laid down as an absolute
rule of law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated;
(2) that each case must be determined on its own
facts keeping in view the circumstances in which the
dying declaration was made; (3) that it cannot be
laid down as a general proposition that a dying
declaration is a weaker kind of evidence than other
pieces of evidence;
(4) that a dying declaration stands on the same
footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and
with reference to the principles governing the
weighing of evidence;
(5) that a dying declaration which has been recorded
by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers,
and, as far as practicable, in the words of the maker
of the declaration, stands on a much higher footing
than a dying declaration which depends upon oral
testimony which may suffer from all the infirmities of
human memory and human character, and
(6) that in order to test the reliability of a dying
declaration, the court has to keep in view, the
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circumstances like the opportunity of the dying man
for observation, for example, whether there was
sufficient light if the crime was committed at night;
whether the capacity of the man to remember the
facts stated, had not been impaired at the time he
was making the statement, by circumstances
beyond his control; that the statement has been
consistent throughout if he had several opportunities
of making a dying declaration apart from the official
record of it; and that the statement had been made
at the earliest opportunity and was not the result of
tutoring by interested parties."
47. The fact that the dying declaration is not in the
form of questions and answers does not impact
either its admissibility or its probative value, as held
in Ram Bihari Yadav v. State of Bihar:
"9. ... Generally, the dying declaration ought to be
recorded in the form of questions and answers but if
a dying declaration is not elaborate but consists of
only a few sentences and is in the actual words of
the maker the mere fact that it is not in question-
answer form cannot be a ground against its
acceptability or reliability."
48. Indeed, as recognized by this Court in Surinder
Kumar v. State of Punjab it may not always be
possible to record dying declarations in the form of
questions and answers:
"19. Insofar as the case before us is concerned, we
may only note that there is no format prescribed for
recording a dying declaration. Indeed, no such
format can be prescribed. Therefore, it is not
obligatory that a dying declaration should be
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recorded in a question answer form. There may be
occasions when it is possible to do so and others
when it may not be possible to do so either because
of the prevailing situation or because of the pain and
agony that the victim might be suffering at that point
of time."
30. In Parbin Ali and Another vs. State of Assam
[(2013) 2 SCC 81], the Hon'ble Supreme Court, at
paragraph Nos.17 to 22, held as follows:
17. Regard being had to the aforesaid principles, we
shall presently advert how to weigh the veracity of
an oral dying declaration. As has been laid down in
Laxman (supra) by the Constitution Bench, a dying
declaration can be oral. The said principle has been
reiterated by the Constitution Bench. Here we may
refer to a two- Judge Bench decision in Prakash and
another v. State of Madhya Pradesh[8] wherein it
has been held as follows: -
"11....In the ordinary course, the members of the
family including the father were expected to ask the
victim the names of the assailants at the first
opportunity and if the victim was in a position to
communicate, it is reasonably expected that he
would give the names of the assailants if he had
recognised the assailants. In the instance case there
is no occasion to hold that the deceased was not in a
position to identify the assailants because it is
nobody's case that the deceased did not know the
accused persons. It is therefore quite likely that on
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being asked the deceased would name the
assailants. In the facts and circumstances of the
case the High Court has accepted the dying
declaration and we do not think that such a finding
is perverse and requires to be interfered with."
18. It is worthy to note that in the aforesaid case this
Court had laid down that when it is not borne out
from the evidence of the doctor that the injuries were
so grave and the condition of the patient was so
critical that it was unlikely that he could make any
dying declaration, there was no justification or
warrant to discard the credibility of such a dying
declaration.
19. In Darshana Devi v. State of Punjab, this Court
referred to the evidence of the doctor who had stated
that the deceased was semi- conscious, his pulse
was not palpable and his blood pressure was not
recordable and had certified that he was not in a fit
condition to make a statement after the police had
arrived at the hospital and expressed the view that
the deceased could not have made an oral statement
that he had been burnt by his wife. Thus, emphasis
was laid on the physical and mental condition of the
deceased and the veracity of the testimony of the
witnesses who depose as regards the oral dying
declaration.
20. In Pothakamuri Srinivasulu alias Mooga
Subbaiah v. State of A.P.[10], this Court, while
dealing with the issue whether reliance on the dying
declaration made by the deceased to PWs-1, 2 and 3
therein could be believed, observed thus: -
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Crl.A.No.1131 of 2012
"7. We find no reason to disbelieve the dying
declaration made by the deceased to the witnesses
PWs 1, 2 and 3. They are all residents of the same
village and are natural witnesses to the dying
declaration made by the deceased. No reason is
assigned, nor even suggested to any of the three
witnesses, as to why at all any of them would tell a
lie and attribute falsely a dying declaration to the
deceased implicating the accused-appellant. Though
each of the three witnesses has been cross-
examined but there is nothing brought out in their
statements to shake their veracity."
We may also note with profit that the Court did not
accept that the injured could not have been in a
conscious state on the ground that no such
suggestion had been made to any of the witnesses
including the doctor who conducted the post mortem
examination of the deceased.
21. Coming to the case at hand, the wife, the father-
in-law and the two other relatives have clearly
stated that the deceased had informed them about
the names of the assailants. Nothing worth has been
elicited in the cross-examination. They have deposed
in a categorical manner that by the time they arrived
at the place of occurrence, the deceased was in a fit
state of health to speak and make a statement and,
in fact, he did make a statement as to who
assaulted him. Nothing has been suggested to these
witnesses about the condition of the deceased. As
has been mentioned earlier, PW-4, the doctor, who
had performed the post mortem, has not been cross-
examined. In this backdrop, it can safely be
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concluded that the deceased was in a conscious
state and in a position to speak. Thus, it is difficult
to accept that the wife, the father-in-law and other
close relatives would implicate the accused-
appellants by attributing the oral dying declaration
to the deceased. That apart, in the absence of any
real discrepancy or material contradiction or
omission and additionally non cross-examination of
the doctor in this regard makes the dying declaration
absolutely credible and the conviction based on the
same really cannot be faulted.
22. Having said that the discrepancies which have
been brought out are not material, we may address
to the issue of delay in lodging of the F.I.R. It is
perceptible from the evidence that the father-in-law
of the deceased had gone to the police station and
lodged the ezahar and, thereafter, an FIR was
lodged. The learned trial Judge has analysed the
said aspect in an extremely careful and cautious
manner and on a closer scrutiny, we find that the
analysis made by him is impeccable.
31. In Kans Raj vs. State of Punjab and Others [(2000)
5 SCC 207], the Hon'ble Supreme Court, at paragraph
Nos.12 to 14, held as follows:
12. The death referred to in Section 32(1) of the
Evidence Act includes suicidal besides homicidal
death. Fazal Ali, J. in Sharad Birdhichand Sarda v.
State of Maharashtra [1984 (4) SCC 116] after
referring to the decisions of this Court in Hanumant
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v. State of Madhya Pradesh [1952 SCR 1091],
Dharambir Singh vs. State of Punjab[Criminal Appeal
No.98 of 1958, decided on November 4, 1958], Ratan
Gond v. State of Bihar [1959 SCR 1336], Pakala
Narayana Swami (supra), Shiv Kumar v. State of
Uttar Pradesh [Criminal Appeal No.55 of 1966,
decided on July 29, 1966], Mahnohar Lal v. State of
Punjab [1981 Cri.LJ 1373 (P&H)] and other cases
held:
"We fully agree with the above observations made
by the learned Judges. In Protima Dutta v. State
[1977 (81) Cal WN 713] while relying on Hanumant
Case the Calcutta High Court has clearly pointed out
the nature and limits of the doctrine of proximity and
has observed that in some cases where there is a
sustained cruelty, the proximate may extend even to
a period of three years. In this connection, the high
Court observed thus:
The 'transaction' in this case is systematic ill-
treatment for years since the marriage of Sumana
and incitement to end her life. Circumstances of the
transaction include evidence of cruelty which
produces a state of mind favourable to suicide.
Although that would not by itself be sufficient unless
there was evidence of incitement to end her life it
would be relevant as evidence.
This observation taken as a whole would, in my
view, imply that the time factor is not always a
criterion in determining whether the piece of
evidence is properly included within 'circumstances
of transaction'...'In that case the allegation was that
there was sustained cruelty extending over a period
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of three years interspersed with exhortation to the
victim to end her life'. His Lordship further observed
and held that the evidence of cruelty was one
continuous chain, several links of which were
touched up by the exhortations to die. 'Thus evidence
of cruelty, ill- treatment and exhortation to end her
life adduced in the case must be held admissible,
together with the statement of Nilima (who
committed suicide) in that regard which related to
circumstances terminating in suicide'.
13. Similarly, in Onkar v. State of Madhya Pradesh
[1974 Cri.LJ 1200] while following the decision of the
Privy Council in Pakala Narayana Swami case, the
Madhya Pradesh High Court has explained the
nature of the circumstances contemplated by Section
32 of the Evidence Act thus:
'The circumstances must have some proximate
relation to the actual occurrence and they can only
include the acts done when and where the death
was caused....Thus a statement merely suggesting
motive for a crime cannot be admitted in evidence
unless it is so intimately connected with the
transaction itself as to be a circumstance of the
transaction. In the instant case evidence has been
led about statements made by the deceased long
before this incident which may suggest motive for
the crime.'
14. In Allijan Munshi v. State [AIR 1960 Bom 290]
the Bombay High Court has taken a similar view.
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32. In Anjan Dasgupta vs. State of West Bengal and
Others [(2017) 11 SCC 222], the Hon'ble Supreme Court,
at paragraph Nos.22 and 23, held as follows:
22. The FIR as well as the inquest report both
mentioned that accused Anjan Dasgupta. The
inquest report has not been questioned on any
account. The offence, having been committed at
around 4-5 p.m., registration of the FIR draw any
adverse inference, more so, when after the
occurrence, the deceased was taken to the nearby
nursing home where he was declared dead and
body remained there till the inquest was over.
Another circumstance, which has been heavily relied
upon by the trial court and reiterated before us by
the learned counsel for the appellant is the dispatch
of the FIR to the Magistrate with delay. This Court in
Pala Singh v. State of Punjab has held that delay in
forwarding the FIR to the court is not fatal in a case
in which investigation has commenced promptly on
its basis.
23. The I.O. after receipt of the information of an
offence by R.T. message had arrived at the scene on
7.40 hours, which clearly proves the prompt
commencement of the investigation. FIR was dispatc
hed on 22nd June, 2000 which has also been
accepted by trial court. When no
questions were put to I.O. in his cross-examination
regarding the delay in dispatch, at the time of
hearing, the accused cannot make capital of the said
delay in forwarding the FIR. This Court in Rabindar
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Mahto and Another v. State of Jharkhand
2006 (10) SCC432 has held that in every
case from the mere delay in sending the FIR to the
Magistrate, the Court would not conclude that the
FIR has been recorded much later in time than
shown. It is only extraordinary and unexplained
delay, which may raise doubts regarding the
authenticity of the FIR.
33. In Akhtar and Others vs. State of Uttaranchal
[(2009) 13 SCC 722], the Hon'ble Supreme Court, at
paragraph No.21, held as follows:
21. It has been argued that non-examination of the
medical officers concerned is fatal for the
prosecution. However, there is no denial of the fact
that the defence admitted the genuineness of the
injury reports and the post-mortem examination
reports before the trial court. So the genuineness and
authenticity of the documents stands proved and
shall be treated as valid evidence under Section 294
CrPC. It is settled position of law that if the
genuineness of any document filed by a party is not
disputed by the opposite party it can be read as
substantive evidence under sub-Section (3) of Section
294 CrPC. Accordingly, the post-mortem report, if its
genuineness is not disputed by the opposite party,
the said post-mortem report can be read as
substantive evidence to prove the correctness of its
contents without the doctor concerned being
examined.
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34. The above mentioned oral evidence of P.Ws.1, 2, 4, 8,
9 and 12 together with Ex.P7 and Ex.P8-Postmortem report
would clearly establish the guilt of the accused beyond
reasonable doubt. It is also the case of the prosecution
that, after P.W.12 attended the deceased initially, the
deceased was shifted to Cardiac Wing of the hospital.
Admittedly, during the intervening night of 04/05.12.2006,
the deceased was brought to the Casualty Ward of GGH,
where Ex.P7-statement is recorded in the presence of
P.W.12 and they categorically deposed to the said effect, as
such, variation, if any, as to the date of admission, in the
facts and circumstances of the case, cannot be regarded as
fatal to the case of the prosecution. The non-examination
of the Doctor, who conducted autopsy on the dead body of
the deceased and who prepared Ex.P8-Postmortem report,
in the considered opinion of this Court, is not fatal to the
case of the prosecution, having regard to the evidence of
P.W.9 who identified the signature of the Doctor who
conducted autopsy and the doctor, who conducted
autopsy, is no more.
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35. As regards the contention of the learned counsel for
the appellant, that as per Ex.D1-information furnished
under the Right to Information Act, 2005, the deceased
was never admitted on 04.12.2006 in the Guntur General
Hospital, but, really, admitted on 05.12.2006, it is to be
noted that the same was furnished by the Government
General Hospital Outpost Police Station when D.W.1
sought information as to the time of sending information to
Old Guntur Police Station and the same was admitted by
D.W.1 in his cross-examination. Therefore, the contention,
contra, advanced by the learned counsel for the appellant
is liable to be rejected and the same is, accordingly,
rejected.
35. A perusal of the judgment, impugned in the present
appeal, demonstrates that, after meticulously, minutely
and extensively analyzing the oral and documentary
evidence available on record, the learned Judge arrived at
the conclusion, holding the appellant guilty of the offence
punishable under Section 302 IPC. In view of the same,
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Crl.A.No.1131 of 2012
this Court is not inclined to meddle with the well-
articulated judgment.
36. For the aforesaid reasons, Criminal Appeal is
dismissed.
As a sequel thereto, miscellaneous petitions, if any
pending in this appeal, shall stand closed.
__________________
A.V.SESHA SAI, J
_________________________________
DUPPALA VENKATA RAMANA, J
02nd May, 2023.
Tsy
