CHERLOPALLI CHELIMINABI SAHEB Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellants were accused Nos. 1 and 3 before the II Additional Sessions Judge, Chittoor at Madanapalle in S.C. No. 53/92. They were charged for an offence punishable under Section 302 read with S. 34, IPC before the Additional Sessions Judge who found them guilty and convicted them for an offence punishable under S. 304, Part II and sentenced both the accused to undergo R.I. for a period of 4 years. The said conviction and sentence has been upheld in appeal by a single Judge of the High Court of Judicature, A.P. at Hyderabad in Criminal Appeal No. 1272/92.

(2.) Briefly stated the prosecution case is that on 25-5-1991 at about 8 p.m. there was an altercation between the wife of the Ist appellant herein and the wife of the deceased in regard to taking water from the tap. This altercation turned out to a fight in which members of both the families joined and it is stated that in the said fight the accused persons stabbed the deceased Mahaboob Saheb on the abdomen and chest. The deceased was then taken to Government hospital at Madanapalle where PW-9, Civil Assistant Surgeon, examined the deceased and sent the intimation of the crime Ex. P-3 to II Town Police Station Madanapalle. He also issued the certificate to Ex. P-2 and thereafter the said doctor referred the deceased to hospital at Tirupati for expert treatment. When the deceased was still in the hospital at Madanapalle, PW-10, Head Constable of II Town Police Station, Madanapalle who received Ex. P-3 from the doctor went to the hospital and recorded a statement of the deceased which is marked as Ex. P-4. Since the incident in question had taken place in the jurisdiction of another police station, P-10 informed Mudivedu Police Station of the incident and sent Ex. P-3 and Ex. P-4 to the SHO of the said station on the same night. PW. 11 who is the Sub-Inspector of Mudivedu Police Station on receipt of the information from PW-10 registered a case against the accused under S. 324, IPC. It is stated that as per the advise of doctor, PW. 9, the deceased was shifted to Tirupati hospital where another statement of the deceased was recorded by PW-11 which is marked as Ex. P-13. It is the prosecution case that the deceased died in the said hospital on 27th May, 1991 at about 4.35 a.m. After receiving the said death information, PW. 11 changed the offences into 302, IPC and issued a fresh FIR Ex. P-14. All the four accused persons were sent for trial before the II Addl. Sessions Judge, Chittoor who transferred the case in regard to accused Nos. 2 and 4 to Juvenile Court under the Juvenile Justice Act, 1986, and as stated above, only these two appellants were tried by the Sessions Court.

(3.) The prosecution before the trial Court examined 12 witnesses out of whom PW-1 was the wife of the deceased, PW-2 was the son of the deceased, PWs. 3 to 6 were neighbours who allegedly witnessed the incident while PWs. 7 and 8 were panch winesses for the recovery of the weapon. But these witnesses including the wife and the son of the deceased did not support the prosecution. In the absence of any other direct evidence, the prosecution had to rely on the two dying declarations Ex. P-4 and Ex. P-13 and the evidence of the doctor, PW-9, who attested the dying declaration Ex. P-4 as also the evidence of other police witnesses. The trial Court rejected the second dying declaration Ex. P-13 on the ground that the same was dated subsequent to the death of the deceased, therefore, it was not safe to rely upon the same. It, however, accepted the first dying declaration Ex. P-4 and after coming to the conclusion that it is safe to rely on the said dying declaration based a conviction solely on Ex. P-4 as spoken to by PW-9, the doctor, and PW-11, the S.I., and convicted the appellants, as stated above. The High Court also took a similar view and confirmed that sentence.