P BABU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) There are three appellants - original accused Nos. 1, 2 and 3. They were tried along with four others for offences punishable under Ss. 148, 302 and 302/149, I.P.C. These appellants were also charged under S. 302 simpliciter. The trial Court acquitted all of them. The State preferred an appeal against the acquittal and the High Court while confirming the acquittal of A4 to A7, convicted the appellants under Ss. 302/ 34, I.P.C. and sentenced each of them to undergo imprisonment for life. Hence the present appeal.

(2.) The prosecution case is as follows : P. Narasinga Rao, the deceased in the case was working as a Welder at Secunderabad. He had a vegetable shop also in the market and he used to attend to his shop in the evening. P. W. 16 is the maternal uncle of the deceased. He has also a vegetable shop in the same market. The accused are all related to each other. A4s younger brother was murdered on 4-8-78. The deceased and two others were prosecuted in that case and the same ended in acquittal. All the accused herein and also the absconding accused Sriramulu were aggrieved with the acquittal and bore grudge against the deceased. The deceased told P. W. 16 that the accused were intending to kill him. On 21-3-79 at about 5 p.m. P.W. 7, a neighbour of P.W. 16 was doing painting work in a house in Picket, Secunderabad and after completing that work, he was going home. At about 7 p.m. he came near the State Bank and saw A1 to A7 and the absconding accused Sriramulu and heard Sriamlu telling A1 and A4 to do away with the deceased. After coming home, P.W. 7 informed P.W. 16 about what he has heard. On that day at about 6.30 p.m., P.W. 2 who worked under the deceased, went to the shop of deceased to meet him on a cycle. The deceased asked him to take him to the police station as he had to mark his attendance. Then both of them went on the cycle to the Market Police Station. After marking the attendance, both of them were coming back to the shop of the deceased on cycle. When they reached the State Bank, A1 emerged from the lane and caught hold of the deceased. A2 to A7 also joined A1. A1 stabbed the deceased with a knife on his chest. A2 and A3 axed the deceased on his back with axes. A4 to A7 stabbed the deceased with knives on various parts of his body. P.W. 2 ran to the Police Station to give a report about the incident to the Inspector of Police, P.W. 21, who made an entry in the general diary and along with S.I.S. and Head Constable rushed to the scene of occurrence. They carried the deceased to the hospital. P.W. 10, the Civil Assistant Surgeon who was on duty, examined the injured and found 10 injuries and issued the wound certificate Exd. 6 P.W. 10 admitted the injured into Cardio-Thoracic Ward and asked the S.I. to fetch the Magistrate for recording the dying declaration. The S.I. returned after 15 minutes and reported that the Magistrate was not available in his residence at that time. P.W. 21 also was present at that time in the hospital. He asked P.W.1, who was working as House Surgeon in the Casualty Department to record the dying declaration of the deceased. P.W. 1 recorded the dying declaration of the deceased Ex. P.1 which was read out to the deceased and his thumb impression was taken. P.W. 1 handed over Ex. P. 1 to P.W. 21 in the presence of P.W. 19, another Police Officer, who registered a case and issued express F.I.R. P.W. 21 continued the investigation. P.W. 20, Assistant Professor of Thoracic Surgery was contacted and he came to the hospital at about 9 p.m. and found the deceased to be in a bad condition. Therefore he could not undertake any surgical treatment. The injured expired at about 11.10 p.m. and an altered F.I.R. was issued. The dead body was sent for post-mortem and the Doctor found a number of incised injuries, which could have been caused by knives and axes. The accused were arrested except Sriramulu and the accused who were arrested were charge-sheeted and tried.

(3.) The prosecution relied on the dying declaration Ex.P. 1 and also on the evidence of P.Ws. 2 to 5. The accused pleaded not guilty. The trial Court discarded Ex.P.1 pointing out certain infirmities and also held that the same was not recorded at 8.35 p.m. as claimed by the prosecution but it was brought into existence later. The trial Court also discarded the evidence of P.Ws. 2 to 5, the eye-witnesses pointing out certain inconsistencies. Accordingly all the accused were acquitted. The High Court mainly relied on the dying declaration Ex.P.1 recorded by P.W. 1, the House Surgeon whose evidence is also corroborated by another Doctor, P.W. 10 who was on duty at that time. In the said dying declaration, the overt acts were attributed to A1 to A3. Since no overt acts were attributed to A4 to A7, the High Court confirmed their acquittal but set aside the acquittal of A1 to A3 and convicted them as mentioned above. The High Court, however, relied on the evidence of P.Ws. 2 and 4 also and held that the same lends corroboration to the dying declaration so far as A1 to A3 are concerned. The High Court also observed that the dying declaration by itself is sufficient to convict A1 to A3.