GOUSUDDIN Vs. STATE OF A P

JUDGEMENT

(1.) The appellant-accused preferred this appeal as against the judgment dated 05-08-1997, made in Sessions Case No.247 of 1995, on the file of Additional Sessions Judge, Rangareddy District at Saroornagar. Accused was tried for an offence punishable under Section 302 of the Indian Penal Code (I.P.C.) but was found guilty under Section 304-II I.P.C., and sentenced to undergo rigorous imprisonment for eight years.

(2.) The substance of the charge against the accused is that on 19-11-1991 at 3.30 p.m. at the lands of Kapu people, he caused the death of one Khasim Saheb by stabbing him with a knife. P.W.4 is the grant son and P.W.5 is the son-in-law of the deceased. Accused was a native of Rampur village, but a resident of Hyderabad and used to visit Rampur occasionally and the deceased was the resident of Rampur. On the date of incident at about 2.30 p.m. while P.W2 was returning to his village, he met the accused in the bus, who informed him that the deceased had to give him some amount inasmuch as his grand father sold land to the deceased and the deceased had to pay the sale consideration. Subsequent thereto accused went to the house of P.W.4 and enquired about the deceased as he had to talk with him, then P.W.4 took the accused to Chakali Kathava, where the deceased was gazing the cattle, and while they were talking, P.W.4 left the place and went to P.W.5. Then at about 4.30 or 5.00 p.m. while P.W.1 was in the land of Mallanna, one person, the son of Ananthaiah informed him that deceased received bleeding injuries and fell down, immediately P.W.1 rushed to the scene of offence and saw the deceased with bleeding injuries on his stomach and on the right side of the throat. On receipt of information subsequent thereto, P.Ws.2 to 5 also rushed to the spot and on the enquiry, it is stated that the deceased had informed them that the accused stabbed him and ran away. The Sarpanch of the village also came there and shifted the deceased to Government Hospital, Sangareddy. On 19-11-1991 at 8.00 p.m. on receiving a written complaint-Ex.P1 from P.W.1 P.W.9 the Sub-Inspector of Police. Kusaiguda, registered a case in Crime No.97 of 1991 under Section 307 I.P.C., and issued First Information Report (FIR) marked as Ex.P4 and on 20-11-1991 he went to the scene of offence, and during the course of investigation, he recorded statements of P.Ws.3 to 5. Then on 26-11-1991 he recorded the statement of deceased at the hospital, which is marked as Ex.P6. Subsequently, on 03-12-1991 on receiving death information, P.W.9 altered the Section of law from Section 307 to 302 I.P.C. and issued altered FIR marked as Ex.P5. Thereafter. P.W.8 Circle-Inspector of Police had taken up further investigation, held inquest over the dead body of the deceased in the presence of P.W.2 and Ex.P2 is the inquest report. On a requisition on 03-12-1991, P.W.7 the Civil Assistant Surgeon, Community Hospital, Jogipet conducted autopsy over the dead body of the deceased, and opined that the cause of death was due to septicemia and shock and Ex.P3 is the postmortem report. On 16-12-1991 accused surrendered before the Court, and on receiving the relevant documents, and on completion of investigation P.W.8 filed he charge sheet.

(3.) The defence of the accused is one of total denial. In support of the version of the prosecution, P.Ws.1 to 10 were examined and Exs.P1 to P7 were marked. As already referred to supra, the accused was convicted under Section 304-II I.P.C. Sri Praveen Kumar, the learned counsel representing appellant-accused would submit that there are no eyewitnesses to the incident and this is a case based on circumstantial evidence. The learned Counsel also commented that the witnesses, son of Ananthaiah and pandu Ranga Reddy, who are the material witnesses to connect the links in circumstantial evidence, had not been examined. The evidence of P.W.2 and also the motive relating to the commission of the crime also cannot be believed. The learned Counsel also submitted that the oral dying declarations alleged to have been made to P.Ws.1, 3 to 5 also cannot be believed and P.W.9 the investigating officer had recorded Ex.P6 on 26-11-1991 and the learned Counsel also would submit that in between, the prosecution had sufficient opportunity to get the dying declaration recorded by the Magistrate, but though there is some evidence on record that an attempt was made in this regard, the same was not done, hence, in the light of the same, the dying declarations cannot be relied upon. The learned Counsel also pointed out relating to the delay in giving the complaint and also the delay in FIR reaching the Magistrate. The learned Counsel further pointed out that P.W.3 deposed that he was not examined by Police at all, P.W.4 deposed that he was examined after 2 or 3 days and P.W.1 does not speak about the presence of P.,W.3 and P.W.4 deposed that P.Ws.4 and 5 went together, whereas, P.W.5 deposed that, P.W.4 came later. These are certain of the variations, which had been pointed out by the learned Counsel. The learned Counsel also submitted that there was no recovery and even otherwise, in the light of the injuries received by the deceased, it is highly doubtful whether he was capable of making such oral dying declarations to the witnesses. The learned Counsel also placed reliance on Marudanal Augusti, Appellant v. State of Kerala, Respondent and State of Assam, appellant v. Bhelu Sheikh and others 1989 Crl.L.J.879.