Vs. State of A.P.  INSC 416 (8 October 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 SCC
(1) 388 JT 1993 (5) 699 1993 SCALE (3)923
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- There are
three appellants original accused 1, 2 and 3. They were tried along with four
others for offences punishable under Sections 148, 302 and 302/149 IPC. These
appellants were also charged under Section 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 A-4 to A-7, convicted the
appellants under Sections 302/34 IPC and sentenced each of them to undergo
imprisonment for life.
the present appeal.
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. PW 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. A-4's younger brother was murdered on August 4, 1978. 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 PW 16 that the accused were
intending to kill him. On March 21, 1979
at about 5 p.m., PW 7, a neighbour of PW 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 A-1 to A-7 and the absconding
accused Sriramulu and heard Sriramulu telling A-1 and A-4 to do away with the
deceased. After coming home, PW 7 informed PW 16 about what he had heard. On
that day at about 6.30
p.m., PW 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, A- 1 emerged from the lane
and caught hold of the deceased. A-2 to A-7 also joined A-1. A- 1 stabbed the
deceased with a knife on his chest. A-2 and A-3 axed the deceased on his back
A-7 stabbed the deceased with knives on various parts of his body. PW 2 ran to
the police station to give a report about the incident to the Inspector of
Police, PW 21 who made an entry in the general diary and along with SIs and
head constables rushed to the scene of occurrence. They carried the deceased to
the hospital. PW 10, the Civil Assistant Surgeon who was on duty, examined the
injured and found 10 390 injuries and issued the wound certificate Ex. P-6. PW
10 admitted the injured into Cardio-Thoracic Ward and asked the SI to fetch the
Magistrate for recording the dying declaration. The SI returned after 15
minutes and reported that the Magistrate was not available at his residence at
that time. PW 21 also was present at that time in the hospital. He asked PW 1,
who was working as House Surgeon in the Casualty Department to record the dying
declaration of the deceased. PW 1 recorded the dying declaration of the
deceased Ex. P-1 which was read out to the deceased and his thumb impression
was taken. PW 1 handed over Ex. P-1 to PW 21 in the presence of PW 19, another
police officer, who registered a case and issued express FIR. PW 21 continued
the investigation. PW 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.
he could not undertake any surgical treatment.
injured expired at about 11.10
p.m. and an altered
FIR was issued. The dead body was sent for postmortem 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.
prosecution relied on the dying declaration Ex. P- 1 and also on the evidence
of PWs 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 PWs 2 to 5, the eyewitnesses pointing out certain inconsistencies.
Accordingly all the accused were acquitted. The High Court mainly relied on the
dying declaration Ex. P-1 recorded by PW 1, the House Surgeon whose evidence is
also corroborated by another Doctor, PW 10 who was on duty at that time. In the
said dying declaration, the overt acts were attributed to A- 1 to A-3. Since no
overt acts were attributed to A-4 to A-7, the High Court confirmed their
acquittal but set aside the acquittal of A-1 to A-3 and convicted them as
mentioned above. The High Court, however, relied on the evidence of PWs 2 and 4
also and held that the same lends corroboration to the dying declaration so far
as A-1 to A-3 are concerned.
High Court also observed that the dying declaration by itself is sufficient to
convict A-1 to A-3.
Learned counsel for the appellants submitted that normal safeguards to be
observed in recording the dying declaration have not been strictly observed and
the evidence of PWs 1 to 10 regarding the manner in which the dying declaration
was recorded and the time at which the same was recorded, does not inspire
confidence and that the dying declaration was recorded at the instance of PW
21, the Investigating Officer and the said declaration was brought into
existence later and that the view taken by the trial court is quite reasonable
and the High Court erred in interfering with the findings of the trial court.
noted above, the injured was immediately rushed to the hospital. PW 1, Dr Pratap
Kumar, the House Surgeon was on duty in the hospital at 391 that time. He
deposed that at about 7.40
p.m. the deceased was
in the Casualty Department and that PW 10, Dr C. Srihari Rao, the Casualty
Medical Officer was also present. The condition of the injured Narasing Rao was
serious. PW 1 further deposed that he was asked by PW 10 to record the
statement of the injured Narasing Rao and accordingly PW 1 recorded the same
and obtained the thumb impression of the injured in the presence of PW 10 and
after recording, handed over the same to the Inspector of Police, PW 21, who
was present in the hospital at that time. The dying declaration reads thus :
P-2 Dated March 21, 1979 Statement of Narasing Rao Recorded by PW 1 Statement
of Shri P. Narasing Rao s/o Rajaiah, age 23 years, resident of Sajanlal Street.
i.e., on 21.3.79 at about 7.40 p.m. I
went to Market Police Station and returning to my home. When I reached Rajeswar
Talkies two persons namely Babu and Daya caught hold of me and Raju A-3 beat
me. I fell down. Then all the three inflicted injuries with axe and knives. I
received injuries on chest, back side and on right side of the neck. They took
revenge on me due to previous enmity.
is read over to me and explained in Telugu and accepted to be correct. The
incident was witnessed by one Daya of Kalasiguda who was came (not clear).
by Dr P.B. Pratap Kumar, Gandhi Hospital. LTI of P. Narasing Rao LTI of 8.35 p.m.
Rao Pratap Kumar" It can be seen that the deceased has mentioned that A-]
and A-2 caught hold of him and Raju, A-3 beat him and he fell down. Thereafter
all the three inflicted injuries with axes and knives. He also mentioned that
the incident was witnessed by PW 2. The main criticism levelled against this dying
declaration is that PW 1, the Doctor, who recorded the same, has not taken care
to verify whether the injured was in a fit condition to make the statement and
that the evidence of three Doctors, PWs 1, 10 and 20 would show that the
condition of the deceased was very bad and therefore the injured would not have
been in a position to make the said statement and that the statement was
recorded when PW 21, the Inspector of Police was there. Learned counsel also
contended that some of the admissions made by PWs 1 and 10 in their
cross-examinations would throw any amount of doubt on the authenticity of this
dying declaration. We shall now proceed to consider the evidence of PWs 1, 10
and 20. PW 1, in his chief examination, as already mentioned, clearly stated
that he recorded Ex. P-1 as stated by the injured.
also stated that he obtained the thumb impression of the declare in the
presence of the Casualty Medical Officer, PW 10 and thereafter he handed it
over to PW 21. In the cross- examination, PW 1 admitted that the treatment of
the injured was not entrusted to him. However, he was asked at about 8 392 p.m.
to record the statement of the injured. PW 1 had further admitted that the
injured gave the statement in Telugu and he recorded the same in English. PW 1
also admitted that PW 21 was present there and that after recording the
statement, he handed over the same to him. He denied the suggestion that Ex. P-
1 was not recorded in the manner stated by the injured and that it was prepared
subsequently at the instance of the Circle Inspector.
1 is a young doctor and a highly independent witness. There is no reason
whatsoever for him to speak falsehood. The recording of Ex. P- 1 by PW 1 is not
in dispute. PW 1 has clearly stated that the injured gave the said statement
and he duly recorded it and obtained his thumb impression. PW 10, the Casualty
Medical Officer who examined the injured and admitted him, asserted that Ex. P-
1 was recorded by PW 1 as per his instructions. PW 10 also deposed that he
asked the Inspector to secure the presence of the Magistrate but he was told
that the Magistrate was not available. Therefore the Circle Inspector requested
him to record the dying declaration. He, however, asked PW 1 to record the
same. PW 10's evidence shows that he was present when the dying declaration was
being recorded by PW 1 and that the patient was fully conscious when the dying
declaration was recorded. PW 10 further deposed that after the statement was
recorded, he verified it and the same was read over to the victim who affirmed
the same to be correct and therefore his thumb impression was taken. PW 10 was
cross-examined at length. In the first instance he was cross-examined about the
availability of the Magistrate and the time taken to get the information that
the Magistrate was not available. Then he was cross-examined with reference to
actual recording. PW 10 asserted in the cross- examination that he asked PW 1
to record and he himself had gone through the entire dying declaration recorded
by PW 1.
also stated that they noted in the accident register that the dying declaration
was recorded. Ex. P-6 is the injury certificate. It appears that it was noted
in Ex. P- 6 against an entry that the injured was said to have been stabbed by
somebody. Placing much reliance on this entry, PW 10 was asked in the
cross-examination as to how it was made. PW 10 stated that the deceased stated
so in the first instance. The learned counsel relying on this admission sought
to contend that the deceased was not aware as to who stabbed him. We see no
force in this submission. It is a matter of common knowledge that such entry in
the injury certificate does not necessarily amount to a statement. At that
stage the doctor was required to fill up that column in a normal manner and it
was not the duty of the doctor to enquire from the injured patient about the
actual assailants and that the inquiry would be confined as to how he received
the injuries namely the weapons used etc. It is next submitted that the
condition of the injured was very serious and therefore it is highly doubtful
whether he would have been in a position to make the statement. In support of
this submission, the learned counsel relied on the evidence of PW 20 and also
PW 9 another Doctor, who conducted the postmortem. PW 20 deposed that he found
that the condition of the injured was serious and that the Magistrate should be
informed for recording the dying declaration. Relying on this admission made by
PW 20, the learned counsel contended that the condition 393 of the injured was
serious and therefore it would not have been possible to record the dying
declaration. The other submission is that since PW 20 made an entry that the
Magistrate should be informed, it becomes doubtful that Ex.
was already recorded and if, in fact, the same was already recorded, PW 20
would not have made such an entry.
not find any substance in this submission. PW 20 does not say that he inquired
of PW 10 whether any dying declaration was recorded already. Further, the accident
register itself reveals that PW IO had already made an entry in the relevant
column that the dying declaration was recorded. Therefore the entry made by PW
20 that he visited the hospital at about 9 p.m. would not in any manner affect the veracity of the evidence of PWs 1
and 10 who are respectable doctors.
next submission is that as PW 1 knew Telugu, he should have recorded the dying
declaration in the same language. PW 1 has clearly stated that he can read and
write Telugu. Therefore, there cannot be any doubt about the contents of the
dying declaration which is recorded in English and what is more, PW 10 clearly
stated that he read out the statement and explained to the injured, who
admitted it to be correct. Having carefully examined the evidence of PWs 1 and
10, we see absolutely no grounds to reject their evidence. They are independent
and truthful witnesses and their evidence establishes beyond all reasonable
doubt that Ex. P-1 was duly and sincerely recorded as stated by the deceased. The
view taken by the trial court that Ex. P-1 was fabricated, is highly erroneous
and unsound. The High Court was fully justified in reversing the said finding.
Learned counsel also contended that the medical evidence namely that of PW 9,
who conducted the postmortem, is in conflict with the version given in the
dying declaration that after the deceased fell down, the three appellants
inflicted injuries with knives and axes. PW 9 in the cross-examination gave his
opinion that the injuries as found would show that they might have been
inflicted while the injured was standing. No doubt in the dying declaration, it
is mentioned that the deceased was beaten by A-3 and he fell down. But that
does not mean that he would not have made an attempt to get up and stand. The
opinion given by PW 9 is not in direct conflict with the version given in the
dying declaration. Apart from the dying declaration, Ex. P-1, there is evidence
of PWs 2 to 4 also which has been relied upon by the High Court also. PW 2
after witnessing the occurrence immediately rushed to the police station and
informed the police. As a matter of fact his name was mentioned in the dying
declaration itself. PW 4 deposed that he was selling groundnuts on a push-cart.
He knew the accused and deposed that these accused persons attacked the
deceased. The evidence of these two witnesses lends ample corroboration to the
we see no grounds to interfere with the findings of the High Court.
is reported that A-1, P. Babu is dead. Learned counsel for the appellants also
confirms the same.
appeal against A-1 stands abated. So far as A- 2, G. Dayanand and A-3 M. Rajender
are concerned, the appeal is dismissed.
The Judgment of the Court was delivered by K.JAYACHANDRA REDDY, J.- The
appellant Smt Nirmal Devi, who is the sole accused in the case, has been found
guilty under Section 302 R.P.C. of J & K and sentenced to imprisonment for
life for the offence of committing the murder of her husband by administering
poison. The appeal filed by her was dismissed by the High Court. Hence the
appellant was married to the deceased Girdhari Lal about 17 or 18 years prior
to the occurrence. For 11 or 12 years they lived together. Later the appellant
went to her parental house without the consent of the husband.
she never returned to the house of the husband.
alleged that in her parental house she started leading an adulterous life which
was resented by the deceased.
13 or 14 months prior to the occurrence she joined training course of midwifery
in a hospital at Jammu and she continued her activities of
indulging in immoral acts.
15 or 16 days before the date of the occurrence, the appellant gave birth to an
illegitimate daughter in the Jammu Hospital. After that she went to her
parental house in Village Siote only 6 or 7 days before the occurrence.
the wedlock the appellant gave birth to two sons and a daughter and the
deceased husband had great affection for those children. When the accused came
to her parental house, the deceased went to see his children in the house of
his in-laws on June 16,
1975. Only the accused
and the children were present in the house. During that visit the appellant,
however, behaved well with her husband and showed great love for him. She
prepared pakoras and tea and served the same to the deceased. The deceased
after eating the pakoras and drinking the tea left for From the Judgment and
Order dated June 12, 1980 of the Jammu & Kashmir High Court in Crl. F.A.
No. 16 of 1976 395 his house. On the way he felt pain in his abdomen and
burning sensation in his throat causing restlessness. He reached the home with
great difficulty and rested on the bed. After some time he vomitted and he
asked his younger brother, PW 3 with gestures to bring a paper and a pen and in
the note-book given, the deceased could hardly write "one cup-two cups tea
half Pao Pakora" and became unconscious.
family members took him to the hospital where he expired on the same night. The
Medical Officer, Dr Surendra Singh who treated the deceased, was examined in
the committal court but could not be examined in the Sessions Court as he was
transferred. He informed the police as he suspected some foul play. SI, PW 25
took over the investigation.
was held and the postmortem was conducted and the viscera was sent to the
Chemical Examiner. The report of the Chemical Examiner showed that a heavy
concentration of arsenic was found in the viscera. A case under Section 302 R.P.C.
was registered and thereafter the witnesses were examined. After completion of
the investigation, the charge-sheet was laid.
When examined under Section 342 CrPC the appellant admitted that she had been
staying in her parental house for the last 4 or 5 years and since he found it
difficult to make both ends meet she went to her parental house and she denied
having indulged in immoral acts. The rest of the case was denied by her. The
prosecution mainly relied on the evidence of PWs 6, 7 and 8 and also on the
evidence of PW 3, the brother of the deceased who gave the note-book on which
the deceased scribbled about two cups of tea and pakoras. The said note-book
was marked as Ex. PB. The learned Sessions Judge relying on the evidence of PWs
6, 7 and 8 who spoke about the serving of the tea and pakoras and the immediate
movements of the deceased, convicted the accused.
High Court again has discussed their evidence in great detail and held that
these witnesses are independent witnesses and their statements are natural and
cogent and accordingly confirmed the conviction.
Learned counsel for the appellant submits that the witnesses were examined at a
belated stage nearly after a month or so and that the courts below erred in
relying on Ex. PB namely the writing of the deceased in the note-book and that
no report was given immediately when the deceased came to his house and
informed his mother about the discomfort in the stomach. His further submission
is that the presence of arsenic is not enough to connect the accused with the
alleged administration of poison.
noted by both the courts below, PWs 6, 7 and 8 are independent witnesses. PW 6
deposed that he was coming from the water mill with a bag full of flour and on
the way he met the deceased. He found him to be feeling very uneasy and on
being asked, the deceased told him that he had gone to his wife who had come
from Jammu and she served tea and pakoras and
immediately after taking the tea and pakoras he developed pain in the stomach
and that the tea also tasted bitter. PW 7 deposed that he knew the deceased and
on that day he went around the village to purchase a goat and 396 as he was
feeling thirsty went near the water spring. Then on the way he went in front of
the house where he saw the accused and the deceased. The deceased enquired him
as to wherefrom he came and he saw the accused serving tea along with pakoras
to the deceased and after taking the tea the deceased left the house. PW 7 also
deposed that while taking the tea, the deceased remarked that the tea was
tasting bitter. He came to know that the deceased was dead and that he informed
the father of the deceased that he has seen on that day the deceased taking tea
and eating pakoras in the house of his in-laws. PW 8 was also known to the
deceased and the accused. On the day of occurrence he went to Subedar Nanak Chand
to have some consultation in connection with the construction of a temple and
when he was passing through the village at about 7.40 a.m. he saw the deceased going towards the house of his in-laws.
PW 8 after finishing his talks with Subedar came back at 9 a.m. and again met the deceased at a distance of 150 yards from
his in-laws house. The deceased called him by gestures and told him that he had
been to his in-laws house and there his wife namely the accused served tea and pakoras
and after taking them, he was feeling burning sensation in his throat and he
was also holding his abdomen with his hands and was unable to walk. These three
witnesses have been cross-examined at length and nothing significant has been
elicited which affects their evidence. Both the courts below have discussed
their evidence in great detail and have given good reasons for accepting their
evidence. PW 2 is the mother of the deceased. She deposed that on that day the
deceased went to his in-laws house and came back at about 11.30 a.m.
immediately after coming he laid himself on the cot and could not speak. She
saw the deceased beating his chest and he made gestures to PW 3 his brother to
give a pen and a paper and he scribbled on the note-book given to him. She also
deposed about the adulterous life led by the accused.
their evidence it can be seen that the deceased immediately after eating pakoras
and taking tea fell ill.
we have the evidence of other witnesses to the effect that the deceased was
taken to the hospital where he was treated but he died. This evidence
establishes that the deceased fell ill immediately after eating pakoras and
drinking tea served by the accused. Therefore the prosecution has firmly
established that the tea and pakoras served by the accused caused illness. Then
we have the evidence of the doctor who suspected foul play and informed the
police and the viscera was sent and the Chemical Examiner found heavy
concentration of arsenic in the viscera. Therefore all the connecting links are
complete to form a chain which conclusively incriminate the accused.
criticism that there was delay in registering the case in these circumstances,
is not at all material. It was only after the Chemical Examiner's report that
it was firmly established that the deceased died due to arsenic poison.
if there was any delay in examining the witnesses that is also not material.
The question of registration of a case also would not have arisen because
nobody could at that stage predict that the illness was due to poisoning. Yet
another submission of the learned counsel is that the prosecution has not
established as to how the appellant came into 397 possession of arsenic poison.
We are of the view that this by itself does not affect the prosecution case
when the other evidence is clinching. The accused was earlier working as a
nurse and it is quite possible that she could have easily procured the arsenic.
Learned counsel further submitted that the courts below ought not to have
placed any reliance on Ex. PB, the scribbling made by the deceased to come to
the conclusion that it was the accused who served the tea and pakoras. We have
seen the judgments of both the courts below. It is only observed that Ex. PB
supports the evidence of PWs 6, 7 and 8. Even without Ex. PB their evidence is
wholly sufficient to bring home the guilt to the accused. For all these
reasons, we see no merits in this appeal. It is accordingly dismissed. The
appellant, who is on bail, shall surrender and serve out the sentence.