Navakoti
Veera Raghavulu Vs. State of Andhra Pradesh [1997] INSC 42 (15 January 1997)
M.K.
MUKHERJEE, B.N. KIRPAL
ACT:
HEADNOTE:
M.K.
MUKHERJEE, J.
This
appeal is directed against the judgment dated June 11, 1991 rendered by Andhra Pradesh High Court in Criminal Appeal
No. 624 of 1990 whereby, it reversed the acquittal of the appellant of the
charge under Section 302 of the Indian Penal Code and convicted and sentenced
him thereunder.
The
deceased Navakoti Gagarin was the son of the appellant and at the time of his
death was aged about 21 years. In his childhood he had become a victim of polio
and hence he used to move around in a tri-cycle. According to the prosecution
case his parents used to illtreat and neglect him for his physical disability
and their such inhuman attitude towards their own son prompted his maternal
grand-father Ingilala Polaiah to take him to his house, where he (Polaiah) use
to stay with his divorced sister Polamma, and adopt him as his son. In the year
1980 Polaiah died leaving behind 40 ankanama of non agricultural land and a
house. With a view to grabbing the above properties which were inherited and
looked after by the deceased the appellant persuaded him to come to his village
Manubolu and stay with him but a few days later he returned to his earlier
home.
It is
alleged by the prosecution that on October 26, 1988 at or about 10.30 P.M. when the deceased was returning home from Muthyalapet
Centre of Gudur town on his tri-cycle the appellant accosted him on the lane by
the side of Pollaluru Kotareddy Mica Factory. He then poured kerosene oil on
the deceased and set him on fire. The deceased raised a cry and hearing the
same Krishnaiah (P.W.1), Seshagiri (P.W.2), Murlikrishna (P.W.3) and Parvate Ramanaiah
(P.W.4), who were nearby, rushed to his rescue. In the meantime the appellant
had managed to flee away.
The
deceased was immediately removed to the Headquarters Hospital, Nollore where Dr. M.C. Narasimhulu
(P.W.9) examined him at 11.45
P.M. To P.W.9 the
deceased disclosed that his father had set him on fire. After recording the
statement of the deceased in the wound certificate (Ex. P.11), P.W.9 sent
intimation to Gudur Town Police Station as also to the local Munsiff-Magistrate
to record his dying declaration. On receipt of the intimation Sk. Allabakash
(P.W.12), Head Constable of the Police Station reached the hospital at 12.15
A.M. and recorded the statement of the deceased (Ex. P.16). Following P.W. 12, Shri
N.V.S. Talpasayve (P.W.8) the District Munsiff of Gudur reached the hospital at
1.10 A.M. and recorded his (the deceased's)
statement in presence of P.W.9 (Ext. P.10). On the following morning the
deceased succumbed to his injuries.
The
appellant denied the accusation levelled against him and asserted that he was
falsely implicated at the instance of Sundaram (P.W.5), with whom he had
enmity.
To
sustain the charge levelled against the appellant the prosecution relied mainly
upon the above three recorded dying declarations of the deceased. Besides, the
prosecution examined P.Ws. 1 to 4 to prove that they reached the site
immediately after the incident took place and heard the utterances of the
deceased implicating the appellant.
On
perusal of the judgments of the learned Courts below we find that both the
Courts held that all the three dying declarations, namely Ext.P.11, Ext. P16
and Ext. P.10 were made by the deceased while he was in for that matter, the
prosecution case on the grounds that it signally filed to prove the motive
ascribed to the appellant for committing the murder of his own son, that the
dying declarations were made by the deceased at the instance and instigation of
Sundaram (P.W.5), a distant relation of the deceased, and that there was no
evidence to corroborate the dying declarations. In reversing the above findings
the High Court observed that there was not an iota of material on record from
which the trial Court could infer that the dying declarations were made at the
dictates of P.W.5 and held that the deceased had no reason to falsely implicate
his father. According to the High Court all the three dying declarations were
made at the earliest opportunity and the declarations clearly proved that the
appellant committed the murder of his son owing to dispute over property.
This
being a statutory appeal we have carefully gone through the entire evidence on
record. The unimpeachable evidence of P.W.9 and P.W.8 clearly proves that the
deceased made his dying declarations before them in a fit state of mind and
they were properly recorded. While in his statement before the doctor (P.W.9),
which was recorded in the wound certificate, (Ext. P.11), the deceased stated
that his father set him on fire, in his statement before the Munsiff (P.W.8)
which was recorded in a question and answer form, and in presence of P.W.9, he
further stated that there was a dispute between him and his father over
property and out of that enmity he set him on fire. On the face of such a
statement the finding of the trial Court that the prosecution failed to prove
any motive for he murder must be said to be patently wrong. The other finding
of the trial Court that the dying declaration was the outcome of tutoring by
P.W.5 is also perverse for, as rightly observed by the High Court, there is no
material whatsoever in support thereof. It is, of course, true that P.W.5
accompanied the deceased to the hospital but that fact by itself does no
indicate that be influenced the deceased to falsely implicate his father.
Indeed, in cross examination of P.W.5 no suggestion to that effect was even put
to him.
While
on this point we cannot also lose sight of the evidence of P.Ws. 1, 2, 3 and 4
which goes a long way to support the prosecution case but was not at all
considered by the learned Courts below. At the material time P.W.2 was an
employee of the tyre shop of P.W.1 which is near Raghava Reddy Lane, where the deceased was set on fire. He testified
that when he was working in the shop he heard cries `catch hold of my father,
catch hold of my father' from that lane.
Accompanied
by P.W.1 he rushed there and found Gagarin (the deceased) in flames. After
extinguishing the fire by a gunny bag and a mat when they questioned the boy he
told them that his father had pushed him down from the tri-cycle, poured
kerosene oil and set him on fire. P.W.1, however, did not fully support the
version of P.W.2 for he corroborated him only to the extent that he along with Seshagiri
(P.W.2) went to Raghava Reddy lane and found a boy burning in flames and crying
`catch hold of my father, catch hold of my father'.
He was
then declared hostile by the prosecution and cross examined as during
investigation he claimed to have heard the deceased also saying that his father
had set him on fire. P.W.3, who was working as a clerk in the office of the
Lorry Owner's Association, Gudur, which was at a distance of 12 yards from Raghava
Reddy Lane, stated that he heard some cries `save me, save me' from the lane.
He was also declared hostile as he resiled from his statement recorded under
Section 161 Dr. P.C. wherein he spoke about the dying declaration of the
deceased also. The last witness examined on this point, namely, P.W.4, deposed
that while he was in his tractor repairing shop saw a boy being taken to the
hospital in a rickshaw. P.W.4 was also declared hostile.
Since
all the above four witnesses were, at the material time, in their respective
working places, they were the most natural and probable witnesses and we do not
find any reason to disbelieve their evidence, particularly, that of P.W.2.
The
evidence of P.W.2 along with the evidence of the above three witnesses clearly
proves that the deceased was set on fire in the lane and that he made a
statement that his father was the culprit. The dying declaration so made by the
deceased at the spot immediately after the occurrence also demonstrates that
the finding of the trial Court that the three dying declarations were the
result of tutoring by interested party is wholly untenable.
For
the foregoing discussion we do not find any merit in this appeal. It is
accordingly dismissed.
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