Srinivasulu @ Mooga Subbaiah Vs. State of Andhra Pradesh  Insc 306 (26 July 2002)
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
appeal by special leave preferred by the sole accused-appellant lays challenge
to his conviction under Sections 302 and 397 IPC by Additional Sessions Judge, Ongole,
maintained in appeal by the High Court. The sentence passed on the appellant is
imprisonment for life with a fine of Rs.500/-, in default to suffer simple
imprisonment for one year, for offence under Section 302 IPC and rigorous
imprisonment for seven years for offence under Section 397 IPC.
prosecution case found proved by the Trial Court and the High Court is that the
deceased Venkayamma @ Rathamma, age about 70 years, resident of village Edugundlapadu
(P.S. Maddipadu) was collecting the branches of trees at about 10 a.m. on
8.7.1994 in the garden known as 'Subabul Garden' belonging to PW4. The accused who
was employed as watchman by the owner of the garden came to the garden and
found the deceased alone. She was wearing bangles which assuming to be of gold
were asked for by the accused which the deceased refused to give saying that
the same were of brass.
the accused demanded the pair of ear studs which the deceased was wearing. She
refused to part with the ear studs.
accused picked up a piece of stone and with it hit on the head of the deceased
as a result of which she fell down. The accused took the sickle from the
deceased and inflicted injuries on the person of the deceased with sickle. He
also cut the ear lobes of the deceased with the sickle so as to remove the ear
studs. In this process the clothes of the accused got stained with blood. The
accused then left the garden. While leaving the garden he was noticed by PW2,
another watchman of the garden, and PW3, a shepherd. At the same time PWs2 and
3 heard some noise emanating from inside the garden whereupon they entered the
garden and found the deceased lying injured.
questioning, the injured narrated the incident as had taken place with her and
naming the accused-appellant. PW1 is the sister of the deceased living in the
same village who also rushed to the place of the incident upon learning about
the incident. To her also the deceased narrated what had happened to her. The
deceased named the accused to PW1 also. The injured was removed to government
hospital, Ongole and admitted for treatment. PW10, the duty doctor found the
following injuries on the person of Venkayamma :
Incised wound 1" x ". 3" below right ear. Blood oozing from it.
injury 1" x " in lower part of both ears. Ear lobes lost.
contusion 6" x 4" right side of the neck.
contusion 2" x 2" on right side of the head 4" above right ear.
Contusion 2" x 1" at left eye.
when examined by the doctor, was unconscious. She was unable to speak and was
not moving her left upper and lower limbs. Two days thereafter she died. The
post-mortem examination confirmed a number of injuries having been suffered by
the deceased internally consequent upon the external injuries. In the opinion
of the doctor performing post- mortem, contusions on the person of Venkayamma
could have been caused by stone while incised wound and cut injury could have
been caused by sickle. The head injury was the cause of death.
duty head constable of Ongole police station, having learnt of the incident,
reached the hospital soon after the admission of the injured thereat. As the
injured was not in a position to give a statement, the head constable recorded
the statement of PW1 which was sent to the police station and registered as
first information report of the incident on 8.7.1994 at 7 p.m.. Initially an
offence under Section 394 IPC was registered which on the death of the injured
was converted into one under Sections 397 and 302 of IPC.
16.7.1994, at about 5 p.m., PW15, the sub-inspector arrested the accused in the
presence of PW7 and PW8. A pair of ear studs was recovered from the accused
which was seized and later on identified by PW1 as belonging to her sister. Upon
an information given by the accused a sickle and a shirt belonging to the
accused, both stained with human blood were recovered.
accused also pointed out a piece of stone, at the place of incident, which too
was stained with human blood and was allegedly used in inflicting injuries to
the victim. It was seized.
piece of stone, the sickle and the shirt were all found to be stained with
human blood by the forensic science laboratory.
Trial Court and the High Court have convicted the accused-appellant by placing
reliance on the dying-declaration made by the victim to the PWs1, 2 and 3 as
also on recovery of pair of ear studs, satisfactorily identified by PW1 as
belonging to and worn by the deceased at the time of the incident, and the
recovery of blood-stained sickle and shirt.
find no reason to disbelieve the dying declaration made by the deceased to the
witnesses PW1, 2 and 3. They are all residents of the same village and are
natural witnesses to the dying declaration made by the deceased. No reason is
assigned, not even suggested to any of the three witnesses, as to why at all
any of them would tell a lie and attribute falsely a dying declaration to the
deceased implicating the accused-appellant.
each of the three witnesses has been cross-examined but there is nothing
brought out in their statements to shake their veracity.
submitted by Ms. Nanita Sharma, the learned counsel for the appellant that for
several reasons the dying declaration cannot be believed. She submitted that looking
to the nature of the injuries suffered by the deceased possibly she could not
have spoken and must have become unconscious instantaneously. However, no such
suggestion has been made to any of the witnesses including the two doctors who
respectively conducted the medico-legal examination and post- mortem
examination of the victim. On the contrary the three eye-witnesses have
positively stated that the deceased was speaking when they had met her soon
after the incident. The victim had died two days after the incident. We cannot
in the face of this positive evidence just assume that the injured must have
become unconscious and speechless because of the injuries and discard on such
assumption the dying declaration deposed to by independent witnesses corroborated
by the promptly lodged FIR.
it was submitted by the learned counsel for the appellant that according to PW1
she had first gone to the police station where the victim had made a report of
the incident and then they had proceeded to the hospital. An adverse inference
ought to be drawn against the prosecution for withholding the FIR lodged by the
victim herself. Such argument was advanced before the Trial Court and the High
Court also. It has been pointed out by the Trial Court that the witness is a
rustic village woman and such a statement appears to have been made by her in a
state of confusion. If it was so as is being suggested then the police officers
who have appeared as witnesses, especially the one who has proved the FIR,
should have been asked whether there was any report of the incident, then the
one originating in the statement of PW1, made at the police station and that
too by the injured herself. No question was asked nor any suggestion made to
the witnesses on the lines taken in the argument of the learned counsel.
also submitted by Ms. Sharma, the learned counsel for the appellant that PW1
states to have been informed of the incident by some children of the village
but those children were not examined. We do not think it is necessary that the
children, without regard to their age or description being available, can be
held to be such witnesses from whose non-examination an adverse inference can
be drawn against the prosecution. At best the children were such as had learnt
about some happening in the garden of PW4 and they had rushed to tell this to PW1.
is relevant and material is the dying declaration made by the victim to PW1 and
in that regard the children were of no relevance.
opinion, the dying declaration made by the deceased, which finds amply proved
by the testimony of PWs1, 2 and 3, is by itself enough to sustain the
conviction of the accused-appellant.
ear lobes of Venkayamma were cut. PW1 proves that the deceased Venkayamma used
to wear ear studs which were stolen away in the incident. So far as the
recovery from the accused is concerned the witnesses to the recovery namely, PWs
7 and 8 have not supported the prosecution case and therefore the recovery is
rendered doubtful. However, the factum of ear studs having been removed from
the person of the victim by cutting her ear lobes is proved. The cause of death
of the victim is inseparably connected with the removal of ear studs, and
therefore, the commission of the offences under Sections 302 and 397 of IPC is
also inextricably inter-connected in the facts and circumstances of the case.
It can safely be held that the accused was responsible for causing injuries to Venkayamma
and was also responsible for removing the ear studs. We do not consider it
necessary to deal with evidence relating to recovery of blood-stained shirt and
blood-stained stone and sickle with which the injuries are said to have been
caused to the victim.
find no infirmity in the conviction of the accused- appellant and the sentences
passed thereon which are maintained and the appeal is dismissed.