Satyavathi Vs. Bandala Srinivasarao & Ors  Insc 168 (15 March 2004)
Hegde & B.P. Singh. B.P.Singh, J.
appeal by special leave has been preferred by the wife of the deceased, who is
said to have been murdered by respondents 1, 2 and others on January 9, 1992 at about 6.30 p.m. The appellant has impugned the judgment and order of
the High Court acquitting the respondents 1 and 2 herein of the charge under
Section 302 IPC and convicting them instead under Sections 326 and 324 IPC
respectively. The aforesaid respondents shall be referred to hereinafter as A-1
to the appellant, the facts proved by the prosecution clearly established an
offence under Section 302 IPC and therefore, the High Court was not justified
in acquitting them of the charge under Section 302 IPC and convicting them
under Section 324 IPC respectively.
occurrence giving rise to the instant appeal is alleged to have taken place at
about 6.30 p.m. on January 9, 1992. The case of the prosecution was that six persons including
A-1 and A-2 way laid the deceased and assaulted him with knife, iron rods and
sticks as a result of which, he succumbed to his injuries in the hospital. All
the six accused A-1 to A-6 were tried by the Additional Sessions Judge, West Godavari
Division, Eluru charged of offences under Sections 148 and 302 read with
Section 149 IPC in Sessions Case No.130 of 1992.
A-2 and A-6 are brothers while accused A-3 to A-5 are alleged to be their
associates. The trial court by its judgment and order of November 21, 1994
acquitted A-3 to A-6 of the charges levelled against them and found only A-1
and A-2 (respondents herein) guilty of the offence under Section 302 IPC for
which it sentenced them to undergo imprisonment for life.
and A-2 preferred an appeal before the High Court of Judicature Andhra Pradesh
at Hyderabad being Criminal Appeal No. 238 of
1995. The High Court by its judgment and order of July 3, 1996 acquitted A-1 and A-2 of the charge under Section 302 IPC
but found them guilty of lesser offences. A-1 was found guilty of the offence
under Section 326 IPC and sentenced to four years rigorous imprisonment while
A-2 was found guilty of the offence under Section 324 IPC and sentenced to two
years rigorous imprisonment. The impugned judgment of the High Court has been
challenged by the wife of the deceased to seek the conviction of A-1 and A-2
under Section 302 IPC thereby seeking enhancement of their sentence A-1 and A-2
(respondents) on the other hand contend that the evidence on record is highly
suspicious and doubtful and does not justify their conviction at all. Since an
appeal has been preferred for enhancement of their sentence, they contend that
this Court should consider the evidence on record and direct their acquittal
since the evidence on record is unworthy of belief and does not prove the case
of the prosecution.
view of the contentions urged on behalf of the parties, we consider it
necessary to appreciate the evidence on record since the appeal is wide open
before us and not confined to the question of nature of offence or sentence.
prosecution evidence in this case rests on the testimony of three alleged eye
witnesses, namely, PWs 2, 3 and 4. The prosecution also relies upon the dying
declaration made by the deceased to PW-1 as also the statement made to the
Medical Officer, PW-13 when he was examined by her at the Narsapur Hospital. The second dying declaration forms part of the wound
certificate prepared by PW-13 and has been marked as Ex.P-10.
case of the prosecution is that on January 9, 1992 at about 6.30 p.m. the deceased and
PW-1 were returning to their village Mangaliguntapalem from Narsapur. They were
both coming on their bicycles and on the way they met Satyanarayana, PW-5. The
deceased stopped and started talking to PW-5 while PW-1 proceeded ahead. After
he had covered a distance of about 2 furlongs PW-4 G. Anil Kumar came from
behind and told him that six persons were assaulting the deceased. After giving
this information PW-4 proceeded ahead while PW-1 returned to the place of
occurrence and found the deceased in an injured condition. When he asked the
injured as to how he had sustained injuries, he was told by the deceased that
A-1, A-2, A-6 and three others had assaulted him saying that he was obstructing
them in all matters. They abused him and thereafter A-2 beat him with an iron
rod on his left fore arm and A-6 also beat with an iron rod on the left fore
arm. A-1 stabbed him with a knife on the left side of his abdomen and the other
three persons beat him with sticks on his head. A-1 again stabbed him on the
left side of his abdomen. Thereafter, PW-1 took the deceased to the Government Hospital at Narsapur on a rickshaw. According to PW-1, while the
statement of the injured was being recorded by the doctor, he died. Several
other persons had assembled at the hospital which included the local MLA and
some other political personalities. After the death of the deceased he went to
the Police Station Narsapur and lodged the FIR Ex. P-1. According to this
witness, several persons were present when the doctor recorded the statement of
the deceased. He was also present and he heard the statement given by the
deceased. The recording of the statement took about 1-1/2 hours.
further deposed that when he came to the place of occurrence he found profuse
blood on the ground. He lifted the deceased and made him walk for some distance
till he got a rickshaw and placed him upon the rickshaw. He denied the
suggestion that the deceased had not named A-6. He also denied that in the FIR
as also in his statement recorded under Section 161 Cr.P.C. he had stated that
the deceased had told before him that only A-1 and A-2 and one other unknown
person had attacked him. He was confronted with his earlier statement where it
was so recorded. He also denied the suggestion that the deceased was
unconscious by the time he reached him, and that he succumbed to his injuries
on the way to the hospital.
Dr. P. Martho was the Assistant Civil Surgeon at the Government Hospital, Narsapur,
where the deceased was brought in an injured condition at 8.45 p.m. PW-13
examined the injuries of the deceased and found the following injuries :-
Stab injury chest, on the left side, over 6 to 7th intercoastal space in the anterior
axillory line. It is spindle shape, edges clean tissues cut sharply obliquly,
directed and 1-<" x = x depth leading into the thoracic cavity.
Incised injury =" x <" x 1" depth suspected to enter into the
thoracic cavity. Present over the left side of the chest in the posterior axillary
line 7-8 inter costal space bleeding.
Lacerated injury of 1-<" x <" x = " over the head on the
frontal area in the mid line. Transversed placed 2-1/2" above the forehead
from hair line.
Contused swelling 4" x 4" over the left hand. Fracture metacarpal
Incised injury over the left hand little finger over palmaic dorsal aspect
measure 1" x <" x <" bleeding oblique.
Incised injury of <" x <" x 1/8" over the forehead in the .
Incised injury >" x <" x <" over the left elbow.
Incised injury =" x <" x <" over the left fore arm near to
wrist on the post aspect bleeding.
Fracture of left middle finger.
Incised injury over left leg."
claimed that she had recorded the statement of the deceased in the wound
certificate itself Ex.P-10. The same doctor conducted the post-mortem
examination over the dead body of the deceased and found the following injuries
on internal examination :- "Internal examination:- Incised injury
<" x <" depth opens into the left cavity oblique.
over the 7th intercoastal space. Oblique.
clear cut spindle shape. 7th rib left side fracture at the site of injury. Corresponds
to the external injury No.3. Another incised injury over the 8th inter coastal
space on the left side of the chest =" x <" x =" over the
space. It is not external into the plural cavity. It is oblique edges clear
cut. Thoracic cavity on the left side contains dark blood about 2 litre of
blood. On the right side contains about 500 cc of dark blood. Left lung present
with an incised injury =" x <" x <" over the anterior
surface over the lower lobe. Another incised injury of <" x <"
x <" on the post aspect, the same lower lobe left right lung. Opinion
as to cause of death; congested: Heart : Congested it present with an incised
injury =" x <" x =" over the ventricle area of the heart,
over the anterior aspect.
over the heart left lung communicates with the external injury No.3.
Pericardium of heart contains 100 cc of blood".
opinion, the deceased died due to injuries to his vital organs such as heart
and left lung causing hemorrhage, shock and injuries to the skull.
cross-examination, PW-13 stated that the patient was alive for 1-20 minutes in
the hospital. She asked the deceased as to what had happened and whatever was
stated by the deceased was recorded in the wound certificate. The treatment and
the recording of his statement were done simultaneously. 5 or 6 minutes after
she started the treatment of the injured, she recorded his statement which took
about 10 or 15 minutes. At the time of the recording of the statement, PW-1 was
present apart from the local MLA and other political leaders. At about 9.15 p.m. the patient was gasping for breath and became
unconscious. She further stated that having regard to the injuries sustained by
the deceased he would not be able to walk with the assistance of anyone. She
admitted that even if there was loss of 2- = litres of blood the patient will
become unconscious. She had not recorded any injury on the pericardium 100 cc
of blood was found in the pericardium sack.
opinion, the injury to the heart meant that the injured must have become
unconscious and was likely to die at any time. There was injury on the left
ventricle and such an injury makes the patient unconscious.
be noticed that so far as the statement recorded by the Medical Officer is
concerned, the deceased did not mention about the presence of A-3 to A-6 and
had only stated that he was assaulted by A-1, A-2 and one unidentified person.
now consider the evidence of the alleged eye witnesses. PW-2 was declared
hostile, as he did not support the case of the prosecution. PW-3 claimed to be
an eye witness and according to him, when he witnessed the occurrence PW-2 was
with him. According to PW-3, on the date of occurrence at about 7.00 p.m. when he and PW-2 were going to village Mangaliguntapalem
from Narsapur, they had heard the deceased crying for help. When they went near
him they saw A-2 and A-6 beating the deceased with rods while A-3 to A-5 were
assaulting him with sticks. A-1 stabbed the deceased with a knife on the left
side of his abdomen twice. Seeing the occurrence he got frightened and returned
to Narsapur. He stayed at Narsapur for two days and when he came to know
thereafter that the police had visited the village he went to the village whereafter
his statement was recorded by the police.
to this witness, it was a moonlit night and he had witnessed the occurrence from
about a distance of 10 yards. He stated that though he had no fear to go to the
police station, he neither went to the police station nor did he inform anyone
at Narsapur about the occurrence. He had stayed with his sister at Narsapur but
he did not inform any member of the family there about the occurrence.
only other witness who claimed to have witnessed the occurrence is PW-4. We
have earlier noticed the fact that after witnessing the occurrence he had
informed PW-1 about what he had seen and thereafter he had proceeded ahead. In
cross-examination, this witness admitted that he did not inform anyone in
village Mangaliguntapalem about the occurrence nor did he inform any of the
relatives of the deceased. He could not identify the accused. He did not know
A-1, A-2 and A-6. He could not say whether these accused were present at the
time of occurrence.
prosecution also examined PW- 6 and PW-9 to prove the motive for the commission
of the offence. From their evidence, it was sought to be established that the
deceased was a village elder and whenever any occurrence took place he
intervened and took active part to secure justice to the person aggrieved. When
A-1 had a quarrel with PW-6 or had assaulted PW-9, he had been instrumental in
admonishing A-1 and in lodging a report against him with the police. These two
occurrences relating to which PW-6 and PW-9 have deposed took place on
30.12.1991 and 16.9.1991. The case of the prosecution is that on account of
such interference by the deceased A-1 and his associates were aggrieved and
they, therefore, had a motive to commit the murder of the deceased.
trial court having noticed the evidence of the eye witnesses has rightly not
attached much importance to the evidence of PW-3 because this witness admitted
that he neither went to the police station nor did he inform anyone about the
occurrence for about two days. He had named all six accused as the assailants,
which does not appear to be true. So far as PW- 4 is concerned, the trial court
accepted his evidence to the effect that he had, after witnessing the
occurrence reported the matter immediately to PW-1, who returned to the place
of occurrence and thereafter took the injured to the Narsapur Hospital. Even assuming that this witness may have seen the occurrence,
his evidence does not implicate the accused because he admitted in his
deposition that he did not identify the assailants nor did he know A-1, A-2 and
A-6. He also could not say whether these accused were present at the time of
occurrence. The other thing to be noticed in the evidence of this witness is
that according to him, he had informed PW-1 that 5 or 6 persons armed with
rods, sticks and knives were assaulting the deceased which also appears to be
untrue. This witness has, therefore, implicated 5 or 6 persons whom he could
neither name nor identify. We, therefore, do not consider it safe to place
reliance upon these two witnesses, namely PWs. 3 and 4.
the two dying declarations, one made before PW-1 and the other before the medical
officer, PW-13, the trial court found that in those two statements made by the
deceased, only A-1 and A-2 had been named and the third person who participated
with them in the assault was unidentified. Having regard to these two dying
declarations, the trial court found the evidence of PW-1 unacceptable to the
extent that in his deposition he had stated that the injured had named all the
six accused. The trial court, therefore, came to the conclusion that the two
dying declarations only proved the complicity of A-1 and A-2. Accordingly it
acquitted the remaining four accused persons.
High Court on an appreciation of the evidence on record excluded the
participation of A-2 to A-6. However, it noticed that injuries found on the
person of the deceased were more in number than those mentioned by the
the participation of A-1 and A-2 could not be doubted, having regard to the
evidence on record, it was not possible to conclude that they had committed the
offence under Section 302 IPC. There was a doubt as to the role played by each
of the accused, the nature of arms used and the nature of injuries caused by
them on the deceased. The evidence on record only justified the conviction of
A-1 under Section 326 IPC and of A- 2 under Section 324 IPC.
gone through the evidence on record, we are satisfied that PW-1 cannot be
categorized as a fully reliable witness. In the FIR lodged by him soon after
the death of the deceased he had mentioned about the dying declaration made to
him by the deceased which implicated only A-1 and A-2 apart from another
unidentified person. However, in the course of deposition, he sought to
implicate four other persons. He was obviously not speaking the truth because
we find from the second dying declaration recorded by the Medical Officer that
to her also the deceased is alleged to have reported that he was assaulted by
A-1, A-2 and another unidentified person. It will, therefore, be dangerous to
rely upon the oral dying declaration alleged to have been made by the deceased
to PW-1. We shall, therefore, keep that dying declaration out of consideration.
next question is whether the second dying declaration made to the Medical
Officer can be acted upon to convict A-1 and A-2. We have found on a careful
scrutiny of the evidence on record, a few features which have remained
unexplained. According to the prosecution, only A-1 was armed with a sharp
cutting weapon such as knife and according to the prosecution evidence, A-1
stabbed the deceased twice.
we find as many as seven incised injuries on the person of the deceased. There
is only one lacerated injury and one contused swelling apart from the fracture
of the left little finger. The manner of occurrence, therefore, as alleged by
the prosecution does not fit in with the findings of the Medical Officer having
regard to seven incised injuries found on the person of the deceased.
is yet another reason which casts a serious suspicion on the second dying
declaration. According to the Medical Officer, PW-13, the injured was brought
to the hospital at about 8.45 p.m. and was alive for about 1-20 minutes
thereafter. She started the treatment of the injured in right earnest and 5 or
6 minutes thereafter she recorded the statement of the deceased which took
about 10 to 15 minutes. According to her, at 9.15 p.m. the patient started
gasping for breath and became unconscious. The picture that we get is that as
soon as the Medical Officer completed recording his statement the injured
became unconscious. He is said to have ultimately died at about 10.10 p.m. The
respondents have contended that the presence of large number of political
personalities at the hospital, having regard to the fact that the deceased was
also a person well-known in the locality makes it doubtful whether the
statement was correctly recorded or recorded at all. In fact, it is contended
that having regard to the injuries sustained by the deceased, he would not have
been in a position to make any statement even if he was alive. He must have become
unconscious soon after suffering the injuries and there was no question of his
either making a statement before PW-1 or before the Medical Officer. There is
substance in the argument advanced on behalf of A-1 and A-2. PW-13 admitted
that death of the deceased was due to injuries to vital organs such as heart
and left lung. We find from the post-mortem report that the left lung had
suffered incised injuries at two places. Apart from the injuries to the left
lung, it was also found that one of the injuries caused on the left side of the
chest had pierced the body to such an extent that the ventricle of the heart
also suffered an incised injury over the anterior aspect. It appears from the
post-mortem report that the same stab injury caused damage to the left lung as
also to the heart. This only indicates that the stab injuries were caused to
the deceased with such great force that they not only fractured one of his ribs
but also entered the thoracic cavity and injured the left lung and the
ventricle of the heart.
such injuries, we entertain serious doubts as to whether the injured could have
given two dying declarations as alleged by the prosecution, one at about 7.00
p.m. and the other at about 8.45-9.00 p.m. This is also supported by the
medical evidence on record in as much as PW-13 has herself stated that if such
an injury is caused to the heart, the injured would become unconscious
immediately. It, therefore, appears to us that after suffering the injuries the
deceased must have become unconscious immediately. There was, therefore, no
question of his making a dying declaration to anyone thereafter. We also notice
the fact that according to PW-1 after making a dying declaration, the accused
walked a few steps with him with his help till such time they got a rickshaw
which carried them to the hospital. According to the Medical Officer, PW-13, a
person with such injuries could not walk at all even with the help of someone
else. Having regard to the sever nature of injuries and the vital organs
involved which suffered incised injuries such as heart and the lungs, we
entertain a serious doubt about the recording of the second dying declaration
by the Medical Officer almost two hours after the occurrence.
this state of the evidence on record, we are not satisfied that the prosecution
has proved its case beyond reasonable doubt. A-1 and A-2 (respondents herein)
are entitled to the benefit of doubt. We, therefore, dismiss this appeal but
having regard to our findings, we acquit the respondents of the charges levelled