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2006 DIGILAW 1372 (AP)

UGGIRALA SURI BABU v. STATE OF A. P.

2006-11-07

T.CH.SURYA RAO

body2006
( 1 ) THE conviction and sentence inflicted upon the appellant by the learned Sessions Judge, East Godavari, rajahmundry by his judgment, dated 20. 6. 2000, in S. C. No. 259 of 1998, are being sought to be assailed in the instant appeal. ( 2 ) THE appellant is the sole accused. The gravamen of the charge against him was that on 9. 5. 1997, at about 6. 30 p. m. , at the house of one Chittoori Veerraju @ veerababu at Bhadravaram Village, he did commit murder by causing the death of one Pulimanthula Surya Rao (deceased) by hacking him with a knife on both of his legs and shoulders, which resulted in his death on 20. 5. 1997 at about 5. 00 p. m. , while he was in the Government Hospital at prathipadu and that thereby he committed an offence punishable under Section 302. P. C. The appellant abjured his guilt and denied of having committed any such offence. During the course of trial, the prosecution examined as many as thirteen witnesses and got marked Exs. P-1 to P-28 and M. Os. 1 to 4. None was examined on the side of the accused and no documents were marked on his behalf. ( 3 ) P. W. 1 is the son-in-law of the deceased. P. W. 5 is the brother and P. W. 6 is the widow of the deceased. P. Ws. 2 to 4 are other eye-witnesses to the occurrence. ( 4 ) THE case of the prosecution was that on the date of occurrence, P. W. 1 and the deceased were returning home from the fields after completing the work, on a bullock cart. P. W. 1 was driving the cart, while the deceased was standing on the cart behind him. When the cart reached the place near the high school building in the village, the accused came running from the side and asked the deceased to give the share of his money for the sale of coloured stones. When the deceased replied that there was no need to pay money and nothing was due to him, the accused grew wild and hacked the deceased with knife (M. O. 1) on the calf-muscle of the right leg. When the deceased fell down from the cart, again the accused hacked on the left leg calf-muscle and another blow was given on the left ankle. When the deceased fell down from the cart, again the accused hacked on the left leg calf-muscle and another blow was given on the left ankle. When P. W. 1 made an attempt to catch hold of the accused, he ran away from that place. P. Ws. 2, 3 and 4 stated to have witnessed the occurrence. P. W. 5 heard a huge noise when he had gone to the shop of P. W. 3 to purchase cigar and then when he came back to the place, he saw his brother, the deceased, was hacked and lying on the ground and the accused ran away from that place. He observed bleeding injuries sustained by the deceased on the legs and the presence of p. W. 1 at the scene. ( 5 ) P. W. 6, the wife of the deceased, too heard huge noise from near the house of P. W. 3. After hearing the cries of her husband, she proceeded towards that site and saw the accused running away with curved knife in his hands. She then noticed the injuries on the legs and shoulders of her husband and found the presence of p. W. 1 and P. W 5 at the scene. With the help of the persons there, the deceased was taken on the same cart to Yeleswaram police Station. They reached the Police station at about 8. 00 p. m. P. W. 11, the Sub-Inspector of Police, recorded the statement of the deceased under Ex. P-18 and then registered the case as Crime No. 22 of 1997 under Section 324. P. C. and issued Ex. P19, f.. R. He then sent the injured to the Government Hospital, Prathipadu along with memo accompanied by P. C. 1764. Thereafter, P. W. 11 took up investigation. He proceeded to the Government Hospital, whereat he recorded the statement of the deceased under Ex. P-20 under Section 161 cr. P. C. In the presence of P. W. 7 and another mediator, he recovered the blood-stained clothes (M. O. 2) from the deceased under the cover of Ex. P-6 mediator's report. He then left the hospital for the village on the same day night and halted there. On the next day, that was on 10. 5. 1997, he made an observation at the scene at 7. P-6 mediator's report. He then left the hospital for the village on the same day night and halted there. On the next day, that was on 10. 5. 1997, he made an observation at the scene at 7. 00 a. m. , with P. W. 7 and another and recovered blood-stained and control earth under the cover of Ex. P-7 observation report. He prepared ex. P-21 rough sketch of the scene of offence. In the mean while, P. W. 10, the doctor, examined the deceased at 10. 00 p. m. on 9. 5. 1997 and found the following four injuries: (1) A cut injury on the right shoulder extending from the lateral end of the clavicle to posteriorly size 8 cms edges were clean cut and bone deep. Red in colour. Bleeding present. (2) A cut injury on the medial aspect of the left leg on its upper 1/3rd. Size of the injury is 10 x 5 cm x muscle deep. (3) A cut injury on the medial aspect of the right leg in its upper 1/3rd size 10 x 10 cm x muscle deep. Red in colour. Bleeding present. (4) A cut injury on the laterial aspect of the left in the lower 1/3rd size 10 x 3 cm x muscle deep. Red in colour. Bleeding present. He opined that Injury No. 4 was grievous and the remaining injuries were simple in nature and could have been caused with the weapon like M. O. 1. He issued Ex. P-16 wound certificate. ( 6 ) P. W. 11 continued his investigation and recorded statements of the witnesses on 10. 5. 1997 in the village and handed over the subsequent investigation to the Head constable, as he proceeded on leave. P. W. 12, on 12. 5. 1997 at about 12. 00 noon, arrested the accused near Anjaneya Swamy temple in the presence of P. W. 8 and another mediator. The accused was stated to have made a statement before the head Constable under Ex-P9, pursuant to which, he led them to his house and brought m. O. 1 knife from inside his house and produced the same before them. P. W. 12 recovered M. O. 1 knife under the cover of ex. P-10 mediator's report. The accused was arrested and produced before the judicial Magistrate of I Class, Prathipadu on the same day for remand. P. W. 12 recovered M. O. 1 knife under the cover of ex. P-10 mediator's report. The accused was arrested and produced before the judicial Magistrate of I Class, Prathipadu on the same day for remand. ( 7 ) WHILE undergoing treatment in the hospital, the deceased died on 20. 5. 1997. Upon receiving Ex. P-16 death intimation from the Hospital, P. W. 12 altered the crime from Sections 324 to 302. P. C. and issued ex. P-22 F.. R. He again visited the scene of offence in the presence of P. W. 8 and made an observation of the same, as evidenced by Ex. P-7 observation report. He recovered the blood-stained and control earth under M. Os. 3 and 4. The subsequent investigation was taken up by P. W. 13, the inspector of Police, who conducted inquest over the dead body of the deceased on 21. 5. 1997 and got the inquest report drafted there. He then gave the necessary requisition to the Doctor for conducting post-mortem examination over the dead body of the deceased. P. W. 10 conducted post-mortem examination and found that the deceased died due to pulmonary oedema due to immobilization. He further found that the injuries were not fatal and they were not sufficient enough to cause the death in ordinary course. He issued Ex. P-17 post-mortem certificate. P. W. 13 eventually, after completing the investigation, laid the charge-sheet against the accused. ( 8 ) AFTER the evidence of the prosecution was completed and when the accused was examined under Section 313 cr. P. C. , he denied all the incriminating material put to him in the course of examination. When called upon to enter upon his defence, he stated that he had no witnesses to examine. ( 9 ) AS aforesaid, the prosecution examined as many as thirteen witnesses. Of them, P. Ws. 1 to 5 were the eye-witnesses to the occurrence. P. W. 6, who is the wife of the deceased, was the circumstantial witness. P. Ws. 7 and 8 are the mediators for observation of the scene of occurrence. P. W. 9 is the photographer. P. W. 10 is the Doctor, who examined the deceased and issued wound certificate and who later conducted the post-mortem examination when the deceased died in the hospital while undergoing treatment. P. Ws. 7 and 8 are the mediators for observation of the scene of occurrence. P. W. 9 is the photographer. P. W. 10 is the Doctor, who examined the deceased and issued wound certificate and who later conducted the post-mortem examination when the deceased died in the hospital while undergoing treatment. P. W. 11 is the Sub-Inspector of Police, who recorded the statement of the deceased under Ex. P-18, examined the deceased and recorded Ex. P-20 statement, registered the crime and conducted investigation. P. W. 12 is the Head Constable, who effected the arrest of the accused and recovered M. O. 1 knife. P. W. 13 is the Inspector of Police, who eventually laid the charge-sheet against the deceased. ( 10 ) ALTHOUGH the prosecution examined as many as five witnesses as eye-witnesses to the occurrence. P. Ws. 2 to 4 did not support the case of the prosecution and had shown volte-faces. P. W. 1 alone is the eye-witness, on whose testimony the prosecution sought to rely upon. Besides the direct evidence of P. W. 1, the prosecution further sought to rely upon the circumstantial evidence in the nature of seeing the accused running from the scene by the evidence of p. Ws. 5 and 6 and the circumstance of recovery of M. O. 1 knife by the evidence of p. W. 2, besides seeking to place squarely the reliance upon Exs. P-18 and P-20, the so-called dying declarations of the deceased. ( 11 ) THE Court below doubted the presence of P. W. 1 at the scene of offence for the reasons recorded inter alia in its judgment. At the conclusion of the trial eventually the Court below found the accused guilty of the offence punishable under Section 324 of. P. C. from the circumstantial evidence of P. Ws. 5, 6, recovery of M. O. 1 knife, and the two statements of the deceased under Exs. P-18 and P-20. At the same time, the Court below held that exs. P-18 and P-20 are not admissible in evidence as dying declarations of the deceased, yet they were admissible in evidence in view of the fact that the maker of the statements died. ( 12 ) THE learned Counsel for the appellant seeks to contend that Exs. P-18 and P-20. At the same time, the Court below held that exs. P-18 and P-20 are not admissible in evidence as dying declarations of the deceased, yet they were admissible in evidence in view of the fact that the maker of the statements died. ( 12 ) THE learned Counsel for the appellant seeks to contend that Exs. P-18 and P-20 are not available to the case of the prosecution since the incriminating material contained therein inter alia having not been put to the accused when he was examined under Section 313 Cr. P. C. , therefore, there had been no opportunity for the accused to explain the same. The learned Counsel further represents that even the evidence of P. Ws. 5 and 6 cannot be believed having regard to their conduct and therefore, there is no legal evidence to connect the accused with the crime. ( 13 ) THE presence of P. W. 1, although has been doubted by the learned Sessions judge, the record discloses ample circumstances from which it can be discerned that his presence was assured. Even P. Ws. 5 and 6 did speak about the presence of p. W. 1 at the scene. Apart from this, it was the case of P. W. 1 that he accompanied the deceased while he was going on a bullock cart from the fields and he was driving the bullock cart. It was he again drove the bullock cart taking the injured to the Government Hospital. If not P. W. 1, there must have been somebody else, who had accompanied the deceased and who had driven the bullock cart and it was nobody's case that other than P. W. 1, there was somebody else. Apart from this probability factor, the cogent evidence of p. Ws. 5 and 6, who deposed about the presence of P. W. 1 at the scene, buttresses the probability. However, the learned sessions Judge, oblivious of these glaring aspects, had taken a different view. Even if the evidence of P. W. 1 is eschewed from consideration, there remains on record the circumstantial evidence, on which the prosecution places reliance. Although P. W. 5 has not supported the case of prosecution as a whole and has to be cross-examined by the learned Public Prosecutor, any part of his statement can be taken into consideration by the Court is the settled law. Although P. W. 5 has not supported the case of prosecution as a whole and has to be cross-examined by the learned Public Prosecutor, any part of his statement can be taken into consideration by the Court is the settled law. He categorically deposed that he saw the accused running away from the place when he came back to the scene of offence after hearing a noise. The evidence of p. W. 6, the widow was also to the same effect. In addition thereto, she had stated that she saw the accused running with m. O. 1 knife. There has been no time gap in between the actual commission of offence and the circumstance of the accused running with M. O. 1 knife from the scene. This circumstance, if believed, even the absence of eye-witness, in my considered view would squarely connect the accused to the crime. ( 14 ) THERE has been ample and overwhelming evidence to show that the deceased sustained the injuries at the scene of offence whereat blood stains were noticed by the Investigating Officer and recovered. By the medical evidence from P. W. 10, the injuries were proved and even there has been no gain saying about the offence. The only endeavour shall be to know who the offender is. Added to it, the recovery of m. O. 1 knife, upon which human blood was noticed by the Chemical Examiner in the forensic Science Laboratory. As per its report, the recovery cannot be doubted having regard to the evidence of P. W. 12 coupled with the testimony of P. W. 8. No circumstances are emanating from the record, which can compel the Court to disbelieve the factum of recovery, which is from the house of the accused. This circumstance would further buttress the case of the prosecution. ( 15 ) MUCH arguments have been addressed on Exs. P-18 and P-20. The endeavour seems to be that they shall be eschewed from consideration inasmuch as they cannot be considered as dying declarations since the death of the deceased was not due to injuries received by him in the alleged occurrence. The contention of the learned Counsel appearing for the accused seems to have been accepted by the Court below having regard to the decision of the Gujarat High Court in Hathabhai jethabhai and others v. State of Gujarat, (1994) CCR 1555 (DB ). The contention of the learned Counsel appearing for the accused seems to have been accepted by the Court below having regard to the decision of the Gujarat High Court in Hathabhai jethabhai and others v. State of Gujarat, (1994) CCR 1555 (DB ). As can be seen from the evidence of P. W. 10 the death of the deceased was not due to direct result of the injuries he sustained but on account of the respiratory failure due to pulmonary oedema. Having regard to this clear medical evidence, the evidentiary value of Exs. P-18 and P-20 becomes germane for consideration. The learned Sessions Judge who eventually accepted the contention of the accused that exs. P-18 and P-20 could not be considered as dying declarations of the deceased, nonetheless proceeded to consider them as admissible pieces of evidence as in his perception Exs. P-18 and P-20 are the statements of a dead person. Perhaps, the learned Sessions Judge presumably of the view that any statement made by a dead person is relevant under Section 32 of the indian Evidence Act (for brevity 'the Act'), more particularly sub-section (1) thereof. Section 32 of the Act insofar as is relevant for the present purposes may be excerpted hereunder thus: "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. , is relevantstatements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense, which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases, (1) When it relates to cause of death: when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question. " ( 16 ) A perusal of the said provision shows that the statements made either in verbal or in writing of relevant facts, made by a person who is dead, who cannot be found, Who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense, become relevant only when they are covered by one or the other of 8 cases enumerated inter alia in Section 32. It is not the spirit of the section that any statement made by a person who is dead, who cannot be found, who has become incapable of giving evidence, and whose attendance cannot be procured without an amount of delay or expense, when such statement or declaration is not in any way connected to any of the 8 instances given under section 32 namely, (1) declarations relating to cause of death; (2) declarations made in the course of business or duty; (3) declarations against interest; (4) declarations as to public rights; (5) declarations as to pedigree; (6) and (7) declarations by testators in their wills; and (8) declarations by several persons expressing feelings. If the statement made by the deceased person does not come within any of the clauses of Section 32, the document is not admissible. The view expressed by the learned Sessions Judge, that Exs. P-18 and P-20 are nonetheless admissible since they are the statements of. a dead person, while coming to a categorical conclusion that they are not admissible as dying declarations of the deceased, for the above reasons, appears to be not correct. Although the death was not the direct result of the injuries sustained by the deceased in this case, if the statement of the deceased relates to any of the circumstances of the transaction which eventually resulted in his death, sub-section (1) of Section 32 will be attracted. When the statement is made by a person as to any of the circumstances of a transaction which resulted in his death, such a statement is also relevant under sub-section (1) of section 32. When the statement is made by a person as to any of the circumstances of a transaction which resulted in his death, such a statement is also relevant under sub-section (1) of section 32. The collocation of the words in section 32 (1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death". There need not necessarily be a direct nexus between '"circumstances" and "death". It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32 (1) of the Act. In other words, it is not necessary that such circumstances should be proximate, for, even, a distant circumstance can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in death. Two of the Judgments of the Apex Court need be considered in this case. In Sharad Birdhicdhand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court held that the expression "any of the circumstances of the transaction which resulted in his death" is wider in scope than the expression "the cause of his death". In Para 21, the Apex Court summarized the law thus: "21. Thus, from a review of the authorities mentioned above and the clear language of section 32 (1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has though it necessary to widen the sphere of section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for a simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. " ( 17 ) IN Rattan Singh v. State of himachal Pradesh, 1997 (1) ALD (Crl.) 410 (SC) = AIR 1997 SC 768 , the Apex court following its former Judgment reiterated the same principle. ( 18 ) FROM the matrix of the instant case, it is obvious that the deceased sustained injuries. Admittedly, while undergoing treatment in the hospital for the injuries he sustained, eventually he died. The death may be due to pulmonary oedema that seems to have developed during the course while he was in the hospital. That cannot be an independent cause by itself totally disassociated with or unconnected with the transaction in which he sustained injuries and had been undergoing treatment for those injuries. From the matrix of the case, it is not reasonably possible to hold that the transaction in which the deceased sustained injuries and his eventual death for a different complication developed during the course of his treatment shall have to be segregated and viewed separately. The approach of the Court below, in that view of the matter, is not correct. Exs. P-18 and P-20 although cannot be considered as dying declarations of the deceased, yet they can be considered as statements of the deceased as to any of the circumstances of the transaction which resulted in his death. ( 19 ) ALL this seems to be mere academic, for, the case eventually culminated in conviction for a lesser offence. Had the evidence been properly appreciated and exs. P-18 and P-20 been considered in proper perspective, the end product would have been different. The problem is further compounded since the State has not chosen to file any appeal against the acquittal from the charge under Section 302 of the. P. C. The question that boils down in the instant appeal is as to whether the conviction and sentence passed against the appellant are to be sustained or not. ( 20 ) THE admissibility of Exs. P-18 and p-20 is one aspect and probative value thereof is an altogether different aspect. P. C. The question that boils down in the instant appeal is as to whether the conviction and sentence passed against the appellant are to be sustained or not. ( 20 ) THE admissibility of Exs. P-18 and p-20 is one aspect and probative value thereof is an altogether different aspect. From the discussion hereinabove made, it is confined to the admissibility aspect of exs. P-18 and P-20. Both the statements were recorded by P. W. 11, the Sub-Inspector of Police. While the crime was registered on Exs. P-18, the latter was recorded during the course of investigation under section 161 of the Cr. P. C. The learned sessions Judge has not considered the probative value of these documents having due regard to the circumstances under which they came to be recorded by the person who purported to have recorded the same. Any endeavour at this stage becomes a futile effort except for academic interest. The eventual conclusion of the learned Sessions Judge cannot be altered since the State, as aforesaid, has not filed any appeal against the order of acquittal. ( 21 ) IN view of the circumstantial evidence, as discussed hereinabove, which shows that the accused was found running from the scene arming himself with M. O. 1 knife soon after the occurrence and the circumstance of recovery of M. O. 1 knife are, in my considered view, sufficient enough to connect the accused to the crime. ( 22 ) I, therefore, see no compelling reasons to differ with the eventual conclusion of the learned Sessions Judge that the appellant was guilty of the offence punishable under Section 324. P. C. ( 23 ) AS regards the sentence, sentence of two years rigorous imprisonment in no terms can be considered as disproportionate to the gravity of the offence. The contention of the learned Counsel that the appellant was aged 30 years and has a family to maintain are not at all mitigating circumstances having regard to the nature of the crime and the manner in which the crime has been perpetrated and the eventual result of the crime. I, therefore, see nothing to interfere with even the sentence part. ( 24 ) IN the result, the appeal fails and is dismissed. The bail bonds of the accused in S. C. No. 259 of 1998 on the file of the sessions Judge, East Godavari at rajahmundry, stands cancelled. I, therefore, see nothing to interfere with even the sentence part. ( 24 ) IN the result, the appeal fails and is dismissed. The bail bonds of the accused in S. C. No. 259 of 1998 on the file of the sessions Judge, East Godavari at rajahmundry, stands cancelled. He shall surrender to serve the balance of the sentence, after giving credit to the period that he has undergone, if any as an under-trial prisoner. .