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2008 DIGILAW 433 (AP)

Porapu Gopal v. State of A. P.

2008-06-29

G.CHANDRAIAH, T.MEENA KUMARI

body2008
JUDGMENT (Per Smt. T. Meena Kumari, J.) This appeal is directed against the judgment of he learned II Additional Sessions Judge (Fast Track Court) at Parvathipuram in S.C. No. 120 of2003, dated 22-1-2005, whereunder the learned Judge convicted the appellant accused under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for one month. 2. The brief facts of the prosecution story is that the accused and the deceased Mariya Dasu and Adinarayana are brothers. P .W. 8 is the wife the said Audinarayana and subsequent to the death of her husband, accused developed illegal intimacy with her. Then the deceased Mariya Das warned the accused. The accused bore grudge against the deceased. While so, on the intervening night of 18/19-5-2003, the accused alleged to have stabbed the deceased with a knife in the stomach. On hearing the cries of the deceased, P.W. 1 rushed to the scene of offence and thereafter went to the Mandai President and telephoned to the, police. Subsequently, the police came to the house of P.W. 8 and they sent the deceased to Government Hospital, Parvathipuram, where he was referred to K.G. Hospital, Visakhapatnam. P.W. 16, the investigating Officer thereafter recorded the statement of the deceased and on the basis of the said statement, he registered a case in Crime No. 33 of 2003 under Section 307 and 324 of IPC. However, the deceased subsequently died while undergoing treatment. However, on receipt of death intimation, the police altered the Section of Law into 302 of IPC and filed the FIR. On completion of investigation, charge sheet was filed into the Court. 3.ln order to prove its case, the prosecution examined P.Ws. 1 to 17 and got marked Exs. P-1 to P-21 , besides the case properties under M.Os. 1 to 5. On behalf of the defence, no oral or documentary evidence was adduced. The learned Sessions Judge basing on the evidence of P.W. 13 coupled with Ex. P-14, found the accused guilty of the offence under Section 302 of IPC and accordingly convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month. Aggrieved, the appellant accused filed the present appeal. 4. P-14, found the accused guilty of the offence under Section 302 of IPC and accordingly convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month. Aggrieved, the appellant accused filed the present appeal. 4. Smt. Gayatri Reddy, appearing in place of Sri Mandala Narsinga Rao, learned counsel for the appellant would contend that the judgment of trial Court is contrary to law, weight of evidence and probabilities of the cases. He further submits that there is no corroboration to the dying declaration recorded under Ex. P-14. She further submits that in view of the fact that the prosecution witnesses did not support the case of the prosecution, the learned Sessions Judge erroneously convicted and sentenced the accused. She, therefore, prayed that the appeal be allowed and the conviction and sentenced recorded by the trial Court be set aside. 5. Learned Additional Public Prosecutor, on the other hand, supported the judgment of the trial Court and submitted that the same needs no interference at the hands of this court. 6. Admittedly, all the prosecution witnesses, namely, P.Ws. 1 to 9 have resiled from their earlier statements made under Section 161 Cr. P.C. P.Ws. 10, 11 and 12 are the inquest panchayatdars. Except, P.W. 10, the other two witnesses namely, P.Ws. 11 and 12 have turned hostile and did not support the case of the prosecution. 7. P. W. 14 is the doctor who attended the case of the deceased first. II is his evidence that on 19-5-2003 at about 3.45 a.m. he attended the case of the deceased Mariya Dasu who was found with a stab injury at Pigastric area of abdomen. Immediately, he has shown the case to the Surgeon, Dr. K.C.P. Naik. Since there is no blood transfusion facility in that hospital, they referred the deceased to K.G. Hospital, Visakhapatnam in a case where the knife is within the abdomen 8. P.W. 13 is the learned Magistrate Vv, recorded the dying declaration of the deceased under Ex. P-14. Immediately, he has shown the case to the Surgeon, Dr. K.C.P. Naik. Since there is no blood transfusion facility in that hospital, they referred the deceased to K.G. Hospital, Visakhapatnam in a case where the knife is within the abdomen 8. P.W. 13 is the learned Magistrate Vv, recorded the dying declaration of the deceased under Ex. P-14. According to him, on receipt of requisition from the duty doctor of Parvathipuram Hospital, he proceeded there and recorded the statement of the deceased Mariya Dasu at about 5.45 a. m. Initially, he put some general questions to the deceased to know whether he is in a fit state of mind to give the statement and after satisfying that the deceased was in a fit state of mind to give the statement, he recorded the same as in Ex. P-14. In Ex. P-14, the deceased stated that the accused, who is his younger brother had stabbed him. 9. Now coming to the evidence of P.W. 16, the Inspector of police who has conducted investigation in the case, according to, him, on the intervening night of 18/19-5-2003, while he was attending to his routing work, he received a phone call from M.P.T.C. Nidagallu with regard to the incident. Thereafter, he secured a jeep and visited Nidagallu village at about 2.00 hours. Then he noticed the deceased with a stab injury on his stomach. He immediately shifted him to the Government Hospital, Parvatipuram. He then recorded the statement of the deceased at about 4.00 hours under Ex. P-16 in the presence of the Medical Officer. Then he examined the witnesses and recorded their statements. However, when the Medical Officer at Parvathipuram referred the deceased to K.G.H., he sent the deceased to K. G. H. and thereafter he visited the scene of offence and observed the same in the presence of mediators. He also prepared the rough sketch. Thereafter he seized the material objects and blood stained earth and control earth. However, in the cross examination, he stated that he seized M.Os. 2 and 3 only from the scene of offence. He denied the suggestion that he did not observe the scene of offence and did not examine the witnesses. 10. P.W. 17 is the Inspector of Police. It is his evidence that on 20-5-2003 he received information from P .W. 16, about the registration of FIR in Crime No. 33 of 2003. He denied the suggestion that he did not observe the scene of offence and did not examine the witnesses. 10. P.W. 17 is the Inspector of Police. It is his evidence that on 20-5-2003 he received information from P .W. 16, about the registration of FIR in Crime No. 33 of 2003. He immediately rushed to Seetanagaram P.S. and perused the F.I.R. Thereafter, he visited K.G.H. Hospital and held inquest over the dead body of the deceased from 7.00 to 9.00 hours in the presence of panchayatdars and examined the witnesses. He, thereafter, arrested the accused and recorded the confessional statement of the accused under the cover of mediators report. He, then forwarded the seized material objects to the R.F.L. for expert opinion. He further stated M.O. 4 was the knife. On completion of investigation, he stated that have filed charge sheet in the case. However, in the cross-examination, he stated that he did not obtain any finger prints on M.O.4 knife as it was not possible to take the finger prints since it was imbedded in the stomach. He further stated that he did not send M.O. 4 to the finger print expert to know whether it contained any fingerprints of the accused. He also denied the suggestion that due to political pressure, the accused was falsely implicated in the case. 11. In the instant case, admittedly there are no eye witnesses to the incident. Further, all the prosecution witnesses, namely, P. Ws. 1 to 12 have resiled from their earlier statements and did not support the case of the prosecution. That apart, though P.W. 16, the Sub-Inspector of Police stal0d that he received a telephone call from the M.P.I.C., Nidapall P.W 3 about the alleged incident, for the reasons best known to him, the said witness did not support the case of the prosecution. Further, there are certain contradictions in the evidence of P.W. 17, the Inspector of Police. Though P.W. 17, the Inspector of Police stated in the cross-examination that he sent all then material objects including M.O. 4, knife to the R.F.S.L., but in the cross-examination, he denied the same and stated that as M.O. 4, was imbedded in the stomach of the deceased, he could not make any efforts to send the same to Finger print expert. Keeping in view the contradictions in the version of the investigation officer, there is a doubt as to whether M.O. 4 is the actual weapon which was used in the commission of offence. In view of the fact that the prosecution witnesses did not support the case of the prosecution and in view of the contradictions in the version of the investigating officer as to the seizure of crime weapon, there is any amount of doubt as to the participation of the accused in the commission of offence. 12. Now, the other evidence which remains on record is the dying declarations. III the instant case, two dying declarations were recorded, one by the police and the other by the Magistrate. There is no dispute about the fact that conviction can be recorded on the basis of the dying declaration alone, but the same must be wholly reliable and trustworthy. In a case where suspicion can be raised as regards the correctness or reliability of the dying declaration, the court before convicting the accused on the basis of the said dying declaration would look for some corroborative evidence. In the instant case, the deceased stated in his statement before the police as well as the Magistrate under EX.P-16 and 2 P-14 that 'after the death of his brother, he kept his brother's wife, Lakshmi as concubine and through her, he had a female baby and since one year they had been living separately. However, about three months prior to the incident, the deceased knew that the accused developed illegal intimacy with his concubine and therefore he warned the accused and also informed him that it is not good on his part to have illicit intimacy with his concubine. He stated that the accused, therefore, bore grudge against him and stabbed him". 13. Therefore, it is clear from the above statements of the deceased under Exs. P-14 and P-16 recorded by the Magistrate as well as the Police that he had been suspecting the accused that he had developed illicit relationship with his concubine. Hence, there is a chance for him to implicate the accused to make his life miserable. Therefore, what the deceased has stated in the dying declaration may not be correct. Further, there is no corroboration to the statement of the deceased. Hence, there is a chance for him to implicate the accused to make his life miserable. Therefore, what the deceased has stated in the dying declaration may not be correct. Further, there is no corroboration to the statement of the deceased. Under those circumstances, it is not at all safe to place reliance on the dying declarations of the deceased person. Hence, we have no hesitation to hold that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and hence the appellant accused is entitled to the benefit of doubt. 14. The judgment of the trial Court is based upon surmises and conjunctures. Since there is no legal evidence to justify the conviction of the appellant-accused, the conviction and sentence passed by the trial Court against the appellant-accused for the offence under Section 302 of I.P.C. is liable to be set aside and it is accordingly set aside. He is acquitted of the charge leveled against him. He shall be released forthwith, if not required in any other case. 15. The appeal is accordingly allowed.