THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.218 of 2007 JUDGMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1. This Criminal Appeal is preferred under Section 374(2) Cr.P.C. against judgment and conviction recorded against the appellant-accused (for short ‘the accused’) for offence punishable under Section 302 IPC in Sessions Case No.236 of 2006 dated 7.2.2007 on the file of VII Additional Sessions Judge (Fast Track Court), Vijayawada. 2. Whereas the appellant is the accused, the respondent is the complainant in the sessions case. For the sake of convenience, I refer the parties as arrayed in the sessions case. 3. The accused was convicted under Section 235(2) Cr.P.C. for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life. 4. The prosecution version is as follows: The accused is the resident of Nehru Nagar, Kondapalli. One Vempati Veeraswamy @ Isaac, a lorry driver-deceased (for short ‘the deceased’) was also a resident of the same place. P.W.1-the defacto complainant V.Rajeev and P.W.2-V.Rattamma were the parents of the deceased. About three months prior to the incident in question in this case, the accused quarrelled with the deceased at a water tap which was pacified at the intervention of P.W.7 and one P.Raju, but in spite of that, the accused had grouse against the deceased in that context and waited for an opportunity to eliminate the deceased. On 31.7.2006 at about 4.10 a.m. the deceased woke up and went near the water tap and as there was no water supply by that time, he lit cigarette and stood at a distance of 20 yards from his house observing the water tap. At about 4.30 a.m. the accused in furtherance of his intention to kill the deceased went there and raised quarrelled with the deceased with reference to the earlier quarrel which took place between them about three months prior to that and the accused threatened and challenged the deceased as to who would come to his rescue and pushed the deceased who thereby fell down and stabbed the deceased with knife. Meanwhile, P.Raju witnessed the incident and went to the scene of offence and then pushed away the accused and separated the accused from the deceased. Further, on hearing the cries, the mother of the deceased (P.W.2), Savithri (P.W.3), K.Anand (P.W.4), P.Tirupathamma (P.W.5), K.Isreal (P.W.6), G.Isaack (P.W.7) and Gaddam Tripuramma rushed to the spot and on seeing them, the accused ran away from the scene of offence throwing away the knife at the scene of offence. The father of the deceased (P.W.1) later went to the scene of offence and shifted the deceased to private hosptal of Dr.B.Devadas Reddy (P.W.8) namely Maata Nursing Home at Kondapalli, where he was given first aid and from there he was shifted to the Government Hospital, Vijayawada and later the deceased was referred to the Government Hospital, Guntur for better treatment and there he succumbed to the injuries received by him on 1.8.2006 at 10.45 am while undergoing treatment. Further, the A.S.I. of Ibrahimpatnam P.S. (P.W.13) on receiving necessary intimation, went to the Government Hospital, Vijayawada and recorded the statement of the deceased and on that basis, he registered the case in Crime No.245 of 2006 under Section 307 IPC on his file. Further, the S.I. of Police, Ibrahimpatnam P.S. took up and conducted a part of THE investigation of the case and after the death of the deceased, the section of law was altered to Section 302 IPC. 5. For the prosecution, 17 witnesses were examined as P.Ws.1 to 17 and Exs.P1 to P14 and M.Os.1 to 9 were marked, whereas after observing necessary formalities, the accused was found guilty of the charge under Section 302 IPC and sentenced to life imprisonment referred above with a direction to destroy M.Os.1 to 9 after appeal time, following which the present appeal has been preferred. 6. The trial Court mainly relied upon the evidence of P.W.7 and the alleged dying declaration stated to be recorded by P.W.13 for coming to a conclusion that the accused committed the offence in question. 7. The learned counsel for the accused mainly attacks the evidence of P.W.7 and P.W.13 with reference to the medical evidence. He contends that there is only the direct evidence of P.W.7 about the actual incident against the accused and it discloses that he was in his house which was at a distance of 20 feet from the scene of offence and on hearing some altercation from outside, he went to the scene of offence and found that the deceased was lying on the ground while the accused was stabbing the deceased and then he tried to catch hold of the accused and then the accused threw away the knife and ran away, but in his cross-examination, he deposed that on hearing his cries from his house, his neighbours rushed to the scene of offence which was in residential locality which was not spoken to by him in his chief-examination and even supposing that what he deposed in his cross-examination is true, then his neighbours would have rushed to the scene of offence and they also got a chance to witness the alleged incident, but the neighbours examined as witnesses deposed to the effect that when they reached the scene of offence, the accused was not there, which clearly falsifies the entire evidence of P.W.7. He further contends that P.W.8 Dr.B.Devadas Reddy deposed about giving first aid to the deceased and also deposed to the effect that the deceased informed him that he was stabbed by means of a knife, but it does not disclose that the deceased informed him about the actual culprit and if at all the accused stabbed the deceased, the deceased would have definitely disclosed about it having given some information about the weapon used to cause the injuries. Further the evidence of P.W.11-Medical Officer who conducted autopsy over the dead body discloses that by virtue of the fifth injury received by the deceased as shown in the post-mortem report, there might be failure of respiration and it also discloses that by virtue of all the injuries received, the deceased may not have a possibility to speak, which clearly rules out that the deceased would have given the dying declaration to P.W.13. Further, no Doctor endorsed under the alleged dying declaration marked as Ex.P9 to the effect that the deceased was in a fit and conscious state of mind to give his statement, which throws lot of suspicion against the veracity of P.W.13 and also the contents of Ex.P9. Ultimately he has pleaded that the discrepancies pointed out are very grave to record the conviction against the accused and he is to be given benefit of doubt and the trial Court failed to appreciate the matter properly. 8. Therefore, it has to be seen as to (1) whether the prosecution placed sufficient evidence to establish the charge under Section 302 IPC and (2) whether the conviction and sentence imposed by the trial Court for the charge are sustainable or not. 9. The evidence of P.Ws.1 and 2, parents of the deceased and P.Ws.3 to 6 neighbours of P.Ws.1 and 2 is only hearsay in nature. In fact P.W.6 deposed in his chief-examination that at about 5 a.m. on the relevant day, while he was sleeping in his house, he heard cries and immediately he saw the accused stabbing the deceased and he also saw the accused running from the scene of offence, whereas in his cross-examination, he admitted that he did not state to the police that he saw the accused stabbing the deceased and he also saw the accused running away from the scene of offence. P.W.15 S.I. of Police confirmed that P.W.6 did not state to him accordingly. Therefore, P.W.6 made improvement over what is said to be stated before the police in that context and hence his evidence cannot be accepted to be true and correct. 10. On the other hand, it is the testimony of P.W.7 which is only to be taken into consideration as direct evidence to establish the complicity of the accused in the case deposed that his house was at a distance of 20 feet from the scene of offence and on hearing some altercation outside, he went out of his house at about 4.30 a.m. on 31.7.2006 and then he found that the deceased was lying on the ground while the accused was stabbing him and then he tried to catch-hold of the accused, but the accused ran away throwing the knife and then the neighbours gathered there and took the deceased to hospital for treatment. In his cross-examination, he deposed that on hearing his cries, their neighbours rushed to the scene of offence and he also deposed that the scene of offence was located in a busy residential locality. If his evidence is true and correct, definitely his cries would have attracted the attention of neighbours in the locality and therefore the neighbours also ought to have rushed to the scene of offence by the time he could have reached there, whereas the evidence of P.Ws.1 to 6 discloses that subsequently on receiving necessary information, they went to the scene of offence and they did not see the accused there. Further, he also in his cross-examination stated that at about 4.30 a.m. there was darkness at the scene of offence. Absolutely there is no evidence that there was some light by reason of which, there was a possibility to witness the incident from the house of P.W.7. If there was altercation between the accused and the deceased, there was a possibility for P.W.7 and also other neighbours of the locality to hear their cries by reason of which all of them would have got up and rushed to the scene of offence. When no such circumstance appears to have taken place, it must be that what is deposed by P.W.7 that he heard the cries of the accused and the deceased, following which he got up and rushed to the scene of offence is to be held as false. Therefore, in view of the discrepancies pointed out, the evidence of P.W.7 is highly doubtful. It appears that he was planted as witness to speak about the alleged incident. 11. Further, with regards to the veracity of the alleged dying declaration of the deceased marked as Ex.P9 provides that on 31.7.2006 at about 4 a.m. he woke up and went to the water pipe situated near his house and as there was no water supply by that time he lit up and was smoking a cigarette 20 yards away from his house and at about 4.30 a.m. the accused approached him and addressed him as ‘bastard’ and also questioned him as to why he quarrelled with him previously and challenged him as to who would come to his rescue and threatened to kill him and so saying pushed him down and stabbed on the left side of his chest and also on his stomach by means of knife and caused him bleeding injuries and meanwhile P.W.7 rushed to the spot and questioned as to why they were altercating each other and then the accused ran away and later the police met him and then he stated to the police as to what happened. 12. There is no endorsement of any Medical Officer to the effect that the deceased was found to be in a fit and conscious state of mind to give his statement. Emphatically, according to P.W.13 on receiving information, he went to the Government Hospital, Vijayawada and recorded the statement of the deceased and further in his cross-examination, he deposed that the deceased was in a semi-conscious state and he was not in a position to sign and therefore only his LTI was taken under the statement. His evidence makes it very clear that he got every opportunity to ascertain with the duty medical officer there about the state of mind of the deceased particularly when the deceased is said to be in a semi-conscious state and he was not in a position to sign. The natural conduct of P.W.13 also would have been to call the duty medical officer for that purpose. If the deceased was in a semi-conscious state, it is also doubtful as to whether he was in a fit and conscious state of mind to give the statement unless there is supporting medical evidence. There is no explanation as to why the assistance of a duty medical officer was not taken before recording the alleged statement of the deceased. Therefore, under these circumstances, the dying declaration and the supporting evidence of P.W.13 are to be viewed with lot of suspicion and consequently no credence can be given to them out-rightly. 13. P.W.8 deposed that he was private medical practitioner at Kondapalli and on 31.7.2006 the deceased was brought to him with injuries and he gave first aid by supplying necessary fluids to the deceased and the deceased was speaking consciously and informed him that he was stabbed by means of a knife and then he sent the deceased by ambulance to the Government Hospital, Vijayawada for treatment. It is also his evidence specifically that the deceased did not inform him the name of the culprit. The evidence of P.W.8 amply proves that when the first aid was given to the deceased, the latter was in a fit and conscious state of mind to speak about what happened earlier. Unfortunately, it appears that the deceased did not disclose about the name of the culprit. The evidence of P.W.8 is not sufficient to hold that by the time of recording the alleged dying declaration of the deceased as in Ex.P9 also he was in a fit and conscious state of mind. 14. P.W.11-Medical Officer of Government Hospital deposed about the autopsy over the dead body and marking the corresponding report (Ex.P6), which discloses the deceased received the following injuries. 1. 2 cms x 0.3 cms sutured wound present to (torn) side abdomen (flank), 10 cms away from (torn). 2. 16 sutured wound of 24 cms x 0.2 cms present over the abdomen extending from 6 cms below the xiptisternum down wards, 7 cms above to the public symphysis 2 x 2 cms size silk sutured small intestine. 3. Sutured wound 2 cms x 0.3 cms size present over the right side of abdomen (flonk) 10 cms away from umbilicus. 4. Two sutured wounds of 3 cms length x 0.2 cms size present over the left side of abdomen, 3 cms lateral to the injury No.2 cavity deep, 10 cms above to the public symphysis. 5. Oblique two sutured wounds 3 cms length cavity deep present over the front of the left side of the chest 2 cms medial to the left nipple, 18 cms below to the left claricle stab injury of the heart 1 x ½ x 1 cm. 6. 6 sutured wound of 9 cms length transversely placed over the front of the right side of the chest, 2 cms medial to the right nipple, 3 cms lateral to the sternum stab injury right lung 1 x 1 x 1 cms. 7. Oblique 2 cms x 5 cms length over the right front of chest 4 cms lateral to the sternum. 8. Transverse 7 sutured wound of 5 cms length present over the right cheek, upper part of the outer border of the right eye to the tragus of the ear. 9. Abrasion of 2 x 1 cm size over the right ear lobule. 10. Seven sutured 7 cms wound present over the left ear. 11. Inter costal drainage tube present on the right side on the anterior axillary line right side of the chest 6 cms away to the right nipple, fracture 3rd rib on the front right side. Further, he gave information that all the injuries were anti-mortem in nature. It does not speak about his opinion about the cause of death. However, in his cross-examination, it is deposed by him that the injury No.5 shows that there was damage of the Miocardiem which resulted in Hemoperidial diffusion and the injury No.6 resulted in plurial i.e. collection of blood in the plurial cavities which would cause failure of respiration and he also deposed that because of all the injuries, there may not be any possibility for the deceased to speak. Further, he also deposed that because of the injury No.6, there was a possibility of the deceased falling into unconscious. 15. The medical evidence throws doubt about the actual condition of the deceased to speak, whereas the evidence of P.W.8 gives some what different picture. When there are two different opinions that which is favourable to the accused is to be taken into consideration here. Therefore, it also throws some doubt about the question of giving dying declaration by the deceased. 16. Hence for the foregoing reasons, benefit of doubt is to be given to the accused. 17. It is observed by the trial Court that the evidence of P.W.7 is acceptable, whereas no discussion was made about the discrepancies pointed out in the evidence of P.W.7. Further, the trial Court also failed to appreciate the veracity of the contents of the alleged dying declaration in the light of the discrepancies discussed earlier. 18. In the result, the Appeal is allowed setting aside the conviction and sentence imposed in Sessions Case No.236 of 2006 dated 7.2.2007 on the file of the VII Additional Sessions Judge (Fast Track Court), Vijayawada and consequently, the appellant-Accused shall be set at liberty forthwith, if he is not required in any other case. ______________ V.ESWARAIAH, J ________________________ G.KRISHNA MOHAN REDDY, J Date: .8.2011 DA