THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.574 of 2007 Dated : 12.11.2010 Between : S.Venkata Reddy …. Appellant-Accused a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.574 of 2007 COMMON JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused questioning the conviction and judgment dated 30.04.2007 rendered in Sessions Case No.197 of 2004 by the Sessions Judge, Mahila Court, Vijayawada, wherein the learned Sessions Judge convicted the accused under Section 235 (2) Cr.P.C. for the offence punishable under Sections 302 and 309 of Indian Penal Code (for short ‘IPC’) and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 302 IPC and also sentenced him to pay fine of Rs.1000/-, in default to undergo simple imprisonment for three months, for the offence punishable under Section 309 IPC. 2) The case of the Prosecution, in brief, is that the accused and L.W.1 Surasani Sujatha are the husband and wife and they were blessed with two daughters Hemalatha and Ashalatha (Deceased Nos.1 and 2) and one son. Due to his indebtedness, the accused decided to put an end to the life of himself and his two daughters by administering poison. In pursuance of the same, on 11.11.2001 at about 7.50 p.m. after sending his wife and son outside the house the accused got administered the endosulphan pesticide poison and he also consumed the same. After returning to the house, the wife of the accused shifted the accused and their two daughters to Nagarjuna City Hospital, Vijayawada, with the assistance of one Surasani Chinna Reddy. While undergoing treatment, on the same day both the deceased died at about 9.45 p.m. and 10.05 p.m. respectively. 3) On receipt of intimation about the admission of deceased girls and the accused into hospital, the ASI of Police visited the hospital, recorded the statement of Sujatha, wife of accused, and basing on the said statement, he registered a case in crime No.809/2001 for the offence punishable under Sections 302 and 309 IPC, issued FIR. On receipt of requisition from the hospital, the then II M.M., Vijayawada, proceeded to hospital and recorded the dying declaration of the accused. The SI of Police, who took up further investigation in the case, visited scene of offence, conducted panchanama before the mediators, seized three steel glasses and two Parasulphan tins from the spot under cover of panchanama. He also conducted inquest over the dead body of D.1 before the mediators. Further, L.W.17 conducted inquest over the dead body of the D.2 before the mediators. On 30.11.2001 accused was arrested and remanded to judicial custody. Further, after completion of entire investigation and receiving necessary reports, Police filed charge sheet against the accused, which was numbered as P.R.C. No.4 of 2004 by the II Metropolitan Magistrate, Vijayawada. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 309 IPC, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 9 and marked Exs.P.1 to P.19 apart from marking MOs 1 to 4. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. The accused did not choose to adduce any evidence on his behalf. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) P.W.1, who is the wife of the accused and set the law in motion, turned hostile and she deposed before the Court that due to the medicine given to their deceased daughters they vomited and died in the hospital. Her husband also took the medicine, but he survived. She further stated that somebody obtained her signatures in the hospital. Her signature is marked as Ex.P.1. She also stated that she is not aware of the contents of the statements. 8) P.W.2, who is the elder brother of the accused also turned hostile and not supported the Prosecution case. P.W.3, wife of P.W.2, also turned hostile and not supported the Prosecution case. P.W.4 is the mediator for Ex.P.5 scene observation panchanama and he also witnessed seizure of glasses MOs 1 and 2 and he is also a witness to the inquest report. P.W.5 also deposed corroborating the evidence of P.W.4. 9) P.W.6 is the Civil Assistant Surgeon, Forensic Department, who conducted autopsy over the dead body of D.1 and D.2 and issued Ex.P.8 and P.9 PME reports of D.1 and D.2 respectively. 10) P.W.7 is the ASI, who on receipt of intimation from the hospital rushed to the hospital and recorded the statement of P.W.1 Sujatha under Ex.P.15. According to him, on the basis of Ex.P.15 he registered FIR in crime No.809 of 2001 for the offence punishable under Sections 302 and 309 IPC. Ex.P.16 is the FIR. At the instructions of the Inspector of Police, he conducted inquest over the dead body of D.1 under Ex.P7 inquest report before the mediators. 11) P.W.8 is the then Sub-Inspector of Police, Palakollu, deposed that on receipt of copy of FIR, he proceeded to scene of offence, seized MOs 1 and 2 under cover of panchanama, proceeded to hospital, conducted inquest over the dead body of D.2, examined and recorded the statements of other witnesses, forwarded the material objects to RFSL, Vijayawada. He also stated that on 30.11.2001 accused was arrested and remanded to judicial custody. He also deposed that he collected RFSL report-Ex.P.10 along with letter of advice-Ex.P.17 through the then ACP-I, Vijayawada. Further, on completion of investigation, he filed charge sheet. 12) P.W.9 is the then II Metropolitan Magistrate, Vijayawada, who deposed that on receipt of intimation from hospital, Ex.P.18, on 12.11.2010 he proceeded to Nagarjuna City Hospital. After putting some preliminary questions to the patient-accused, he recorded his statement under Ex.P.19 and also obtained the endorsement of the doctor to the effect that the patient was conscious. He also deposed regarding the statement given by the accused. The learned Sessions Judge after perusal of the above said evidence adduced by the Prosecution, taking into consideration Ex.P.19 recorded by the learned III Metropolitan Magistrate, Vijayawada, convicted the accused as stated above. The learned Sessions Judge observed the following reasons while convicting the accused: “………such dying declaration of the person who survives though cannot be treated as statement U/s.32 of Indian Evidence Act but it is the statement in terms of Sec.164 Cr.P.C. and it can be used U/s.157 of Indian Evidence Act for the purpose of corroboration and U/S.155 for the purpose of contradiction. Therefore, Ex.P.19 dying declaration can now be treated as the statement of the accused recorded U/s.164 Cr.P.C. At the time of recording Ex.P.19 statement of the accused, since, P.W.9-the then II M.M., Vijayawada, received requisition to record the dying declaration of the accused, it cannot be expected that he should take all the necessary precautions which are required to record the statement U/s.164 Cr.P.C. Therefore, the Ex.P19 dying declaration of the accused recorded by the then II M.M. Vijayawada can be taken as the confessional statement of accused recorded by the said Magistrate and U/s.164 Cr.P.C. which can be used for the purpose of corroboration”. The learned Sessions Judge has rightly rejected the statement given by the accused as the same is not admissible under Section 32 of the Indian Evidence Act since the maker of the statement is alive. But, the learned Sessions Judge proceeded to accept the said statement by invoking the provisions under Section 164 Cr.P.C. read with Sections 157 and 155 of the Indian Evidence Act. In the present case, the other witnesses those, who are the persons acquainted with the facts and circumstances of the case, not supported the case of the Prosecution. Hence, the duty upon this Court is to decide ‘whether the statement under Ex.P.19 recorded by the Magistrate can be treated as a statement under Section 164 Cr.P.C.?’ Relevant portions of Ex.P.19-dying declaration are hereby extracted for better adjudication of the matter: “I put the following questions to the patient to know whether the patient is in fit condition to give statement. Q.No.1: What is your name? Ans : Surasani Venkata Reddy. 2. What is your village? Ans : Singarayakonda 3. Having studied anything? Ans : No 4. Do you know where you are? Ans : I was in hospital. 5. What happened? Ans : I was taken Endosulphur poison during the night from 7-30 to 8-00 pm due to financial problems. I was indebted to Rangareddy Guravareddy to a (N.C.) of Rs.10,000/-. He was residing besides my house. I was having wife and children. They were doing took inside the house. I was administered poison to my daughter besides taking from. At the 1st instance, I administered it to my daughter Hemalatha and Ashalatha and I told my daughter to drink and advised that if they do not drink this throat become drive and saying that it is tonic meant for cough which they were suffering. I married about 21 years back. I was having two daughters aged 10 and 7 years respectively. My so and my wife were living properly. And that neightbours disclose the reason if they required. I was having a son also. I did not give poison to my son to drink. And that I was not insisted by anybody for the debts but I have answered for the debts for somebody demand for money. My younger brother Chinnareddy his wife, my younger brother’s wife took him to the hospital. I got my children drink and myself had taken it and on seeing it my wife and neighbours came. In all, I indebted to others to a -------------------- of Rs.90,000/-. I purchased Yendosulphur in I town Vijayawada. Due to debts only I took the poison.” If the above statement recorded by the Magistrate is not a dying declaration, whether it can be a statement made under Section 164 (2) or 164 (5) Cr.P.C. Section 164 (5) Cr.P.C. speaks about the statement of a person other than the accused. Here the accused is not arrayed as a witness. Hence, the statement of the accused cannot be treated as a statement under Section 164 (5) Cr.P.C. If the said statement is not a statement under Section 164 (5) Cr.P.C., whether the same to be treated as a statement under Section 164 (2) Cr.P.C. But, as rightly pointed out by the learned counsel for the appellant, the statement recorded under Section 164 (2) Cr.P.C. amounts to a confession and specific procedure has to be followed by the Magistrate for recording the same. Section 164 (2) Cr.P.C. runs as follows: The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him: and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. In the absence of any such procedure followed by the Magistrate while recording the statement it can not be treated as a statement made by the accused under Section 164 (2) Cr.P.C. The intention of the Legislature in enacting this Section by making the warning as mandatory is to give protection to the accused under law since in the absence of any warning to the accused concerned, his statement may cause prejudice to him. In the present case, there is no such warning given by the Magistrate for which the Magistrate cannot be found fault with because the learned Magistrate was not asked to record a statement under Section 164 (5) Cr.P.C., but he has proceeded to the hospital only to record the statement in anticipation of death of the person, who is going to make the declaration. In such circumstances, this Court is of the view that the said statement cannot be treated as a statement under Section 164 (2) Cr.P.C. to rely upon to convict the accused. Thus, this Court is of the view that Ex.P.19 cannot be treated either as a statement under Section 32 of the Indian Evidence Act or a statement under Section 164 (5) Cr.P.C. or Section 164 (2) Cr.P.C. In view of the same, the question of invoking the provisions of Sections 155 and 157 of the Indian Evidence Act does not arise. Now, the question before us is ‘whether the said statement of the accused under Ex.P.19 can be treated as ‘extra judicial confession’? Admittedly, in this case, the person who made a statement before the Magistrate is arrayed as an accused. The learned Magistrate proceeded to the place on the basis of intimation given by the hospital authorities and the hospital authorities also sent MLC on the basis of the earlier request made by the Police. In such a situation, the statement made by the accused cannot be treated as extra judicial confession since the extra judicial confession should be voluntary in nature by the person, who makes the same. Hence, the same cannot be treated as extra judicial confession. Whatever be the evidence collected during the course of investigation, the same has to be subjected to the scrutiny of the Court concerned and the same should be admissible in law. When the evidence collected by the investigation agency, which is not under the purview of any provisions of the law to make it as admissible in evidence, the same cannot be relied upon. Further, this Court is also of the view that the conviction and sentence imposed by the learned Sessions Judge for the offence punishable under Section 309 IPC is also liable to be set aside since there is no evidence adduced by the Prosecution to that effect and accordingly the same is set aside. In the result, the Criminal Appeal is allowed. The conviction and sentence passed by the learned Sessions Judge, Mahila Court, Vijayawada, in Sessions Case No.197 of 2004 on 30.04.2007 for the offence punishable under Sections 302 and 309 of Indian Penal Code is hereby set aside and he is acquitted for the said offences. Consequently, the appellant is set at liberty forthwith, if not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J Dated : 12.11.2010. sur