THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 772 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed against the judgment dated 02.04.2007 in Sessions Case No.107 of 2004 on the file of the II Additional Sessions Judge, Kadapa at Proddatur, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’), accordingly convicted and sentenced to undergo imprisonment for life. 2. The case of prosecution, in brief, is that the accused is husband of Gantigalla Ganga Devi (hereinafter referred to as ‘the deceased’). Their marriage was performed eight years prior to the incident and they were blessed with two children viz. a daughter and a son. The accused was addicted to drinking. The deceased used to go to cooli work and eke out her livelihood. The accused used to go to cooli work and waste the amounts earned by him for drinking and used to demand the deceased her earnings for consuming liquor. When the deceased did not give the money as per his demand, he used to abuse, beat and harass her. As it had become common in his house, the neighbourers also did not care for the galata between them. On 20.12.2003 at about 1.00 PM, when the deceased was in the house of her parents, the accused went there and demanded money to consume liquor, and when the deceased refused to pay the money, the accused, who brought some pesticide poison in a plastic bottle, forcibly administered the said pesticide to the deceased to kill her and forced her to consume some more pesticide. When the deceased raised cries, L.W.2- Rajupalem Kanthamma and L.W.4-Bandi Lakshmi Devi rushed there, and on that, the accused came out of the house and fled away. The deceased narrated them about the incident. Thereafter, the deceased was taken to Government Hospital, Proddatur for treatment. P.W.6- Head Constable, recorded her statement in the hospital. She succumbed to the injuries on 21.12.2003 at 7.15 PM while undergoing treatment. Police registered a case in crime no.109 of 2003 of Duvvur police station for the offence punishable under Section 302 IPC. P.W.8- Inspector of Police held inquest over the dead body the deceased in the presence of P.W.4 and another, and sent the dead body to autopsy. He also prepared scene observation panchanama and seized empty poison plastic tin in their presence. P.W.5 conducted autopsy on the dead body of the deceased. After receiving relevant documents and completion of investigation, police laid the charge sheet. 3. The trial Court framed the following charge against the accused. “That you on 20.12.2003 at about 1 p.m., when the deceased Gantigalla Ganga Devi wife of you was in the house of her parents at Harijanawada, Duvvur, you commit murder by intentionally caused the death of Gantigalla Ganga Devi you forcibly administered the said pesticide to the deceased and that you thereby committed an offence punishable under sec. 302 I.P.C. and within my cognizance.” When the charge was read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the case of prosecution, P.Ws. 1 to 8 were examined and Exs.P1 to P12 were got marked, on behalf of the prosecution, besides case properties M.Os. 1 to 4. 5. After completion of the evidence on prosecution side, the accused was examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. D.W.1, cousin of the accused, was examined, but no documents were marked, on behalf of the accused. 6. After considering the material available on record, the learned Sessions Judge, vide the impugned judgment, found the appellant/accused guilty of the charge levelled against him and accordingly convicted and sentenced him as stated above. Aggrieved by the said judgment, the present appeal has been preferred by accused. 7. Now, the point for determination is whether the prosecution is able to bring home the guilt of the accused for the charge levelled against him beyond all reasonable doubt and whether the conviction and sentence recorded by the trial court is legal and proper ? 8. The learned counsel for the appellant contended that except Ex.P8-dying declaration recorded by P.W.6, there is no other evidence on record to show that the accused is the assailant of the deceased; that, the Doctor who endorsed on Ex.P8 as conscious and coherent state of mind of deceased, is not examined; that though there was a time to send intimation to the Magistrate to record statement of the deceased, no such intimation was sent by the hospital authorities; that, as per the evidence of D.W.1, thumb impression of the deceased was taken by the Constable prior to her death on a white paper, and so, Ex.P8 statement was fabricated as if it was given by the deceased, and therefore, it is not safe to place an implicit reliance on Ex.P8 alone to base the conviction; that, own sister and brother of the deceased viz. P.Ws. 1 and 2, have categorically stated that the deceased herself consumed poison unable to bear stomach pain and committed suicide, and therefore, he prayed to set aside the conviction and sentence recorded by the trial court. 9. On the other hand, the learned counsel representing the Public Prosecutor contended that the dying declaration Ex.P8 is convincing and trustworthy and there is no other reason for P.W.6 to foist a false of this nature against the accused, and when the dying declaration is true and trustworthy, it can be acted upon even without any corroboration, and having accepted the dying declaration, the trial court rightly convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal. 10. Death of the deceased is not in dispute. P.W.4 is one of the mediators who was present at the time when police held inquest over the dead body of the deceased under Ex.P3-inquest report. The inquest mediators opined that the deceased died as a result of consuming pesticide poison. 11. P.W.5 is the Doctor who conducted autopsy on the dead body of the deceased on 27.12.2003 at 4.30 P.M. He gave opinion after receipt of Ex.P4-report from the Regional Forensic Science Laboratory, to the effect that the deceased died as a result of consuming organo phosphate poison, an insecticide poison. The evidence of P.W.5 and the recitals in Ex.P4 & P5 remained unchallenged. From the evidence of P.Ws.4 and 5 and recitals in Exs.P3 to P6, homicidal nature of death of the deceased is established beyond reasonable doubt. Now, it has to be seen whether the accused is the assailant of the deceased or not. 12. Entire case of the prosecution rests upon the solitary evidence Ex.P8, which is the statement recorded by P.W.6-Head Constable of Police, in Area Hospital, Proddatur. The law is well settled that when the dying declaration is found to be true, trustworthy and reliable and is not an outcome of tutoring or prompting by any one of the persons interested in the prosecution case, it can be acted upon even without any corroboration. On this aspect, it is pertinent to refer to a decision in Kushal Rao v. State of Bombay[1], wherein it is held thus: (para 16) “On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (a) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” From the above decision, it is clear that conviction can be maintained even without any corroboration basing on a dying declaration. The only evidence on record is Ex.P8-statement recorded by P.W.6 after receipt of Ex.P7- intimation from the hospital. Though a Doctor made an endorsement on Ex.P8 with regard to condition of the patient, he was not examined. Similarly, no intimation was sent to the concerned Magistrate so as to record the statement of the deceased. The Doctor, who is present at the time of recording the statement of the deceased by P.W.6 is the best person to speak about the conscious state of mind of the deceased. For the reasons best known to the prosecution, he was not examined. 13. If really, Ex.P8 is true and correct statement, nothing prevented police to send the same to the Court or even to police station to register the case, immediately after its recording. Admittedly, according to P.W.7-Assistant Sub Inspector of Police, death intimation and the statement of the deceased reached police station on the next day i.e. 21.12.2003 at 7.00 AM, and thereafter the case was registered. According to P.W.6, he recorded Ex.P8 at 3.00 PM on 20.12.2003. Therefore, the abnormal delay of 16 hours in sending the statement to police station, has not at all been explained by the prosecution. Further more, P.W.6-Head Constable, who allegedly recorded Ex.P8-statement, has not put any preliminary questions to the deceased to know the state of her mind whether she was in a fit state to give the statement. Therefore, as contended by the learned counsel for the appellant and as deposed by D.W.1, possibility of obtaining thumb impression of the deceased in a blank paper and fabrication of Ex.P8, cannot be ruled out. So, these circumstances do indicate that Ex.P8 is not shown to be true and correct statement of the deceased. 14. Further more, in the first instance, the deceased was taken to Primary Health Centre, Duvvur. P.W.3, who was the Civil Assistant Surgeon of the Primary Health Centre, stated that on 20.12.2003 at about 1.30 PM, a patient by name Gangadevi was brought to the health centre stating that she consumed pesticide. So, if really, the accused is the person who forced the deceased to swallow the poison, definitely, it would have been stated to P.W.3 in the earliest opportunity when she was taken to the Primary Health Centre. In view of the fact that the hospital in which P.W.3 was working, is also a Government Hospital, he would have certainly sent an intimation to police if it is a medico legal case. P.W.3 categorically stated that in medico legal cases, they would inform to police, and that he did not inform to Duvvur police afterwards. Therefore, the surrounding circumstances in recording Ex.P8-statement by P.W.6 would give raise to any amount of suspicion whether it is a true and correct statement of the deceased. 15. Apart from the above, P.Ws.1 and 2, who are sister and brother respectively of the deceased, have given a complete go by to their earlier version and so they were rightly declared hostile by the prosecution. Even after their cross-examination, nothing has been elicited to connect the accused with the crime. On the other hand, their evidence is clear that the accused and the deceased were living amicably, and that after the deceased gave birth to second child, she started complaining stomach pain. Therefore, unable to bear the stomach pain, she might have consumed insecticide poison. There is no other evidence on record to show that the accused was present in the house at the time of the incident i.e. on 20.12.2003 at about 1.00 PM. So, it is not safe to place an implicit reliance on the recitals in the solitary statement Ex.P8 alone, to base a conviction. In these circumstances, it requires corroboration. There is no corroboration on material particulars to the alleged statement of the deceased, as the close relatives of the deceased viz. P.Ws. 1 and 2, her sister and brother, did not support the case of prosecution and the neighbourers who are residing near the scene of occurrence are also not examined to speak about the presence of the accused. These aspects have not been considered by the learned Sessions Judge in right perspective and came to wrong conclusion. Therefore, we have no hesitation to hold that the prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt and the accused is entitled for the benefit of doubt. 16. In the result, the conviction and sentence recorded in the judgment dated 02.04.2007 in Sessions Case No.107 of 2004 on the file of the II Additional Sessions Judge, Kadapa at Proddatur against the appellant/sole accused for the offence punishable under Section 302 IPC, are set aside. The appellant/accused is found not guilty of the charge levelled against him and accordingly he is acquitted of the same. He shall be released forthwith if he is not required in any other case. 17. The Criminal Appeal is, accordingly, allowed. ------------------------- (K.C.BHANU, J.) ------------------------------------------ (N.R.L. NAGESWARA RAO, J.) 22.12.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 772 OF 2007 (per the Hon’ble Sri Justice K.C. Bhanu) 22.12.2010 THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 772 OF 2007 Date: 22.12.2010 Between: Gantigalla Obulesu …Appellant/accused And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent [1] AIR 1958 SC 22