Nallapati Sivaiah vs Sub-Divisional Officer, Guntur, A.P

1. This appeal arises out of judgment dated 30th March, 2005 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No. 193/2003. The appellant and two others were tried for having committed the murder of Dasari Srinivasa Rao alias Bujji by hacking him with knives. The appellant and the two others were also tried for various offences including the one punishable under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused No.2 was acquitted of all the charges by the learned Sessions Judge, Guntur. The learned Sessions Judge however convicted the appellant and another (A.3) for the offence punishable under Section 302 IPC and were sentenced to imprisonment for life. They were also fined Rs.5,000/- in default, each has to suffer rigorous imprisonment for two months. Both of them were acquitted of the charges framed under the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant and accused No.3 preferred Criminal Appeal Nos.193/03 and 161/03 respectively. The High Court upon appreciation of the evidence on record confirmed the conviction of the appellant under Section 302 IPC and accordingly confirmed the sentence of the life imprisonment. The Criminal Appeal No. 161/03 preferred by A.3 was allowed setting aside the conviction and sentence imposed upon him. The sole appellant who is A.1 has preferred this Criminal Appeal by Special leave, challenging his conviction and sentence under Section 302 IPC.

2. The case of the prosecution in nut shell is that the deceased Dasari Srinivasa Rao alias Bujji was an accused in a case relating to the murder of brother of the appellant. On 05.01.1998 at about 4.30 or 5.00 p.m, the three accused including the appellant herein chased the deceased and attacked him with knives while he was returning from Vishnupriya Cinema theatre, Gorantala, Guntur, after seeing a movie causing multiple injuries leading to his death. The Sub-Inspector of Police (P.W. 9) reached the scene of offence by 5.30 p.m. and found the injured (deceased) on the road. He shifted him to Guntur General Hospital. At about 6.00 p.m., P.W.9 recorded a Dying Declaration (Ex.P-

3. The prosecution examined 11 witnesses. P.W.1 to 4 were alleged to be the direct eye-witness (the Supervisor of the cinema theatre, owners of a Hotel and tea stall on the road side near the cinema theatre and person who accompanied the deceased to the movie). All of them turned hostile and did not support the prosecution case. P.W.5, the mother of the deceased speaks only about the motive. Therefore, the entire prosecution case rests upon the dying declarations in Ex.P-8 and Ex.P-10 recorded respectively by P.W.7 and P.W.9. The Sessions Court as well as the High Court relying upon the dying declarations convicted the appellant. The High Court found that before the dying declarations were recorded "opinions of the doctors attending on the deceased were also obtained in Ex.P-7 and Ex.P-11, which clearly show that the deceased was fit enough to make the statement when these dying declarations were recorded. Strange are the ways in which human bodies react to different situations. Though superficially it appears that with 63 injuries on the body of a person he would not be in a position to make a statement but it appears that he was fit enough to make a statement." The High Court came to the conclusion that the dying declarations contained truthful statement of a dying man. The High Court accordingly confirmed the conviction passed by the trial court as against the appellant. It is convenient now to return to the critical submissions made at the bar.

[Emphasis supplied]

Can the medical evidence be altogether ignored ?

38. In our considered opinion, the medical evidence and surrounding circumstances altogether cannot be ignored and kept out of consideration by placing exclusive reliance upon the testimony of person recording a dying declaration.

40. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence.

42. We are not satisfied that the prosecution has proved its case against the appellant beyond reasonable doubt. Appellant is entitled to the benefit of doubt. We, therefore, allow this appeal and acquit the appellant of the charges leveled against him. The appellant is therefore directed to be released forthwith provided he is not required in connection with any other case or cases.