(SUPREME COURT OF INDIA)
Sabbita Satyavathi
Vs
Bandala Srinivasarao and others
HON'BLE JUSTICE N. SANTOSH HEGDE AND HON'BLE JUSTICE B. P. SINGH
15/03/2004
Criminal Appeal No. 1026 of 1997
JUDGMENT
The Judgment
was delivered by B.P. SINGH, J.
This appeal by special leave has been preferred by the wife of the deceased,
who is said to have been murdered by respondents 1, 2 and others on January 9,
1992 at about 6.30 p.m. The appellant has impugned the judgment and order of
the High Court acquitting the respondents 1 and 2 herein of the charge under
Section 302 IPC and convicting them instead under Section 326 and 324 IPC
respectively. The aforesaid respondents shall be referred to hereinafter as A-1
and A-2. According to the appellant, the facts proved by the prosecution
clearly established an offence under Section 302 IPC and therefore, the High
Court was not justified in acquitting them of the charge under Section 302 IPC
and convicting them under Section 324 respectively.
2. The occurrence giving rise to the instant appeal is alleged to have taken
place at about 6.30 p.m. on January 9, 1992. The case of the prosecution was
that six persons including A-1 and A-2 way laid the deceased and assaulted him
with knife, iron rods and sticks as a result of which, he succumbed to his
injuries in the hospital. All the six accused A-1 to A-6 were tried by the
Additional Sessions Judge, West Godavari Division, Eluru charged of offences
under Sections 148 and 302 read with Section 149 IPC in Sessions Case No. 130
of 1992. A-1, A-2 and A-6 are brothers while accused A-3 to A-5 are alleged to
be their associates. The trial court by its judgment and order of November 21,
1994 acquitted A-3 to A-6 of the charges levelled against them and found only
A-1 and A-2 (respondents herein) guilty of the offence under Section 302 IPC
for which it sentenced them to undergo imprisonment for life.
3. A-1 and A-2 preferred an appeal before the High Court of Judicature Andhra
Pradesh at Hyderabad being Criminal Appeal No. 238 of 1995. The High Court by
its judgment and order of July 3, 1996 acquitted A-1 and A-2 of the charge
under Section 302 IPC but found them guilty of lesser offences. A-1 was found
guilty of the offence under Section 326 IPC and sentenced to four years rigorous
imprisonment while A-2 was found guilty of the offence under Section 324 IPC
and sentenced to two years rigorous imprisonment. The impugned judgment of the
High Court has been challenged by the wife of the deceased to seek the
conviction of A-1 and A-2 under Section 302 IPC thereby seeking enhancement of
their sentence A-1 and A-2 (respondents) on the other hand contend that the
evidence on record is highly suspicious and doubtful and does not justify their
conviction at all. Since an appeal has been preferred for enhancement of their
sentence, they contend that this Court should consider the evidence on record
and direct their acquittal since the evidence on record is unworthy of belief
and does not prove the case of the prosecution.
4. In view of the contentions urged on behalf of the parties, we consider it
necessary to appreciate the evidence on record since the appeal is wide open
before us and not confined to the question of nature of offence or sentence.
5. The prosecution evidence in this case rests on the testimony of three
alleged eye witnesses, namely, PWs 2, 3 and 4. The prosecution also relies upon
the dying declaration made by the deceased to PW-1 as also the statement made
to the Medical Officer, PW-13 when he was examined by her at the Narsapur
Hospital. The second dying declaration forms part of the wound certificate
prepared by PW-13 and has been marked as Ex. P-10.
6. The case of the prosecution is that on January 9, 1992 at about 6.30 p.m.
the deceased and PW-1 were returning to their village Mangaliguntapalem from
Narsapur. They were both coming on their bicycles and on the way they met
Satyanarayana, PW-5. The deceased stopped and started talking to PW-5 while
PW-1 proceeded ahead. After he had covered a distance of about 2 furlongs PW-4
G. Anil Kumar came from behind and told him that six persons were assaulting
the deceased. After giving this information PW-4 proceeded ahead while PW-1
returned to the place of occurrence and found the deceased in an injured
condition. When he asked the injured as to how he had sustained injuries, he
was told by the deceased that A-1, A-2, A-6 and three others had assaulted him
saying that he was obstructing them in all matters. They abused him and
thereafter A-2 beat him with an iron rod on his left fore arm and A-6 also beat
with an iron rod on the left fore arm. A-1 stabbed him with a knife on the left
side of his abdomen and the other three persons beat him with sticks on his
head. A-1 again stabbed him on the left side of his abdomen. Thereafter, PW-1
took the deceased to the Government Hospital at Narsapur on a rickshaw.
According to PW-1, while the statement of the injured was being recorded by the
doctor, he died. Several other persons had assembled at the hospital which
included the local MLA and some other political personalities. After the death
of the deceased he went to the Police Station Narsapur and lodged the FIR Ex.
P-1. According to his witness, several persons were present when the doctor
recorded the statement of the deceased. He was also present and he heard the
statement given by the deceased. The recording of the statement took about 11/2
hours.
7. He further deposed that when he came to the place of occurrence he found
profuse blood on the ground. He lifted the deceased and made him walk for some
distance till he got a rickshaw and placed him upon the rickshaw. He denied the
suggestion that the deceased had not named A-6. He also denied that in the FIR
as also in his statement recorded under Section 161 Cr.P.C. he had stated that
the deceased had told before him only A-1 and A-2 and one other unknown person
had attacked him. He was confronted with his earlier statement where it was so
recorded. He also denied the suggestion that the deceased was unconscious by
the time he reached him, and that he succumbed to his injuries on the way to
the hospital.
8. PW-13, Dr. P. Martho was the Assistant Civil Surgeon at the Government
Hospital, Narsapur where the deceased was brought in an injured condition at
8.45 p.m. PW-13 examined the injuries of the deceased and found the following
injuries:-
"1. Stab injury chest, on the left side, over 6 to 7th intercoastal
space in the anterior axillory line. It is spindle shape, edges clean tissues
cut sharply obliquely, directed and 1-1/4" x 1/2 x depth leading into the
thoracic cavity.
2. Incised injury 1/2" x 1/4" x 1" depth suspected to enter into
the thoracic cavity. Present over the left side of the chest in the posterior
axillary line 708 inter costal space bleeding.
3. Lacerated injury of 1-1/4 x 1/4" x 1/2 over the head on the frontal
area in the mind line. Transversed placed 1-1/2" above the forehead from
hair line.
4. Contused swelling 4" x 4" over the left hand. Fracture metacarpal
bone suspected.
5. Incised injury over the left hand little finger over palmaic dorsal aspect
measure 1" x 1/4" x 1/4" bleeding oblique.
6. Incised injury of 1/4" x 1/4" x 1/8" over the forehead in
the...
7. Incised injury 3/4" x 1/4" x 1/4" over the left elbow.
8. Incised injury 1/2" x 1/4" x 1/4" over the left fore arm near
to wrist on the post aspect bleeding. 9. Fracture of left middle finger. *
10. Incised injury over left leg." *
9. PW-13 claimed that she had recorded the statement of the deceased in the
wound certificate itself Ex. P-10. The same doctor conducted the post-mortem
examination over the dead body of the deceased and found the following injuries
on internal examination:-
"Internal examination :- Incised injury 1/4" x 1/4" depth
opens into the left cavity oblique. Present over the 7th intercoastal space.
Oblique. Edges clear cut spindle shape. 7th rib left side fracture at the site
of injury. Corresponds to the external injury No. 3. Another incised injury
over the 8th inter coastal space on the left side of the chest 1/2" x 1/4"
x 1/2" over the space. It is not external into the plural cavity. It is
oblique edges clear cut. Thoracic cavity on the left side contains dark blood
about 2 litre of blood. On the right side contains about 500 cc of dark blood.
Left lung present with an incised injury 1/2" x 1/4" x 1/4" over
the anterior surface over the lower lobe. Another incised injury of 1/4" x
1/4" x 1/4" on the post aspect, the same lower lobe left right lung.
Opinion as to cause of death; congested: Heart: Congested it present with an
incised injury 1/2" x 1/4" x 1/4" over the ventricle area of the
heart, over the anterior aspect. Injuries over the heart left lung communicates
with the external injury No. 3. Pericardium of heart contains 100 cc of
blood".
*
10. In her opinion, the deceased died due to injuries to his vital organs such
as heart and left lung causing hemorrhage, shock and injuries to the skull.
11. In cross-examination, PW-13 stated that the patient was alive for 1-20
minutes in the hospital. She asked the deceased as to what had happened and
whatever was stated by the deceased was recorded in the wound certificate. The
treatment and the recording of his statement were done simultaneously. 5 or 6
minutes after she started the treatment of the injured, she recorded his
statement which took about 10 or 15 minutes. At the time of the recording of
the statement, PW-1 was present apart from the local MLA and other political
leaders. At about 9.15 p.m. the patient was gasping for breath and became
unconscious. She further stated that having regard to the injuries sustained by
the deceased he would not be able to walk with the assistance of anyone. She
admitted that even if there was loss of 2-1/2 litres of blood the patient will
become unconscious. She had not recorded any injury on the pericardium 100 cc
of blood was found in the pericardium sack. In her opinion, the injury to the
heart meant that the injured must have become unconscious and was likely to die
at any time. There was injury on the left ventricle and such an injury makes
the patient unconscious.
12. It may be noticed that so far as the statement recorded by the Medical
Officer is concerned, the deceased did not mention about the presence of A-3 to
A-6 and had only stated that he was assaulted by A-1, A-2 and one unidentified
person.
13. We may now consider the evidence of the alleged eye witnesses. PW-2 was
declared hostile, as he did not support the case of the prosecution. PW-3
claimed to be an eye witness and according to him, when he witnessed the
occurrence PW-2 was with him. According to PW-3, on the date of occurrence at
about 7.00 p.m. when he and PW-2 were going to village Mangaliguntapalam from
Narsapur, they had heard the deceased crying for help. When they went near him
they saw A-2 and A-6 beating the deceased with rods while A-3 to A-5 were
assaulting him with sticks. A-1 stabbed the deceased with a knife on the left
side of his abdomen twice. Seeing the occurrence he got frightened and returned
to Narsapur. He stayed at Narsapur for two days and when he came to know
thereafter that the police had visited the village he went to the village
whereafter his statement was recorded by the police. According to this witness,
it was a moonlit night and he had witnessed the occurrence from about a distance
of 10 yards. He stated that though he had no fear to go to the police station,
he neither went to the police station nor did he inform anyone at Narsapur
about the occurrence. He had stayed with his sister at Narsapur but he did not
inform any member of the family there about the occurrence.
19. The only other witness who claimed to have witnessed the occurrence is
PW-4. We have earlier noticed the fact that after witnessing the occurrence he
had informed PW-1 about what he had seen and thereafter he had proceeded ahead.
In cross-examination, this witness admitted that he did not inform anyone in
village Mangalinguntapalam about the occurrence nor did he inform any of the
relatives of the deceased. He could not identify the accused. He did not know
A-1, A-2 and A-6. He could not say whether these accused were present at the
time of occurrence.
15. The prosecution also examined PW-6 and PW-9 to prove the motive for the
commission of the offence. From their evidence, it was sought to be established
that the deceased was a village elder and whenever any occurrence took place he
intervened and took active part of secure justice to the person aggrieved. When
A-1 had a quarrel with PW-6 or had assaulted PW-9, he had been instrumental in
admonishing A-1 and in lodging a report against him with the police. These two
occurrences relating to which PW-6 and PW-9 have deposed took place on
30.12.1991 and 16.9.1991. The case of the prosecution is that on account of
such interference by the deceased A-1 and his associates were aggrieved and
they, therefore, had a motive to commit the murder of the deceased.
16. The trial court having noticed the evidence of the eye witnesses has
rightly not attached much importance to the evidence of PW-3 because this
witness admitted that he neither went to the police station nor did he inform
anyone about the occurrence for about two days. He had named all six accused as
the assailants, which does not appear to be true. So far as PW-4 is concerned,
the trial court accepted his evidence to the effect that he had, after
witnessing the occurrence reported the matter immediately to PW-1, who returned
to the place of occurrence and thereafter took the injured to the Narsapur
Hospital. Even assuming that this witness may have seen the occurrence, his
evidence does not implicate the accused because he admitted in his deposition
that he did not identify the assailants nor did he know a-1, A-2 and A-6. He
also could not say whether these accused were present at the time of
occurrence. The other thing to be noticed in the evidence of this witness is
that according to him, he had informed PW-1 that 5 or 6 persons armed with
rods, sticks and knives were assaulting the deceased which also appeals to be
untrue. This witness has, therefore, implicated 5 or 6 persons whom he could
neither name nor identify. We, therefore, do not consider it safe to place
reliance upon these two witnesses, namely PWs. 3 and 4. #
17. Considering the two dying declarations, one made before PW-1 and the other
before the medical officer, PW-13, the trial court found that in those who
statements made by the deceased, only A-1 and A-2 had been named and the third
person who participated with them in the assault was unidentified. Having
regard to these two dying declarations, the trial court found the evidence of
PW-1 unacceptable to the extent that in his deposition he had stated that the
injured had named all the six accused. The trial court, therefore, came to the
conclusion that the two dying declarations only proved the complicity of A-1
and A-2. Accordingly it acquitted the remaining four accused persons.
18. The High Court on an appreciation of the evidence on record excluded the
participation of A-2 to A-6. However, it noticed that injuries found on the
person of the deceased were more in number than those mentioned by the
witnesses. Though, the participation of A-1 and A-2 could not be doubted,
having regard to the evidence on record, it was not possible to conclude that
they had committed the offence under Section 302 IPC. There was a doubt as to
the role played by each of the accused, the nature of arms used and the nature
of injuries caused by them on the deceased. The evidence on record only
justified the conviction of A-1 under Section 326 IPC and of A-2 under Section 324
IPC.
19. Having gone through the evidence on record, we are satisfied that PW-1
cannot be categorized as a fully reliable witnesses. In the FIR lodged by him
soon after the death of the deceased he had mentioned about the dying
declaration made to him by the deceased which implicated only A-1 and A-2 apart
from another unidentified person. However, in the course of deposition, he
sought to implicate four other persons. He was obviously not speaking the truth
because we find from the second dying declaration recorded by the Medical
Officer that to her also the deceased is alleged to have reported that he was
assaulted by A-1, A-2 and another unidentified person. It will, therefore, be
dangerous to rely upon the oral dying declaration alleged to have been made by
the deceased to PW-1. We shall, therefore, keep that dying declaration out of
consideration. #
20. The next question is whether the second dying declaration made to the
Medical Officer can be acted upon to convict A-1 and A-2. We have found on a careful
scrutiny of the evidence on record, a few features which have remained
unexplained. # According to the prosecution, only A-1 was armed with a
sharp cutting weapon such as knife and according to the prosecution evidence,
A-1 stabbed the deceased twice. However, we find as many as seven incised
injuries on the person of the deceased. There is only one lacerated injury and
one contused swelling apart from the fracture of the left little finger. The
manner of occurrence, therefore, as alleged by the prosecution does not fit in
with the findings of the Medical Officer having regard to seven incised
injuries found on the person of the deceased.
21. There is yet another reason which casts a serious suspicion on the
second dying declaration. According to the Medical Officer, PW-13, the injured
was brought to the hospital at about 8.45 p.m. and was alive for about 1-20
minutes thereafter. She started the treatment of the injured in right earnest
and 5 or 6 minutes thereafter she recorded the statement of the deceased which
took about 10 to 15 minutes. According to her, at 9.15 p.m. the patient started
gasping for breath and became unconscious. The picture that we get is that soon
as the Medical Officer completed recording his statement the injured became
unconscious. He is said to have ultimately died at about 10.10 p.m. The
respondents have contended that the presence of large number of political
personalities at the hospital, having regard to the fact that the deceased was
also a person well-known in the locality makes it doubtful whether the
statement was correctly recorded or recorded at all. # In fact, it is
contended that having regard to the injuries sustained by the deceased, he
would not have been in a position to make any statement even if he was alive.
He must have become unconscious soon after suffering the injuries and there was
no question of his either making a statement before PW-1 or before the Medical
Officer. There is substance in the argument advanced on behalf of A-1 and A-2,
PW-13 admitted that death of the deceased was due to injuries to vital organs
such as heart and left lung. We find from the post-mortem report that the left
lung and suffered incised injuries at two places. Apart from the injuries to
the left lung, it was also found that one of the injuries caused on the left
side of the chest had pierced the body to such an extent that the ventricle of
the heart also suffered an incised injury over the anterior aspect. It appears
from the post-mortem report that the same stab injury caused damage to the left
lung as also to the heart. This only indicates that the stab injuries were
caused to the deceased with such great force that they not only fractured one
of his ribs but also entered the thoracic cavity and injured the left lung and
the ventricle of the heart. With such injuries, we entertain serious doubts
as to whether the injured could have given two dying declarations as alleged by
the prosecution, one at about 7.00 p.m. and the other at about 8.45-9.00 p.m.
This is also supported by the medical evidence on record in as much as PW-13
has herself stated that if such an injury is caused to the heart, the injured
would become unconscious immediately. It, therefore, appears to us that after
suffering the injuries the deceased must have become unconscious immediately.
There was, therefore, no question of his making a dying declaration to anyone
thereafter. We also notice the fact that according to PW-1 after making a dying
declaration, the accused walked a few steps with him with his help till such
time they got a rickshaw which carried them to the hospital. According to the
Medical Officer, PW-13, a person with such injuries could not walk at all even
with the help of someone else. Having regard to the sever nature of injuries
and the vital organs involved which suffered incised injuries such as heart and
the lungs, we entertain a serious doubt about the recording of the second dying
declaration by the Medical Officer almost two hours after the occurrence. #
22. In this state of the evidence on record, we are not satisfied that the
prosecution has proved its case beyond reasonable doubt. A-1 and A-2
(respondents herein) are entitled to the benefit of doubt. We, therefore,
dismiss this appeal but having regard to our findings, we acquit the respondents
of the charges leveled against them. #