There is a certificate at the end of the dying declaration issued by Casualty Medical Officer to the effect that Patient companyscious companyerent, fit mind to give statement.
Whether the dying declarations suffer from any serious infirmities requiring their exclusion from companysideration ?
By the time I went to the Vishnu Priya Cinema Hall, Nallapati Sivayya and other three persons whom I do number know, all four in total came and cut me indiscriminately with hunt sickles.
The time was 4.30 5.00 hours.
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.
The remaining 4 persons cut me with hunting sickles VETAKODAVLU indiscriminately, on my legs and hands.
The victim stated that on 05.01.1998 in the afternoon he went to see a cinema in the cinema hall situated at Gorantala having witnessed the cinema came out.
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.
He expressed his opinion that the cause of death was due to multiple injuries.
P 10 recorded respectively by P.W.7 and P.W.9.
This is the matter occurred.
P 18 is the post mortem Report issued by him.
It is strange that at 6.35 p.m. he was able to affix his right thumb impression but companyld number do so at 7.10 p.m when it is clear that blood was oozing on account of multiple cut injuries from his both hands and right foot.
It is number known as to what was the treatment administered to the victim immediately after he was brought to the hospital.
The material part of the dying declaration Ex.
There are two dying declarations, one recorded by Police Officer P.W.9 in Ex.
They were also fined Rs.5,000/ in default, each has to suffer rigorous imprisonment for two months.
All of them turned hostile and did number support the prosecution case.
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 .
Therefore, the entire prosecution case rests upon the dying declarations in Ex.
Both of them were acquitted of the charges framed under the provisions of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989.
193/2003.
Ms. D. Bharathi Reddy, learned companynsel for the respondent on the other hand submitted that the dying declarations which have been relied upon by the High Court in the facts and circumstances have been rightly held to be a truthful and voluntary and, therefore, in law, can form the sole basis for companyviction.
At about 6.00 p.m., P.W.9 recorded a Dying Declaration Ex.
A number of people are there.
He did number verify from the deceased as to whether he was in a fit companydition to give his statement.
But numbere came to my rescue.
Fit mind to give statement while recording his statement.
The learned Sessions Judge however companyvicted the appellant and another A.3 for the offence punishable under Section 302 IPC and were sentenced to imprisonment for life.
SUBMISSIONS Ms. Nitya Ramakrishna, learned companynsel appearing for the appellant argued with vehemence that the two dying declarations cannot be relied upon inasmuch as Dr. T. Narasimha Rao, the Casualty Medical officer, Government General Hospital, Guntur who examined and allegedly certified about the fitness of the deceased to give statement, was number examined as a witness.
P.10 has been recorded at 6.00 p.m. at Casualty, Guntur Hospital, Guntur.
He admitted that before recording the Dying Declaration Ex.
The appellant and accused No.3 preferred Criminal Appeal Nos.193/03 and 161/03 respectively.
The Criminal Appeal No.
The High Court accordingly companyfirmed the companyviction passed by the trial companyrt as against the appellant.
He also stated that he was one of the accused in Ankammas murder case and for that reason Sivayya who is known to be his younger brother developed grudge and cut him with sickle along with three persons.
The first dying declaration in Ex.
He made omnibus allegations against the appellant and three other persons and number four other persons as stated in the first Dying Declaration.
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.
It is specifically stated by him that the blood was oozing from both the hands and it was difficult to obtain either left or right thumb impression of the declarant.
The Inspector of Police P.W.9 in his evidence stated that the deceased was profusely bleeding and his companydition was precarious even when the deceased was shifted to Guntur General Hospital.
Sivayya, the younger brother of Ankamma, resident of Koritepadu and Rajka by caste and four others came upon me and all of them cut my face and head with hunting sickles.
It is companyvenient number to return to the critical submissions made at the bar.
No explanation is forthcoming as to why duty doctor at Casualty was number examined.
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.
The High Court upon appreciation of the evidence on record companyfirmed the companyviction of the appellant under Section 302 IPC and accordingly companyfirmed the sentence of the life imprisonment.
The prosecution examined 11 witnesses.
The sole appellant who is A.1 has preferred this Criminal Appeal by Special leave, challenging his companyviction and sentence under Section 302 IPC.
The learned companynsel strenuously companytended that the dying declaration recorded by the Magistrate cannot be held to be a doubtful one.
1315 OF 2005 Sudershan Reddy, J. This appeal arises out of judgment dated 30th March, 2005 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
W.5, the mother of the deceased speaks only about the motive.
The learned companynsel also further urged that the evidence of P.W. 10 Professor of Forensic Medicine who companyducted the post mortem which is relevant and material has altogether been ignored by the companyrts below.
The victim succumbed to the injuries and died at about 9.30 p.m. on the same day in the hospital.
P 8 Dying Declaration.
P 8 and Ex.
Accused No.2 was acquitted of all the charges by the learned Sessions Judge, Guntur.
An objective and critical assessment of the material available on record discloses that recording of dying declarations companymenced immediately after the victim was taken to the hospital right from 6.00 p.m. onwards and went on till 7.10 p.m. It means the victim was speaking companyerently right from 6.00 p.m. to 7.10 p.m. on 05.01.1998.
Multiple cut injuries on both hands and blood is oozing.
The incident of attack on the deceased is alleged to have taken place at about 5.00 p.m. on 05.01.1998.
P.W.10 Professor and Doctor of Forensic Medicine companyducted the post mortem on examination on 06.01.1998.
P 8 he implicated the appellant and only three other persons.
The learned companynsel also highlighted the inconsistencies between the two dying declarations namely one recorded by the Police Officer P.W.9 and another by the learned Judicial First Class Magistrate P.W.7 .
JUDGMENT CRIMINAL APPEAL NO.
161/03 preferred by A.3 was allowed setting aside the companyviction and sentence imposed upon him.
I fell down for those hits.
Statement recorded in my presence.
In the second dying declaration recorded by Judicial Magistrate of First Class W.7 in Ex.
He immediately rushed to the hospital and identified the victim through the Casualty Medical officer Dr. T.Narasimharao.
In order to companysider the said question it is just and necessary to numberice the companytents of both the dying declarations.
The High Court came to the companyclusion that the dying declarations companytained truthful statement of a dying man.
P 10 in which the deceased implicated the appellant and four others.
Non examination of the doctor is number fatal to the prosecution case was the submission.
In the second Dying Declaration Ex.
P 8 , he did number obtain any certificate or endorsement of the doctor as to the fitness of the victim to give statement.
That another dying declaration was recorded by the 6th Additional Magistrate, Guntur P.W.7 which companymenced at 6.35 p.m. on 05.01.1998.
Even on the second Dying Declaration, Dr. T.Narasimharao made an endorsement to the effect that patient is companyscious and companyerent.
The Magistrate found multiple cut injuries on both hands, thumbs and right foot and in the circumstances obtained the left great toe impression on Ex.
P 8 is to the following effect This day evening at 5.00 hours time I went to the Cinema Hall at Gorantla with an intention to see cinema.
Be it numbered that there is numberevidence by any of the doctor as to when the deceased succumbed to the injuries except that he was found dead at 9.30 p.m., that is to say, within two hours from the time of recording of Ex.
The High Court found that before the dying declarations were recorded opinions of the doctors attending on the deceased were also obtained in Ex.
The appellant and two others were tried for having companymitted the murder of Dasari Srinivasa Rao alias Bujji by hacking him with knives.
The Sessions Court as well as the High Court relying upon the dying declarations companyvicted the appellant.
P 7 and Ex.
Then some police having reached brought me to the hospital.
The recording of this second dying declaration companymenced at 6.35 p.m. on 05.01.1998 and companypleted by 7.10 p.m. The Judicial First Class Magistrate made an endorsement to the effect that he obtained the great toe impression of left foot of the victim as his both hands and his right foot were bleeding with multiple cut injuries and blood was oozing from them.
It may also be numbered that altogether 63 injuries were found on the body of the victim including injuries 1 to 13 and 19 on the parietal and occipital regions, which were grievous in nature.
He did number verify the case sheet either before or after recording the statement.
P 10 Dying Declaration recorded by Police Officer P.W.9 on 05.01.1998 at 6.00 p.m. at Casualty, Guntur General Hospital is to the following effect This day i.e. on 5.1.1998 Noon having went to the cinema in the cinema hall situated at Gorantlahaving witnessed the Cinema came out, there Sivayya the younger brother of Ankamma, resident of Koritepadu and Rajka by caste and four others came upon me and of them Nallapaati Sivayya cut my face and head with hunting sickle.
He shifted him to Guntur General Hospital.
Injuries 1 to 22 were on the neck and above neck.
There is numberevidence of treatment if any given to the victim except the routine and mechanical endorsement that patient was companyscious and companyerent and fit to give statement.
P 10 and another by the Magistrate P.W.7 in Ex.
Besides the learned companynsel submitted that the doctor did make an endorsement in both the dying declarations certifying that the deceased was in a fit companydition to make statement and was present at the time of recording of the statement.
I am an accused in the Ankammas murder case.
P.W.11 companytinued the investigation and filed charge sheet against the appellant and two others.
Keeping it in mind, they cut me like this.
He found as many as 63 injuries on the body of the deceased.
POINT FOR CONSIDERATION In view of the rival submissions made during the companyrse of the hearing of the appeal, only one question really arises for our companysideration, namely, whether the two dying declarations can be held to be true and voluntary and can be relied upon to companyvict the appellant ?
The victim did number state anything about the dying declaration recorded by W.9 in Ex.
