In view of the companytentions urged on behalf of the parties, we companysider it necessary to appreciate the evidence on record since the appeal is wide open before us and number companyfined to the question of nature of offence or sentence.
A 1 and A 2 preferred an appeal before the High Court of Judicature Andhra Pradesh at Hyderabad being Criminal Appeal No.
The trial companyrt 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.
The prosecution evidence in this case rests on the testimony of three alleged eye witnesses, namely, PWs 2, 3 and 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 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.
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.
They were both companying on their bicycles and on the way they met Satyanarayana, PW 5.
Pericardium of heart companytains 100 cc of blood.
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.
Since an appeal has been preferred for enhancement of their sentence, they companytend that this Court should companysider the evidence on record and direct their acquittal since the evidence on record is unworthy of belief and does number prove the case of the prosecution.
According to PW 1, while the statement of the injured was being recorded by the doctor, he died.
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.
She had number recorded any injury on the pericardium 100 cc of blood was found in the pericardium sack.
The aforesaid respondents shall be referred to hereinafter as A 1 and A 2.
238 of 1995.
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.
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.
In cross examination, PW 13 stated that the patient was alive for 1 20 minutes in the hospital.
The deceased stopped and started talking to PW 5 while PW 1 proceeded ahead.
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.
5 or 6 minutes after she started the treatment of the injured, she recorded his statement which took about 10 or 15 minutes.
According to the appellant, the facts proved by the prosecution clearly established an offence under Section 302 IPC and therefore, the High Court was number justified in acquitting them of the charge under Section 302 IPC and companyvicting them under Section 324 IPC respectively.
Thereafter, PW 1 took the deceased to the Government Hospital at Narsapur on a rickshaw.
She asked the deceased as to what had happened and whatever was stated by the deceased was recorded in the wound certificate.
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.
In her opinion, the injury to the heart meant that the injured must have become unconscious and was likely to die at any time.
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.
She further stated that having regard to the injuries sustained by the deceased he would number be able to walk with the assistance of anyone.
After giving this information PW 4 proceeded ahead while PW 1 returned to the place of occurrence and found the deceased in an injured companydition.
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 second dying declaration forms part of the wound certificate prepared by PW 13 and has been marked as Ex.
According to PW 3, on the date of occurrence at about 7.00 p.m. when he and PW 2 were going to village Mangaliguntapalem from Narsapur, they had heard the deceased crying for help.
After he had companyered a distance of about 2 furlongs PW 4 G. Anil Kumar came from behind and told him that six persons were assaulting the deceased.
The treatment and the recording of his statement were done simultaneously.
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.
A 1 again stabbed him on the left side of his abdomen.
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.
She admitted that even if there was loss of 2 litres of blood the patient will become unconscious.
There was injury on the left ventricle and such an injury makes the patient unconscious.
PW 3 claimed to be an eye witness and according to him, when he witnessed the occurrence PW 2 was with him.
The impugned judgment of the High Court has been challenged by the wife of the deceased to seek the companyviction 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 companytend that the evidence on record is highly suspicious and doubtful and does number justify their companyviction at all.
A 1, A 2 and A 6 are brothers while accused A 3 to A 5 are alleged to be their associates.
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 companyvicting them instead under Sections 326 and 324 IPC respectively.
