Supreme Court of India
VALLABHANENI VENKATESHWARA RAOversusSTATE OF A.P.
- Citation
- 2009 INSC 755
- Decided
- 8 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The dying declarations were not trustworthy due to contradictions and lack of corroboration, making the convictions unsafe and therefore untenable.
Summary
The appellants A‑1 to A‑3 were convicted under IPC sections 302, 149, 148 (and 341 for one) based largely on two dying declarations, Ext P‑12 and Ext P‑14. The High Court upheld the convictions of A‑1 to A‑3 while acquitting A‑4 to A‑7, holding that Ext P‑14 was unreliable. On appeal, the Supreme Court examined the medical evidence, the circumstances of recording, and the inconsistencies between the two declarations and other witness testimony. It found that the dying declarations were contradicted by the doctor’s testimony, varied in the number of assailants and the manner of attack, and lacked corroboration, especially the unexamined eye‑witness in Ext P‑12. Consequently, the Court held that the declarations could not be believed and that it would be unsafe to sustain the convictions. The convictions of A‑1 to A‑3 were set aside and the appeals were allowed.
Issues considered
- Whether the dying declarations Ext P‑12 and Ext P‑14 are reliable enough to support convictions under IPC sections 302, 149, 148 and 341.
- Whether contradictions in medical evidence and lack of corroboration render the dying declarations inadmissible.
Legislation cited
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 324, s. 325, s. 34, s. 341
Subjects
dying declarationreliabilitycontradictory evidencemedical testimonycorroborationIPC 302criminal convictionappellate review
Judgment
[2009] 7 S.C.R. 1210
A VALLABHANENI VENKATESHWARA RAO
v.
STATE OF A.P.
Criminal Appeal No. 373 of 2008
MAY 08, 2009
B
(DR. ARIJIT PASAYAT AND DR.MUKUNDAKAM
SHARMA, JJ)
PENAL CODE, 1860:
c ss.3021149 - Conviction of seven accused by trial court
- Acquittal of four of them by High Court disbelieving one of
the two dying declarations, recorded by the police - Held: In
view of the contradictions in the facts mentioned in the dying
declarations and testimonies of the doctor and the other
prosecution witness, the dying declarations can not be believed
D
- In the circumstances, it would not be safe to convict the
accused - Their conviction is set aside - Dying declaration. ·I
The appellants and four others were prosecuted for
commission of offences punishable u/s 302/149 and 148
E IPC. The prosecution case was that there was enmity
between the accused group and the complainant party.
On the specified date the accused assaulted the brother
of PW3 as a result of which the victim died the same day
in the hospital. The trial court relying upon the prosecu-
F tion evidence and two dying declarations (Ext. P-12 and
Ext. P-14) convicted all the seven accused of the offences
charged. On appeal, the High Court affirmed the conviction
of A-1 to A-3 and acquitted A-4 to A-7.
In the appeals filed by A-1 to A-3, it was contended
G for the appellants that the reasons given by the High Court
for rejecting the second dying declaration (Ext.P-14), were
equally applicable to the first dying declaration (Ext.P-12)
and, therefore, the appellants were also entitled to
acquittal.
H 1210
VALLABHANENI VENKATESHWARA RAO V. 1211
STATE OF A.P.
Allowing the appeals, the Court A
HELD : 1.1 As regards the alleged dying declaration
\
(Ext.12), the A.S.l.(PW-8) stated that on 9.10.2002 at 12.45
p.m. the injured (deceased) was brought by his brother
(PW3) to police station where Ext. P-12 was recorded by
B
him (P.W.8) between 12.45. P.M. and 1.15 P.M. Ext. P-12
would indicate, that P.W.8 obtained the LT.I, of the
deceased; whereas P.W.10, the Doctor, stated that the
victim after receipt of first injury on the head would have
become unconscious; and he could not have been in a
position to speak; and that because of the injury in the
c
left elbow joint, he could not be in a position to put left
- thumb impression. Thus the statement of the doctor
falsifies the deposition of P.W.8.(para 7] (1217-D-G]
1.2 Further, according to P.W.8, after recording Ext. D
P-12, he sent the injured (deceased) to the hospital along
with a constable and Hospital Memo. But P. W.10, the
doctor, specifically stated that the injured was not sent
by the police and there was no hospital memo, as is
evident from Ext. C-2. He further stated that since injured E
was not in a fit condition to give statement, he asked P.W.3
who accompanied the deceased about the incident. There
is no explanation from the prosecution in this regard and,
as such, there is no corroboration for the statement of
P.W.8. (para 7] (1217-H; 1218-A-D] F
1.3According to P.W.3, when the deceased was sitting
in the car in front of the Police Station, P.W. 8 came out of
the Police Station and recorded Ext. P-12 statement from
the injured. But according to P.W.8, the injured was
brought inside the Police Station and his statement (Ext. G
" P-12) was recorded there. Thus there is a variation. But
the fact remains that both had stated that Ext. P-12 was
recorded at the Police Station before reaching the
hospital. If this is true, P.W.3 would have stated to the
H
1212 SUPREME COURT REPORTS [2009] 7 S.C.R.
A doctor that 3 persons attacked the deceased with sticks
as referred to in Ext.P-12. On the other hand, he
specifically stated to doctor (PW 10) that 10 persons
attacked the deceased with crow bar as referred to in
Ext.C-2. As such, the statement of P.W.3 to the doctor
B (P.W.10) is contradictory to Ext.P-12. This shows that Ext.P-
12 was never recorded by P.W.8 in the police station in the
presence of P.W.3 before reaching the hospital, as they
directly went to the hospital. [para 7] [1218-F-H; 1219-A-B]
1.4 Ext. P-12 suffers from two infirmities. Firstly, medical
c evidence ..
is contradictory. Secondly, only eye witness 'J'
mentioned in Ext.P-12 was not examined. The non-
D
examination of the said eye witness would result in the
lack of corroboration to Ext.P-12. [para 7) [1219-G]
1.5 Ext.P-14 is not a mere improvement of Ext.P-12.
-
The story projected in Ext P-12 is entirely different from
Ext.P-14. As per Ext.P-12 from the bus stop the injured •
(deceased) proceeded to the village by walk and at that
time A-1 to A-3 attacked him in the presence of one eye
E witness 'J'. But according to Ext. P.14 the deceased came
to the road side along with P.W.1 and one R.M.P. Doctor in
the scooter and at that point of time A-1 to A-7 appeared
and attacked the deceased. The story in Ext.P-12 has been
given up and a new case has been projected in Ext.P-14
F by introducing new set of eyewitnesses and new set of
accused. [para 7) [1219-C-D]
1.6 It is, thus, evident that both Ext.P-12 and Ext.P-14
can not be believed. In the circumstances, it would be
unsafe to convict the accused-appellants. Their
G conviction is set aside. [para 7 and 9) [1220-B]
~
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 373 of 2008
From the Judgment and Order dated 31.12.2007 passed
H
VALLABHANENI VENKATESHWARA RAO V. 1213
STATE OF A.P.
by the Hon'ble High Court of Judicature, Andhra Pradesh at A
Hyderabad in Criminal Appeal No. 423 of 2007
WITH
Criminal Appeal No. 393 of 2008
M. Karapaka Vinayagam, Venkateshwara Rao Anumolu, 8
Prabhakar Parnam, P. S. Narasimhan, C. Masthan Naidu, for
the Appellant.
) R. Sundaravardhan, D. Bharathi Reddy, Altaf Fatima, for
· the Respondent. c
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.
r' 1. These two appeals are directed against the common
judgment of the Andhra Pradesh High Court. Seven accused D
persons had filed the appeal before the High Court questioning
their conviction for offences punishable under Sections 302 read
with Sections 149, 148 of the Indian Penal Code, 1860 (in short
the 'IPC'). Additionally, A 1 appellant in present Criminal Appeal
no.373 of 2008 was convicted for offence punishable under E
Section 341 IPC. Charge was made against all the accused
persons that on 9.10.2002 at about 11.30 a.m. all of them formed
an unlawful assembly near the fish tanks of Chevuru village and
beat Adusumalli Ranga Rao (hereinafter referred to as the
'deceased') with casuarian sticks and caused his death. F
2. The version of the prosecution as put forth is to the effect
that all the material witnesses as well as the accused are residents
of Chevuru village of Mudinepalli Mandal, Krishna District and
th.ere have been ill feelings between the accused and the G
prosecution witnesses. Accused Nos.1 and. 2 are brothers, 4
4 and 5 are the sons of A.1 and A.2. A.3 is the cousin and A.6 and
A.7 are brothers-in aw of A.1. PWs 1 to 6 belong to one group,
and the deceased is the brother of PWs 3 and 5. PW.4 is the
sister's son of the deceased. On 9-10-2002 PW.1 went to
H
1214 SUPREME COURT REPORTS [2009] 7 S.C.R.
A Singarayapalem village to bring a doctor by name
B.Satynarayana (LW.2) to attend his maternal grandmother who
was suffering from ill-health. While bringing the doctor on his
scooter, at that time the deceased was also walking along on the
road. When PW.1 crossed Singarayapalem Centre, the
B deceased stopped his scooter for a lift. Then the deceased was
picked up on his scooter and when they reached Chevurupalem
Anjaneya Swamy temple, at that time PW.2 was also coming by
walk. Since the road repair works were going on, PW.1 asked
the doctor (LW2) and the deceased to get down and when he
c was coming on the road margin along with the scooter and
reached the tanks of Dr.Vijay Kumar, by stopping his scooter and
was waiting for the arrival of the Doctor (LW2) as well as the
deceased, at that point oftime all the accused who were holding
stout sticks and were proceeding towards Singarayapalem
o started abusing the deceased. Later, accused No.1 caught hold
of the deceased and beat with a stout stick on the head of the
deceased. A.4 and A.5 beat the deceased on the right shoulder.
A.2 and A.3 also beat the deceased on the left thigh and further
beat nearthe joint of leg. A.6 andA.7 also beat the deceased on
E the right leg. At that time the road coolies who are attending road
works also raised cries requesting not to beat the deceased.
Later PW.1 went to the village and informed about the incident to
PW.3. Thereafter, PW.3 came to the scene of offence and came
to know about the incident through the deceased. Immediately
F for some time the deceased was taken to the hut of Jagan (LW.15)
situated on the tank bund and thereafter, the deceased was shifted
to Mudinepalli Police Station in Car. Assistant Sub-Inspector,
PW.8 who was in the Police Station recorded the statement of
the deceased under Ex.P.12 and initially registered a case in
G Crime No.96 of2002 for the offences punishable under Sections
341, 324, 325 read with 34 IPC in P.S.Mudinepalli and issued
FIR to all the concerned. Ex.P.13 is the FIR. Afterwards, the
deceased was referred for treatment to the Government Hospital,
Gudivada through PC No.795 along with a hospital memo. PW.10
H is the doctor treated the deceased. Ex.C.2 is the relevant entry in
VALLABHANENI VENKATESHWARA RAO V. 1215
STATE OF A.P. [DR. ARIJIT PASAYAT, J]
Ex.C.1 the accident register pertaining to the treatment of the A
deceased.
Later on PW.8 took up investigation and went to Gudivada
hospital and recorded the statement of the deceased while he
was alive, under Ex.P.14 and recorded the statements of PWs
8
3, 5, 4 and left the Gudivada Hospital and reached Chevuru
village and also examined and recorded the statements of PW.1
and LW.2 and again visited Chevuru village examined and
recorded the statements of LWs.12 and 13 and secured the
presence of mediators PW.6 and LW.21 and observed the scene
of offence in the presence of the above mediators and got C
prepared the observation report under Ex.P.1. Further, he seized
one pair of Hawai chappals (M08) and drew the rough sketch
and thereafter examined PWs. 15 and 16 and visited the house
of the accused and came to the Police station at about 6.30
p.m. on 9-10-2002. Meanwhile Police Constable 975 came to D
the Police Station and handed over the death intimation of the
deceased under Ex.P.15 and consequently PW.8 altered the
Section of law into one under Sections 147, 148, 341, 302 read
with 149 IPC. Ex.P.16 is the altered F.l.R.
E
Subsequently, PW.9, the Circle Inspector of Police took
up further investigation. On a requisition given by PW.9, the
Judicial First Class Magistrate Kaikaluru sent the material
objects to RFSL, Vijaywada along with a letter of advice under
Ex.P.17.After receipt of the RFSL report under Ex.P.19 and post F
mortem certificate under Ex.P.20, PW.9 filed charge sheet before
the Judicial First Class Magistrate, Kaikaluru and later on, the
case was committed to the Court of Session.
As accused persons pleaded innocence trial was held.
G
On consideration of the evidence on record the trial Court
·4 found that the accused persons were guilty as aforenoted.
Reliance was placed on two dying declarations i.e. Ext.P-12
and Ext.P-14. Questioning their conviction 7 convicted persons
filed appeal before the High Court which as noted above held H
1216 SUPREME COURT REPORTS [2009] 7 S.C.R.
A that A4 and A7 were not guilty and they were acquitted of the
charges. For their acquittal main reason is that Ext.P-14 was
disbelieved. So far as accused 1 to 3 are concerned, the appeal
was dismissed.
The present two appeals are by A 1 to A3. It is to be noted
8
that there were three dying declarations. The High Court has
given various reasons for rejecting Ex.P14 for recording acquittal
of A4 to A7.
4. According to learned counsel for the appellant the
c reasons for rejecting Ex.P14 are equally applicable to the
Ex.P12 and, therefore, the present appellant are entitled to
acquittal. A 1 is the appellant in Criminal Appeal No.373 of 2008
while A2 and A3 are the appellants in Criminal Appeal no.393
of 2008.
D 5. It is submitted that apart from the reasons relating to
Ex.P14 there are several other reasons which would warrant
rejection of Ex.P12.
6. Learned counsel for the respondent, on the other hand,
E supported the judgment of the High Court. It would be necessary
to take note of the reasons given by the High Court for the
rejection of Ex.P14.
"1. P. W.1 O Doctor has stated the deceased would have
become unconscious after receipt of head injury and
F he could not be in a position to speak. In view of the
Doctor's evidence, the deposition of P.W.8 that he
has recorded Ex.P.14 at the hospital is not reliable.
Further Ex.P14 was not recorded in the presence of
the Doctor.
G
2. Ex.P.14, the 2nd dying declaration, is the improved
version of Ex.P12 first dying declaration implicating ~
new set of accused and introducing new set of
eyewitness. So Ex. P 14 is to be rejected.
Consequently, the presence of P.W1 and P.W.2 at
H
VALLABHANENI VENKATESHWARA RAO V. .1217.
STATE OF AP. [DR. ARIJIT PASAYAT, J.]
the scene as mentioned in Ex.P14 has to be held A
doubtful.
3. P.W.10 Doctor says when the injured deceased was
admitted in the hospital he was not able to speak
and therefore he questioned P.W.3 about the incident
8
and recorded his statement in Ex.C-2 Ac~ident
Register. So the deceased who was not able to
speak could not have given Ex.P14 statement at the
hospital to P.W.8 AS.I.
7. In order to appreciate the stand taken by the appellants C
who contend to Ex.P12 has also to be rejected the following
factors need to be noted:
(1) P.W.8 AS.I stated that on 9.10.2002 at 12.45 P.M.
the injured deceased was brought to police station by his
elder brother P.W.3 and at the Police Station the Ex.P12 D
Statement was recorded from the injured deceased by
P.W.8 AS.I of Police between 12.45 P.M. and 1.15 P.M.
Ex.P.12 would indicate, that P.W.8 obtained the LT.I of
deceased. The evidence of P.W.8 and Ex.P12 statement
cannot be true because P.W.10 the Doctor stated that : E
(i) The victim after receipt of first injury on the head
would have become unconscious; and
.. (ii) That he could not have been in a position to speak.;
and F
(iii) That because of the injury No.6 in the left elbow joint,
he could not be in a position to put left thumb
impression.
Thus the above statement of P.W.10 Doctor falsifies the G
... deposition of P.W.8 who stated that he recorded Ex.P12 from
" the deceased and deceased put LTI in Ex.P12.
1
According to P.W.8 after recording Ex.P12, the 1• dying
declaration he sent the injured deceased to the hospital along H
1218 SUPREME COURT REPORTS (2009] 7 S.C.R.
A with a constable and Hospital Memo. This statement can not
be true because, P.W.10 doctor specifically stated that the
injured was not sent by the police and there was no hospital
memo. He further stated that since injured was not in a fit
condition to give statement, he asked P.W.3 who accompanied
B ·the deceased about the incident. P.W.10 Doctor admits while
referring to Ex-C-2 that police did riot accompany the deceased
and that was the reason as to why Ex. C-2 does not contain the
reference about the Hospital Memo sent by the Police or the
requisition of the Police and number of the Police Constable
C who was said to have taken the deceased to hospital. Ex.C-2
shows, the victim deceased was brought to the Hospital by P.W.3
alone and not by the police. Hospital Memo was not marked.
The concerned Police Constable also has not been examined.
There is no explanation from the prosecution in this regard such
D there is no corroboration for the statement of P.W.8, on the other
hand the evidence of P.W.10 and Ex.C-2 is contradictory to the
evidence of P.W.8. The fact that it is not established that Police
Constable accompanied the victim deceased to the hospital
along with Hospital Memo, would indicate that P.W.3 would have
come to the Hospital directly from the scene of offence without
E going to the Police Station. Therefore, the evidence of P.W.8
that he recorded the statement of injured person in Ex.P12 at
the Police Station is not reliable.
According to P.W.3, when the deceased was sitting in the
F car in front of the Police Station, P.W.8 came out of the Police
Station and recorded Ex.P12 statement from the injured
deceased. But according to P.W.8, the injured deceased was
brought inside the station from the car and his statement Ex.P12
was recorded at the verandah of the Police Station. Thus there
G is a variation. But the fact remains that both had stated Ex.P12
was recorded at the Police Station before reaching the hospital.
If this is true P.W.3 would have stated to the doctor P.W.10 that
3 persons attacked the deceased with sticks as refer to in
Ex.P12. On the other hand P.W.3 specifically stated to P.W.10
H Doctor that 10 persons attacked the deceased with crow bar
VALLABHANENI VENKATESHWARA RAO V. 1219
• STATE OF AP. [DR. ARIJIT PASAYAT, J.]
as referred to in Ex.C-2. As such the statement of P.W.3 to the A
Doctor P.W.10 is contradictory to Ex.P12. This ~hows Ex.P; 12
was never recorded by P.W.8 in the police station in the presence
of P.W.3 before reaching the hospital as they directly went to
the hospital. It was suggested to P.W.3 that they shifted the
deceased directly to the hospital from the scene of offence B
without going to the Police Station.
Ex. P.14 is not a mere improvement of Ex. P12. The story
projected in Ex.P12 is entirely different from Ex.P14. As per
¥
Ex.P12 from the bus stop the injured deceased proceeded to
the village by walk and at that time A-1 to A-3 attacked him in c
the presence of one eyewitness Jagan. But according to Ex.P.14
the deceased came to the road side along with PW.1 Sriniva
Rao and one R.M.P. Doctor in the scooter and at that point of
time A-1 to A-7 appeared and attacked the deceased. The story
in Ex.P.12 has been given up and new case has been projected D.
in Ex.P-14 by introducing new set of eye~itnesses and new set
of accused. Hence both Ex.P12 and Ex.P14 can not be
believed.
It is seen from the records, 3 different stories have been E
projected by the prosecution. As per Ex.P12 recorded at 12.45
P.M., 3 persons attacked with sticks in the presence of one eye
witness Jagan. As per C-2 recorded at 2.30 P.M. ten persons
attacked with crow bar.As p~r Ex.P14 recorded by P.W.8 before
the death of deceased at 2.50 P.M. seven persons attacked F
with sticks in the presence of two new eye witnesses. No clear
answer comes from the prosecution as to which of the three
versions is believable.
Ex.P12 suffers from two infirmities. Firstly, medical
evidence is contradictory. Secondly, only eye witness Jagan G
-~ mentioned in Ex.P12 was not examined. The non-examination
of the said eyewitness would result in the lack of corroboration
to Ex.P-12.
8. It is to be noted that the High, Court wrongly states that H
T
1220 SUPREME COURT REPORTS (2009] 7 S.C.R.
A Ex.P14 does not refer to Ex.P12. In fact, it clearly states that the
police recorded his statement which is Ex.P12.
9. Above being the position, it would be unsafe to convict
the accused-appellants. Their convictions are accordingly set
aside. They be set at liberty forthwith if not required to be in
8
custody in any other case.
R.P. Appeals allowed.
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