2003 Supreme(SC) 126

2003(4) Supreme 375
SUPREME COURT OF INDIA
(From A.P. High Court)
N. Santosh Hegde and B.P. Singh, JJ.
Cherlopalli Cheliminabi Saheb & Anr. -Appellants
versus
State of A.P. -Respondent
Criminal Appeal No. 260 of 1996
Decided on 31-1-2003
Counsel for the Parties :
For the Appellants : Ms. K. Amareswari, Sr. Advocate, Ms. Sudha Gupta, P. Vittal Rao, Vimal Chandra S. Dave, Advocates.
For the Respondent : Ms. T. Anamika, G. Prabhakar, Advocates.

IMPORTANT POINT
Courts below seriously erred in relying on dying declaration Ex P-4 in the circumstances which gave rise to a serious doubt as to its correctness.

Headnote:Indian Penal Code, 1860-Section 302 read with 34-Appellants alleged to have stabbed deceased on a quarrel regarding water from a tap between wives of 1st appellant and wife of deceased-Appellants were aided by two juvenile whose case was separated-Conviction under Section 304 Part II recorded by trial Court and upheld by High Court-Appeal to Supreme Court-One weapon found recovered alleged to have been used in stabbing by four-Injuries on appellants not explained-Eye witnesses not supporting case of prosecution-Two dying declarations-None by Magistrate when he was available-Suspicious circumstances-Whether in such evidence conviction can be based on dying declaration Ext. P4? (No)-No evidence of pre-planning for invoking Section 34 IPC-Appeal allowed (Evidence Act, 1872-Section 32-Dying declaration allowed).

       Held : In this case, as stated above, the prosecution has come out with a particular narration of the incident in question according to which these appellants and two others stabbed the deceased but the prosecution has recovered only one weapon, therefore, it is difficult to appreciate the prosecution case how by one single weapon all these four accused persons could have stabbed the deceased. That apart, the prosecution in its version of the incident has not explained how the accused persons suffered injuries and by whom. There is an obligation on the part of the prosecution to explain the injuries suffered by the accused. In the instant case, the accused also came to the hospital almost at the same time as the deceased and the doctor examined them after examining the deceased, therefore, these injuries on the accused persons must have been caused in the same incident in which the deceased suffered injuries which later became fatal. Hence, in the absence of any explanation from the prosecution as to the injuries on the appellant, we are of the opinion that the prosecution version of the incident becomes doubtful. As noticed above, all the eye-witnesses and other panch witnesses have turned hostile including the wife and the son of the deceased. Therefore, there is none to speak about the incident in question except Ex.P-4. So far as Ex.P-4 is concerned as contended by the learned counsel for the appellant, the same is recorded by Police Inspector when he could have very well obtained the service of the Magistrate who was residing half a kilometer from the hospital. It is not the case of the prosecution that there was any imminent danger to the life of the deceased at that point of time, hence, PW-11 had no such urgency to record the statement. In Ex.P-4 the deceased does not explain the nature of attack on him except generally stating that all the accused persons attacked him. Then again, we find there is a correction in regard to nature of weapon referred in Ex.P-4 which also gives rise to suspicion as to the genuineness of Ex.P-4. It is also surprising that PW-11 could not get sufficient ink in the hospital to get the thumb impression of the deceased because of which he had to use grease from the motorcycle to take the thumb impression. All these suspicious circumstances surrounding Ex.P-4, coupled with the fact that the close relatives of the deceased have not supported the prosecution case and the absence of explanation from the prosecution as to the injuries on the accused gives rise to a serious doubt as to the correctness of Ex.P-4 which, in our opinion, cannot be relied for the purpose of basing a conviction. The courts below have not appreciated this aspect of the case and have merely accepted Ex.P-4 as a document on which the conviction could be based. As a matter of fact, the High Court even confused Ex.P-4 with Ex.P-13 and referred to the contents of that document while it accepted the prosecution case when in fact the trial court for good reasons had rejected Ex.P-13. (Para 6)

       Held thereafter : In regard to the nature of attack, the learned counsel for the respondent contended that it is not necessary for the prosecution to prove overt act of each of the accused persons when Section 34 is attracted, therefore, the fact that the deceased had not mentioned the particulars of the persons who attacked him may not be a ground for acquittal. Though it may not be necessary for us to go into the fact of the argument, because of our difficulty to accept the genuineness of Ex.P-4, still we would like to observe that it is not the case of the prosecution that all the accused persons came prepared to attack the deceased. It is their case that the fight started suddenly without pre-planing between the two ladies and the others joined in and somebody stabbed the deceased. Assuming this case of the prosecution to be true, in the absence of any material to show that there was any common intention, it will not be possible to attract Section 34. (Para 7)

       Held consequently : Be that as it may, since we are not accepting the prosecution case in regard to Ex.P-4, this appeal has to succeed, hence, we set aside the judgment and conviction of the courts below and allow this appeal. The appellants shall be released forthwith, if not required in any other case. (Para 8)