IMPORTANT POINT
It is well settled that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.

Headnote:Indian Penal Code, 1860 – Sections 302 and 307 – Prosecution of appellant for causing death of deceased by hacking him with a sharp edged weapon and for assaulting wife of deceased-Conviction by Trial Court relying upon evidence of injured witness, wife of deceased and his daughter – Appeal – Dismissed by High Court – Appeal – PW – 3 was conscious and coherent to make her statement and made her statement in Exhibit P-21 in which not only she did not mention the name of the appellant but positively stated that she was attacked by an unknown person aged about 20 years – Appellant even at the relevant time was of 50 years and was well known to PW-3-She did not explain as to and under what circumstances she made the statement in Exhibit P-21 – Nor there was any explanation as to how she omitted the name of the appellant and described somebody else to be the assailant – Instantly maker of the statement Exhibit P-21,was not only alive but was examined as PW – 3 – Her statement, hence was not admissible under Section 32; but her statement, however, was admissible under Section 157 of the Evidence Act as former statement made by her in order to corroborate her testimony in court – Exhibit P – 21 did not corroborate the testimony of PW-3 in Court – PW – 3 later on improved the story and roped in the appellant – Even PW-4 had also acquaintance with appellant but she did not mention the name of the appellant at any point of time prior to her evidence in the court- Her evidence was also vague based on which it would be difficult to record any finding of commission of any crime by appellant-No other acceptable evidence available on record based on which the appellant could be held guilty – No critical evaluation of the evidence of PWs – 3 and 4 – Again there was no consideration of material contradictions having crucial bearing on the veracity of the version given by PWs-3 and 4 – They went on making improvements from stage to stage which mad their evidence doubtful – Hence under said circumstances, interference with the concurrent findings of courts below held justified in order to prevent the miscarriage of justice-Impugned judgment set aside – Conviction and sentences awarded against appellant set aside – Appeal allowed (Paras 14 to 19)
       Facts of the Case :
        Appellant was prosecuted herein in the instant case for causing death of deceased by hacking him with a sharp edged weapon and for assaulting wife of deceased. Trial Court convicted appellant for said offences relying upon evidence of injured witness, wife of deceased and his daughter. Appeal there against was Dismissed by High Court.
        2. Present appeal has been filed against said order of High Court.
       Findings of the Court :
        There was no critical evaluation of the evidence of PWs – 3 and 4.Again there was no consideration of material contradictions having crucial bearing on the veracity of the version given by PWs-3 and 4. They went on making improvements from stage to stage which made their evidence doubtful. Hence under said circumstances, interference with the concurrent findings of courts below held justified in order to prevent the miscarriage of justice. Impugned judgment was set aside-Conviction and sentences awarded against appellant were set aside. Appeal was allowed

JUDGMENT

B. Sudershan Reddy, J.—

This appeal by special leave is directed against the Judgment rendered by a Division Bench of the Andhra Pradesh High Court confirming the conviction of the appellant for the offences punishable under Sections 302 and 307 of Indian Penal Code, 1860 (in short “IPC”). The High Court by the impugned judgment confirmed the judgment passed by the Principal Sessions Judge, Eluru convicting the appellant under Sections 302 and 307 of IPC and sentencing him to suffer imprisonment for life and rigorous imprisonment for seven years, respectively, and further to pay a fine of Rs.1,000/- each and in default, to suffer simple imprisonment for a period of six months each.

2. In the nutshell, the prosecution version which led to the trial of the appellant is as under:

3. On the intervening night of 7th/8th April, 2002 appellant went to the house of the deceased in Venkatayapalem village with an intention to end the life of the deceased and knocked at the door of the deceased which was opened by the wife of the deceased, Cherukuri Srinukumari (PW-3) and the appellant-accused all of a sudden hacked and attempted to kill her by inflicting severe injuries on her body, as a result of which she fell down and then he rushed towards the deceased who was sleeping and hacked him by inflicting severe injuries. The appellant after committing the offence escaped from the place of occurrence by bolting the door from outside. The daughter of the deceased Sri Surekha (PW-4) aged about 9 years raised hue and cry upon which the neighbours opened the door from outside and informed Cherukuri Gangaraju (PW1) who is a close relation of the deceased who thereafter informed Gopalapuram Police Station and lodged first information report at about 4.00 a.m. on 8th April, 2002. A case was registered as Crime No. 30 of 2002 under Sections 302 and 307 read with Section 34 IPC against unknown persons.

4. The prosecution, in order to establish its case, examined altogether 14 witnesses. The trial court upon appreciation of the evidence found the appellant guilty of the offences punishable under Sections 302 and 307 IPC and sentenced him to suffer imprisonment for life and rigorous imprisonment for a period of seven years, respectively. The trial court mainly relied upon the evidence of PW-3 and PW-4. The High Court vide its judgment dated 20th August, 2007 dismissed the criminal appeal filed by the appellant and accordingly confirmed the judgment of the trial court. The High Court too relied upon the evidence of PW-3 and PW-4. Both courts below found that the appellant attacked the deceased with sharp edged weapon resulting in his death. The courts below also found the appellant- accused attempted to kill PW-3 by inflicting severe injuries on her body.

5. In this appeal, Shri M.N. Rao, learned senior counsel for the appellant, submitted that the evidence of the eye witnesses does not inspire any confidence as PW-3 made a lot of improvements in her version and implicated the appellant for the first time only while deposing before the Court and never before during the investigation or in the first information report. The injured witness (PW-3) and her minor daughter (PW-4) never mentioned the name of the appellant while narrating the incident to their neighbours, police or the Magistrate though the appellant was very well known to them. It was submitted that Section 161 of Code of Criminal Procedure statement (08.04.2002) of PW-3 was clearly ante- timed. The evidence of prime witness PW-3 is totally unreliable and could not be believed under any circumstances as in her cross- examination she went to the extent of denying having given any statement (Ex. P-21) to the Magistrate (CW-1).

6. In response, Ms. D. Bharathi Reddy, learned counsel for the State submitted that the evidence of eye witnesses is clear and cogent. The relationship of the witnesses with the deceased itself cannot be a ground to discard their evidence. Learned counsel submitt

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2009 Supreme(SC) 1723

2009(7) Supreme 299SUPREME COURT OF INDIAB. Sudershan Reddy and J.M. Panchal, JJ. Gajula Surya Prakasarao — Appellant versusState of Andhra Pradesh — RespondentCriminal Appeal No. 1038 of 2008Decided on : 10-11-2009

IMPORTANT POINT It is well settled that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.

Cases Referred (1)

2009(7) Supreme 299
SUPREME COURT OF INDIA
B. Sudershan Reddy and J.M. Panchal, JJ.
Gajula Surya Prakasarao — Appellant
versus
State of Andhra Pradesh — Respondent
Criminal Appeal No. 1038 of 2008
Decided on : 10-11-2009

IMPORTANT POINT
It is well settled that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.