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2010 Supreme(AP) 1111
2011 (1) ALT (Crl.) 194 (DB)(A.P.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
A.GOPAL REDDY and RAJA ELANGO, JJ.
Surasani Venkata Reddy – Appellants
Versus
State of A.P. – Respondents
Criminal Appeal No.574 of 2007
Decided on :12-11-2010.
M/s. T. Bala Reddy, Senior Counsel and K. Suresh Reddy, Counsel for the Appellant.
Public Prosecutor, for the Respondent.
Headnote:a) NEGOTIABLE INSTRUMENTS ACT, 1881, section 138 - Penal Code, 1860, Section 420 - Criminal Procedure Code, 1973, Section 200 – Where a statement made of accused patient to the Doctor while he was treated for taking poison along with two daughters to whom he is alleged to have administered cannot be treated as a statement under Section 164 Cr.P.C. r/w Section 155 and 157 of Cr.P.C. in a case against him section 302 and 309, because Section 164 refers to the statements of witnesses other than the accused, because he cannot be arraigned as a witness. Nor can such a statement be considered as Dying Declaration. (Paras 14 and 15)
b) CRIMINAL PROCEDURE CODE, 1973, Section 164(2) – Where the Magistrate recorded a statement of a person in anticipation of his death, but later he survived that statement cannot be treated as a confession statement under Section 164 (2), nor under Section 155 or 157. (Paras 16 to 19)
c) PENAL CODE, 1860, Section 309 – Where no evidence is led by the prosecution with regard to an offence under Section 309, conviction of the appellant under Section 302 r/w section 309 is not sustainable. (Paras 23 and 24)
Raja Elango, J.
This Criminal Appeal under Sec. 374 (2) of the Code of Criminal Procedure (for short 'Cr.P.C.') is filed by the appellant-accused questioning the conviction and judgment dated 30.04.2007 rendered in Sessions Case No.197 of2004 by the Sessions Judge, Mahila Court, Vijayawada, wherein the learned Sessions Judge convicted the accused under Section 235 (2) Cr.P.C. for the offence punishable under Sections 302 and 309 of Indian Penal Code (for short 'IPC') and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 302 IPC and also sentenced him to pay fine of Rs. 1,000/-, in default to undergo simple imprisonment for three months, for the offence punishable under Section 309 IPC.
2. The case of the Prosecution, in brief, is that the accused and L.W.1 Surasani Sujatha are the husband and wife and they were blessed with two daughters Hemalatha and Ashalatha (Deceased Nos.1 and 2) and one son. Due to his indebtedness, the accused decided to put an end to the life of himself and his two daughters by administering poison. In pursuance of the same, on 11.11.2001 at about 7.50 p.m. after sending his wife and son outside -the house the accused got administered the endosulphan pesticide poison and he also consumed the same. After returning to the house, the wife of the accused shifted the accused and their two daughters to Nagarjuna City Hospital, Vijayawada, with the assistance of one Surasani Chinna Reddy. While undergoing treatment, on the same day both the deceased died at about 9.45 p.m. and 10.05 p.m. respectively.
3. On receipt of intimation about the admission of deceased girls and the accused into hospital, the ASI of Police visited the .hospital, recorded the statement of Sujatha, wife of accused, and basing on the said statement, he registered a case in crime No.809/2001 for the offence punishable under Sections 302 and 309 IPC, issued FIR. On receipt of requisition from the hospital, the then II M.M., Vijayawada, proceeded to hospital and recorded the dying declaration of the accused. The SI of Police, who took up further investigation in the case, visited scene of offence, conducted panchanama before the mediators, seized three steel glasses and two Parasulphan tins from the spot under cover of panchanama. He also conducted inquest over the dead body of 0.1 before the mediators. Further, L.W.17 conducted inquest over the dead body of the D.2 before the mediators. On 30.11.2001 accused was arrested and remanded to judicial custody. Further, after completion of• entire investigation and receiving necessary reports, Police filed charge sheet against the accused, which was numbered as P.R.C. No.4 of 2004 by the II Metropolitan Magistrate;
Vijayawada.
4. On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 309 IPC, in which, the accused denied the charges and claimed for trial.
5. In order to prove the guilt of the accused, Prosecution examined PWs 1 to 9 and marked Exs.P.1 to P.19 apart from marking MOs 1 to 4. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. The accused did not choose to adduce any evidence on his behalf. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge rendered the impugned judgment as stated above.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor for the State.
7. P.W.1, who is the wife of the accused and set the law in motion, turned hostile and she deposed before the Court that due to the medicine given to their deceased daughters they vomited and died in the hospital. Her husband also took the medicine, but he survived. She
