Important Point—There is no rule that Police Officer cannot record dying declaration.

Suresh Kumar Kait, J.

1. The present appeal is filed while challenging the judgment dated 21.12.2010 passed in Sessions Case No.464 of 2007 by II Additional District and Sessions Judge (FTC), Mahabubnagar, whereby, the appellant is found guilty for the offence under Section 302 IPC and accordingly convicted under Section 235(2) Cr.P.C. and sentenced to suffer imprisonment for life and also to pay a fine of Rs.500/- (Rupees Five hundred only), in default, to suffer simple imprisonment for a period of three months. Benefit of Section 428 Cr.P.C. is given to the appellant.

2. Brief facts of the case are that on 29.11.2006 at 18.40 hours, the Station House Officer/Assistant Sub-Inspector of Police, Nagarkurnool had received information from Duty Doctor, Government Area Hospital, Nagarkurnool, whereby, he was informed that one Masaiah, aged about 70 years was forcibly administered poison by some one and was admitted in hospital for treatment. Immediately, the same facts were entered in the General Diary. Later, he visited the said hospital along with P.C.1482 and enquired with the casualty ward Duty Doctor about the patient’s status. He came to know that the patient was conscious and in a fit state of mind, upon which, the ASI recorded the dying declaration of the injured. The injured stated in his dying declaration that he was having only one son. On 29.11.2006, he went to his fields with his bulls to graze. While he was so grazing the cattle at fields, his villager Mala Balaiah (the appellant herein) came to him and attributed that he was practicing sorcery against the family members of appellant, owing to which, they had suffered. The appellant had threatened to kill him if he did not sip the poison. The appellant brought the poisonous pills with him and forcibly administered into the mouth of the deceased. Villagers shifted him to Government Area hospital, Nagarkurnool and admitted him for treatment. The Station House Officer read over the statement to him, who found it to be correct. Thereafter, obtained his thumb impression. The Duty Doctor certified the condition of the victim/patient. As the victim died during the course of investigation, PW-12 altered the Section of Law from 307 to 302 IPC and sent the express memo to all concerned. On 30.11.2006, PW-14, Circle Inspector of Police, Nagarkurnool took up the investigation from PW-12, verified the investigation done by PW-12 and found it to be on proper lines. During the course of investigation, PW-12 recorded the statements of PWs.5 to 9 under Section 161(3) Cr.P.C. PW-14 sent the crime incriminating material i.e. Item No.1/viscera and Item No.2/glass bottle to the Forensic Science Laboratory through a letter of advice. The medical officer/PW-13 Dr. M. Narahari conducted autopsy over the dead body and preserved viscera for chemical analysis. Basing on the FSL report, PW-13 has opined that the cause of death was due to organophosphate, an insecticide poison.

3. Case of the prosecution is that on 29.11.2006, in afternoon, the deceased had gone to the fields to graze his bulls. While so, according to the pre-plan and pre-determination, the appellant went to the fields of deceased with M.O.1/bottle containing poisonous granules mixed with water and while the deceased was grazing his cattle in the fields at about 2 p.m., the appellant went to him and alleged that the deceased was practicing sorcery against him and forcibly administered poison into the mouth of the deceased, and due to that, the deceased swallowed some quantity of poison. After administering the poison, the appellant had left the scene of offence by throwing the glass bottle into the nearby bushes. Later, the deceased went into the village and informed the incident to the villagers i.e. PWs.3 to 8 and others. Then, villagers shifted the deceased to hospital in the auto of PW-9 on the same day at 6.40 p.m. PW-12/Assistant Sub-Inspector of Police, Nagarkurnool Police Station received information from the Duty