(1) This is an appeal against the judgment of the Sessions Judge of Anantapur convicting the appellants under S. 304, part 2, Penal Code, and sentencing them to rivorous imprisonment for 7 years each.
(2) The appellants and two others were charged with the murder of one Pasulodu who was no other than the brother of the first accused. Accused 1 and 4 were acquitted as their participation had not been proved beyond reasonable doubt, while accused 2 and 3 (who are the appellants) have been convicted and setnenced as stated above.
(3) The prosecution case may be briefly stated: P. W. 1, the deceased and the first accused constituted members of a joint family. the deceased and P. W. 1 migrated to Mysore State to eke out their livelihood. P. W. 1 returned to the village two years before the occurrence, while the deceased came back a few months before. The deceased and P. W. 1 made a joint demand on the first accused for division and separate possession of their share. The first accused having refused to do so, there were incessant quarrels between the brothers and two days before the crime was committed, there was a fight between the first accused and the deceased, in the course of which the first accused received a serious injury on his hand, which disabled him from moving about for a few days. The second accused is the son of the first accused, the third accused being the father-in-law of the second accused, and the fourth accused, a nephew of the third accused.
On the night of 23-4-1953, the deceased and P. W. 1 were sleeping on the pial of their house. At about midnight, P. W. 1 heard a noise of groaning emanating from a person who was throttled. He woke up to see Pasulodu being carried by the four accused, all of them were armed with deadly weapons. Immediately, he cried out 'Abba, they are carrying away my brother'. Pasulodu was carried on to Pasuvula Manda (cattle-pen) behind the house of P. W. 1. P. W. 1 followed them from behind and stood at a distance of 6 or 7 yards. They threw down Pasulodu at the cattle-pen and the four accused attacked Pasulodu with the weapons which they had in their hands. They then carried the injured man to the burial ground and left him there.
Next morning the deceased was found by P. Ws. 1 to 5 and 7 there. On the advice of P. Ws. 8 and 9 P. W. 1 went to the house of the Village Munisif (P. W. 13) and brought him to the scene. A complaint Ex. P. 1 was given by P. W. 1 (though it purports to embody the dying declaration made by Pasulodu). On the basis of this, reports were sent to the authorities concerned. On receipt of these reports the police of Singanamala station arrived at the village at about 4 P. M. and started investigation. That night the injured man was sent to the Headquarters hospital at Anantapur. On the morning of the 25th, the Doctor (P. W. 12) having regard to the grave condition of Pasulodu, sent for the Magistraste (P. W. 10) who came to the hospital at about 10-55 A. M. and recorded the dying declaration (Ex. P. 4) which is in the following words:
'I live in Neelampalli. I was lying on the pial in front of my house on the night of day before yesterday. At midnight four people came and carried me into the vanka -- (1) Siddappa's son Yerri Nagappa, (2) Yerri Nagappa's son Rushingappa. (3) Sudodu alias Subayya, (4) Yerrikala Sunkanna's son Thimigadu; of these 1 and 2 are residents of my village, and 3 and 4 of Chennarayanipalli these carried me (into) the vanka (to a distance of) 2 chains. They tied a rope to my legs. Sudodu had a battle axe, Yerri Nagappa had ahunting sickle, Rushingappa had a dagger, Thimmigadu had a hand axe. Sudodu hit my legs. Rushingadu pierced my left hand and head, four people heat me and I lost consciousness. Kapa Nagappa, Yerri Nagappa and Naganna and Peddu Lingappa saw this. For the past 15 days there is land dispute between Yerri Nagappa and myself. Hence they have beat me. Sudodu's daughter is given in marriage to Rushingappa, son of Eri Nagappa. Sudodu paternal uncle's son is Thimmigadu. 1 regained consciousness after day break at (about)5 hours in the vanka. I got a statement recorded by Nagalinga Reddi. Yesterday night the police sent to the hospital. I have heard it read. It is correct'.
Pasulodu succumbed to the injuries on the night of the 25th. The post mortem conducted on the body showed as many as twenty injuries, five of which grievous and the rest simple. In the opinion of the Doctor the death was due to shock and haemorrhage as a result of multiple injuries.
(4) The prosecution examined P. Ws. 1 to 3 as eyewitnesses to the occurrence, P. Ws 4, 5 and 6 to speak to the movements of the accused and P. W. 7 to prove one of the several dying declarations said to have been made by the deceased.
(5-11) His Lordship then examined the evidence of P. W. 1 to P. W. 7 and continued as follows: The plea of the accused was one of the denial.
The trial court was not prepared to accept the evidence of P. Ws. 1 to 3 for the reason that the story regarding the attack in the cattle-pen seemed to be an invented one. The learned Judges has pointed out that there was no mention of this attack in any of the dying declarations or in Ex P. 1, nor were there any marks of blood to indicate that the deceased was attacked there. There is also the reason that P. Ws 2 and 3 could not have seen as to what was taking place near the cattle-pen for the reasons already mentioned. That apart, the evidence of these witnesses reads very artificial . The story that when P. W. 1 told P. W. 8 and others that his brother had ben stabbed, they turned him out saying 'why will they stab your brother?' seems to be very artificial and is unacceptable.
The larned Sessions Judge has also not placed any reliance on the evidence of P. Ws. 4 to 7. He observed that no weight could be attached to P. W. 4's evidence for the reason that he did not tell the police at the earliest opportunity that he questioned the deceased as to who were the assailants and was told by him the names of the accused. P. Ws. 5 to 7 also were not believed as there was no consistency in their versions. There is a further reasons why no weight should be attached to the testimony of these four witnesses. If really they saw the deceased being carried by accused with awords, batle-axes and hand-axes, one fails to understand as to why they should have asked the deceased as to how he came by these injuries and who were the assailants. I, therefore, feel that the lower court was justified in rejecting the testimony of these witnesses.
(12) Having disbelieved the version given by the eye-witnesses, the learned Sessions Judge based conviction of the appellants on the dying declaration of Pasulodu embodied in Ex. P.4. In the opinion of the learned Judge this document is entitled to a great weight as it contained a true version of the attack on him and it received corroboration. The lower court repelled the argument that Ex. P. 4 could not be acted upon for the reason that P. W. 1 had every opportunity of tutoring the deceased before making the statement to P. W. 10, observing that the injured man could not have been conscious during the time while he was being taken to the hospital, when P. W. 1 accompanied him, and it was only after he was taken to the hospital and treated, the injured man could have recovered and his mind had become clear. But the trial Judge missed the point that the previous day the accused were named to him as the assailants and that the weapons with which the attack was made on the deceased were also mentioned to him. If that were so, the statement made by the deceased to the sub-Magistrate cannot be regarded as a spontaneous one and therefore it could not carry much weight.
There is also another factor which has to be borne in mind. Although the statement of the deceased mentioned the names of four persons as the assailants, the learned Judge was not prepared to act upon it so far as the 1st and the 4th accused were concerned. In the opinion of the learned Judge, it could not be possible for the 1st accused to have participated in the attack having received a very serious injury on his hand two days prior to the occurrence.
(13) In considering the value of a dying declaration, the circumstances and the surroundings under which it is made have to be taken into consideration. When it is proved that the deceased was already given information about thenames of the assailants and the manner of attack, it is not quite safe to place much reliance on the dying declaration made by such person. the value to be attached to a dying declaration depends upon the circumsances of each case. That apart, in this case, the learned Judge hasnot pointed out the circumstances or pieces of evidence that tend to corroborate this dying declaration. The reasoning of the Judge in a para 31 seems to indicate that he was not prepared to believe the evidence of any of the witnesses. Nowhere is there any indication as to what part of the evidence of any of these witnesses could be relied upon as serving corroboration of the dying declaration Ex. P. 4. It is hardly safe to act upon a dying declaration which is uncorroborated. It is incumbent on the Court to see how far it is corroborated. Their lordships of the Suprme Court pointed out in -- 'Ram Nath v. State of Madhya Pradesh', : AIR1953SC420 (A) as follows:
'It is settled law that it is not safe to convict an accused person merely on the evidence furnished bya dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination, while he was making the declaration'.
Applying that principle to this case, it must be held that the dying declaration in this case also suffers from the infirmity of lack of corroboration apart from its not being entitled to any weight for the reason that the story was supplied to him by P. W. 1 the previous day. If the dying declaration is excluded, there is no reliable evidence upon which the accused could be convicted.
(14) In these circusmtances, I hold that the prosecution has not proved its case beyond reaosnable doubt against these appellants alos. Their conviction is, therefore, unsustainable and ought to be set aside. The appellants will be set at liberty.
(15) Appeal allowed.