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Public Prosecutor Vs. Sarolla Gopala Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1971CriLJ536
AppellantPublic Prosecutor
RespondentSarolla Gopala Rao and ors.
Excerpt:
.....that he had put to her. therefore clearly question that was considered by the learned judges was whether the statement contained the actual words used by the deceased in describing the incident and also in what manner the questions were put to her and what replies she had given. we are satisfied that the dying declaration has a ring of truth and there is no reason to suspect that the deceased left off her real assailants and substituted false ones. we have been taken through the evidence of these witnesses and we ate satisfied that their evidence substantially, appears to be true. we think that he has failed to understand the purport of the judgments to which he has made a reference in this connection. 1 has stated that it was a-1 who bad inflicted an injury on his head and since..........that the dying declaration has a ring of truth and there is no reason to suspect that the deceased left off her real assailants and substituted false ones. the dying declaration if accepted as the by a,, court by itself can form the basis for conviction. but apart from this there is the evidence of p.ws. 1 to 6 among whom p.ws. 1 and 2 are the injured and actually the incident started with their beating and culminated in causing the death of the deceased. a general attack made on these witnesses in that they are all interested and partisan. there is no rule of law that a court cannot act on the evidence of interested or partisan witnesses. the only thing is that a court should be careful and cautious in accepting that evidences and if after due scrutiny it is found that their].....
Judgment:

Mohamed Mirza, J.

1. The Slate has filed this appeal against an order of the learned Additional Sessions Judge, West Godavari acquitting the respondents from the charges for which they were prosecuted. It is alleged by the prosecution that since the Panchayat elections there are two factions among the Harijans of the village Nandanurivaruvu. A.I is said to be the leader of one party and he also is a master of the Samithi School in the village. The accused are also intercalated. According to P.W. 1 he was asked by A-1 to contest for the Panchayat Elections that took place some two years prior to the occurrence for the Harijan eat to which he agreed. But as the elections approached A.I is said to have told him that he was not on the Electoral hat and therefore he would set up A-5 as a Harijan candidate to which P. W 1 did not agree.. Thereafter P.W. 1 and the people of his party set up Mahankali, the husband of the deceased woman, but he was defeated. The immediate motive appears to be that P.W. 4's wife was ill who came to the village and P.W. 4 borrowed Rs. 13/- from A.I for his wife's treatment on the morning of 23rd May, 1966. Thereafter a quarrel took place between A-6-and P.W. 4. Then A-6 went and brought A 1 with him and asked him to demand back the loan of Rs. 13/. from P.W. 4. The deceased Ganapathamma was present at that time and she gave Rs. 10/- to P, W. 4 for payment to A-1, Giving this amount to A-1, P.W. 4 told him that he would return the balance of Rs. 3/. on the next Monday. Then there was a lull in the village. At about 7 or 8 p. m. when P.W. 1 was sitting on the appeal of the house of Pedapati Peda Naraaimhulu and was calling out P.W. 4. Accused 1 to 7 arrived at the house of P.W. 4 P.W. 4 repeated that he would pay the balance of Rs. 3/-. P.W. 4 repeated that he would pay the balance on Monday next. A-1 said that P.W. 4 and his wife were abusing A-6 and his wife and therefore the balance of the amount should be paid immediately. P.W. 1 suggested to P.W. 4 chat he would advance the amount of Rs. 3/- to him and he should tell A-1 accordingly. Saying this, P.W. 1 asked P.W. 4 to come to the fields to give water to the seed beds. But A-1 to A-7 obstructed them. P.W. 1 told them. that he would give the money the next morn-ing, but A 7 pulled him by his left wrist and asked him to pay up the amount at once. When P.W. 1 tried to release his hand, A-1 beat him on the head with the stick portion of the spear that he was carrying and A-2 to A-7 also beat him. A. 7 gave three blows to P.W. , one between the little and last fingers of left hand, the second on the right upper arm and the third on the left side of the head. At this stage, Ganapathamma the deceased cams on the absence from her house which is close by and raised a cry that P.W. 1 was being killed. Then A-1 speared her on the right side of her stomach and A 2 speared her on the left side of the stomach. She fell down and the accused ran away. People gathered at the of occurrence. The injuries of the deceased were bandaged and she was put on a cot and taken to the police station at Veeravasaram. P.Ws. 1 and 2 who had also received injuries were taken in a bullock cart. When they arrived at the police station, the constable on duty coming to know the purpose of their visit sent word to the Sub-Inspector, P.W. 15. When he came, he recorded a statement under Ex. P-23 from the deceased Ganapathamma at 00-30 a. m. and sent all the three injured to the hospital at Bhimavaram. P.W. 9 the Civil Assistant Surgeon at the Government hospital Bent one requisition to the Sub Inspector of Police, P.W. 16 and another to the Principal District Munsif for recording the dying declarations. P.W. 16 recorded a statement from the deceased under Ex P-6 at about 5.30 a. m. in the presence of P.W. 9. The Magistrate, P. VV. 13 came a little later and he also re. corded a statement from the deceased under Ex. P-7 at 6 a. m. The deceased, it appears, could not survive those injuries and dir on the eatxie day at about 7.30 a. m. P.W. 15 received an intimation from the station House at Bheemavaram that Ganapaihamma had died and therefore he altered the Section into 302, Penal Code and sent express reports to all concerned. After the inquest, P.W. 16 sent the body for post-mortem examination and P.W. 9 conducted post-mortem on the tame day at about 2 p. m. He found the following two external injuries : -

(1) Stab wound 4' x 3/4' x 4' below right costal margin; placed obliquely, direction downwards and inwards, opening into the abdominal cavity, margins clean cut, peritonium punctured, petritonial cavity contains about 1-jj pints of blood, food material found in peritonial cavity- Transverse colon and stomach are punctured in relation to the injury.

(2) Stab wound 3 1/2'x3/4'x4' over upper part of left side of abdomen below costal margin, direction downwards, and inwards, margins clean cut opening into the peritonial cavity, peritonium punctured, stomach punctured in relation to injury.

Both of them were on the left and right side of the abdomen. The peritonium was punctured and in his opinion the deceased would, have died of shock and haemorrhage as a result of the stab blows which had injured the peritonium, stomach and colon. He has further stated that each of these injuries was sufficient to cause death in the ordinary course-of nature.

2. All the accused denied having committed the offence although they accepted that there were some disputes in connection with the Panchayat elections. The prosecution relies on the dying declarations made by the deceased at three different stages, Exs. P-23, P-6 and P. 7 and also the evidence of P.Ws. 1 to 6 who have seen the stabbing of the deceased. We may observe at the outset that the learned Trial Judge has misdirected him self both on the questions of fact and law. It is a straight-forward case without involving any intricate questions either of fact or law. Ex. P. 23 which is the earliest dying declaration given by the deceased and recorded by P.W. 15 shortly after she had received the injuries reads like this :-

I am a native of Nandanurigaruvu village. At 8 0' clock in the night I was giving food, to my child. I came out on hearing a galata' is front of our house. (1) Dondi Nakkodu' alias Venkadu, (si) Dondi Sattigadu, (3) Sacella Sampathigadu, (4) Pancbayat Board Member, Sarella Ratuudu and (5) Pedapatiti Rajarao were beating my husband's elder brother's son, Narasimhamurty aliaa Narasimbam, with sticks, I intervened and Gummakula MusA-1ayya al&o; intervened. I and Gummakula Musa. layya also were beaten. Pedapati Rajarao, came and caught hold of me. Sarella Gopala rao stabbed me in my right abdomen and Sarella Sampathigadu, in my left abdomen with spears. raised hue and cry 'I am dead. Baboyi:' and fell down. I fell down in ;our front yard. My eon in-law Tati Narasimha. rnurty and my grand.son Pedapati Satyani came there running. Sampathigadu and Gopalarao lied with spears. Narasimhamurty and Sityain placed me on the Got, Immediately they brought me to Virawasaram police station. There are election disputes between us and the i. e. Sarella people from the beginning. Rajarao Pedapati China Narasimhamurty and Pedapati Akkiraju were in our party previously and worked (for us). Peda-pati Sundararao and Pedapati Rajarao had quarrel regarding the mango garden, yesterday morning. Read over to me and founds correct.

(L.T.M. of ) Podapati Ganapathamma:

It will be observed that there is no attempt on her part to either exaggerate or to give a colour to the incident that took place or to attribute overt acts to all the accused whom be had mentioned. She and P.W. 2 tried to intervene but A-G caught hold of her while A-1 stabbed her on her right abdomen and A. 2 speared on the left abdomen with a spear. This is her consistent version which we find learned in Ex. P- 6 and Ex. P. 7. Ex. P 7 no doubt is very cryptic, but the stabbing by A.I and A-2 does find a place. The learned Trial Judge has rejected these dying declarations for two reasons; firstly, that the dying declarations were not recorded in the manner of questions and ans. were; and secondly that there was delay in such recording of the first dying declaration under Ex. P. 23 and this delay might have been taken advantage Ex. P-23 and this delay might have been taken advantage of to prompt the deceased to give that statement. We are unaware of any rule of law which lays down the manner in which a dying declaration is to be recorded. The learned Judge hits referred to a judgment of the Bombay High Court re-ported in Shirinath Durga Prasad v. State : AIR1957Bom223 . In this connection but we feel that the facts of that case are quite different from the facts of the present case with which was are dealing and the observations made by the learned Judges of the Bombay High Court should be restricted to the facts of that case alone and it cannot be applied as a general principle of law. In the Bombay case, the Sub-Inspector of Police extracted the answers from the injured after putting questions to her, but he failed to record the questions that he had put to her. Therefore clearly question that was considered by the learned Judges was whether the statement contained the actual words used by the deceased in describing the incident and also in what manner the questions were put to her and what replies she had given. It appears that the Sub.Inspector of police had reduced the statement of the deceased into writing in his own way and since it did not appear to the Court how much of the answers were suggested by the Sub-Inspector of Police himself by putting leading questions, it was considered risky to act on such a dying declaration. In the present cage P.W. 15, 16 and 13 have stated that they recorded what was stated to them by the deceased. It does not appear that the recording of the statement was done after putting questions to the deceased. Therefore we see no reason to suspect that the statement contains anything in excess of what was told by the deceased. Secondly, we do not see that there is any delay in the recording of Ex P-23. The incident took place at about 8 p.m and certainly it must have taken sometime to make arrangements for going to the police station though the police station was only two miles away. But it was night time and seeing the condition of the injured they must have been taken slowly and cautiously. After arriving at the police station at that hour of the night, the Sub-Inspector of Police was in his house and if his evidence is to be believed, be came to the police station one hour later the injured persons had arrived. Mere delay if of no consequence unless it appears to the Court that the delay has been made use of to induce, or prompt or influence the deceased, to give a false statement. It was not even suggested to any of the direct witnesses or to P.Ws. 15 or 16 that persons present at the time when the dying declaration may have been recorded acted in a manner from which it may be inferred that the deceased was not giving out a true version. We are satisfied that the dying declaration has a ring of truth and there is no reason to suspect that the deceased left off her real assailants and substituted false ones. The dying declaration if accepted as the by a,, court by itself can form the basis for conviction. But apart from this there is the evidence of P.Ws. 1 to 6 among whom P.Ws. 1 and 2 are the injured and actually the incident started with their beating and culminated in causing the death of the deceased. A general attack made on these witnesses in that they are all interested and partisan. There is no rule of law that a court cannot act on the evidence of interested or partisan witnesses. The only thing is that a Court should be careful and cautious in accepting that evidences and if after due scrutiny it is found that their] evidence does not suffer from infirmities, in that case, there is no reason why a conviction should not follow on that evidence . P. 1 Ws. 1 and 2 tire the injured persons. Their names be find a place in the dying declaration of Ganapathamma. The presence of P.Ws. 4 and 6 cannot be doubted and P.Ws. 3 and 5 also live very to the scene of occurrence. From the merits of their evidence, in does not appear that they have made any attempt to suppress the truth or that they have come forward to describe the incident in a partisan manner. The evidence of these witnesses and the dying declaration itself gets corroboration from the medical evidence. We have been taken through the evidence of these witnesses and we ate satisfied that their evidence substantially, appears to be true. The learned Trial Judge bus needlessly devoted some part of his judgment to assess the effect of non-examination of Pedapati Satyam and Pedapati Venkanna in the case. We think that he has failed to understand the purport of the judgments to which he has made a reference in this connection. A material witness whose evidence is necessary to unfold the narrative of the prosecution and who has been withheld with oblique motive by the prosecution adversely affects the prosecution case. It is no use multiplying witnesses on a particular aspect of the case. The prosecution had already examined six witnesses who have given an eye witness-account of the occurrence. It was wholly unnecessary for the prosecution to have examined the two witnesses that for the sake of giving a chance to the defence to out some discrepancies from their evidence. The learned Counsel for the respondents, Mr. Raghava Rao has also attempted to show us that the place of occurrence has been shifted by the prosecution. But we do not find any force in his argument. The learned Trial Judge undoubtedly has taken an absolutely erroneous view of the evidence and we feel that this is a his ease where interference is called for.

3. Another question which we have to consider is whether all or any of the accused are liable for conviction. As many as seven accused are charged for having conjointly caused the death of the deceased. But from the circumstances of the ease, it appears that none of the persons who had come on the scene shared either common intention or had any common object in killing the deceased. A-1 and A-5J gave a boating to P.Ws. I and 2. The beating of the deceased was far from their minds. Hearing the cries and finding that P.W. 1 was being beaten, the decease' came on the spot crying that P. 'W. 1 was being killed. The intervention of the deceased, per. haps annoyed A-1 and A-2 and it cannot be said that their act of stabbing the deceased was in 'pursuance of the com-non object. Moreover, we think that all the accuse' did not form any unlawful assembly. Though P.W. 1 baa stated tba1; ha was beaten by all the accused, but he hid received only four injuries and it does not appear that; all the seven respondents took part in beating either P.W. 1, P.W. 2 or the deceased. Therefore, the charges under rioting, in our opinion, not brought home and 1 heir acquittal from these charges must be confirmed.

4. Further, we have to consider how far the prosecution has succeeded in proving that some of the accused, if not all, are liable for their individual acts The deceased had received two stab injuries on her stomach, one on the right side and the other on the left. She had stated consistently under Ex. P-23 that it was A-1 and A.'2 who had inflicted those injuries. The evidence of P.Ws. 1 to 6 also corroborates that statement and the medical evidence also discloses that each one of those two injuries was fatal by itself, and they may have been caused with a spear. In view of what we have said earlier, it appears to us that only A.I and A-2 can be held responsible for causing the death of the deceased. P.Ws. 1 and 2 have also received injuries. P.W. 1 has stated that it was A-1 who bad inflicted an injury on his head and since he became unconscious, he could not say who also inflicted other injuries on his person. P, W. 2 has implicated only A-7 as the person who had caused injuries to him. The injuries caused to P.W. 1 and 2 are all simple in nature. Theirs is no reason why the evidence of P. Ws 31 and 2 in respect of their injuries should not be accepted.

5. Therefore in the result, we allow the State appeal to the extent of A-1, A. 2 and A 7. A.I and A. 2 are convicted Under Section 302 read with Section 34, Penal Code for having caused the death of Ganapathamma, and we sentence them to undergo imprisonment for life. A. 1 is further convicted Under Section 323, Penal Code for causing hurt to P.W. 1 and is sentenced to six months rigorous imprisonment. But this sentence will run concurrently with the sentence imposed on him Under Section 302, Penal Code. Likewise, A-7 is convicted for causing hurt to P.W. 2 Under Section 323, Penal Code and is sentenced to undergo six months rigorous imprisonment.

6. The appeal is accordingly partly allowed as indicated above.


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