# SUPPLEMENTARY K. RAMACHANDRA REDDY & ANR v. THE PUBLIC PROSECUTOR

- **Citation:** [1976] Supp. 1 S.C.R. 542
- **Court:** Supreme Court of India
- **Decided:** 1976-05-05
- **Case number:** Criminal Appeal No. 143 of 1975
- **Bench:** A. C. Gupta, S. MURTAZA FAZAL Au
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supplementary-k-ramachandra-reddy-anr-v-the-public-prosecutor-7174
- **Pages:** 10

## Headnote

lndin Evidence Act. S. 32, Dying declaration-Otnission of recordinr: Afagistrate to question injured regarding his 111ental capacity to tnake statctr1e11t,
whether material-Two views of evidence when possible; ·whether interference
with order of acquittal proper.
The two appellants and three others were tried by the Additional Sessions
Judge, Nellore, under Ss. 147, 148, 302/149 and 302/34 I.P.C .. f'or having
committed the murder of Venugopal Reddy. The Session Judge recorded the
prosecution evidence, heard the arguments, and acquitted the accused, holding
that the prosecution had failed to prove the case against them. On appeal by
the State under Sec. 417 Cr.P.C., the High Court reversed the ac-quitta] order
in respect of the appellants and convicted them under Sec. 302/3.t I.P.C.,
solely on the basis of a dying declaration a1legedly made by the deceasc--d before
a Magistrate.
In the present appeal filed under Sec. 2A of the Supr..;n1'.-· Court
(Enlargement of Criminal Appellate Jurisdiction) Act of 1970, it \Vas co11tended
before this Court firstly that the· High Court had wrongly interfered with an
order of acquittal in a case where two views are possible, and secondlv, that
the dying declaration was not a voluntary or true disclosure but \Vas thC result
of tutoring and prompting.
Allowing the appeal the Court,
HELD : ( 1) The Magistrate appears tu have committed a serious irregularity
in not putting a direct question to the injured whether he \Vas mentally capable
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of making any statement. The doctor's certificate that the deceased was in fit state ..:i
of mind to make statement, by itself would not be sufficient to dispel the doubts
created particularly by the omission1 by the Magistrate, when he was satisfied that
the injured was suffering severe pain and was not able to
speak
normaHy.
[550A·B, E-Fl
Klwshal Rao v. State of Bombay [1958] SCR 552, followed.
Harbans SinRh & Anr.
v.
State af Punjab, [1962] Supp. 1 S.C.R. 104;
Lallubhai Dev Chand Shah v. State of Gujarat [1971] 3 SCR 767 and Tapinder
Singh v. State of Punjab [1971] 1 SCR 599, referred to.
(2) Even if the. High Court was in a position to take a. view different from
the one taken by the Sessions Judge on the same evidence, this would not be
a ground for reversing the order of acquittal. Thus as t\VO views were possible,
the High Court was in en·or in disturbing the order of acquittal passed by the
Sessions Judge.
[551 B & El
Ram Jag & Ors. v. The State of U.P. [1974] 3 SCR 9 followed.
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## Text

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SUPREME COURT REPORTS
[1976) SUPPLEMENTARY
K. RAMACHANDRA REDDY & ANR.
v.
THE PUBLIC PROSECUTOR
May 5, 1976
[A. C. GUPTA AND S. MURTAZA FAZAL Au, JJ.J
lndin Evidence Act. S. 32, Dying declaration-Otnission of recordinr: Afagistrate to question injured regarding his 111ental capacity to tnake statctr1e11t,
whether material-Two views of evidence when possible; ·whether interference
with order of acquittal proper.
The two appellants and three others were tried by the Additional Sessions
Judge, Nellore, under Ss. 147, 148, 302/149 and 302/34 I.P.C .. f'or having
committed the murder of Venugopal Reddy. The Session Judge recorded the
prosecution evidence, heard the arguments, and acquitted the accused, holding
that the prosecution had failed to prove the case against them. On appeal by
the State under Sec. 417 Cr.P.C., the High Court reversed the ac-quitta] order
in respect of the appellants and convicted them under Sec. 302/3.t I.P.C.,
solely on the basis of a dying declaration a1legedly made by the deceasc--d before
a Magistrate.
In the present appeal filed under Sec. 2A of the Supr..;n1'.-· Court
(Enlargement of Criminal Appellate Jurisdiction) Act of 1970, it \Vas co11tended
before this Court firstly that the· High Court had wrongly interfered with an
order of acquittal in a case where two views are possible, and secondlv, that
the dying declaration was not a voluntary or true disclosure but \Vas thC result
of tutoring and prompting.
Allowing the appeal the Court,
HELD : ( 1) The Magistrate appears tu have committed a serious irregularity
in not putting a direct question to the injured whether he \Vas mentally capable
1
of making any statement. The doctor's certificate that the deceased was in fit state ..:i
of mind to make statement, by itself would not be sufficient to dispel the doubts
created particularly by the omission1 by the Magistrate, when he was satisfied that
the injured was suffering severe pain and was not able to
speak
normaHy.
[550A·B, E-Fl
Klwshal Rao v. State of Bombay [1958] SCR 552, followed.
Harbans SinRh & Anr.
v.
State af Punjab, [1962] Supp. 1 S.C.R. 104;
Lallubhai Dev Chand Shah v. State of Gujarat [1971] 3 SCR 767 and Tapinder
Singh v. State of Punjab [1971] 1 SCR 599, referred to.
(2) Even if the. High Court was in a position to take a. view different from
the one taken by the Sessions Judge on the same evidence, this would not be
a ground for reversing the order of acquittal. Thus as t\VO views were possible,
the High Court was in en·or in disturbing the order of acquittal passed by the
Sessions Judge.
[551 B & El
Ram Jag & Ors. v. The State of U.P. [1974] 3 SCR 9 followed.
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 143
of 1975.
From the Judgment and Order dated 18th February 1975 of the
Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP
Nos. 10-103 of 1975.
D. Mookherjee and A. V. V. Nair, for the Appellants.
P. Ram Reddy and P. Parameshwara Rao, for the Respondent.
The Judgment of the Court was delivered by
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K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, J.)
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FAZAL ALI, J. Five accused persons, nam~Iy, accused No. 1 K.
Ramachandra Reddy, No. 2,
Manne . Sreehar1, No. 3 Prabhakar
Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put
on trial in the Court of First Additional Sessions Judge, Nellore under
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S6. 147, 148 302/149 and 302/34 I.P.C. for having caused the
murder of th~ decessed Venugopala Reddy resident of Rachakandrika
village of Nellore Iristiict. The Iearued Sessions Judge after recording
the evidence of the prosecution and hearing the arguments rejected the
entire prosecution case and held that the prosecution had miserably
failed to prove the case against any of the accused and he accordingly
acquitted all the five accused by his judgment dated July 25, 1973.
The S~ate of Andhra Pradesh thereafter filed an appeal under s. 417
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of the Code of Criminal Procedure agalust the order of acquittal passed by the Iearued Additional Sessions Judge, N ellore. The appeal was
heard by a Division Bench of the Andhra Pradesh High Court which
reversed the order of acquittal passed by the learned Sessions Judge
only in respect of accused Nos. 1 & 2 and convicted them under s.
302/34 I.P.C. and sente.nced them to imprisonme,1t for life. The
acquittal of the other accused Nos. 3 to 5 was confirmed by the High
Court. The two appellants namely K. Ramachandra Reddy and
Manne Sreehari to be referred to hereafter as Accused Nos. 1 & 2
rcspootively have filed the present appeal in this Court under s. 2A of
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act of 1970.
A perusal of the judg1n<Mt of the- High Court clearly reveals that
~ the learned Judges have not accepted the major part of the evidence
adduced by the prosecution in support of the case against the accused
and have founded the convicton of the accused Nos. 1 & 2 solely on
the basis of Ext. P-2 a dying declaration alleged to have been made by
the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home
before a Magistrate the next day after he is said to !rave been assaulted. The High Court on a careful reading of the dying declaration held
that it was a truthful version of the manner in which the deceased was
assaulted by the accused and as the deceased had made a full disclosare to a Magistrate in the presence of a Doctor who had testified
to the fact that the deceased was in a fit state of mind to ll)ake a statement there was no reason to disbelieve the dying declaration which
the High Court believed to be genuine and true.
J'he arguments of the learned counsel for the appellants naturally
centered round the reliability of Ext. P-2 the dying declaration recorded by the Magistrate at the Nursing Home. Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before
us:
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( 1) that the High Court in reversing the acquittal of the
appellants completely overlooked the principles laid down
by this Court that the 'High Court ought not to interlere
with an order of acquittal in appeal without displacmg the
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re3;8ons given and the. circums'.ances relied upon hy the
Tnal Court and cemunly not m a case where two views
are possible; and
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SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
that the High Court failed to consider the suspicious cir·
cumstances under which the dying declaration was made
which went to show that it was 'nOt a voluntary or true
disclosure by the deceased but was the result of tutoring)
and prompting by his relations.
On the other hand Mr. Ram Reddy the Senior standing counsel
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for the State of Andhra Pradesh submitted that the High Court wa.~
fully justified in relying upon the dying declaration which was both
true and voluntary and whose correctness had been testified by the
Magistrate and the Doctor. The learned connsel also relied on some
other evidence in order to .corroborate the genuineness of the dying
declaration.
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Before examining the contentions raised by counsel for the parties,
it may be ~rncessary to give a resume of the prosecution case shorn of
its essential details. It appears that there was serious political rivalry
between Bhaskar Reddy A-5 and the deceased Venugopala Reddy
over the election of the local Panchayat Committee known as Samithi.
It appears that some allegations of misappropriation of public funds
having been made against accused No. 5 Bhaskar Reddy the deceased
displaced him from the Presidentship of the Panchayat Samithi in a
meeting called a few days before the death of the decea'ed
where
Bhaskar Reddy was 'Mt invited.
This is supposed to have provided
an immediate provocation for the accused to have attacked the deceased. According to the prosecution the deceased had gone to his Petrol
Pump in Tada Bazar and af.ter sunset was leaving for
his
village
through the main highway and after having travers·ed about half a
mile when he reached the place of occurrence situate near the mango
grove he was surrounded by the five accused who pounced upon bim
and assaulted him with stones, knives and sticks. Venugopal'a fell
down and the accused ran away after assaulting him. P.Ws. 5 and 6
who were keeping watch over the mango grove were attracted to the
scene of occurrence by the cries of the deceased and P.W. 5 was sent
by P.W. 6 to the village Rachakandrika to call the relations of the
dKeased. The errand entrusted to P.W. 5 having been executed P.W.
1 the son of the deceasect and P .W. 2 his cousin arrived at the ipot
and found the deceased in a sitting posture being attended to by P.W.
6 with a large number of injuries on bis person. In fact it would
arpear from the post mortem report that the deceased had sustained
as many as 48 injuries on his person. It is further alleged by the prosecution that P.W. 1 asked his father regarding the occurrence and the.
deceased disclosed the names of accused Nos. l to 5 as his assaila'ats.
Thereafter the deceased was taken in a lorry to the Nursing Home of
Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a
very close and intimate friend of the deceased a.Jso accompanied the
deceased in the lorry upto Nellore.
Dr. Ramamur01i had gone to a
cinema but on being sent for he arrived at the Nursing Home and
attended to the deceased. He directed P.W. 1 to rush to the police
station at Sullurpet to report be occurrence. P.W. 1 went to Sullurpet
and reported the matter to the Sub-Inspector who made a station diary
entry Ext. D-4. The Sub-Inspector, however, did not choose to register
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K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, J.)
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the case on the basis of the diary entry but proceeded to Nellore. We
would like to mentiO'n here that Ext. D-4 was the real F.I.R. in the case
within the meaning of s. 154 Cr. P.C. and the Sub-Inspector committed
a dereliction of duty in not registering the case on receiving the First
Information Report about the death of the deceased from P.W. 1 the
son of Venugopala Reddy. We might also mention that the SubIn~pector P. W. 15 was also a friend of the deceased being his class
fellow. It may be pertinent to note here that although a report was
made by P.W. 1 to the Sub-Inspector yet the n\lmes of the appellants
were not al all mentioned in the station diary entry which was based
on the verbal report given by P .W. 1. No reason or explanation seems
to have been given by the prosecution for the non-disclosure of the
11ames of the appellants by P.W. 1 if in fact he had been told these
names by the deceased himself at the spot. When the Sub-Inspector
P.W. 15 reached the Nursing Home he was asked by the Doctor P.W.
17 to get a Magistrate so that the dying declaration of the deceased
may be recorded. Acting upon the instructions of P.W. 17 the SubInspector went to the Magistrate P.W. 11 who arrived at the Nursing
Home and recorded the dying declaration of the deceased which is Ext.
P-2 in the case and which forms the basis of the cO'nviction of the two
appellants. Thereafter in view of the critical condition of the deceased
Dr. Ramamurthi advised that the deceased should be taken to the
Madras General Hospit>al and accordingly the relations of the deceased
took the <ieceased to the Madras General Hospital where also he is said
to have made another dying declaration before the police. This dying
declaration, however, was rejected both by the Sessions Judge and the
High Court Md it is not necessary for ns to refer to this part of the
evidence. Even the oral dying declaration said to have been mrule by
the deceased to P.Ws. 1 and 2 and others also has not been accepted
either by the Sessions Judge or by the High Court.
The accused pleaded innocence and averred that they had been
falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying
declaration Ext. P-2. The dying declaration is undoubtedly admissible
under s. 32 of the Evidence Act and not being a statement on oath so
that its truth could be tested by cross-examination, the Courts have to
apply the strictest scrutiny and the closest circumspection to the statemenl before acting upon it. While great solemnity 1tnd sanctity is attached to the words of a dying man because a person on the verge of
death is not likely to tell lies or to concoct a case so as to implicate an
innocent person yet the Court has to be on guard against the statement
of the deceased being 'a result of either tutoring, prompting or a product
of h1s imagination. The Court must be satisfied that the deceased was
i1n a lit state of mind to make the statement after the deceased had a
clear opportunity to observe anct identify his assaifants and that he was
making the statement without any influence or rancour. Once the Court
is satisfied that the dying declaration is true and voluntary it can be
sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated
37-833 Sup Cl/76
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SUPREME COURT REPORTS
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by this Court in Khushal Rao v. State of Bombay(') where the Court
observed as follows :
·'On a review of the relevant provisions ofl the Evidence
Act and of the decided cases in the different High Courts in
India and in this Court, we have come to the conclusion, :ill
agreement with the opinion of the Full Bench of the Madras
High Court, aforesaid, (I) that it cannot be laid down as an
absolute rule of law th•at a dying declaration ca\1not form the
sole basis of conviction unless it is corroborated; (2) that each
case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made;
(3) that it cannot be laid down as a general propositim1 that
a dying declaration is a weaker kind of evidence than other
pieces of evidence; ( 4) that a dying declaration stands on the
same footing as another piece of evidence and has to be judged i,1 the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
( 5) that a dying declaration which has been recorded by a
competent magistrate in the proper manner, that is to say, in
the form of questions and answers, and, as far as practicable,
ih the words of the maker of the declaration, stands on a
much higher footing than a dying declaration which depends
upon oral testimony which may suffer from all the infirmities
of human memory and human character, and (6) that in
order to test the reliability of a dying declaration, the Court
has to keep in view the circumstances like the opportunity of
the dyi•ag man for observation, for example, whether there was
sufficient light if the crime was committed at night; whether
the capacity of the man to remember the facts stated had
not been
impaired
at the time
he was
making the
statement, by circumstances beyond
his control;
that the
statement has
been
consistent throughout if he
had
several opportunities of making a dying declaration apart
from the official record of it; 11nd that the statement had bee!Jl
made at the earliest opportunity and was not the result of
tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping
m view the fact that the statement has been made in the
absence of the accused who had '10 opportunity of testing tlte
veracity of the statement by cross-examination."
The abo'e observations made by this Court were fully endorsed by a
Bench of five Judges of this Court in Harbans Singh and Another v.
State of Punjab( 2). In a recent decision of this Court in Tapinder Singh
v. State of Punjab (3), relying upon the earlier decision referred to
above, this Court observed as follows :
(1) [1958]S.C.R. 552.
(2) [1962] Supp. (l) S.C.R. 104.
(3) [1971] 1 S.C.R. 599.
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K. R. REDDY I'. PUBLIC PROSECUTOR (Fazal Ali, J.)
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"It is true that a dying declaration is not a deposition in
court and it is neither made on oath 'nor in the presence of
the accused. It is, therefore, not tested by cross-examination
on behalf of the accused. But •a dying declaration is admitted
in evidence by way of an exception to the general rule against
the admissibility of hearsay evidence, on the principle of
•necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing
its reliability, by imposing on it an obligation to closely scrutinise •all the relevant attendant circumstances."
In Laliubhai Devchand Shah and Others v. State of Gujarat('), this
Court laid special stress on the fact that one of the important tests <?f
tho reliability of a dyio,1g declaration is that the person who recorded 1t
must be satisfied that the deceased was 'in a fit state of mind and
observed as follows :
"The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh
was in a "fit state of mind" to make the statement. The "fit
state of mind" referred to is in relation to the statement that
the dying man was mah1g. In other· words, what the case
suggests is tlrat the person who records a dying declaration
must be satisfied that the dying man was making a conscious
and voluntary statement with normal understanding."
We would now examine the dylag declaration Ext. P-2 in the light
of the princ'iples enunciated above. To begin with, we would like to
deal with the surrounding circumstances •and the attendant factors
which culminated in the dying declaration Ext. P-2 made by the deoceased at Dr. Ramamurthi Nursing Home. According !o the prosecution there were three clear occasions when the deceased was conscious
and could have made a statem~nt disclosing the names of his assailants.
The first occasion was at the place of occurrence itself, alter the deceased is said to have been assaulted by the accused. The persons who
wen> present on this occasion were P.Ws. 1, 2, 5 & 6. According to
P.W. 1 (p. 5 of the printed Paper Book) the deceoased even though he
was groaning was in a condition to speak out and on being questioned
he narrated the entire occurrence and disclosed the names of the five
accused persons to P.W. 1. The fact that the deceased had mentioned
the names of all the accused to this witness has been disbelieved by
both the Courts and in our opinion rightly, because P.W. i did not
make any mention of this fact either in the F.I.R. Ext. D-4 or in his
statement to the police.
Nevertheless from the statement of P.W. I
who is the son of the deceased it is manifestly clear that the deceased
was in a position to make a statement and yet he did not di.sclose the
names of the assailants.
Similarly P.W. 2 (p. 15 of the Printed
Paper Book ) categorically states that in his presence P.W. 1 asked
the deceased as to how the incident took place and the deceased told
him that all the five accused had assaulted him with sticks, stones and
(!) [19711 3 s.c.c. 767.
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SUPREME COURT REPORTS
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knives and then ran away.
This also shows that the deceased was
conscious when he is said to have made this statement.
Lastly, there
is foe evidence of P.W. 6 (p. 29 of the Paper Book) who also says
that although the witness could not hear what the deceased said yet
he was speaking very slowly with his son.
Thus at the first stage,
namely, when the deceased was at the spot he was in a position to
r;iake the statement and yet, according to the findings of the Courts
b=low, he did not disclose the names of the assailants to any body.
The second occasion when the deceased could have disclosed the
names or his assailants was at the time when he was carried in a lorry
frota tte pJoace of occurrence to Dr. Ramamurthi Nurs.ing Home. P.W.
1 (p. 8 of the printed Paper Book) categorically states that at the time
when his father was put on the lorry he was groaning but he was in a
position to talk. The witness further goes on to state that inone of the
20 to 30 persons who had gathered at the scene tried to ask the
deceased as to how the incident took place. Similarly P .W. 6 (p. 29
of the printed Paper Book) clearly stated that the injured was in a position to talk while he was being put on the lorry and about 50 to 60
persons were· present there at that time.
The third occasion when the deceased could have disclosed the
names of the assailants was when he reached the Nursing Home. In
this connection P.W. 1 (p. 9 of the printed Paper Book) has stated
that on reachinl' the hospital the Doctor was sent for and at that time
his father was conscious and was in a position to talk though he was
groaning with pain. He further admitted that he did not tell the Doctor
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what his father had told him. Similarly P.W. 2 states (at p. 16 of the
printed Paper Book) that when the Sub-Inspector of Sullurpet came
and saw the injured in the room of the Nursing Home the injured was
in a position to talk but the Sub-Inspector did not talk to him or question him on anything.
P.W. 15 thy Sub-Inspector of Sullurpet states
(at p. 41 of the printed Paper Book) tilat he found about 20 persons
at the Nursing Home gathered outside the Nursing Home and saw
Dr. Ramamnrthy attending on the injured inside when the injured was
in a conscious state.
From the evidence discussed above, it is clearly established that
alth0ugh the deceased was conscious at the place of occurrence, at the
time when he was put on the Jory and also at the time when he was
brought to the Nursing Home and was in a position to speak he did npt
disclose the names of the assailants to any body. This conduct of the
deceased can be explained only on two hypotheses, namely, either the
deceased was not conscious at all and was not in a position to talk to
any body or that even though he was conscious he did not disclose the
occurrence to any body because under the stress and strain of the assau!.t,
which tock place admittedly at a time when darkness had set in and
there was very little moonlight, he was not able to identify the assailants. No third inference can be spelt ou! from the conduct of the
deceased in not disclosing the names of the assailants on these three
occasions. Further more, the fact that the deceased was not in a position to identify the assailants receives intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly
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K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, J.)
549
stales that he had seen A-3, A-4 and A-1 at A-5's house about
fiv~
years before the occurrence. He further states that he did not know if
his father knew A-1, A-3 and A-4 well and by their names. He further
states that A-3 had visited his house five years ago and he could not
say whether his father was present at that time. Lastly the witness
states that he had no other acquaintance with A-3 and A-4. He also
states that he came to know A-2 only after the occurrence of this case.
The learned Sessions Judge has rightly relied on these circumstances to
come to the conclusion that the deceased did not know the names of the
accused nor was he able to identify them in the darkness and tllis introduces a serious infirmity in the dying declaration itself. It would be
seen that in the dying declaration Ext. P-2 the name of the accused
No. 1 Ramachandra Reddy is clearly mentioned and so is the nam<: of
accused No. 2. If according to P.W. 1 there was a clear possibility «f
the deceased not having known the names of A-1, A-2 or A-3 then it i;
not underst~ndable how these names could be mentioned by the
deceased in his dying declaration unless the names were suggested to
him by some body. Against this background the presence of P.W. 2
the coi:sin of the deceased by his side even at the time when the dying
declaration was recorded or a little before that clearly suggests that tl1e
possibility of prompting cannot be excluded. Even the High Court has
clearly found that the possibility of prompting was there.
Dr. Ramamurthi P.W. 17 has stated tha~ while the Magistrate was
recording the statement of the injured, the injured was sitting for a
while and was thereafter lying in the lap of P.W. 2 who was nursing
him then. Another important circumstance that has been considered by
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the learned Sessions Judge but overlooked by the High Court is that
< even though according to the evidence led by the prosecution the
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deceased was fully couscious in the hospital and had met persons from
his village, his friends and acquaintances including Dr. Ramamurtlli
P.W. 17 and the Sub-Inspector P.W. 15 yet he did not make any st~tc
ment to any of these persons nor did any of these persons try to question
. the deceased about the occurrence. In fact the categorica1 evidence of
P.W. 17 Dr. Ramamurthi is that from the time the patient was br01;ght
in the Nursiilg Home till the Magistrate arrived, the patient did not talk
to any one including him. The learned Sessions Judge has observed
that this is a very extra-ordinary and unnatural circumstances which
throws a good deal of doubt on the circumstances in which the dying
declaration was recorded. The Doctor was known to the deceased and
yet neither the deceased talked to him nor did the Doctor make any
inquiry from him. On the other hand P. W. 15 the Sub-Inspector has
stated (at p. 42 of the printed Paper Book) that when the deceased had
reached tlie Hospital he was not in a position to talk and was groaning.
P.W. 17 Dr. Ramamurthi has also stated that the state of mind of the
deceased was restlessness.
He further deposed that till tlie Magistrate
arrived, the witness had no opportunity to assess the mental capacity
of the injured Venugopala Reddy. It would appear from the evidence of
!'·!"·. 20 who made the postmortem that there were as many as 48
m1unes on the person of the deceased out of which there were 28 incised
wounds on the various parts of the body including quite a few gaping
incised injuries. In view of these serious injuries we find it difficult to
believe that the deceased would have been in a fit state of mind to make
a dying declaration. The Magistrate P. W. 11 who recorded the· dying
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5 50
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
declaration has admitted that the injured was suffering from paid and
h,, was not in a position to sign and so his thumb impression was taken.
The Magistrate further admitted that the injured was taking time to
answer the questions. The Magistrate further admitted that the injured
was very much suffering with pain. In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a
direct question to the injured whether he was capable mentally to make
any statement.
In the case of Lallubhai Devchand Shah
referred
to by us 511pra the omission of the person who recorded the dying declaration to yuection the deceased regarding his state of mind to make the
~taten1ent \Vas considered to be a very serious one and in our opinil..in
in the insLrnt case the omission of the Judicial Magistrate who knew
the Jaw well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement.
The
Se,,io11; Judge has rightly pointed out that even though the deceased
might have been conscious in the strict sense of the term, there must he
re!iahl~ evidence. to show, in view of his intense suffering and serious
injuries, that he was in a fit state of mind to make a statement regarding
the occurrence. Having regard, therefore, to the surrounding circumswnces mentiQ11ed above, which have not been fully considered by the
High Court, we find it extremely unsafe to place any reliance on Ext.
P-~ particular!} in view of the conduct of the deceased in not making
any disclosure regarding the occurrence on the three previous occasions
wllcn he had a full and complete opportunity to name his assailants.
Lastly it is admitted that there was serious enmity between the
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parties. P.W. 2 states (at p. 16 of the printed Paper Book) that there
,
were ill-feelings between the deceased and A-1, A-2 to A-5. While ,
com1sei for the State has submitted that the deceased was assauted due
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to enmity. the possibility cannot be ruled out that the accused may have
been named 1.Jccause of the enmity. The learned standing counsel for
the State relied upon the statement of Dr. Ramamurthi who had given
th~ ce,-tificatc that the deceased was in fit state of mind to make a statem·,.1t.
This certificate by itself would not be sufficient to dispel the
doubts created by the circumstances mentioned by us and particularly
the omission by the Magistrate in not putting a direct question to the
deceased regarding the mental condition of the injured when he was
satisfied that the injured was suffering from severe pain and was uot
abk to speak normally. For these reasons, therefore, this case clearly
laJls within principles (5) and (6) laid down by this Court in Khttshal
Rao's case (supra). In these circumstances we feel that it would be
wholly unsafe to found the conviction of the appellants on the basis
of Ext. P-2.
Mr. P. Ram Reddy for the State submitted that Ext. P-2 was corroborated by the presence of at least accused No. 1 near the petrol oump
slightly before the occurrence, took place.
The presence of accused
No. 1 in Tada Bazar near his village is not completely inconsistent with
his guilt and being a resident of the village close by his presence in the
H
Bazar can be explained on account of various reasons. It was then
submitted that the accused had been absconding. The accused, howe\'er, surrendered within 14 days and this is not a circumstance which
can outweigh the effect of the suspicious circumstances under which
•
•
,
K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, !.)
551
the dying declaration was made. It seems to ns that as the deceased
did not know the names of the appellants nor did he know them from
before he was not able to identify his assailants and the names were
supplied by P.W. 2 his cousin just before the dying declaration was
made.
Putting the prosecution case at the highest, there can be no
doubt th:;t the view taken by the learned Sessions Judge that the dying
declaration did not amount to a trnthful disclosure cannot be said
to be against the weight of the evidence on the record and even if the
High Court was in a position to take a view different from the one
taken by the Sessions Judge on the same evidence, this would not be
a ground for reversing the order of acquittal.
In Rani
Jag
and
others v. The State of U.P. (') this Court observed as followed:
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B
'"Such regard and slowness must find their reflection in the
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appellate judgment, which can only be if the appellate court
deals with the principal reasons that become influenced the
order of acquittal and after examining the evidence with care
gives its own reasons justifying a contrary view of the evi-
«lence.
Jt is implicit in this judicial process that if two views
of the evidence are reasonably_ possible,
the
finding
of
acquittal ought not to be distnrbed."
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Thus in <he instant case as two views were reasonably possible and
therefore the High Court was in error in disturbing the order of acquittal passed by the Sessions Judge.
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For the reasons given above, we are satisfied that the High Court
wa3 not at all justified in reversing the order of acquittal passed by the
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Sessions Judge. The appeal is accordingly allowed, the conviction and
'
sentence passed against the appellants are set aside and they are acquit·
ted of tl1e charges framed against them. The appellants are directed to
be set at liberty forthwith.
M.R.
Appeal allowed.
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(11 [197413 S.C.R. 9.