Mohd. Azeezuddin vs State of Andhra Pradesh

K. Ramaswamy, J.—The sole accused is the appellant. He was convicted of the offence under S. 302 IPC and was sentenced to undergo imprisonment for life on an indictment of committing patricide on January 27, 1981 at 10 p.m. in his house. The prosecution case is as followed. The accused, the second son of the deceased, of Kangal village of Nalgonda District, had left for Bombay years past. Preceding the date of occurrence, at about Ramzaan time, the accused came back and was staying with his father. On January 28, 1981 on the morning P.W. 3 a boy who was passing-by, heard the groaning of the deceased. P.W. 3 opened the front gate, peeped in and found the deceased crying "Allah, Allah", lying on the cot in the front verandah. He went in and accosted the deceased. The deceased told him that the accused had stabbed him and went away and requested P.W. 3 to arrange to take him to the hospital at Nalgonda. P.W. 3 went out and saw P.W. 1 standing nearby waiting for a lorry to go to Nalgonda. He informed P.W. 1 of what he had seen of the deceased. Immediately, P.W. 1 came to the deceased and made enquiries. The deceased informed him that the accused stabbed him and went away, P.W. 1 and other took the deceased to the hospital at Nalgonda in a lorry. He was admitted in the hospital P.W. 13, the doctor admitted the deceased at 9.45 a.m. He found two stab injuries on his body. Since the deceased was in a serious condition he intimated P.W. 8, the Munsif Magistrate to come and record the declaration of the deceased P.W. 8 came at about 10.50 a.m. and recorded the statement Ex. P. 9, between 10.50 and 11.10 a.m. He also obtained the signature and thumb impression of the deceased on Ex. P. 9. The doctors were not available and the staff nurse attending on the deceased refused to certify about the fitness of the mind of the deceased P.W. 8 made an endorsement on Ex. P. 9 to that effect.

After the admission of the deceased in the hospital, P.W. 1 went to the rural Police Station, Nalgonda and reported the matter. P.W. 15, the Head Constable registered the crime under S. 207 of IPC and issued the F.I.R., Ex. P13. Thereafter P.W. 16 S.I., took over investigation. P.W. 16 went to the scene of offence, seized the bloodstained earth, etc., under a Panchanama, Ex. P. 14. He went to the hospital and examined P.Ws. 1, 3, 4, 9 and 11 and P.Ws. 5, 10 and 12 on 28-1-1981.

P.W. 14, the doctor, performed an operation on the deceased between 11.15 a.m. and 2 a.m. on 29-1-1981. But, however, on the next day the deceased died at about 8.10 a.m. Then the doctor sent the death intimation to P.W. 16, P.W. 16, on receipt of it, altered the F.I.R. and issued the altered F.I.R. Ex. P15. He went to the hospital and held inquest. Ex. P5 is the inquest report, P.W. 2, the doctor, conducted the autopsy and issued post-mortem certificate, Ex. P3 on 13-7-1981, the accused was arrested. He made a confessional statement and the admissible portion is in Ex. P6. In the pursuance thereof, M.O. 1, the knife, was seized (and Ex. P7 is the panchanama) from the house of the accused.

At the trial, the prosecution has examined as many as 16 witnesses of whom P.W. 4 and P.W. 10 turned hostile. The prosecution relied upon the evidence consisting of dying declaration (Ex. P9) recorded by P.W. 8, and the oral dying declaration made to P.Ws. 1, 11 and 12. When the incriminating circumstances have been put to the accused, he denied the offence. The learned Sessions Judge accepted the above evidence and convicted the accused of the offence referred to above. Thus this appeal.

Sri Bhagiratha Rao, learned counsel for the appellant has strenuously contended that Ex. P9, though was recorded by the Magistrate, P.W. 8, it cannot be relied upon for more than one reason. According to him, though the doctors were available in the hospital, there is no certificate given by the doctors that the deceased was in a fit state of mind to give the statement. The evidence of P.W. 14 reveals that there are serious injuries to the lobe of the left lung and the spleen was cut and was found to be sutured. In view of this, the deceased cannot be said to have been in a fit state of mind to give the statement, Ex. P9, and therefore, this declaration cannot be relied upon. He also further contended that the evidence of P.Ws. 1, 11 and 12 cannot be relied upon. According to him, P.W. 1 is an unreliable witness because what was stated by him in Ex. P1 is not supported by the deceased in his statement in Ex. P9. He further denied the admissions made by P.W. 11 i.e. the last son of the deceased, namely that the accused was staying for a long time in Bombay and that there was a dispute between the sons of the brother of the deceased and himself. Therefore, the evidence of P.W. 1 cannot be relied upon, with regard to the evidence of P.W. 11, since he admitted that he was not examined by the police during investigation, his evidence regarding the oral dying declaration for the first time in the Court, cannot, be relied upon. He further contended that P.W. 12 is also not a reliable witness and therefore, his evidence also cannot be accepted.

The question that arise for consideration is whether Ex. P9, the dying declaration, recorded by P.W. 8, the Magistrate; can form basis to convict the appellant. P.W. 8 has recorded Ex. P9 statement. As stated earlier, the infirmity pointed out is that the doctor did not append a certificate to the effect that the deceased was in a fit state of mind to make the statement and according to the counsel that the medical evidence establishes that the deceased was not in a fit state of mind to make the statement. Therefore, let us see first the statement as such. Ex. P9, the dying declaration, clearly mentioned that his son (the accused) asked him to give a sum of Rs. 50/-. The deceased stated that he had no money. The accused took out a sum of Rs. 350/- from the pocket of the deceased''s shirt hanging nearby and then stabbed the deceased with a knife twice on 27-1-1981 at 10.00 p.m. in his house. He also spoke of the fact of P.W. 1 and another bringing him and admitting in the hospital. The accused thus stated unequivocally the motive, the time, place and stabbing and the weapon. He has implicated no other than his own son.

In T. Venkata Krishniah v. State in Crl. Appeal No. 3/83 dt. March 26, 1984 a Division Bench of this Court to which one of us (K. Ramaswamy, J.) is a party held that under S. 32 of the Evidence Act, the statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person''s death comes into question, are themselves relevant facts. Dying declaration is not a weak piece of evidence. Dying declaration by itself forms a base to convict without further corroboration provided the declaration is truthful and reliable. The truthfulness, reliability and applicability of the declaration has to be adjudged in the light of the attendant facts and circumstances of each case and it has to be subjected to strict scrutiny like any other piece of evidence either direct or circumstancial. Dying declaration recorded by a Magistrate stands on a much higher footing than the oral declaration or one recorded by an investigating officer. But it must be remembered that it was not recorded in the presence of the accused who is denied of an opportunity to test it on the touchstone of cross-examination to find its credibility. With regard to reliability, the Court has to keep in mind the circumstances like the opportunity to the victim to observe his assailants, his capacity to remember the facts stated, his state of mind at the time of making the declaration, the consistency of the declaration if made more than once and whether the declaration was made at the earliest. It is also to be found whether it has stemmed from tutoring or interference of any other person. The dying declaration is admissible in evidence as of necessity by way of an exception to the general principle that hearsay evidence is not admissible under S. 32 of the Evidence Act. This is on the premise that great solemnity and sanctity is to be attached to the words of a dying man because a person on the last lap of breath and on death bed is unlikely to speak falsehood or given a false version of the attack on him excluding the real assailants and implicating innocent persons. The Court would keep these factors in view while considering the declaration and subjecting the declaration to close scrutiny. After considering the declaration, it was accepted and the conviction was upheld in that case.

The first question, there, is whether Ex. P9 is a reliable piece of evidence, P.W. 8, the Magistrate has stated categorically in his evidence that on receipt of Ex. P8, intimation from the Doctor, he immediately proceeded to the hospital and recorded the declaration Ex. P9 between 10.50 a.m. and 11.10 p.m. on 28-1-1981. He stated in the chief examination that the deceased was in a fit state of mind to make the statement though he was in a serious condition. He recorded the statement to the dictation of the deceased and he obtained the signature and the thumb impression of the deceased on Ex. P9. Since the doctor was not available immediately and the staff nurse who was present at the time of recording Ex. P9 refused to append any certificate about the state of mind of the deceased, he made an endorsement to that effect in Ex. P9. Nothing has been brought out in the cross-examination to discredit his testimony. The only desparate suggestion given in the cross-examination and denied by the Magistrate is that the accused was not in a position to speak and he was unconscious. In view of the suggestion that deceased was unconscious, we have to see the medical evidence whether the deceased would be unconscious and was not in a position to speak. P.W. 13, the doctor who admitted the deceased has also stated that at the time he was admitted in the hospital at 9.45 a.m. on 27-1-1981, the deceased was in a serious condition. He was given blood transfusion of three bottles. P.W. 14, the surgeon has stated that though the deceased had a shock, "he was conscious and he was able to talk." No doubt, the doctor has stated that there is a stab wound in left flank measuring 3" x 2" leading into the peritonial cavity through which all the small intestines came out. He also stated that injury No. 2 was perforation of small intestines measuring 3/4" x 1/2" and that it was the result of injury No. 1. He also found there was a stab injury measuring 3" x 1" leading to the left chest cavity through the 7th interspace of the ribs in the midaxillary line. Though the penetration was in the 7th space of rib, the actual skin wound was at the 4th space of the ribs. There was a tear of the lower lobe of the left lung. There was blood in the chest cavity. He also found an internal injury, namely, tear of the left dome of the diaphragm measuring 3" x 2" through which the spleen was protruding into the chest cavity. From this medical evidence, though P.W. 14 has stated that he was in a shock and there was extensive internal damage noticed by him, in view of the fact that the deceased was in a position to speak and was conscious, the statement of Magistrate P.W. 8 that the deceased made the statement and he recorded the declaration to the direction of the deceased, is correct and acceptable. The medical evidence also does not in any way conflict with the evidence of the Magistrate. As stated earlier, there is nothing brought out on record to discredit the testimony of P.W. 8, No doubt, when a dying declaration is being recorded by the Magistrate, it is necessary to elicit information by putting questions. But the question is whether by omitting to follow this procedure the declaration recorded by the competent Magistrate would get vitiated. In Public Prosecutor v. Sarella Gopala Rao (1969) 2 APLJ 105, it was held that there is no rule of law which lays down that the dying declaration has to be recorded in the form of questions and answers. This view was followed in Crl. Appeal No. 3/1983 dt. 26-3-1984. Each case has to be considered on its own facts whether the deceased would be in a fit state of mind to make the declaration. A mere omission to obtain the certificate from the Doctor regarding the state of mind, by itself is not a ground to discredit the declaration as such. The omission to put a direct question by the Magistrate recording a dying declaration regarding fitness of mind to give declaration and the omission of the doctor to make an endorsement on the declaration that maker was mentally fit to give a statement was subject of elaborate consideration by a Division Bench of this Court to which K. Ramaswamy, J. is party in B. Bhaskar Rao v. State Crl. Appeal No. 2 of 1982 dt. April 5, 1984 : (reported in 1985 Cri LJ 32). After surveying the entire case law, laid the following propositions :

(1) The Magistrate must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding.

(2) It is incumbent upon the Magistrate who records the declaration to put a question regarding the mental state of the declarant. It is salutary to mentioned that there is no opportunity to the accused to test the veracity of the statement by cross-examining and they are denuded of that right. Under these circumstances, a solemn duty is cast on the Magistrate recording the declaration to take all the precautions to find out the fit state mind of the person making the person making the declaration. But the omission thereof does not by itself constitute any infirmity regarding the reliability of the declaration made unless there are attendant circumstances to show that the declaration is not reliable and it is not voluntary or truthful.

(3) It is the duty of the Court to carefully scrutinize the declaration and find out whether it is truthful and reliable. The certificate appended by the Doctor that the deceased was in a fit state of mind, though has a great material bearing, is not by itself conclusive. The (court ?) can go into the evidence and find out whether the deceased was in a fit state of mind at the time of recording his statement. It has to be assessed from the questions put and the way in which the deceased gave answers, the seriousness of the injuries sustained that the situs at which the injuries were inflicted and the surrounding circumstances.

After considering the evidence, though the Magistrate did not put a direct question and the Doctor omitted to endorse regarding the fit state of mind of the deceased at the time of recording the declaration, it was scrutinized, accepted and the conviction was upheld. Though the learned counsel for the appellant has relied upon the decision of their Lordships of the Supreme Court in K. Ramachandra Reddy and Another Vs. The Public Prosecutor, ; there the question was whether the dying declaration recorded by the Magistrate was reliable. In that case, there was an opportunity on more than three occasions for the deceased to disclose the names of the assailants and on all the three occasions he did not not disclose the names. The attack took place in the night. There was evidence on record to show that he does not know the names of the assailants but that the names were found. One of the witnesses was present at the time when the declaration was recorded. From these circumstances, though the doctor has certified that the deceased was in a fit state of mind, their Lordships doubted the very declaration and found that it may be the result of tutoring by the enemies of the accused. In these circumstances, the declaration was not accepted. But these are not the facts in this case. This case was considered in Crl. A. No. 2/82 and was distinguished.

The other decision relied upon by the learned counsel for the appellant is Darshan Singh alias Bhasuri and Others Vs. State of Punjab, , which is also distinguishable.

Therein, in the F.I.R., the deceased mentioned the names of certain assailants. From the medical evidence, their Lordships have found that the deceased could not be in a position to make the statement. Therefore, the information recorded by the police was not accepted, and they were not prepared to believe the statement. This case is also distinguishable. We, therefore, conclude that though the doctor was not present nor an endorsement to the effect that the deceased was in a fit state of mind at the time of recording Ex. P9 declaration, the omission thereof is not fatal and the dying declaration does not become suspect nor become unreliable on that account.

We have already considered the entire material facts furnished in Ex. P9. Therein, the deceased has categorically mentioned the name of his own son as assailant; has also stated that he was stabbed twice with knife; the motive for stabbing him; the time and place at which he was stabbed. From the facts and circumstances of this case, the declaration, Ex. P9, is true and reliable. Therefore, we accept the same. There is no need for any further corroboration. Even otherwise, we find that the medical evidence sufficiently corroborates the statement in Ex. P9. P.W. 2, the doctor who conducted post-mortem, and P.W. 14, the doctor who performed the operation on the deceased, clearly corroborate the evidence furnished in Ex. P9. This apart, there are three witnesses; P.W. 1 who is the person who admitted the deceased in the hospital. His admitting the deceased in the hospital was found mentioned by the deceased in the hospital, it is quite natural to ask the name of the assailant and the deceased disclosed that his son as assailant. Though nothing personal was suggested against P.W. 1, the only suggestion made is that the deceased and one of the brothers-in-laws of P.W. 1 were having civil litigation and he was giving evidence to exclude the brother-in-law, obviously an innuendo that the brother-in-law was the assailant. But, we are unable to place any credence to this suggestion. We told that it is only a desperate suggestion to cast a cloud on the veracity of the evidence of P.W. 1. No doubt, P.W. 11, the youngest son of the deceased was not examined during the investigation but he has categorically stated that on coming to know that the deceased was admitted in the hospital, he immediately went to the hospital. This conduct is quite natural. On his going to the hospital, he enquired as to who is the assailant and the deceased disclosed the name of his second son, the accused. His evidence also is truthful and it inspires us to accept it though the witness was not examined during investigation. The accused is no other than his brother. Nothing has been brought out seriously to discredit his testimony. P.W. 12 is another disinterested witness. He is a teacher in the village. He went to Nalgonda. On coming to know that the deceased was stabbed and was admitted in the hospital, he went and enquired and the deceased disclosed to him also that the accused stabbed him. P.W. 12 stated that in the evening the deceased was still conscious. This fact lends further corroboration to the evidence of P.W. 8 when he stated that the deceased was in a fit state of mind to make the declaration Ex. P9. From these circumstances, we hold that the prosecution has established the guilt of the accused beyond reasonable doubt.

With regard to the nature of the offence, the learned counsel for the appellant did not argue that the case does not fall under S. 302 of I.P.C. Even otherwise, the evidence of P.W. 2, the autopsy doctor and P.W. 14 the surgeon, clearly shows that the injuries are sufficient to cause death in the ordinary course of nature. Therefore, the offence is one of the murder under clause thirdly of S. 300 of I.P.C. and the lower Court had rightly convicted the accused under S. 302, I.P.C. and imposed the minimum sentence of life imprisonment. Therefore, it does not warrant interference in this appeal. Accordingly, the appeal is dismissed.

Appeal dismissed.