LexK. RAMACHANDRA REDDY & ANR. versus THE PUBLIC PROSECUTOR
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A B c J> E 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: Afagis- trate 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. G 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 • - ' • ' K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, J.) 5 43 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 A 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 B of the Code of Criminal Procedure agalust the order of acquittal pass- ed 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. Ramac
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