VALLABHANENI VENKATESHWARA RAO versus STATE OF A.P.

Citation: [2009] 7 S.C.R. 1210 · Decided: 08-05-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 7 S.C.R. 1210 
A 
VALLABHANENI VENKATESHWARA RAO 
v. 
STATE OF A.P. 
Criminal Appeal No. 373 of 2008 
B 
MAY 08, 2009 
(DR. ARIJIT PASAYAT AND DR.MUKUNDAKAM 
SHARMA, JJ) 
PENAL CODE, 1860: 
c 
ss.3021149 - Conviction of seven accused by trial court 
- Acquittal of four of them by High Court disbelieving one of 
the two dying declarations, recorded by the police - Held: In 
view of the contradictions in the facts mentioned in the dying 
declarations and testimonies of the doctor and the other 
D prosecution witness, the dying declarations can not be believed 
- In the circumstances, it would not be safe to convict the 
accused - Their conviction is set aside - Dying declaration. 
·I 
The appellants and four others were prosecuted for 
commission of offences punishable u/s 302/149 and 148 
E IPC. The prosecution case was that there was enmity 
between the accused group and the complainant party. 
On the specified date the accused assaulted the brother 
of PW3 as a result of which the victim died the same day 
in the hospital. The trial court relying upon the prosecu-
F tion evidence and two dying declarations (Ext. P-12 and 
Ext. P-14) convicted all the seven accused of the offences 
charged. On appeal, the High Court affirmed the conviction 
of A-1 to A-3 and acquitted A-4 to A-7. 
In the appeals filed by A-1 to A-3, it was contended 
G for the appellants that the reasons given by the High Court 
for rejecting the second dying declaration (Ext.P-14), were 
equally applicable to the first dying declaration (Ext.P-12) 
and, therefore, the appellants were also entitled to 
acquittal. 
H 
1210 
VALLABHANENI VENKATESHWARA RAO V. 
1211 
STATE OF A.P. 
Allowing the appeals, the Court 
A 
\ 
HELD : 1.1 As regards the alleged dying declaration 
(Ext.12), the A.S.l.(PW-8) stated that on 9.10.2002 at 12.45 
p.m. the injured (deceased) was brought by his brother 
(PW3) to police station where Ext. P-12 was recorded by B 
him (P.W.8) between 12.45. P.M. and 1.15 P.M. Ext. P-12 
would indicate, that P.W.8 obtained the LT.I, of the 
deceased; whereas P.W.10, the Doctor, stated that the 
victim after receipt of first injury on the head would have 
become unconscious; and he could not have been in a c 
position to speak; and that because of the injury in the 
left elbow joint, he could not be in a position to put left 
thumb impression. Thus the statement of the doctor 
-
falsifies the deposition of P.W.8.(para 7] (1217-D-G] 
1.2 Further, according to P.W.8, after recording Ext. D 
P-12, he sent the injured (deceased) to the hospital along 
with a constable and Hospital Memo. But P. W.10, the 
doctor, specifically stated that the injured was not sent 
by the police and there was no hospital memo, as is 
evident from Ext. C-2. He further stated that since injured 
E 
was not in a fit condition to give statement, he asked P.W.3 
who accompanied the deceased about the incident. There 
is no explanation from the prosecution in this regard and, 
as such, there is no corroboration for the statement of 
P.W.8. (para 7] (1217-H; 1218-A-D] 
F 
1.3According to P.W.3, when the deceased was sitting 
in the car in front of the Police Station, P.W. 8 came out of 
the Police Station and recorded Ext. P-12 statement from 
the injured. But according to P.W.8, the injured was 
G 
brought inside the Police Station and his statement (Ext. 
" P-12) was recorded there. Thus there is a variation. But 
the fact remains that both had stated that Ext. P-12 was 
recorded at the Police Station before reaching the 
hospital. If this is true, P.W.3 would have stated to the 
H 
1212 
SUPREME COURT REPORTS 
[2009] 7 S.C.R. 
A doctor that 3 persons attacked the deceased with sticks 
as referred to in Ext.P-12. On the other hand, he 
specifically stated to doctor (PW 10) that 10 persons 
attacked the deceased with crow bar as referred to in 
Ext.C-2. As such, the statement of P.W.3 to the doctor 
B (P.W.10) is contradictory to Ext.P-12. This shows that Ext.P-
12 was never recorded by P.W.8 in the police station in the 
presence of P.W.3 before reaching the hospital, as they 
directly went to the hospital. [para 7] [1218-F-H; 1219-A-B] 
c 
1.4 Ext. P-12 suffers from two infirmities. Firstly, medical 
.. 
evidence is contradictory. Secondly, only eye witness 'J' 
mentioned in Ext.P-12 was not examined. The non-
examination of the said eye witness would result in the 
lack of corroboration to Ext.P-12. [para 7) [1219-G] 
-
D 
1.5 Ext.P-14 is not a mere improvement

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