Santosh Hegde, J.— The appellants were Accused 1 and 3 before the IInd Additional Sessions Judge, Chittoor at Madanapalle in SC No. 53 of 1992. They were charged for an offence punishable under Section 302 read with Section 34 IPC before the Additional Sessions Judge who found them guilty and convicted them for an offence punishable under Section 304 Part II and sentenced both the accused to undergo RI for a period of four years. The said conviction and sentence has been upheld in appeal by a Single Judge of the High Court of Judicature, A.P at Hyderabad in Criminal Appeal No. 1272 of 1992.
2. Briefly stated, the prosecution case is that on 25-5-1991 at about 8 p.m there was an altercation between the wife of the 1st appellant herein and the wife of the deceased in regard to taking water from the tap. This altercation turned into a fight in which members of both the families joined and it is stated that in the said fight the accused persons stabbed the deceased Mahaboob Saheb on the abdomen and chest. The deceased was then taken to Government Hospital at Madanapalle where PW 9 Civil Assistant Surgeon, examined the deceased and sent the intimation of the crime Ext. P-3 to IInd Town Police Station Madanapalle. He also issued the certificate Ext. P-2 and thereafter the said doctor referred the deceased to the hospital at Tirupati for expert treatment. When the deceased was still in the hospital at Madanapalle, PW 10 Head Constable of IInd Town Police Station, Madanapalle who received Ext. P-3 from the doctor went to the hospital and recorded a statement of the deceased which is marked as Ext. P-4. Since the incident in question had taken place in the jurisdiction of another police station, PW 10 informed Mudivedu Police Station of the incident and sent Ext. P-3 and Ext. P-4 to the SHO of the said station on the same night. PW 11 who is the Sub-Inspector of Mudivedu Police Station on receipt of the information from PW 10 registered a case against the accused under Section 324 IPC. It is stated that as per the advice of the doctor, PW 9, the deceased was shifted to Tirupati Hospital where another statement of the deceased was recorded by PW 11 which is marked as Ext. P-13. It is the prosecution case that the deceased died in the said hospital on 27-5-1991 at about 4.35 a.m After receiving the said death information, PW 11 changed the offences into Section 302 IPC and issued a fresh FIR Ext. P-14. All the four accused persons were sent for trial before the IInd Additional Sessions Judge, Chittoor who transferred the case in regard to Accused 2 and 4 to the Juvenile Court under the Juvenile Justice Act, 1986, and as stated above, only these two appellants were tried by the Sessions Court.
3. The prosecution before the trial court examined twelve witnesses out of whom PW 1 was the wife of the deceased, PW 2 was the son of the deceased, PWs 3 to 6 were neighbours who allegedly witnessed the incident while PWs 7 and 8 were panch witnesses for the recovery of the weapon. But these witnesses including the wife and the son of the deceased did not support the prosecution. In the absence of any other direct evidence, the prosecution had to rely on the two dying declarations Ext. P-4 and Ext. P-13 and the evidence of the doctor, PW 9, who attested the dying declaration Ext. P-4 as also the evidence of other police witnesses. The trial court rejected the second dying declaration Ext. P-13 on the ground that the same was dated subsequent to the death of the deceased, therefore, it was not safe to rely upon the same. It, however, accepted the first dying declaration Ext. P-4 and after coming to the conclusion that it is safe to rely on the said dying declaration based a conviction solely on Ext. P-4 as spoken to by PW 9, the doctor, and PW 11, the SI, and convicted the appellants, as stated above. The High Court also took a similar view and confirmed that sentence.
4. In this appeal before us, Ms Amareswari, learned Senior Counsel appearing for the appellants contended that Ext. P-4 is not a document on which any court can safely place reliance. She submitted that it is the evidence of the doctor that the deceased at that point of time was not in a serious condition and there was no immediate apprehension of his death and if really PW 11 wanted to record the dying declaration in the hospital at that point of time, then he could have very well called the Magistrate who was residing hardly half a kilometre from the hospital, which was not done, therefore, it is highly doubtful whether really a statement of this nature was ever recorded by PW 11 during the lifetime of the deceased. She also contended that even though, admittedly, the deceased was capable of signing still PW 11 took only his thumb impression that too not using an ink pad but by using the grease of the motorcycle, which also creates a doubt as to the genuineness of Ext. P-4. She pointed out from the evidence on record that PW 9, the doctor, could not have witnessed the statement said to have been made by the deceased because he has admitted in his evidence that at that time he was attending to other patients also. Therefore, she contends that in the absence of there being any other corroborating evidence, it is not safe to rely on Ext. P-4. She also contended that according to the prosecution itself, both the appellants herein had suffered injuries which the doctor had opined could have been caused by the use of a stick which indicates that there was a fight and in the absence of the prosecution explaining how these injuries were caused to the appellants, the prosecution case as to the incident in question could not be believed.
5. Ms Anamika, learned counsel appearing for the respondent State contended that there is no reason to doubt the evidence of PW 11, the investigating officer, because no suggestion of any sort has been made to this witness as to his impartiality. She also pointed out that this witness PW 11 had no reason to depose or to falsely implicate these appellants because the case was not even being investigated by him, ultimately therefore, the result of the case would be of no consequence to this witness. She also submitted that PW 9, the doctor, had no reason whatsoever to depose falsely that the deceased had made a statement as per Ext. P-4.
6. We have considered the arguments addressed on behalf of the parties and perused the records. In this case, as stated above, the prosecution has come out with a particular narration of the incident in question according to which these appellants and two others stabbed the deceased but the prosecution has recovered only one weapon, therefore, it is difficult to appreciate the prosecution case how by one single weapon all these four accused persons could have stabbed the deceased. That apart, the prosecution in its version of the incident has not explained how the accused persons suffered injuries and by whom. There is an obligation on the part of the prosecution to explain the injuries suffered by the accused. In the instant case, the accused also came to the hospital almost at the same time as the deceased and the doctor examined them after examining the deceased, therefore, these injuries on the accused persons must have been caused in the same incident in which the deceased suffered injuries which later became fatal. Hence, in the absence of any explanation from the prosecution as to the injuries on the appellant, we are of the opinion that the prosecution version of the incident becomes doubtful. As noticed above, all the eyewitnesses and other panch witnesses have turned hostile including the wife and the son of the deceased. Therefore, there is none to speak about the incident in question except Ext. P-4. So far as Ext. P-4 is concerned, as contended by the learned counsel for the appellant, the same is recorded by the Police Inspector when he could have very well obtained the service of the Magistrate who was residing half a kilometre from the hospital. It is not the case of the prosecution that there was any imminent danger to the life of the deceased at that point of time, hence, PW 11 had no such urgency to record the statement. In Ext. P-4 the deceased does not explain the nature of attack on him except generally stating that all the accused persons attacked him. Then again, we find there is a correction in regard to the nature of weapon referred to in Ext. P-4 which also gives rise to suspicion as to the genuineness of Ext. P-4. It is also surprising that PW 11 could not get sufficient ink in the hospital to get the thumb impression of the deceased because of which he had to use grease from the motorcycle to take the thumb impression. All these suspicious circumstances surrounding Ext. P-4, coupled with the fact that the close relatives of the deceased have not supported the prosecution case and the absence of explanation from the prosecution as to the injuries on the accused gives rise to a serious doubt as to the correctness of Ext. P-4 which, in our opinion, cannot be relied on for the purpose of basing a conviction. The courts below have not appreciated this aspect of the case and have merely accepted Ext. P-4 as a document on which the conviction could be based. As a matter of fact, the High Court even confused Ext. P-4 with Ext. P-13 and referred to the contents of that document while it accepted the prosecution case when in fact the trial court for good reasons had rejected Ext. P-13.
7. In regard to the nature of attack, the learned counsel for the respondent contended that it is not necessary for the prosecution to prove overt act of each of the accused persons when Section 34 is attracted, therefore, the fact that the deceased had not mentioned the particulars of the persons who attacked him may not be a ground for acquittal. Though it may not be necessary for us to go into the fact of the argument, because of our difficulty to accept the genuineness of Ext. P-4, still we would like to observe that it is not the case of the prosecution that all the accused persons came prepared to attack the deceased. It is their case that the fight started suddenly without preplanning between the two ladies and the others joined in and somebody stabbed the deceased. Assuming this case of the prosecution to be true, in the absence of any material to show that there was any common intention, it will not be possible to attract Section 34.
8. Be that as it may, since we are not accepting the prosecution case in regard to Ext. P-4, this appeal has to succeed, hence, we set aside the judgment and conviction of the courts below and allow this appeal. The appellants shall be released forthwith, if not required in any other case.