ORDER
Motilal B. Naik, J.
1. A1 in Sessions Case No.235 of 1995 on the file of the I Additional Sessions Judge, Kurnool, is the appellant before us who has been found guilty of committing murder of the
deceased Shaik Shali Basha on 14-10-1994 at 6.30 p.m. and was convicted under Section 302 IPC and sentenced to imprisonment for life and also sentenced to pay fine of Rs. 100/-.
2. Originally there were three accused who were charged that on 14-10-1994 around 6.30 p.m. A1 stabbed the deceased Shaik Shali Basha with a knife and caused bleeding injuries and A2 and A3 were with A1 at the time of the incident and thus all the three accused were charged for committing an offence under Section 302 IPC. On the basis of the evidence let in by the prosecution, the trial Court found only A1 guilty of committing the offence under Section 302 IPC whereas A2 and A3 who were charged of committing the offence under Section 302 read with 34 IPC were found not guilty and were acquitted.
3. The case of the prosecution in a nut-shell is as under : On 14-10-1994 while the deceased Shaik Shali Basha along with PWs 1 and 2 were standing at the hotel of PW7 after visiting Jammichettu, A1 to A3 went there and A1 stabbed the deceased on the left side of the chest and right side of abdomen with a knife and caused injuries. A2 and A3 who were with A1 then ran away along with A1. PWs.1 and 2 shifted the deceased to the Government Hospital, Kurnool. The Sub-Inspector of Police, (PW13) who was on Bandobustu duty knowing about the incident proceeded to the Hospital and recorded the statement of the injured in Ex.P17. The said statement Ex.P17 was recorded at 8.05 p.m. and a case in Cr.No.138 of 94 under Section 324 read with 34 IPC was registered and issued FIR Ex.P18. PW13 again visited the Hospital and recorded the statement of the deceased under Section 161 Cr. PC which is Ex.P19. He seized MOs. 1 and 2 from the possession of the deceased under a cover of panchnama Ex.P7 in the presence of PW8 and another. PW13 also recorded the statements of PWs.1 and 2.
4. Around 8 p.m. on 14-10-1994 PW3, Judicial Magistrate of First Class, Mobile Court, Kurnool, received a requisition from the Government Hospital, Kurnool, Ex.P2 for recording dying declaration and PW3 after proceeding to the Hospital recorded the dying declaration around 8.30 p.m. under
Ex.P3, which was certified by the duty Doctor, PW9.
5. On 15-10-1994 at about 6.15 a.m. PW13 reached the scene of offence and prepared an observation report under Ex.P8 and also seized MOs.3 and 4 in the presence of PW8 and another and prepared a rough sketch of the scene of offence under Ex.P20. At about 7 a.m. PW13 received the death intimation of the deceased through PC 324 of Kurnool III Town PS. Thereafterwards PW13 altered the section of law from Section 324 read with 34 IPC to Section 302 read with 34 IPC, re-registered the case and issued altered FIR Ex.P21. The Inspector of Police, PW14 took up further investigation. He held inquest over the dead-body of the deceased from 9.30a.m. to 11.30 a.m. in the presence of PW8 and another and also examined PW6 and recorded his statement. Ex.P9 is the inquest report.
6. After completion of the inquest PW14 sent the dead-body for post-mortem examination through PC No.1719. PW14 proceeded to the scene of offence and reached there around 12.30 noon, examined PW7 and recorded his statement Ex.P6.
7. On25-10-1994 around 7 p.m. PW14 arrested A1 and A2 and sent them for remand on 26-10-1994. A3 was arrested on 18-2-1995. On 15-10-1994 PW10 conducted autopsy over the dead body of the deceased between 12 noon and 1.05p.m. In the opinion of the Doctor the deceased died due to multiple stab injuries. Ex.P10 is the post-mortem certificate issued by PW10, the Doctor who conducted the autopsy. The successor of PW14 filed the charge-sheet.
8. In support of the prosecution case, the prosecution examined as many as 14 witnesses and got marked Exs.P1 to P22 and MOs.1 to 4. On behalf of defence, no witness was examined, but Exs.D1 and D2, statements recorded from PW2 and PW6 respectively were marked.
9. On the basis of the incriminating evidence available against the accused, the trial Court examined the accused under Section 313 Cr.PC. The accused denied the charge. However, the trial Court in the light of the evidence of PW2, coupled with Exs.P17, P19 and P3 and in the light of the evidence of PWs.3 and 6, found the accused guilty of the offence under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.100/- but however, acquitted A2 and A3 from the charge. This is the decision which is assailed before us.
10. Mr. C. Padmanabha Reddy, learned senior Counsel representing Mr. C Praveen Kumar, firstly contended that as per the charge-sheet the name of A1 is shown as Shaik Mahaboob @ Gora, son of Shaik Abdul Sattar, but in the evidence let in by the prosecution no prosecution witness has identified A1 as to be Shaik Mahaboob @ Gora S/o. Shaik Abdul Sattar, but only identified him as to be Gora son of Sattar Miya. The learned Counsel stated that when the prosecution is not able to identify the appellant it is inappropriate to hold him guilty of committing the offence as alleged against him on the evening of 14-10-1994. The learned senior Counsel further pleaded that the prosecution though examined three eye-witnesses supporting the case of the prosecution fixing the liability on the appellant-R1. PW1 did not support the prosecution version and PW7 the owner of the hotel within whose premises the alleged incident seems to have taken place did not support the prosecution version. The learned Counsel stated that when PW 1 and PW7 who are listed as eye-witnesses failed to support the prosecution case, the lower Court ought to have rejected the case of the prosecution. That apart, the learned Counsel stated that the sole testimony of PW2 supporting the prosecution case has been accepted, though PW2 has deposed in the evidence that he had seen the appellant at the time of the incident and he had seen the appellant in the Court. The learned Counsel stated the incident took place on
14-10-1994 and PW2 was examined in the Court on 24-1-1997. PW2 has deposed in the Court that A1 was subjected to test identification along with A2 and A3. The evidence of PW12 is to the effect that it was only A2 that was subjected to test identification. PW2 also failed to identify A2 though A2 was put to identification test within a period of 15 or 20 days from the date of the incident. It is difficult to recognise the person after 2 1/2 years of the incident when the appellant was seen only first time at the time of the incident and later in the Court. The learned Counsel therefore, contended that when PW2 is not able to identify A2 within 15 to 20 days after the incident, his version that he recognised the appellant in the Court cannot be accepted. The learned Counsel further contended the trial Court has based its finding on the basis of the dying declaration recorded by PW13 in Exs.P17and P19 and also Ex.P3 dying declaration recorded by PW3. The learned Counsel contended that under Ex.P17 which was recorded at 7.15 p.m. by PW13, the Doctor, who was present at the time of recording of Ex.P17 was not examined by the prosecution in the Court in order to find out the mental condition of the deceased at the time of recording Ex.P17 statement. The learned Counsel further stated that Ex.P19 statement recorded under Section 161 Cr.PC by PW13 was either given to the Court along with the charge-sheet in order to provide an opportunity to the accused and it is only at the time of examination of PW13 in the Court, PW13 produced Ex.P17 in the Court and therefore, contended that the document which has been pressed into service only at such a belated stage cannot have the legal approval and therefore pleaded that the statements alleged to have been recorded by PW13 under Ex.P17 and Section 161 Cr.PC statement recorded by PW13 under Ex.P19 cannot be accepted and cannot support the case of the prosecution. The teamed Counsel further contended that as per Ex.P3 the deceased seems to have made a statement that one Goregadu son of Sattar Miya had stabbed him. The learned Counsel stated the revelation of the name of the appellant
by the deceased cannot fix the appellant to be the assailant as the name mentioned by the deceased is Goregadu whereas the name of the appellant is Shaik Mahaboob @ Gora s/o Shaik Abdul Sattar. That apart the learned Counsel pleaded that the prosecution has not made any efforts to bring on record to show that the name mentioned by the deceased to PW3 as Goregadu is one and the same person /. e. Shaik Mahaboob @ Gora, A1 in the charge-sheet The learned Counsel stated in the absence of this clarification being brought on record by the prosecution, the prosecution having failed to identify the accused cannot justify its conviction and therefore, contended that the lower Court has totally misconducted and convicted the accused for no fault of him and has pleaded before us that the decision of the trial Court has to be set aside. In support of his varied submissions the learned Counsel has taken us through the following decisions viz. : (1) Chakiri Saidulu v. State of A.P., 1994 Cr. LJ 3782, (2) Kanchy Komuramma v. State of A.P., 1996 SCC (Crl.) 31; (3) Gopal Singh v. State of Madhya Pradesh, and Kanan v. State of Kerala, AIR 1979 SCI 127.
11. The learned Public Prosecutor Smt. P. Suseela Devi has, on the contrary sustained the decision of the lower Court contending the appellant’s involvement was in no-way doubtful before the trial Court. The learned Public Prosecutor contended that the name of A1 as mentioned in the charge-sheet itself also mentioned as Shaik Mahaboob @ Gora s/o Abdul Sattar, The learned Public Prosecutor contended that under Section 313 Cr.PC statement when the imputation found from the evidence of PW3 under Ex.P3 was put to the accused, the accused did not deny the fact that his name is different and he is not the same person as shown in the charge-sheet. What all the appellant pleaded is that he is not responsible for the incident. The learned Public Prosecutor, therefore, pleaded that the discrepancy which is sought to be projected in the appellate Court was not urged at all before
the trial Court and it was not at all disputed that Goregadu son of Sattar Miaiah is one and the same person A1 as mentioned in the charge-sheet and it is not open to the appellant to take a belated plea at this stage. The learned Public Prosecutor in the background of the evidence of PW2 and PW3 coupled with Ex.P3 contended, leaving apart Exs.P17 and P19, on the basis of Ex.P3 itself, the conviction could be sustained.
12. We have given our anxious consideration to the sustained efforts made by Mr. C. Padmanabha Reddy, learned senior Counsel seeking to set aside the decision of the trial Court. The learned Counsel has tried to point out three discrepancies before us; the first discrepancy being the evidence of PW2 who has deposed that he saw the accused in the Court and at the time of the incident. The learned Counsel for the appellant has pointed out that in the identification parade A1 was not subjected to identification and therefore it would be improbable for PW2 to identify A1 who had seen him first time in the Court after 2 1/2 years as nowhere in the evidence of PW2 it has been elicited that PW2 had seen the appellant on an earlier occasion also. We do not think this statement could be accepted in toto. PW2 has deposed that he saw the accused in the evening near the hotel of PW7 when the deceased, PW1 and another friend of A1 were waiting before the hotel after taking tea. He deposed that the accused with a knife stabbed the deceased and that A2 and A3 were also present at that time, He further deposed that when the accused was on bail he had noticed him in that area. Though there is some discrepancy about PW2’s version as to identifying the appellant at the time of identification test where he says that he identified A1 also along with A2 and others. In fact PW12 the Magistrate who conducted identification parade deposed that except A2 none was put up for identification. To that extent the statement of PW2 need not be accepted. But the fact remains that PW2’s statement about the appellant that he had seen the appellant at the time of the incident stabbing
the deceased and when the appellant was on bail he identified him. It shall be remembered that all these prosecution witnesses and the accused stay in the same street which is hardly 3/4 Kms. from the residence of PW2. Therefore, we are of the view that the discrepancies pointed out in the version of PW2 by the learned Counsel is not of such a magnitude to destroy the prosecution case insofar as the identification of the appellant is concerned by PW2.
13. Coming to the other discrepancies pointed out by the learned senior Counsel with regard to Exs.P17 and P19 probably we are inclined to agree with the same in view of the law laid down by the Supreme Court in the decisions reported in Chakari Saiditlu’s case (supra) and Kanchy Komuramma’s case (supra). Leaving aside the two statements Exs.P17 and P19, the statement recorded by PW3 under Ex.P3 which is also subjected to attack by the learned Counsel that the discrepancy in the name as mentioned by the deceased to PW3 do not suggest that Goregadu is the very same person referable to the appellant Shaik Mahaboob. We do not think that this is such a discrepancy to be accepted and which shall have a bearing on the prosecution case. The name of the appellant is mentioned as Shaik Mahaboob @ Gora s/o Abdul Sattar. It is to be seen that PW6 the brother of the deceased had deposed that on earlier occasion, near a tap when there was an altercation between tile appellant and his father, the appellant pushed the father of the deceased and as a result he died. This fact is known to the deceased also and therefore the deceased is certain that the very same Goregadu is the person whose name is mentioned in the charge-sheet as Shaik Mahaboob @ Gora s/o Abdul Sattar. That apart in Section 313 Cr. PC statement when the incriminating evidence available against the accused was put to the accused, the accused did not deny the feet that he is not Goregadu and his name is Shaik Mahaboob as mentioned in the charge-sheet. The accused pleaded only not guilty. That itself is a crucial factor, in our considered view, to hold that Goregadu as mentioned in the statement given by the deceased to PW3 is
one and the same person as mentioned in the charge-sheet whose name is referred to as Shaik Mahaboob. We, therefore, find that there is no substance in the submissions made by the learned Counsel who has now tried to make a distinction between the two names on the question of identification. Unfortunately the case of the appellant cannot be accepted on this count as no foundation has been laid by the accused-A1 in the trial Court also on this count and therefore we are of the view that it is only a belated attempt at this point of time, designed to cause some doubt in the mind of this Court in order to escape the liability. Therefore, we reject the submission made in this behalf.
14. The scrutiny of the evidence of PWs.2 and 3 coupled with the statement recorded by PW3 under Ex.P3, will throw light on the incident as spoken to by the prosecution, PW2 has deposed that on 14-10-1994 around 6.30 p.m. they were waiting at the hotel of PW7 after having tea, A1 Mahaboob @ Gora alongwith two persons came there and stabbed the deceased twice on the left side on the abdomen and above the abdomen and below the arm pit and A1 ran away along with A2 and A3. PW2 also deposed that he and PW1 took the deceased to the Government Hospital, Kurnool for treatment. In the cross-examination PW2 has deposed that he has seen the accused on the date of the incident and subsequently after release on bail, and he has also identified the accused in the Court. The lower Court has appreciated the testimony of PW2 and accepted his version. We do not think this finding of the trial Court on the testimony of the evidence of PW2 cannot be rejected. We are, therefore, of the view that the testimony of PW2 is as trust-worthy as any other witness.
15. Coming to the evidence of PW3, Judicial First Class Magistrate-cum-Special Mobile Court, Kurnool, he deposed that on a requisition from the hospital authorities on 14-10-1994 around 8.00 p.m. he reached the Government Hospital, Kurnool, for recording the dying declaration of the deceased. He
reached the hospital around 8.30 p.m. Questioned the deceased to know his mind, and having found him capable of answering, he started recording his statement. He has also deposed that during the time of recording the statement none was present except the Duty Medical Officer, who has also certified that the condition of the deceased was fit to give the statement. The certificate is Ex.P4. The dying declaration recorded by PW3 is Ex.P3. The dying declaration recorded by PW3 under Ex.P3 is certified by PW9 Dr.” V. Lakshmi Narayana, who has deposed that he was present on 14-10-1994 when PW3 recorded the statement of the deceased under Ex.P3. He has also deposed that he found the deceased coherent and conscious and was able to give the statement. The evidence of PW3 and the statement recorded by him under Ex.P3, we do not think can be rejected only on the ground that the name of the accused has been mentioned as Goregadu instead of his full name Shaik Mahaboob. The state of mind of the deceased has been duly certified by PW9 who was present at the time of recording the statement.
16. The law insofar as the validity of the statement recorded by either a judicial authority or any other authority, is found to be the result of tutoring, or the statements are not recorded on being found fit by the medical authority, such statements have to be ignored by the Courts. In this case, there is nothing before us to show that the deceased was tutored and his mental faculty had failed at the time of giving the statement to PW3. In the absence of any adverse material placed before us with regard to Ex.P3; we have no reason to disbelieve or discard the statement recorded by PW3. The statement recorded by PW3 coupled with the evidence of PW2 is enough, in our opinion, to hold the appellant guilty of the charge. Apart from the evidence of PWs.2 and 3 and Ex.P3, the evidence of PW6 also becomes relevant in this case. PW6 who is none else than the brother of the deceased deposed that his brother, the deceased left their house alongwith PWs. 1 and 2 in the evening. He was informed about 7.30 p.m. about the stabbing of his brother by A1 accompanied by two others. Immediately, himself, his mother and his sister-in-law went to the hospital where the deceased was undergoing treatment. When he enquired the deceased, he informed him that A1 stabbed him twice in the presence of two others. PW6 further deposed that about three years prior to the incident there was an altercation between their father and A1 near a public tap, and during the said altercation A1 pushed his father, who died on the spot. They though that his father died due to heart attack. After than incident, A1 left India to Saudi and returned to India one month prior to the incident i.e. somewhere in September, 1994. The evidence of PW6 indicates definitely that A1 Goregadu is none else than Shaik Mahaboob as mentioned in the charge-sheet, as A1 is known to the deceased as well as PW6 also. In the cross-examination of PW6, it was suggested that A1 has nothing to do with the family of the deceased and he was never involved in any case. This suggestion leads us to think that Goregadu as mentioned by the deceased is none else than A1, whose name is mentioned in the charge-sheet as Shaik Mahaboob. The suggestion speaks volumes about the identification of A1. Therefore, we see no reason to disbelieve that the name Goregadu as mentioned by the deceased is-one and the same to indicate that Goregadu is none else than Shaik Mahaboob, whose name is mentioned in the charge-sheet.
17. As discussed above, the evidence of PW2 coupled with the evidence of PW3 and Ex.P3 and the supporting evidence of PW6 identifying the appellant, the prosecution has been able to prove the guilt of the appellant for the charge under Section 302 IPC. In our considered view, the trial Court has appreciated the evidence in its correctness and is justified in holding the accused guilty of committing the offence. We therefore, find the finding of the trial Court. Properand confirm the conviction and sentence imposed on the appellant A1 by the trial Court.
18. The appeal has no merits to stand before us, and it is accordingly dismissed.