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TMI Blog2015 (9) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... me by means of chopper, long on my hand, head, neck and on other parts of the body with an intention to kill me and they have assaulted Umesh who was with me. Vyramudi said do not kill us and went away. Prakash ran away. Please take action against those who have attempted to kill me." 3. After registration of the First Information Report (Exhibit P-5) on the basis of the above statement made by Pradeep which has become dying declaration in view of his death, the investigation commenced. In the course of investigation, 37 witnesses were examined. The investigating officer, on completion of investigation, submitted challan against Naga @ Bagaraju (A-1), Jaga @ Santhosh Kumar (A-2), S. Sathish @ Gunda (A-3), Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6). 4. The concerned Magistrate then committed the accused to the court of Sessions for trial. The Court of Sessions Judge, Fast Track Court-I, Mandya conducted the trial against A-1 to A-6 for the offences punishable under Sections 302, 307, 144, 148 read with Section 149 of the Indian Penal Code, 1860 (for short, "IPC"). The prosecution examined 37 witnesses of which PW-4 (Umesha), PW-5 (Prakash) and PW-15 (Vyramudi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently and there is no initial of any officer by the side of the name of Swamy and the colour of the ink differs from the other handwriting. In view of the foregoing discussions we hold that the dying declaration of deceased Pradeep - Ex. P.22 is genuine and has been recorded by PW30 - Rajshekhar in the presence of PW25 - Dr. Balakrishan when the deceased was in fit condition to give statement and hence, a conviction can be based on the said dying declaration. 17. So far as the capacity of the deceased to narrate the incident regarding the cause of his injuries is concerned, on perusal of Ex. P.3 the accident register it is clear that Ex.P.3 was brought into existence at 9.30 p.m. and in Ex.P3 it is mentioned that the assault was by six persons and the names of all the six persons are mentioned therein without any over writing. The over writing pertains only to the presence of Vyramudi and it is the contention of the learned counsel for the accused that over the name of Vyramudi name of Pradeep is written. In Ex.P.23 - requisition letter it is seen that signature of Vyramudi is separately taken by the doctor as brought by him and, therefore, the presence of either Vyramudi or P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of U.P.; [AIR 1954 SC 637] , Atley v. State of U.P.; [AIR 1955 SC 807] , Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217] , Balbir Singh v. State of Punjab; [AIR 1957 SC 216] , M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200] , Noor Khan v. State of Rajasthan; [AIR 1964 SC 286] , Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450], ,Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793] , Lekha Yadav v. State of Bihar; [(1973) 2 SCC 424] Khem Karan v. State of U.P.; [(1974) 4 SCC 603] , Bishan Singh v. State of Punjab; [(1974) 3 SCC 288] , Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228] , K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355], 17 Tota Singh v. State of Punjab [(1987) 2 SCC 529] , Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248] , Madan Lal v. State of J&K; [(1997) 7 SCC 677] , Sambasivan v. State of Kerala; [(1998) 5 SCC 412] , Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85] , Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002) 6 SCC 470] , C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1] , 24 State of Karnataka v. K. Gopalakrishna; [(2005) 9 SCC 291] , State of Goa v. Sanjay Thakran; [( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Dr. Latha) at about 9.30 P.M. on 17.08.2002. She has not certified that Pradeep was in fit state to make any statement. PW-25 (Dr. Balakrishna) at the relevant time was Assistant Professor of Surgery at K.R. Hospital where deceased Pradeep was taken immediately after the incident. At about 9.40 p.m. on 17.08.2002, PW-36 (Kodandaram, PSI) gave a memo to PW-25 stating that one patient (Pradeep) was admitted in the hospital and requested him to verify as to whether the patient was in a position to give statement. In his cross-examination, PW-25 has stated that at 9.35 P.M., he saw the patient (Pradeep) when he was kept in operation theatre of casualty for emergency treatment. He has also deposed that a group of doctors was providing treatment to him. His deposition does not establish that Pradeep was under his treatment. The recording of Pradeep's statement by a constable (PW-30) as dictated by PW-36 (PSI) in this situation raises many questions. The trial court found this absurd. It is the prosecution version that PW-30 has recorded Ex.P-22 as dictated by PW-36 (PSI). Thus, Ex.P-22 is not in actual words of the maker. The trial court in this background carefully considered the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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