HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6454 of 2009 DATED:19.08.2009 Between: Bondika Urmiladevi .. Petitioner And The S.H.O., II Town P.S., Kurnool, And the State rep., by its Public Prosecutor, High Court of A.P., Hyderabad and another .. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6454 of 2009 ORDER: Heard Sri G.Venkat Reddy, learned counsel for the petitioner, and Sri K.Dhananjaya, learned Additional Public Prosecutor, who entered appearance for the first respondent. No notice is being ordered to the second respondent, as the matter is being disposed of at the stage of admission. The petitioner is facing prosecution as first accused in S.C.No.259 of 2007 on the file of the Additional Assistant Sessions Judge, Kurnool for an alleged offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The charge sheet containing the result of the investigation by the police alleges that the first accused picked up a quarrel with the deceased Shivaiah concerning an open space in front of the house and after eight years of litigation in O.S.No.407 of 1998, the civil Court decided in favour of the deceased Shivaiah. The charge sheet further alleged that in pursuance of those disputes, there was another incident on 21.02.2006, when the petitioner and two other accused were alleged to have abused the deceased, who felt insulted and died by consuming pesticide. The petitioner claims innocence of the offence and the main ground in the Criminal Petition is the absence of recording of any statement of the deceased, though he was alive from 23.02.2006 to 27.02.2006. Whether the failure of the investigating agency to record the statement of the deceased is fatal to the acceptability and credibility of the prosecution story or not has to be gone into by the trial Court before which the circumstances relating to the failure to record the statement will be placed through oral and documentary evidence to be adduced by the prosecution. Unless it is established as a matter of fact that there was an opportunity to record such a statement, but it was not recorded, no inference can be drawn from the failure to record such a statement. Therefore, this is a question of fact, which has to be gone into by the trial Court, which will have to consider the effect of not recording such statement, if there was an opportunity for the same, but the same was not availed. As this Court cannot go into the claims of innocence of the petitioner or otherwise on merits, which have to be left open to be decided by the trial Court, it is not a fit case to be dealt with under the inherent jurisdiction of this Court. Accordingly, the Criminal Petition is dismissed. ___________________ G. BHAVANI PRASAD, J 19th August 2009 KH