IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2055 of 2004 DATE: 09.12.2011 Between: Peddinti Marreddi …… Appellant And State of A.P. rep. by P.P. …… Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2055 of 2004 JUDGMENT : The appellant/accused was convicted by the lower Court under Section 304 Part I I.P.C and was sentenced to rigorous imprisonment of 10 years and ﬁne of Rs.2,000/-. Questioning the same, the accused ﬁled this appeal. The deceased was working as tractor driver under P.W-1 and the accused was working as farm servant under P.W-1. The accused along with his wife and two daughters was living in tiled farm house shed in lands of the accused where the oﬀence took place. It is alleged that on 06.12.1998 the accused detained the deceased in that shed called bore shed when the deceased was found in the company of eldest daughter of the accused by name Manga Durga and that the accused separated the deceased from his daughter and poured kerosene on him and set ﬁre to him, due to which the deceased suﬀered burn injuries and succumbed to the said injuries while undergoing treatment in district head quarters hospital, Eluru. The oﬀence took place in Kokkirapadu village o f Pedapadu Mandal. Plea of the accused is one of total denial and not guilty. After trial, through the lower Court framed charges under Sections 342 and 302 I.P.C, found the accused guilty under Section 304 Part I I.P.C alone. 2) There are no eye witnesses to the occurrence. The prosecution relies on dying declaration given by the deceased; and on the said basis only the accused was found guilty by the lower Court. It is contended by the appellant’s counsel that crucial witness in this case is the eldest daughter of the accused who was in the company of the deceased at the time of oﬀence and that the prosecution failed to examine the said person as witness in this case. It is further contended that the deceased with burn injuries was admitted in Eluru Hospital around 7.00 P.M and he was with life in that hospital up to 6.30 or 7.00 A.M on the next day and in spite of it neither the hospital authorities nor the police authorities took any steps for requisitioning services of a Magistrate for recording dying declaration of the deceased in that hospital and that therefore, no reliance can be placed on Ex.P-4 ﬁrst information report recorded by P.W-12/head constable from the deceased in that hospital as dying declaration muchless on other oral dying declarations said to have been made by the deceased to his father P.W-3, his brother P.W-4 and his brothers-in-law P.Ws 5, 6 and 8. It is further contended for the appellant that as per Ex.P-4 hospital intimation sent by the doctor D.W-1, it was alleged that the deceased poured kerosene and set ﬁre to himself and that therefore, it is a case of suicide and not homicide. 3) In Ex.P-4 statement of the deceased recorded by P.W-12 in the hospital, the deceased stated that the accused has a daughter by name Durga and she oﬀered him frequently to come to her but he refused and that on that day at about 4.00 P.M she again oﬀered him and they both went inside the shed and in the meanwhile the accused came and saw him and put him in a room and poured kerosene and set ﬁre to him and at that time, the said Durga was also present there. When according to the deceased, daughter of the accused by name Durga was present at the scene of oﬀence and at the time of oﬀence, failure to examine the said daughter of the accused is fatal to the prosecution case. Apart from the accused and the deceased, daughter of the accused alone was present as eye witness to the occurrence. The investigating oﬃcer failed to examine the sole and available eye witness during investigation and did not produce the said eye witness before the trial Court for examination. The investigation in this case is thus hopeless. It appears that the police oﬃcer who investigated into this case did not know fundamentals of investigation; or otherwise was interested in the accused and intended to help the accused. 4) If Ex.P-4 is to be taken into consideration as dying declaration under Section 32 of the Evidence Act, then it has to be seen whether it satisﬁes all the requirements under law. P.W-12 says that the duty doctor who was present there endorsed on Ex.P-4 that the patient was conscious. The said duty doctor is not examined. The said duty doctor did not certify whether the deceased was in a ﬁt state of mind to give a statement muchless as dying declaration at that time. Nor P.W-12 before recording Ex.P-4 came to any conclusion that the deceased was in a ﬁt state of mind to give a statement. It is pointed out by the appellant’s counsel that P.W-1 in cross-examination deposed that by the time he went to the bore shed, Raju (the deceased) was not in a position to speak. In examination-in-chief he stated that he heard Raju informing Nandigam Rangarao that the accused beat him and poured kerosene on his person. He says that he does not know the reason. 5) After coming to know about the incident, P.Ws 3 and 4 who are residents of Maddulaparva village rushed to the spot. It is their evidence that when they enquired the deceased as to how he sustained the burn injuries, the deceased told them that while he and eldest daughter of the accused were in the bore shed, the accused came there, pushed away his eldest daughter and poured kerosene on his person and set ﬁre. The same version was said to have been given by the deceased to P.Ws 5, 6 and 8 when they met him in Eluru hospital. 6) In Ex.P-5 hospital intimation sent by D.W-1 who is the doctor who admitted the deceased in Eluru hospital, it was speciﬁcally noted that recording of dying declaration was necessary. It is only after receiving Ex.P-5 hospital intimation, P.W- 12 went to the hospital and recorded Ex.P-4 statement of the deceased as ﬁrst information report under Section 154 Cr.P.C. Neither the police nor the doctor has chosen to send any intimation to the local Magistrate requisitioning his/her services for recording dying declaration of the deceased in that hospital. Even though the deceased was lying in that hospital with burn injuries for about 12 hours, no formal dying declaration of the deceased was recorded by any Magistrate. This is a serious lacuna in the investigation as well as in the prosecution case, which goes into root of the matter and throws any amount of doubt on the versions contained in Ex.P-4 as well as stated by P.Ws-3 to 6 and 8. 7) The doctor who admitted the deceased in the hospital and who gave Ex.P-5 hospital intimation was examined as D.W-1 and she says that in Ex.P-5 as against the column relating to the alleged cause, it was noted that “poured kerosene on himself”. It is elicited from D.W-1 that the deceased himself stated to her at the time of admission that he poured kerosene on himself. But Ex.P-5 does not contain the information to the eﬀect that the said information relating to alleged cause was furnished by the deceased himself. Now D.W-1 wants the Court to believe that she noted the said information as it was furnished by the deceased himself. Ex.P-5 reads that it was P.W-1 who brought the deceased to the hospital with burn injuries. P.W-1 says that along with him two other persons also accompanied him to the hospital. Ex.P-5 does not read as to who out of the said 4 persons including informant and the deceased had given the said information to the doctor. Ex.P-5 is not complete by itself and so information contained therein cannot be regarded as dying declaration. 8) Because of the inﬁrmities which go to the root of the matter by non-examination of the sole eye witness to the occurrence during investigation and taking no steps for recording dying declaration of the deceased by Magistrate, it is unsafe to place reliance on oral dying declarations said to have been given by the deceased to his family members and relations and also to P.W-12 who recorded the same without coming to the conclusion whether the deceased was in a ﬁt state of mind to make the said statement. Hence, I do not agree with the reasoning and the conclusion arrived at by the lower Court. I ﬁnd that the accused is not guilty of any offence in this case. 9) Accordingly, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J December 09, 2011 ksh