THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.1480 of 2007 & 430 of 2006 COMMON JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) Since both the Criminal Appeals arise out of the very same judgment, they are heard together and being disposed of by this common judgment. 2 . By the impugned judgement dated 17.03.2006 passed in S.C.No.276 of 2005, the learned V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, while acquitting the accused for the offence under Section 302 I.P.C., found the accused guilty of the offence under Section 304 Part II I.P.C., and accordingly convicted him and sentenced to suffer rigorous imprisonment for a period of 10 years. Challenging the conviction and sentence, the accused preferred Criminal Appeal No.430 of 2006, whereas, challenging the acquittal, the State preferred Criminal Appeal No.1480 of 2007. 3. The brief facts that are necessary for the disposal of this case are as follows: The accused married Yalamasetti Chakramma (hereinafter referred to as ‘the deceased’), who is the daughter of I.Subbayamma- PW1 about 10 years prior to the occurrence. After the marriage, the accused and the deceased lived in the village of the accused viz., Bangarumetta of Butchimpeta Mandal, Visakhapatnam District for some time. About five years prior to the occurrence, they had come to Annavaram and were living with P.W.1. Later, the accused developed illicit intimacy with one Gurramma and started harassing the deceased. On the night of 20.04.2002 at about 12 O’ clock in the mid night, when P.W.1 was asleep in the upstairs, she heard commotion, got down and found her deceased daughter with burn injuries. The deceased informed her mother that the accused poured petrol on her and lit fire to her. When the deceased raised cries, I.Suri Babu (P.W.2), P.Chandravathi (P.W.3) and Shaik Veerraju (P.W.4) rushed to the scene of offence, witnessed the incident and extinguished fire by pouring water on the deceased. The deceased suffered burns all over her body and her mother took her to D.Bheemasankaram (PW8), who is a Private Medical Practitioner in Annavaram. He treated the deceased and advised P.W.1 to take her to Government Hospital. PWs.1 and 2 took the deceased to another Private Nursing Home in Tuni, but the said hospital people also advised them to take her to the Government Hospital. Then P.W.1 brought back the deceased to her house and got her treated by P.W.8. The deceased succumbed to burn injuries on 16.05.2002 while undergoing treatment. P.W.1 gave a report (Ex.P1) about the occurrence on 17.05.2002 at 10 a.m in Annavaram Police Station and the Sub Inspector of Police (P.W.11) registered the same as F.I.R (Ex.P17) in Crime No.56 of 2002 under Section 302 IPC. The C.I of Police (P.W.12) took up investigation, visited the scene of offence accompanied by the mediators viz., K.Apparao (LW.10), A.Suryanarayanamurthy (PW.9) and M.Narasayya (LW.12), prepared observation report of the scene (Ex.P11) and seized two partly burnt curtains. He also held inquest over the dead body of the deceased and got drafted inquest report (Ex.P.12). The Civil Assistant Surgeon, Community Health Centre, Prathipadu (P.W.10) conducted autopsy over the dead body of the deceased and opined that the deceased died of septicimia due to infected antimortum burns. PW.12 arrested the accused on 20.05.2002 in early hours at his residence in Bangarumetta and sent him for judicial custody. After completion of investigation and receipt of relevant reports, he filed charge sheet. 4. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.15. No oral or documentary evidence was adduced on behalf of the accused. 5. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 6 . On the basis of the evidence adduced by the prosecution witnesses, the learned Sessions Judge, while acquitting the accused for the offence under Section 302 I.P.C., found the accused guilty of the offence under Section 304 Part II I.P.C and accordingly convicted and sentenced him as stated supra. 7. Heard the learned counsel for the accused as well as the learned Additional Public Prosecutor. 8. In the entire evidence, except P.Ws.1, 4 and 8, nobody supported the case of the prosecution and all the witnesses were declared hostile except the witnesses, who were witnesses to the observation and recovery of material objects. 9. P.W.1, who is the mother of the deceased deposed that she lodged Ex.P.1-complaint on 17.05.2002; that on the date of incident in the evening at about 6.00 p.m., she went to the terrace and thereafter herself and her son slept on the terrace and by that time, the deceased and the accused were in their room. She also deposed that the accused and the deceased were sleeping in the Varandah in front of their room; that while she was asleep, she heard the cries at about 12 or 12.30 in the midnight and herself and her son came downstairs, saw the deceased in flames and the people extinguishing the fire. She further stated that the accused was present at that time; that the injured was taken to a private hospital and then treated by P.W.8 and that after the lapse of 25 days her daughter succumbed to the burn injuries. 10. P.W.4, who is the neighbour of P.W.1, even though stated before the Court regarding the incident that he saw the injured with flames in the midnight and that the accused was present at that time, he did not support the case of the prosecution and was declared hostile. 11. P.W.8, who practiced as a private Medical Practitioner, deposed that he treated the deceased on admission by P.W.1. He further stated that the deceased informed him that her husband poured petrol and set fire to her. On the basis of the said evidence, the learned Sessions Judge convicted the accused as stated above. 12. The close scrutiny of the evidence of P.W.1 discloses that even though she stated that she saw the accused in the place of occurrence, she has not stated about the same in her complaint-Ex.P.1. Further, she has stated in the chief examination that she has not given any complaint after the death of the deceased and on such answer, the prosecution declared her hostile. In the cross-examination, it is the specific case of P.W.1 that she lodged a complaint on the date of incident, but there is no oral or documentary evidence to substantiate the same. Further, the said witness has not stated that such a complaint was not registered by the police and also she has not explained what happened to the complaint given by her on the date of occurrence. Even assuming that she lodged a complaint after the commission of the offence in which also she has not stated about the presence of the accused at the time of occurrence. In such circumstances, the evidence of P.W.1 cannot be relied upon. More particularly she has not stated in the complaint even prior to the occurrence the accused was present in the house. 13. P.W.4 deposed that he extinguished the fire on the deceased and the accused was present there. But in the cross examination, the police did not examine him earlier and that he was giving evidence before the Court for the first time regarding the said incident. Non- examination of P.W.4 by the Investigating Officer after receipt of the complaint and the introduction of the said witness into the witness box during the course of trial for the first time leads to draw an adverse inference that this witness has been introduced by the Investigating Officer for the purpose of implicating the accused and therefore, he cannot be termed as witness of prosecution and his evidence cannot be relied upon. 14. P.W.8-private medical practitioner stated that the deceased informed him that her husband poured petrol and set fire to her. In the cross-examination, he stated that he informed the police of Annavaram about the said incident on the date of incident itself viz., 20 days prior to the death of the deceased. But he was not in a position to explain as to what happened on the said complaint. Further, he should have not only informed the police officials but also directed the injured person to be admitted in a Government Hospital for proper treatment as he is not a qualified doctor to treat the persons with burn injuries. It is unfortunate to note that this type of doctors do not care about the life of the persons, who suffered 90% burn injuries. 15. The evidence of P.W.12-the Investigating Officer in his cross- examination was shaken when he was asked as to why in the statement given by P.W.8 the said fact of declaration regarding the injuries sustained by her was recorded with different ink that too in the last line inserted between the signature of the officer and the earlier statement. It would go to show that the Investigating Officer with an intent to implicate the accused added the said word. In view of the evidence of P.W.12 in his cross examination, much credence cannot be given to the evidence of P.W.8 in connection with the declaration of the deceased and the injuries sustained by her. 16. Though the prosecution relied upon the evidence of the above witnesses, it has miserably failed to connect the accused with the crime. In the absence of any such evidence, this Court is of the view that it is highly unsafe to convict the accused. 17. The learned Sessions Judge convicted the accused on the ground that he was absconding and that the accused failed to establish that he was not present at the time of offence and also he expected the accused to disprove the case of the prosecution. 18. It is the basic principle, in a case instituted by the prosecution, it is the prime duty of the prosecution to establish the case on its own, by adducing legally admissible evidence. The question of disproving the case by the accused does not arise, when the prosecution failed to establish its case by adducing proper evidence, except in cases where the law insists the accused to rebut presumption of guilt. In any event, the burden is not on the accused to disprove the case initiated by the prosecution. The learned Sessions Judge has totally misconstrued legal proposition as far as establishing the case by the prosecution. Therefore, we feel that the learned Sessions Judge wrongly convicted the accused in the absence of any admissible evidence. 19. For the foregoing reasons, the appeal filed by the State is dismissed and the appeal filed by the appellant is allowed. Accordingly, the conviction and sentence recorded by the V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, in S.C.No.276 of 2005 against the appellant/accused for the offence punishable under Section 304 Part II I.P.C., are set aside and he is acquitted of the said charge. He shall be set at liberty, if he is not required in any other crime. The bail bonds of the accused shall stand cancelled. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Dated 04.07.2011 va