IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1720 OF 2007 Between: G.Kishore … Appellant And State of A.P., rep. by Public Prosecutor, Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1720 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused, who was put on trial for the offence punishable under Section 302 IPC in Sessions Case No.163 of 2005 on the file of Sessions Court, Krishna at Machilipatnam was found guilty and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default to suffer three months simple imprisonment by judgment, dated 02.04.2007, preferred this appeal challenging the conviction and sentence recorded against him. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- One Gunje Venkata Narasamma (hereinafter referred to as, “the deceased”) is the wife of the accused. About three years prior to the incident, the deceased was given in marriage with the accused. The deceased have no issues. After the marriage, the accused started harassing the deceased by scolding, beating and by blaming her conduct and character. About one month back prior to 23.10.2003, the accused beat the deceased unnecessarily without looking after her welfare. Thereby the deceased left him and went to her parents house at Balingunta and there she stayed for a period of one week. Thereafter P.W.6 the mother of the deceased took her and dropped her at the house of the accused. On 21.10.2003, the accused went away from the house without informing the deceased. On 23.10.2003 at about 09:30 PM the accused returned back to the house and picked up quarrel with the deceased. The accused abused the deceased and threatened her to die, for which he will not bother. The accused with an intention to kill the deceased poured kerosene on the body of the deceased and set fire with a burning matchstick. The deceased came out of the house with burns by raising cries and on hearing cries P.Ws.1 to 4 and two others came near the deceased and witnessed the accused escaping from there. P.Ws.1 and 2 immediately brought the deceased to the Community Health Centre, Tiruvuru and admitted her for treatment. The deceased was shifted to Government Hospital, Vijayawada for expert treatment. While undergoing treatment, the deceased died on 24.10.2003 at 05:20 PM. On receipt of hospital intimation, P.W.13 the Assistant Sub- Inspector of Police, Tiruvuru visited the hospital and recorded the statement of the deceased between 11:30 PM to 12:00 mid night on 23.10.2003. P.W.15 the Sub-Inspector of Police registered the said statement of the deceased as a case in Crime No.148 of 2003 for the offence under Section 307 IPC and took up investigation. During the course of investigation, he proceeded to the Government Hospital; recorded the statement of the deceased; visited the scene of offence; prepared rough sketch of the scene of offence; got photographed the scene of offence; seized the material objects; examined the witnesses; sent a requisition to the Mandal Revenue Officer for recording the dying declaration of the deceased and after recording the dying declaration, the deceased was shifted to Vijayawada hospital. On receipt of the death intimation from the Government hospital, Vijayawada, he altered the section of law from Section 307 IPC to Section 302 IPC. Thereafter, P.W.16 the Inspector of Police took up further investigation. During the course of investigation, P.W.16 arrested the accused; conducted inquest on the dead body of the deceased; examined some of the witnesses and after completion of investigation and receiving all the reports he filed the charge sheet. 3. On committal, the learned Sessions Judge, framed charge under Section 302 IPC and when the same was read over to the accused in Telugu, he denied the same and claimed to be tried. 4. In support of its case, the prosecution got examined P.Ws.1 to 17 and got marked Ex.P1 to P26 and M.Os.1 to 10. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. No oral or documentary evidence was produced on behalf of the accused. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charge framed against him and sentenced him to imprisonment as aforementioned. 6. Smt.A.Gayatri Reddy, learned counsel for the appellant strenuously contends that the deceased gave three inconsistent statements, i.e., oral declaration before the Doctor, statement recorded by P.W.13 under Ex.P21 and the dying declaration recorded by the Mandal Revenue Officer P.W.17 under Ex.P26. Since the dying declaration has not been corroborated with the other evidence, it is unsafe to convict the accused basing upon the said three contradicting statements. Further, P.W.15 investigating officer recorded the statement of the deceased at the hospital, but the said statement has not been produced by him before the court. For non-production of the said statement, it can be presumed that it has been suppressed by the prosecution as it is not favourable to the case of the prosecution and, hence, the accused is entitled for acquittal. 7. Learned Public Prosecutor sustained the conviction and sentence recorded by the learned Sessions Judge stating that the statement recorded by P.W.13 in the hospital is consistent with the accused pouring kerosene and litting fire to the deceased. Therefore, the conviction and sentence recorded by the Court below, needs no interference. 8. The point that arises for consideration is: - “Whether the prosecution proved the guilt of the accused for the offence under Section 302 IPC beyond reasonable doubt?” P O I N T : - 9. P.W.1, who took the deceased along with P.W.2 to the hospital, has not supported the case of the prosecution and they were declared hostile. Similarly, P.Ws.3 and 4, who are said to be the witnesses to speak about the incident while the deceased was coming out from the house with burn injuries, did not support the case of the prosecution and they were turned hostile. 10. P.W.5, who is the father of the deceased, deposed that after knowing about the incident, himself and his wife rushed to the Government hospital, Tiruvuru and there P.Ws.1 and 2 informed them about the incident and that they noticed the deceased with burn injuries. He further deposed that at Tiruvuru hospital, his daughter informed him that the accused raised a dispute and poured kerosene and lit fire. Similarly, the mother of the deceased, who was examined as P.W.6, also deposed on the same lines as that of P.W.5. 11. P.W.8, one of the inquestdars, deposed about conducting of inquest on the dead body of the deceased and drafting of inquest report under Ex.P17. In the cross-examination he admitted that P.Ws.5 and 6, father and mother of the deceased, stated before him that they enquired the deceased and that the deceased informed them the cause of incident and that accused poured kerosene on her and lit fire. P.W.9, who is one of the panchayatdars, deposed about observation of scene of offence and seizure of material objects at the scene of offence. P.W.10, the Mandal Revenue Officer, deposed about conducting of inquest over the dead body of the deceased. 12. P.W.11-the Doctor, who examined the deceased, deposed about issuing of Ex.P18 certificate opining that 70-75% of skin surface of the body was involved in burns caused due to lighted kerosene. He further deposed that he gave intimation to the police under Ex.P19. He endorsed on the statement of the injured that the patient is conscious and coherent while recording the statement. On 24.10.2003 at 12:30 AM the Mandal Revenue Officer recorded the statement of the injured and he endorsed on the same. In the cross- examination he deposed that according to the statement of the injured, the alleged incident has taken place at 10:00 PM and he commenced the treatment at 11:00 PM. P.W.12, another doctor, deposed about conducting of post mortem examination on the body of the deceased and issuing of Ex.P20 post mortem certificate. 13. P.W.13, the Assistant Sub-Inspector of Police deposed that on receipt of the hospital intimation under Ex.P19, he rushed to the hospital and recorded the statement of the deceased under Ex.P21. He further deposed that the medical officer certified about the condition of the patient and he returned back to the police station and handed over the statements to the police. P.W.15, who took over the investigation from P.W.13, stated that he proceeded to the Government hospital and recorded the statement of the deceased. After recording the statement of the deceased he filed requisition before the Mandal Revenue Officer to record the dying declaration and after recording the dying declaration he shifted the injured to the Vijayawada hospital. In the cross- examination he deposed that the deceased did not state before him that her parents came to her and that she narrated the incident to her parents. 14. P.W.16, the Inspector of Police, deposed about alteration of section of law from Section 307 to 302 IPC; examination of witnesses; arrest of the accused. In the cross-examination he admitted that the deceased stated before the Medical Officer that she herself poured kerosene for small part and the remaining was poured by her husband and that according to the record, the deceased gave three inconsistent statements. 15. P.W.17, the Mandal Revenue Officer, who recorded the dying declaration of the deceased under Ex.P26 in the cross- examination stated that before recording the statement, he did not put any questions to the declarant to know her mental status nor there is an endorsement on Ex.P26 that the contents of the declaration was read over and explained to the deceased. The deceased also stated that her husband covered blanket to prevent fire and later shifted to the hospital. 16. Under Ex.P21 statement recorded by the Assistant Sub- Inspector of Police, the deceased stated that her husband is not leading family life with her properly. On Tuesday i.e., on 21.10.2003 the accused without informing her went to his duty as lorry cleaner and returned back on 23.10.2003 at about 09:30 PM. After coming from duty, he abused her stating that with whom paramour, she shared bed and that it is better to kill her and so saying with a view to kill her, he took the plastic water bottle containing kerosene and poured on her and lit fire with match stick. P.Ws.1 and 2 took her to the hospital. The said statement of the deceased was recorded between 23:30 hours to 24:00 hours, whereas under Ex.P26 dying declaration recorded by the Mandal Revenue Officer, at 12:30 PM, she stated that after returning from lorry cleaner duty, on 22.10.2003 at about 10:00 PM her husband unnecessarily abused her and directed her to commit suicide in any way, otherwise he is suffering a lot. Hence, she took water bottle which contained kerosene and poured on her body. She poured the kerosene with a view to threaten the accused. At that time, her husband lit a match stick and thrown the same on her body. On that, polyster langa, half saree and jacket were burnt and she also received burn injuries on her hands, chest, below neck and upto waist. Then she raised cries and thereby the neighbours came there. She came out of the house as she was unable to bear the burns. Then her husband covered her with blanket and put off the flames. Her husband and her co-sister Prameela and her sister-in-law took her to Tiruvuru Government hospital at about 11:00 PM for treatment. She poured kerosene, but her husband lit fire. 18. On a plain reading of the above dying declaration, it is clear that there is inconsistency with the earlier statement made by the deceased to P.W.13 under Ex.P21. P.W.16, the investigating officer, also admitted in the cross-examination about the inconsistencies in the oral declaration made by the deceased before the Doctor; in the statement recorded by P.W.13 under Ex.P21; and in the dying declaration recorded by the Mandal Revenue Officer under Ex.P26. P.W.15 stated in his evidence that immediately after registering the crime, he went to the hospital and recorded the statement of the deceased. But he has not been produced the said statement before the court for the reasons best known to him and the accused has been denied an opportunity to cross-examine P.W.15 on the statement so recorded by P.W.15. As rightly contended by the learned counsel for the petitioner that for non production of the statement recorded by the prosecution case, a presumption can be drawn that it is not favourable to the case of the prosecution and it amounts to suppression of the material facts. Even otherwise the dying declarations as recorded above are not consistent with the role played by the accused and the deceased sated that she herself poured kerosene on her body to threaten the accused. In view of the same, it is unsafe to convict the accused only relying on the dying declaration recorded by the Mandal Revenue Officer P.W.17 under Ex.P26, which is not consistent with the earlier statement given by the deceased before P.W.13. The prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt. Therefore, the conviction and sentence recorded by the trial court against the accused is set aside and the accused is entitled for acquittal. 19. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the learned Sessions Judge, Krishna, Machilipatnam, in Sessions Case No.163 of 2005 on 02.04.2007 for the offence punishable under Section 302 of IPC is hereby set aside the appellant is acquitted for the said offence. Appellant be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. _____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J July 21, 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1720 OF 2007 21.07.2011 lmv