THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1758 of 2009 Date: 09.12.2009 Between : The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. … Appellant And Rayapati Srinivaa Rao @ Sreenu, S/o. Prasadarao, 31 years, Kamma, R/o. Sangamjagarlamudi village, Guntur District and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1758 of 2009 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor, appearing for the appellant- State as well as the learned counsel appearing for respondents- Accused Nos.1 to 3. 2. Appellant is the State and respondents are Accused Nos.1 to 3 in the Sessions Case. 3. This Criminal Appeal, by the State, under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) is directed against the judgment, dated 18.04.2008, in Sessions Case No.433 of 2005, passed by the Sessions Judge, Guntur, acquitting Accused Nos.1 to 3 for the offences punishable under Sections 498-A and 302 read with 34 of Indian Penal Code (for brevity “I.P.C.”). 4. The case of the prosecution, in brief, is that Accused No.3 is the mother of Accused Nos.1 and 2, who are brothers. Accused No.1, who is the husband of the deceased-R.Krishna Kumari, used to harass the deceased for money along with Accused Nos.2 and 3, and eventually on the fateful day i.e., on 23.3.2005 when the deceased requested Accused No.1 to give some money for house hold expenses, Accused No.1 picked up a quarrel with her, beat her, poured kerosene on her and set her on fire. Accused Nos.2 and 3, who were there in that room, closed the doors of the room and instigated him to attack her. On hearing the cries of the deceased, the neighbours rushed to her house, extinguished the flames and admitted the deceased in a private hospital at Tenali. Subsequently, the deceased was shifted to Government Hospital, Tenali, for treatment. On the intimation sent by P.W.9 – duty doctor, P.W.10 – the I Additional Junior Civil Judge, Tenali, visited the Hospital and recorded Ex.P.8 – dying declaration of the deceased in the presence of P.W.9. On receipt of the hospital intimation, P.W.11, the A.S.I. of Police, Tenali Rural Police Station, visited the hospital, obtained the copy of Ex.P.8 dying declaration recorded by the learned Magistrate, and registered a case in Crime No.39 of 2005 against the accused for the offences punishable under Sections 498-A, 307 read with 34 I.P.C. and further investigation was taken up by P.W.12, S.I. of Police, Tenali. Subsequently, while undergoing treatment, the deceased succumbed to injuries and on receipt of the death intimation, P.W.12 took up further investigation. After completion of investigation and necessary formalities, the police laid the charge sheet against the accused for the offences punishable under Sections 498-A I.P.C. against all the accused, charge under Section 302 I.P.C. against Accused No.1, another charge under Section 302 read with 34 I.P.C. against Accused Nos.2 and 3. 5. When the charges framed were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P- 14, besides the material objects MOs.1 to 5. On behalf of the accused, D.W.1 was examined and Exs.D-1 to D-3, which are the marked portions of Section 161 Cr.P.C. statement of P.Ws.1 and 2, Ex.D-4 Accident register, and Ex.X-1 entry in the book belonging to Devi Nursing Home with regard to the deceased, were marked. 7. The Court below, having considered the entire material including the evidence, both oral and documentary, available on record, found all the accused not guilty of the offences with which they were charged and accordingly acquitted them of the said charges. Aggrieved by the same, the State has preferred the present criminal appeal. 8. Now, the point that arises for consideration, in this criminal appeal is whether the Court below has rightly appreciated the evidence on record before arriving at the conclusion that the accused are not guilty of the offences with which they were charged? 9. On the intimation sent by the hospital, P.W.10 – the learned Magistrate visited the Hospital and recorded Ex.P.8 – dying declaration of the deceased wherein the deceased stated that she was burnt by the accused demanding for more money. But, it is to be seen that the evidence of P.W.5, who is a retired Deputy Civil surgeon and who was working in Devi Nursing Home at the relevant point of time, would go to show that when he questioned as to how she received the burns, soon after the admission of the deceased into hospital, the deceased stated that she caught fire accidentally. P.W.5 obtained the signatures of accused Nos.1 and 3 and also thumb impression of the deceased in Ex.X-1 which is maintained in regular course of business in the hospital and which extricates the accused from the liability of the offence under Section 302 I.P.C. 10. Therefore, obviously, there is a contradiction on the material aspects between Ex.P-8 dying declaration recorded by P.W.10 Magistrate and the evidence of P.W.5 coupled with the Ex.X- 1 entry in the hospital register, which is very vital. Basing on the evidence of P.Ws.1 and 2 and also the other witnesses, the Court below found that there is no corroboration to the version disclosed by the deceased in Ex.P.8 dying declaration. Therefore, the Court below observed that the possibility of the deceased setting herself ablaze to commit suicide or to threaten the family members of the accused cannot be ruled out. 11. It was also the case of the prosecution that the accused used to harass the deceased for more money. In this regard, P.Ws.1 and 2, who are parents of the deceased, gave different versions about the alleged harassment meted out by the deceased in the hands of the accused regarding demanding of money. Further, P.Ws.1 and 2 have no capacity to give additional dowry and even the accused knew the said fact. Therefore, the Court below disbelieved the case of the prosecution against the accused so far as the offence punishable under Section 498-A is concerned. 12. Consequently, having regard to the proximity between the two offences i.e., Sections 498-A and 302 I.P.C., and both offences being inter-twined with each other, the Court below did not find favour with the evidence adduced on behalf of the prosecution and arrived at the conclusion that the accused are entitled for the benefit of doubt. 13. Therefore, the reasons assigned by the Court below, while arriving at the conclusion that the prosecution failed to establish the guilt of the accused beyond reasonable doubt, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. 14. For the foregoing, the criminal appeal fails and is liable to be dismissed as having no merits. 15. In the result, the criminal appeal is dismissed, at the stage of admission, confirming the judgment, dated 18.04.2008, in Sessions Case No.433 of 2005, passed by the Court below. _________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE R. KANTHA RAO 09.12.2009 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1758 of 2009 09.12.2009 (Msr)