APHC010659822018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3566] THURSDAY,THE NINTH DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2563/2018 Between: 1. GOGULA VENKATESH, OCC - COOLIE, R/O OPP NAGUR PETROL BUNK, KADIRI ROAD, MUDIGUBBA VILLAGE AND MANDAL, ANANTAPURAM DISTRICT. ...APELLANT AND 1. THE STATE OF ANDHRA PRADESH, Rep., by Public Prosecutor, High Court at Hyderabad. ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to The present Appeal is being filed aggrieved by the Judgment dt 01.03.2017 made in Sessions Case No.340 of 2015 on the file of III Addl. Sessions Judge (F.T.C), Anantapuram, the present of Appeal filed for the following among other. IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to condone the delay of 489 days in filing the Crl.A. of 2018 and to pass 2 IA NO: 2 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to release the Appellant / Petitioner on bail by suspending the execution of sentence passed in Sessions Case No.340 of 2015 dated 01.03.2017 by the III Addl. Sessions Judge (F.T.C) Anantapuramu, pending disposal of the main Criminal Appeal and pass IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the execution of sentence in S.C.No. 340 of 2015 on the file of the III Additional Sessions Judge, Anantapuram Dated: 01-03-2017 and release the Petitioner/Accused on bail in Crl.A.No. 2563 of 2018, which is pending before this Hon’ble Court Counsel for the Appellant: 1. A GAYATRI REDDY Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI THURSDAY,THE NINTH DAY OF APRIL TWO THOUSAND AND TWENTY SIX SPECIAL DIVISION BENCH PRESENT HONOURABLE SRI JUSTICE K.SURESH REDDY And THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2563 of 2018 JUDGMENT: (per Hon’ble Sri Justice A. Hari Haranadha Sharma) Introductory:- [i] Sole accused in Sessions Case No.340 of 2015 on the file of the III Additional Sessions Judge, (Fast Track Court), Anantapuramu, (for short referred as ‘the Sessions Court’) is the appellant. [ii] He was tried by the learned III Additional Sessions Judge (FTC), Anantapuram for the charges under Sections 498-A IPC and 302 IPC. 2. State represented by the Inspector of Police, Nallamada Circle filed Charge Sheet against the appellant/accused, alleging commission of offences under Sections 498-A on the ground of subjecting his wife to 4 physical and mental cruelty, and under Section 302 IPC for causing death of his wife by pouring kerosene and setting fire. 3. The Sessions Court found the appellant/accused guilty for the offence under Section 302-IPC and sentenced him to suffer imprisonment for life and to pay fine of Rs.10,000/-; in default to pay fine amount to suffer simple imprisonment for a period of one year and acquitted him for the charge under Section 498-A IPC under the judgment dated 01.03.2017. Questioning the propriety and sustainability of the conviction and sentence, the present appeal is filed. Case of the prosecution:- 4. [i] PW1-D.Lakshmi Devi, PW.6-D.Shankar are the parents of one G.Nagendramma (herein after referred to 'as the deceased'). The accused is the husband of the deceased. [ii] During their wedlock, the accused and the deceased were blessed with a son by name Mohan. Accused addicted to alcohol etc., and used to harass the deceased physically and mentally, on that count the deceased came to her parental home along with her son. But four days prior to the incident, accused asked the deceased to come to home stating that if she does not come, he will commit suicide. Then, PW.1 and PW.6 taken the deceased to the house of the accused and left her there, asking the accused to take care of her. 5 [iii] On 07.05.2014 at about 10.00p.m., the accused consumed alcohol and beat the deceased indiscriminately, when she tried to come out of the house of the accused, he caught hold of the deceased, poured kerosene on her body and set ablaze. On hearing cries, PW.2 and others came there, then the accused poured water on the deceased and put off the flames. Son of the deceased was also stained with kerosene but he has escaped from the house. [iv] The deceased was shifted to Government Area Hospital, Kadiri in 108 ambulance van as the condition was critical. PW.9-Doctor, sent medical intimation to the local Magistrate, immediately. [v] PW.11- The Judicial First Class Magistrate came to the Hospital, recorded the statement of the victim/injured, marked as Ex.P15 and obtained Ex.P8 and P9-Certificates from the Doctor as to the mental condition of the patient. [vi] On receipt of medico legal information, on 07.05.2014 mid night PW.12 recorded the statement of injured/deceased vide Ex.P11. He has obtained the endorsement of Doctor as to coherent condition of the victim injured. Ex.P16 is the endorsement of the duty doctor. [vii] On the strength of Ex.P11-statement of the victim, PW.10 registered FIR in Crime No.125 of 2014 for the offences under Sections 498-A, 307 IPC vide Ex.P12, and he came to know that the victim /injured 6 was shifted to Ruya Hospital, Tirupati. He went there and recorded her statement under Ex.P13. Thereafter, PW.10 has visited the scene of offence, prepared rough sketch of scene of offence under Ex.P14. [viii] The deceased died on 12.5.2014 while she was bringing back to the village, when the Doctors declared that her survival is difficult. The corpse was brought to the Government Hospital, Kadiri. The matter was informed to Police. PW.1 submitted Ex.P1- report. On the strength of the same, the section of law was altered to Section 498-A, 302 IPC by PW13 and the altered FIR is Ex.P17. [ix] Further investigation is done by PW14. He has secured the inquest Panchayatdars – PW3, PW4, PW5 and held inquest over the dead body of the deceased at Government General Hospital, Kadiri and sent a requisition for Post-Mortem Examination. Inquest Report is Ex.P18. [x] PW.8, Dr.K.N. Vijaya Lakshmi, Civil Assistant Surgeon, conducted autopsy over the dead body of the deceased and issued Ex.P6- Post-Mortem Examination report opining that the cause of death is due to septicemic shock due to extensive infected burns. [xi] PW.14 filed Charge Sheet alleging commission of the offences punishable under Sections 498-A and 302 IPC. 7 5. Accused was tried for the charges under Sections 498-A and 302 IPC on denial. 6. In support of its case, prosecution examined PWs.1 to 14 and got marked Ex.P1 to P18 and M.O.1/Kerosene can. 7. The accused was examined under Section 313 Cr.P.C., he has denied the incriminating evidence appearing against him. 8. Learned Sessions Judge convicted the appellant/ accused for the offence 302 IPC relying on the evidence of PW.12- Assistant Sub-Inspector of Police, and PW11- Judicial Magistrate, who recorded the Dying Declaration of the deceased vide Exs.P12 and P15 respectively, observing that the accused poured kerosene and set the deceased ablaze, and the evidence of Doctor – PW.9 shows that he was present during recording of the statements by PW.11 and PW.12 and that the dying declarations marked under Ex.P15 and Ex.P11 recorded by PW.11 and PW.12 have corroboration from the evidence of PW.1 and PW.6. 9. Further, the learned Session Judge observed that, as there is confirmation of the Doctor as to mental and coherent condition of the deceased, conviction will sustain even without corroboration, by referring to the precedents vide Nese Sulthan narayana Swamy Vs. State of Andhra 8 Pradesh1, and M.Venkata Ramana Vs.State of Andhra Pradesh2. However, found that the prosecution failed to prove the offence under Section 498-A IPC as the statement of victim did not reveal about the demand for money by the accused. 10. Heard Smt. A.Gayathri Reddy, learned counsel for the appellant and learned Sri Marri Venkata Ramana, Additional Public Prosecutor appearing for the respondent-State. Arguments in the appeal:- For the appellant :- 11. [i] There is no consistency between the two Dying Declarations as to who set fire and there is a clear contradiction as to whether the accused set fire or the deceased set fire to herself. [ii] There is ample evidence indicating that the accused tried to save the deceased, putting off the fire, taking to hospital etc., which indicates the innocence of the accused. [iii] There was no motive for the accused to eliminate the deceased. When the alleged demand for money is not believed, and when there is acquittal of charge under Section 498A IPC, the motive for the accused to kill the deceased cannot be believed. 1 2004 (1) ALT (Crl.) 466 (D.b.) (A.p.) 2 ALT (Crl.) 444/(204) 2 ALD (cri) 185 9 [iv] When there is no consistency between two dying declarations, both shall be discarded. For the prosecution:-. 12. [i] The deceased and the accused were living together, and the incident has occurred at the house of the accused. The presence of the accused is not denied. Then, the burden lies on the accused to explain as to what has happened and in the absence of any satisfactory explanation from the accused, the prosecution case shall be accepted. [ii] Though there are two dying declarations, there are common factors that can be believed i.e., the presence of the accused at the time of the incident, and the act of accused pouring kerosene on the deceased. All these would indicate the intention of the accused to commit the offence. [iii] The reasoning given by the learned Sessions Judge is acceptable in the facts and circumstances of the case and that there are no grounds to interfere. 13. Perused the material on record. 14. Thoughtful consideration is given to the arguments advanced by both sides. 15. Points that arise for determination in this appeal are - 10 1) Whether the prosecution is able to bring home the guilt of the appellant/ accused for the offence under Section 302 IPC, under which he is charged? And whether the conviction and sentence imposed by the learned Sessions Judge under the impugned judgment dated 01.03.2017 passed in S.C.No.340 of 2015 is sustainable in law and on facts? Or require any interference? 2) What is the result of the appeal? Point No.1:- 16. Relationship between the deceased and the accused and they living together are not in dispute. Their marriage was performed about 8 years prior to the incident. Admittedly, Accused was not related to the family of the deceased prior to the marriage. The evidence of PW1 is that, the accused poured kerosene on the deceased and his son, and when deceased tried to escape, he caught hold of tuft of the deceased and dragged her inside the house, lit the matchbox and set her ablaze. But all this is hearsay. She is not an eyewitness to the accident. She was informed about the incident by neighbours. Who is that neighbor is not stated by her. When she went to the hospital, her daughter was not in a speaking condition. PW.1 and her husband- PW.6, brought the deceased to their house, expecting change in the conduct of the accused, but when the accused asked the deceased to join with him, stating that he will 11 commit suicide if the deceased do not join him, the deceased was dropped in matrimonial home. 17. PW1 and PW6 are not eyewitnesses. They were informed by the neighbour about the incident and who is that neighbor is not stated by them. It is clearly admitted by PW.1 that by the time PW.1 and PW.6 reached the hospital, accused was there and he has taken them to the deceased; throughout the night, the accused was also there with them and accompanied them to the hospital at Tirupati, and that he was present with them when the deceased was brought back from Tirupati hospital. 18. Evidence of PW6 is in the same lines of PW1, with an addition that the accused contacted the deceased and asked her to come back, assuring that she will be treated well, when she was in the house of her parents. Admittedly no dowry was given at the time of marriage. The evidence of PW1 and PW6 is, to some extent, natural with regard to the non-payment of dowry and the presence of accused at the hospital during the treatment. 19. PW1 stated that they did not inform the Police about the earlier disputes, etc. It is admitted by PW.6 that the accused himself took the deceased to hospital. It is also stated that the accused sold his auto and brought the amount to the hospital for the treatment of the deceased. PW6 12 further stated that, after death of his daughter, they have taken back whatever articles given and the son of the deceased with them. 20. PW.2, owner of the house where the deceased and accused were residing, deposed that when he was in shop, received information that the accused and deceased were quarrelling and went to the spot, observed the deceased with burns. He stated that he does not know about the affairs of the family of the deceased and the accused. The incident taken place at about 9.00 or 9.30 p.m. He further stated that he has informed the incident to the parents of the deceased. 21. Evidence of PW.1, PW.2 and PW.6 is helpful to note that the deceased and accused were living together, an incident of fire has occurred, and that the deceased was shifted to hospital by the accused. What has happened between the deceased and accused shall be known to them alone. There are two dying declarations of the deceased. Earliest version is recorded by the Judicial First Class Magistrate- PW 11 vide Ex.P15. Exs.P8 and P9 are the Certificates of the Doctor as to the mental condition of the patient /deceased at the time of recording statement. As per Ex.P15, the accused poured kerosene on the deceased and the deceased burnt herself; Kerosene was also poured on the son of the deceased; for the past one month prior to that, accused was consuming alcohol and there were quarrels. Accused himself has poured the water 13 and put off the flames. A clear reading of the Dying Declaration, Ex.P15 reveals that Kerosene was poured by the husband/accused, and the deceased set fire to herself, and the accused himself put off the fire. 22. Another dying declaration is Ex.P11, was recorded by PW12 -Police personal. His evidence is that on 8.5.2014, when he was at home, he has received information that burn injuries were caused by the husband of the victim and he went to hospital, recorded Ex.P11 -statement of the deceased and obtained endorsement Ex.P16 as to the coherent condition of the patient. He has admitted that by the time he went to the Hospital, Magistrate was recording statement of the victim. After completing recording of the statement by Magistrate, he has recorded the statement of the victim. Therefore, the earliest version of the victim is the statement, recorded by the Magistrate vide Ex.P15. As per Ex.P11 there was quarrel and accused poured kerosene on the victim / injured /deceased and set fire; when she raised cries, neighbors came, then accused poured water and shifted her to hospital. The version in the statement recorded by the Magistrate is different as to role of accused. 23. The statement recorded by the Magistrate -PW11 at about 11.55p.m. Ex.P13 is another statement of the deceased recorded by PW10- the Assistant Sub-Inspector of Police. On the strength of Ex.P13, Ex.P12 –FIR was registered under Sections 498-A, 307 IPC. As per Ex.P13, the 14 accused poured kerosene and set fire. Ex.P13 and Ex.P.11 are in conformity with each other, whereas Ex.P15 -statement is contradictory as to the Exs.P11 and P13 with regard to the accused setting fire. Ex.P15 leads to a clear understanding that the deceased set fire to herself, whereas the Exs.P11 and P13 shows that the accused set fire to the deceased. 24. PW.3, PW.4, PW.5 are the Panch witnesses for the inquest and that the Panchayatdars during inquest opined that the accused poured kerosene on the deceased set fire and taken her to hospital. However, they did not support the prosecution version as to their knowledge about the contents in the inquest report and stated that for the purpose of Postmortem Examination, they were asked to sign and put their signatures vide Exs.P2, P3, P4 and Inquest report was marked under Ex.P18. 25. PW7-P. Ramanappa is an eyewitness to the observation of the scene of offence and recovery of the kerosene tin from the scene of offence, covered by Observation Mahazarnama vide Ex.P5. During the chief-examination, PW.7 stated that - “I know Lw.11/D.Nabi Rasool. At about 11.00 a.m. on 10.05 at about one year ago we went to petrol bunk at Mudigubba where one women by name Nagendramma died by setting herself ablaze with kerosene.” 15 26. The statement of the deceased made to Magistrate, and the statement of PW.7, clearly suggests that the deceased set ablaze to herself. There were disputes and strained relationship between the deceased and accused. 27. The learned Sessions Judge did not accept the allegation of harassment for the purpose of Section 498A IPC and acquitted the accused of the charge under Section 498A IPC, considering the absence of any demand for money, etc., in the statement of the deceased. 28. With regard to the allegation that the accused set fire to the deceased, attracting the commission of culpable homicide amounting to murder, the earliest statement viz., the dying declaration recorded by the Magistrate vide Ex.P15-runs counter. 29. The next aspect is whether the accused is responsible for the deceased setting herself on fire. If so, the question arises as to the offence for which the accused is accountable or punishable; however, this is not the case of the prosecution. 30. At no stage has it been alleged that the accused has abetted the commission of suicide. Even the charges framed are only under Section 498A and 302 IPC. Charge under Section 306 is not framed, either in the alternative or otherwise, by the learned Sessions Judge. The offence 16 under Section 302 IPC and the offence under section 306 are entirely different. 31. The accused was not put to face the trial for the charge under section 306 IPC. Therefore, in the absence of a charge under Section 306 IPC, holding the accused accountable under the said penal provision does not arise. For a charge under Section 302 IPC, there must be an intentional act on the part of the accused causing death of the deceased, attracting the ingredients of Section 300 IPC. 32. Where multiple dying declarations exist with material inconsistencies, the declaration recorded by the higher-ranking officer, such as a Magistrate, is generally regarded as more reliable. The other available evidence must be examined to corroborate the contents of the dying declarations and assess their credibility. 33. The homicidal nature of the death is a serious dispute and the dying declaration recorded by the Magistrate is not supporting the same. The conduct of the accused subsequent to the incident as to - putting off the fire, shifting the deceased to hospital, staying at the hospital throughout the night at Kadiri and thereafter shifting the injured/deceased to Ruya Hospital, Tirupati and remaining there till hospital people expressing no hope and getting her back to village etc., must be considered in assessing the conduct and intention of the accused. This conduct of the accused, 17 when viewed in the light of the dying declaration recorded by the Magistrate under Ex.P15- which reveals that she set fire to herself and that the accused put off the fire and shifted her to the hospital, the accused causing homicide cannot be believed. 34. The statement of PW7 that “he went to the scene of offence, where the deceased set fire to herself, when the observation of the scene of offence is prepared”, also plays some significance in the context of the case to corroborate declaration made by the deceased that she set fire to herself. 35. To attract punishment in terms of any other provision of law such as Section 306 IPC for abetment of suicide etc., no charge has been framed, nor the accused is put to knowledge of allegations, attracting said provision. Therefore, there exists reasonable doubt as to whether the accused has committed murder of the deceased, particularly when the homicidal nature of the death itself is not established. The available circumstances are, accused and deceased living together, quarrel between them and suicidal death of the deceased. 36. In this connection, it is relevant to note that the Hon’ble Apex Court in a catena of judgments including the decision in Sharad Birdhichand 18 Sarda v. State of Maharashtra3, has laid down five (5) golden principles, which govern a case based only on circumstantial evidence: “(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be followed, AND (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 37. In the facts and circumstances and in light of the of the foregoing discussion, we find that the prosecution failed to prove the guilt of the accused/ appellant for the offence under Section 302 IPC, beyond reasonable doubt. Therefore, he is entitled to the benefit of doubt. Point No.1 framed is answered accordingly. 3 (1981) 4 SCC 116 19 Point No.2:- 38. In the result, the Criminal Appeal is allowed and the conviction and sentence recorded by the learned Sessions Judge, Ananthapuramu in SC No.340 of 2015 under the impugned judgment dated 01.03.2017 under Section 302 IPC is hereby set aside. The fine amount, if paid by the accused shall be refunded. As the appellant/accused was released on bail vide order dated 23.09.2024, in terms of the order of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu Ranga Rao Vs. State of Andhra Pradesh4, he is directed to appear before the concerned Superintendent of Jail authorities and complete the formalities in terms of Batchu Ranga Rao’s case. The bail bonds and the sureties, if any, shall stand cancelled. Miscellaneous petitions, if any, pending in the Criminal Appeal, shall stand closed. ________________________ JUSTICE K.SURESH REDDY __________________________________ JUSTICE A.HARI HARANADHA SARMA Date: 09.04.2026 Pnr 4 2016(3) ALT (crl.) 505 (DB) (A.P.) 20 HONOURABLE SRI JUSTICE K.SURESH REDDY And THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA (per Hon’ble Sri Justice A. Hari Haranadha Sharma) CRIMINAL APPEAL NO: 2563 of 2018 Date: 09.04.2026 Pnr