APHC010606712017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [iWi TUESDAY,THE TWENTY FOURTH DAY OF JUNE |o TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY o AND THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1155 OF 2017 Appeal under Section 374(4) of Cr.P.C, against the Judgment of the II Additional Sessions Judge at Parvathipuram, Vizianagaram in S.C.No.82 of 2016, dated 5-8-2017. Between: Saleela Siva, S/o.Late Yerrayya R/o. Jagannadhapuram, Parvathipuram, Vizianagaram District. ...PETITIONER AND The State of Andhra Pradesh, rep., by its Public Prosecutor High Court of Judicature at Amaravathi, for the State of Andhra Pradesh. ...RESPONDENT Counsel for the Petitioner : SRI. G VIJAYA SARADHI Counsel for the Respondent: SRI MARRI VENKATA RAMANA ADDITIONAL PUBLIC PROSECUTOR The Court made the following: APHC010606712017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3528] r TUESDAY,THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1155 OF 2017 Between; SALEELA SIVA, S/0. LATE YERRAYYA R/0. JAGANNADHAPURAM, PARVATHIPURAM, VIZIANAGARAM DISTRICT. ...APELLANT AND THE STATE OF AP REP PP, rep., by its Public Prosecutor High Court of Judicature at Hyderabad, For the State of Telangana and the State of Andhra Pradesh. ...RESPODENT Counsel for the Appellant; 1.G VIJAYA SARADHI Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) 2 Crl.A.No.ll55of 2017 The Court made the following JUDGMENT (Per the Hon’ble Sri Justice K.Suresh Reddy) A1 in Sessions Case No.82 of 2016 on the file of the Court of II Additional Sessions Judge, Parvathipuram, Vizianagarm District, is the appellant herein. He along with A.2 was tried by the learned Additional Sessions Judge under the following two charges charge was under Section 498-A IPC against A.1 and 2 nd charge was under Section 302 read with 34 IPC against A.1 and A.2. 2. Substance of the charge is that prior to 29.03.2015 A.1 subjected his wife Parvathi (herein after referred to as ‘the deceased’), to cruelty by physically and mentally suspecting her fidelity and on 29.03.2015 at about 8.30 A.M., the deceased poured kerosene on herself to threaten A.1 and the latter lit match stick and set her to fire and in the same process, A.2 gagged her mouth with a cloth causing her death, thereby committed offences punishable under Sections 498- A and 302 read with 34 IPC. After completion of trial, the learned Additional Sessions Judge, 3. convicted A.1 under Section 498-A IPC and sentenced him to suffer Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for a period of three months. Learned Additional Sessions Judge also convicted A.1 under Section 302 IPC and sentenced him to suffer imprisonment for 3 Crl.A.No.ll55of 2017 ‘LIFE’ and also to pay a fine of Rs.2000/-, in default to suffer Rigorous imprisonment for a period of six months, sentences imposed against A. 1 were directed to run concurrently. Both the substantive 4. Case of the prosecution, as emanated from the evidence of prosecution witnesses, is as follows:- (i) A.1 is the husband of the deceased, A.2 is the elder sister of A.1, P.Ws.5 and 6 are son and daughter of the accused as well as the deceased. All of them are residents of Jagannadhapuram village, Parvathipuram Mandal. P.W.1 is the mother, P.W.8 is the brother and P.W.9 is the relative of the deceased respectively. P.Ws.2 to 4 and 10 are the neighbours of the accused and deceased. P.Ws.1, 8, 9 and 12 are residents of Gedda Tiruvada. The marriage between the deceased and A.1 took place about 13 years prior to the date of incident and they were placed with a son and daughter, who were examined as P.Ws.5 and 6. They led happy marital life till the birth of P.W.6. Thereafter, having addicted to vices, A.1 used to harass the deceased suspecting her fidelity. Unable to bear the harassment, the deceased along with her two children went to the house of P.W.1 situated at Visakhapatnam and stayed there for about one year. Subsequently, on the request of A.1 and on the advise of elders, the deceased along with children joined A.1 at Jagannadhapuram. Again, A.1 used to harass the deceased, who in turn left matrimonial home and went to Vizag along 4 Crl.A.No.l 155 of 2017 with her two children and eking out her livelihood. There, she worked as watch-woman for an Apartment for a period of two months. Again A.1 requested the deceased to join matrimonial home and gave Then, P.W.1 sent the assurance that he will look her properly. deceased along with her two children with A.1. After 10 days, the deceased once again informed P.W.1 about the harassment by A.1. A.1 did not allow the deceased to go to the house of P.W.1. While so, on 29.03.20215, the deceased was attending her (ii) household work in the early morning. At that time, A1 told the deceased stating that they can shift their family to Visakhapatnam, asking her to earn money by doing prostitution at Visakhapatnam. But the deceased refused for the said proposal, for which A.1 beat on her head. Having upset with the attitude of A.1, the deceased went inside the house and poured kerosene on her body in order to threaten A.1. it is said that A.1 lit match stick and set fire to the deceased at about 8.30 A.M. On hearing the hue and cries of the deceased, neighbours At that time. gathered there and found the deceased in flames. neighbiours also found the presence of A.2 in the house. Later, the injured was shifted to Government Hospital, Parvathipuram in 108 ambulance. (iii) On the same day at about 9.00 A.M., S.l. of Police, Parvathipuram (P.W.17) received message from Area Hospital, 5 Crl.A.No.ll55 of 2017 Parvathipuram. Having received the said intimation, immediately he went to the hospital and recorded the statement from the injured in the presence of Doctors. The said statement was marked as Ex.P9 on which the Doctor made an endorsement. Immediately, he returned to the police station and registered a case in Crime No.66 of 2015 under Section 307 IPC on the basis of Ex.PO. Ex.PI2 is the FIR. He issued copies of FIR to all the concerned. Thereafter, PW.17 visited the scene of offence along with mediators-P.W.7 and another. He seized M.Os.1 to 9 at the scene of offence. He prepared an observation report-Ex.P3 in the presence of P.W.7 and another. He also prepared a rough sketch-Ex.P13 at the scene of offence. He also got scene photographed through P.W.13. Photographs were marked as Exs.P5 and P6. He recorded the statements of P.Ws.2 to 6. On the same day while undergoing treatment, the deceased succumbed to injuries. At about 7.45 P.M., P.W.17 received death intimation from the hospital. On the same day, P.W.1 gave report to P.W.17. Death intimation was marked as Ex.PI4 and the report given by P.W.1 was marked as Ex.PI 5. On the basis of Exs.P14 and PI 5, the section of law was altered to Section 302 read with 34 IPC from Section 307 IPC. Altered FIR was marked as Ex.P16. On the same day at about 11.30 P.M., P.W.18 Inspector of Police received altered FIR along with CD. As it was late night, he could not proceed with the investigation. On the next day i.e., on 30.03.2015 at about 5.00 A.M., P.W.18 proceeded to the 6 CrI.A,No.ll55 of 2017 scene of offence and prepared another rough sketch-Ex.P17. returned to mortuary and held inquest over the dead body in the presence of P.W.12 and another between 8.00 A.M. and 10.00 A.M. He Inquest report was marked as Ex.P4. At the inquest, he recorded the statements of P.W.1 and others. On 02.04.2015 on credible information, P.W.18 apprehended A.1 from his house in the presence of P.W.7 and another. A.1 confessed about the commission of offence. On the next day i.e., on 03.04.2015 he arrested A.2. Both the accused were remanded to judicial custody. On 06.04.2015 P.W.18 received a preliminary post-mortem report. On 13.04.2015 he sent material objects to FSL Hyderabad for chemical analysis. On 03.07.2015 P.W.18 received FSL report, which was marked Ex.PIQ. On 05.05.2015 he filed a memo adding section. 498-A IPO and Section 120-B IPO. (iv) In the meanwhile, on 29.03.2015 at about 10.15 A.M., P.W.16- the Additional Judicial Magistrate of First Class, Parvathipuram received intimation from the Area Hospital, Parvathipuram to record the dying declaration of the deceased. Immediately, P.W.16 proceeded to the hospital at about 10.45 A.M. and recorded the statement from the injured, which was marked as Ex.P11. After receiving the post-mortem report, RFSL report and after completion of investigation P.W.18 filed the charge sheet. 7 Crl.A.No.ll55 of 2017 5. in support of its case, prosecution examined P.Ws.1 to 18, marked Exs.P1 to P19 and exhibited M.Os.1 to 10. On behalf of defence, the portion in the statement of P.W.10 was marked as Ex.DI. 6. When both the accused were examined under Section 313 Cr.P.C., they denied the incriminating evidence found against them. 7. Accepting the evidence of P.Ws.1 to 6 and dying declarations Exs.PQ and P11, the learned Additional Sessions Judge convicted the appellant/A.1 as aforesaid. Aggrieved by the same, the appellant/A.1 filed the present Criminal Appeal. Heard Sri G.Vijaya Saradhi, learned counsel appearing for the 8. appellant/A.1 and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the State. 9. Learned counsel for the appellant strenuously contended that there are number of inconsistencies in both the dying declarations which were marked as Exs.P9 and P11. Further, the evidence of P.Ws.1 and 3 is contradictory to each other and the prosecution suppressed the other dying declaration recorded by P.W.17. Thus, he argued that the conviction and sentence recorded by the court below is liable to be set aside and the Criminal Appeal is liable to be allowed. Crl.A.No.ll55 of 2017 On the other hand, the learned Additional Public Prosecutor 10. vehemently argued that the evidence of prosecution witnesses coupled with the dying declarations, is sufficient to come to a conclusion that the appellant/Accused No.1 harassed the deceased and thereby causing the death of the deceased. He, therefore, requests this court to dismiss the Appeal. It is pertinent to note that in Ex.P.9 the deceased has stated as 11. follows;- Today, in the early morning of 29-03-2015 when I was attending to house-hold work, my husband came and informed me that we can shift our residence to Visakhapatnamwhere I was asked to do prostitution and earn money to look after their livelihood. Then, I refused for the said illegal act. Then, he beat me on my head. So, immediately, I went inside the house and poured kerosene on myself and threatened him that I will commit suicide. Further, the deceased has stated in Ex.P.9 as under 12. She herself set fire to her saree, but owing to fear. she put off the flames. At that time, my husband, who was conspicuously present, admonished her by stating that how I wasted the kerosene and picked up a match box lying there, lit the match stick and threw m 9 Crl.A.No.ll55of 2017 it on my body and ran away. Upon hearing the hue and cries, the neighbours came there and shifted me to the hospital in 108 Ambulance. 13. Whereas in the second Dying Declaration recorded by P.W.16 which was marked as Ex.P.11, the deceased has stated as follows;- Today, at about 8.00 A.M., there was a quarrel between me and my husband and my husband beat me by stating that he cannot work and he will not look after the welfare of the family and asked her to shift the family to Visakhapatnam where I was asked to earn money by keeping some one as my paramour. Having accepted the proposal at the threshold, later as my consciousness does not permit me for doing the said illegal act, I poured kerosene on myself with an intention to set fire to me and lit the match stick, but due to fear, I put off the match stick. At that juncture, my husband came there in a serious mood and admonished me stating that why I wasted the kerosene and saying so, he lit fire to herself When I was raising cries. Accused No.2 came there and without putting off the flames, she closed my mouth and nose. At that time, my son (P.W.5) came there and poured water and put off the flames. The neighbours also came there and shifted me to the hospital. 10 Crl.A.No.ll55 of 2017 Further, as could be seen from the averments in Ex.P.9, the deceased has stated that she poured kerosene and set fire to her saree, but due to fear, she herself put off the flames. Whereas, in the 14. second dying declaration i.e., in Ex.P.11, the deceased has stated that she lit the match stick and put off the flames and she did not state that she set fire to her saree. In the first dying declaration, the deceased did not refer to the presence of Accused No.2, but in the subsequent dying declaration i.e., in Ex.P.11 she states that Accused No.2 was present and instead of putting off the flames, she closed her mouth and nose, thereby preventing hue and cries. In the first dying declaration- Ex.P-9, the deceased did not refer to the presence of her son-P.W.5, whereas in the second dying declaration-Ex.P.11 the deceased has stated that P.W.5 poured water and put off the flames. Astonishingly, P.W.5 in his evidence stated that at the time of the incident, he was not present in the house and by the time he return to home, number of people gathered in front of their house. As such, in the considered opinion of this Court it can safely be presumed that there are number of inconsistencies in both the dying declarations i.e., Exs.P.9 and P.11 and the same do not corroborate with the evidence of P.Ws.5 and 6, who are none other than the son and daughter of the deceased respectively. 11 CrI.A.No.ll55 of 2017 Coming to the evidence of P.W.1, who is none other than the 15. mother of the deceased, she stated that having received the information she went to the hospital and found the injured taking the treatment. She further stated in her evidence that when she enquired the injured, she informed her that Accused No.1 poured kerosene and set her to fire. The said ora! dying declaration made by the injured to P.W.1 is altogether a new version i.e.. Accused No.1 pouring kerosene and setting her to fire; whereas the neighbor i.e., P.W.3 stated that the deceased made oral dying declaration before her stating that in order to threaten the appellant, she poured kerosene by herself and A.1 set fire to her. As such, the evidence of P.Ws.1 and 3 is inconsistent to each other. This court, having analyzed the oral dying declarations and 16. written dying declarations, which were marked as Exs.P.9 and P.11, noticed divergent versions projected by the prosecution, which gives rise suspicion to the substratum of the prosecution case. So far as Exs.P.9 and P.11 are concerned, the only consistency is that the deceased herself poured kerosene on her body. So far as the oral dying declarations projected by P.W.1 is concerned, the accused poured kerosene on the deceased and set fire to her. The another oral dying declaration projected through P.W.3, it is crystal clear that the 12 Crl.A.No.ll55 of 2017 .■■.J deceased herself poured kerosene on her body in order to set fire, but in the meantime Accused No.1 lit the match stick and set her to fire. r'' In this connection, it is relevant to refer to the judgment of the 17. Hon’ble Supreme Court reported in Dandu lakshmi Reddy vs. State of A.P.^ wherein, in paras. 13 to 16 of the judgment, it was held as follows:- “13. The first among such tests is to scrutinize whether there are inherent improbabilities in that version. We are unable to detect any such Improbability inherent therein. The next test is whether there is any inherent contradiction therein. In that scrutiny we came across one material contradiction as between the two dying declarations regarding the context in which deceased caught fire. Ext.P-14 shows that she was set fire to when she was lighting a stove for preparing the coffee. The relevant portion of Ext.P14 is extracted herein below: “Today morning I.e. 09.10.1994 when I was lighting the stove in the kitchen and preparing coffee at about 6.00 a.m. my mother-in-law and husband came from behind. After entering the kitchen, my husband caught hold of my hair and I was unable to move. My mother-in-law Narayanamma sprinkled kerosene on my body and clothes. She asked her son to set fire, my husband lit the matchstick and threw It on my clothes. When my clothes caught fire I started shouting with fear. My mother-in-law Narayanaamma and my husband Laxml Reddy ran away from there. ” 14. In Ext.P-11 (which is a dying declaration given to the Judicial Magistrate of the class) the context stated by the declarant was altogether different. The relevant portion is extracted below: (1999) 7 see 69 13 Crl.A.No.ll55 of 2017 “My mother-in-law's name is Narayanamma, my husband's name is Dandu Lakshmi Reddy. In the morning at 6.00 a.m. when I was sweeping, my mother-in- law Narayanamma and my husband Laxmi Reddy both poured kerosene on me, lit the matchstick and set me to fire. ” The above material divergence between two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned Judges of the High Court, as they have observed thus: “Though there is a difference in the version of the deceased as to what she was doing at the relevant point of time the fact remains that A-1 and A-2 poured kerosene and lit fire to her. These aspects are mentioned in Ex.P.11 and P.14. Therefore, we are unable to agree with the contention of the learned counsel for the accused appellants. ” 16. Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course. ” 15. 18. Further, it is pertinent to note that deceased went to the extent of implicating Accused No.2 in the subsequent dying declaration, which was marked as Ex.P.11. Ironically, Accused No.2 is a disabled person, who is none other than elder sister of Accused No.1 and living with 14 Crl.A.No.ll55 of 2017 their family. Further, neither the deceased nor her mother-P.W.1 attributed any role or participation of Accused No.2 in the earliest versions in Exs.P-9 and P-15. Therefore, having analyzed the entire evidence carefully and 19. scrutinized the same scrupulously, we have no hesitation to come to a conclusion that Exs.P-9 and P-11 do not inspire confidence of this court to place reliance on the version of the prosecution. Further, the ocular version of P.Ws.1 to 4 is also inconsistent with each other. So far as the evidence of P.Ws.5 and 6 is concerned, admittedly they have stated that they were not present at the house at the relevant point of time. On the above analysis, this Court is of the considered opinion 20. that the conviction and sentence imposed against the appellant/A.1 is liable to be set aside and the Criminal Appeal is liable to be allowed. In the result, the Criminal Appeal is allowed by setting aside the 21. judgment of conviction and sentence recorded against appellant/Accused No.1 by the learned II Additional Sessions Judge Parvathipuram, vide S.C.No.82 of 2016, dated 05.08.2017. As the appellant/A.1 was already released on bail by order, dated 25.04.2023, he is directed to surrender before the Superintendent, Central Prison, Visakhapatnam, and complete the formalities as per the guidelines 15 Crl.A.No.ll55 of 2017 enunciated in Batchu Rangarao and others Vs The State of Andhra Pradesh (Crl.A.M.P.No.1687 of 2016 in Crl.A.No.607 of 2011). His bail bonds shall stand cancelled. Consequently, miscellaneous petitions, if any, pending shall stand closed. SD/- S.V.S.R.MURTHY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The II Additional Sessions Judge at Parvathipuram, Vizianagaram (With records) 2. The Station House Officer, Parvathipuram Circle, Parvathipuram, Vizianagaram District. 3. The Superintendent, Central Prison, Visakhapatnam. 4. One CC to Sri. G Vijaya Saradhi, Advocate [OPUC] 5. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh at Amaravathi [OUT] 6. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. 7. Three CD Copies PR TAC HIGH COURT DATED:24/06/2025 JUDGMENT CRLA 1155/2017 ALLOWING THE APPEAL