APHC010267612018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3547] WEDNESDAY,THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 1204/2018 Between: HARIJANA TERNEKAL MADHU @ HARIJANA MADHU, R/O.THANGARADONA VILLAGE, ASPARI MANDAL, KURNOOL DISTRICT. ...APELLANT AND STATE OF AP, rep. by the Public Prosecutor, High Court of Judicature at Hyderabad for the state of Telangana and the state of AP., ...RESPODENT Counsel for the Appellant: 1.H PRAHALADA REDDY Counsel for the Respondent: 1.PUBLIC PROSECUTOR (AP) 2 Crl.A.No.1204 of 2018 The Court made the following JUDGMENT :- (Per the Hon’ble Sri Justice K.Suresh Reddy) Sole accused in Sessions Case No.180 of 2014 on the file of the Court of II Additional Sessions Judge, Kurnool at Adoni, is the appellant. He was tried by the learned Additional Sessions Judge under two charges. The 1st charge was under Section 498-A IPC and the 2nd charge was under Section 302 IPC. 2. Substance of the charge is that prior to 01.07.2012 the accused subjected his wife Harijana Roja (herein after referred to as ‘the deceased’), to cruelty by physically and mentally suspecting her fidelity and on 01.07.2012 at about 8.00 P.M., the accused poured kerosene on her body and lit match stick and while undergoing treatment, she succumbed to injuries on 06.07.2012, thereby committed offences punishable under Sections 498-A and 302 IPC. 3. After completion of trial, the learned Additional Sessions Judge, convicted the accused under Section 302 IPC and sentenced him to suffer imprisonment for ‘LIFE’ and also to pay a fine of Rs.200/-, in default to suffer imprisonment for a period of one month. Learned Additional Sessions Judge acquitted the accused for the offence under Section 498-A IPC. 4. Case of the prosecution, as emanated from the evidence of prosecution witnesses, is as follows:- (i) The accused is a resident of Thangaradona village of Aspari Mandal. The deceased was also resident of the same village and she is none other than the wife of accused. The material prosecution witnesses are residents of Kampadu village of Peddakadabur Mandal. 3 Crl.A.No.1204 of 2018 One year prior to the date of incident, marriage of the accused was performed with the deceased. The accused was eking out his livelihood by doing coolie works. The accused along with his wife and others is residing in one house. It is alleged that the accused having addicted to consume alcohol, used to pick up quarrel with the deceased frequently suspecting her fidelity. Unable to bear the harassment, the deceased left to her parents’ house. Subsequently, the accused went to the parents’ house of the deceased, promised with her parents that he will look after her well and returned back along with the deceased. (ii) While so, at about 8.00 P.M. on 01.07.2012, the accused started quarreling with the deceased contending that she is talking with the villagers. Immediately, the accused took kerosene tin, poured kerosene on her body and set her to fire with a match stick. The accused also received burn injuries. Unable to bear the flames, she raised hue and cries. The elder brother of accused put off the flames and shifted her to Government Area Hospital, Adoni for treatment. (iii) P.W.11-Civil Assistant Surgeon treated the injured in the hospital. He sent intimation-Ex.P6 to the Magistrate for the purpose of recording dying declaration. At about 1.10 A.M., P.W.17-Judicial Magistrate of First Class, Adoni received Ex.P6 and proceeded to the hospital. There, she recorded the statement-Ex.P26 from the injured. P.W.13- constable, I Town Police Station, Adoni received intimation-Ex.P7 from the hospital. Having received the same, he went to the hospital and recorded statement-Ex.P11 from the injured. He forwarded the same to Aspari Police Station on the point of jurisdiction. P.W.14-Sub Inspector of police, Aspari Police Station having received Exs.P7 and P11, registered a case in Crime No.58 of 2012 under Sections 498-A and 307 read with 34 IPC. FIR is marked as Ex.P12. He issued copies of FIRs to all the concerned. 4 Crl.A.No.1204 of 2018 (iv) At about 9.30 A.M., he went to the Government Area Hospital, Adoni. He recorded statements of P.Ws.1 to 5 at about 1.30 P.M. P.W.14 visited the scene of offence. He prepared rough sketch- Ex.P13. He also prepared an observation report-Ex.P14 in the presence of mediators. He seized M.O.1 kerosene tin at the scene of offence. He recorded statements of P.Ws.6 to 9. (v) While undergoing treatment, the deceased succumbed to injuries on 06.07.2012. Having received the death intimation, P.W.14 altered the Section of law from Section 307 IPC to Section 302 IPC. Death intimation is marked as Ex.P15 and alteration Memo is marked as Ex.P16. Further investigation was taken over by P.W.15-Inspector of police, Alur Police Station. He went to the Government Area Hospital and found the dead body in the mortuary. He held inquest over the dead body in the presence of mediators. Inquest report is marked as Ex.P5. After inquest, he secured the presence of accused who was taking treatment. On the same day, P.W.15 visited the scene of offence and prepared another rough sketch-Ex.P17. He recorded statements of P.Ws.6 to 8. Later, he recorded statement of P.W.9 also. On 10.07.2012 he recorded statements of P.Ws.11 and 12. (vi) In the meanwhile, on the requisition made by P.W.12, another Civil Assistant Surgeon, Government Area Hospital, Adoni under Ex.P9, P.W.17-Judicial Magistrate of First Class once again visited the Government Hospital at about 5.00 P.M. in the evening and recorded another statement-Ex.P27 from the injured at about 5.20 P.M. (vii) On 21.07.2012 P.W.15 received dying declarations. Initially, the crime was registered against A.1 to A.6 and during the course of investigation as the participation of A.2 to A.6 was not there, the names of A.2 to A.6 were deleted by proceedings Rc.No.C1/3656/2012, dated 5 Crl.A.No.1204 of 2018 07.03.2013. After receiving all the documents and after completion of investigation, P.W.15 filed charge sheet. 5. In support of its case, prosecution examined P.Ws.1 to 18, marked Exs.P1 to P28 and exhibited M.O.1. On behalf of defence, D.W.1-neighbour of the accused was examined. 6. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating evidence found against him. 7. Relying on the dying declaration-Ex.P27 and the evidence of P.Ws.1, 2 and 5, the learned Additional Sessions Judge convicted the appellant/accused as aforesaid. Aggrieved by the same, the appellant/accused filed the present Criminal Appeal. 8. Heard Sri H.Prahalada Reddy, learned counsel appearing for the appellant/accused and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the Respondent-State. 9. We have carefully scrutinized the entire evidence on record. 10. Before examining the dying declarations, we would like to consider the evidence of P.Ws.1 to 9. All these witnesses initially supported the prosecution and during the course of cross-examination, they supported the version of accused. Thereafter, the Public Prosecutor recalled these witnesses for the purpose of re-examination and in re-examination once again they supported the prosecution and thereafter, the accused re-cross-examined these witnesses, in which they supported the version of accused. Having gone through the evidence of P.Ws.1 to 3, no reliance can be placed on their testimonies. They are speaking inconsistent versions in the chief-examination and cross-examination. As such, we are not inclined to place any 6 Crl.A.No.1204 of 2018 reliance on the evidence of P.Ws.1 to 3. Leaving the evidence of P.Ws.1 to 3, their remains only three dying declarations they are Exs.P11, P26 and P27. So far as Ex.P11 is concerned, learned trial Judge has not placed any reliance. So far as Ex.P26-1st dying declaration recorded by the Magistrate i.e., P.W.17 is concerned, wherein the deceased stated as follows :- “At about 10.00 P.M. on 01.07.2012, the current was gone. I am lighting the kerosene lamp. Then the kerosene fell down and when I am lighting the lamp the fire came upon me” 11. She further stated in Ex.P26 that she was brought by her brother-in-law to the hospital. Ex.P26 was recorded at about 1.30 A.M. on 02.07.2012. So far as Ex.P27 is concerned, P.W17 having received Ex.P9-intimation from P.W.12, again went to the hospital at about 5.20 P.M. on 02.07.2012 and recorded Ex.P27 from the injured. In the 2nd dying declaration-Ex.P27, the deceased has stated as follows:- “ On Sunday at about 10.00 P.M. my husband came to the house in drunken state and beat me. I went into the house, was crying, then, my husband came and poured kerosene and lit fire. ” 12. In the 2nd dying declaration, the deceased has stated that she was brought by her husband and brother of her husband. P.W.17 while recording the 2nd dying declaration has not asked the deceased as to why in Ex.P26 she stated that she got fire accidentally. Further, the prosecution has also not stated any reason as to why the 2nd dying declaration-Ex.P27 was recorded. 7 Crl.A.No.1204 of 2018 13. In the cross-examination of P.W.1-mother of the deceased, it is stated as follows:- “It is true our villagers made Dharna in front of RDO office for the purpose of to record DD statement of my daughter. It is true after completion of the Dharna the Magistrate again recorded DD statement of deceased in the hospital. It is true we influenced the deceased to give her DD statement against accused on suspicious grounds and as we suspected the accused was responsible for the incident.” 14. When P.W.17 recorded the 1st dying declaration-Ex.P26, the relatives of the deceased were not present. It seems that after arrival of the mother, brother and other relatives of the deceased in the morning, she must have been tutored by them as stated above. P.W.1-mother of the deceased specifically admitted in her cross- examination stating that they influenced the deceased to give her 2nd dying declaration against the accused. As such, P.W.17 visited the hospital in the evening on 02.07.2012 and recorded the 2nd dying declaration-Ex.P27. As seen from Ex.P26 and Ex.P27 they are inconsistent with each other. But the learned Additional Sessions Judge has held that Ex.P26 was not voluntary and Ex.P27 is voluntary and authenticated. 15. Leaned counsel for the appellant placed reliance on the judgments of the Hon’ble Supreme Court reported in (1) Munuwa Alias Satish and others v. State of Uttar Pradesh1 and (2) Uttam v. State of Maharashtra2. 1 (2023) 1 Supreme Court Cases 714 2 (2022) 8 Supreme Court Cases 576 8 Crl.A.No.1204 of 2018 16. In the Judgment of Munuwa Alias Satish’s case (Supra 1) it is held as follows:- “27. Finally, as noted above, there are inconsistencies in the two dying declarations of the deceased, as to the motive of the crime, the place of the incident, and the presence of other persons at such place. The first dying declaration, the FIR, was recorded by the deceased at the police station on 24.08.1979. It states that at 6.30 p.m., the three accused came and fired at him and P.W.6 with a pistol because he was a witness in a case against A.2. The second dying declaration, recorded by P.W.5 after medical certification from P.W.9 on 25.08.1979, states that the incident took place in front of the gate of his quarters, in front of which, A- 3’s flour mill is located. The three accused came from the flour mill, and A.1 and A.2 fired a shot with a revolver while A.3 held him fastened. It is also states that, at the relevant time and place, his peon Sakhar Ali Beg and 5-6 other persons were also present. Notably, he stated that he had rusticated A.2 from college after he failed in the 11st standard, and this motivated the crime. 28. The trail Court rejected the statement made on 27.8.1979 as a dying declaration, noting that : “The new facts introduced by Iqbal Bahadur Saxeana create a suspicion that this dying declaration was a result of consultation and as such I do not consider it safe to place reliance on it.” 9 Crl.A.No.1204 of 2018 29. Without reversing this finding about the later dying declaration, the High Court proceeded on the premise that in the event of two dying declarations, the court may accept the one which is recorded prior in point of time, and the corroboration of the first dying declaration by the later declaration is only a rule of prudence. 30. In our opinion, the second dying declaration comprising far too many additions and improvements, was correctly rejected by the trial court and the High Court. The first declaration was recorded in the police station, right before the deceased left for the hospital in a critical condition, without any certification of whether the deceased was medically fit to make a dying declaration. In fact, this is corroborated by the testimony of P.W.8 who stated that the deceased was in a semi-conscious condition on his way to the hospital. Further, P.W.11 who examined the deceased also stated that his condition was serious. The dubitable circumstances in which the FIR was recorded, sought to be treated as the first dying declaration, have already been considered by us in the initial part of our analysis. For all these reasons, we are of the opinion that it is not safe to consider the FIR as a dying declaration as well.” 17. In the Judgment of Uttam’s case (Supra 2) it is held as follows:- “38. We are of the opinion that once the High Court had disagreed with the Sessions Court and discarded the two written dying declarations of the deceased due to several glaring lacunae in the procedure adopted by the SEM (PW 9) and the IO (PW.14) in recording the said statement, then 10 Crl.A.No.1204 of 2018 the appellant could not have been indicated on the oral testimony of P.W.2, father of the deceased and P.W.12, family friend, both of who were interested witnesses and whose evidence runs contrary to the versions of the deceased recorded by P.W.9 and P.W.14. It must be remembered that all the four dying declarations, two in writing and the other two oral, were based on the statements given by the deceased at different times on the very same day i.e., 27.03.1995, when she had suffered 93% burn injuries and there are serious doubts about her being mentally and physically fit to give her statement. The IO (PW 14) had recorded the first dying declaration at 3.20 p.m. this was followed by the SEM (PW 9) having recorded the second dying declaration between 4.30 p.m. and 5.00 p.m. It was on the very same day that PW 2 and PW 12 had also met the deceased at the hospital and claimed that she had informed them as to how she had received the burn injuries and named the appellant as the culprit.” 18. As already pointed out, both the dying declarations-Exs.P26 and P27 are inconsistent with each other. In Ex.P26 the deceased has stated that she received burns accidentally whereas in Ex.P27 she stated that the accused poured kerosene on her and set her to fire. As already pointed out, the 2nd dying declaration-Ex.P27 was recorded after arrival of her relatives. 19. Therefore, having analyzed the entire evidence carefully and scrutinized the same scrupulously, we have no hesitation to come to a conclusion that Ex.P27-dying declaration does not inspire confidence of this court to place reliance on the version of the prosecution which is inconsistent to Ex.P26. 11 Crl.A.No.1204 of 2018 20. As already pointed out, all the material witnesses P.Ws.1 to 9 did not support the prosecution. As such, there is no other corroboration to Ex.P27 which is inconsistent to Ex.P26. 21. On the above analysis, this Court is of the considered opinion that the conviction and sentence imposed against the appellant/accused is liable to be set aside and the Criminal Appeal is liable to be allowed. 22. In the result, the Criminal Appeal is allowed by setting aside the judgment of conviction and sentence recorded against appellant /Accused by the learned II Additional Sessions Judge, Kurnool at Adoni, vide S.C.No.180 of 2014, dated 08.03.2018. Accordingly, the accused is acquitted. As the appellant/accused was already released on bail by order, dated 27.03.2023, he is directed to surrender before the Superintendent, Central Prison, Kadapa, and complete the formalities as per the guidelines 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. JUSTICE K.SURESH REDDY _____________________________ JUSTICE SUBBA REDDY SATTI Dt. 24.09.2025 SAB 12 Crl.A.No.1204 of 2018 159 THE HON’BLE SRI JUSTICE K.SURESH REDDY AND THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI Criminal Appeal No.1204 of 2018 (Per Hon’ble Sri Justice K.Suresh Reddy) Date: 24.09.2025 SAB