1344APHC010414982018 IN THE HIGH COURT OF ANDHRA PRADESH WEDNESDAY, THE TWENTY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI CRIMINAL APPEAL NO: 1650/2018 Between: 1. NARAPOGU NARASAPPA, R/O DEVANAKONDA VILLAGE AND MANDAL, KURNOOL DISTRICT. 2. NARAPOGU SUSEELAMMA, R/O DEVANAKONDA VILLAGE AND MANDAL, KURNOOL DISTRICT. 1. THE STATE OF AP, Rep by its PP, High Court at Hyderabad Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to file this Criminal Appeal against the judgement and sentence passed by the II Addl., Sessions Judge, Kurnool at Adoni in SC.No. 242 of 2014, dated 30 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 direct the release of the petitioner on bail by suspending the order dt 30 2018 on the file of the II Addl. Sess Judge, Kurnool at Adoni pending disposal of appeal in this honble court and pass IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 1650/2018 NARAPOGU NARASAPPA, R/O DEVANAKONDA VILLAGE AND MANDAL, KURNOOL DISTRICT. NARAPOGU SUSEELAMMA, R/O DEVANAKONDA VILLAGE AND MANDAL, KURNOOL DISTRICT. ...APPELLANT(S) AND STATE OF AP, Rep by its PP, High Court at Hyderabad ...RESPO Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to file this Criminal Appeal against the judgement and sentence passed by the II Addl., Sessions Judge, Kurnool at Adoni in SC.No. 242 of 2014, dated 30-04-2018 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 to direct the release of the petitioner on bail by suspending the order dt 30 2018 on the file of the II Addl. Sess Judge, Kurnool at Adoni pending disposal court and pass IN THE HIGH COURT OF ANDHRA PRADESH [3547] NINETH DAY OF OCTOBER THE HONOURABLE SRI JUSTICE K SURESH REDDY JUSTICE SUBBA REDDY SATTI NARAPOGU NARASAPPA, R/O DEVANAKONDA VILLAGE AND NARAPOGU SUSEELAMMA, R/O DEVANAKONDA VILLAGE AND ELLANT(S) ...RESPONDENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to file this Criminal Appeal against the judgement and sentence passed by the II Addl., Sessions Judge, Kurnool at Adoni in Petition under Section 151 CPC praying that in the circumstances stated High Court may be pleased to direct the release of the petitioner on bail by suspending the order dt 30-04- 2018 on the file of the II Addl. Sess Judge, Kurnool at Adoni pending disposal 2 IA NO: 1 OF 2021 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 release the petitioners/Appellants/Accused Nos.1 & 2 on bail for a period of two weeks to perform the marriage Daughter and Sister of the Appellants in pending Crl.A.No. 1650 of 2018 and to 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 may be please to release the petitioners on bail by suspending the sentence passed in S.C.No. 242 of 2014 passed by the II Additional Sessions Judge, Kurnool at Adoni dated 30-04-2018, pending disposal of Criminal Appeal and pass Counsel for the Appellant(S): 1. H PRAHALADA REDDY Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) 3 The Court made the following: JUDGMENT: (Per Hon’ble Sri Justice K.Suresh Reddy) A.1 & A.2 in Sessions Case No.242 of 2014 on the file of the Court of II Additional District & Sessions Judge, Kunrool at Adoni (for short, ‘the learned Additional Sessions Judge’) are the appellants. The appellants along with A.3 were tried by the learned Additional Sessions Judge under the following three charges: (i) 1st charge was under Section 498-A IPC against A.1 to A.3 (ii) 2nd charge was under section 302 IPC against A.1 to A.3. Alternative charge was also framed under Section 304-B IPC against A.1 to A.3 (iii) 3rd charge was under Section 4 of the Dowry Prohibition Act against A.1 to A.3 2. Substance of the charge is that prior to 30.03.2012, A.1 to A.3 subjected the wife of A.1 by name Narapogu Vijayalakshmi (hereinafter referred to as “the deceased”) to cruelty, having not satisfied with the dowry of Rs.5016/-, a pair of gold ear studs and a pair of silver anklets, demanded additional dowry from her parents, and on 30.03.2012, at about 9:00 A.M, A.1 to A.3 poured kerosene on her body and set fire to her with a matchstick in the house of A.1, situated at Devanakonda Village & Mandal who died on 28.04.2012 while undergoing treatment, thereby committed offences punishable under Sections 498-A, 302 IPC alternatively 304-B IPC and Section 4 of the Dowry Prohibition Act. 4 3. After completion of trial, the learned Additional Sessions Judge convicted A.1 & A.2 under Section 302 IPC and sentenced each of them to suffer Imprisonment for ‘LIFE’ and also to pay a fine of Rs.1,000/- each, in default to suffer Simple Imprisonment for a period of two months. Learned Additional Sessions Judge acquitted A.3 of all the charges. Learned Additional Sessions Judge further acquitted A.1 & A.2 under Section 498-A IPC and Section 4 of the Dowry Prohibition Act. 4. Case of the prosecution, as emanated from the evidence of prosecution witnesses, briefly, is as follows: (a) All the accused are residents of Devanakonda Village. A.1 is none other than the son of A.2 and A.3. The deceased is none other than the wife of A.1. PW.1 is the mother, PW.2 is the father, and PWs 3 & 4 are paternal uncles of the deceased. The marriage between the deceased and A.1 was performed about five years prior to the date of incident. At the time of marriage, cash of Rs.5,116/-, one pair of gold ear studs and one pair of silver anklets were presented by PWs 1 & 2. After the marriage, the deceased joined the matrimonial home situated at SC Colony, Devanakonda Village. One year after the marriage, a female child was born to the couple, who died subsequently. It is alleged that A.1 to A.3 used to harass the deceased, demanding her to bring additional dowry of Rs.30,000/- from her parents. The deceased informed the same to PWs 1 & 2. PWs 1 & 2 used to reside at Kurnool town. It is alleged that all the three accused subjected the deceased to cruelty demanding her to bring additional dowry. While so, on 30.03.2012 5 at about 6.00 A.M., when the deceased was sitting in the house, A.1 & A.2 came there, poured kerosene and set fire to her stating that A.1 did not like her and he wants to marry another lady. Unable to bear the flames, the deceased came out. A.1 and A.2 went away. Hearing her cries, PWs 5 to 7 came there and shifted her to Government General Hospital, Kurnool in 108 Ambulance. (b) PW.10 Civil Assistant Surgeon, Government General Hospital, Kurnool gave treatment to the injured. He sent Ex.P7 intimation to PW.12 Judicial First Class Magistrate, Kurnool at about 06.20 P.M. He also sent another intimation Ex.P8 to the police. Having received Ex.P7 intimation, PW.12 Judicial First Class Magistrate, Kurnool visited the hospital at about 07.00 P.M. and recorded Ex.P14 statement from the injured. On 01.04.2012 at about 07.10 A.M., PW.11 Sub-Inspector of Police, Devanakonda Police Station, having received Ex.P8 intimation, went to the hospital at 09.00 A.M. on 01.04.2012 and recorded Ex.P9 statement from the injured. On the basis of Ex.P9, PW.11 registered a case in Crime No.31 of 2012 under Sections 498-A & 307 IPC r/w 34 IPC and Sections 3 & 4 of the Dowry Prohibition Act. He issued copies of F.I.R. to all the concerned. F.I.R. was marked as Ex.P10. He again visited the Government General Hospital and recorded the statements of PWs 1 & 2. On the same day, at about 05.00 P.M., he visited the scene of offence situated at SC Colony, Devanakonda and prepared a rough sketch Ex.P11. He secured the presence of PWs 5 to 7 and recorded their statements. 6 (c) While undergoing treatment, the deceased succumbed to injuries on 28.04.2012. On the same day, PW.1 went to the Police Station and informed the Police about the death of the deceased. Again PW.11 recorded the statement of PW.1. He re-registered the F.I.R. under Sections 498-A, 302 & 304-B IPC and Sections 3 & 4 of the Dowry Prohibition Act, 1961. Re-registered F.I.R. is marked as Ex.P12. He sent intimation to PW.8 to conduct inquest over the dead body. (d) On 28.04.2012 at about 2.00 or 3.00 P.M, PWs 8 & 13 held inquest over the dead body in the presence of mediators. Inquest report is marked as Ex.P5. Further investigation was taken over by the Deputy Superintendent of Police, Dhone PW.14. (e) On 01.05.2012 at about 02.00 P.M., PW.14 visited the scene of offence and prepared a Rough sketch Ex.P15. He secured the presence of PWs 5 to 7 and recorded their statements. In the meanwhile, PW.11 sent the dead body for Postmortem examination. (f) PW.9 Associate Professor, Kurnool Medical College, Kurnool conducted Autopsy over the dead body. He opined the cause of death was due to “Septicaemia resulting from mixed degree anti mortem burns”. He issued Postmortem Certificate Ex.P6. (g) On 10.05.2012 at about 10.00 A.M, PW.14 arrested A.1 to A.3 at the outskirts of Devanakonda Village who were remanded to judicial custody. After collecting all the documents and after completion of the investigation, PW.14 filed charge sheet. 7 5. In support of its case, the prosecution examined PWs 1 to 14 and marked Exs.P1 to P15. 6. When the accused were examined under Section 313 Cr.P.C, they denied the incriminating evidence appearing against them. 7. Accepting the evidence of PWs 1 to 4 coupled with Exs.P9 & P14, learned Additional Sessions Judge convicted the appellants as aforesaid. 8. Heard Smt. Aishwarya Nagula, learned counsel, representing Sri H.Prahalada Reddy, learned counsel for the appellants and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the respondent / State. 9. Smt. Aishwarya Nagula, learned counsel, strenuously contends that PWs 1 to 4 are not eye witnesses and as they are interested witnesses being father, mother and paternal uncles of the deceased respectively, no reliance can be placed on their evidence. She further contends that the independent witnesses PWs 5 to 7 did not support the prosecution. She further contended that the dying declarations - Exs.P9 & P14 are inconsistent to each other and as such, no reliance can be placed on those dying declarations. She further contended that no one saw A.1 & A.2 at the scene of offence at the relevant point of time. She also contends that so far as the ‘motive’ is concerned, two dying declarations Exs.P9 & P14 are inconsistent to each other. As such, she 8 requests this Court to allow the appeal by setting aside the conviction and sentence recorded by the learned Additional Sessions Judge. 10. On the other hand, the learned Additional Public Prosecutor opposed the appeal contending that PWs 1 to 4 can be relied on to establish the oral dying declaration stated by the deceased to them. He further contends that the evidence of PWs 1 to 4 also can be taken into consideration in establishing the harassment of the accused towards the deceased. He further contends that in the earliest version, the deceased has stated in Ex.P14 that the incident took place at about 06.00 A.M. and the accused poured kerosene and set fire to her in the house of A.1. He further stated that A.1 wanted to get rid of the deceased and he intended to marry another girl. It is for that reason A.1 poured kerosene on the deceased and set fire to her. So far as the other dying declaration Ex.P9 is concerned, the police deliberately recorded the same at a belated stage attributing demand of additional dowry. Ex.P14 was recorded by PW.12 Judicial Magistrate of First Class, Kurnool. As such, he requests this Court to dismiss the appeal by confirming the conviction and sentence recorded by the learned Additional Sessions Judge. 11. We have carefully scrutinized the entire evidence on record. 12. Learned Additional Sessions Judge acquitted A.1 & A.2 under Section 498-A IPC and also under Section 4 of the Dowry Prohibition Act and as such, the harassment towards additional dowry goes. But, there is no appeal from the State so far as Section 498-A IPC and Section 4 of the Dowry Prohibition 9 Act is concerned. So far as the dying declaration Ex.P14, which was recorded by PW.12 is concerned, before recording the dying declaration, PW.12 has put preliminary questions to the deceased and after satisfying herself that the patient was in a fit state of mind to give statement, she recorded Ex.P14. Apart from her satisfaction, PW.12 has also taken endorsements of the Medical officer PW.10 who stated that the patient was conscious, coherent and in a fit state of mind to give statement. It is only after satisfaction PW.12 recorded the dying declaration - Ex.P14. In Ex.P14, the deceased has stated as follows: “Because of my mother-in-law and my husband. My mother-in- law used to beat me daily. My husband used to beat me daily in an intoxicated state. On this morning at about 06.00 A.M., when I was in a sitting position, my mother-in-law and my husband came and poured kerosene on me and set fire and my husband stated that “No need of your presence and will give divorce for which I have no desire on you as I intend to marry another women”. My husband used to abuse me and beat me daily soon after my marriage. Even he did not evince any interest towards me for a single day. He further used to call my parents over phone and used to talk with them in a loud voice. On earlier occasion, my husband forced me to touch the live electrical wire, so that I can die. Prior to that, he dragged me forcibly upto well in order to throw into it. My mother-in-law name is Suseelamma, W/o. Narasanna. Her age is approximately 50 years. My husband name is Narasappa, S/o. Narasanna. His age is 26 years and surname is Karrenna. Both are residents of Devanakonda Village, Pattikonda Taluk, Kurnool District. As soon as pouring kerosene on me and set fire, I came outside. Then, neighbours came and put off the flames. My husband does not like me to speak to anybody else by suspecting my fidelity. Moreover, he put restrictions to me not to talk to anybody including my 10 parents and also not to go to my parents home. He used to beat me regularly by consuming liquor. My marriage occurred five years ago. I had a baby, who died”. 13. In the above dying declaration, the deceased has stated that A.1 & A.2 came there, poured kerosene and set fire to her. She further stated in Ex.P14 that A.1 does not like her and he stated that he wants to marry another lady. She did not attribute any specific role to A.2. Further, as seen from the Medical endorsements Exs.P7 & P8, it was stated as follows: “Burns due to kerosene poring and lightening by her husband at 09.00 A.M. on 30.03.2012 at home.” As could be seen from Exs.P7 & P8, it was A.1 who poured kerosene on the deceased and set fire to her. Nothing has been attributed to A.2. 14. Further, even according to the evidence of PWs 1 to 4, A.1 and the deceased are residing separately. A.2 along with her husband A.3 was residing in different place situated at about 1 Kilometre away from the house of A.1. According to the deceased, the incident took place at about 06.00 A.M. As such, the presence of A.2 at the house of A.1 is highly doubtful. Further, there is no other evidence to show that A.2 was present at the house of A.1 at the relevant point of time except Ex.P14 statement. As already pointed out, the deceased has not attributed any specific role to A.2 in her dying declaration Ex.P14 except stating A.1 & A.2 came there, poured kerosene and set fire. In Ex.P14, she specifically stated that A.1 does not like her and he wanted divorce from the deceased and he wants to marry another lady. As 11 such, the evidence of PWs 1 to 4 coupled with Ex.P14 established the guilt of A.1 beyond reasonable doubt under Section 302 IPC. So far as A.2 is concerned, there is no evidence on record to establish her participation in the offence. Further, there is no evidence to show that A.2 was present in the house of A.1 at the relevant point of time. Admittedly, A.2 was residing separately from A.1. 15. In view of the above facts and circumstances, the conviction and sentence recorded by the learned II Additional District & Sessions Judge, Kunrool at Adoni against A.1 in Sessions Case No.242 of 2014 vide judgment dt. 30.04.2018, needs no interference. So far as A.2 is concerned, the conviction and sentence recorded by the learned II Additional District & Sessions Judge, Kunrool at Adoni in Sessions Case No.242 of 2014 vide judgment dt. 30.04.2018 is liable to be set aside. In the result, this Criminal Appeal is allowed in part and the conviction and sentence recorded by the learned II Additional District & Sessions Judge, Kurnool at Adoni under Section 302 IPC in Sessions Case No.242 of 2014 against A.1, vide judgment dt. 30.04.2018, is hereby confirmed. The conviction and sentence recorded against A.2 under Section 302 IPC in the above Sessions Case is set aside and she is acquitted. As the appellant No.1 / A.1 was released on bail by order in I.A.No.1/2024 dt. 06.03.2024 in terms of the order of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu 12 Rangarao v. State of Andhra Pradesh1, he is directed to surrender before the trial Court to serve the remaining portion of sentence, failing which the learned II Additional District & Sessions Judge, Kurnool at Adoni is directed to secure his presence by issuing warrants and commit him to prison to serve the remaining portion of sentence. As the appellant No.2 / A.2 was released on bail by order in I.A.No.1/2024 dt. 06.03.2024 in terms of the order of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu Rangarao (supra 1), she is directed to appear before the concerned Authority and complete the formalities in terms of Batchu Rangarao (supra 1). Before parting with the case, we observe that the investigation done by PW11 is very much lethargic. Though he recorded the dying declaration at about 09.00 A.M. on 01.04.2012, he registered the crime at about 12.00 noon. He forwarded the F.I.R. to the Court at about 11.00 A.M. on 02.04.2012. Further, having registered the crime on 01.04.2012 and having recorded the statements of PWs 1 & 2 on 01.04.2012, PW.11 kept quiet. He did not even prepare an observation report at the scene of offence. He only prepared a Rough sketch Ex.P11. From 01.04.2012 till 28.04.2012 PW.11 kept quiet. He did not even forward the copy of F.I.R. to higher officials including PW.14 Investigating Officer. It is only after the death of the deceased when PW.1 gave a report Ex.P1 on 28.04.2012, he sent intimation along with copy of the re-registered F.I.R. - Ex.P12 to the Investigating Officer PW.14 who 1 2016 (3) ALT (Crl.) 505 (DB) (A.P.) 13 commenced his investigation. As such, PW.11 Sub-Inspector of Police, Devanakonda did not conduct any investigation from 01.04.2012 to 28.04.2012 except recording the statements of PWs 1 & 2 and preparing a Rough sketch and also recording the statements of PWs 5 to 7. There are many latches on the part of PW.11 in not proceeding with investigation from 01.04.2012 to 28.04.2012 giving scope for the accused to complain about the delayed investigation. PW.11 ought to have proceeded with investigation as the offence is grave in nature. But, he did not do anything between 02.04.2012 and 28.04.2012 except registering the crime and preparing Rough sketch Ex.P11. Consequently, interlocutory applications, if any, pending shall stand closed. _________________________ JUSTICE K. SURESH REDDY ___________________________ JUSTICE SUBBA REDDY SATTI. Note: The Registry is directed to communicate a copy of this judgment to the Director General of Police to prevent this type of delay on the part of Investigation Agency in future, particularly in grave offences like the present one. (B/o) MVA / JAK