APHC010625412018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3566] WEDNESDAY,THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2561/2018 Between: SHAIK NAGOOR SHAREED @ SHAREEF, OCC - HOME GUARD R/O. 24TH WARD, MACHERLA, GUNTUR DISTRICT, A.P. ...APELLANT AND STATE OF ANDHRA PRADESH, Rep by Public Prosecutor High Court at Hyderabad. ...RESPODENT Counsel for the Appellant: 1.Dr CHALLA SRINIVASA REDDY Counsel for the Respondent: 1.PUBLIC PROSECUTOR (AP) 2 Crl.A.No.2561 of 2018 The Court made the following: JUDGMENT : (Per Hon’ble Sri Justice K.Suresh Reddy) Sole accused in Sessions Case No.19 of 2016 on the file of the Court of X Additional District and Sessions Judge, Gurazala, is the appellant. He was tried by the learned Additional Sessions Judge under two charges. 2. The 1st charge was under Section 302 IPC and the 2nd charge was under Section 498-A IPC. 3. Substance of the charge is that the accused used to harass his wife Shaik Jani Begam (hereinafter referred to as ‘the deceased’) by subjecting her to cruelty both physically and mentally suspecting her fidelity and on 28.03.2015 at about 9.00 P.M. he quarreled with the deceased for not serving meals and beat her with belt and stick and unable to the bear the harassment, the deceased poured kerosene on herself and set fire to herself, causing her death, thereby committed offences punishable under Sections. 302 and 498-A IPC. 4. 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.10,000/-. The learned Additional Sessions Judge also convicted the accused under Section 498-A IPC and sentenced him to suffer Imprisonment for a period of three (03) years and also to pay a fine of Rs.10,000/-. Both the substantive sentences were directed to run concurrently. Aggrieved by the same, the accused/appellant filed the present appeal. 5. Case of prosecution, as per the allegations made in the charge sheet, briefly, is as follows:- 3 Crl.A.No.2561 of 2018 (i) The accused and the material prosecution witnesses are residents of Macherla Town. The deceased was also resident of Macherla Town. P.Ws.1 and 2 are parents, P.Ws.3 and 4 are brothers, P.Ws.5 to 9 are relatives and P.Ws.10 and 11 are sons of the deceased respectively. The marriage between the accused and the deceased was performed about fifteen years prior to the date of incident. The accused used to work as Home guard in the police department. The couple blessed with two sons i.e., PWs.10 and 11. The accused and the deceased were residing along with their two sons in a house situated in the next line of the houses where P.Ws.1 and 2 were residing. It is alleged that the accused used to harass the deceased both physically and mentally by suspecting her fidelity. Unable to bear such harassment, the deceased used to go frequently to her parents’ house. On such occasions, her parents used to console her and send her back to matrimonial home. P.Ws.1 and 2 and other elders advised the accused to mend his behaviour. Inspite of the same, the accused did not change his attitude. (ii) While so, on 28.03.2015 at about 9.00 p.m., the accused returned home and asked the deceased to serve meals. But, the deceased replied that the meals was not yet ready. Enraged by her reply, the accused took out his uniform belt and beat her indiscriminately. He also beat her with a stick. Unable to bear the harassment, the deceased went inside the house and poured kerosene on herself and set fire to herself at about 11.00 p.m. On hearing her cries, the neighbours gathered at the spot and put off the flames. On receiving information from the neighbours, P.Ws.1 and 2 rushed to the house of the deceased and noticed burn injuries on her body. Immediately, they shifted her to the Government Hospital, Macherla, 4 Crl.A.No.2561 of 2018 and from there to the Government General Hospital, Guntur, for better treatment. (iii) On the same day at about 11.45 P.M., P.W.14-Head constable, Macherla Police Station received hospital intimation-Ex.P21. Immediately, P.W.14 proceeded to the hospital and recorded a statement-Ex.P22 from the injured. He returned to the police station and registered a case in Crime No.135 of 2015 under Section 498-A IPC. He issued copies of FIR to all the concerned. Ex.P23 is the FIR. (iv) At about 4.15 A.M. on 29.03.2015, P.W.16-the learned Judicial Magistrate of First Class, Special Mobile Court, Guntur, received intimation-Ex.P29 from the hospital. Having received the said intimation, P.W.16 went to the hospital and recorded Ex.P30-statement from the injured between 4.30 A.M. and 4.50 A.M. (v) On 29.03.2015 at about 8.00 A.M. P.W.14 visited the scene of offence and prepared an observation report-Ex.P24 in the presence of P.Ws.5 and 7. He also prepared a rough sketch-Ex.P25 at the scene of offence. He seized M.Os.1 to 4 at the scene of offence under Ex.P14-panchanama. On 29.03.2015 P.W.14 once again visited Government Hospital, Macherla and recorded another statement from the injured. Of course, the said statement was not marked. While undergoing treatment, the injured succumbed to injuries on 10.04.2015. Having received the death intimation-Ex.P26, P.W.14 altered the section of law from Section 498-A IPC to Section 306 IPC. Altered memo is marked as Ex.P27. On 11.04.2015, P.W.14 visited mortuary of the Government General Hospital, Guntur and held inquest over the dead body in the presence of PWs.7, 8 and 12. Inquest report is marked as Ex.P19. At the time of inquest, he recorded statements of P.Ws.1 to 4. He sent the dead body for post-mortem examination. 5 Crl.A.No.2561 of 2018 (vi) P.W.13-Assistant Professor, Department of Forensic Medicine, Guntur Medical College conducted autopsy over the dead body. He opined the cause of death was due to complications of the burns. He issued Ex.P20-post-mortem certificate. (vii) On 17.04.2015 P.W.14 apprehended the accused who was remanded the judicial custody. On 18.04.2015, further investigation was taken over by P.W.15-Sub Inspector of police, Macherla Urban Police Station. On 19.04.2015, P.W.15 recorded statements of P.Ws.9 to 11 and 14. On 01.05.2015 he received dying declaration-Ex.P30 recorded by P.W.16. Having received the said dying declaration, he altered the Section of law from Section 306 to Section 302 IPC. Altered memo is marked as Ex.P28. (viii) On 02.05.2015 P.W.17-Inspector of police, Macherla Town Police Station took up investigation. He visited the scene of offence and recorded statements of P.Ws.1 to 7. He also recorded statements of P.Ws.9 to 11. After receiving all the documents and after completion of investigation, P.W.17 filed charge sheet. 6. In support of its case, prosecution examined P.Ws.1 to 17, marked Exs.P1 to P30 and exhibited M.Os.1 to 4. 7. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating evidence appearing against him. 8. Accepting the two dying declarations-Exs.P22 and P30, the learned Additional Sessions Judge convicted the accused as aforesaid. 9. Heard Sri Challa Srinivasa Reddy, learned counsel for the appellant and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State. 6 Crl.A.No.2561 of 2018 10. We have carefully perused the entire evidence on record. 11. P.Ws.1 and 2 are none other than the father and mother of the deceased respectively. P.Ws.3 and 4 are the brothers of the deceased. P.Ws.10 and 11 are sons of the deceased, P.Ws.5 to 9 are the relatives of the deceased. All these material witnesses i.e., P.Ws.1 to 11 did not support the prosecution and they were declared as hostile. As such, absolutely there is no evidence on record except the two dying declarations-Exs.P22 and P30. 12. As seen from the above material, all the material witnesses i.e., P.Ws.1 to 11 did not support the prosecution and they were declared as hostile. Now the only material available on record is the two dying declarations-Exs.P22 and P30 recorded by P.W.14 and P.W.16. 13. We have carefully scrutinized both the dying declarations. In the first dying declaration recorded by P.W.14, the deceased stated that the accused used to harass her both physically and mentally by suspecting her fidelity. She further stated that on 28.03.2015 at about 9.00 P.M., the accused picked up a quarrel with her alleging that she was having illicit intimacy with others and thereafter beat her with a belt and also with a stick. Unable to bear the harassment and torture, she poured kerosene on herself and set fire to herself. She further stated that the accused was the main cause for her attempting to commit suicide. According to her, on hearing her cries, the neighbours came there and shifted her to the Government Hospital, Macherla. The said dying declaration was recorded by P.W.14 at about 11.50 P.M. 14. In the early hours of 29.03.2015 at about 4.15 A.M., P.W.16-the learned Judicial Magistrate of First Class, Special Mobile Court, Guntur, recorded another dying declaration from the deceased, which is 7 Crl.A.No.2561 of 2018 marked as Ex.P30. The said dying declaration was recorded between 4.15 A.M. and 4.30 A.M. In the said statement, the deceased stated that the accused used to beat her every day after coming home in an inebriated condition and also used to suspect her fidelity. She further stated that her in-laws owned a residential house and that she had asked the accused to sell the said house and deposit the sale proceeds in a fixed deposit in the names of their children, which led to disputes between them. While so, at about 9.00 P.M., the accused allegedly poured kerosene on her, set her on fire and left the house. Thereafter, the in-laws of the deceased, along with her brother and cousin, shifted her to the hospital. 15. This version is reflected in the second dying declaration-Ex.P30 recorded by the Judicial Officer-P.W.16. However, in the first dying declaration-Ex.P22, the deceased did not whisper anything about the proposal to sell the house property and deposit the sale proceeds in the names of the children. There is absolutely no reference to the said aspect in Ex.P22. In Ex.P22, the deceased stated that the accused, suspecting her fidelity, beat her with a belt and a stick and that, unable to bear the torture, she poured kerosene on herself and set herself on fire. However, in the second dying declaration-Ex.P30, the deceased stated that it was the accused who poured kerosene on her, set her on fire and left the house. 16. Having examined both the dying declarations, i.e., Exs.P22 and P30, we have no hesitation in holding that they are inconsistent with each other. In the first dying declaration-Ex.P22, the version of the deceased indicates that it was a case of suicide, as she stated that, unable to bear the harassment meted out by the accused, she poured kerosene on herself and set herself on fire. However, in the second dying declaration-Ex.P30, the deceased stated that it was the accused 8 Crl.A.No.2561 of 2018 who poured kerosene on her and set her ablaze, thereby suggesting a case of homicide. 17. Further, in the first dying declaration, the deceased stated that on an earlier occasion she had intended to commit suicide, but refrained from doing so, for the sake of her children. As already pointed out, except Exs.P22 and P30, there is no other material on record corroborating either of the dying declarations. As already noticed, all the material prosecution witnesses, namely P.Ws.1 to 11, did not support the prosecution and were declared as hostile. 18. In such circumstances, we are unable to place reliance on either of the dying declarations, i.e., Exs.P22 and P30, as both are inconsistent with each other and are mutually destructive in nature. Further, the learned Additional Sessions Judge, at paragraph 41 of the judgment, recorded a finding that the deceased committed suicide. For better appreciation, paragraph 41 of the judgment is extracted hereunder: “41. From a conjoint reading of both the dying declarations, both mental and physical harassment of accused to deceased is in corroboration, it cannot be denied that by mere considering the probability of tutoring and merely because deceased stated in her dying declaration that accused poured kerosene on herself is an improvement and has to be discarded entirely. Accused by his conduct subjected deceased to cruelty so as to drive her to commit suicide.” 19. The learned Additional Sessions Judge, having recorded a finding that it was on account of the conduct of the accused in subjecting the deceased to cruelty she was driven to commit suicide, ought not to have convicted the accused for the offence under Section 302 IPC. 9 Crl.A.No.2561 of 2018 20. So far as the offence under Section 498-A IPC is concerned, the deceased has consistently stated in both the dying declarations that the accused used to subject her to cruelty both physically and mentally. She also stated that the accused beat her with a uniform belt and a stick by suspecting her fidelity. Both the dying declarations-Exs.P22 and P30, are consistent with regard to the harassment meted out by the accused to the deceased. In the first dying declaration, the deceased has also stated that on an earlier occasion she intended to commit suicide, but refrained from doing so for the sake of her children. 21. In such circumstances, the ingredients of the offence under Section 498-A IPC stand established from both the dying declarations. Therefore, the conviction and sentence recorded by the learned Additional Sessions Judge for the offence under Section 498-A IPC requires no interference. However, the conviction and sentence recorded by the learned Additional Sessions Judge for the offence under Section 302 IPC are liable to be set aside. 22. In view of the above facts and circumstances of the case, we are inclined to allow the present appeal in part by setting aside the conviction and sentence recorded against the appellant for the offence under Section 302 IPC. However, the conviction and sentence recorded against the appellant for the offence under Section 498-A IPC is confirmed. 23. In the result, the Criminal Appeal is allowed in part by setting aside the conviction and sentence recorded against the appellant/accused in the judgment, dated 20.06.2018, passed in Sessions Case No.19 of 2016 by the learned X Additional Sessions Judge, Gurazala, for the offence under Section 302 IPC, and the 10 Crl.A.No.2561 of 2018 appellant/accused is acquitted of the said charge. The fine amount, if any, paid by the appellant/accused for the offence under Section 302 IPC shall be refunded to him. However, the conviction and sentence recorded against the appellant/accused for the offence under Section 498-A IPC is hereby confirmed. As the appellant has already served the entire sentence of imprisonment awarded for the said offence and was released on bail by order, dated 01.05.2024, in terms of the order dated 02.11.2016 passed by the Combined High Court 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), he shall surrender before the concerned Magistrate for the purpose of completing the formalities. 24. Before parting with the case, we deem it appropriate to observe that proper attention was not paid by the learned X Additional Sessions Judge, Gurazala, who framed the charges and also conducted the trial. This matter was not properly considered either at the stage of framing of charges or at the time of disposal of the case. A reading of paragraphs 41 and 42 of the trial Court judgment would clearly indicate that the learned Additional Sessions Judge, having recorded a finding that it was a case of suicide, erroneously proceeded to convict the accused for the offence of homicide, which reflects non-application of mind and lack of due care on the part of the learned Additional Sessions Judge. For better appreciation, paragraphs 41 and 42 of the judgment are extracted hereunder: “41. From a conjoint reading of both the dying declarations, both mental and physical harassment of accused to deceased is in corroboration, it cannot be denied that by mere considering the probability of tutoring and merely because deceased stated in her dying declaration that accused poured kerosene on herself is an improvement and has to be discarded entirely. Accused by his conduct 11 Crl.A.No.2561 of 2018 subjected deceased to cruelty so as to drive her to commit suicide. 42. In view of the above discussion prosecution has established guilt of accused beyond all reasonable doubt, evidence on record leads to conclusion of guilt of accused. Hence, it is worthy and fit case to convict accused for the charge under sections 498-A and 302 Indian Penal Code, 1860.” 25. Further, though fine was imposed, the learned Additional Sessions Judge failed to incorporate a default clause in the event of non-payment of the fine amount. Such lapses on the part of an officer in the cadre of a District Judge are not expected. Therefore, we deem it appropriate that the said aspect may be considered on Administrative Side. Accordingly, a copy of this judgment is marked to the Registrar (Vigilance) for taking appropriate action in accordance with rules. Consequently, miscellaneous petitions, if any, pending shall stand closed. JUSTICE K.SURESH REDDY __________________________________ JUSTICE A.HARI HARANADHA SARMA Dt.11.03.2026 SAB 12 Crl.A.No.2561 of 2018 134 THE HON’BLE SRI JUSTICE K.SURESH REDDY AND THE HONOURABLE SRI JUSTICE A.HARI HARANADHA SARMA Criminal Appeal No.2561 of 2018 (Per Hon’ble Sri Justice K.Suresh Reddy) Date: 11.03.2026 SAB