Telangana High Court

The State Of A.P. Rep., By Its Pp vs Dyagarla Anjaneyulu on 5 September, 2024

           HON'BLE SRI JUSTICE K.SURENDER
                           And
         HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI

             CRIMINAL APPEAL No.562 OF 2015
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The State is aggrieved by the judgment of acquittal of the

respondent/accused for the offence under Section 302 IPC vide

judgment in S.C.No.618 of 2011 dated 30.07.2012 passed by the

II Additional Sessions Judge, Karimnagar at Jagtial.

2. Briefly, the case of the prosecution is that the accused was

married to the deceased seven years prior to the incident. P.Ws.1

and 2 are the parents of the deceased. They performed the

marriage of the deceased with the accused and at the time of the

marriage, dowry was given along with household articles. Son

was born and thereafter, the accused went to Dubai for 3 ½

years. He returned from Dubai prior to the incident and started

harassing the deceased to get Rs.50,000/- cash and also motor

cycle. The accused was also having relationship with other

woman.

3. The incident happened on 10.07.2011 when there was a

quarrel in between the accused and the deceased around 10.00

p.m. On the following day, around 1.00 A.M, the accused

allegedly took the deceased to the open place and set her on fire

after pouring kerosene on to her. Hearing her shouting, P.Ws.3 to

5 took the deceased to the hospital. The duty Doctor/P.W.8

admitted the deceased into hospital and requisition was given for

recording dying declaration. The said requisition under Ex.P15

was received by the learned Magistrate/P.W.20. He recorded

dying declaration at 5.30 a.m on the same day. P.W.8, Duty

Doctor certified the dying declaration regarding mental fitness of

the deceased to give the statement.

4. The deceased in her dying declaration stated that on

10.07.2011 around 10.00 clock, the accused poured kerosene on

her and lit her on fire. The accused went to Gulf countries four

years prior to the incident and came back only three days prior.

The husband/accused suspected that the deceased was having

illicit relationship with others. The accused demanded

Rs.50,000/- from the parents of the deceased, failing he

threatened that he would kill her. The accused poured kerosene

on to her and lit on her fire. Hearing her shout for help, the

neighbors went there and took her to the hospital.

5. Learned Magistrate/P.W.12 found that the deceased

suffered 100% burn injuries and the same was endorsed by the

duty Doctor/P.W.8 that the deceased received 100% burn

injuries.

6. On the basis of the dying declaration and the statements of

other witnesses, charge sheet was filed for the offence under

Section 302 IPC.

7. Learned Sessions Judge examined witnesses, who are the

parents/P.Ws.1 and 2, neighbors P.Ws.3 to 5, who took the

deceased to the hospital and other witnesses including Doctor

and other independent witnesses to the investigation

proceedings. Exs.P1 to P21 were also marked during the course

of trial.

8. Learned Sessions Judge concluded that:

i) Rule 33 Sub-Rule 2 of Criminal Rules of Practice

prescribes that the Magistrate before starting the declaration has

to disclose his/her identity and ask the declarant whether she

was mentally capable of making of declaration, but the same was

not done.

ii) Rule 33 Sub-Rule 4 of Criminal Rules of Practice

mandates that the contents should be read over after recording

statement but the same was not done and there is no

endorsement that the contents were read over and admitted by

the deceased to be correct.

iii) Though there is an allegation that there was demand for

Rs.50,000/-, in the complaint however, for the entire period of 3

½ years, there is no allegation of any kind of harassment.

iv) The allegation that the accused harassed her on the

ground that she was having illicit relationship was very vague.

v) In Exs.P7, scene of offence panchanama and P21 sketch,

the scene of offence varies in as much as scene was shown as the

place behind old house in scene of offence panchanama whereas

the deceased was staying in the northern side of the portion of

the house.

vi) According to witness P.W.5, when she was laid on the cot

after extinguishing flames, the deceased informed that her gold

ornaments were put in a box inside the house, which reveals that

she has removed all her ornaments including pusthela tadu

(sacred thread) in a separate box, which further indicates that

she committed suicide.

vii) The deceased suffered 100% burn injuries, as such, the

statement given becomes doubtful.

viii) The version in the dying declaration runs contrary to

the statement of other witnesses and the dying declaration is not

found to be trustworthy.

ix) P.Ws.3 to 6 have stated that the accused was present

and also accompanied the deceased to the hospital and the

accused informed that the deceased poured kerosene onto herself

and committed suicide.

9. Learned Additional Public Prosecutor appearing on behalf of

the State would submit that the version given in the dying

declaration was not believed. There are no reasons given not to

believe the said version. Further, there is no reason why the

deceased would speak false against her husband, who had

returned from the Gulf only three days prior to the incident. Once

the dying declaration is relied on, the same can be made basis to

record conviction.

10. Learned counsel appearing for the

respondent/accused relied on the judgment of this Court in the

case of Bhasker v. State of Andhra Pradesh (2004 LawSuit (AP)

456) and also in the case of Pathan Shafi v. The State of A.P

(Criminal Appeal No.970 of 2010, dated 11.04.2016) and argued

that when the procedure prescribed under the Rules of Practice

to record dying declaration is not followed, the same cannot be

relied. Further, the witness giving statement when there was

100% burns, casts any amount of doubt on the prosecution

version being correct.

11. In Ravi Sharma v. State (Government of NCT of Delhi)

and another1, the Hon'ble Supreme Court held that while dealing

with an appeal against acquittal, the appellate court has to

consider whether the trial Court's view can be termed as a

possible one, particularly when evidence on record has been

analysed. The reason is that an order of acquittal adds up to the

presumption of innocence in favour of the accused. Thus, the

appellate court has to be relatively slow in reversing the order of

the trial court rendering acquittal.

(2022) 8 Supreme Court Cases 536

12. In Ghurey Lal v. State of Uttar Pradesh 2 the Hon'ble

Supreme Court after referring to several Judgments regarding the

settled principles of law and the powers of appellate Court in

reversing the order of acquittal, held at para 70, as follows:

"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong:

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration o the findings of the trial court. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."

(2008) 10 Supreme Court Cases 450

13. The finding of the learned Sessions Judge regarding not

following the procedure prescribed under the Criminal Rules of

Practice cannot be found fault with it. Under similar

circumstances, this Court in Bhasker's case (supra) held that

not following the Rules framed under Criminal Rules of Practice,

would cause prejudice to the accused.

14. The deceased received 100% burn injuries. In the said

circumstances, medication would be given and the deceased

making the statement having received 100% burn injuries creates

doubt about the correctness of the statement made.

15. There are no compelling reasons to interfere with the well