The High Court · 2025

Petition under Section 389 (1) of Cr.P.C. praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner /appellant on bail in CrlA.No.273 of 2O19 pending disposal of the same. lA NO: 1 OF 2025 Petition under Section 430 (1) BNSS Act praying that in the circuinstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence passed against the Petitioner/Accused in Sessions Case No. 351 of 2016 on the file of the 1't Additional Sessions Judge, Warangal, Warangal, dated .05-02-2019 and release the Petitioner/Accused on bail in Criminal Appeal No.273 of 2019 pending before this Hon'ble Court. Counsel for the Appellant: Smt. C. Vasundhara Reddy Counsel for the Respondent: Sri M. Vivekananda Reddy, Assistant Public Prosecutor The Court delivered the following: JUDGMENT THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.273 of 2Ol9 JUDGMENT: (Per Hon'ble Sri Justice K.Surender) This Criminal Appeai is filed by the appeliant/accused aggrieved by the judgment dated 05.02.2019 in S.C. No.351 of 2016, on the file of the I Additional Sessions Judge, Warangal, for the offence punishable under Section 302 of IPC.

2. Heard learned counsel for the appellant and Sri M.Vivekarrarrda Reddy, learned Assistant Public Prosecutor for respondent - State. Perused the record.

3. Smt.Veeraganti Sharada (hereinafter referred to as 'the deceased) was taken to the MGM Hospita-I, Warangal, with 45o/o burn injuries. Initia-Ily, PW.9 attended to the victim, He gave requisition for recording the dying declaration. The Jurisdictional Magistrate/PW. 16, on the basis of the requisition given, went to MGM Hospital around 4.2O P.M, and recorded the dying declaration of the deceased. In the narration given to the Magistrate, the deceased stated that 2 she was married 16 years prior to the incident. 't'he appellant is addicted to gudumba (country liquor). FoI the past 6 months, they had incurred debts of Rs.2,00,CtOO/- for the construction of their house. On the said day, there was a quarrel betr,r'een the deceased and the appellant. While the deceased was leaving the home, the appe llant poured kerosene on her and set her on fire. The son of the deceased admitted her into the hospital.

4. Thereafter, the Sub-lnspector of Police/ PW. 18, Mills Coiony Police Station, went to the hospital and recorded the statement of the deceased. In the statement made to PW.18, the deceased stated that she was married to t he appellant and they have two sons. The appellant was addicted to alcohol and used to beat her ald abuse her in filthy lalguage. She complained to her family memtrers, who, in turn, warned the appellant. However, there lvas no chalge in the attitude of the appellant. The appellant u sed to incur debts for consuming a-lcohol, and aII these debts were cleared by the deceased. Further, the deceased ;-rarrated that the appellant informed her that she could stay with anyone; 3 however, she had to take care of his needs. On the day of the incident, while the deceased was eating food, the appellant came to the house in a drunken condition, threw the food outside, abused her, poured kerosene on her, and set her on fire. The deceased went outside and poured water on herself. In the meanwhile, PW.4/brother-in-law of the deceased called for the ambulance. The younger son shifted the deceased to the hospital. She further narrated that she received burns on her stomach, chest, back, and left arm.

5. Though statements were made to the Magistrate and also the Sub-Inspector of Police/PW.18, however, a Telugu written complaint was filed by the mother of the deceased, who was examined as PW.1, ald the sarne was handed over to the police on 14.03.2015. The said complaint was registered for the offences under Sections 4984 and 307 of IPC. Thereafter, while undergoing the treatment, the deceased died on 05.05.2015, i.e., 40 days after the incident. The section of law was altered to Section 3O2 of IPC. Having completed the investigation, the charge sheet was hled. 4

6. The learned Sessions Judge found favorwith the dying declarations that were recorded by the Magistrate and the Police and convicted the appellalt, though all the witnesses turned hostile to the prosecution case ard tlid not speak about any harassment meted out by the appell:rnt 7 . Le:rrned counsel appearing for the appellant would submit that once the statements made to the ;rolice and the Magistrate, which are Exs.Pl9 and P.23, ar: looked into, there are any amount of variations, and thr: or-rly logical conclusion is that the deceased has falselr. framed the appellant. In fact, such contradictory versions cannot be taken into consideration. Learned counsel ftrrther argued that though the Court considers that the truth lies on the dying man's iips, however, the contradictions in both the dying declarations would go to show that she rlid not speak the truth. Learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of lrJan Alias Naka as. State of Uttar Pradesht, which held as foilows "52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that: I aIR 2023 sc'+t zg _--,nr-- :.,*rrrt- -*.irtar7F8f,xtrtt'tlrrF.- rirnriFeEiir{kdtKE7;, _rix:;-. 5 "In weighing dying declarations, the jury may consider the circumstalces under which they were made, as, whether they were due to outside influence or werc made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and tJre fact that deceased has not appeared a_nd accused has been deprived of the opportunity to cross- examine him, and may give to them the credit and weight to which they believe, under a_ll the circumstances, t1.ey are fairly and reasonably entitled." 53. In India in the releva_nt provision of Section 32 of the Act 1872, the first exception to the rule against admissibility of hearsay evidence, is as under: "32(1). When it relates to cause of death.- When the statement is made by a person as to the cause of his deattr, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevart whether thc person who made them was or was not, at the tirne when tJ:ey were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." 54. Jon R. Waltz, Americal Jurist observed that, "It has been thought, rightly or wrongly, that Dying Declarations have intrinsic assurances of trustworthiness, making cross examination unnecessary. The notion is that a person who is in the process of dying, and knows it, will be truthful immediately before departing to meet his Maker. (Of course, the validity of this hearsay exceptions is open to some debate. What about the person who is not 6 deep15' religious? What of the person who' as his last act, seeks revenge by falsely naming a life-long enemy as his killer? how reliable is the percepticn and memory of a person who is dying?)" [See: Waltz' J R' (1975) Criminal Evidence, Chicago: Nelson-Hall' pp 75' 7tt\ 6I. In lndia too, a similar Pattem is followed, where the Courts are first required to satisfy themsel'/es that the dying declaration in question is reliatrle and truthlul before placing any reliance upon it Thus' dying declaration while carrying a presuml>tion of being true must be wholly reliable and inspire conhdence Where there is any suspicion cver O-re veracity of the same or the evidence on recorrl shows that the dying cteciaration is not true it wrll onll'be considerecl as a piece of evidence but canno: be the basis lor conviction alone ' 62. There is no hard and fast rule for dett:rmining rvhen a dying declaration should be accepted; the rluty of the Court is to decide this question in the fects and surrounding circumstances of the case and be iully r:onvinced of the truthfulness of the same Ce'I taln factors below reproduced can be considered to determine the same, however, they will only zLffect the weight of thc dyt"g declaration and not its .rdmissibilitY: - (i) Whether the person making the statement wzrs in expectation of death? (ii) Whether the dying declaration was macle at the earliest opportunity? "Rule of First Opportunity'' 7 (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at tJle instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dyrng declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a fiction of the dyrng person's manifestation / imagination of what he thinks transpired? (o) Wtrether, the dyrng declaration was itself voiuntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent wrth the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to mal<e a dying declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substarrtive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant. 8 ,iJ 1

64. It is unsale to record the conviction on the l,asis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regarris the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and materia.l ar ailable on record must be properly weighed in each case to arrive at an appropriate conclusion. The reasc,n why we say so is that in the case on hand, although the appellant-convict has been named in t1'e two dying declarations as a person who set the room on "rre yet the surrounding circumstances render such stil [ement of the dcclarants very doubtful. 65. In Sujit Bisrrcs u. State oJ Assam reported in (2073} 12 SCC 406, this Court, u,hile examir.ring the distinction betrveen "proof beyond reasonable doubt" and "suspicion" ir.r para 13 has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, ald there is a large difl'erence between something that "may be" provecl, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot ard must not be permitted to take place of proof. This is lbr the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conj('ctures from sure conclusions. In a criminal case, thr court has a duty to ensure that mere conjectu:es or suspicion do not take the place of lega-I proof. The large distance between 'may be" true and "must bc" trre, must be covered by way of clear, cogent arrd unimpeachable evidence produced by tJre prosecution, before an accused is condemned as a convict, zrnd the 9 basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vita-l distance between mere conjectures and sure conclusions to be arrived at, on tire touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality ald credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts ald circumstances of a case so demand, then the benef-lt of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probabie doubt, but a fair doubt that is based upon reason and common sense."

8. On the other hand, the learned Assistant Public Prosecutor would submit that the statements made by the deceased disclose the quarrel between the parties, as well as about the appellant pouring kerosene on her arrd causing her death. Only for the reason of there being some extra details that were given in the statement made to the police, that by itself would not make the statement made by the deceased unreliable

9. Having gone through both the statements, commonality is that the appellant was addicted to alcohol and he was l0 harassing the deceased on a daily basis' Furtht:r' on the date of the incident, AS stated bY the deceased' there was a quarrel, and as a consequence' of the said qr-larrel' she was taken to the hospital' Though the Doctor who initially treated the deceased was examined' however' nothing '"r'as suggested to draw any conclusion of there being a suicidt' attempt'

10. Only for the reason of other witnesses turning hostile to the prosecution case' that by itself woulcl not make the statements made by the deceased inadmissibl: or unreliable' 1 1. However, keeping in view that the deatlL occurred after 4O days from the date of the incident' 61d l-he prosecution has not given any details of what happened [o the deceased during thc said penod' whether the deceasecl was treated in the very same hospital or was discharged' the details are lacking. It can be safely inferred that her ceath was not a direct conseqlrence of the 457o burns anrl as the death occurred nearly 40 days after the incident' 1l

12. The Hon'ble Supreme Court, in the case of Bo,no,rsi Ddss u. State o;f Haryanaz, held as follows: " 18. In the case before us, the incident occurred on 18.06.1998 uhereas the death is on O4.O8.1998. Exhibit PM-dging declaration was recorded on 18.06.1998 itself. At the time of recording of the statement, the condltton of the patient no doubt u.tas uery stable and she taas in a uery good state of mind as recorded by the doctor. The bum iniuru uns onlu 4O- 45% o the bod and acco to doctor 40-45o/o bums is not fatal and such a patient can be saued if qiuen proper treatment. It has also come out in euidence that the death ts not caused bu the burns but becouse of se trcemta an tn r manaqement of the uounds It is foirlg clear that the patient on 18.06.1998 uas not apprehending death. not merelg because she liued for more than seuen taeeks ofter the incident but because of the nature of the burn injuries uhich ute houe refered to aboue. No d.oubt, o.s lald doturt by this Court in Najjom Fctraghi @ Ntjjam Fantqui u. State of West Benga[2], merelg becouse a person dted long afier making the dging declaration, the statement does not become ineleuant. It taas a case uhere the incident u-)as on 29.06.1985 and death tua.s on 31.O7.1985 and in that case, there was a certificate Lon on account o bg the doctor u-tho conducted the postmortem that deoth tuas due to ante-mortem bums and. the bums were ertending ouer the uhole bodg. To quote: ' 1zo ta; r s scc +as t2 - "(). There is no ment in the contention Lhat the oppeUont's utfe died long afier making ttu' dging declaration-s and therefore those statements lraue no ualue. '[he contention ouerlooks the express provision in of the Euidence Act The second Parct ciraPh of ction 32 Se sub-section (1) reads as follotus: "Such statements are releuant wlrcthei tht' person uho mode them wos or u)as not' ot the time u-then theg u.tere made, und"er expectation of death' and rohateuer mog be the nature of the proceeding in which llrc cause of his death comes into question'" No doubt it has been pointed out thot uthen a person is expecting his death to take ptoce sl rcrtlg he utoukT not be indulging in fotsehood' But thot rloes not mean. that such a statement loses its uolue iJ tlu:- person liues for o longer time than expected The question hos the fa:ts and to be considered in each case on circumstances established tl-terein lf there is nathing on recorrl to shou that the statement could not l'Lttue been true or if the other euid"ence on [pic]record corroborotes the contents of the stdtements' the court con certainlg occept tLre same and' oct upon it' " " (Dmphosis supptied) In the instant cose' '\ouLeuer' Exhibit'PM dying declaration d'oes not either :;hott' the cause of death or the ciratm'stances of the trrtnsaction ulhich resulted in the death of the declaronl Chander Kalan. The burns uLere not fatol either''

13. In both the dying declarations' it was r;learly narrated quarrel between the aPpellant a]1d that there was a i i r! I J 13 deceased. The alleged incident of burns occurred after the appellant consumed a,lcohol which led to a quarrel between the spouses. In the said circumstances, we deem it appropriate to convert the conviction from Section 3O2 of IPC to Section 304 Part-II of IPC and the accused is sentenced to undergo rigorous imprisonment of seven (7) years.

74. Accordingly, the Criminal Appeal is partly allowed, converting the Section 302 of IPC to Section 304 Part-II of IPCT and the appellant/accused is sentenced to undergo rigorous imprisonment for a period of seven (7) years. Miscellaleous Petitions, pending if any, shall stand closed. //TRUE COPY// Sd/- I. NAGA LAKSHMI JOINT REGISTRAR SECTION OFFICER To, '1 . The I Additional Sessions Judge, Warangal. (with 2. The tll Additional Judicial First Class Magistrate Court, at Warangal 3. The Sup erintendent, Central Prison, Cherlapally, Medchal Malkajgiri District 4. The Station House Officer, Mills Colony Police Station, Warangal &rSEx'. 5. Two CCs to the Public Prosecutor, High Court for the State of Telangana at cords, if any) Hyderabad [OUT] Kam/gh

6. One CC to Smt. C. Vasundhara Reddy, Advocate [OPUC] 7. Two CD CoPies M HIGH COURT DATED:2910412025 JUDGMENT CRLA.No.273 ot 2019 illE Sl -e o o o lgrutl PARTY ALLOWING THE CRIMINAL APPEAL t7' t