Iearned counsel for the v. the State of Uttar Pradesh and othersl

Order

The present criminal revision case is filed by the petitioners/ accused Nos.3 to 5 under Sections 397 ar,d 401 of

Cr.P.C. aggrieved by the order dated 27.O1.2022 in Cr1.M.P.No.24 of 2O2l in SC No.317 of 2Ol7 on the file of the learned II Additional District and Sessions Judge FTC at Mahabubnagar.

2. Heard Smt.Kanumuri Kayani, learned counsel for the petitioners, Sri E.Ganesh, learned assistant public prosecutor and Sri P.Vinod Lal, learned counsel for the respondent No.2, who was impleaded in pursuance of orders of this Court dated 16.O3.2022 in IA No.2 of 2022.

3. SC No.317 ol 2O2l is a case registered initially against accused Nos. I and 2 for the offence punishable under Section 306 IPC basing on the crime in FIR No.491 ol 2014 of P.S., Shadnagar lodged on the complaint of one Smt.Gousiya Begum dated

03.11.2014. She complained in the said complaint that there is a civil dispute pending between Rajashekar the deceased herein and one Mallesh over the open land situated in front of house of Rajashekar. She further complained that the foilowers of Zamntd Khan/Al were guarding the said open place by erecting a tent and t engaging gundas. She further complained that on 03.11.2O14 at about 06.30 a.m., she observed smokes from the house of deceased/Rajashekar and said Rajashekar was struggling with burning flames and his wife and sister were lying unconscious and with the help of neighbours, by wrapping him with the blanket could control the flames. She also complained that when the persons in the tent observed the scene, they fled away from the scene. Basing on the said complaint, the police laid the charge sheet against the accused Nos.1 and 2.

4. Subsequent to the incident on the same day i.e. on 03-11.2014 dying declaration of the deceased was recorded by the learned IX Additional Chief Metropolitan Magistrate, Hyderabad.

5. During the year 2027 \.e. after lapse of approximately 7 years, and that too during the course of trial, the prosecution flled Crt.M.P.No.24 of 2O2l in SC No.317 of 2Ol7 on the file of the learned II Additional Sessions Judge at Mahabubnagar under Section 319 of Cr.P.C., requesting the Court to add the names of Mahipal Reddy, Mallesh and Anil Kumar as accused Nos.3 to 5 in addition to accused Nos.1 and 2 stating that the evidence of PWs.3, 4 and 5 and also the contents of dying declaration of the deceased revealed the involvement and participation of the above persons in the incident. The accused Nos.l and 2, by frling a counter, h-ave I denied the said application mainly contending that none of the prosecution witnesses have deposed about the involvement of the proposed accused in the incident and that PWs.3 to 5 did not depose against them and they did not give their identicai particulars and that their evidence stating that af about 10 days or one week or 4 days prior to the incident Mahipal Reddy, Anil Kumar ald Mallesh have visited the open land ald claimed the same cannot be a ground to array the petitioners as accused and the same cannot be treated as involvement of the accused in the incident. The accused also opposed the said application stating that there was a civil dispute existing between the deceased and the owners of open land and the owner of the said land raised a compound wall around the same.

6. The trial holding that the deceased has given the details of the proposed accused in his dying declaration and the statements of LWs. 1 to 7 recorded by the police under Section 16 1 Cr.P.C., clearly revealed their names and particulars and that there were disputes between the parties and several cases are pending in that regard and that the Court should render justice by punishing the real culprit though the investigating agency failed to array the real culprits in the charge-sheet allowed the said petition ordering to add the petitioners as accused Nos.3 to 5 in the said case.

7. Aggrieved by the said findings the petitioners filed the present criminal revision case mainly contending that the trial Court failed to appreciate the facts and circumstances as well as the law laid down in adding the petitioners as accused, none of the witnesses examined have deposed with regard to involvement or participation of the petitioners in the incident, even the dying declaration is also silent with regard to the identity of the petitioners and the way in which they have harassed the deceased'

8. It is also contended by learned counsel for the petitioners that the trial Court had wrongly interpreted the evidence of PWs.3 to 5 and acted in a prejudicial and biassed manner in coming to the wrong conclusion basing on the material which either the prosecution or the defence have adduced or relied upon. Without giving the particulars of the persons, who are to be added as accused under Section 319 of Cr.P.C', hling a petition by the prosecution in a casual manner clearly shows that the prosecution is not aware of the particulars of the petitioners' Without giving an opportunit5r of hearing or issuing notices to the petitioners, the trial Court had erroneously passed the impugned order. FIR No.565 oI 2014 was registered for the offences under Sections 447, 427, 5O6 read with Section 34 IPC was registered against accused Nos. 1, 2 and others but not against the petitione,rs \\ / I Page 5 ol l6 and that the said case was also ended in acquittal vide judgment dated 08.12.202 1 in CC No.620 ot 2016 on the file of the learned Judicial First Class Magistrate, Shadnagar. Stating thus, the petitioners sought to set aside the impugned order.

9. In support of their submissions Iearned counsel for the petitioners relied upon the decision rendered in Shankar Vs. the State of Uttar Pradesh and othersl.

10. Counter is hled by the learned counsel for the 2"d respondent. The learned assistant public prosecutor and the learned counsel for the respondent No.2 have vehemt:ntly opposed the present criminal revision case mainly contending that the Court has ample power under Section 319 Cr.P.C., to proceed against the persons who are appearing to be guilty and that the order of triai Court is a well considered order and the same cannot be interfered with. Learned counsel for the respondent No.2 relied upon the decisions rendered in Mrs.Manasa alias Jwala Vs. State of Telangana, rep. by public prosecutor, High Court of Telaugana, Hyderabad through P.S., Bhuvangiri and another2, Anju Chaudhary Vs. State of Uttar pradesh and another3, I Criminal Appcal No.2367 of2024 '2021(2) ALT (Ctl. ) 2q7 (TS) t 12013;6 Sup.",ne Courr Cases 384 -t. ,:,iii.: Hardeep Singh Vs. State of Punjab aud others4 and Mahenderkar Amarnath Vs. State of Telangaaa, rep. by its Principal Secretary, Home Department, Hyderabad and otherss wherein it was held that dying declaration is a crucial piece of evidence and that audi alteram partem i.e. the opportunity of hearing is not available to a suspect at the stage prior to registration of FIR or passing of a direction under Section 156(3) Cr.P.C. 1 1 . This Court pcrused the entire material on record and heard the respective submissions. The main crux of the prosecution in seeking addition of proposed accused is that evidence of PWs.3, 4 and 5 revealed the complicity of the petitioners in commission of offence and hence, this Court perused the said evidence. Evidence of PW3/sister of deceased shows that 15 days prior to the incident accused Nos.l and 2 along with Mallesh, Mahipal Reddy and Khaja Pasha came to the land stating that father of deceased sold the said land to one Ibrahim and hence, they need to vacate the premises. It is also the evidence of PW3 that their father sold some part of the land to said Ibrahim and they remained \.ith 10 Gnts., of land. She also deposed that I t o.Qllql3 ' 2021 (2) ALT (Crt.) 260 (TS) Supreme Court Cases 92 accused Nos. 1 and 2 demolished the bath room with the help of JCB and levelled the land and raised a wall in front of the house of the deieased and obstructed their way. Around 10O people were staying in the said place by erecting a tent and when PW3 and others tried to discuss with the accused, they thriatened them'

12. PW3 also deposed that due to such threat the deceased left his house and was residing elsewhere leaving his wife and children in their house. She further deposed that she came to know about the incident through neighbours and immediately rushed to the spot and observed the deceased in flames, she fell unconscious for some time and subsequently regained consciousness and on enquiry PW3 came to know that accused Nos.l, 2 and two other persons poured petrol on the deceased and set him ablaze.

13. PW4 is sister-in-law of PW3 and deceased. Her evidence is nothing but replica of evidence of PW3. PW5 is the wife of deceased and she too deposed in the same lines as deposed by PWs.3 and 4.

14. Conjoint reading of evidence of PWs.3 to 5 shows that they have not seen how the flames were raised and who poured the petrol over the deceased and who lit the fire. They all in one voice stated that they came to know on enquiry that when the deceased 1 I Page 8 of l6 questioned accused Nos. 1 and 2 with regard to construction of wall in the disputed land, they poured petrol on him and set him on fire. When the said evidence is meticulously scrutinized no iota of evidence is there to raise fingers towards the petitioners to implicate them in the incident or to make them as accused in the said case.

15. Perusal of cause title of the petition hled in Crl.MP No.24 of 2O2l shows that the particulars of the petitioners/ proposed accused have not been fully given and in a casual manner their names were mentioned which itself gives scope to raise a suspicion that the prosecution is not aware of the particulars of the petitioncrs, who are to be added as accused.

76. Further, it is true that the petitioners were not called for or given an opportuniry before arraying them as an accused. It is settled proposition of law that an accused since inception is not necessariiy heard before he is added as an accused but in case of a person who is added as an accused under Section 319 of Cr'P'C' has to be necessarily heard before being added. The said proposition of Iaw is very much fortihed by the decision of Hon'ble Supreme Court in Jogendra Yadav and others Vs. State of Bihar / Pape 9 of l6 and another6 for sake of brevity and understanding the relevant portion of the said decision is extracted hereunder "9. It utas, hotueuer, urged bg leamed coun-sel for the appellants that in order to auail of tLte remedies of discharge under Section 227 of the Cr.P.C., the onlg qualification necessory is that the person should be acansed. Learned counsel submitted that there is no difference betueen an ocatsed since inception and acansed u.tho has been added as such under Section 319 of the Cr.P.C. It is, houeuer, not possible to accept this submission since tlrcre is a materiol difference betueen the tu,to. An occused since inception is not necessaily Lrcard before he is added as an ocalsed. Houeuer, a. person u.tho is added as an accused under Section 319 of the Cr.P.C., is necessoilg heard before betng so added." 1,7. So far as the dying declaration is concenred, the deceased stated that the persons who were in the tent brought a can of petrol and poured on him and set fire even though he resisted the said act and subsequently the neighbours resc:ued him by extinguishing the fire and that Khaja Pasha, Zamrud Khan, Mahipal Reddy, Saidapuram Mallesh and Anil Kumar are back and behind the said Act. lt is not the content of the sa id dying declaration that the petitioners were present at the time of incident or they poured the petrol on the deceased or the1, bu rnt him. There is no direct accusation against the petitioners herein alleging o 12015; 9 Sup,eme Court cases 244 i I I 1 Page l0 ol'16 that they poured petrol on him or encouraged the others to do such act

18. A dying declaration carries significant weight in legal proceedings and can serve as the sole basis for a conviction without the need for additional corroborating evidence. It is considered a piece of evidence and can be relied upon if found to be genuine ald reliable. However, the Court must be satisfied that the dying declaration instils complete conhdence in its accuracy. The Court must ensure that the statement of the deceased was not influenced, coached, or a result of imagination. It must also ascertain that the deceased was of sound mind and had a clear i i I opportunity to observe and identify the assailants. Once the court is convinced that the statement is truthful and voluntary, it can base a conviction solely on the dying declaration without requiring further corroboration. If there are doubts about the decision, inconsistencies, substantial incompleteness, proof of falsehood, or signs of coercion influencing the statement, its reliability may be questioned. The evidentiary value of a dying declaration can be called into question when suspicious circumstances cast doubt on its genuineness. If the prosecution's case relies solely on a dying declaration that is surrounded by such suspicious circumstances, it may not be sufhciint to sustain a conviction i i Page 1l of 16

19. When the dying declaration, which is the cruciai basis of the prosecution, is tested on the touchstone of the evidence adduced by the prosecution and the statements of witnesses recorded by the police during the course of investigation, it gives grave suspicion to believe the dying declaration given by the deceased as no witness has deposed against the petitioners about their involvement in the incident. Further, the u.itnesses are changing their version from time to time making their testimony doubtful. It is also pertinent to note that the recitals of dying declaration are also not directly pointing out the petitioners stating that they abated the deceased to commit suicide or they poured petrol on the deceased or lit the hre. For the sake of convenience and easy understanding relevant portion of the dying decl:rration of the deceased is extracted hereunder : "...6:da:. 66c$o bdo doero$o aods SrX;a'Jo. Jo"n" aO'ood aO6o SDodD s"ar qyx:' 5r"?oo.6o. ?.roeS dx)oSe 56Joo6 6o"16>. aSC$6 Cl"S caSfCJJ6St Jr)t ao"ldo "!aira""S BQgl6o5s"6o. d.{o s"Ctl d5.5 6"6 .5rXpo"lJo scdo JDoA $6e{> ?cod ,$DoA 5rX1o.t1> e5tJcyd5 e,5 6z11 5eDSoS 5'31o6t5c. ir6Joo6 J,{or d'o65 dtuot$ -oe5d5 do" 3dtu5 aoc$6r 6a c5a o.5>a ePoo6ct. =oeSdo o"X>.15 5o;o6. =o6dd 55 CF$ eodor)o56 d.{D 56o"f 56o"f ce$ cr.Srp D.t6d6o 2"560 $g 6?o esoc3or)odo -"r{ $odrel 5r);o.or Bod;d aE3o5a{> 5r ar"eey s"cbl Stll a:Qer d$ er63o.6 aB ooe Qpar *-5 aso"i ryS sr:r+O a6 -3o.xu6o SDde dor:o'xo"6 s"f s.65oe>." -l Page l2 of 16 t The said dying declaration did not attribute the overt acts to the petitioners and hence, the same cannot enroot the Court to add the petitioners as accused. The deceased did not say that the petitioners were the participants in the said incident.

20. Section 319 of Cr.P.C., gives ample power to the Court to try the persons, though they were not made an accused by the prosecution, basing on the evidence let-in during the course of trial leading to suspicion with regard to their compliciry in commission of offence but necessarily it mandates a notice to the proposed accused as stated in the decision cited supra (Jogendra Yadav case). It is pertinent to mention herein that u'hen the dying declaration was recorded in the year 2014 t-.e. prior to laying charge-sheet, what prevented the prosecution from arraying the petitioners as accused initially is not known. If they found anything incriminating during their investigation against the petitioners, they definitely would have arrayed them as accused.

21. As seen from the record, the dying declaration was recorded on O3.01.2O14, the charge-sheet was laid during the year 2016, evidence of PWs.3 to 5 was closed on 16.04.2019,

23.04.2079 and 29.04.2019 respectively, Crl.M.P.No.24 of 2027 was filed on O1.1 l.2O2l arrd the order of the Court in the said application was passe{,on 27.O7.2O22. When the above dates are, Page 13 of l6 keenly observed, it is not known as to why they have initiating steps against the petitioners after lapse of such long years to array the petitioners as accused. The police have not charge-sheeted the petitioners as accused and subsequently, by way of the application in Crl.MP No.24 of 2O2I they are making efforts try one way or the other to array the petitioners as accused without there being alry incriminating found against them.

22. PW1 firstly stated that she does not know who poured the petrol on the deceased and who lit fire. In her statement under Section 161 Cr.P.C. PW1 stated that the deceased might have poured petrol on his body due to mental depression on the ground that his place was occupied illegally. In her subsequent statement under Section 161 Cr.P.C., PWl stated that she came to know that the petitioners herein viz.Gouni Mahepal Reddy, Dadapuram Mallesh and Vanamala Anil Kumar did not harass the deceased.

23. PW2/brother of deceased in his 161 Cr.P.C. Statement deposed that PW2 and deceased filed a suit in Shadnagar Court for injunction order and expected an injunction but the lawyer informed that the order may not be granted within short time and hence, his brother might herve mentally depressed. He subsequently stated that due to the harassment of accused Nos. 1 and 2 the deceased committed suicide. He too stated thaL he came _T 'a '4, :.li: to know that the petitioners did not harass his deceased brother. PW5/wife of deceased in her 161 Cr.P.C. statement deposed that her husband might have himself poured petrol but ablaze to threaten the occupiers of his land. She too stated in her statement that the petitioners are not back behind the incident. PW3/ sister of deceased in her statement under Section 161 Cr.P.C. too deposed that their deceased brother might have ablaze himself due to mental depression. She too stated that the petitioners are not back behind this incident. PW4 too in her 161 Cr.P.C. Statement deposed that. the deceased became mentally depressed as his land was illegally occupied. She too deposed that the petitioners are not back behind the incident.

24. When they were examined before the trial Court, though they slightly developed or changed their version, they did not speak anything against the petitioners alleging their involvement in the commission of offence. The police in spite of knowing these facts, are making efforts to add the petitioners as accused for the reasons best known to them.

25. When the evidence of PWs.3 to 5 is scrutinized in the light of the contention of the prosecution that during their evidence incriminating material is found to suspect the involvement of the petitioners in the offence, this Court finds nothing incriminating in _ Page l5 of 16 their evidence against the petitioners to add them as accused in the present case. No witness has deposed against them. Further, the dying declaration also does not compel the Court to add the petitioners as accused since it is not the recital of the said dying declaration that the pelitioners poured petrol on the deceased or encouraged any one or the deceased to pour petrol on him.

26. Further, the trial Court had passed the impugned orders without giving opportunity of the petitioners being heard in violation of the principle of audi alteram partem and the settled proposil ion of law.

27. When the above factual matrix are scrutinized, it can be safely heid that the edifice of the prosecution case against the petitioners that the evidence of PWs.3 to 5 corroborating the contents of dying declaration established the involvement of the petitioners in the incident became week as the testimony of the prosecution witnesses has proved nothing against the petitioners and it has changed from time to time. Further, the prosecution has not given the identical particulars of the petitioners. In that view of the matter, this Court is of the considered view that the trial Court had erroneously passed the orders warranting interference of this Court under the revisional jurisdiction. Accordingly, the present criminal revision case deserves to be allowed. Page 16 of l6

28. In the result, the present criminal revision case is allowed setting aside the order dated 27.O1.2022 in Cr1.M.P.No.24 of 2O2l in SC No.317 of 2Ol7 on the hle of the learned II Additional District and Sessions Judge FTC at Mahabubnagar.

29. As a sequel, miscellaneous petitions, if any, pending, shall stand closed. SDI I NAGALAKSHMI JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, records, if anY) Hyderabad. [OUT]

1. The ll Additional District and Session Judge (FTC)' $/ahabubnaga(With 2. Two CCs to the Public Prosecutor' High Court for the State of Telangana at g. O'n" CC to dmt. (anumuri Kalyani' Advocate{OPUCI ; o;; cc to sti P. Vinod Lal, Advocate [oPUC] 5. Two CD CoPies w kam '' HIGH COURT DATED:2510212025 I t il: r-: F TS .9 .\ \e ,.1 \\ / ORDER CRLRC.N0.132 of 2022 ALLOWING THE CRIMINAL REVISION CASE s-d"L f'g'"