Hyderabad High Court · 2025

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE J. ANIL KUMAR CRIMINAL APPEAL No.259 OF 2Ol7 JUPGMENTi (per Hon'ble Si Jitstice K.surender)

1. The present appeal is filed by the appellants/ accused aggrieved by the judgment dated 31.01.2017 inS.C.No.215 of 2012, oa the file of XII Additional Sessions Judge, Vikarabad.

2. Heard learned counsel for the appellants / accu sed and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for State.

3. The deceased is the wife of A-1. A-2 is mother'-in-law, A-3 is brother of A-1, and A-4 is wife of A-3.

4. The cas;e of the prosecution id. that marriage of A-1 ald the deceasecl was performed on l2.l2.2olo in accordance with Muslim customs. They had a female child, however, the appellants were harassing the deceased stating that she had given birth tc a female child and she was not good looking. Constaltly, the appellants were harassing her t,t bring additional dowry. Panchayat was held regarding clisputes and accused assured panchayat elders that they would take care of the cleceased. However, on 29.01.2012, A-l to A-4 i i I I l I 4 poured kerosene on the deceased and set her on fire. The neigbours shifted the deceased to Vikarabad Government Hospital initially and from there to Gandhi Medical Hospital, Hyderabad. The parents -of the deceased P.W.I and P.W.2 again shifted the deceased to Indus Hospital at Kothapet for better treatment. However, while undergoing treatment, the deceased died on lO.O2.2Ol2 at 1:45 a.m.

5. After the deceased was shifted to Gandhi Hospital, on the basis of information given by the Gandhi Hospital authorities, the Circle Inspector instructed Constable/P.W. 12 .to go to the hospital. There, P.W.12 recorded the statement of the deceased at 4 p.m. on 3I.O7.2O12. Prior to that, requisition was given vide Ex.P. 11 on 30.01.2012 to the Magistrate. In the requisition thdt was given by P.W. 12, it was endorsed by the Doctor on 30.01.2012 at 7:3O p.m. that patient is incoherent and unfit to give dying declaration. On the advice of the Doctor, P.W.l2 met the Doctor again on 3l.Ol.2ot2 ald the Doctor verihed the condition of the deceased and certified that patient is conscious, coherent and is in a fit state of mind. Accordingly, requisition was handed over at 11:40 p.m. on 31.01.2012 to the Magistrate. 5 Learned Magistrate/P.W. 12 went and recorded the sl.atement of the deceased at 12:3O p.m.

6. In the statement given to the Magistrate, the cleceased stated that for the past I days, the family membr:rs were quarreling with her. A-4/ sister-in -law, A-2lmother-in-law and A-3/brother-in-law were all staying together along with A-1 and dec,eased. They were saying that the deceased was not good looking and asked her to get additional 4eq,ry. Her gold was sold. On the day of incident, i.e., on 29.O1.2O12 at 8 p.m., A-4 poured kerosen6 on her. A-2 /mother-in-law and A- 1/husband caught hold of her and A-4 lit fire with a match stick. The deceased shouted for help. The accused asked the deceased to inform everyone that she herself poured kerosene onto herself and set fire. The same was recorded on cell phone. Further, the deceased stated that accused threatened her to state that while she was near the stove, she received burns. Accordingly, she stated so. However, the truth was that A-4/sister-in-law, A-2/rnother-in-1aw, A-1/husband have poured kerosene on her and lit her on frre.

7. To the question posed by the Magistrate as to who rescued her, she informed that neighbours came and 6 husband informed them that she burnt herself. Then the parents were called on Phone and informed about the incident.

8. , After completion of recording the dying declaration by the Magistrate/P.W. 13, P.W.12/Head Constable also recorded the statement around 8 p.m. on the same day. In the said statement to P.W. 12, deceased narrated that the appellants were constantly quarreling with her and on

29.O1.2012 at 8 p.m., the appellants poured kerosene on her and lit her on fire. Since she received burns, the appellants themselves have taken her to the hospital and admitted her. g. The deceased while undergoing treatment died in the hospital on 1O.O2.2O72. Thereafter, the Police conducted inquest panchnama and body was sent for post mortem examination. The post mortem Doctor, P.W. 14 opined that the cause of death was septicemia consequent to burn injuries.

10. The Investigating Officer concluded investigation. Mainly on the basis of evidence of the parents, neighbours and the statements which were given to the 7 Magistrate/P.W. 14 and Constable/P.W. 12, charge sheet was laid under Sections 498-A and 302 of IPC. 1 1 . During the course of trial, P.W. 1, father of deceased and P.W.9, mother stated that the deceased and the appellants Iived happily together. P.Ws.l and 2 also stated that the deceased received burns while she was boiling milk, Both the witness turned hostile to the prosecution case and cross examined by Public Prosecutor. The witnesses were also cross-examined by the accused. In the said cross- examination, both P.Ws.l and 2 stated that they enquired with the deceased as to what happened and she informed that while she was boiling milk, she accidentally caught fire and sustained injuries. The said fact was also informed to the Police while coming from Vikarabad to Gandhi Hospital. Two or three Police men accompanied P.Ws.l and 2 to Gandhi Hospital, Hyderabad. When enquired, deceased also informed the Police that she caught fire while boiling milk. Both, P.Ws. I and 2 further admitted that relatives tutored their daughter to speak against the appellants. Accordingly, she stated against the appellants to the Magistrate and also to the Police. !l 8

12. The argument of the learned counsel for the appellants is that witnesses who, are the parents have turned hostile to the prosecution case. They supported the version that the deceased caught fire accidentally while boiting milk. Further, the deceased and the appellants lived peacefully and there were no quarrels. P.W.4/independent witriess is neighbor, who also stated that accidental burns were received by the deceased.

13. l,earned counsel further argued that dying declaration given to the Magistrate and also the Constable/P.W. 12 is a r-esult of tutoring. The said tutored version cannot form basis to convict when there is no independent corroboration. The case sheets of either Vikarabad Hospital or Gandhi Hospital were not produced by the prosecrition for which an adverse inference has to be drawn. L4. Counsel relied on judgment of the Hon'ble Supreme Court in ll,fan@ Naka vs. The State of Uttar Pradeshl. The relevant portion reads as under:- "60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the I 2023 Livelaw (SC) 698 9 essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit. 61. In Irrdia too, a similar pattern is.followed,. where, the Courts :rre first required to satis$r themselves that the dying declaration in question is reliable ard t'ruthfu1 , before placing any reliance upon it. 'llhus, dyrng declaratlon while carrSring a presumption of being true must be wholly reliable and inspire confidence. Where there is aly suspicion over the veracity of'the same or the evidr:nce on record shows that the dying deciara.tion is not t.rue it will only be considered as a piece of evidence but cannot be the basis for conviction a1one. 62. There is no hard and fast rule for determining u,hen a dying declaration should be accepted; the duty of the Court is to decide this question in the facts ald surrounrling circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the r,veight ol' the dying declaration ald not its admissibility: - (i) Whet.her the person making the statement wa:s in expectat.ion of death? (ii) Whether the dying declaration was made at the earliest opportunit5r? "Rule of First Opportunit5/ (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 the instance of police or any in terested party? (v) Whether the statement was not recorded propeily?' (vi) Whether, the dying declarant had opportunitlr to clearly obsewe the incident? (vii) Whether, the dying declaration has beerr consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what tre thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? 1 10 (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a d)tng declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefrt of doubt must always go in favour of the accused. It is true that dying declarhtion is a substantive piece of evidence to be relied on provided it , is., proved that the sEune was voluntar5r and truthful and the victim was in a frt 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."

15. On the other hand, learned Additional Public Prosecutor, would submit that the deceased has explained the circumstances under which she initially stated about receiving burn injuries whiie boiling milk. It was stated by ihe deceased before the Magistrate that the appellants caught hold of her and set her on fire. The said version is believable and was correctly relied on to record conviction. Since a dying person would not lie, the statement made by the deceased to the Magistrate has to be believed.

16. The deceased received burns on 29.O1.2012 and on the same day, she was taken to the hospital at Vikarabad. In cases, where any person receives burn injuries, it would be treated as a Medico Legal Case (MLC). A case sheet would be opened on the basis of MLC number. It is admitted that the deceased was initially treated at hospital in Vikarabad, l1 however, neither MLC, nor case sheet pertaining to the deceased was produced by the prosecution. The same is the case at Ganclhi Hospital. The case sheet of Gandhi Hospital is also not produced. Further, the deceased was taken and treated at Indus Hospital, Kothapet. The case sheet of Kothapet Hospital was also not hled. No reasons are given as to why the said documents which are prior in time to the two dying declarations were not produced. The hospital case sheet would reflect the history of the incident.

17. The witnesses who are'the parents/P.Ws.1 and 2 have turned hostile to the prosecution case. They stated that the deceased wars tutored to speak against the appellan1.s. The statement to the Magistrate was given nearly 2 days a_fter the incident had taken place. Though the Police/P.W. 12 and. other Police men accompanied the deceased from Vikarabad Hospital to Gandhi Hospital, neither the statement of deceased or the relatives was recorded, nor any infor:mation was given in the Police Station about deceased receiving burn injuries. In.volvement of the appellants as the persons responsible for causing burns to the deceased or otherwise could be inferred from the documents executed at the earliest : l i I t2 point of time and also the initia,I information given to the Police.

18. The deceased in her statement to Magistrate.stated that the, appellants had forced her to state ttrat she received burn injuries while boiling milk. Further, her statement was also recorded in a cell phone. The said cell phone was not seized during the course of investigation. Further, the deceased stated that she had stated to other persons out of fear that she received burn injuries. However, not a single witness, either the Police or the DoCtors have stated about what the deceased informed at the earliest point of time when she was taken to the hospital at Vikarabad and from there to Gandhi Hospital. The suppression of the documents which are the MLC and case sheets maintained in the hospitals creates any amount of doubt. The parents themselves admitted that the deceased was tutored by relatives to speak against the appellants.

19. The version given in the dying declaration to the Magistrate is that A-4/sister-in-law poured kerosene on her. A-1 and A-2 caught hold of her ald A-4 set hre to her with a match stick. The detailed version stated to the Magistrate Y 13 was not stated to the Police/P.W.12, who rer:orded llx.P. 10. The deceased stated that all four accusecl have poured kerosene and set her on fire. The said discrepant statement \ \ of the deceased and prosecution suppressing the docrrments, further, the statement made by the deceased in the frst 40 hours before recording the dying declaration, gives rise to any amount of suspicion regarding correctness of statements made by the deceased under trx.P. 12 and Ex.Pl4.

20. The deceased died nearly l0 days after the incident. After the statement was recorded on 3 1 .O 1.20 12, no attempts were made to record the statement of the deceased while undergoing treatment for 1O days. Though no corroboration is required il the dying declaration is found to be truthful, t however, in the present facts and circumstances, considering what all transpired for nearly 40 hours prior to the statement given to the Magistrate, the verSion given by the deceased requires corroboration from independent sources regarding any kind of harassment that was meted out to the deceased. 21 . In view of the discrepant and hostile evidence, the suppression of the events that transpired for nearly 40 hours before statement of deceased was recorded and further the t4 records of the hospitals being suppressed, benefit of doubt is extended to the appellants

22. Accordingly, the Criminal Appeal is allowed. //TRUE COPY// A.V.S.S.C.S.M. RMA JOINT REG STRAR SECTION OFFICER One Fair Copy to the Hon'ble Sri Justice K.SURENDER (For His Lordship's Kind Perusal) And One Fair Copy to the Hon'ble Sri Justice ANIL KUMAR JUKANTI (For His Lordship's Kind Perusal) To

1. The Xll Additional District and Sessions Judge Vikarabad, Ranga Reddy District.

2. The Judicial First Class Magistrate, Vikarabad, Ranga Reddy District. 3. The Superintendent, Special Prison forWomen, Chanchalguda, Hyderabad. 4. The Superintendent, Central Prison, Chanchalguda, Hyderabad. 5. The Station House Officer, Vikarabad Police Station, Ranga Reddy District. 6. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad (OUT)

7. 11 LR Copies a. The Under Secretary, Union of lndia Ministry of law, Justice and Company Affairs, New Delhi

9. The Secretary A.P Advocates Association, Library, High Court Buildings Hyderabad

10.one ccto sRI. GRANDHI GOPALA KRISHNA MURTHY, Advocate [OPUC] 1 l.Two CD Copies HIGH COURT DATED:2810112025 JUDGMENT CRLA.No.259 of 2017 ALLOWING THE CRL.APPEAL \f, iTA r (- ;.1* I q 3 25FiB 2C25 * D ES i,r, rCH - iJ t +