Public Prosecutor, High Court at Hyd v. Public Prosecutor appearing on behalf of the

Judgment

(Per t{on'bte Sri.tusrice K. Lakshman) llcard Mr. D. Bhasker Reddy, learned counsel for appellant No.l - accursed No.2 and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of the respondent.

2. 'this appeal is filed challenging the judgment dated 04-01.1017 in Spl. S.c. No.45 of 2014 passed by learned Special Sessions Judge - curn - vll Additional District and Sessions Judgc at Mahabubnagar. 2 I\1..i & VRKR,J Crl.A. No.230 of20l7

3. Vitle the aforesaid judgment, the trial Court convicted the appellants - accused Nos. I and 2 for the offence under Section - 302 read with 34 of tPC and accordingly sentenced them to undergo life imprisonment and to pay fine of Rs. 10,000 (Rupees Ten Thousand Only) and in default to undergo simple imprisonment for a period of one (0 1) year.

4. During pendency of the present appeal, appellant No'l - accused No.l died on 10.04.2021. Leamed counsel for the appellants fi led a Meno vrZe USR No. 1 34476 of 2025, dated 24'11'2025 to that effect along with copy of Death Certificate dated 29 '07 '2021 issued by the Registrar of Births and deaths, (lircle-18 of, GHMC, Hyderabad'

Confirming the same, the Inspector ot'Police, Jadcherla Police Station also addn:ssed a letter to learned Additionat Public Prosecutor, vide C.No.56/I)1/JDLI2O25, dated l8.l 1.3025 along with copy of death certificate of appellant No.l - Accr'rsed No'1. The same are placed on record.

5. The case ol thc prosccution is that deceased - Smt' Goda Chennarr.ma wife olChandraiah. resident of Gangapur Village, while accused Nos. I and 2 also hail lrorn thc vcry same Village' The deceasr'rJ was eking for her [ivelihood by doing coolie work' She has 3 KL,J & VRKR,J Crl.A. No.230 of 20 I 7 barren land to an extent of Acs.2.00 guntas in the limits of Gangapur Village and cultivated by herself. i) On 14.05.2013, accused No.I asked the deceased to give her land for cultivation on lease basis, but she refused. Keeping the same in mind, on the very same day in the evening, while accused No.l was transporting granite stones ofl the deceased available in front of her house, she had objected to the same. Meanwhile, accused No.2 joined and supported accused No.l. When the deceased pnctested and abused them, both the accused threatened her with dire consequences by saying that they would kill her with granite stones. Accordingly, they decided to eliminate the deceased as she denied giving her land on lease basis. ii) As per their plan, on 15.05.2013 at 02:00 hours, accused Nos.l and 2 went to the house of the deceased carrying kerosene. They forcibly entered into the house and accused No.l poured kerosene on the deceased, u,ho was sleeping along with her grandson, aged 6 years and her granddaughter, aged 4 years, while accused No.l set fire by lighting a rnatch stick, then fled away by bolting doors from outside. On hearing screarns of the deceased, PW.4 rushed and extinguished the f'lames and the matter was informed to PW.3 and 4 KL..i & viii(R..; Crl.A. No.230of 2017 LWs.3 anc 4. The deceased was shifted to District Hospital, Mahabubnagar for treatment through 108 Ambulance. On 21.05.2013 at 7.00 hours, the deceased was succumbed with burnt injuries while undergoing treatment. Therefore, accused Nos.l and 2 committed the offence punishable under Section - 302 read with 34 of tPC. iii) r]n receipt of medical intimation, PW.l2 - Sub-lnspector of Police, JacLcherla Police Station initially registered a case in Crime No.263 of 2013 under Section -307 read with 34 of IPC on 21.05.2013 and later altered the Section of law into 302 read with 34 of IPC and took up the same for investigation. iu) On completion of investigation, PW.l I fited a charge sheet against the appellants herein. The sarlre \\as cornmitted to the Sessions (lourt which has taken on file as S.C. No.45 of 2014 and thereafter made over to the trial Court.

6. 'the trial Court framed charge lbr the off'ence under Section - 302 read 'with 34 of IPC against the accused and then proceeded with

7. During trial, PWs.l to l2 rtere exarnined. Exs.Pl to Pl3 were marked and MOs.l to 4 were exhibited. No oral evidence was 5 KTJ&VRKR,J Crl.A. No.230of20l7 let in by the accused, however, Exs.Dl to D3 were mar{<ed on their behalf.

8. After completion of evidence on behatf of the prosecution, the accused were examined under Section - 313 of Cr.P'C' Thereafter, upon hearing both sides, the trial Court recorded conviction against the appettants herein for the aforesaid offences and accordingly imposed sentences of imprisonment in the manner stated above' Challenging the said conviction and sentences of imprisonment, the appeltants preferred the present appeal: g.LeamedcounselforappellantNo.2-accusedNo.2 contended as follows: i. There is no direct cvidcnce and the entire case rests on circumstantial ev idence. ii. The testimonies of PWs. l. 2 and 3 cannot be looked into as they are interested witnesses being family members of the deceased' iii.PWs.4toSdidnotsuppt.lrttlreprosecutioncase. iv. The dying declaration of the deceased does not inspire confidence to cottvict the appellant for the reason that there'are two dying declarations given by the deceased and the same are contradictorY rvith cach other' 6 Kt.,J & VRKR,J crl A. No.2l00a20t7 v. Mctive was not proved by the prosecution. With the aforesaid submissions, leamed counsel sought to set aside the convir:tion and sentence imposed on the appellant.

10. On the other hand, leamed Additional public prosecutor would sut,mit as under: i. Thc,ugft PWs.4 to g tumed hostile, still rhe evidence of pWs. I to 3 would prove the case ofprosecution. ii. The dying declarations made to the Sub-rnspector of porice and the Magistrate proves the case of the prosecution. The contradictions and inconsistencies, if an1,, in the said declarations, are minor in nature and they rvou Id not rilc the case of prosecution. iii. Thorrgh there is no direct evidence, the circumsranriar evidence lornrs a complete chain to convict the appellant. iv. f'here was motive on the part of the appellant and the silmc \,v:rs proved by the prosecution beyond reasonable tloubt. v. I{aving considered all the aforesaid aspects onl-v. rhc trial Court convicted the appeflant and, therefore, thcre is n. crror in it. 7 Kl.J &VRKR,J Crl.A. No.230 of 2017 With the aforesaid submissions, learned Additional Public Prosecutor sought to dismiss the appeal.

11. In view above rival submissions, the point that falls for consideration by this Court is: Whether the conviction and sentence of imprisonment recorded by the trial Court for the offence under Section - 302 read with 34 of IPC against appellant No.2 herein - accused No.2 are sustainable, both on facts and in law?

12. In view of the aforesaid rival submissions and perusal of record, the prosecution alleges that the accused, harbouring a gfudge against the deceased for refusing to lease her land, intentionally killed her by pouring kerosene on her while she was asleep and setting her 'l'he act is stated to have been on fire, causing fatal bum injuries. commiffed with common intentiotr, ttrakitrg the accused liable for the offence of murder under Section 302 read rvith 34 lPc.

13. PW.3 - the complainant and daughter-in-law of the deceased deposed that the houses of accused are behind the house of the deceased. She is staying r,vith her children in the house of her mother which is away from the house of deceased. On the night of occurrenc,e during mid-night, PW.4 intbrmed about the incident' She t, 8 KI.J & VRKR,J Crl.A. No 230 of 20t7 and her children rushed there. Meanwhile, Ambulance came and the deceased was shifted to the Hospital. on enquiry made by the villagers as to cause of bums, the deceased started abusing the accused and stated that accused No.l poured kerosene and accused No.2 set fire to her repeatedry. The deceased survived with burns for one week and died in the Hospital. According to her, there were no disputes between the deceased and the accused. on her enquiry, she was told t,hat since four days prior to the incident, accused No.l and flour other:; forced the deceased to give her land of Acs.4.00 on lease and that she did not oblige them. 14' Pw.l, son of the deceased, deposed that he beron,qs t. Yada'a c.mmunity, while the accused belong to Kurva communit,v. By the t.irne of incident, he was in Hyderabad as he migratecr t<r Hyderabad for his livelihood. on his enquiry, his mother t.lcl him that accuse d No.2 poured kerosene and accused No.l lit fire [. her.

15. Pw.2 - the daughter of the deceased deposed that accusecr No.2 is sisrer-in-law of accused No.l.By the time of incident. she r.r,as in H-vderat'ad as she migrated to Hyderabad about l5 years ago. o, receipt o[t,:lephonic message, she rushed to the Governme,t l{ospital. Mahabuhnirgar and on enquiry, the deceased informecl hcr that 9 KL,J & VRKRJ Crl.A. No.230 of 201 7 accused Nos.l and2 insisted her to give her Acs-2-00 guntas of land on lease, for which she refused. On the date of incident, accused No'l requested accused No.2 to get kerosene, then both of them came into the house of deceased and among them, accused No.2 poured kerosene on the deceased while accused No.t lit fire on her to kitl'

16. PW.4 to 8 did not support the case or prosecution as they turned hostile.

17. PW.9, the Magistrate, deposed with regard to his recording dying declaration of the deceased.

18. PW.10, the doctor deposed that LW.12 - Dr. Sruthi issued Post-mortem examination report (Ex.P8)-

19. PW.ll - the Investigating Officer deposed r'vith regard to conducting scene of panchanama, seizure of MOs.l to 3 and taking steps for inquest over the dead body of the deceased'

20. PW.12 - Sub-Inspector of Police dcposed r'vith regard to receipt of information from the Hospital. registration of crime, issuance of FIR and also recording the statemettt oI the deceased as in Ex.P10. l0 KL,J & VRKR,J Crl.A. No.230 of 20t 7 2l As discussed above, pws.4 to g turned hostile. pw.l2 - sub-lnsp,:ctor of Police, recorded the statement of the deceased on l5-05.20.3 under Ex.Pl0. Even on the request made by pw.l2, pw.9 - Magistrate recorded the dying declaration of the deceas ed vide Ex.P7, da.ted I 5.05.20 13.

22. As per deposition of pw.lz, the Sub-Inspector of police, on 15.02.2013 at 14:30 hours, he received intimation from the District Head Quarters Hospital, Mahabubnagar about admission of the deceased with burns. Immediately he rushed to the Hospital and recorded the statement of the deceased in bums ward in the presence o[' Duty Doctor. Basing on the statement of the deceased, he registerec, Ilx.P9 - FIR at 16: hours on 15.05.2013 for the offence under se,:tion - 307 read with 34 of Ipc against the accused. The deceased stated that the accused forcibly entered into her house during mid-night at about 2.00 A.M. Accused No.2 poured kerosene and accused l,tro.l lit frre and left the house by bolting from outside. He has recorded rhe srarement of the deceased vide Ex.plO. After recording the said statement, he obtained her right thumb impression on its rearling over the contents and on admission by her to be true and correct. Kt-, & VRKR,J Crl.A. No.230of20l7

23. Ex.P6 - is the requisition addressed by PW'12 - Sub- lnspector of Police, Jadcherla to PW.9, the Magisttate' and on receipt of Ex.P6, PW.9 - Magistrate recorded Ex.P7 - dying declaration. [n Ex.P7 - dying declaration, the declarant stated that accused No.l brought kerosene, accused No.2 poured the same on her and lit the fire. Thereafter, her daughters came to her rescue.

24. Thus, there are two statements made by the deceased i.e., Ex.Pt0 statement was given to PW.12, while Ex.P7 dying declaration was given to PW.9. Ex.P10 is the subsequent statement o[ the deceased recorded by PW.12 - Sub-tnspector of police, wherein she has stated that during night at about 2.00 A.M., both the accused came together to her house and accused No.2 poured kerosene on her' r'vhile accused No.l lit her and went away by bolting the doors of her house fiom outside, whereas in Ex.Pl - dyingdeclaration recorded by' PW'9 - Magistrate, the deceased stated that accused No.l brought the kerosene while accused No.2 poured the same on her and lit the tire. T'hus, there is contradiction with regard to bringing the kerosene, pouring the same on the deceased and lighting ttre fire betueeu the two statements. l2 KL,J & VRKR,J Crl.A. No.230 of 2017

25. There is no dispute with regard to the legal position that basing o. the dying declaration, trial court can convict the accused provided if the dying declaration inspires confidence. If there are multiple dying declarations, then there should not be any contradictions, more particularly serious contradictions and if the same insgrires confidence, trial court can convict the accused. If there are two dying declarations, there is inconsistency between them, trial court ha:; to consider other circumstances and evidence including medical r:vidence erc. The said principle was also laid down by a constitution Bench of the Hon'ble Supreme court in Laxman v. State of l{aha rashtra r. 26- As discussed above, in the present case, there are two statements rnade by the deceased i.e., before pw.12 - Sub-Inspector of Police and PW.9 - Magistrate. There is inconsistency in the said statements made by her. without considering the said aspects, basing on Exs.P,r and Pl0 - dying declarations, the trial court convicted the accused and irnposed lit-e imprisonment. '. (2oo2r 6 s(rc 7to l3 KL,J & VRKR,J Crl.A. No.230of 2017

27. In Amol Singh v. State of Madhya Pradesh2, the Apex Court had an occasion to deal with the evidentiary value of dying declaration. tf there are multiple dying declarations and if there are inconsistencies and discrepancies in the last dying declaration making it doubtful, it would not be safe to convict the accused basing on the said dying declarations wherein there are inconsistencies' The Court has to consider nature of inconsistencies in relation to surrounding facts and circumstances have to be considered. [t was further held that if dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be retied upon without any colToborat'ion' The statement should be consistent tlroughout. If the deceased had several opportunities of making such dying declaration, that is to sa,r' if there are rnore than one dying declaration, they shoutd be consistent. The Apex Court also relied upon the principte laid down by it in Kundula Bala Subrahmanyam v. State of A.P.r. The Apex Court further held that if some inconsistencies are noticed betrveen one dying declaration and the other, the Court has to exanritre the nature of the inconsistencies, namely whether there are material or not. While scrutinizing the contents of various dying declarations' itt '. (zoott 5 scc 46tt r. lrvoi) 2 scc 684 l4 KI"J & VRKR,J Crl.A. No.230 of 2017 such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

28. [n Natlapati sivaiah v. sub-Divisional oflicer, Guntur, Andhra Pradesha, the Apex court also considered the evidentiary value of the dying declaration.

29. Paragraph Nos.22 to 26 of the said judgment are relevant and the same are extracted as under: "22.It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight ro be given to dying declaration inasmuch as there could be any number of circumstances which nra_v afflect the truth. This Court in more than one decision has cautioned that the courts have alrvays to be on guard to see that the dying declaration rvas not the result of either tutoring or prompting or a product of imagination. lt is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. [n order to satisty itself that the deceased rvas in a fit mental condition to make the d.ving declaration, the courts have to look for the medicalopinion. o. lzooz; rs siccr 465 15 KI.J &VRKRJ Crl.,{,. No.230 of 2017

23.It is not diflicult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wistt to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as tre stands before his creator.

24. There is a tegal maxim |nemo moriturus praesumitur mentire" meaning, ttnt aman will not meet his Maker with a lie inhis mouth' Woodroffe and Amir Ali, in their Treatise on Evidence Act state; "when a man is dying, the grave position in which he is placed is held by taw to be a suflicient ground for his veracity and therefore the tests of oath and cross- examination are dispensed with". 25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. l6 KI."J & VRKR,J crl.A. No.230 0f201?

26.|t is also a setrled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition_ mentally and physically-to make such statement.,,

30. In paniben v. State of Gujarats, the Apex court while holding that a dying decraration is entitled ro grear weight however cautioned to note that the accused has no power to cross-examination. Paragraph No.t8 of the said judgment is rerevant and the same is exfracted as under: *18. ... Such a power is essential fbr eliciting the truth as an obligation of oarh could be. This is the reason the courr also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard tlut the statement of the '.1ttsz1{sccqtq t7 KI+J& VRKRJ Cd.A. No.230 of 201 7 deceased was not as a result of either tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity tto observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has taid down in several judgments the principles goveming dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (lvtunnu Raia v. State of M.P. l(1976) 3 SCC I 04 : 1976 SCC (Cri) 376: (1976) 2 SCR 7641) (rr) It the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P.v.Ram Sagar Yadav (1985) I SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416l; Ramawati Devi v- State of Bitrur [(1983) I SCC 2l I : 1983 SCC (Cri) 169 : AIR r983 SC l64l .) (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or t8 KL,J & VRKRJ Crl.A. No.230of20l7 imagination. The deceased had opportunity to observe and identi$ the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddyv. public Prusecuorl(1976) 3 SCC 6tB: t976 SCC (Cri) 473 : ArR 1976 SC 19941 .) (rv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Begv.Stare of M.p.[(97\ 4 SCC 264 : 1974 SCC (Cri) a26l ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kalce Singhv. State of M.P.U98l Supp SCC 25 : l98l SCC (Cri) 645 : AtR 1982 SC r02tl ) (vr) A dying declaration rvhich suffers from infirmity cannot form the basis of conviction. (Xara Marurath v. State of {J.p. (1981) 2 SCC 654 : t98l scc (cri) s8ll ) (vli) Merely because a dying declaration does not contain the details as to the occurrence. it is not to be rcjected. (State of Mahara,;htra v. Krishnanutrti Iaemipati Naidu [1980 Supp SCC 455 : t98 I SCC (Cti) 364 : AIR l98t SC 6t 7l .) (vrlr) Equally, merely because it is a hriel statement, it is not to be discarded. On the contrary. the shortness of the statement itself guarantees truth. (Surqj&o Ojha v. State of Bihar I I 980 Supp SCC 769 : 1979SCC(Cri)5t9:AIR l979SC t5051 .) (rx) Normally the court in order to satisfy whether deceased was in a fit mental condition to makc thc t9 KI.J & VRKRJ Crl.A. No.23Oof20l7 dying declaration look up to the medical opinion' But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration' the medical opinion cannot prevail' (Nanhau Ram v. State of M.P. [1988 Supp SCC t52 : 1988 SCC (Cri) 3a2 : AIR 1988 SC 9l2l ) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon' (State of U.P. v. Madan Mohan[(I989) 3 SCC 390 : 1989 SCC (Cri) 585: AIR 1989 SC l5l9l.)"

31. tn Nallapati Sivaiaha, the Apex Court placing reliance on the principle laid down by its constitution Bench in Laxmanr held in paragraph No.52 that the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration-be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying 20 KL.J & VRKR,J Crl.A. No.230of2Ot7 declarati,n but also cumurative effect of the other evidence incruding the med::cal evidence and the circumstances must be taken into considerertion.

32. In uttam v. state of Maharashtra6, the Apex court arso considered the evidentiary value of dying declaration. [n paragraph no.15 of the saidjudgment, the Apex Court held as under: *15. [n cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors lor arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation. the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceasecl at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having ". (2022) gs<:csto 2t KLJ & VRKR,J Crl.A. No.230 of 2017 influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion."

33. In Amol Singh2, the Apex Court considered the fact that when faced with two dying declarations containing inconsistencies, the approach to be adopted by the Court was summarised as under: "13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliabiliry thereof that adds weight to the prosecution case. tf a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent' (See Kundula Bala Subrahmanyam v' State of A.P. [Kundula Bala Subrahmanyarn v' State of A.P., (1993) 2 SCC 684 : 1993 SCC (Cri) 6551 ) However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material 22 KL.J & VRKR,J Crl A. No.230 of 20t 7 or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

34. [n sher singh v. state of punjabT, the Apex court held that acceotability of a dying declaration is greater because the declaration is made in extremity. when the party is at the verge of death, ont: rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed wirh in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court shourd ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain fiom the er,'idence Jrlaced on record that the deceased was in a fit state of mind and had ample opportunity to observe and identif,v the curprit. Normallv, the court places reliance on the medical evidence f,or reaching the conclusion whether the person making a dying dcclaratio, was in a fit state of mind, but where the person recording (1001{ } .l SCC 265 23 KI.J & VRKRJ Crl.A. No.230 of 2017 the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be votuntary and tnrthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.

35. In the light of the aforesaid principle, corning to the facts of the present case, as discussed above, PW. t2 recorded the statemerlt of the deceased as in Ex.Pl0. He has not stated that the declarant is fit and coherent to give her statement. Ex.P7 is the dying declaration recorded by PW.9 - Magistrate. Perusal of the same would reveal that it contains a doctor's certificate to the eft'ect that the patient was conscious, coherent and in sound state of mind to give valid information of her dying declaration and no sedatives was given to the 24 KL,J & VRKR,J Crl.A. No.230 of 20t7 deceased But, the prosecution did not examine the said doctor, who gave the said certificate. Thus, there are inconsistencies in both the statemenrs made by the deceased vide Ex.p7 and Ex.pt0. There is also inconsistency in the depositions of pws.l to 4. without considering the said aspects, the trial court convicted the accused for the offenr:e under Section - 3OZof IpC.

36. [t is also apt to note that as per pw.12 deposition, he received information on 15.05.2013 at 2.30 p.M. with regard to the deceased receiving burn injuries and he has recorded Ex.pl0 staternent of the deceased in the presence of duty doctor. Even then, prosccution did not examine the said duty doctor. Basing on the saicl statement of the deceased, pw.12 - registered Ex.p9 - FIR in crime No.263 ol'2013 under Section - 307 read with 34 of lpc against rhe accused

37. Perusal of Ex.p6 - requisition letter addressed by pw. 12 to Pw.9 - Nfagisrrate would reveal that pw.9 - Magistrate received the sarne on I 5.0-i.2013 ar 12.45 p.M. Even in Ex.p7 - dying declararion, Pw.9 mt:ntioned that she received requisition under Ex.p6 or1 25 KL,J & VRKR,J Crl.A. No.23o of 201 7

15.05.20 L3 at 12.45 P.M. Thereafter she went to the Hospital for the purpose of recording statement of the deceased.

38. Even PW.12 during cross-examination categorically admitted that he received message from Hospital through Police. He did not put G.D. Entry as he was not SHO then. The lnspector was the SHO by that time. Medical intimation was received by the Station but not by him specificatly. He was told about medical intimation by the Inspector of Police (PW.11) within five minutes o[ receiving the intimation. Immediatety he left Jadcherla Police Station on the instructions of Inspector to Mahabubnagar. Within l5 to 20 minutes he reached Mahabubnagar hospital. With the help of duty doctor, he identified the patient and then recorded her statement. He does not remember the name of duty doctor. After enquiry with the duty doctor, he satisfied with the mental condition of patient and her tit state of mind to give statement. He did not verify the case sheet to f,rnd out the percentage of bums. He does not renrember whether any of relatives of patient were present then. He does not remember the number of patients in the burns ward then as he did not tind them' According to his memory, there were some lllore patients in that ward' He commenced recording the statement of patient at I5:00 hours arrd 26 KI4J & VRKR,J Crl.A. No.230 of20l7 concluded by 15:35 hours. He further admitted that he carries stamp pad also with him whenever he goes to hospital on hospital intimations. '[he deceased did not state that any other persons were present in the house apart from her by the time of offence. Impression of the patient was on middle of Ex.plO paper and his signature was to its right. As per recitals of Ex.pl0, thumb impression was taken before reading over the contents of statement to the patient. He Ieft the hospital at abour 15:40 hours. By the time he retumed to police station, hr:ad constable was SHO. On returning to the station, he assumed r:harge ol SIIO and registered Ex.p9 - FIR. As per Ex.p9, intimation was rccei'cd to the Station at l6:00 hours for the first time. In Ex.P9. a prinrcd FIR, they have to write only the contents of complaint/statement and they are not supposed to mention any other things. Irr F.x.P9 - I.'lR. it is mentioned that they received hospital intimation ar I4: i0 hours though the same is not mentioned I Ex.pl0. He dispatchecl thc I;tR through the Court Constable. He does not remember thc rirnc ot'the dispatch. The time of dispatch of Ex.p9 is mentione(l as l6:3() hours on 15.05.2013 in column No.15 but mode of dispatclr is rror nrcnri.ncd. I{c has also admitted that the distance in betwecn Jadcherla I'olice station and the court at Jadcherra is about 27 KLJ & VRKR,J Crl.A. No.2l0of 2017 one kilometer. As per the endorsernent made by the then Judicial Magistrate of First class, Jadcherla, Ex.P9 was received on

16.05.2013 ar 5.30 P.M. Within no time after registering Ex.P9, he handed over C.D. to his Inspector. He also gave requisition to the then Judicial Magistrate of First Class, Jadcherla to record dying declaration on 15.05 .2013. As per the endorsement of Magistrate on Ex.P6, ir was received at 12:45 P.M. on 15.05.2013. C.D. frle does not reveal that he gave Ex.P6 - requisition.

39. PW.ll - Investigating officer deposed that he took up investigation of the present case on 2t.05.2013 on receipt of death intimation from Government Hospital, Mahabubnagar. He also seized one Back piper whiskey Empty Bottle used as Kerosene Lamp. bumt cloth pieces and burnt hairs. MOs.l to 3 are the same (empty rvhisky bottle is found broken), but the same were not sent to FSL' During cross-exalnination, he admi6ed the said facts. Accused No' l poured kerosene and accused No.2 lit fne repeatedly. He did not examine grand children of the deceased nor ascertained their particulars with u,hom the deceased used to stay.

40. However, learned Additional Public Prosecutor would contend that the grand children are minors and, therefore, their 28 KL,J & VRKRJ Crl.A. No.230 of 20t ? statemenl.s were not record. As discussed above, pws.4 to g tumed hostile and did not support the prosecution. 4L. It is also apt to nore rhat pw.l2 received information and rushed to the Hospital, recorded Ex.pl0 statement of the deceased. Even then, his evidence incriminating material was not put to the accused d.uring examination under Section - 313 of cr.p.c. The same is fatal to the case of prosecurion. The said principle was also held by the Apex court in Ramji prasad Jaiswal alias Ramjee prasad Jaiswal rr. State of BiharE. The relevant paragraphs of the said judgment are as under: '"29. Section 3li crpc crears with the power of the cot't tc examine the accused. Section 3 l3 crpc is as follows:

313. po*,er to examine the accused.{t) In every inquiry or trial. lbr rhe purpose of enabling'the accused personally ro explain an1, circulnstances appearing in the evidence against hinr. the court_ (a) may at an) stage, rvithour previously warning the accused put such quesrions to him as the court consideri necessary; (b) shall' after the r'itnesses tbr the prosecution have been examined and belbre he is called on for his defence, question hinr generall;- on the case: Provided that in a summons_case, where the court has dispensed rvith the personal attendance of the accused, it may also dispense rvitlr his exarnination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section ( I ). (3) The accused shalt nor render himself tiable to punishment by refusing [o ansrver such questions, or by giving false ansrvers to them. r. 2025 SC€ ()nt.ine s(. I ilr2 29 KLJ &VRKRJ Crl.A. No.23O of 2017 (a) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which suctr answers may tend to show he has committed. l6 (5) The court may take help of prosecutor and defence counsel in preparing relevant questions which are to be put to the accused and the court may permit filing of written statement by the accused as sufficient compliance of this section. 30. In Shivaji Sahabrao Bobadev.State of Maharashtra, this Court was examining Section 342 of the old Code of Criminal Procedure, l89E which is pari materiato Section 313 Cr. P.C. and explained the rationale behind such provision in the following words: It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it' This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occunpd it does not ipso facto vitiate the proceedings and prejudice occasioned by such def'ect musi be established by the accused. In the event of evidentiary material not hing put to the accuse4 the court nrtrst or<Iinarily eschew such material from consideration' It is also open to the appellate court to call upon the counsel lbr the accused to show what explanation the accused has as regards the circumstances established against him but not pu1 to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been time in the trial court he would not questioned at the prop€r have been able to furnish any good ground to get out ofthe circumstances on which the trial court had relied for its conviction. [n such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards conrplianie with Section 342,CtN, tlre omission has not been shorvn to have caused prejudice to the accused"' 3 t. Section 313 CrPC cam€ up for consideration in Dhctrnidhar v. Starc of (Jttar Pradesh where this Court outlined the proper methodology to be adopted by 30 Kt"J & VRKR,J Crl.A. No.230of20t7 the court while recording statement of an accused under liection 313 CrPC. This Court held thus:

29. The proper methodology to be adopted by the court while recording the statement of the accused under section 3 l3 crPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. ln other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. [t was for the accused to avail that opportunity and ifhe fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statemeni made by the accused under section 3 l3 CrpC.

32. This Court discussed the purpose of recording the statement of an accused under liection 313 CrPC in Raj Kumar Singh alias Raju alias llatya v. State of Rajasthan and held as under:

30. tn a criminal trial, the purpose of examining the accused person under Section jlj CrpC is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This rneans that tlrc accused may be asked to furnish some explanation as regarcls the incriminating circumstances associatcd r'ith hinr. and the court must take note of such explanation. ln a case of circumstantial evidence, the same is essential to dccide rvhether or not the chain of circumstances is cornplcte. No maner how weak the evidence of the prosecution may, be. it is the duty of the court to examine the accused. and to seek his explanation as regards the incriminating materiar that has surfaced against him. The circumstances rvhich are not put to the accused in his examination under Section i ll CrpC. cannot be used against him and have to be excluded tiorn consideration. 3l KI.J & VRKRJ Crl.A. No.230 of 2017

33. Again, inRai Kumar alias Sumanv-State NCf of Delhi, this Court summarized the law as regards Section 313 CrPC in the following manner:

22. The law consistently laid down by this Court can be summarised as under:

22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, diitinctively and separately. The material circumstance means the circumstance or the malerial on the basis of which the prosecution is seeking his conviction'

22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence'

22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideralion while dealing with the case of the particular accused'

22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused'

22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while ieciding rvhether the defect can be curd, one of 'the considerations will be the passage of time from the date of the incident.

22.6. ln case such irregularity is curable, even the appellate court can question the accused on the material circumstance rvhich is not put to him.

22.7.ln a given case, the case can be remanded to the trial court frorn the stage of recording the supplementary the accused concerned under statement of Section i li ClrPC.

22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay' in raising the contention is only one of the several factors to be considered.

34. In a recent decision, this Court nAshokY'State o/'Uttar ['rude.sh held as under: 2i. In the present case, there is no doubt that material circunrstances appearing in evidence against the appellant have not been put to trim. The version of the main prosecution rvitnesses PWs I and 2 was not put to him' The stage of the accused leading defence evidence arises only 32 KL,J & VRKR,J Crl.A. No.230 ol20t 7 after his statement is recorded under Section 3 13 CrpC. Unless all material circumstances appearing against him in evidence are put to the accused, he cannot decide whether he wants to lead any defence evidence.

24. In this case, even the date and place of the crime allegedly committed by the appellant were not put to the appellant. What was reportedly seen by pW-2 was not put to the appellant in his examination. Therefore, the appellant was prejudiced. Even assuming that failure to put material to the appellant in his examination is an irregularity, the question is whether it can be cured by remanding the case to the trial court. 35. After surveying the law on this print, let us revert back to the facts of the -present case. The manner in vrhich the trial court had recorded the statements of the appellants under Section 313 crpc was not at all in tune v/ith the requirements of the said provision as explained by this Court as discussed supra.

36. Four questions generally were put to the appellants, that too, in a most mcchaniczrl manner. These questions did not reflect the specific prosecution evidence which came on recorcl qua the appe[ants. As all the incriminating evidence were not pur ro the ,otice of the appellants, therefore, there rvas a clear breach of Section 313 crPC as weil as the principle ot'aturi alteram partem. Certainly, this caused serious pre.iudice t, the appellants to put forth their case. ultinrately. such evidence were relied upon b,r.- the court to convict the appellants.

37. Therefore, there is no cloubt that such omission, vrhich is a serious irregularitl,. has cornpletelv vitiated the trial. Even if we take a more sanguine approach by t;*ing the view that such omission did not result in the 33 KTJ&VRKRJ Crl.A. No.230 of 2Ol7 is still a material faiture of justice, it defect albeit curable. In Rai Kumar (supra), this Court highlighted that while deciding whether such defect can be cured or not, one of the considerations will be the passage of time from the date of the incident'"

42. [t is also apt to note that PW.12 and PW.l1 did not follow the procedure laid down while registering Ex.P9 - FI& while issuing Ex.P6 - requisition to PW.9 - Magistrate to record the statement of the deceased.

43.Whenaparticularprocedureisprescribedunderthe cr.P.c., the lnvestigating officer and the Sub-Inspector of Police have to foltow the same. In the present case, they failed to follow the said procedure. [t is also apt to note that even the prosecution failed to prove the motive. without considering the said aspects, the trial Court convicted both the appellants - accused Nos.l aIf, 2 for the offence under Section - 302 read rvith 34 of IPC and sentenced them to undergo life imPrisotulretlt.

44.[tissettledprirrcipleoflawthathowever,..gravethe offence may be". prosecutiou has to prove Such offence beyond reasonabre doubt. unress a,d until guilt is proved, accused is ! 34 KL,J & VRKR,J Crl.A. No.2l0 of 20t7 presumed to be an innocent. In the present case, the prosecution has failed to prove the role played by appellant No.2 - accused No.2 in the commission of offence beyond reasonable doubt. 45- As discussed above, pw.4 to g did not support the case of prosecution. PWs.5 and 6 are the panch witnesses for scene of offence, vrhile PWs.7 and g are the panch witnesses for the inquest conducted over the dead body of the deceased. The trial court convicted the accused basing on Ex.p7 and pl0 - dying declararions. Ex.Pl0 - s,tatement was recorded by pw.l2 - Sub-lnspecror of police, while Ex.l)7 dying declaration was recorded by pw.9 - Magistrate. In Ex.Pl0 - statement of the deceased recorded by pw.r2 - Sub- lnspector,rf police, the deceased stated that during night at about 2.00 A.M-, both the accused came together to her house ancl accusecl No.2 poured kerosene on her, while accused No.l lit her and rvent awav by bolting tht: doors of her house from outside, whereas in E.x.p7 - cry.ing declaratio, recorded by pw.9 - Magistrate. the deceased statetl that accused I'lo.l brought the kerosene while accused No.2 poured the same on her and lit the fire. Thus, there are inconsistencies, discrepanc:ies and contradictions between the two statenrents. -[.he prosecution did not examine the duty doctor, r.vith the help of rvho,r 35 KLJ & VRKRJ Crl.A. No.230of20l7 PW.l2 recorded the statement (Ex.Pl0) of rhe deceased and the doctor, who certified Ex.P7 - dying declaration. Thus, there are serious lapses on the part of prosecution.

46. As discussed above, accused No.l died during pendency of ( present appeal and, therefore, this Court dismissed the proceedings in the present appeal against appellant No.l - accused No.l as abated.

47. In the light of the aforesaid discussion, the impugned judgment recording conviction and imposition of sentence of life imprisonment on appellant No.2 - accused No.2 is liable to be set aside,

48. The present CriminalAppeal is accordingly allowed setting aside the conviction recorded against appellant No.2 lrerein - accused No.2 and the sentence of life imprisonment irnposed on her vide the judgment dated 04.01.2017 in Spl. S.C. No.45 of 20la by learned Special Sessions Judge - cum - VII Additional District and Sessions Judge at Mahabubnagar. Appellant No.2 - Accused No.2 is acquitted of the aforesaid charge lramed against her. []ail bonds, if any, fumished by her stand cancelled. Fine anrounts, if any, paid by accused No.2 is also ordered to be returned to accuscd No.2 after expiry of appeal time 36 (l-J & yRKRJ Crl.A. No.2l0df20l7 As a s:quel thereto, miscellaneous applications, if any, pending in this appeal shall stand closed. SD'- I NAGA LAKSHMI JOINT REGISTRAR ,,TRUE COPY,, OFFICER To,

1. The Special Sessions Judge-cum-Vll Additional and Sessions Judge at Mahahubunagar.

2. The Additional Judicial Magistrate of First Class, Jadcherla, Mahabubnagar District.

3. The Station House Officer, Jadcherla Police Station, Mahabubnagar District. 4. Two CCrs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad. [OUTI L4 5. One CC to Mr. D. Bhasker Reddy, Advocate [OPUC] W.. 6. Two CD Copies l/ KamlPsL 1 I tI HE :3 c() ?1 JrN 202[ * * I HIGH COI'RT DATED:1it 11212025 JUDGMEINIT CRLA.No.23O ot 2017 ALLOWING THE CRIMINAL APPEAL tc\ _ I )l\ ( ['{v