APHC010111192016

IN THE HIGH COURT OF ANDHRA PRADESH

THURSDAY ,THE FOURTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B

CRIMINAL APPEAL NO: 297/2016

Between:

Martha Yogamma

State Of Andhra Pradesh

Counsel for the Apellant:

1. Dr CHALLA SRINIVASA REDDY

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

The Court made the following:

1

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

THURSDAY ,THE FOURTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CRIMINAL APPEAL NO: 297/2016

...APELLANT

AND

State Of Andhra Pradesh ...RESPODENT

Counsel for the Apellant:

Dr CHALLA SRINIVASA REDDY

Counsel for the Respondent:

PUBLIC PROSECUTOR (AP)

the following:

IN THE HIGH COURT OF ANDHRA PRADESH

[3474]

THURSDAY ,THE FOURTEENTH DAY OF MARCH

THE HONOURABLE SRI JUSTICE K SURESH REDDY

V L N CHAKRAVARTHI

...APELLANT

...RESPODENT

APHC010742202016

IN THE HIGH COURT OF ANDHRA PRADESH

THURSDAY ,THE FOURTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B

CRIMINAL APPEAL NO: 1023/2016

Between:

Martha Sreenu, Guntur Dt.,

The State Of Ap Rep Pp

Counsel for the Apellant:

1. Dr CHALLA SRINIVASA REDDY

Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP)

The Court made the following:

2

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

THURSDAY ,THE FOURTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE K SURESH REDDY

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CRIMINAL APPEAL NO: 1023/2016

Martha Sreenu, Guntur Dt., ...APELLANT

AND

The State Of Ap Rep Pp ...RESPODENT

Counsel for the Apellant:

Dr CHALLA SRINIVASA REDDY

Counsel for the Respondent:

PUBLIC PROSECUTOR (AP)

Court made the following:

IN THE HIGH COURT OF ANDHRA PRADESH

[3474]

THURSDAY ,THE FOURTEENTH DAY OF MARCH

THE HONOURABLE SRI JUSTICE K SURESH REDDY

V L N CHAKRAVARTHI

...APELLANT

...RESPODENT

3

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

SPECIAL DIVISION BENCH

****

CRL.A.No.297 OF 2016 & 1023 OF 2016

CRL.A.No.297 OF 2016

Between:

Martha Yogamma,

W/o.Srinu, Aged 37 years,

R/o.BoggaramVillage,

Ipur Mandal. …… Appellant/A-1

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

CRIMINAL APPEAL No.1023 OF 2016

Between:

Martha Srinu,

S/o.Balaiah, Aged 35 years,

R/o.Boggaram Village,

Ipur Mandal. …… Appellant/A-2

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

DATE OF COMMON JUDGMENT PRONOUNCED : 14.03.2024

4

SUBMITTED FOR APPROVAL :

THE HON'BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the Judgment? Yes/No

_____________________

K.SURESH REDDY, J.

____________________________

B.V.L.N.CHAKRAVARTHI, J.

5

* HON'BLE SRI JUSTICE K.SURESH REDDY

AND

* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ CRL.A.No.297 OF 2016 & 1023 OF 2016

% 14.03.2024

# Between:

CRL.A.No.297 OF 2016

Martha Yogamma,

W/o.Srinu, Aged 37 years,

R/o.BoggaramVillage,

Ipur Mandal. …… Appellant/A-1

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

CRIMINAL APPEAL No.1023 OF 2016

Martha Srinu,

S/o.Balaiah, Aged 35 years,

R/o.Boggaram Village,

Ipur Mandal. …… Appellant/A-2

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

6

! Counsel for the Appellants : Dr.Sri Challa Srinivasa Reddy

^ Counsel for the

Respondent : Sri Y.Nagi Reddy,

Public Prosecutor.

< Gist:

> Head Note:

? Cases referred:

1. AIR 2003 SC 2859

2. AIR 1984 SC 1622

3. AIR 1976 SC 2199

4. AIR 2011 SC 1562

5. AIR 1992 SC 2186

6. (2003) 6 SCC 443

7. (2021) 6 SCC 213

This Court made the following:

7

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

(Special Original Jurisdiction)

THURSDAY, THIS THE FOURTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FOUR

SPECIAL DIVISION BENCH

PRESENT

THE HON’BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

CRIMINAL APPEAL No.297 OF 2016 & 1023 OF 2016

CRIMINAL APPEAL No.297 OF 2016

Between:

Martha Yogamma,

W/o.Srinu, Aged 37 years,

R/o.BoggaramVillage,

Ipur Mandal. …… Appellant/A-1

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

CRIMINAL APPEAL No.1023 OF 2016

Between:

Martha Srinu,

S/o.Balaiah, Aged 35 years,

R/o.Boggaram Village,

Ipur Mandal. …… Appellant/A-2

A N D

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court at Hyderabad. …… Respondent/Complainant

8

Counsel for the Appellant(s) : Sri Dr.Challa Srinivasa Reddy

Counsel for the Respondent(s) : Public Prosecutor

COMMON JUDGMENT:

(Per Hon’ble Sri Justice B.V.L.N.Chakravarthi)

1. The bail applications filed for the appellants/accused

No.1 and 2 are posted to today. The learned counsel for

accused No.1 and 2 and learned Public Prosecutor submitted

that paper booklet is ready, and ready to submit arguments

in the appeals, instead of bail petitions. Therefore, we heard

the arguments in the appeal instead bail applications.

2. Heard Sri Dr.Challa Srinivasa Reddy, learned counsel

for the appellants/accused No.1 and 2, and Sri Y.Nagi Reddy,

learned Public Prosecutor for respondent/State.

3. The appeal vide CRL.A.No.297/2016 is filed for A-1.

The appeal vide CRL.A.No.1023/2016 is filed for A-2. Both

the appeals arose from the judgment dated 26.10.2015

passed in S.C.No.407/2014 on the file of the learned XIII

Addl.District & Sessions Judge, Narasaraopet (hereinafter

referred to as ‘trial Court’).

4. The accused No.1 and 2 were tried and convicted by the

trial Court for the offence U/s.302 of Indian Penal Code, 1860

9

(for brevity ‘I.P.C.’), and sentenced to suffer imprisonment for

life, and also to pay fine of Rs.500/- (Rupees Five Hundred

only) each, in default, to suffer simple imprisonment for one

month each.

5. The case of the prosecution is that the A-2 is father of

Martha Chandana (hereinafter referred to as ‘deceased’). He

married Smt.Venkayamma. The deceased born to A-2 and

Venkayamma during their wedlock. Later, A-2 deserted

Venkayamma and married A-1. They were blessed with two

children. The paternal aunt of deceased gifted a portion in a

terraced house to the deceased on 02.06.2009. Sri Martha

Chandra Mouli, paternal uncle of deceased gifted Ac.0-50

cents of land to her on 17.08.2009. The deceased stayed with

her paternal aunt. After death of paternal aunt, the deceased

came to the house of her father. A-1 used to ask A-2 to send

away the deceased with an intention to grab the property

gifted to the deceasedA-1 and A-2 were harassing the

deceased. On 11.01.2014 accused No.1 and 2 picked up

quarrel with the deceased. They poured kerosene on the

deceased, A-1 set fire. The elder brothers of A-2 (P.W-1 &

P.W-2), relatives of accused (P.Ws-3 to 5) and other villagers

10

(P.Ws-6 to 9) who are residing nearby, on hearing cries of the

deceased, rushed to the house of deceased. They knocked the

door of the house. The accused opened the door. They found

the deceased in flames, put off the flames, and shifted her to

the Government Hospital, Vinukonda.

(i) On receipt of intimation sent by the duty doctor

(P.W-14), Head Constable, Ipur police station (P.W-13) went to

the hospital. He recorded the statement of deceased (Ex.P-15)

in the presence of P.W-14. Sub Inspector of Police (P.W-16)

registered the FIR as case in Cr.No.02/2014 of Ipur Police

Station for the offence U/s.302 r/w.34 I.P.C. basing on the

statement of the deceased, and submitted copies to all

concerned.

(ii) P.W-16 proceeded to the Government Hospital,

Vinukonda, examined the deceased and recorded her

statement (Ex.P-19). He also examined P.Ws-1 to 4, on the

same day and recorded their statements. He visited the house

of accused i.e., scene of offence, observed the same and

prepared a rough sketch (Ex.P-11). On the same day at about

03.20 p.m., he received intimation that the deceased

11

succumbed to burn injuries at Government Hospital,

Narasaraopet. P.W-16 altered the penal provision of law to

section 302 r/w.34 I.P.C. and submitted memo before

Judicial Magistrate of First Class, Vinukonda (Ex.P-20).

(iii) Further investigation was conducted by the

Inspector of Police, Vinukonda Circle (P.W-15). On receipt of

intimation from the Government Hospital about the death of

deceased, he proceeded to Boggaram village and examined

P.Ws-3 to 7 and recorded their statements. On 12.01.2014 he

again visited the village and visited scene of offence in the

presence of P.W-10 and another, seized M.Os-1 to 6 and

prepared scene observation report (Ex.P-10), and also

prepared rough sketch (Ex.P-11). P.W-11 photographed the

scene of offence (Ex.P-13). Inspector of Police visited

Government Hospital, Narasaraopet, and examined P.W-1,

P.W-2, P.W-8 and recorded their statements. He conducted

inquest in the presence of panchayatdars under Ex.P-12.

Photographs were taken for the dead body of deceased

(Ex.P-16). The dead body was sent for autopsy. The Civil

Assistant Surgeon (P.W-12) conducted post mortem and

issued Ex.P-14 post mortem report, opining that the deceased

12

would have died of burns. Inspector of Police (P.W-15) filed

final report (charge sheet) against A-1 and A-2 for the offence

U/s.302 I.P.C.

6. During trial, 16 witnesses were examined on behalf of

the prosecution as P.Ws-1 to 16 respectively, 20 documents

were marked as Exs.P-1 to P-20 respectively, apart from

M.Os-1 to 6.

7. The accused were examined U/s.313 Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘Cr.P.C. 1973)

regarding the incriminating evidence appearing against them

from the evidence for the prosecution. The accused No.1 and

2 denied the same, but did not choose to examine any

witnesses for defence.

8. The learned trial Court after hearing the prosecution

and defence, found the accused A-1 and A-2 guilty, convicted

them for the offence U/s.302 I.P.C. and sentenced the

accused as stated supra. Challenging the judgment, the

appellants/accused No.1and 2 preferred separate appeals.

9. Sri Dr.Challa Srinivasa Reddy, learned counsel for the

appellants/accused No.1 and 2 submitted arguments that the

13

trial Court erroneously convicted the appellants, on the basis

of dying declaration (Ex.P15), recorded by the Head Constable

of Police (P.W-13) though it was an outcome of tutoring; He

would further submit that the trial Court erroneously placed

reliance on the statement recorded by the police, losing sight

of the fact that there was enough time to get the statement

recorded by a Magistrate; He also submitted that Ex.P-13 was

not recorded as per the Rule 33 of Criminal Rules of Practice

and Circular Orders of Andhra Pradesh High Court, 1980;

therefore, no reliance can be placed on the statement

recorded by the Had Constable; P.Ws-1 to 9 who are material

witnesses in the case did not support the prosecution’s case;

there is no corroboration to prove the motive pleaded by the

prosecution; therefore, the trial Court failed to see that it is

not safe to convict the accused on the sole basis of dying

declaration recorded by the Head Constable of Police, further

the evidence of Head Constable and the duty doctor (P.W-14)

are contradictory on the presence of the duty doctor at the

time of recording statement;

10. Sri Y.Nagi Reddy, learned Public Prosecutor argued that

dying declaration is a substantive piece of evidence and it can

14

be the sole basis for order of conviction and sentence without

there being any corroboration, when the dying declaration

creates a sense of confidence and trustworthiness in the mind

of the Court; He relied upon the judgment of the Hon’ble Apex

Court in the case of P.V.Rama Krishna Vs. State of

Karnataka

1.

11. The learned Public Prosecutor would further submit

that the evidence of P.W-13 disclose that soon after receipt of

intimation from the Government Hospital, Vinukonda,

(Ex.P-16) at about 10.00 a.m., he visited Government

Hospital, Vinukonda, and identified the deceased with the

help of the duty doctor (P.W-14) who certified that patient is

conscious and coherent to make statement; therefore, Head

Constable of Police recorded statement of the deceased

(Ex.P-15), in the presence of duty doctor; the statement was

made voluntarily and it is not a result of tutoring or

prompting; and the accused are none other than father and

stepmother of the deceased, and therefore, there is no reason

to disbelieve the dying declaration of the deceased; Merely

because, it is a brief statement, it cannot be discarded on that

1

AIR 2003 SC 2859

15

ground as it guarantees truth; In those circumstances, the

contention of the appellants that Rule 33 of Criminal Rules of

Practice are not followed, will not help their case.

12. He would further submit that the contention of the

accused that there was enough time to get the dying

declaration recorded by a Magistrate, it was not raised by the

defence in the trial of the case; the evidence on record would

show that the deceased was shifted to Government Hospital,

Narasaraopeta, after the statement was recorded by the Head

Constable of Police, and later she succumbed to burn injuries

in the Government Hospital, Narasaraopeta, soon after the

admission by 03.00 p.m.

13. He would further submit that there is no material on

record to probable the plea of the accused that they were

falsely implicated in the case; the conduct of the accused

would show that they did not make any attempt to put off the

flames and save the girl, till the arrival of neighbours, and

therefore, it runs against the accused.

16

14. The learned Public Prosecutor in support of his

arguments, relied upon the following judgments of the Hon’ble

Apex Court.

1. Sharad Vs. State of Maharashtra

2

2. Munnu Raja Vs. State of Madhyapradesh

3

3. Om pal Singh Vs. State of Uttar Pradesh

4.

15. In the light of above rival contentions, the point that

would arise for determination in both appeals is as under:-

“Whether the prosecution proved the guilt

of the accused No.1 and 2for the offence

U/s.302I.P.C. beyond all reasonable doubt?”

16. POINT:

We perused the evidence of P.Ws-1 to 16. P.Ws-1 to 9

did not support the case of the prosecution. As already stated

above, P.Ws-1, 2 and P.W-4 are brothers of A-2. P.W-3,

P.W-8 are relatives of the accused. P.W-6, P.W-7 and P.W-9

are the neighbours of the accused.

2

AIR 1984 SC 1622

3

AIR 1976 SC 2199

4

AIR 2011 SC 1562

17

17. P.W-10 is the Village Revenue Officer. His evidence is on

observation of the scene of offence, and seizure of M.Os-1 to 6

under Ex.P-10; preparation of rough sketch under Ex.P-11.

He also deposed regarding inquest conducted on 13.01.2014

at Government Hospital, Narasaraopeta vide Ex.P-12.

18. P.W-11 is a photographer, deposed about taking

photographs for the scene of offence vide Ex.P-13

photographs.

19. P.W-12 is a Civil Assistant Surgeon worked in

Government Hospital, Narasaraopeta, at material point in

time. He conducted autopsy over the dead body of deceased.

His evidence would show that the deceased is a female girl,

aged about 15 years; he found burn injuries over head, neck,

limbs, chest, abdomen; and they are ante mortem injuries.

He opined that the deceased would have died of burns.

Ex.P-14 post mortem report was issued by him. In the cross-

examination, he stated that in case of 100% burns also the

victim will be able to speak.

18

20. The Hon’ble Supreme Court in the case of Magabhai

Nagarbhai Raval Vs. State of Gujarath

5, held as under:

“A person suffering from 99% of burn injuries could be

deemed capable enough for the purpose of making dying

declaration; and that the doctor who conducted

postmortem was a competent person to speak about the

same.”

21. The Hon’ble Apex Court in the case of P.V.

Radhakrishna Vs State of Karnataka

6, held that ‘there is no

hard-and-fast rule of universal application in this regard, and

much would depend upon the nature of burns, part of the body

affected, impact of burns on the faculties to think and other

relevant factors.’

22. In the case on hand, P.W-13 is the Head Constable of

Police worked in Ipur Police Station. He deposed that on

11.01.2014 at about 10.40 a.m. he recorded statement of

Martha Chandana of Boggaram village in Government

Hospital, Vinukonda under Ex.P-15, and the duty doctor was

present during recording of Ex.P-15 statement. Duty doctor

deposed that victim was conscious and can make statement.

5

AIR 1992 SC 2186

6

(2003) 6 SCC 443

19

He also endorsed it on the statement at the time of recording

the statement.

23. The learned counsel for appellants contended that in the

chief-examination, P.W-13 deposed that the doctor gave

treatment and went away, and therefore, that duty doctor was

present while recording statement is not believable. We

perused the evidence of P.W-13. He deposed that the doctor,

who gave treatment, went away. Whereas P.W-14 was a duty

doctor, gave intimation to the police and present by the side

of Head Constable of Police, when the statement of deceased

was recorded.

24. P.W-14 in his evidence categorically deposed that he

visited the patient Chandana during statement made to Police

Constable, and she was conscious and stable. He certified the

condition of the patient on the statement. It was marked as

Ex.P-17. Nothing was elicited in the evidence of P.W-13 or

P.W-14, to probable the defence that relatives or any other

person, present by the side of the deceased, so as to presume

that they could influence the deceased, before arrival of head

constable. Therefore, we do not find any material to opine that

20

the dying declaration made by the deceased is an outcome of

tutoring or influence.

25. The statement vide Ex.P-15 i.e., dying declaration of

deceased would show that on the fateful day at about 08.00

a.m., A-1 and A-2 picked up quarrel with the deceased, and

sprinkled kerosene on her, and A-1 lit the match stick and set

fire to the deceased. As a result, she suffered burn injuries.

26. No material is available on record, which would show

that A-1 and A-2 made efforts to put off flames to save the girl

before arrival of relatives and neighbours. A-2 is father and

A-1 is stepmother. Surprisingly they did not even raise cries

to call the neighbours. No father/mother ever will remain

silent seeing their young child burning in flames, either due

to accidental burns or self-immolation. This circumstance

also would lend support to our conclusion that dying

declaration is truthful and not infected by any malice.

27. In the light of foregoing discussion, and considering the

circumstances surrounding in making it, we are of the

opinion that when the dying declaration is truthful and

voluntary, it can be made basis for conviction, without any

21

corroboration. It can be treated as substantive piece of

evidence. The shortness of the statement would inculcate

more confidence about its correctness. We are fortified by the

fallowing judgments of Hon’ble Apex Court.

28. The Hon’ble Supreme Court in the case of Munnu Raja

Vs. State of Madhya Pradesh, Shard Vs. State of

Maharashtra held that “if the Court is satisfied that the dying

declaration is true and voluntarily, it can be base conviction on

it without corroboration, and merely because it is a brief

statement, it is not a ground to discard the dying declaration,

and on the contrary the shortness of the statement itself

guarantees truth.”

29. The Hon’ble Supreme Court in the case of P.V.Rama

Krishna Vs. State of Karnataka held that “dying declaration

itself can be treated as a substantive piece of evidence and can

be the basis of an order of conviction and sentence without

there being any corroboration, provided, however, the same

brings forth a sense of confidence and trustworthiness in the

mind of the Court.”

22

30. The contention of the learned counsel for appellants is

that the dying declaration vide Ex.P-15 is not in a question

and answer form as per Rule 33 of Criminal Rules of Practice

and therefore, it is not reliable. Hon’ble Supreme Court in the

case of Om pal Singh Vs. State of Uttar Pradesh held that

“merely because the dying declaration is not in question and

answer form would not render the same unreliable.” In that

view of the matter, we do not see any ground to reject Ex.P-15

dying declaration made by the deceased.

31. The Hon’ble’ Apex Court in the case of Jayamma and

Another Vs State of Karnataka

7, held that “law does not

compulsorily require the presence of a Judicial/ Executive

Magistrate to record dying declaration or that a dying

declaration cannot be relied upon as solitary piece of evidence

unless recorded by a Judicial/Executive Magistrate. It is only

rule of prudence, and if, permitted by the facts and

circumstances the dying declaration may preferably be

recorded by a Judicial or Executive Magistrate so as to muster

additional strength to the prosecution case.” In the case on

hand, no facts and circumstances were elicited in the

7

(2021) 6 SCC 213

23

evidence of the head constable, duty doctor or Investigation

Officer to probable that purposefully no intimation was given

to the Judicial/Executive Magistrate to record dying

declaration of the deceased. Likewise no circumstances

elicited to establish that dying declaration recorded by the

Head Constable is the outcome of tutoring or prompting. It

was certified by the duty doctor who was present at the time

of recording of the statement. The victim suffered 95-100%

burns. After recording statement, immediately she was shifted

to the Government Hospital, Narsraopeta, for better

treatment, where she succumbed to burn injuries in few

hours. In that view of the matter, the dying declaration of the

deceased recorded by the Head Constable, can be relied upon

as solitary piece of evidence to convict the accused.

32. Therefore, we do not find any reason to interfere with

the findings of the learned trial Court. Accordingly, the point

is answered.

33. In the light of foregoing discussion, both the appeals are

liable to be dismissed.

24

34. In the result, the Criminal Appeal No.297/2016 filed by

A-1 and Criminal Appeal No.1023/2016 filed by A-2 are

dismissed, by confirming the judgment dated 26.10.2015

passed in S.C.No.407/2014 on the file of the learned XIII

Additional District and Sessions Judge, Narasaraopeta.

Miscellaneous petitions pending, if any, in both the

Criminal Appeals shall stand closed.

____________________________

JUSTICE K.SURESH REDDY

___________________________________

JUSTICE B.V.L.N.CHAKRAVARTHI

L.R. Copy is to be marked

B/o. psk.

Date: 14.03.2024

psk

25

THE HON’BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

CRIMINAL APPEAL No.297 OF 2016 & 1023 OF 2016

(Per Hon’ble Sri Justice B.V.L.N.Chakravarthi)

Note: Mark L.R. Copy

psk

Date: 14.03.2024

psk