Telangana High Court
Chekka Shiva And Another vs The State Of Telangana on 17 April, 2025
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THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL
CRIMINAL APPEAL Nos.2634 & 2604 OF 2018
COMMON JUDGMENT:(per Hon'ble Sri Justice K.Surender)
1. Heard Sri P. Prabhakar Reddy, the learned counsel for the appellants-accused Nos.2 and 3 in Criminal Appeal No.2634 of 2018, Sri G. Jithender Reddy, the learned counsel for the appellant-accused No.4 in Criminal Appeal No.2604 of 2018, and the learned Additional Public Prosecutor for respondent.
2. Both the appeals are filed, aggrieved by the judgment dated 31.08.2018 in S.C.No.237 of 2012, passed by the V Additional Sessions Judge, at Bhongir District convicting the appellants/accused Nos.2 to 4 for the offence under Sections 302 r/w 34 of IPC and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each, in default of which they shall undergo simple imprisonment for one month.
3. The case of the prosecution is that the appellants- accused Nos.2 to 4 are the brothers-in-law of accused No.1 (acquitted). There were differences between accused No.1 and one Maragani Venkataiah (deceased). The deceased was running a kirana shop-cum-tent house at Rusthapur village 2 and also in the neighboring village at Vadaparthy. The deceased developed illegal intimacy with the wife of accused No.1. Accused No.1 noticed it and several times he warned his wife as well as the deceased to mend their ways. However, the relationship continued and a panchayath was also held, and the deceased was admonished.
4. On 17.11.2011 evening, the deceased was proceeding from Rusthapur to Vadaparthy on a scooter. When he reached Vadaparthy rice mill, at 6.00 P.M., accused Nos.2 and 3, who are the brothers-in-law of accused No.1, came in an auto from the opposite direction and dashed it against the scooter of the deceased. When the deceased fell to the ground, they beat him with their hands indiscriminately. In the meanwhile, accused No.1 joined accused Nos.2 and 3. Accused No.1 collected a fuel bottle from the auto and handed it over to accused No.3. Accused No.3 poured it over the deceased, while accused No.2 set him ablaze. The deceased, with burn injuries, was later shifted to the area hospital, Bhongir. At the first instance, the doctor-P.W.17 examined the deceased around 07.30 P.M. He recorded the dying declaration/Ex.P.23. In the said dying declaration recorded by P.W.17 at 07.30 P.M., on 17.11.2011, the deceased stated as follows:
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" My name is M. Venkatest, S/o. Veeraiah, Age:50 years, R/o. Rusthapuram village.
I have been maintaining friendship with one Vani who is the wife of Neella Yadagiri for eight years. Due to which Yadagiri used to pick up quarrels with me and his wife Vani. Because of that Yadagiri developed grudge against me. Today., i.e., on 17.11.2011 at 6.00 p.m., after completion of my works when I was returning from Rusthapuram village and proceeding towards Vadaparthi on my scooter, near the Vadaparthi village some persons i.e., brothers-in-law of Yadagiri namely Shiva, Raju, and Narasimha came from Alair in auto, dashed to my scooter, got me down, beat me severely with hands, in the meanwhile poured petrol on my body and the three persons set me on fire and escaped from there in their auto. On hearing my hue and cries, the persons who were passing on the way (names not known to me) doused flames, shifted me to Area Hopsital, Bhongir in auto".
5. The deceased was shifted to Gandhi Hospital at Hyderabad. P.W.18 was given a requisition by P.W.19 for the purpose of recording the dying declaration. According to P.W.18/Magistrate, he received the requisition on 17.11.2011 at 11.00 P.M. Immediately, he went to the Gandhi Hospital and recorded the dying declaration of the deceased. One of the questions posed by the Magistrate and the corresponding answer given by the deceased is as follows: 4
"Q.1. How did you sustain burn injuries? Please explain in detail Ans: I am resident of Rusthapuram village. I run provisions shop and I am having a tent house also. I have two sons and one daughter.
My wife is Mehalatha. I sustained burn injuries today evening at 6.00 P.M., or 6.30 P.M., Today evening when I was going from Rusthapuram village to Vadaparthi village on my scooter, when I reached Vadaparthi village, one auto rickshaw dashed me and I fell down. Thereafter three persons came and beat me severely with hands. Their names are Raju, Ravi, and Shiva. I came to know that they are residents of Alair villag. Ravi asked to bring petrol. Raju brought the petrol. Ravi poured petrol. Shiva set me to fire. When I was shouting Vadaparthi villagers came and doused the flames.
Neela Yadagiri lodged a case against me and it is on the file of Bhongir Court. The said case is compromised. I was acquitted in the said case. Raju, Ravi, Shiva and Yadagiri wife's brothers, Yadagiri wife Vani. One Pushpalatha has one belt shop in front of my shop. I am having disputes with Puspalatha and Papaiah with regard to Elections.
Vani goes by the side of the shop of Puspalatha. The said persons might have told against me to Raju, Ravi, Shiva. Puspalatha and Papaiah might have told against me to Raju, Ravi and Shiva. Because of that they poured kerosene on me and set me to fire.
One Ramachander is the brother-in-law to Vani. He is also having a role in this incident. Vani, her husband Yadagiri, Vani's brother-in-law Ramchander and Pushpalatha, Papaiah were held responsible for pouring kerosene on my body and set me to fire.
Prior to the incident, Neela Vani telephoned to me and informed that the above mentioned persons are planning to kill me and the call was cut in the middle. She said to me that she will call again. Then Yadagiri scolded me on phone (Right thumb impression of M. Venkataiah Goud has taken)"5
6. At. 11.30.P.M., P.W.1 filed complaint/Ex.P.1 with the police. In Ex.P.1, the names of Shiva-accused No.2, Ravi- accused No.3, Raju-accused No.4 and one Narasimha (not identified during investigation) were mentioned, as the persons responsible.
7. P.W.17 stated that having recorded the dying declaration at 07.30 P.M., he obtained the thumb impression of the deceased. According to P.W.17, the deceased received 40% burns.
8. The relatives of the deceased, P.Ws.1 to 3, and others took the deceased to Bhongir hospital and from there to Gandhi Hospital. P.W.1 is the son of the deceased. According to him, he was informed by Shivaiah (L.W.6, who was not examined during the trial) that his father was lying with burn injuries near the rice mill on the outskirts of Vadaparthy village. Immediately, P.W.1 went to the place of incident on his motorcycle, found burn injuries on the body of the deceased and immediately shifted him to the Government area hospital, Bhongir. After giving first aid, the deceased was shifted to Gandhi Hospital at Secunderabad. P.W.1, while questioning the deceased, was informed by the deceased that it was Shiva, Ravi, Raju, i.e., accused Nos.2 to 4, who are the brothers-in-law of accused No.1, that poured 6 petrol on him and set him ablaze. On 17.11.2011, at about 10.00 to 10.30 P.M, P.W.1 lodged a Telugu-written complaint with the police, and the complaint was received by P.W.19 on the same day at 11.30 P.M. While registering the crime, P.W.19 sent a requisition to the Criminal Courts, Nampally, to record the dying declaration of the deceased. P.W.17 was working as Assistant Civil Surgeon in Bhongir Hospital. According to the prosecution, after he recorded Ex.P.23-dying declaration of deceased, the deceased was shifted to Gandhi Hospital at Secunderabad.
9. P.W.2, the wife of the deceased, stated that one Shivaiah (L.W.6 who was not examined) went to the shop of the deceased at Rusthapur and informed her about the deceased lying in front of the rice mill with burn injuries. According to P.W.2, she, along with P.Ws.1 and 3, went to the place of the incident and shifted him to the hospital.
10. The Investigating Officer-P.W.21 took up the investigation after the crime was registered by P.W.19. He went to the Gandhi Hospital at Secunderabad and conducted the inquest panchanama. Thereafter, the body was sent for postmortem examination. Accused Nos.1 to 3 were arrested on 14.12.2011 and were later sent to Judicial Custody. After 7 competition of investigation of the case, a charge sheet was filed against accused Nos.1 to 3.
11. The learned Sessions Judge took cognizance against accused Nos.1 to 3 and framed charges on 25.02.2014. The witness, P.Ws.1 to 12, were examined. Thereafter, the prosecution filed a petition under Section 319 of Cr.P.C to add accused Nos.4 to 7, since the witnesses have spoken about their involvement in the said crime. The said petition was allowed. Upon summoning accused Nos.4 to 7, the learned Sessions Judge framed charges against accused Nos.1 to 7 on 27.08.2014. After the framing of charges, the additional accused (accused Nos.4 to 7) were given an opportunity to cross-examine the witnesses as contemplated under Section 217 of Cr.P.C.
12. The learned Sessions Judge examined witnesses P.Ws.1 to 21 and got marked Exs.P.1 to P.30. M.Os.1 to 10 were also placed on record.
13. The learned Sessions Judge, having considered the evidence on record, found that the prosecution had proven the involvement of accused Nos.2 to 4 in the crime. However, since accused Nos.1 and 5 to 7 were not found guilty of the 8 offences, they were acquitted, relying upon the dying declarations made by the deceased to P.Ws.17 and 18.
14. Learned counsel for the accused Nos.2 and 3 submitted that there are several variations in the two declarations given by the deceased, i.e., the first statement made to P.W.17 under Ex.P.23 and the second statement made to P.W.18 under Ex.P.25. The statement made to P.W.17 at the first instance did not provide a complete narration of the incident. The deceased stated that accused Nos.2, 3, and one Narasimha were present and they burned him. However, in the dying declaration made to the Magistrate, only the names of accused Nos.2 to 4 were mentioned. The said variations and contradictions in the dying declarations cannot be accepted. Learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court in "State of Punjab vs. Parveen Kumar" 1, wherein in paragraph No.10, it was held as follows:
"While appreciating the credibility of the evidence produced before the Court, the Court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting 1 2005 (9) SCC 769 9 the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in "Thurukanni Pompiah vs. State of Mysore" and "Khushal Rao vs. State of Punjab".
Learned counsel further relied upon the judgment of theHon'ble Supreme Court in "Dandu Lakshmi Reddy vs. State of A.P." 2. While dealing with a situation where there were two dying declarations, the Hon'ble Supreme Court found that there was a material divergence between the two dying declarations and, thus, the benefit of the doubt had to be extended. In the said judgment, it was held as follows:
"In Ex.P.11 (which is a dying declaration given to the Judicial Magistrate of the 1st class) the context stated by the declarant was altogether different. The relevant portion is extracted below:2
1999 (7) SCC 69 10 My mother-in-law's name is Narayanamma, my husband;s name is Dandu Lakshmi Reddy. In the morning at 6.00 A.M., when I was sweeping, my mother-in-law Narayanamma and my husband Lakshmi Reddy both poured kerosene on me, lit the matchstick and set me to fire".
The above material divergence between the two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned judges of the High Court, as they have observed thus:
"Though there is a difference in the version of the deceased as to what she was doing at the relevant point of time the fact remains that A-1 and A-2 poured kerosene and lit fire to her. These aspects are mentioned in Exs.P.11 and P.14. Therefore, we are unable to agree with the contention of the learned counsel for the accused appellants."
Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of the dyeing declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to this very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a 11 strain to the detriment of the accused in a criminal case is not a feasible course."
Learned counsel further relied on the judgment of the Hon'ble Supreme Court in "Mehiboobsab Abbasabi Nadaf vs. State of Karnataka" 3, wherein it was held as follows:
"In first dying declaration it is stated that her husband, father-in-law and mother-in-law are responsible for poring kerosene and burning. In second dying declaration both father-in-law and mother-in-law took the stove and pored kerosene from me and lit fire. Thereafter, her husband and father-in-law poured water on her body. The deceased had taken contradictory and inconsistent stand in the different dying declarations. Therefore, the said DDs should not be accepted on their face value."
The learned counsel also relied upon the judgment passed in "Jagbir Singh vs. State (NCT of Delhi)" 4, wherein it was held as follows:
"If there are more than one dying declaration, the dying declaration may entirely agree with another.
There may be dying declaration where inconsistencies between the declarations emerge.
In view of complete inconsistency, the second or the third dying declaration which is relied on by the 3 2007 (13) SCC 112 4 2019 (8) SCC 779 12 prosecution is demolished by the earlier dying declaration."
15. In the above mentioned judgments, the Hon'ble Supreme Court, while dealing with the cases where there were more than one dying declarations, found them to be contradictory to one another and accordingly extended benefit of doubt to the accused.
16. Learned counsel for accused No.4 submitted that the learned Magistrate had not followed the procedure laid down under Rule 33 of the Criminal Rules of Practice. In the absence of the compliance with the said procedure, the court cannot rely on the dying declaration. The F.I.R was registered at 11.30 P.M; however, the requisition to the doctor was given at 11.00 P.M. itself, without the crime number being mentioned in the requisitions/Exs.P.2 and P.3. Moreover, in the dying declaration recorded by the doctor/P.W.17 under Ex.P.23, the complaint appears to have been written on a blank paper and subsequently filled in, which is evident from the manner in which the document was prepared. Though the statement occupies only half of the page, however, the thumb impression is at the bottom of the page. It is apparent that the statement of the deceased was concocted. Secondly, the dying declaration recorded by the 13 Magistrate is in printed proforma. Such a printed proforma cannot be used to record a dying declarations. It is for the Magistrate to record his satisfaction after asking questions to the person giving the declaration regarding their condition. If it is a printed format and the questions are confined to the printed format, it does not reflect that the Magistrate had taken due precaution in recording satisfaction about the mental capacity of the declarant. Learned counsel for accused No.4 relied on the judgment of this Hon'ble Court in "Sundarapalli Satyanarayana @ Sattibabu vs. State of Andhra Pradesh and another" 5. This Court, while dealing with the manner in which the dying declaration was recorded without following Rule 33 of the Criminal rules of Practice, found that such deviation for the prescribed procedure should lead to an adverse inference, and should be read against the prosecution and in favour of the accused. Learned counsel further relied on the judgment of Hon'ble Supreme Court in "K. Ramachndra Reddy vs. Public Prosecutor" 6, wherein the Hon'ble Supreme Court, while dealing with a dying declaration recorded by a Magistrate, held that it is necessary for the Magistrate to be satisfied that the declarant is in a fit state of mind to give the statement. 5 2011 (1) ALD (Crl.) 641 (AP) 6 1976 Law Suit (SC) 214 14 Learned counsel for the accused No.4 further relied on the judgment of this Court in "M/s. Garnet Finance Limited vs. The Commissioner of Police" in Criminal Appeal No.1045 of 2014, wherein this Court held as follows:
"The statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner."
17. On the other hand, the learned Additional Public Prosecutor argued that the names of accused Nos.2 and 3 are mentioned in the first dying declaration, and thereafter, the name of accused No.4 is mentioned in the second dying declaration. Both the dying declarations when considered harmoniously, makes out the case of the prosecution. Only for the reason that there is a discrepancy regarding the deceased mentioning the name of accused No.4 in the dying declaration, it cannot be concluded that the guilt of accused No.4 does not arise.
18. P.Ws.1, 2, and 3, who are the son, wife, and nephew of the deceased, respectively, stated that they received information from one K. Shivaiah. The said K. Shivaiah was examined as L.W.6 during the course of the investigation. However, the witness was given up during 15 the trial. No reasons are given as to why L.W.6, a crucial witness, was given up by the prosecution.
19. According to P.Ws.1 to 3, they went to the scene upon being informed by the said Shivaiah, the deceased was shifted to the Bhongir Hospital. P.W.17 is the doctor who was working at the local hospital at Bhongir. In his statement, he stated that some unknown persons shifted the deceased to the area hospital at Bhongir. The version of P.W.17 is also recorded in the dying declaration /Ex.P.23. The evidence of P.W.17 assumes significance in light of the claim made by P.Ws.1 to 3 that they had shifted deceased to the hospital.
20. P.W.17 has written what was stated by the deceased, which has been extracted above. In the said dying declaration, the name of the accused No.2, accused No.3, and one Narasimha were mentioned. P.W.19 is the Inspector of Police who received the written complaint from P.W.1. The said complaint was registered at 11.30 P.M. According to P.W.19, after registering the complaint under Sections 120-B and 302 r/w. Section 34 of IPC, he issued the F.I.R and sent a requisition to the Nampally Court for the purpose of recording the dying declaration. However, 16 P.W.18, who is the Magistrate that recorded the dying declaration under Ex.P.25, stated that he received the requisition at 11.00 P.M itself. His requisition is marked as Ex.P.24. In the requisition there is no mention of the crime number, the person, the concerned constable, or any police official. It is merely stated that the S.H.O gave the requisition at 11.00 P.M itself. The time stated by P.Ws.18 and 19 contradicts each other. If the complaint itself was filed at 11.30 P.M, it is not explained how the requisition could have been given to the Magistrate at 11.00 P.M.
21. P.W.18 is the Magistrate who recorded the dying declaration. According to P.W.18, when he went to the hospital, a number of relatives of the deceased were present in the burns ward. After P.W.18 reached the burns ward, he asked the relatives of the deceased to leave the said place.
22. The Magistrate has recorded the dying declaration on a printed proforma. In the printed proforma, the questions are already typed in the Telugu language. Apart from the printed questions, the learned Magistrate did not put any other questions to the deceased to satisfy himself about the mental condition of the deceased. In fact, it is mentioned 17 in the dying declaration that the Magistrate introduced himself and that he came to record the statement. Such a typed, printed proforma and questionnaire give rise to doubt as to whether the learned Magistrate applied his independent mind to the situation or merely posed the questions mechanically to satisfy himself about the mental condition of the patient. Further, the Magistrate ought to have questioned the deceased, to rule out any possibility of tutoring, since the Magistrate admitted that several elders were present when he went to the burns ward. Such mechanical functioning by the learned Magistrate raises doubt about the manner in which the dying declaration was recorded.
23. In the statement made to the Magistrate, the deceased gave a version that is contradictory to what was stated at the earliest point in time, which was recorded by P.W.17. In the statement made to P.W.17, the deceased mentioned the names of accused No.2, accused No.3, and one Narasimha. The said Narasimha was not identified by the Investigating Officer during the course of the investigation. The Hon'ble Supreme Court, in "Dandu Lakshmi Reddy vs. State of A.P.", in a similar situation, 18 held that a noticeable discrepancy made by the very same person was overlooked by the High Court and the High Court could not afford to sideline such material discrepancy. In the present case, firstly, the recording by P.W.17 is doubtful as seen from Ex.P.23. It would appear from Ex.P.23 that the thumb impression was taken first and the statement was written later. It is clear from the document that the reasons regarding the condition of the patient were filled in later and written in English. It is also evident that the statement of the deceased covers only half of the page, while the thumb impression is at the bottom of the page while the condition of the deceased was later filled up.
24. The motive attributed to the commission of offence is that the deceased was having an affair with wife of accused No.1. For the reason of said illicit intimacy, it is alleged that the appellants herein, accused Nos.2 to 4, who are the brothers-in-law of accused No.1, assaulted the deceased and set him on fire.. As already discussed, the version given by P.Ws.1 to 3 that the deceased was found with burns near the rice mill and, upon their enquiry, they discovered the involvement of accused Nos.2 to 4 and others, after which the deceased was shifted to the hospital at Bhongir, is contradicted by the independent witness-P.W.17. P.W.17 19 ruled out the presence of P.Ws.1 to 3 at the Bhongir Hospital. According to him, some unknown persons brought the deceased to the hospital and left.
25. Thereafter, as already discussed, the written complaint was filed at 11.30 P.M. The requisition to the Magistrate was given at about 11.00 P.M. Learned Magistrate received the requisition at 11.00 P.M and went to record the dying declaration in a printed format, and found several relatives with the deceased. The deceased received 40% burn injuries. However, while undergoing treatment, he died.
26. When all these circumstances are viewed in its entirety, the version of the prosecution becomes doubtful. Each and every circumstance of the case has to be proved beyond reasonable doubt by the prosecution. When the above said circumstances are considered in the present case, they not only give rise to doubt but also suggest that the earliest version was suppressed by the prosecution. The implication of accused Nos.2 to 4 is on the basis of the alleged information given by the deceased to P.Ws.1 to 3, who had taken the deceased to the hospital. Thereafter, in the second dying declaration given to the learned Magistrate, the deceased gave a different version, excluding the name of one Narasimha and adding the name of accused No.3. 20
27. In view of the foregoing discussion, relying on the judgments of the Hon'ble Supreme Court cited supra, since the prosecution failed to prove the involvement of accused Nos.2 to 4 in the murder of the deceased beyond reasonable doubt, the appellants/accused Nos.2 to 4 in both the criminal appeals succeed.
28. In the result, both the Criminal Appeals are allowed.
29. The sentence and conviction imposed against the appellants/accused Nos.2 to 4 in judgment dated 31.08.2018 in S.C.No.237 of 2012, passed by the V Additional Sessions Judge, at Bhongir District, is hereby set aside. Since the appellants are in jail, they shall be released forthwith, if they are not required in any other case.
_________________ K.SURENDER, J ______________________ E.V.VENUGOPAL,J Date: 17.04.2025 Bw Note: Registry is directed to dispatch the order forthwith.