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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:
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“Q.1. How did you sustain burn injuries?
Please explain in detailAns: 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)”
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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
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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
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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
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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 convicting1
2005 (9) SCC 769
9the 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
10My 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
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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
12prosecution 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
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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
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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.
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