Dying declarations of the deceased have relatively higher evidentiary value, compared to other evidence.

L. Narasimha Reddy, J.

1. This is an unfortunate case, where an innocent person was made to suffer imprisonment for years together on account of gross negligence on the part of the Additional District & Sessions Judge, Nellore.

2. The appellant is Accused No.1 in S.C.No.437 of 2003 on the file of Additional District & Sessions Judge, Nellore. Himself and his mother (Accused No.2) were tried for the offence punishable under Sec.302, read with Sec.34 IPC for allegedly causing the death of wife of A-1, by name Kavitha. Through its judgment dt.25.01.2010, the trial Court acquitted A-2, but convicted A-1 for the offence punishable under Sec.302 I.P.C., and sentenced him to imprisonment for life and imposed fine of Rs.1,000/-, in default to suffer rigorous imprisonment for six months.

3. The wife of A-1 (Kavitha) suffered serious burn injuries and was admitted in Government Hospital, Nellore at about 3.30 p.m. on 18.05.2002. There is a police outpost in the Hospital and the on-duty Head Constable, PW-12 recorded the statement of the injured-Kavitha at about 4.00 p.m. He forwarded the same to the jurisdictional Police Station, based on which, the Station House Officer, Butchireddypalem Police Station, Nellore registered Crime No.74 of 2002, and made a requisition to the jurisdictional Magistrate – PW.15. At about 5.00 p.m., the statement of the injured - Kavitha was recorded by PW.15. Another statement was recorded from her by a Police Official on 19.05.2002. While undergoing treatment, the injured died on 26.05.2002. The Inspector of Police took up further investigation, and filed charge sheet mentioning that the deceased has stated, as in Ex.P.12, dying declaration, that the burn injuries were caused to her by her husband and mother-in-law, A-1 and A-2.

4. The trial Court framed necessary charges referable to the relevant provisions of law. Since the accused pleaded not guilty, trial was conducted, wherein PWs.1 to 16 were examined, Exs.P.1 to P.14 were filed, and M.O.No.1 was taken on record. The nature of disposal given by the trial Court, has already been indicated, at the threshold.

5. Sri O. Kailashnath Reddy, learned counsel for the appellant submits that serious miscarriage of justice has taken place in this case on account of the fact that the dying declaration recorded by Magistrate - PW.15 was not made as part of the record. He contends that a certified copy thereof was taken by the accused well in advance and though it was placed before the trial Court, no effort was taken to make it part of record. He contends that both in Ex.P.9, statement recorded by the Head Constable and in the dying declaration recorded by PW.15, the deceased categorically stated that she suffered burn injuries when she was lightening the kerosene stove and no allegation whatever was made against the accused, but, the trial Court treated the so called statement recorded under sec.161 Cr.P.C., as the sole basis for convicting A-1. He further submits that Ex.P.12 was not supported by any witness and therefore, A-1 deserves to be acquitted.

6. The learned Additional Public Prosecutor, on the other hand, submits that on finding that the dying declaration recorded by the Judicial First Class Magistrate (PW-15) was missing, several steps were taken at various stages, and ultimately, it could not be traced. She contends that though in Ex.P.9, the deceased is said to have mentioned that she suffered burn injuries when she was lightening the stove, on the next day itself, a different version came out in the form of Ex.P.12. According to the learned Public Prosecutor, even a statement recorded under Sec.161 Cr.P.C., would acquire the characteristics of a dying declaration, once the person from whom it is recorded, is no more.

7. The incident leading to the burn injuries to the deceased is said to have taken place at around 3.30 p.m. on 18.05.2002. Since the accused and the deceased are residents of sub-urban area of Nellore town, the deceased was a