THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR CRIMINAL APPEAL No.895 of 2016 JUDGMENT: (per Hon’ble Sri Justice K.Surender)

1. This appeal is filed aggrieved by the judgment dated 31.08.2016 in S.C.No.392 of 2015, passed by the III Additional Metropolitan Sessions Judge, Cyberabad, convicting the appellant/accused for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life.

2. Heard Mr. Sujith Jaiswal, learned Legal Aid counsel representing Mr. Challa Srinivasa Reddy, learned counsel for appellant and Mr. Arun Kumar Dodla, learned Additional Public Prosecutor for State-respondent.

3. The case of the prosecution is that on 26.02.2015, the appellant, who was her husband poured kerosene on her and lit her on fire, for the reason of deceased asking the appellant as to why he left the house for 3 days without informing her. Deceased called the appellant from another person’s phone. Appellant returned home and questioned as to why deceased called from another person’s phone and questioned her about the relation with the person from whose phone call was made. Then appellant poured kerosene on her and lit matchstick. She suffered burn injuries and was taken to the hospital. In the hospital, the authorities informed the Police. Investigating Officer went to the police station and gave requisition for recording dying declaration. Dying declaration was recorded on 27.02.2015 at 04.00 A.M. The incident happened on 26.02.2015 at 07.00 P.M. In the said dying declaration, deceased narrated about the quarrel in between her and the appellant and also the appellant pouring kerosene on her and litting fire with a matchstick. The Sub-Inspector of Police, also recorded her statement and registered the case under Section 307 of IPC on the same day. While undergoing treatment, deceased died on 02.03.2015. Hence, the Section of law was altered from 307 IPC to 302 IPC. Having concluded the investigation charge sheet was filed within two weeks from the date of the incident.

4. The ground raised by the learned Legal Aid Counsel is that the appellant was not the husband of deceased. It is PW2 namely Bheerappa. Therefore, the dying declarations Exs.P10 and P12 cannot be considered to convict the appellant. The evidence remaining is that of PW1, who was aged around 6 years when the incident has taken place. His evidence cannot be considered since he was tutored by the Police before his statement in the Court.

5. Learned Public Prosecutor would submit that there is no reason why deceased would speak against the appellant. She had in fact specifically stated her husband name as Sathaiah, who is the appellant herein.

6. As seen from Exs.P10 and 12 there was fight in between appellant and deceased. In drunken state appellant went to the house of deceased and questioned her regarding her making phone call and then during the said fight he poured kerosene on her and lit her on fire. Similar statement was made before the Magistrate that quarrel ensued in between deceased and appellant when the appellant questioned relationship between another person and deceased. PW2 who is the husband of the deceased stated that he came to know that appellant in drunken condition, beat the deceased and poured kerosene on her and lit her on fire and left the house. The deceased eloped with the appellant who was a mason 13 months ago and started living with him. PW1, who is the child witness, also stated that the appellant is the person who poured kerosene on her mother and lit her on fire.

7. The argument of the Legal Aid Counsel is that in both the statements under Exs.P10 and 12, it is the husband who poured kerosene on her but appellant was not legally wedded husband and deceased’s husband was PW2. PW2 had tutored PW1 to speak against the appellant. The said argument cannot be considered. In the preliminary questions put by the Magistrate, deceased specifically stated that Sathaiah (appellant herein) is her husba