- (1.) This appeal has been filed against the judgment and order dated 13.9.2006, passed by the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.863 of 2004, by way of which the High Court reversed the judgment and order of the Sessions Judge, Vijianagaram dated 19.10.2001, passed in Sessions Case No.40 of 2001, by way of which and whereunder the appellant stood acquitted of the charges under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as the 'IPC').
(2.) Facts and circumstances giving rise to this appeal are that: A. The appellant had developed intimacy with Ratna Kumari (deceased) and got an inter caste marriage, registered on 26.10.1991 under the Hindu Marriage Act, 1955. Their married life was not very happy, therefore, Divorce Petition being O.P. No.37/92 was filed and the same was rejected by the Family Court on the ground that one year had not elapsed after their marriage. B. Thus, a fresh Divorce Petition, i.e., O.P. No.65 of 1992 was filed on 31.12.1992. Their marriage was dissolved and the appellant and deceased stood separated. There was no child out of the said wedlock. C. The deceased was a well qualified woman as she has obtained M.Com., LL.B. qualification. In order to earn her livelihood, she had been giving tuitions to the students in a rented premises i.e. House no.754, Phoolbagh Colony, Vijianagaram. The appellant, as alleged, in spite of their divorce, was having visiting terms with the deceased. D. On 15.4.2000, Ratna Kumari was admitted in the Govt. Headquarter Hospital, Vijianagaram at 1.30 p.m. with 44% burns. Her statement/complaint was recorded by the head constable of police wherein she had stated that a stove full of kerosene oil fell upon her and thus, she suffered burn injuries. On the basis of the same an FIR was registered. E. On the same day, her dying declaration was recorded by the Executive Magistrate after getting certificate of fitness from the Doctor, wherein a similar statement had been recorded. She remained admitted in the hospital. On 28.4.2000, her another dying declaration was recorded by the Executive Magistrate wherein she alleged that on 14.4.2000 at about 1.30 p.m. while the deceased was cooking food and all the students had gone home, the appellant poured kerosene on her body and threw the burning stove on her, due to which she received severe burn injuries. The deceased raised hue and cry which attracted some of the neighbours. F. Ratna Kumari (deceased) expired on 3.6.2000 in the hospital and on getting the information, the police altered the FIR into Section 302 and 498A IPC. The doctor conducted the post mortem and opined that the cause of death was septicemia shock due to ante-mortem burns. G. After necessary investigation, the police filed charge sheet on 2.12.2000 against the appellant and his parents for offences under Sections 302 and 498A IPC. After committal of the proceedings, the trial commenced on 6.8.2001. After conclusion of the trial, the Trial Court vide judgment and order dated 19.10.2001 acquitted all the accused observing that prosecution could not prove any case whatsoever against either of them as there was no iota of evidence to show the involvement of either of them. H. Aggrieved, the State preferred Criminal Appeal No.863 of 2004 before the High Court of Andhra Pradesh at Hyderabad. The court dismissed the appeal against the parents of the appellant at the stage of admission itself. The appeal was admitted only qua the appellant. The appeal of the State has been allowed by the High Court vide judgment and order dated 13.9.2006, convicting the appellant under Section 302 IPC and awarding the sentence to undergo life imprisonment and to pay fine of Rs.5,000/-, in default, to undergo further S.I. for a period of one year. Appellant was acquitted of all other charges. Hence, this appeal.
(3.) Shri H.S. Phoolka, learned senior counsel appearing for the appellant has submitted that admittedly after the marriage the parties had separated themselves and therefore, there was no question of living as husband and wife even after 8 years of their divorce. Just immediately after the incident when Ratna Kumari, deceased was taken to the hospital, she lodged a complaint/FIR which was recorded by the Head Constable though after her death the same was treated as her dying declaration. On the same day, her dying declaration was also recorded by the Executive Magistrate and both these dying declarations clearly speak non-involvement of the appellant or anybody else. It is a clear case of accident. The deceased was tutored by her mother and hence in third dying declaration, the appellant and his parents were enroped, in the offence. The declaration dated 28.4.2000 is self contradictory. The appeal deserves to be allowed.;