(Prayer: Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Criminal Appeal against the order of the acquittal of the accused/respondent in SC.No.38 of 2006 on the file of the Hon'ble Principal Assistant Sessions Judge, Srikakulam, Dated: 03rd day of September, 2007 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused (Respondents) for the offence with which they were charged.

IA NO: 1 OF 2008(CRLAMP 1961 OF 2008

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 285 days in presenting the appeal against the order of acquittal of the accused/respondents in SC.No.38 of 2006 on the file of the Hon'ble Principal Assistant Sessions Judge, Srikakulam, Dated:03.10.2007.)

1. This appeal is preferred by the Appellant / State against the judgment of acquittal rendered by the Trial Court in Sessions Case No.38 of 2006 on the file of Assistant Sessions Judge, Srikakulam (for short, ‘the Trial Court’) and by its judgment dated 03.10.2007, acquitted the accused for the offence punishable under section 304B of Indian Penal Code, 1860 (for short, ‘IPC’).

2. Perused the impugned judgment of acquittal rendered by the Trial Court, which is now under challenge in this appeal. The record consists of the evidence of PWs.1 to 19, and the documents marked as Exs.P.1 to P.28 on behalf of the prosecution. The defence did not adduce any oral or documentary evidence.

3. The facts in a nutshell, which give rise to the present appeal, are as follows:

                  A.1, son of A.2 and A.3, married the deceased, Matcha Lakshmi, sister of PW.1, on 28.04.2004. At the time of marriage, Rs.50,000/- was paid as dowry and Rs.30,000/- towards household articles. After a brief period of marital life, A.1 to A.3 subjected the deceased to cruelty and harassment because she was issueless, had no parents, and did not bring money or gifts. Unable to bear the continued harassment, on 11.09.2005 at about 3.00 a.m., the deceased committed suicide by setting herself ablaze. She sustained severe burn injuries and was shifted to the Headquarters Hospital, Srikakulam, where her statement and dying declaration were recorded. She later succumbed to the injuries. Investigation, inquest, post-mortem, and chemical analysis confirmed death due to burn injuries and the presence of kerosene. The investigation revealed harassment for additional dowry, rendering A.1 to A.3 liable for the offence under Section 304-B IPC.

4. The Judicial Magistrate of First Class, Amadalavalasa, vide orders in P.R.C.No.3 of 2006, has committed the accused to the Court of Sessions, Srikakulam Division, to take up the trial for the offences punishable under Section 304B of the IPC.

5. The Court of Sessions, Srikakulam Division, has taken cognizance of the case filed under Section 304B of the Indian Penal Code (IPC) against the accused and has registered it as Sessions Case No. 38 of 2006. The matter has been referred to the Court of the Assistant Sessions Judge, Srikakulam, for disposal in accordance with law. After hearing both the Public Prosecutor and the defence counsel, the Trial Court framed a charge against the accused under Section 304B of the IPC. The charge was read over and explained to the accused in Telugu, as mandated by Section 228 of the Criminal Procedure Code (Cr.P.C.). The accused pleaded not guilty and claimed to be tried.

6. The learned Sessions Judge examined the accused as required under Section 313 of the Cr.P.C., to enable them to consider the evidence led on behalf of the prosecution and also against them. However, the accused denied the evidence adduced by the prosecution and reported no defence witnesses.

7. After considering the available material on record, the learned Sessions Judge found the accused not guilty of the offences punishable under Section 304B of the IPC and acquitted them.

8. Sir K. Sandeep, learned Assistant Public Prosecutor appearing for the State, contends that the prosecution has clearly established all the essential ingredients constituting an offence punishable under Section 304B IPC against the accused; the learned Judge failed to properly appreciate the cogent and reliable evidence adduced by the prosecution witnesses; it is evident from the dying declaration of the deceased, as well as from the testimony of the supporting prosecution witnesses, that the accused was solely responsible for the death of the deceased; despite the prosecution having proved the guilt of the accused, the learned Judge, without assigning adequate weight to the prosecution’s case, proceeded to acquit them; the additional reasons given by the learned Judge for the acquittal are also asserted to be unsustainable.

9. On the other hand, the learned counsel appearing for the accused supported the findings and conclusions recorded by the Trial Court.

10. I have heard the learned counsel on both sides and perused the material on record, including the oral and documentary evidence produced by the prosecution before the Trial Court.

11. The point for determination is:

                  Was the Trial Court justified in acquitting the accused?

POINT:

12. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. Shankar V. State of Karnataka ((2011) 6 SCC 279) , at paragraph 26 of the judgment, has held as follows:

                  "26. It is settled legal proposition that in exceptional circumstances the appellate court, under compelling circumstances, should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence."

13. In State of Goa V. Sanjay Thakran & Anr.( (2007) 3 SCC 755), the Hon’ble Supreme Court, while considering the power of the Appellate Court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point, has concluded as under:

                  "16.....while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.”

14. With the above principles in mind, this Court analyze the reasoning and ultimate conclusion of the Trial Court in interfering with the order of acquittal.

15. As borne out by the record, A.1 is the husband of the deceased Lakshmi, while A.2 and A.3 are her in-laws. PWs.1, 2, and 11 are the brothers of the deceased, and PWs.3 and 4 are her sisters. The relationships mentioned above are not in dispute.

16. PW.1 deposed that there are three brothers and three sisters in their family, and that the deceased, Lakshmi, was their younger sister. The evidence of PWs.1 to 4 and 11 indicates that the deceased lived harmoniously with the accused and that there was no harassment by the accused towards her. However, the prosecution has primarily relied upon the statements of PWs.1 to 4 and 11 recorded under Section 164 of the Code of Criminal Procedure before the Judicial Magistrate of the First Class to contend that the deceased was subjected to harassment by the accused, which allegedly led her to commit suicide.

17. The Trial Court observed that there were inconsistencies between the section 164 Cr.P.C., statements of the witnesses and the dying declaration recorded by the Judicial Magistrate of the First Class, Srikakulam. It further noted that, in their statements recorded under Section 164 Cr.P.C., PWs.1 to 4 and 11 alleged that the accused had harassed the deceased for additional dowry. In contrast, the dying declaration (Ex.P17) contains no reference whatsoever to any such demand. The Trial Court observed that the alleged demand for additional dowry is absent from the dying declaration. Instead, Ex.P17 merely states that the deceased was subjected to harassment by her in-laws on several occasions and that she was not permitted to visit her parental home.

18. The learned Assistant Public Prosecutor submitted that the statements of witnesses recorded under Section 164 of the Cr.P.C., along with the dying declaration recorded by the Judicial Magistrate of First Class, could be considered for the purpose of convicting the accused. In this regard, the Trial Court examined PW-15, the Judicial Magistrate of First Class, to establish the authenticity of the dying declaration. The Trial Court correctly noted that a dying declaration may be relied upon if it is cogent and consistent with the evidence in the case.

19. In Rajendra V. State of Maharashtra(2024 AIR(SC) 2682), the Hon’ble Supreme Court held that:

                  25. The law relating to dying declaration is now well settled. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.

                  27. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22 this Court examined the principles governing acceptance of dying declaration. After examining the relevant provisions of the Evidence Act and various judicial pronouncements, this Court laid down the following conclusions:

                  (i) it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.

                  (ii) each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made.

                  (iii) it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.

                  (iv) a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence.

                  (v) a dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.

                  (vi) in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.

20. The prosecution examined the neighbours of the accused, PWs.5 and 7, as material witnesses to the incident. Both PWs.5 and 7 testified that the deceased was never harassed by the accused and that they lived together amicably. PW.6, the younger brother of A-1, further testified that the deceased had died approximately two years ago due to an accidental fire in the kitchen. He also stated that the accused neither harassed nor ill-treated the deceased, nor made any demands for dowry or other presents. Accordingly, the Trial Court correctly observed that, aside from the statements recorded under Section 164 of the Cr.P.C., there is no other cogent evidence to convict the accused persons.

21. PW.8 was examined to establish that he had taken the photographs of the deceased and the scene of the offence. PWs.9 and 10 were examined to show their presence when the police inspected the scene of the offence and seized the case property; however, they did not support the prosecution’s case. PW.12 was examined to authenticate Ex.P15, the inquest report, but he stated that he was merely the scribe of the report and that the panchayatdars had opined that the deceased had died accidentally.

22. PW.13, the M.R.O., was examined to prove the inquest report. According to his testimony, based on the statements of the relatives of the deceased, they thought that the deceased had died as a result of harassment by the accused in connection with demands for dowry and other presents.

23. In Siva V. State by Inspector of Police, Vellore(2022 Supreme(Mad) 3015), the High Court of Madras held that:

                  When a Magistrate records a statement under Sec. 164 there are only two proceedings in which it can possibly be said to have been recorded, (1) the investigation by the police and (2) the proceeding of recording the statement itself. The investigation by the police is not a judicial proceeding. “Judicial proceeding” is not defined in the Evidence Act, but since we are concerned with a statement recorded under the Code of Criminal Procedure the question whether it was recorded in a judicial proceeding or not must be decided in the light of the definition given in the code. “Judicial proceeding” is defined in Sec. 4(1)(m) to mean “any proceeding in the course of which evidence is or may be legally taken on oath.” If evidence may be legally taken on oath it is enough even though evidence is actually not taken on oath. An investigation is a judicial proceeding only if it can be predicated that in the course of it evidence may be legally taken on oath. “In the course of which” means “in the carrying out of which” or “in the conducting of which” and not “during the pendency of which.” Anything that is done while a proceeding is pending is not necessarily done in the course of it; if it is not a part of it or is done by one not connected with it, it is not done in the course of it even though it is done during its pendency. In the course of an investigation no evidence can be legally taken on oath by anybody concerned in the investigation. The police have no power to administer oath. As I explained earlier, there is no question of evidence being taken in the course of an investigation. If a Magistrate does something while an investigation is pending it is not done in the course of it. An investigation which would not be a judicial proceeding if a Magistrate did not do something during its pendency does not become one simply because he does something, such as recording a statement under Sec. 164. Since an investigation is to be done solely by the police nothing that he does during its pendency becomes a part of it and can be said to have been done in the course of it. Consequently even if a Magistrate can legally administer oath to a person before recording his statement under Sec. 164 the investigation does not become a judicial proceeding.

                  ...... ...... ......

                  12. Thus I find that the statement made by a person under Sec. 164 cannot be said to be made in a judicial proceeding. Sec. 80, Evidence Act, is, therefore, not applicable to it."

                  21. The principles laid down in the above decision make it clear that presumption under Section 80 of the Indian Evidence Act, 1872 cannot be drawn to rely upon the Statements of witnesses recorded under Section 164 Cr.P.C during investigation to render a conviction.

24. Substantive evidence is evidence upon which the Court can directly rely to establish a fact in issue. A conviction must rest solely on substantive legal evidence given on oath before the Court, and not on investigative paperwork or prior statements. Statements recorded under Section 164 of the Cr.P.C., serve only a collateral purpose. Consequently, a statement recorded by a Magistrate under Section 164 Cr.P.C., during the course of investigation cannot, by itself, be treated as substantive evidence. Accordingly, this Court is of the view that the Trial Court rightly did not incline to place reliance on the statements recorded under Section 164 Cr.P.C.

25. As borne out from the record, the brothers and sisters of the deceased did not support the prosecution case. The neighbours from the locality of the deceased also deposed that there was no harassment or ill-treatment of the deceased by the accused. Except for the official witnesses, neither the close relatives and neighbours of the deceased nor the witness who acted as a mediator supported the case of the prosecution. Furthermore, the Medical Officer, PW.14, who conducted the post-mortem examination on the body of the deceased and issued the post-mortem certificate, testified that a patient would be unconscious when external burns extend to 90%. PW-14 further stated that the deceased, Lakshmi, had sustained extensive burns to the extent of 95%. Taking note of this aspect, the Trial Court observed that the coherence of the statement allegedly made by the deceased Lakshmi itself constituted a strong suspicious circumstance. However, this Court is not inclined to accept the view of the Trial Court that the mere fact that the patient suffered 95% burn injuries, as in this case, would not stand in the way of the patient giving a dying declaration which otherwise inspires the confidence of the Court, is free from tutoring, and can be found reliable.

26. In Bhagwan V. State of Maharasahtra((2019) 8 SCC 95), the Hon’ble Supreme Court of India held that:

                  18. Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration? This question is also no longer res integra. In Vijay Pal v. State (Government of NCT of Delhi) 2015 (4) SCC 749, we notice the following discussion:

                  “23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

                  24. In State of M.P. v. Dal Singh; (2013) 14 SCC 159: (2014) 4 SCC (Cri) 141, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.”

27. This Court is of the opinion that, in criminal adjudication, the evidentiary value of a dying declaration must be examined with careful scrutiny, especially when discrepancies exist between the declaration and statements recorded during the investigation and the version of the material witnesses. In the present case, the dying declaration contains no reference to dowry-related harassment, a vital aspect of the prosecution’s allegations. Moreover, the statements recorded under Section 164 of the Criminal Procedure Code do not support the prosecution’s claim of dowry harassment. In view of these inconsistencies and omissions, the Trial Court acted within its discretion and judicial prudence in declining to base a conviction solely on the dying declaration. Reliance on it in isolation would be unsafe and could risk a miscarriage of justice due to the absence of supporting evidence. This Court thus affirms that the Trial Court properly refrained from treating the dying declaration as conclusive proof of guilt, as the version found in the dying declaration is not supported by close relatives and neighbours of the deceased. Thus, considering the lack of corroboration from close relatives or neighbours, and the inconsistencies between the dying declaration and other evidence, this Court concurs with the Trial Court that, under the circumstances, the declaration cannot serve as the sole basis for convicting the accused.

28. It is a settled proposition of law that in a criminal trial, suspicion, however grave, cannot take the place of proof. The prosecution must prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the accused's complicity.

29. In light of these circumstances, and upon a comprehensive evaluation of the entire evidence, the Sessions Court rightly concluded that the prosecution had failed to prove the guilt of the accused for the offence under section 304B of the IPC beyond a reasonable doubt. Consequently, the Sessions Court acquitted the accused of the said charge.

30. In a criminal case, the degree of proof is the standard that is required in civil proceedings, and if there is the slightest doubt in the mind of the Court regarding the involvement of the accused person, then the Court should not convict the accused person with such a doubt. Instead, it would be proper for the Court to pass a judgment of acquittal in favour of the accused. When Sessions Court after adequate appreciation of the evidence of witnesses passed a judgment of the acquittal, it would not be appropriate for the appellate Court to disturb the said judgment, unless the said judgment of acquittal is unreasonable, even if two views are possible, then also, the appellate Court should not disturb the said judgment, instead, the Court should upheld the view favoured the accused.

31. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka(2021 (15) SCALE Pg. 184), the Hon'ble Supreme Court has observed the scope of section 378 of the Code as under:

                  “Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C., speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. Consequently, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of the first instance has its advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it. Still, it is duty bound to satisfy itself whether the decision of the trial Court is both a possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty and the advantage of having seen the witnesses.

32. In Harbeer Singh V. Sheeshpal ((2017) CriLJ 169), the Hon’ble Supreme Court laid down that mere fact that another view could also have been possible that cannot be a ground to reverse the acquittal. The powers of High Court are wide enough to turtle the acquittal order, however, some parameters are well defined by series of decisions in which this Court is of the considered opinion that State has not made out any case which would permit this Court to exercise such wide powers. Neither any material irregularity is pointed out nor any perversity is reflecting on the contrary it is reflecting that there is an application of mind on the part of learned Judge as the entire material on record has been dealt with specifically and the principle of appreciation of evidence appears to have been rightly undertaken by the Court below and therefore when such eventuality is reflecting sitting in a jurisdiction dealing with an order of acquittal Court is of the opinion not to interfere with such exercise. The relevant observations of the aforesaid decision in paras: 10 and 11 (Cri.L.J.) are reproduced herein after:

                  "10. The above principle has been reiterated by this Court in a number of judicial decisions and the position of law that emerges from a comprehensive survey of these cases is that in an appeal under Article 136 of the Constitution of India, this Court will not interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or mainfestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record is not a ground for reversing an order of acquittal.

                  11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond a reasonable doubt lies with the prosecution, and it never shifts. Another golden thread that runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view that is favourable to the accused should be adopted.

33. Considering the aforesaid set of circumstances and in view of the conjoint reading of the conclusion arrived at in co-relation with the evidence on record, this Court is of the considered opinion that the prosecution makes out no case to establish the guilt of the respondents / accused.

34. The Sessions Court rightly reached its conclusion, providing sound and justifiable reasons. Therefore, the appellant’s request for interference lacks merit. A re-appreciation of the evidence reveals no misdirection or misinterpretation by the Sessions Court. Upon careful reconsideration, there is no flaw in the findings of fact by the Sessions Court. Therefore, the acquittal of the respondents cannot be interfered with. Accordingly, the appeal against the acquittal is dismissed, and the order of acquittal is confirmed, and there is no reason to interfere with the judgment of the Sessions Court. Accordingly, the point is answered.

35. In view of the above and for the reasons stated above, the present Criminal Appeal No.1151 of 2009 fails and the same deserves to be dismissed and is dismissed, accordingly. The judgment and order of acquittal passed by the learned Assistant Sessions Judge, Srikakulam, in Sessions Case No.38 of 2006, dated 03.10.2007, stands confirmed.

                  Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed.