REPORTABLE

            IN THE SUPREME COURT OF  INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1389   OF 2004

STATE OF A.P. ..  APPELLANT

vs.

P. KHAJA HUSSAIN ..  RESPONDENT

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment of Division Bench of Andhra

Pradesh High Court directing acquittal of the respondent who faced trial for alleged

commission of offences punishable under Section 302 of the Indian Penal Code, 1860

(in short IPC). The learned II Additional Sessions Judge, Kurnool  had found the

accused guilty and sentenced him to undergo imprisonemnt for life.   

2. According  to  the  prosecution  version  on  2/8/1999  the  accused  poured

kerosene over his wife Pinjari Hussain Bee  (hereinafer referred to as the deceased)

and  set  her  on  fire.  The  prosecution  version  primarily  restrained  on  two  dying

declarations purported to have been recorded by the Magistrate and by a police

official.  First dying declaration was recorded by the Magistrate on 2/8/1999 on 11.30

a.m. which is Ex. P. 15.  Later on another dying declaration Ex. P. 20 was recorded

by the Head Constable PW.12 after about one hour of the first dying declaration.

The High Court noticed that there was variation between the two dying declarations

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about the manner in which the deceased was set on fire.  In fact that the two dying

declarations  can  be  reconciled  with  each  other and  since  no  other  evidence  was

available to connect accused with crime the conviction as recorded was held to be not

sustainable.  Accordingly acquittal was directed.

3. Learned counsel  for the  appellant  –  State  submitted  that  the  variation

between the  two dying declarations was not  very significant  and the High Court

should not have discarded the subsequent dying declaration on the ground that it

was at variance with the first dying declaration.   

4. There is no appearance on behalf of the respondent in spite of service of

notice.

5. There  is  no  explanation  as  to  why  the  second  dying  declaration  was

recorded  by  the  Head  Constable  of  Police  shortly  after  such  a  statement  was

recorded when the dying declaration have already been recorded by the Magistrate.

It is not a case where the variation between the two dying declarations is of trivial in

nature.  The scenario was described in substantially different manner.  The High

Court  noted  that  the  improvements  were  made  to  rationalise  with  the  injuries

sustained by the deceased. Conclusions of the High Court do not have any infirmity

which warrant any interference.   

6. The appeals stands dismissed.

                          ..................J.               (Dr. ARIJIT PASAYAT)

     ...................J.

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                                        (ASOK KUMAR GANGULY) New Delhi, April 15, 2009.

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