MIDDOLLA HARJANA THIMMAIAH Vs. STATE OF A P

JUDGEMENT

(1.) This is a reference made by a Division Bench presided by Brother Justice J. Chelameswar and Brother Justice B. Seshasayana Reddy to this Full Bench regarding the issue: Whether the defence could rely upon any statement made by a witness, who is declared hostile by the prosecution in the absence of any specific definite line of defence?

(2.) The appellant is one of the four accused in Sessions Case No.344 of 2000 on the file of the Additional Sessions Judge, Hindupur. He was tried along with other accused for the offences punishable under Sections 452 and 302 read with Section 34 IPC. The Trial Court convicted the appellant for the offences under Sections 302 and 450 IPC and acquitted the other accused. The appellant being aggrieved by the conviction and the sentence imposed by the Trial Court, preferred the present appeal challenging its validity and legality.

(3.) According to prosecution, the appellant and other accused trespassed into the house of the deceased Harijan Aswarthamma on 5-8-1999, poured kerosene on her and set her on fire. The deceased ran out of the house with flames. The neighbours of the deceased including PWs.4 to 6 put off the flames. On the information given by PW.3, the husband of the deceased, PW.1 - the Village Administrative Officer and PW.2-the Sarpanch went to the deceased and recorded her statement covered by Ex.P-1. It was sent to Station House Officer, Parigi, Anantapur District. It was registered as Crime No.35 of 1999 initially under Sections 448 and 307 read with Section 34 IPC. The deceased was shifted to the Government Hospital, Hindupur. On a requisition from PW.15-the duty Medical Officer, the Judicial Magistrate of First Class, Hindupur, who was examined as PW.14 proceeded to the hospital and recorded the dying declaration of the deceased, covered by Ex.P-21. Subsequently, on 6-8-1999 at about 9-15 a.m., the deceased succumbed to the burn injuries. PWs.3 and 7 to 10 who are the husband, mother, father and brothers of the deceased respectively turned hostile and did not support the prosecution. They have gone to the extent of saying that they were not examined by the police. The suggestions given to them that the deceased was suffering from some mental imbalance from her childhood and she attempted to commit suicide on an earlier occasion, were accepted by them. Therefore, it was argued before the Division Bench that in view of the evidence of the hostile witnesses that the deceased was mentally imbalanced, the benefit of doubt must be given to the appellant, ignoring the version given by the deceased in the dying declaration.