STATE OF A.P. versus P. KHAJA HUSSAIN

Citation: [2009] 6 S.C.R. 660 · Decided: 15-04-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

(2009) 6 S.C.R. 660 
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A 
STATE OF AP. 
v. 
P. KHAJA HUSSAIN 
(Criminal Appeal No. 1389 of 2004) 
B 
APRIL 15, 2009 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGULY, JJ.] 
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-t 
PENAL CODE, 1860: 
c 
s.302 - Death of wife of accused by burn injuries -
conviction by trial court on the basis of two dying declarations 
- High Court noticing variation in the dying declarations and 
acquitting the accused - Held: There is no explanation as to 
D why the second dying declaration was recorded by police soon 
after the one recorded by the Magistrate - Variations in the 
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dying declarations are not trivial in nature - Conclusions of 
High court do not suffer from any infirmity warranting 
interference - Constitution of India, 1950 - Article 136. 
E 
The appellant was prosecuted for commission of the 
offence punishable uls 302 IPC, on the allegation that he 
poured kerosene over his wife and set her on fire. The 
trial court believed the dying declarations and convicted 
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the appellant of the offence charged. On appeal, the High 
F Court noticed variations in the two dying declarations 
and ordered appellant's acquittal. 
In the instant appeal filed by the State Government, 
it was contended for the appellant that variations in the 
G two dying declarations were not very significant and the 
High Court should not have interfered with the findings 
of the trial court. 
Dismissing the appeals, the Court 
H 
660 
STATE OF A.P. v. P. KHAJA HUSSAIN 
661 
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HELD: There is no explanation as to why the second A 
dying deciaration was recorded by the Head Constable 
of Police shortly after the one recorded by the Magistrate. 
It is not a case where variations between the two dying 
declarations were trivial in nature. The scenario was 
described in substantially different manner. The High B 
Court noted that the improvements were made ·to 
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rationalise with the injuries sustained by the deceased. 
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The conclusion of the High Court do not have any 
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infirmity which warrant interference. [Para 5] [662-D-F] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal c 
No. 1389 of 2004. 
From the Judgment & Order dated 27.8.2003 of the High 
Court of Andhra Pradesh at Hyderabad in Crl. Appeal No. 1511 
of 2001. 
D 
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D. Bharathi Reddy for the Appellant. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is 
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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 
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of the Indian Penal Code, 1860 (in short IPC). The learned II 
Additional Sessions Judge, Kurnool had found the accused 
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guilty and sentenced him to undergo imprisonment 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. G 
The prosecution version primarily restrained on two dying 
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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 
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662 
SUPREME COURT REPORTS 
[2009] 6 S.C.R. 
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A recorded by the Head Constable PW .12 after about one hour 
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of the first dying declaration. The High Court noticed that there 
was variation between the two dying declarations 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 
B since no other evidence was available to connect accused with 
crime the conviction as recorded was held to be not 
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sustainable. Accordingly acquittal was directed. 
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3. Learned counsel for the appellant - State submitted that 
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c 
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 declaratiqn. 
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4. There is no appearance on behalf of the respondent in 
D spite of service of notice. 
5. There is no explanation as to why the second dying 
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declaration was recorded by the Head Constable of Police 
shortly after such a statement was recorded when the dying 
E declaration have already been recorded by the Magistrate. It 
is not a case where the variation between the two dying 
dec
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