HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.766 OF 2009
JUDGMENT:
1. The sole appellant is convicted for the offence under Sections 498-A IPC and 304-II IPC and sentenced to rigorous imprisonment for a period of six months and three years respectively vide judgment in SC No.157 of 2008 dated 18.06.2009 passed by the Judge, Family Court-cum- Additional Sessions Judge at Khammam. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that on 05.07.2007, the deceased was taken to Doctor Tagore Prasad Hospital, Badrachalam with burn injuries. According to her statement, she was married and gave birth to two children. Five years after marriage, her husband deserted her and she developed intimacy with the appellant and started living together after marriage. One year prior to the incident, she sold her house for Rs.60,000/- and the appellant used to harass her for the said amount. The statement of the victim was recorded by the Judicial Magistrate of First Class, P.W.19 on 12.07.2007 while 2 she was undergoing treatment in the said hospital. Thereafter, the deceased died on 01.08.2007. The First Information Report was registered for the offence under Sections 498-A and 307 IPC and after the death, the section of law was altered to Section 302 IPC.
3. P.Ws.1 and 2 are neighbours, P.Ws.3 and 4 are relatives, P.W.5 is the mother of the deceased. P.W.6 is the locality person. P.W.7 is the son of the deceased. All the witnesses P.Ws.1 to 7 turned hostile to the prosecution case and did not state anything against appellant.
4. The only evidence on the basis of which, the learned Sessions Judge convicted the appellant is the dying declaration, which was made under Ex.P24 before the Magistrate-P.W.19. In the said Dying Declaration, the deceased stated that she was given a piece of land in which she raised walls. However, the said land was sold by the appellant for an amount of Rs.60,000/- and the appellant was quarrelling whenever the deceased asked to return the 3 amount. On the date of incident, the appellant poured kerosene on her and set her on fire.
5. Learned counsel for the appellant submits that except the Dying Declaration, there is no other evidence on record Since the Dying Declaration is a statement which cannot be subjected to cross-examination, as the appellant is prejudiced, prayed for acquitting the appellant.
6. On the other hand, learned Assistant Public Prosecutor submits that in the Dying Declaration, it is specifically mentioned that it was the appellant, who poured kerosene on the deceased and set her on fire. In the said circumstances, the sentence imposed on the appellant by the learned Sessions Judge is proper and the same cannot be interfered with.
7. The incident of burning the deceased took place on 05.07.2007 and her statement was recorded only on 12.07.2007. The reason for the said delay in recording the statement of the deceased is not stated by the prosecution. It is not the case that the deceased was unable to make a statement during the said five days. Though the statement 4 was made on 12.07.2007, the deceased died on 01.08.2007 while undergoing treatment. The Hon'ble Supreme Court in the cases of: i) Maniben W/o.Danabhai Tulshibai Maheria v. State of Gujarat1 and ii) The State of Uttar Pradesh v. Subhash @ Pappu2 held that the though there is a time gap in between the declaration that was made and the death, only for the said reason, the Dying Declaration does not become inadmissible and it is also not hit by Section 161 of Cr.P.C.
8. In the instant case, as seen from the dying declaration, the appellant had taken the amount and failed to repay the said amount to the wife/deceased. In the said scenario there were constant fights and on the said day, the deceased was set on fire in a fit of anger. Considering all the circumstances, the Sessions Court convicted the appellant for the offence under Section 304-II IPC and there is no appeal preferred by the State either against the acquittal under Section 302 of IPC or 1 (2007) 10 Supreme Court Cases 362 2 2002 LiveLaw(SC) 336 5 the sentence imposed. The offence is of the year 2007 and 16 years have lapsed.
9. In the said circumstances, this Court deems it proper to reduce the sentence of imprisonment for a period of one year. The period of imprisonment undergone by the appellant shall be set off under Section 428 of Cr.P.C.
10. In the result, the Criminal Appeal is partly allowed. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
__________________ K.SURENDER, J Date: 24.08.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.766 OF 2009 Date: 24.08.2022.
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