THE HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA
&
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.214 OF 2014
JUDGMENT:- (Per the Hon'ble Sri Justice A.Santhosh Reddy)
The sole accused in Sessions Case No.411 of 2011, on the
file of the Principal Sessions Judge, Warangal, was convicted for
the offence punishable under Section 498-A IPC and sentenced to
rigorous imprisonment for three years and to pay a fine of
Rs.1,000/-, in default to suffer simple imprisonment for one month
and was further convicted for the offence under Section
302 IPC and sentenced to undergo imprisonment for life and
also to pay a fine of Rs.5,000/-, in default to undergo simple
imprisonment for three months, by judgment dated 17.01.2014.
2. The prosecution case, in brief, is that the appellant
(hereinafter referred to as 'the accused') is the husband of
Smt.Allamkonda Anitha @ Vanitha (hereinafter referred to
as 'the deceased') and she is daughter of P.W.1, who is resident of
Narlapur of Parkal Mandal, Warangal District. P.W.2 is the wife
of P.W.1 and P.W.3 is brother of the deceased. The marriage of
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the deceased and accused was held eight years prior to the alleged
incident, as per caste customs and traditions. After marriage, the
deceased joined her husband, the accused, and for about six
months, both of them lived cordially. Thereafter, the accused got
addicted to alcohol and started harassing the deceased physically
and mentally on one pretext or the other and used to beat and
abuse her and that made her to leave him and go back to her
parents. She informed her parents about the nature of accused and
thereupon her parents and brother convinced her and advised the
accused to give up the habit of consuming alcohol and to look after
the deceased well. But there was no change in the nature and the
accused continued his behaviour towards her and used to consume
liquor every day. About four years prior to the alleged incident, the
deceased gave birth to a boy by name Anil. Even after the birth
of the child, there was no change in the attitude of the accused.
On 16.02.2011 at about 06:00 p.m., the accused returned home in
drunken state and picked up quarrel with the deceased and beat her.
When the deceased questioned him for consuming liquor every day
and failing to take care of the family, he became wild and
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doused her in kerosene and set fire to the deceased. As a result,
she suffered severe burns and ran out of the house in flames.
The incident was witnessed by P.Ws.4 to 7 and they put out
the flames and shifted the deceased to Government Hospital,
Jammikunta and later to MGM Hospital, Warangal for better
treatment. While undergoing treatment, the deceased succumbed
to burns at 06:45 a.m., on 27.02.2011. Based on the complaint of
P.W.1 on 17.02.2011 at about 11:00 a.m., P.W.15, the then
Sub-Inspector of Police, Mogullapally Police Station registered
a case in Cr.No.15 of 2011 initially under Section 307 IPC
and later on receipt of death intimation, altered the section of
law to 302 IPC. Later, P.W.16, the then Inspector of Police,
Chityal took up investigation. While the deceased was undergoing
treatment in MGM Hospital, Warangal, P.W.12, the then learned
Special Judicial Magistrate of First Class for PCR Cases, Warangal
recorded the dying declaration of the deceased. In the course of
investigation, P.W.15 recorded the statement of the deceased and
he also visited the scene of offence and seized the material objects
connected to this case. P.W.15 conducted inquest over the dead
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body of the deceased in the presence of P.W.8 and another and
the dead body was subjected to post-mortem examination by
P.W.13, Medical Officer in Forensic Department, Kakatiya
Medical College, Warangal. P.W.15 arrested the accused on
21.02.2011. After completion of investigation and after receipt of
all the reports, P.W.16 filed charge sheet.
3. The accused appeared before the trial court and pleaded not
guilty to the charges framed under Sections 498-A IPC and 302
IPC and claimed to be tried.
4. During the course of trial, the prosecution examined as
many as 16 witnesses as P.Ws.1 to 16 and marked 15 documents
as Exs.P-1 to P-15 and produced M.Os.1 to 6. On behalf of
defence, D.W.1 was examined and Exs.D-1 & D-2 were marked.
5. On appreciation of the oral and documentary evidence,
the trial court convicted and sentenced the appellant-accused, as
noted hereinabove.
6. We have heard Mr.A.Prabhakar Rao, learned counsel for
the appellant-accused and learned Assistant Public Prosecutor
for the respondent-State.
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7. Learned counsel for the appellant-accused submits that P.Ws.4 to 7 have not supported the prosecution case and from the evidence P.Ws.1 to 3, who are interested witnesses and the dying declaration Ex.P-9, there is no cogent evidence forthcoming to convict the accused. Learned counsel alternatively submits that even if the participation of the accused in the commission of the offence is proved, there is no intention on the part of the accused to kill the deceased and he may be liable for conviction for the offence punishable under Section 304 Part II IPC.
8. Learned Assistant Public Prosecutor appearing for the respondent-State opposed the submissions of learned counsel for the appellant-accused and vehemently contends that the prosecution had successfully proved the guilt of the accused with cogent and convincing evidence and the sole testimony of the deceased in her dying declaration had stated that the accused poured kerosene and set her ablaze and there are no reasonable grounds to interfere with the judgment of the trial court.
9. We have considered the submissions of learned counsel for the parties with reference to the evidence on record. 6
10. The point that arises for consideration is - whether the judgment of the court below is sustainable?
11. It is the evidence of P.Ws.1 to 3 that the marriage between the accused and the deceased took place about 10 years back prior to the incident. The deceased was blessed with a male child after four years of their marriage. The evidence of P.Ws.1 to 3 shows that the accused got addicted to alcohol and on account of the same, the accused used to beat the deceased every day. The deceased used to inform the treatment meted out by the accused to her parents. According to P.W.1, P.W.3 elder brother of the deceased stated that the deceased used to visit their house frequently whenever she was beaten by the accused. In Ex.P-1, P.W.1 also stated that the deceased got addicted to liquor and used to come home drunk every day and used to ill-treat the deceased and they pacified them making the deceased to join her husband. The evidence of P.Ws.1 to 3 makes it clear that the deceased and accused lived happily for about six months after marriage and thereafter, she was subjected to harassment and cruelty by the accused on account of addiction to alcohol. In cross-examination 7 of P.W.1, it was elicited that about three months prior to death of the deceased, she visited their house and admittedly it is also clear from the cross-examination of P.Ws.1 to 3 that no panchayats to advise the accused were held and no complaint was lodged to the police in respect of such treatment. In cross-examination of P.Ws.1 to 3, other than the said facts, nothing was elicited to discredit their testimony. The evidence of P.Ws.1 to 3 makes it clear that the deceased was subjected to cruelty constantly by the accused soon before her death.
12. It is the case of prosecution that on 16.02.2011, at about 05:00 or 06:00 p.m., the deceased was seen in flames by P.Ws.4 to 7. Admittedly, they are also residing in the same locality where the deceased and accused were living, at Motlapally. They are also related to each other and the deceased. Their evidence categorically proves that after the incident the deceased had come out of the house on to the road engulfed with flames and when she raised hue and cry, attracted by it, they along with others in the locality gathered there and put out the flames on the person of the deceased. P.W.4 categorically stated 8 that the accused and deceased quarreled with each other on that day and after she was in flames, she was shifted to Government Hospital, Jammikunta by P.W.7. Though some of the circumstances are stated in the evidence of P.Ws.4 to 7, they turned hostile. However, their evidence can be believed in view of the fact that the deceased was seen in flames and was shifted to hospital and later the same was informed to P.Ws.1 to 3 and they visited the hospital.
13. The evidence of D.W.1, Deputy Civil Surgeon, Government Hospital, Jammikunta, is that on 16.02.2011 at about 08:00 p.m., the deceased was brought to the Government Hospital in 108 ambulance with her relations and he found 60% burns on her person. D.W.1 also deposed that after giving preliminary treatment, she was referred to MGM Hospital, Warangal for further better treatment. The evidence of D.W.1 is corroborated by the entries in the night instructions register in Exs.D-1 and D-2. Thus, the deceased was admitted in MGM Hospital with history of 81% burns on 16.02.2011 at 11:10 p.m. P.W.14, Civil Assistant Surgeon of burns ward, stated in his evidence about the treatment 9 given by him to the deceased and Ex.P.11 is the case sheet. The contents of case sheet Ex.P-11 shows that she died on account burns on 27.02.2011 at 06:45 a.m.
14. In the instant case, from the evidence of P.Ws.4 to 7, the prosecution could establish that they have seen the deceased engulfed in flames and when she raised hue and cry, several people gathered and put out the flames on the person of the deceased and she was later shifted to hospital for treatment.
15. The next question that arises for consideration is - whether the accused set ablaze the deceased. In order to prove the same, the most crucial piece of evidence of the prosecution is the dying declaration of the deceased Ex.P-9, which is on record.
16. In the instant case, P.W.12, learned Magistrate, recorded the dying declaration of Smt.Allamkonda Anitha at MGM Hospital, Warangal. She deposed that she received requisition on 17.02.2011 at about 0010 hours to record the dying declaration of the deceased in MGM Hospital, Warangal and immediately she proceeded to the hospital and reached at 0030 hours and she identified the 10 deceased with the help of duty doctor and case sheet. Thereafter, she obtained a certificate from the medical officer about the mental condition of the delcarant. P.W.12 introduced herself and requested the declarant to state as to what happened and how she received injuries. P.W.12, after being satisfied that the patient was conscious and capable of answering coherently, proceeded to record the statement of deceased. The dying declaration Ex.P-9 was recorded in verbatim. The contents of Ex.P-9 were read over to the deceased, which she admitted to be true and correct. The duty medical officer who was apparently present through out recording of the statement of the deceased by P.W.12 endorsed that the patient was physically and mentally fit while recording her statement and she was conscious and coherent and that her mental condition was normal through out recording her statement.
17. The deceased in her dying declaration categorically stated that on the previous day evening, there was a quarrel between her and her husband. The accused was beating her every day drunk and similarly he beat her earlier day drunk. She further stated that she returned home after attending coolie work and 11 the accused quarreled with her. When the accused himself threatened to douse in kerosene, she prevented him. She further stated that thereupon the accused had poured kerosene on her and set her ablaze. The deceased further stated that he did not construct the house, though asked by her and that he took away money and returned drunk. She also stated that after setting fire to her, he went away from the house and her mother-in-law, son of her brother-in-law and sister-in-law brought her to hospital and they are available outside. She further stated that they came after the accused poured kerosene on her and she also told them that her husband had poured kerosene on her. To a specific question put P.W.2 as to who was responsible for causing the injuries, the deceased stated 'her husband'.
18. We are conscious of the fact that the court should be more careful and cautious in convicting a person solely on the basis of the dying declaration and there cannot be any absolute law that the dying declaration can be the sole basis for conviction, unless it is corroborated.
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19. The Hon'ble Supreme Court in the case of POONAM BAI v. STATE OF CHHATTISGARH1 has summarised the principles relating to dying declaration especially when it is the sole basis for conviction. Paragraph 10 of the aforesaid judgment is reproduced as under:-
"10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his Maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires full confidence of the court. In the matter on hand, since Ext. P-2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the material on record keeping in 1 (2019) 6 SCC 145 13 mind the well-established principles regarding the acceptability of dying declarations."
20. Keeping in view the aforesaid judgment, as in the present case the dying declaration is truthful, trustworthy, voluntary, blemishless and reliable, the question of discarding the same does not arise.
21. The Hon'ble Supreme Court in the case of MADAN @ MADHU PATEKAR V. STATE OF MAHARASHTRA2 has dealt with the issue of dying declaration and has held that it can be the sole basis of conviction. Paragraphs 10, 11 and 12 of the aforesaid judgment read as under:-
"10. The rule of admissibility of dying declaration is no more res integra. In the adjudication of a criminal case, dying declaration plays a crucial role. A dying declaration made by a person as to cause of his/her death or as to any of the circumstances which resulted in his/her death, in cases in which cause of death comes in question, is relevant under Section 32 of the Evidence Act. It has been emphasised number of times that dying declaration is an exception to the rule against admissibility of hearsay evidence. The whole development of the notion that the dying declaration, as an exception to the hearsay rule, is based on the formalistic view that the determination of certain 2 (2019) 13 SCC 464 14 classes of evidence as admissible or inadmissible and not on the apparent credibility of particular evidence tendered.
11. We are aware of the fact that the physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence. In order to ameliorate such concerns, this Court has cautioned in umpteen number of cases to have a cautious approach when considering a conviction solely based on dying declaration. Although there is no absolute rule of law that the dying declaration cannot form the sole basis for conviction unless it is corroborated, the courts must be cautious and must rely on the same if it inspires confidence in the mind of the Court [see: Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 : 1998 SCC (Cri) 1085 and Suresh Chandra Jana v. State of W.B. (2017) 16 SCC 466 : (2018) 2 SCC (Cri) 187].
12. Moreover, this Court has consistently laid down that a dying declaration can form basis of conviction, if in the opinion of the Court, it inspires confidence that the deceased at the time of making such declaration, was in a fit state of mind and there was no tutoring or prompting. If the dying declaration creates any suspicion in the mind of Court as to its correctness and genuineness, it should not be acted upon without corroborative evidence [see also: Atbir v. Govt. (NCT of 15 Delhi) , (2010) 9 SCC 1:(2010) 3 SCC (Cri) 1110, Paniben v. State of Gujarat (1992) 2 SCC 474 : 1992 SCC (Cri) 403 and Panneerselvam v. State of T.N., (2008) 17 SCC 190 : (2010) 4 SCC (Cri) 496]."
22. In the light of the aforesaid judgment, keeping in view the fact that the dying declaration was recorded by the learned Magistrate, the deceased has named the accused as culprit, the deceased at the time of recording the dying declaration was in full senses, there is no reason to disbelieve the dying declaration.
23. On a careful scrutiny of the evidence discussed above, we are of the opinion that from the evidence of P.Ws.1 to 3, the prosecution has established the fact that the deceased was beaten and was subjected to cruelty when she was living with the accused in their house at Motlapally. The evidence of P.W.1 further proves the fact that the deceased visited their house about three months prior to her death and their evidence further reveals the fact that she used to inform P.Ws.1 to 3 that the accused on account of his addiction to alcohol subjected her to harassment and cruelty. It is also proved that P.Ws.1 to 3 received a phone call about the incident and the deceased was shifted to Government Hospital, 16 Jammikunta for treatment and thereupon, all of them rushed to the hospital and shifted the deceased to MGM Hospital, Warangal for better treatment. However, P.Ws.1 to 3 in their evidence also stated that the deceased informed them that the accused poured kerosene and set her ablaze and that when the deceased was living with the accused, he subjected her to cruelty and harassed her and beat her by coming home drunk every day. P.Ws.4 to 7 turned hostile, but their evidence cannot be totally brushed aside and their evidence clearly and categorically proved that the deceased had out come out on to the road engulfed in flames and when she raised hue and cry, they along with others gathered and put out the flames on the person of the deceased. The deceased survived for 11 days and she succumbed to the same on 27.02.2011 at 06:45 a.m. P.W.15, the Sub-Inspector of Police, conducted inquest panchanama over the dead body of the deceased in the presence of P.W.8 and another in Ex.P-5. P.W.8 also supported the prosecution case and deposed that he was present at the time of inquest panchamama. He stated that the deceased sustained burn injuries and died on account of burns. P.W.13, Dr.J.Ammani, held 17 post mortem over the dead body of the deceased on the same day at 02:00 p.m., and found 81% burns i.e., ante mortem dermo epidermal burns. She deposed that the cause of death was due to burns. Ex.P-10 is the post mortem certificate. The prosecution has successfully proved with cogent and convincing evidence that the deceased Anitha succumbed to burn injuries.
24. In the instant case, the dying declaration is most crucial piece of evidence. The deceased in her statement categorically stated that the accused doused her in kerosene and set her ablaze, as a result of which, she sustained burns and took treatment for nearly 11 days and later succumbed to the same. The dying declaration was recorded at about 0030 hours on 17.02.2011 and the deceased was in a fit state of mind to give the statement and it was voluntary and the same was recorded by the learned Magistrate, P.W.12, in the presence of the duty doctor, who certified that the deceased was in a fit state of mind while giving the statement. Therefore, there is no reason to discard the dying declaration in this case.
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25. Keeping in view the decisions referred to supra and in view of the peculiar facts and circumstances of the case, we are satisfied that the statement made by the deceased is true and voluntary and it is consistent and it contains all the details as to the occurrence. Therefore, there is no legal impediment to make it a sole basis for conviction, even without any corroboration. In the facts and circumstances of the case, we have no reason to doubt the veracity of the statement made by the deceased in Ex.P-9 dying declaration and there can be no doubt that the appellant-accused caused the death of the deceased by subjecting her to harassment and cruelty when they were living together on account of his addiction to alcohol.
26. The question that remains to be considered is - whether the appellant-accused is liable for conviction for the offences punishable under Section 302 IPC or under Section 304 Part II IPC?
27. The circumstances that should weigh to decide whether in the given case, homicide is murder punishable under Section 302 IPC or culpable homicide punishable under Section 304 IPC, 19 is clearly explained by the Hon'ble Apex Court in MOHD RAFIQ @ KALLU v. STATE OF MADHYA PRADESH3, wherein it is held at paragraphs 12 and 13 as under:
12. The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr (1976) 4 SCC 382 notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of 3 (2021) 10 SCC 706 20 approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300."
13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, 1976 (4) SCC 382 were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh (2006) 11 SCC 444. This court observed that:
"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether 21 there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
28. The evidence of the prosecution witnesses makes it clear that the accused became alcoholic and was not leading a disciplined life. According to the version of the deceased, the accused used to come home after consuming liquor and used to pick up quarrel with the deceased every day. Even on the fateful day, when she returned home after attending coolie work, the accused had quarreled with her. When the accused himself threatened to douse in kerosene, she prevented asking him not to do. She further stated that thereupon the accused doused her in kerosene and set fire to her, leading to her suffering from burns and later succumbing to the same. It appears from the prosecution evidence the manner in which the incident had taken place and we have no doubt in our mind that the appellant had no intention of killing his wife. However, due to quarrel between them, the appellant probably in 22 a fit of rage might have set fire to the deceased. This conclusion of ours is firmed up by the fact that the deceased stated that the accused used to come drunk every day and even on the previous day, he came drunk and quarreled with her and probably, the appellant in a drunken state had not directly poured kerosene. When the accused threatened to douse himself in kerosene, the deceased prevented him and in a fit of rage, the accused committed the act of dousing the deceased in kerosene and setting her ablaze. The further fact that the deceased sustained 81% burns and has not caused immediate death and she died 11 days after the occurrence also shows that the accused had no intention of causing death of the deceased. Therefore, we feel that it is a fit case to convict the appellant-accused for the offence punishable under Section 304 Part II IPC and, accordingly, we modify the judgment of the court below to this effect.
29. In the result, the criminal appeal is partly allowed. The conviction recorded against the appellant-accused in the judgment dated 17.01.2014 in S.C.No.411 of 2011, on the file of the Principal Sessions Judge, Warangal, for the offence punishable 23 under Section 302 IPC is modified to that of offence under punishable under Section 304 Part II IPC. The appellant-accused is, accordingly, convicted and sentenced to undergo rigorous imprisonment for a period of ten years for the offence punishable under Section 304 Part II IPC. The direction to pay fine is, however, left undisturbed. Further, the conviction and sentence recorded against the appellant-accused by the court below for the offence punishable under Section 498-A IPC is hereby confirmed. Both the sentences shall run concurrently.
30. Pending miscellaneous petitions, if any, stand closed.
______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ JUSTICE A.SANTHOSH REDDY 14.10.2022 Lrkm