THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
AND
THE HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.646 OF 2014
JUDGMENT: (Per Hon'ble Sri Justice A.Venkateshwara Reddy)
This Criminal Appeal is directed against the judgment
dated 31.03.2012 in Sessions Case No.686 of 2011 on the file
of the learned III Additional District and Sessions Judge at
Nalgonda, wherein the sole accused was found guilty for the
offences punishable under Sections 498-A and 302 of Indian
Penal Code (for short 'IPC'), convicted under Section 235(2) of
Criminal Procedure Code (for short 'Cr.P.C.') and sentenced to
suffer rigorous imprisonment for a period of two years for the
offence under Section 498-A of IPC and to undergo life
imprisonment for the offence punishable under Section 302 of
IPC.
2. The prosecution story in brief is that the deceased Perla
Chandrakala @ Chandramma is the wife of sole accused, their
marriage was performed about thirty years prior to her death,
they were blessed with three children, she was working as a
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labourer in Nalgonda Municipality whereas her husband, the
accused herein was not doing any work, addicted to bad vices
and used to harass the deceased for money. As usual, on
29.07.2010
the deceased Chandrakala @ Chandramma went to attend the work and returned back at 10.00 A.M. While she was taking meals, the accused came and demanded her for an amount of Rs.600/-, picked up quarrel with her and poured kerosene on her and set fired her with an intention to kill. She was admitted in the Government Hospital, Nalgonda with burn injuries. Her statement was recorded by the police of Nalgonda-I Town. Basing on the statement of the deceased Chandramma, a case in Crime No.164 of 2010 was registered.
3. In the course of investigation witnesses were examined, requisition was also given to the learned Magistrate for recording the dying declaration of the deceased. Section 164 Cr.P.C. statements of PWs.2 and 3 were also recorded. Investigating Officer has examined the witnesses. While investigation was in progress, the accused was arrested on 01.08.2010 and was sent to judicial custody and that on 08.08.2010 the victim Chandrakala @ Chandramma AVR,J & GAC,J Crl.A_646_2014 Page 3 of 19 succumbed to the burn injuries and died in the hospital. Accordingly, the Section of law is altered to Section 498-A and under Section 302 of IPC. Post-mortem examination was also conducted. The doctor, who conducted the autopsy over the dead body of the deceased has opined that the death was due to 50% to 55% mixed burns. The investigation discloses that the accused has committed the offences punishable under Section 498-A and 302 of IPC.
4. From the material available on record it appears that after giving necessary copies, as required under Section 207 of Cr.P.C., the case was committed by the learned Magistrate to the Court of Sessions. The learned Sessions Judge, Nalgonda registered this case vide S.C.No.686 of 2011 and made over it to the learned III Additional District Judge at Nalgonda. Learned III Additional District Judge has framed the charges against the accused for the offences punishable under Sections 302 and 498-A of IPC to which, he pleaded not guilty and claimed to be tried.
5. During trial, on behalf of prosecution, in all, PWs.1 to 17 are examined, Exs.P1 to P16 and MO.1 are marked. After AVR,J & GAC,J Crl.A_646_2014 Page 4 of 19 closure of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating oral and documentary evidence, he denied the same in toto. No defence evidence is adduced. The trial Court after hearing both the parties and upon considering the oral and documentary evidence available on record, found the sole accused guilty for the offences punishable under Sections 498-A and 302 of IPC and sentenced him to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 498-A of IPC and to undergo life imprisonment for the offence punishable under Section 302 of IPC.
6. Feeling aggrieved by the said findings of the trial Court, the sole accused has preferred this appeal.
7. Heard learned counsel for the appellant / accused and learned Public Prosecutor for the State. Perused the material available on record. The detailed submissions made on either side have received due consideration of this Court.
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8. The prosecution has in all examined 17 witnesses and among them, PWs.1 and 2 are the son and daughter of the deceased and the accused. PWs.3 and 6 are the independent circumstantial witnesses of the same locality both turned hostile and did not support the prosecution case. PW4 is the co-sister of the deceased and PW5 is the son of PW4. Both these witnesses also turned hostile and did not support the prosecution case. PW7 is the photographer, who obtained Ex.P5 photographs at the instance of police officials on the dead body of the deceased and the scene of offence. PWs.8 to 10 are the independent witnesses to the occurrence of the incident but all these witnesses did not support the prosecution case. PW11 is panch-witness for seizure panchanama under Ex.P9 for seizure of MO1 plastic container. Though in the chief-examination, this witness has spoken in support of the prosecution case, in the cross- examination, he has clearly stated that he is not aware of the contents Ex.P9 panchanama. PW12 is a panch-witness for inquest over the dead body of the deceased as in Ex.P10. PW13 is the learned Judicial First Class Magistrate, who recorded 164 Cr.P.C. Statement of PWs.2 and 3. PW14 is AVR,J & GAC,J Crl.A_646_2014 Page 6 of 19 another learned Magistrate, who recorded the dying declaration of the deceased as in Ex.P12. PW15 is the doctor, held autopsy over the dead body of the deceased under Ex.P13. PWs.16 and 17 are the Investigating Officers.
9. PW1 son of the deceased has stated that the accused was idle, addicted to alcohol and used to quarrel with the deceased often with a demand for money. Further stated that on the date of incident, he left the house along with his auto and at about 11.00 A.M. he was informed that his mother has sustained burn injuries and she was shifted to Government Hospital, immediately he rushed to the hospital and found her in emergency ward. This witness has stated that his enquiries revealed that the accused demanded for Rs.600/- from the deceased and poured kerosene, set fired her while she was taking meals in the house. This witness has stated in the cross-examination that he alone visited the hospital and that the scene of offence was in the kitchen room. He also stated that they used to cook with kerosene pump stove. He denied all other suggestions given to him.
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10. PW2, who is the sister of PW1 and daughter of deceased and accused, has supported the entire evidence of PW1. However, in the cross-examination she has stated that the deceased used to earn Rs.4,000/- per month and when she went to hospital her younger maternal aunt viz. Poolamma was present near the deceased and that the incident took place in the kitchen and that she was not present at the time of incident.
11. PWs.3 and 6 are the independent witnesses of the same locality. Their evidence is only to the effect that they have observed the house of Chandrakala @ Chandramma and on enquiry they came to know that she sustained burn injuries and PW3 made a phone call from his cell phone for 108 Ambulance for shifting the deceased to the hospital. Though these two witnesses were cross-examined by learned Additional Public Prosecutor, nothing worth mentioning is elicited in favour of the prosecution to show that they are eye witnesses to the incident.
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12. PW4 is the co-sister of the deceased and PW5 is her son. PW4 has testified that she noticed an ambulance coming to the house of Chandrakala @ Chandramma and on enquiry she came to know that the said Chandramma received burn injuries but she is not aware of the family affairs of Chandramma and the accused. PW5 also deposed in similar lines and further stated that the deceased died after seven days while undergoing treatment. Though these two witnesses were also cross-examined by learned Additional Public Prosecutor, nothing is elicited support of the prosecution case.
13. Similarly, PWs.8 to 10, who are cited as independent eye witnesses to the occurrence of the incident, have categorically stated that they are not aware of the family affairs of the deceased and the accused, but they came to know through the locality people that the deceased received burn injuries. Though all these witnesses were cross- examined by learned Additional Public Prosecutor, nothing is elicited in support of prosecution case.
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14. PW7 is the photographer, he obtained photographs over the dead body of the deceased as in Ex.P5 at the instance of police officials.
15. PW11 is a panch-witness for seizure of plastic container under seizure of panchanama as in Ex.P9 along with rough sketch. Though initially in the chief-examination this witness has supported the case of prosecution, in the cross- examination this witness stated that he did not verify the smell of kerosene in MO1 (plastic container) and he has not gone through the contents of Ex.P9 and that he does not know how the deceased died.
16. PW12 is a panch-witness for inquest panchanama over the dead body of the deceased under Ex.P10. In the cross- examination this witness stated that the deceased is his junior maternal aunt, he visited Government Hospital three or four days after the incident and denied all other suggestions given to him. His evidence almost remained consistent and in-fact there is no dispute as to the death of deceased and cause of her death.
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17. PW13 is the learned Judicial First Class Magistrate. This witness stated that she received a requisition from the police for recording Section 164 Cr.P.C. Statements of PWs.2 and 3 and recorded the same on 21.08.2010. However, in the cross-examination she has stated that the witnesses were produced before her by the concerned police, PW3 has not stated before her that the accused poured kerosene and set fired the deceased since she refused to give money as demanded by him on the date of incident.
18. PW14 is the learned Judicial Officer, who recorded the dying declaration of the deceased. This witness has stated that on 29.07.2010 at about 03.05 P.M. he received requisition for recording dying declaration of the deceased and accordingly, he proceeded to the hospital by 03.10 P.M., the duty doctor has identified the deceased and satisfied certified that she is the victim who gave statement. He also satisfied about the fitness of deceased to give statement by putting preliminary questions and recorded the dying declaration as in Ex.P12.
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19. PW15 is the doctor, who conducted autopsy over the dead body of the deceased as in Ex.P13. This witness testified that the cause of death of deceased is due to 50% to 55% of mixed burns. In the cross-examination, he stated that the victim was conscious when she was brought to the hospital and that there was a chance of survival of the patient, who sustained 50% to 55% of mixed burns.
20. PW16 is the Investigating Officer, who recorded the statement of deceased under Ex.P14 and issued FIR as in Ex.P15. He also altered the Section of law from Section 307 of IPC to Sections 498-A and 302 of IPC and handed over the investigation to PW17.
21. PW17 is another Investigating Officer, he testified that he received case file from PW16, verified the investigation done by him, held inquest over the dead body of the deceased in the presence of PW12 and Sri J.Saidulu (LW16), dead body was sent for post-mortem examination, obtained photographs, he also gave a requisition to the learned Magistrate for recording Section 164 Cr.P.C. Statements of AVR,J & GAC,J Crl.A_646_2014 Page 12 of 19 the witnesses. He effected arrest of the accused and after completion of investigation, filed charge-sheet
22. On a careful appreciation of entire evidence discussed above, there is no eye witness to the occurrence of this incident that took place on 29.07.2010. PWs.1 and 2 are son and daughter of the deceased and accused. PW1 went along with his auto rickshaw by 10.00 A.M. on that day and whereas, PW2 went to the school. However, they have spoken through about the previous conduct of the accused, who used to quarrel with the deceased with the demand for money. Both these witnesses have stated that the accused was addicted to bad vices such as consuming alcohol and he was not doing any work and he was harassing the deceased. Rest of the witnesses PWs.3 to 6 and 8 to 10 though cited as circumstantial witnesses, relatives and independent eye witness to the occurrence of incident, all of them turned hostile, did not support the prosecution case. Thus, the prosecution has to necessarily rely upon the dying declaration under Ex.P12 and the oral evidence of PW14 the learned Judicial Officer, who recorded Ex.P12.
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23. As per the oral evidence of PW14 on 29.07.2010 he received a requisition from the Government Hospital, Nalgonda for recording the dying declaration. Accordingly, he recorded the dying declaration of the deceased. Ex.P11 is the said requisition and Ex.P12 is the dying declaration recorded by him. Though he was cross-examined, nothing worth mentioning is elicited to disbelieve his evidence nor anything is elicited with regard to procedural violations, if any committed by him.
24. The dying declaration as in Ex.P12 was recorded in Telugu in the question and answer form. The deceased has categorically stated that on that day after completing the work at 10.00 A.M. she reached her house and by that time the accused was found in the house in drunken state, he does not attend any work and on that particular day the accused beat her and poured kerosene, set fired while she was changing her clothes and she received burn injuries and that her co-sister set off the flames and shifted her to the hospital. Thus, as per the dying declaration of the deceased, as in AVR,J & GAC,J Crl.A_646_2014 Page 14 of 19 Ex.P12, the accused was in drunken state by 10.00 A.M. on that day and he is a drunkard, used to harass the deceased for money.
25. On a careful perusal of the relevant portion of the dying declaration, it is crystal clear that the accused demanded for money from the deceased on that day and he was in a drunken state, he beat the deceased and when she was changing her clothes, poured kerosene and set fired her, she was rescued by her co-sister, who is examined as PW4 but this witness did not support the prosecution case.
26. Therefore, the prosecution has solely relied upon the contents of Ex.P12 since there is no direct or circumstantial evidence except the dying declaration. Even according to the oral evidence of PWs.1 and 2 and the dying declaration under Ex.P12 the accused is a drunkard, he was not attending any work and he was harassing his wife, the deceased for money. The circumstantial evidence of PWs.1 and 2 along with contents of Ex.P12 is sufficient to establish that the accused was in intoxicated condition and that he demanded for AVR,J & GAC,J Crl.A_646_2014 Page 15 of 19 Rs.600/- from the deceased and when she refused, he beat her, while she was changing clothes, poured kerosene and set fired her, the incident occurred in the kitchen of their house. Thereafter, she was shifted to the hospital and finally on 08.08.2010 succumbed to burn injuries.
27. Learned counsel for the appellant strenuously contends that undisputedly the accused was in a state of intoxication, demanded for money from the deceased wife and set fired and hence, he cannot be attributed with an intention to kill and he can only be attributed that he had knowledge that his acts would definitely prove dangerous to the deceased and that the doctor has also admitted that a person who sustained 50% to 55% of injuries may survive and accordingly, viewed from any angle it is only an offence punishable under Section 304 part II of IPC but not under Section 302 of IPC and relied on the following decisions :
(i) Pallapolu Narsimham Rao Vs. State of Andhra Pradesh1.
(ii) Harish Kumar Vs.State (Delhi Administration)2.1
1997 (2) ALD (Crl.) 460 (AP) 2 1994 Supp. (1) Supreme Court Cases 462 AVR,J & GAC,J Crl.A_646_2014 Page 16 of 19
28. In the case of Pallapolu Narsimham Rao (1st cited supra) a Division Bench of this Court taking into consideration of the circumstances of the case including the state of intoxication on the date of incident, it was held that the appellant cannot be imputed with the intention of committing murder of the deceased and he should be attributed with the knowledge of consequences of his action of pouring kerosene and setting her on fire and held that he is liable for punishment for the offence of culpable homicide not amounting to murder and accordingly conviction was altered from the offence punishable under Section 302 of IPC to 304 part II of IPC, sentenced the accused therein to undergo rigorous imprisonment for a period of seven years.
29. In the case of Harish Kumar (2nd cited supra) the Apex Court while considering the nature of injuries and also the time gap between the time of infliction of the injuries till the date of death, which was two days after the injury was inflicted, held that it cannot be conclusively said that the injuries were sufficient to cause the death of the deceased and accordingly, the offence would be one falling under AVR,J & GAC,J Crl.A_646_2014 Page 17 of 19 Section 304 part II of IPC and not under Section 302 of IPC. Thus, conviction under Section 302 of IPC was set aside and modified for the offence under Section 304 part II of IPC and sentence of rigorous imprisonment of seven years was imposed on the accused therein.
30. Be it stated that in similar circumstances, the Apex Court in the case of Kalu Ram v. State of Rajasthan3 held that in the absence of knowledge, intention or motive of the accused to kill the deceased, the conviction under Section 302 of IPC cannot be sustained and altered to Section 304 Part-II of IPC.
31. Therefore, considering the factual scenario of the case on hand, legally acceptable evidence available on record, in the background of the principles laid by the Apex Court and Division Bench of this Court in the above decisions we arrive at an inevitable conclusion that the appellant / accused was in inebriated state, he was not in his full senses and it was not a premeditated act, he had no intention to kill the deceased though he may be having knowledge of the 3 AIR 2000 SC 3630 AVR,J & GAC,J Crl.A_646_2014 Page 18 of 19 consequences of his act of pouring kerosene and setting fire the deceased and that the deceased succumbed to the injuries after eight days of the said incident, he cannot be held liable for the offence punishable under Section 302 of IPC but only for the offence of culpable homicide not amounting to murder and liable to be convicted for the offence punishable under Section 304 part II of IPC.
32. In the result, the criminal appeal is partly allowed and to meet the ends of justice, the conviction of the accused / appellant is altered from the offence punishable under Section 302 of IPC to the offence punishable under Section 304 Part-II of IPC and the sentence of life imprisonment is altered and modified to one for the period already undergone, since the appellant/accused is in jail from 31.03.2012 onwards i.e. from the date of judgment. However, the conviction and sentence of imprisonment of two years for the offence punishable under Section 498-A of IPC is sustained and as ordered by the trial Court, both the sentences shall run concurrently and the accused shall be set at liberty forthwith.
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__________________________________ A. VENKATESHWARA REDDY _________________________________ G.ANUPAMA CHAKRAVARTHY, J Date : 29.10.2022 Abb.