THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE K.SUJANA
CRIMINAL APPEAL No.497 OF 2020
JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)
This appeal is preferred by the appellant being aggrieved by the
judgment dated 16.03.2011 passed by the learned V Additional
Metropolitan Sessions Judge (Mahila Court) at Hyderabad, in S.C.No.505
of 2010 wherein, the appellant/accused was convicted for offences
punishable under 302 of IPC. He was sentenced to undergo imprisonment
for life and to pay a fine of Rs.500/-, in default of which to undergo
Simple Imprisonment for a period of one month.
2. The facts of the case are that the appellant/accused and the
deceased were husband and wife. On the night of 15.03.2010 the accused
came to the house and started quarreling with the deceased and beat her.
Consequently, she bite him on the right side of his chest. The accused
quarreled with her till morning and later their neighbour Fareeda Begum
came and settled the matter. Even after that the accused started abusing
the deceased suspecting her fidelity. With an intention to kill the
deceased, at about 10:00 A.M., the accused sent his second wife daughter
to bring milk from outside and at that time the accused abused the
deceased and took kerosene tin and poured the kerosene on her and set
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fire to her with a match stick and went into the bathroom. Due to burns,
the deceased got down steps while crying and went to the house of her
neighbour - Fareeda Begum. Immediately, Fareeda Begum with the help
of one Syed Kaleem put off the flames by wrapping the blanket. On seeing
the same, the accused joined with them and shifted the deceased to the
Osmania General Hospital, Hyderabad, for treatment. On basis of the
statement of the deceased - Sofia, Cr.No.29 of 2010 was registered under
Sections 498-A and 307 of IPC. Later, on 17.03.2010 at about 07:00 A.M.,
the accused was arrested. On 21.03.2010 at about 07:00 A.M., while
undergoing treatment Osmania General Hospital, Sofia died due to burns,
as such, the provision of law was altered from Sections 498-A and 307 of
IPC to Sections 498-A and 302 IPC.
3. To prove its case, the prosecution examined PWs.1 to 13 and
Exs.P1 to P17 and MOs.1 to 3 were marked. Basing on the evidence of the
prosecution and after hearing both sides, the trial Court vide judgment
dated 16.03.2011 convicted the accused for offence punishable under
Section 302 IPC.
4. This appeal is filed stating that the Court below failed to note that
as there was a time gap between the incident and the death of the
deceased, there was a chance of deceased being tutored by her relatives to
give statement against the accused. The trial Court ought to have noted
the fact that the Officer recorded the statement in Telugu, whereas, the
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questions were asked in Hindi and the deceased also replied in Hindi.
Basing on the circumstantial evidence and the dying declaration, the trial
Court wrongly convicted the accused. As there is no evidence on record to
prove the guilt of the accused, prayed this Court to set aside the
conviction of the accused by allowing this appeal.
5. Heard Sri G.Dinesh Patil, learned counsel for appellant, and
Sri T.V.Ramana Rao, learned Additional Public Prosecutor for respondent.
6. Learned counsel for the appellant/accused, submitted that there is no evidence on record to prove the death of the deceased and only on the basis of dying declaration, the trial Court convicted the appellant/accused and contended that there were serious infirmities in the dying declaration of the deceased, as such, the conviction and the sentence imposed on appellant/accused is not proper and prayed this Court to allow the appeal by setting aside the judgment dated 16.03.2011 and acquit the appellant/accused.
7. On the other hand, the learned Additional Public Prosecutor, vehemently, opposed the contention of learned counsel for appellant, stating that there was ample evidence on record to prove the guilt of the accused and the dying declaration itself was sufficient to prove the guilt of the accused. As such, prayed this Court to dismiss the appeal as there were no infirmities in the judgment of the Court below.
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8. Now, the points for determination are :
1. Whether the death of the deceased is homicidal ?
2. Whether the prosecution proved the guilt of the accused for the offence under Section 302 IPC beyond reasonable doubt?
3. Whether the judgment of trial Court needs interference?
POINT No.1
9. To prove that the death of the deceased is a homicidal death, the prosecution relied on the evidence of PWs.1 to 5 and Ex.P.4 - dying declaration.
PW.1 - elder sister of the deceased deposed that the first wife of the accused died and he had two children from her and the first husband of the deceased also died four years back. She further deposed that her mother informed that accused has set fire to the deceased and was shifted to the Osmania General Hospital. She also deposed that there were quarrels between the accused and the deceased as she used to not prepare food properly. In the cross examination, PW.1 deposed that she was not aware of the galata between the accused and deceased and the children from first wife of the accused had cordial relations with the deceased. She also deposed that on being informed about the incident, she went to the Hospital and later she came to know that the accused sent his daughter to bring milk and there was a quarrel between the accused and deceased throughout the night and while her sister KL, J & SKS, J Crl.A.No.497 of 2020 5 was cutting tomatoes, the accused poured kerosene on her and set fire.
PW.2 - the Tahsildar who conducted inquest panchanama over the dead body of the deceased deposed that according to the Panchayatdars, the accused was harassing the deceased and poured kerosene on her and set fire.
PW.3 resided in the same locality. She deposed that when she came to know about the death of the deceased, she went to the hospital when PW.2 was conducting inquest over the dead body of the deceased.
PW.4 - mother of the deceased, deposed that she came to know through deceased that accused was always harassing her and later, Fareeda Begum informed her that accused set fire on the deceased. PW.5 - Judicial Officer who recorded the statement of the deceased, deposed that he recorded the statement of the deceased in which she stated that her husband poured kerosene on her and set fire. PW.6 - Doctor who conducted postmortem of the dead body of the deceased, deposed that she observed 95% burns on the body of the deceased and the death was due to burns.
PW.7 - Fareeda Begum, has not supported the case of prosecution. According to the prosecution, the deceased went to PW.7 when accused poured kerosene and set fire on her and PW.7 put off the fire but the evidence of PW.7 was that the daughter of the accused KL, J & SKS, J Crl.A.No.497 of 2020 6 came to her and informed that the deceased received burns and then she went to the Police Station and presented the report. Thereafter, the Police shifted the deceased to Osmania General Hospital. Later, she informed the same to the family members of the deceased.
10. The evidence of PWs.1 and 2 would show that the deceased herself informed that the accused poured kerosene and set fire on her. The evidence of PW.5 who recorded the dying declaration would also show that the accused poured kerosene and set fire on the deceased. With regard to Ex.P4 - dying declaration, learned counsel for appellant, submitted that the dying declaration was not recorded in the language of the deceased. Therefore, the same cannot be relied upon. In support of this contention, he relied on paragraph No.15 of the judgment rendered by the Bombay High Court in Deepak Baliram Bajaj and Another Vs. State of Maharashtra 1. The relevant portion from paragraph No.15, reads as under:
"....an unusual procedure was adopted in the instant case in recording the dying declaration in as much as the patient made statements in Sindhi in answer to questions put in Sindhi. All the questions and answers were then translated into Hindi by PW.6 to enable the Constable to record the same in Marathi after translating from Hindi. While on this point it was also submitted that the process was reversed, if the evidence of PW.6 was to be believed, while explaining the 1 1993 CRI.L.J.3269 KL, J & SKS, J Crl.A.No.497 of 2020 7 contents thereof and getting the approval of a proper translation from the deponent. Another infirmity was brought to the notice about the dying declaration was that even though PW.6 asserted that he had read over and explained the contents of the dying declaration to the deceased in Sindhi, the endorsement in the dying declaration clearly showed that it was read over and explained in Hindi, and not in Sindhi".
11. From the reading of the above extracted paragraph No.15 it can be seen that the patient made statement in Sindhi in answer to questions put in Sindhi. All the questions and answers were then translated into Hindi by PW.6 to enable the Constable to record the same in Marathi after translating from Hindi. In the present case, PW.5 recorded the statement himself in Telugu, he asked the questions in Hindi and she replied in Hindi. Therefore, the above judgment is not applicable to this case. Ex.P.4 - dying declaration clearly reveals that the accused poured kerosene and set fire on the deceased, which proves that the deceased died due to burn injuries. Therefore, it can be concluded that the death of the deceased is a homicidal death. Accordingly, this point is answered. POINT Nos.2 & 3:
12. The prosecution was able to prove that the death of the deceased is a homicidal death. Ex.P.4 - dying declaration coupled with evidence of PWs.1 to 7 also shows that the accused poured kerosene and set fire on KL, J & SKS, J Crl.A.No.497 of 2020 8 the deceased, therefore, it can be concluded that the accused is responsible for the death of the deceased.
13. Now, it is to be seen whether it amounts culpable homicide amounting to murder and whether conviction awarded to the appellant under Section 302 of IPC in the facts and circumstances was justified or as to whether such conviction ought to have been under Section 304, Part II of IPC.
14. To prove the offence under Section 302 of IPC, the prosecution has to prove that the accused poured kerosene and set fire on the deceased with an intention to kill her. According to the prosecution, there were quarrels between the accused and the deceased from the night prior to the incident and the quarrel continued till the time of incident.
15. The Hon'ble Apex Court in Jai Karan Yadav Vs. State (NCT of Delhi) 2 observed as under:
"In order to consider this aspect of the matter, a perusal of the appeal papers would indicate that the appellant who is the husband of the deceased was charged of assaulting his wife Kaushalya Yadav in the matrimonial house on 14th July, 2010 at 10.30 P.M. The sole eyewitness account which was recorded was of the seven years old daughter Khushi who was examined as PW-3. The said witness on noticing her father assaulting the mother had shouted out and it is at that stage two other witnesses, namely, Sanjay and Sunil who are neighbours of the family had come to the spot. Insofar as the incident having occurred and the veracity of the evidence tendered by the child witness, there is detailed consideration made by the trial court as also the High Court and had believed the statement given by the child. Therefore the only aspect which arises for consideration herein is as to 2 Criminal Appeal No.2038/2022 dated 23.11.2022 KL, J & SKS, J Crl.A.No.497 of 2020 9 whether even if the incident is accepted in the manner in which it had occurred, was it at the spur of the moment requires further consideration in the matter.
In that regard a perusal of the evidence of PW-3 would indicate that in her cross examination she had stated with regard to the incident where her mother is said to have said something to her father on which the father started beating her mother. She also stated that she was not able to open the latch of the door to her house and she thereafter went there. Further she has stated that immediately her father had dressed up and moved her mother to the Hospital where the other family members are also stated to have gone. These aspects of the matter would indicate that there was no pre-mediation to cause the death and the incident had occurred at the spur of the moment and the appellant having realised his mistake had thereafter taken immediate steps to shift his wife to the hospital but unfortunately she breathed her last".
16. As can be seen from the record in the present case, there were no serious allegations against the accused that he was planning to murder the deceased and nowhere in the evidence of PWs.1 and 2, it was deposed that the accused demanded any dowry or suppressed the fact from the mother or sister of the deceased that he was earlier married and had two children from first wife. As seen from the evidence of PW.1 it is clear that disputes prevailed between the accused and the deceased and the accused used to abuse and quarrel with deceased as she was not preparing food properly. PW.1 and PW.2 are the sister and mother of the deceased. Though they deposed about the quarrels between the accused and the deceased, there was nothing in their evidence which goes to show that there was any motive in the mind of the accused to cause the murder of his own wife. Their evidence further goes to show that the accused and the deceased used to quarrel with each other and on the fateful day also KL, J & SKS, J Crl.A.No.497 of 2020 10 some quarrel took place between them. The evidence on record clearly shows that the accused was not intending to kill the deceased, but as there were quarrels between them from the previous night, in the spur of the moment, he poured kerosene and set fire on accused. Further, the prosecution case is that the accused himself along with neighbours, shifted the wife to hospital, shows that the incident occurred in the heat of the passion and was not a preplanned murder. In view of mitigating circumstances, we are of the opinion that the conviction under Section 302 of IPC would not be justified. Hence, we modify the judgment to hold the appellant guilty for the offence under Section 304, Part-II of IPC. Accordingly, point Nos.2 & 3 are answered.
17. The trial Court, without discussing the evidence on record in proper manner, basing on the dying declaration, wrongly came to the conclusion that accused murdered his wife with an intention to kill her and it falls under culpable homicide amounts to murder, whereas, the evidence on record is not sufficient to prove the offence under Section 302 of IPC. In view thereof, this Court is of the opinion that the impugned judgment dated 16.03.2011 is not legally sustainable and it suffers with irregularity, as such, it is liable to be interfered with.
18. Accordingly, the appellant/accused is guilty for the offence punishable under Section 304 Part-II of IPC and his conviction under Section 302 of IPC is therefore, set aside. As appellant is in jail for more than 12 years, the KL, J & SKS, J Crl.A.No.497 of 2020 11 sentence imposed on him is reduced to the period already undergone by him. In the result, the appeal is partly allowed. The bail bonds of the accused shall stand cancelled. He is set at liberty, forthwith, if he is not required in any other crime or case.
As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date :23.09.2023 PT KL, J & SKS, J Crl.A.No.497 of 2020 12 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN CRIMINAL APPEAL No.497 OF 2020 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date: 23.09.2023 PT