Chityala Srinivas Srinu vs The State Of A.P. Rep., By Its Pp
2022 Latest Caselaw 4318 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                       AND
     THE HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

               Criminal Appeal No.1155 of 2013

JUDGMENT     (per Hon'ble Sri Justice A. Venkateshwara Reddy):

This Criminal Appeal is directed against the judgment

dated 26.11.2013 in Sessions Case (SC) No.239 of 2012 on

the file of the learned VI Additional District and Sessions

Judge at Siddipet, wherein and whereunder the accused

No.1 was found guilty of the offence punishable under

Section 302 of the Indian Penal Code, 1860 (for short 'IPC'),

convicted under Section 235 (2) of the Criminal Procedure

Code, 1973 (for short 'Cr.P.C.') and sentenced to undergo

life imprisonment and to pay a fine of Rs.500/-, in default

to suffer simple imprisonment for two months for the said

offence, whereas the accused No.2 was found not guilty

and he was acquitted under Section 235 (1) of Cr.P.C. for

the said offence.

2. The appellant is the accused No.1 (for short 'A.1').

The prosecution story in brief is that A.1 is the younger

brother of PW.1. The deceased is the father of PW.1 and

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A.1, whereas accused No.2 (for short 'A.2') is the younger

brother of deceased and they are native of Jaligama Village,

Gajwel Mandal, Medak District. There was a land dispute

between the deceased and A.2 and as such, A.2 developed

enimity over the deceased and his family, instigated A.1 to

kill the deceased by making him to addict liquor. On

24.10.2012 A.1 brought bullocks, but he did not give

fodder and water to them, as such on 25.01.2012 the

deceased scolded A.1. But he did not listen the words of

his father (deceased person), taking advantage of the same,

A.2 abetted A.1, made him to consume liquor and

instigated to kill the deceased-Ramulu. A.1 returned to the

house at about 23:00 hours and again the deceased

scolded A.1 for not fetching water and fodder to the

bullocks. On that A.1 picked up quarrel with the deceased

stating that the deceased has been insulting him by

scolding in the public, beat him with hands, pushed him

down, thereby the deceased collapsed. Thereafter, A.1

poured kerosene on the deceased which was available in

the stove and set fired him. Meanwhile, PW.1 rescued the

deceased, shifted him to the Gandhi Hospital at

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Secunderabad. On the report lodged by PW.1, this case in

Crime No.22 of 2012 of P.S. Gajwel, was registered for the

offence punishable under Section 307 of IPC.

3. In the course of investigation, the Investigating

Officer gave a requisition to the learned Additional Chief

Metropolitan Magistrate to record the dying declaration

and obtained the dying declaration of the deceased. While

the investigation was in progress, the accused were

arrested on 27.01.2012 and that on 29.01.2012 received

message that the deceased while undergoing treatment at

Gandhi Hospital succumbed to injuries and on this the

section of law is altered. The investigation discloses that

A.1 and A.2 have committed the offences punishable under

Sections 302 and 109 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 having registered the case, vide SC No.239 of 2012,

made over the same to the learned VI Additional District

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and Sessions Judge, Siddipet. The learned VI Additional

Sessions Judge has framed the charges against the

accused for the offences punishable under Sections 302

and 109 of IPC, to which they pleaded not guilty and

claims to be tried.

5. During the trial on behalf of the prosecution, in all

PWs.1 to 14 are examined and Exs.P.1 to P.20 are marked.

After closure of prosecution evidence, the accused were

examined under Section 313 of Cr.P.C. with reference to

incriminating oral and documentary evidence, the accused

have denied the said offence in toto. No defence evidence is

adduced. The trial Court after hearing the parties, found

A.1 guilty for the offence punishable under Section 302 of

IPC and he was sentenced to undergo life imprisonment

and to pay a fine of Rs.500/-, in default to suffer two

months simple imprisonment. Whereas, A.2 was found not

guilty and he was acquitted under Section 235 (1) Cr.P.C.

Against the said judgment dated 26.11.2013 in SC No.239

of 2012, the appellant/A.1 has preferred this appeal.

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6. Heard the learned counsel for the appellant/A.1 and

the learned Public Prosecutor. Perused the material

available on record. The detailed submissions made on

either side have received due consideration of this Court.

7. The prosecution has in all examined 14 witnesses in

support of their case. Among them, PW.1 is the de facto

complainant and eye witness to the occurrence of the

incident. He gave First Information Report. He is the elder

son of deceased and also elder brother of A.1. This witness

turned hostile and did not support the contents of the

report lodged by him as in Ex.P.13. He has only identified

his signature on Ex.P.13 as in Ex.P.1. PW.2 is the wife of

PW.1. Though she is also cited as eye witness to the

occurrence of the incident, she too turned hostile and did

not support the prosecution case. PW.3 is another family

member. This witness also not supported the prosecution

case. Thus, PWs.1 to 3 who are the immediate family

members did not support the prosecution case.

8. PWs.4 and 5 are neighbours and eye witnesses to the

occurrence of incident. Both the witnesses turned hostile.

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PW.6 is the circumstantial witness. This witness also did

not support the prosecution case. PW.7 is the son-in-law of

deceased, who is cited as circumstantial witness and he

has also not supported the prosecution version. PW.8, who

is a panch witness for scene of offence and inquest, turned

hostile, whereas PW.9 is only a panch for inquest, this

witness also turned hostile. Thus, PWs.1 to 3 being the

immediate family members and de facto complainant did

not support the prosecution case. PWs.4 to 7, who are the

neighbours and son-in-law and who are cited as

circumstantial and eye witnesses, also did not support the

prosecution case. Equally, PWs.8 and 9 who are the panch

witnesses for seizure and inquest panchnama turned

hostile and they did not support the prosecution case.

9. The rest of the witnesses are PW.12, the learned

Additional Chief Metropolitan Magistrate, who recorded the

dying declaration as in Ex.P.19. PW.13 is the Doctor, who

conducted autopsy over the dead body of deceased at

Gandhi Hospital as in Ex.P.20. PWs.10, 11 and 14 are the

Investigating Officers. Thus, in essence the prosecution has

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only relied on the oral evidence of PWs.10 to 14 and

Ex.P.19-dying declaration and the trial Court believed the

same and found A.1 guilty for the offence punishable under

Section 302 of IPC.

10. The learned counsel for the appellant/A.1 seeks to

submit that the plea of accused is one of the total denial

and when he was examined under Section 313 of Cr.P.C.,

he denied the entire evidence as false. Though as per the

prosecution case PW.1 was present at the time of incident,

he failed to support the prosecution case and he has not

even supported the FIR-Ex.P.13. Even as per the dying

declaration, the accused was in intoxicated condition and

that he was not in his senses. Accordingly, if the dying

declaration is believed to be true and reliable, the A.1 has

only inflicted burn injuries on the deceased, he had no

intention to kill the deceased and that the offence

punishable under Section 302 of IPC is not made out and

at the most, the offence may fall under Section 304 Part-II

of IPC and relied on the principles laid in the following

decisions:

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i) Kalu Ram v. State of Rajasthan1;

ii) Ramasamy v. State by the Inspector of Police, Erode Taluk Police Station, Erode in Criminal Appeal No.674 of 2017 dated 05.02.2019 before the High Court of Judicature at Madras.

iii) Surain Singh v. State of Punjab in Criminal Appeal No.2284 of 2009 dated 10.04.2017 on the file of the Hon'ble Supreme Court of India.

11 i) In Kalu Ram's case (first supra), the appellant/

accused was in a highly inebriated stage when he

approached the deceased with a demand for sparing her

ornaments and as her refusal to oblige, he poured kerosene

on her and wanted her to lit the match-stick. When she

failed to do so, he collected the match-box and ignited one

match-stick, but when flames were up, he suddenly and

frantically poured water to save her from the tongues of

flames. Therefore, considering the fact that the accused

was in highly inebriated stage at the time of incident,

AIR 2000 SC 3630

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conviction from the offence punishable under Section 302

IPC was altered to Section 304 Part-II IPC.

ii) In Ramasamy's case (2nd supra) also, a Division

Bench of Madras High Court was dealing with similar facts

wherein the appellant/accused was inebriated condition

and in a fit of anger, whilst deprived of his power of self

control, committed the offence by a single hit. Accordingly,

conviction and sentence was altered from 302 IPC to 304

Part-II IPC taking into consideration of the nature of

injuries, time gap between the time of infliction of the

injury till the date of death of injured and the inebriated

condition of the accused.

iii) In Surain Singh's case (3rd supra), the Apex

Court considering the facts of the case in view of the bitter

hostility between the warring factions to which the accused

and the deceased belonged, as criminal litigation was going

on between these two factions, altered the conviction and

sentence from 302 of IPC to 304 Part-II of IPC.

12. Reverting back to the facts of the case on hand, the

trial Court has believed and relied upon the Ex.P.19-dying

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declaration of the deceased, recorded by the learned

Magistrate-PW.12 and the appellant/A.1 was found guilty

for the offence punishable under Section 302 of IPC.

13. For better appreciation of the facts, the relevant

portion of Ex.P.19-dying declaration is extracted as under:

"Q: How you are burnt?

Ans: Yesterday when I sat in our house along with my elder son and my younger son Sreenu and I requested my sons to give money, then my younger son suddenly get up from his place and poured kerosene on me and set ablaze.

Q: What is the reason to pour the kerosene on you?

Ans: I asked money, for that only my younger son poured kerosene on me.

      Q:    Are you speaking true?

      Ans: Yes, I am speaking true.       At that time Sreenu
            was in drunken condition."

14. On careful perusal of the relevant portion of dying

declaration, as extracted above, it is crystal clear that the

deceased requested PW.1 and A.1 for money, then all of a

sudden, A.1 got up from his place and poured kerosene on

him and set fired him and at that time, A.1 was in drunken

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condition. It is pertinent to note that it is also the case of

the prosecution that A.2 instigated A.1 and on the fateful

day he made A.1 to consume liquor and that after

consuming liquor, A.1 returned to home at about 23:00

hours on 25.11.2012 and immediately after return, the

said incident occurred.

15. It is not the case of prosecution that A.1 on his own

voluntarily inebriated and that he had an intention to kill

the deceased under the guise of intoxication to avoid

consequences. Apart from Ex.P.19-dying declaration and

evidence of PW.12-learned Additional Chief Metropolitan

Magistrate, who recorded the dying declaration, there is no

other piece of legally acceptable and reliable evidence to

link the accused with the incident. Thus, even if Ex.P.19

and the oral evidence of PW.12 are taken into

consideration in its entirety, it would only establish that

A.1 was in intoxicated condition and that he along with

PW.1 and deceased were sitting in the house, when the

deceased requested for money, all of sudden A.1 got up

from his place poured kerosene and set fired him.

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16. None of the witnesses including PW.1, who is the de

facto complainant and eye witness to the occurrence, have

supported the prosecution version as to the manner of

occurrence of the incident. There is no evidence of enimity

between A.1 and the deceased. There is no evidence of

premeditation to cause the death. The A.1 was in

intoxicated condition as per Ex.P.19 and was not in his

senses, he has no knowledge that his act is likely to cause

death of the deceased. Thus, in that view of the matter,

the A.1, who is deprived of self-control as he was in

inebriated condition, in a fit of anger when the deceased

demanded money, poured kerosene on him, pushed him on

to the ground and set fired by him. Neither he had any

intention or motive to kill nor aware or had knowledge that

such injury would cause the death of deceased.

17. This evidence and fact situation would lead to the one

and only irresistible conclusion that A.1 had no knowledge

and he is deprived of self-control, as he was in involuntary

inebriated condition, in a fit of anger, poured kerosene,

pushed the lamp, thereby the deceased sustained burn

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injuries. The incident occurred on 25.01.2022, whereas

the deceased succumbed to injuries after four days i.e., on

29.01.2022. All these circumstances are sufficient to take a

lenient view even against A.1. Therefore, we are of the

considered view that the oral evidence of PW.12, contents

of Ex.P.19 supported by the evidence of Doctor-PW.13 and

the contents of Ex.P.20-post mortem examination report

coupled with the evidence of Investigating Officers, PWs.10,

11 and 14 would only establish the essentials for the

offence punishable under Section 304 Part-II of IPC and

not under Section 302 IPC against A.1.

18. Be it stated that in similar circumstances, the Apex

Court in Kalu Ram's case (first supra) held that in the

absence of knowledge, intention or motive to the accused to

kill the deceased, the conviction under Section 302 of IPC

cannot sustain and altered to under Section 304 Part-II of

IPC.

19. Thus, considering the factual scenario of the case on

hand, legally acceptable evidence available on record, in

the background of the legal principles laid down by the

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Apex Court in Kalu Ram's case (1st supra), we arrive at a

inevitable conclusion that the appellant/A.1 was in

involuntary inebriated stage, he was not in his senses and

it was not a premeditated act, he had no intention to kill

the deceased and as such the offence committed may fall

under Section 300 - Exception-4, consequently, the

conviction of A.1 is altered from 302 of IPC to 304 Part-II of

IPC. Both sides conceded that the appellant/A.1 is in jail

from the date of judgment dated 26.11.2013 in SC No.239

of 2012.

20. In the result, the Criminal Appeal is partly allowed, to

meet the ends of justice, the conviction of accused No.1 is

altered from the offence punishable under Section 302 of

IPC to the offence punishable under Section 304 Part-II IPC

and the sentence of life imprisonment is altered and

modified to one for the period already undergone since he

is in jail from 26.11.2013 i.e., from the date of judgment in

SC No.239 of 2012 and to pay a fine of Rs.500/- (Rupees

Five Hundred only), in default to suffer simple

imprisonment for one month.

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21. The appeal is disposed of accordingly and the

appellant/Accused No.1 shall be set at liberty forthwith, if

he had already paid the fine amount as indicated above.

__________________________________ A. VENKATESHWARA REDDY, J.

_____________________________________ G. ANUPAMA CHAKRAVARTHY, J.

Date: 26.08.2022 Isn