Allamkonda Sammaiah vs The State Of A.P.,
2022 Latest Caselaw 5114 Tel

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.

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.

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

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

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

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

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

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.

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

(2019) 6 SCC 145

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

(2019) 13 SCC 464

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

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,

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

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.

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,

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

(2021) 10 SCC 706

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

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

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

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