Perla Venkata Swamy, Nalgonda vs State Of Telangana, Rep. By P.P., ...
2022 Latest Caselaw 5465 Tel

   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
                                                 AVR,J & GAC,J
                                                Crl.A_646_2014
                            Page 2 of 19


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

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

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.

AVR,J & GAC,J Crl.A_646_2014

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

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.

AVR,J & GAC,J Crl.A_646_2014

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.

AVR,J & GAC,J Crl.A_646_2014

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.

AVR,J & GAC,J Crl.A_646_2014

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.

AVR,J & GAC,J Crl.A_646_2014

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.

AVR,J & GAC,J Crl.A_646_2014

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

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.

AVR,J & GAC,J Crl.A_646_2014

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

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

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.

1997 (2) ALD (Crl.) 460 (AP)

1994 Supp. (1) Supreme Court Cases 462 AVR,J & GAC,J Crl.A_646_2014

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

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

AIR 2000 SC 3630 AVR,J & GAC,J Crl.A_646_2014

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.

AVR,J & GAC,J Crl.A_646_2014

MO1 shall be destroyed as ordered by the trial Court.

__________________________________ A. VENKATESHWARA REDDY

_________________________________ G.ANUPAMA CHAKRAVARTHY, J Date : 29.10.2022 Abb.