Mohd. Gulam Rasool vs State Of Telangana
2023 Latest Caselaw 2660 Tel

               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
                                                              KL, J & SKS, J
                                                       Crl.A.No.497 of 2020

                                     2


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
                                                                 KL, J & SKS, J
                                                          Crl.A.No.497 of 2020

                                     3


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.

KL, J & SKS, J Crl.A.No.497 of 2020

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

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

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

1993 CRI.L.J.3269 KL, J & SKS, J Crl.A.No.497 of 2020

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

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

Criminal Appeal No.2038/2022 dated 23.11.2022 KL, J & SKS, J Crl.A.No.497 of 2020

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

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

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

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