Telangana High Court

Rasamalla Kumar , Kumaraswamy vs The State Of Telangana on 18 March, 2025

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      THE HONOURABLE SRI JUSTICE K.SURENDER
                      AND
     THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

              CRIMINAL APPEAL No.72 OF 2018
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The Appeal is filed by the appellant, aggrieved by the

judgment dated 10.02.2017, in S.C.No.92 of 2015, on the file of

Principal Sessions Judge, Warangal. The appellant was

convicted for the offence punishable under Section 302 and

sentenced to undergo life imprisonment.

2. Heard learned counsel for the appellant and Sri Arun

Kumar Dodla, learned Additional Public Prosecutor for

respondent-State.

3. According to the case of the prosecution, the appellant

and the deceased were married 10 years prior to the incident.

The deceased gave birth to one daughter and one son. Being

addicted to alcohol, the appellant was ill treating the deceased

on a regular basis. The said harassment was abetted by

accused Nos.2 to 7 (acquitted). The incident happened on

05.05.2014, around 5 p.m. There was a quarrel between the

appellant and the deceased regarding a family issue. Unable to

bear the attitude of the appellant during the quarrel, the

deceased poured kerosene on herself, and the appellant set her

on fire.

4. The complaint was filed by the father of the

deceased/P.W.1. In the complaint, it is alleged that the

appellant and the in-laws of the deceased were harassing the

deceased, and unable to bear the harassment, the deceased

poured kerosene on herself and committed suicide. While

undergoing treatment at MGM hospital, Warangal, the deceased

died. In the complaint, P.W.1 further stated that the reason for

the deceased attempting suicide was the appellant and his

relatives. The suicide was the result of constant harassment,

both physical and mental.

5. A requisition was given to the concerned jurisdictional

Magistrate for recording the dying declaration of the deceased.

The Magistrate started recording the statement of the deceased

at 1:05 a.m. on 06.05.2014, after asking preliminary questions.

Even prior to recording the statement, the Doctor endorsed that

the deceased was in a fit statement of mind, conscious, and

coherent to give the statement. After the said certification, the

Magistrate asked the deceased about the reason for her burns.

The translation of the answer given by the deceased is extracted

as under:

"Q. What happened, how it happened, tell me?

Ans. Since 9 years of my marriage, my husband was suspecting my character. He used to suspect me when I talked with anyone. He works as a laborer. He used to consume liquor and beat me with sticks or pestle. He used vulgar language by suspecting my character. I also do labour work. He used to collect money which was earned by me. He used to abuse me in filthy language. He used to abuse my parents when they came to my house. He did not allow me to go my parent's house. I have two children. One daughter and one son. My daughter, is 9 years and my son is 6 years old. He used to suspect my character when I went to coolie work. He did not allow me sit outside of my house. He used to abuse my daughter and son. Four times blood oozed from my mouth and ears. He sold my leg chains. Previously he poured kerosene on me. Night at 9-15 hours he tried to pour kerosene on me. Then due to unbearable harassment, I poured kerosene on myself. He encouraged me to pour kerosene. Then he set fire. Then I ran towards my brother's house to save myself. My in- laws also used to harass with abusive words. Somebody covered me with a blanket. The son of my junior maternal aunt and other relatives shifted me to hospital. Due to harassment and abusive words I have done like this. My husband is responsible for my situation. My in-laws, my sister-in-law and her husband used to cooperate with my husband".

Certification by duty doctor Patient is conscious, coherent and in a fit state of mind throughout recording statement".

6. On the basis of the dying declarations recorded by the

Magistrate, though the FIR was registered under Section 498-A

of IPC and for woman burning, however, the charge sheet was

laid for the offence under Section 302 of IPC, and also included

Sections 306 and 498-A of IPC. The appellant was arrayed as

A-1, and A-2, A-3, and A-7 were also prosecuted. During the

course of trial, P.Ws.1 to 11 turned hostile to the prosecution

case. P.Ws.1 to 11 are the relatives and the independent

witnesses. P.W.12, who is a photographer, speaks about taking

photographs at the scene. P.Ws.13 to 16 also turned hostile.

They are the witnesses to the scene of offence panchnama.

Learned Sessions Judge mainly placed reliance on the dying

declaration of the deceased, and convicted the appellant/A-1.

7. The basis for placing reliance on the dying declaration is

that a dying man or woman would not lie while apprehending

death.

8. It must be examined whether the dying declaration can be

relied upon for convicting the appellant. The deceased stated

before the Magistrate that since the past 9 years of marriage,

her husband had been suspecting her character. Whenever she

spoke to anyone, he would abuse her in vulgar language, take

money from her, and insult her parents. Whenever she went

for coolie work, the appellant suspected that she was having an

affair with someone. He was a labourer and used to consume

liquor. On one occasion, when the appellant beat the deceased,

blood oozed from her mouth and ears. On the date of the

incident, there was an altercation between them, and unable to

bear the harassment, she poured kerosene on herself. The

appellant encouraged her, and after she poured the kerosene,

the appellant set her on fire. Thereafter, she ran to the house

of her cousin.

9. P.W.1 has lodged the complaint alleging that there was

constant harassment by the appellant, and for the said reason,

the deceased committed suicide. However, P.W.1 completely

turned hostile to the prosecution case and did not support the

contents mentioned in the complaint that was filed by him,

which is Ex.P.1.

10. As already stated, all the independent witnesses and the

relatives of the deceased, have not stated anything against the

appellant. The only evidence that is available before the trial

Court, and now for adjudication, is the dying declaration.

11. Though there is no independent corroboration from any

quarter, however, it can be safely inferred from the statement of

the deceased that consuming alcohol and fights between the

spouses were a regular occurrence. Even on the said day,

according to the victim, she poured kerosene on herself, and

then the appellant allegedly set her on fire. Against the

background of a quarrel between the spouses and the appellant

being in a drunken state, it cannot be said that there was

premeditation on the part of the appellant to cause the death of

the deceased.

12. The Hon'ble Supreme Court, in Mohd.Rafiq Alias Kallu

vs. State of Madhya Pradesh 1, held as under:-

"The question of whether in a given case, a homicide is murder, punishable under Section 302 of IPC or culpable homicide of either description, punishable under Section 304 of IPC, has engaged the attention of courts in India for over one-and-a-half-century, since the enactment of the IPC. A welter of case law, on the aforesaid aspect exists, including perhaps several hundred rulings by the Supreme Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines "murder", however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet,

(2021)10 SCC 706

there is a subtle distinction of intention and knowledge involved in both the crimes. Such difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes."

13. The burns that were received by the deceased were on

account of the quarrel that ensued between the spouses. The

deceased poured kerosene on herself, and after the flames were

extinguished, she was taken to the hospital, where it was stated

that she had received 98% burns. In the present

circumstances, when the burning incident happened during a

fight between spouses, premeditation or intent to cause death

cannot be inferred. Keeping in view the background of the

case, we deem it appropriate to convert the conviction to one

under Section 304-II of IPC. Accordingly, the conviction under

Section 302 of IPC is set aside. The appellant is sentenced to

undergo 7 years of imprisonment under Section 304-II of IPC.