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2006 DIGILAW 1390 (AP)

GANTA RAVI v. STATE OF A. P.

2006-11-10

P.LAKSHMANA REDDY, T.MEENA KUMARI

body2006
P. LAKSHMANA REDDY, J. ( 1 ) THIS appeal is filed aggrieved by the judgment of conviction and sentence dated 2-5-2005 passed in S. C. No. 103 of 2003 on the file of II Additional Sessions Judge (Fast Track court) at Parvathipuram. ( 2 ) THE brief facts of the case are as follows: the deceased Ganta Rani rs the wife of the appellant-accused. Thecase of the prosecution is that the appellant used to harass and suspect the character of the deceased and used to beat her often. While so, on 8-6-2003 at about 2 p. m. the accused after returning from Mallampeta suspected the deceased who was lying on thefloorand scolded herand kept his leg on the neck of the deceased and during the struggle the kerosene tin fell on the body of the deceased with kerosene and then the accused took the opportunity of killing the deceased and lit fire to the deceased due to which the fire broke out and the deceased cried for help and on hearing the cries of the deceased P. Ws. 1 and 3 took the injured to the hospital and in the hospital P. W. 14 recorded the statement of the injured in the presence of the doctor and registered the crime and later the Magistrate also recorded the statement of the deceased wherein the deceased stated that her husband lit fire and caused injuries to the deceased and later on the deceased died due to burn injuries and thus the accused committed the offence punishable under section 302 IPC. ( 3 ) THE learned Magistrate took the case on file and after observing all formalities duly committed the case to the Court of Sessions division, Vizianagaram by virtue of order passed under Section 209 Cr. P. C. On the basis of the said committal order the learned sessions Judge took the case on file and registered the case as S. C. No. 103 of 2003 and made over the same to the II Additional sessions Judge (Fast Track Court), parvathipuram. The learned II Additional sessions Judge, after hearing both sides, framed charge under Section 302 IPC against the accused, read over and explained the same to him for which the accused pleaded not guilty and claimed to be tried. ( 4 ) DURING thetrial, the prosecution examined p. Ws. 1 to 17 and exhibited Exs. The learned II Additional sessions Judge, after hearing both sides, framed charge under Section 302 IPC against the accused, read over and explained the same to him for which the accused pleaded not guilty and claimed to be tried. ( 4 ) DURING thetrial, the prosecution examined p. Ws. 1 to 17 and exhibited Exs. P-1 to P-21 and marked M. Os. 1 to4. Afterthe prosecution evidence was closed, the learned Judge examined the accused under Section 313 cr. P. C. during which the accused denied the incriminating evidencefoundagainst him. He has not examined any witness on his behalf. The case of the appellant-accused was of total denial. The learned Judge after considering the evidence adduced on behalf of the prosecution and also the total denial of the accused, found the accused guilty of the offence punishable undersection 302 IPC and convicted him for the said offence and sentenced him to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- in default, to suffer simple imprisonment for six months. ( 5 ) AGGRIEVED by the said conviction and sentence, the appellant-accused preferred the appeal contending that the judgment of the court below is contrary to law and weight of evidence and the learned Judge ought to have found that no motive was established in this case and entire case depends on the dying declarations of the deceased. The learned judge failed to see that it is not a case where the accused poured kerosene on the deceased. The learned Judge should have seen that p. Ws. 1 to 10 did not support the case of the prosecution and all of them weretreated hostile by the prosecution. The learned Judge erred in relying upon the dying declaration Ex. P-20 recorded by P. W. 15 and Ex. P-16 recorded by p. W. 14 and that the learned Judge failed to notice that P. W. 12 doctor did not smell any odor of kerosene on the dead body of the deceased at the time of post mortem examination. The learned Judge failed to see that P. W. 15 Magistrate did not take any steps to ascertain whether the deceased was giving the statement under any threat or coercion. There is no evidence with regard to the strained relationship between the accused and the deceased. The learned Judge failed to see that P. W. 15 Magistrate did not take any steps to ascertain whether the deceased was giving the statement under any threat or coercion. There is no evidence with regard to the strained relationship between the accused and the deceased. The learned Judge erred in not relying upon the conduct of the accused in taking the deceased to the hospital. The learned Judge failed to see that the deceased received 100% burns and therefore the dying declaration is invalid and liable to be disbelieved. ( 6 ) DURING the course of hearing, the learned legal aid counsel Smt. A. Gayathri Reddy vehemently contended that there is absolutely no direct evidence in support of the charge framed against the appellant-accused and that none of the witnesses examined on behalf of the prosecution supported the case of the prosecution and the learned Judge solely relied upon the dying declarations said to have been recorded by the Police Officer and the magistrate and that the learned Judge erred in holdingthattheaccused is responsibleforthe death of the deceased. She further submitted in the alternative that even if it is established that the accused is responsible for the burns on the deceased, Section 302 IPC does not attract as there was no pre-meditation and even according to the dying declaration only on the sudden quarrel when the accused tried to beatthe deceased, accidentally the hand of the deceased hit the kerosene tin and the kerosene fell on the deceased accidentally and therefore it is not a case where the accused committed the murder of the deceased with pre-meditated intention. ( 7 ) ON the other hand, the learned Additional public Prosecutor supported the judgment of the trial Court contending that in both the dying declarations the deceased consistently stated that it is the accused who lit fire to her. She further submitted that though according to the deceased the kerosene fell on her accidentally, she has categorically stated that after the kerosene fell on her accused lit the fire and therefore the trial Court rightly convicted the appellant-accused and there is no need for interference of this Court. ( 8 ) THE points that arise for determination in this case are: 1. Whetherthe prosecution succeeded to prove beyond reasonable doubt that the death of the deceased is a homicidal death? 2. ( 8 ) THE points that arise for determination in this case are: 1. Whetherthe prosecution succeeded to prove beyond reasonable doubt that the death of the deceased is a homicidal death? 2. If so, whether the prosecution succeeded to prove that the accused alone is responsible for the homicidal death of the deceased? 3. If so, whether the conviction and sentence for the offence punishable under Section 302 IPC are required to be modified? 4. To what relief ? ( 9 ) POINTS 1 and 2: As seen from the evidence of P. W. 12 doctor, he conducted autopsy on the dead body of the deceased on 9-6-2003 at 11 a. m. and found 89% ante mortem burns and he opined that the death was due to shock and hemorrhage. As seen from the evidence of P. Ws. 14 and 15, who are the Assistant Sub-Inspector of Police and the magistrate respectively, they stated that they recorded the statements of the deceased and the deceased stated before them that the accused set fire to her. Of course, there is no direct evidence to show that the accused lit fire to the deceased. But the law is now well settled that the dying declaration need not necessarily be supported by any direct evidence. Here is a case where the incident took place inside the house of the accused and therefore it is too much to except any direct witnesses to the incident. There is absolutely no reason for the wife to speak falsehood against her husband. The incident took place at about 2 p. m. and she was immediately taken to the hospital and the hospital sent intimation to the police and the magistrate and the A. S. I, of Police came to the hospital at about 2. 40 p. m. and recorded the statement and immediately thereafter at 3. 25 p. m. the Magistrate also went there and recorded thestatement of thedeceased. Before both the said officers the deceased categorically stated that her husband lit fire to herafterthe kerosene tinfell on heraccidentally and therefore we are unable to discard the statements made by the deceased before p. Ws. 14 and 15 wherein she stated that it is the accused who lit fire to her and hence we have no hesitation to hold that the prosecution succeeded to prove that the death of the deceased is a homicidal one. 14 and 15 wherein she stated that it is the accused who lit fire to her and hence we have no hesitation to hold that the prosecution succeeded to prove that the death of the deceased is a homicidal one. ( 10 ) NEXTLY it has to be seen whether the accused is the person who is responsible for the injuries on the deceased. As seen fromex. P-20 the statement recorded by p. W. 15 Magistrate it is clear that he took all the precautions before recording the statement to satisfy himself that the deceased was in a fit state of mind to make the statement. Further, the doctor also endorsed on the statement that the deceased was in a sound state of mind to give the statement. Merely because the deceased received 89% burns, it cannot be said that she was not in a fit state of mind to give statement. As the statements were recorded within 1 1/2 houra fterthe incident we find no reason for the deceased to make a false statement against her husband. The statement made before P. W. 14 ASl of Police is marked as Ex. P-16. In both the statements ex. P-16 and P-20 the deceased consistently stated that after the kerosene tin fell down accidentally on her, the accused lit fire to her and on account of it she received burns. There is absolutely no motive for the deceased to falsely implicate her on husband. As there was no scope for any other witnesses to witness the same, the dying declarations cannot be disbelieved on the sole ground that there is no direct evidence to corroborate the same and therefore we have no hesitation to hold that it is the accused who is responsible for the burns on the person of the deceased. ( 11 ) POINT Nos. 3 and 4: Nextly it has to be seen whetherthe culpable homicide amounts to murder. As seen from Exception 4 to section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. As perthe statements of the deceased in Exs. As seen from Exception 4 to section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. As perthe statements of the deceased in Exs. P-16 and P-20, the husband suspecting her character suddenly started beating her and in that scuffle the hand of the deceased touched the kerosene tin which was kept by her side and fell on her and then he accused lit fire to her. So, it is clear that there was no premeditation on the part of the accused to kill his wife. Even in the charge sheet the police have alleged that the accused scolded the deceased and kept his leg on the deceased and during the struggle the kerosene tin fell on the deceased and then the accused lit fire to the deceased due to which the fire broke out and deceased received burns. Therefore, it is clearthat the accused had no premeditation to kill the deceased but on account of sudden quarrel in the heat of passion he lit fire to her obviously with an intention to kill her. As per the statements Exs. P-16 and P-20, when the fire broke out, the accused immediately cried saying that his wife is burning to attract the attention of the neighbours and further in one of the statements the deceased stated that it is her husband who took her to the hospital. This conduct of the accused clearly shows that the accused had no premeditation but on account of sudden quarrel and in the heat of passion upon a sudden quarrel he lit fire to the deceased and therefore Exception 4 to section 300 IPC attracts to the facts of this case. Therefore, the conviction against the accused under Section 302 IPC is not sustainable and the conviction against the accused can only be under Section 304 IPC. Therefore, the conviction against the accused under Section 302 IPC is not sustainable and the conviction against the accused can only be under Section 304 IPC. ( 12 ) AS seen from Section 304 Part I IPC, whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. In the instant case, knowing fully well that he would cause the death of the deceased by letting fire to the deceased after the kerosene tin fell on her, the accused intentionally set fire to her and therefore in our considered opinion section 304 Part I of the Indian Penal Code applies and not Part II of Section 304 IPC. Hence, we modify the conviction against the accused from Section 302 IPC to Section 304 part IPC. ( 13 ) REGARDING the sentence, we consider that sentence of imprisonment of seven years would meet the ends of justice besides maintaining the fine of Rs. 1,000. 00. The points are found accordingly. ( 14 ) IN the result, the criminal appeal is partly allowed modifying the conviction against the accused from Section 302 IPC to the one under Section 304 Part I IPC and the sentence is modifiedfromimprisonmentforlifeto rigorous imprisonment for a period of seven years while maintaining the fine of Rs. 1,000. 00 in default to suffer simple imprisonment for six months.