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2006 DIGILAW 719 (AP)

OGIBOYINA KOTAIAH v. STATE OF A. P.

2006-06-26

A.GOPAL REDDY, G.YETHIRAJULU

body2006
G. YETHIRAJULU, J. ( 1 ) THIS is an appeal preferred by the sole accused in S. C. No. 96 of 2002 on the file of IX additional Sessions Judge, Guntur. He was charged forthe offence under Section 302 IPC for killing his wife by pouring kerosene and setting fire to her at 7 p. m. on 1 -9-2001 at his house. ( 2 ) THE facts leading to the conviction of the appellant are briefly as follows: The deceased was married toone person by name-Somaiah. She was blessed with two daughters and one son. Two daughters expired due to ill health. She lived with her husband for some time and as her husband is suspecting her character and beating frequently, she represented the same to the caste elders but nobody had taken interest for reconciliation between them. Therefore, she discarded her husband and later she developed illegal contact with the accused. She filed a suit for divorce from her husband and got divorce decree on 30-8-2001, afterdepositing Rs. 20,000/- by her husband in herfavour. On the same day the accused with fraudulent intention rendered the deceased to believe that he would marry her and look after her son. She agreed and accompanied with the accused to his village at Pallapatla. The accused tied Tali in front of the holy pictures of goddess and gone through the marriage ceremonies and later began to harass the deceased to give the deposited amount of rs. 20,000/- and also threatened her that if she fails to give the same, he would discard her and would rejoin with his first wife. Then the deceased learnt about the first marriage of the accused. On 1 -9-2001 at 19. 00 hours accused took the deceased into the house and picked up quarrel with her to give the amount of rs. 20,000/- kept in deposit and when she refused to concede to his demand, the accused poured kerosene and set fire to her. The deceased raised cries. On hearing the cries, the prosecution witnesses rushed to the spot and learnt about the incident and shifted the deceased to the Government Hospital, Repalle for treatment. Later, the Magistrate recorded the dying declaration of the deceased. The station House Officer, Repalle P. S. also recorded her statement and it was registered as FIR. Later, she was shifted to Government general Hospital, Gunturforbettertreatment. Later, the Magistrate recorded the dying declaration of the deceased. The station House Officer, Repalle P. S. also recorded her statement and it was registered as FIR. Later, she was shifted to Government general Hospital, Gunturforbettertreatment. A crime was registered for the offence under sections 498-A and 307 IPC of Nizampatnam police station. On 25-9-2001 at 7 p. m. the deceased succumbed to injuries. The section of law has been altered to one under section 302 IPC and further investigation has been done. The inquest was held overthe dead body of the deceased in the presence of panchas and postmortem examination was also conducted by the Medical Officer. The medical Off icer opined that the cause of death was due to burns to an extent of 75%. After completion of the investigation police laid the charge sheet. ( 3 ) THE accused pleaded not guilty of the offence and claimed for trial. ( 4 ) THE prosecution in order to prove the guilt of the accused examined P. Ws. 1 to 10 and marked Exs. P-1 to P-20 and M. Os. 1 to 4. No oral ordocumentary evidence was let in on defence side. ( 5 ) THE lower Court after considering the evidence came to the conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt and accordingly convicted him for the offence under section 302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of rs. 100/-, in default to suffer simple imprisonment for seven days. ( 6 ) THE accused being aggrieved by the judgment of the lowercourt dated 26-11-2004 preferred the present appeal. ( 7 ) THE prosecution specifically mentioned that the accused intentionally killed the deceased by pouring kerosene and setting fire in his house; whereas the accused contended that he has not committed the offence. ( 8 ) THEREFORE, the point that arises for consideration is: whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed by the lowercourt are liable to be set aside or modified? ( 9 ) THE learned counsel for the appellant submitted that except dying declaration of the deceased there is no other evidence supporting the version given by the deceased. Therefore, it is not safe to rely on the said dying declaration. ( 9 ) THE learned counsel for the appellant submitted that except dying declaration of the deceased there is no other evidence supporting the version given by the deceased. Therefore, it is not safe to rely on the said dying declaration. Shefurthersubmitted that even if the Court comes to a conclusion that the accused committed the offence, he had no intention to kill the deceased as the occurrence took place on 1-9-2001 and the deceased after 25 days succumbed to injuries i. e. on 25-9-2001. As the death was on account of infection of the injuries, it is essential to bring down the section of law 302 IPC to lesser section and sentence has to be reduced accordingly. ( 10 ) P. W. 1 -the learned Magistrate deposed that on 1 -9-2001 after receiving requisition he proceeded to Government Hospital, Repalle and recorded the dying declaration of the deceased. He further stated that on putting some preliminary questions he was satisfied that the patient was conscious, coherent and in a fit state of mind to give declaration. The doctor was also present and he also certified that the patient is in a fit state of mind to give declaration. In the said declaration the deceased stated that the accused poured kerosene on her body at 7 p. m. on 1-9-2001 and lit fire with a match stick and she further stated that the brother of the accused and other neighbours were present at the time of incident. She further stated that her husband harassed her for more money as such he poured kerosene and lit fire to her. Ex. P-1 is the dying declaration recorded by the magistrate. The relevant portion of the dying declaration reads as follows: "my husband-Kotaiah poured kerosene on meat7p. m. in the evening and lit fire. Kotaiahs elder brother and so many others are there. One of such persons name is Veeramma. The names of other persons are not stated. He used to beat me being in a drunken state and he is demanding money". The Sub-Inspector of Police-P. W. 10 also recorded her statement at 10. 30 p. m. In the said statement covered by Ex. P-12 the deceased stated that "my husband-Kotaiah quarreled with me and abused me to go out ot the house and poured Kerosene on me and lit me with fire. The Sub-Inspector of Police-P. W. 10 also recorded her statement at 10. 30 p. m. In the said statement covered by Ex. P-12 the deceased stated that "my husband-Kotaiah quarreled with me and abused me to go out ot the house and poured Kerosene on me and lit me with fire. The fire caught my saree and body was also burnt along with the saree. I received injuries on chest, both hands, back and below the waist and some other parts of the body. So many people gathered there. My husbands elder brothers wife-Nadamma and others brought to hospital and admitted for treatment". Ex. P-12 statement is corroborated with the contents of Ex. P-1. Ex. P-15-Section 161 statement was also recorded during the course of investigation and the contents of Ex. P-15 are also corroborated with the contents of Ex. P-1. ( 11 ) FROM the above statements it is very clear that there is specific allegation against the accused that he was responsible for the injuries caused to the deceased by pouring kerosene and setting fire to her. P. Ws. 2 to 4 who are said to be the eye witnesses turned hostile though did not support the prosecution version but they spoke about deceased found in flames and taking her to the hospital for treatment. P. W. 5 who stood as mediator for the scene of offence and also inquest stated that deceased died due to burns. P. W. 6-Civil assistant Surgeon deposed that on 1 -9-2001 at 9. 15 p. m. he examined the deceased brought by her father in law with kerosene burns. He admitted her in the hospital. P. W. 1-Magistrate recorded dying declaration in his presence and he made an endorsement that the patient was in a fit state of mind and she was conscious and coherent for giving statement. P. W. 7-Head Constable stated about recording Ex. P-13 statement from the deceased. P. W. 8-Sub-lnspector of Police mentioned about registering of crime and about his recording Ex. P-15 statement from the deceased. P. W. 9-Professor, Forensic medicine, Guntur Medical College stated that dr. Koteswara Rao conducted post mortem examination over the dead body of the deceased on 26-9-2001 and issued post mortem certificate covered under Ex. P-20. As per Ex. P. W. 8-Sub-lnspector of Police mentioned about registering of crime and about his recording Ex. P-15 statement from the deceased. P. W. 9-Professor, Forensic medicine, Guntur Medical College stated that dr. Koteswara Rao conducted post mortem examination over the dead body of the deceased on 26-9-2001 and issued post mortem certificate covered under Ex. P-20. As per Ex. P-20, the cause of death of the deceased to the best of his knowledge and belief is due to 75% burn and the said burns are sufficient in the ordinary course of nature to cause death. P. W. 10-lnspectorof Police mentioned about investigation done by him, the observation of scene of offence and conducting inquest and post mortem examination etc. The doctor also indicated that deceased died due to burns. Therefore, the prosecution established beyond reasonable doubt that the deceased died due to burns and the burns were caused by the accused by pouring kerosene and setting fire to the deceased. The prosecution is, therefore, made out a case against the accused beyond reasonable doubt. ( 12 ) THE learned counsel for the appellant submitted that as there was time gap between the date of incident and the death and there was no intention on the part of the accused to kill the deceased, a lenient view may be taken. In support of her contention she cited a decision of the Supreme Court in Sham madhavrao Rupvate v. State of Maharashtra wherein the accused husband alleged to have consumed liquor and get enraged by act of eating first by a deceased wife and hence set fire by pouring kerosene. The post mortem report shows that deceased did not die directly as consequence of her burns but due to septicemia. Death has occurred more than 1 1/2 months after incident. No evidence to the effect that her injuries were sufficient in ordinary course of nature to cause death. Therefore, clause (3) of Section 300 would be inapplicable and accused could be said to have knowledge that by committing said act he was likely to cause her death in terms of clause (3) of section 299. Therefore, his conviction under section 300 was altered into one under Section 304 Part II IPC. Therefore, clause (3) of Section 300 would be inapplicable and accused could be said to have knowledge that by committing said act he was likely to cause her death in terms of clause (3) of section 299. Therefore, his conviction under section 300 was altered into one under Section 304 Part II IPC. ( 13 ) THE learned counsel for the appellant, in view of the above decision, submitted that as the epidermis infected on account of burns, the same principle may be applied to the case of the accused also. ( 14 ) KEEPING in view the totality of circumstances and non-examination of the post mortem doctor and the examination of medical expert only to prove the certificate, we are inclined to bring the offence under section 304 IPC in stead of 302 IPC and we accordingly find the accused guilty of the offence under Section 304 Part II IPC and we are inclined to impose the sentence of rigorous imprisonment for 7 years by setting aside the sentence of imprisonment for life. ( 15 ) IN the result, Criminal Appeal is allowed in part and the conviction of the appellant for the offence under Section 302 IPC is set aside by convicting him for the offence under 304 part II IPC. The sentence of imprisonment for life imposed on the appellantis set aside by imposing rigorous imprisonment for seven years. The sentence of fine remains unchanged.