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2024 DIGILAW 767 (TS)

Mohammed Rasheed, Warangal Dist. v. P. P. , Hyd

2024-09-19

J.ANIL KUMAR, K.SURENDER

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JUDGMENT: (per Hon’ble Sri Justice K.Surender) This appeal is filed aggrieved by the judgment dated 03.12.2014 in S.C.No.190 of 2014 on the file of Principal Sessions Judge, Warangal, convicting the appellant/accused for the offence punishable under Section 498-A of Indian Penal Code (for short ‘IPC’) and sentenced to undergo Rigorous Imprisonment for three (3) years. Further, the appellant is also convicted for the offence under Section 302 of IPC and sentenced to suffer Imprisonment for Life and to pay a fine of Rs.1,000/- in default, to undergo fifteen (15) days Simple Imprisonment, under Section 235 (2) of Cr.P.C. 2. Heard Sri N.Parameswara Reddy, learned counsel for the appellant/accused and learned Additional Public Prosecutor for respondent-State. 3. Briefly, the case of the prosecution is that PW1 is the mother of deceased and the deceased/daughter was married to appellant, about 15 years prior to her death. At the time of marriage, PW1 gave Rs.10,000/- in cash, one tula gold, 15 tuals of silver and other household articles. The appellant was a Drummer in Brand Troupe and his income was seasonal. Initially, after marriage, the appellant and deceased lived happily and thereafter, the appellant started harassing her mentally and physically and was addicted to alcohol. Panchayats were held regarding the differences between the appellant and deceased. 4. On 31.10.2013, at around 9:00 p.m., the appellant forced the deceased to give Rs.15,000/- which she brought by taking loan from a Women’s Group. However, the deceased refused to part with it. For the said reason, the appellant beat her indiscriminately. On 01.11.2013, in the morning, the appellant again started beating her. In order to threaten the appellant and bring about a change in him, the deceased poured kerosene on to herself and threatened to commit suicide. At that juncture, it is alleged that the appellant taking advantage of the situation has lit matchstick and threw it on the deceased and she was engulfed in fire. She ran out of the house shouting unable to bear the pain. After putting off flames, she was shifted to hospital by PW8 and PW4 and immediately, a requisition was given to the Magistrate-PW15 for recording Dying Declaration. On 01.11.2013, learned Magistrate went to the hospital and recorded Dying Declaration. Learned Magistrate introduced herself to the deceased. She ran out of the house shouting unable to bear the pain. After putting off flames, she was shifted to hospital by PW8 and PW4 and immediately, a requisition was given to the Magistrate-PW15 for recording Dying Declaration. On 01.11.2013, learned Magistrate went to the hospital and recorded Dying Declaration. Learned Magistrate introduced herself to the deceased. The deceased stated that the appellant was ill-treating her every day on the ground that she was not having children and he used to beat and abuse her in drunken condition. Thereafter, the learned Magistrate questioned as what happened to her, then the deceased stated that she poured kerosene on to herself and the appellant lit fire to her and stated that his intention was to cause her death. To the next question as who was responsible for the situation, the deceased replied it was the appellant. While undergoing treatment, on 02.11.2013, she died at around 3:00 a.m. The Police concluded the investigation and filed charge sheet for the offences under Sections 302 and 498-A of IPC. 5. Learned Sessions Judge, on the basis of evidence of PW1 to PW18 and Exs.P1 to P9 found favour with the version of the prosecution that the accused had intentionally caused the death of the deceased by litting a matchstick and setting her on fire. The trial Judge mainly placed reliance on the Dying Declaration Ex.p3 and corroborating evidence of Pws.1, 2, 4, 6 and 7 regarding harassment. 6. Learned counsel appearing for the appellant would submit that there are no eyewitnesses to the incident and it is clear case of suicide. However, the accused is projected as murderer by the close relatives of deceased, who are PW1 and others. Even assuming that the accused lit fire on deceased, he has not poured kerosene on her nor can his intention be inferred to cause the death. The appellant has undergone nearly 10 years of Imprisonment and the offence would fall under Section 304-I of IPC and not under Section 302 of IPC. 7. On the other hand, learned Additional Public Prosecutor submits that the intention on part of the accused to cause the death of deceased is clear from the statement of the deceased. In her Dying Declaration, the deceased stated that the appellant set fire to her when she threatened to commit suicide by pouring kerosene on herself. 8. 7. On the other hand, learned Additional Public Prosecutor submits that the intention on part of the accused to cause the death of deceased is clear from the statement of the deceased. In her Dying Declaration, the deceased stated that the appellant set fire to her when she threatened to commit suicide by pouring kerosene on herself. 8. Having gone through the record, the version projected by the prosecution is that the deceased had taken loan of Rs.15,000/- from the Women’s Group. To part with the said amount of Rs.15,000/-, the appellant beat her on the previous day i.e., on 31.10.2013 and also on the date of incident i.e., on 01.11.2013. It is the specific case of PW1, PW2 and others that the incident of beating was on account of the demand made by the accused for Rs.15,000/-, however, as seen from Ex.P3/Dying Declaration, there is no mention about any kind of loan taken by the deceased. In fact, she gave a version that was not stated by any of the prosecution witnesses. The deceased stated that the appellant was harassing her since she did not have any children and used to beat her regularly in drunken condition. The version of the deceased in the Dying Declaration is contrary to the version projected by the prosecution. 9. However, the factum of the appellant setting fire to the deceased is believable. It is not the case of the accused that he was not present at the scene nor that there was no altercation between them. 10. The Hon’ble Supreme Court in Pulicherla Nagaraju Alias Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444 held as follows: 29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. 11. Though the parameters which were set forth in the above judgment are inconclusive, the Hon’ble Supreme Court in Pulicherla Nagaraju Alias Nagaraja Reddy’s case (supra 1) held that it has to be looked into whether there is any sudden quarrel or sudden fight or if there is any previous enmity. Further, the Hon’ble Supreme Court also found that if there is sudden provocation, the act would not fall within the instances described under Section 300 of IPC. Further, the Hon’ble Supreme Court also found that if there is sudden provocation, the act would not fall within the instances described under Section 300 of IPC. 12. Even according to the Dying Declaration, there was an altercation that took place between them and the deceased poured kerosene on to herself. In the said circumstances of the fight in between them, the accused has lit fire to her. The said incident happened in the heat of passion, when the deceased poured kerosene on herself and threatened to commit suicide. 13. The Hon’ble Supreme Court in Mohd.Rafiq Aliad Kallu v. State of Madhya Pradesh, (2021) 10 SCC 706 , held as follows: Held: The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC or culpable homicide of either description, punishable under Section 304 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, 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. 14. It appears that in the altercation between the deceased and the appellant, the appellant suddenly lit the matchstick and threw it on the deceased, as such, the deceased was engulfed in the flames, since she had poured kerosene on herself. In the said circumstances, it cannot be said that there was definite intention on the part of the appellant to cause the death of the deceased. 15. For the reasons mentioned above, the case falls under Section 304-I of IPC. In the said circumstances, it cannot be said that there was definite intention on the part of the appellant to cause the death of the deceased. 15. For the reasons mentioned above, the case falls under Section 304-I of IPC. Accordingly, the sentence of imprisonment imposed against the appellant for the offence under Section 302 of IPC is hereby set aside and the appellant is convicted for the offence under Section 304-I of IPC and sentenced to undergo Rigorous Imprisonment for 10 years. 16. Accordingly, the Criminal Appeal is partly allowed.