1. This Criminal Appeal is filed against the Judgment dated 25.03.2015 in S.C.No.524 of 2012 passed by the learned VIII – Additional District and Sessions Judge, Miryalaguda.
2. The case of the prosecution as per the complaint given by the father of the deceased on 15.04.2024, is that he is having three daughters and a son. Out of which, deceased is the second daughter. He performed her marriage with the accused about 8 years back. He gave 10 guntas of agricultural land at the time of marriage. Accused and deceased lived happily for some time and blessed with a daughter and a son. From the past 3 years, his son-in-law addicted to bad vices and obtained so many loans and insisting his daughter to sell away the 10 gts of land for clearing the loans. He along with his wife trying to convince him saying that there are children, as such the land could not be sold out. On 14.01.2012, accused insisted his daughter to sell away the land, but she refused. Immediately, he poured kerosene on her and set her ablaze. He along with his wife went to the hospital and found their daughter with burn injuries, as such he gave complaint against his son-in-law on 15.01.2012 at about 2:00 AM. Basing on the said complaint, police registered a case in Cr.No.6 of 2012, under Section 498-A and 307 of IPC. When she succumbed to injuries, section of law was altered to 302 of IPC.
3. To prove the guilt of the appellant/accused, prosecution got examined P.Ws.1 to 19 and marked Exs.P1 to P22 on their behalf and also marked M.Os.1 & 2. The trial Court after considering the oral and documentary evidence on record, convicted the accused and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default to suffer Simple imprisonment for 15 days for the offence punishable under Section 302 of IPC and also sentenced to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.100/-, in default to suffer Simple imprisonment for 15 days for the offence punishable under Section 498-A of IPC. Aggrieved by the said Judgment, accused preferred the present appeal.
4. The learned Counsel for the appellant/accused mainly contended that there is no eye witness to the occurrence and the case rests only on circumstantial evidence. The Judgment of the trial Court based on presumptions and assumptions which are not relevant to the circumstances of the case, there is no motive in the case. The evidence of the witnesses was not properly appreciated and failed to see the important links missing. There was no information regarding when the incident had occurred exactly. The trial Court instead of acquitting the accused, convicted him. Therefore, requested the Court to set aside the Judgment of the trial Court.
5. Heard arguments of both sides and perused the entire evidence on record.
6. The father of the deceased was examined as P.W.1. In his evidence he stated that the marriage of the deceased with accused was a love marriage. He was against love marriage, but later he performed the marriage and gave 10 gts of agricultural land to his daughter towards dowry. At the time of marriage, accused was doing cooli work and after marriage started running an Auto. Accused started demanding his daughter to sell 10 gts of land given by him and to bring sale proceeds to discharge his loans, but she refused. The house of his daughter is at a distance of about half kilometer from his house. When deceased was preparing poories on the fire-wood hearth, quarrel took place between the accused and deceased regarding the 10 gts of land and the accused lifted the boiling oil kadai and poured on his daughter and set fire to her with burning fire-wood. In the Cross-examination he stated that one Pothuraju Sudhakar informed him about the incident. The house of the accused is a palmyra leaves hut with little height. It was suggested to him that when she was cooking, it catches fire to the leaves and thus she sustained burn injuries, but he denied it.
7. P.W.2 is the wife of P.W.1 and she deposed in the same lines as that of P.W.1. She further stated that accused threatened them saying that he will commit suicide if they did not agree for the marriage with the deceased, as such they performed the marriage and gave 10 gts of agricultural land to her daughter. Apart from the household articles, watch and ring were also presented to the accused. She also stated that her son-in-law addicted to alcohol and indebted to several persons and forced her daughter to sell 10 gts of land for discharging his debts. When her daughter refused, accused poured Kerosene and set her ablaze with an intention to kill her. One by name Kotaiah informed them about the injuries sustained by her daughter. Immediately, they rushed to the house of the deceased and shifted her to hospital. By that time, accused was present in the house. Her daughter died on 18.01.2012. In the Cross-examination she stated that they are cultivating the 10 gts of land given to her daughter and they are in possession, but they used to pay Maktha to the accused. The children of her daughter were looking after by the accused and they are also looking after them.
8. P.W.3 is the brother of the deceased. He stated regarding the dispute between his sister and brother-in-law. When he enquired his sister, she informed that accused quarreled with her to sell the land and on refusal, accused poured kerosene on her and set fire to her. He also stated that still the said 10 gts of land is in the name of his parents and they are giving Maktha to the accused. P.W.4 is the sister of the deceased. After marriage, she was living with her husband at Thurkapally. She turned hostile. She stated that she did not know about the dispute between the deceased and accused. She further stated that children of her sister were staying with the accused.
9. P.W.5 is the Tahsildar, who recorded the dying declaration of the deceased on 14.01.2012 at about 10:50 PM. He stated that he received requisition from Nidmanoor police to record dying declaration of the deceased. He put some preliminary questions to ascertain her condition. After satisfying that she was in fit state of mind to give statement, he obtained the endorsement of the duty doctor. After recording the statement, he explained the contents of the statement and again the duty doctor certified the statement that she was in fit state of condition. The statement was recorded by him from 10:50 PM to 11:20 PM, on 14.01.2012 and Ex.P2 is the dying declaration recorded by him. P.W.6 is the neighbor and he turned hostile. P.W.7 is the known person. He stated that deceased committed suicide by pouring kerosene. P.W.8 is the neighbor. He also stated that deceased poured kerosene herself and died and at this stage he turned hostile. The case of the prosecution is that accused made extra judicial confession before P.W.9, but he turned hostile. He stated that deceased died by pouring kerosene herself. He also stated that he had not acted as elder to settle the dispute between them.
10. P.W.10 is the panch witness for the scene of offence panchanama marked under Ex.P6, but he stated that he did not know the contents of Ex.P6 and declared hostile. He admitted his signature on Ex.P7-rough sketch. P.W.11 is another panch witness for scene of offence panchanama and for rough sketch and he also turned hostile. P.W.12 is the panch witness for inquest panchanama. He stated that he scribed his signature on Ex.P10-inquest panchanama, but he did not know the contents of Ex.P10. P.W.13 is another panch witness for inquest panchanama. He stated that deceased is the daughter of his junior paternal uncle. He came to know that deceased poured kerosene herself and set fire, there can be disputes between accused and deceased. P.W.14 is the panch witness for confession panchanama of the accused, but he stated that he cannot say the contents of Ex.P11-confession panchanama and it was already drafted by the time he went to the police station. P.W.15 is another panch witness for confession panchanama, but he also turned hostile. He stated that police obtained his signatures on white papers. Ex.P12 is his signature.
11. P.W.16 is the Assistant Sub-Inspector of Police, who received Ex.P1 and issued FIR under Ex.P13. He stated that he received information from Miryalaguda I-Town Police Station to get dying declaration from the injured and enquired about the Magistrate. As he is not available, he issued requisition to Tahsildar, Miryalaguda to record dying declaration. Accordingly, he recorded the statement of P.W.1, deceased and some other witnesses. He stated that P.W.1 came to police station on 15.01.2012 at about 2:00 AM and gave complaint. He stated that he has not mentioned the colour of the plastic can and the company of the Match box in Ex.P6. For the first time he stated about the colour of the plastic can in his evidence. P.W.17 is the C.I. of Police. He arrested the accused on 20.01.2012. He recorded the confessional statement of the accused under Ex.P11. He also stated that P.W.8 stated before him as in Ex.P4 and P.W.9 stated before him as in Ex.P5 and after completing investigation filed charge sheet. P.W.18 is the S.I of Police, who altered the Section of Law from Section 307 IPC to 302 IPC and Ex.P15 is the Section alteration memo. P.W.19 is the Assistant Professor, Department of Forensic, Gandhi Hospital, Secunderabad, who conducted autopsy over the dead body of the deceased. He stated that burns are above 90% and 90% of the body surface area is involved. He also stated that cause of death is due to septic due to infected burns. The injured died on 18.01.2012 at about 3:30 AM. Ex.P22 is the certificate issued by him.
12. The trial Court relying upon the dying declaration recorded by the Tahsildar and also the evidence of other witnesses convicted the accused. Complaint was lodged by the father of the deceased on 15.01.2012 at about 2:00 AM and dying declaration was recorded on 14.01.2012 from 10:50 PM to 11:20 PM. Tahsildar stated that before recording the statement he put some preliminary questions to the deceased and also recorded the dying declaration in Telugu and Doctor also certified that she was in good state of mind, conscious and coherent to give statement. In the dying declaration, deceased informed that her mother gave 10 gts of land to her at the time of marriage. Her husband was harassing her from three years to sell that land for clearing his loans, but she informed him that it should be kept for the children and he has to clear all his loans with his earnings. On 14.01.2012 at about 11:00 AM, he beat her, as such she stated that she want to go to her parent’s house, but he has not allowed her, then she stated that if he did not allow her, he will see her dead body. Immediately, her husband stated that “why should you die, I will kill you” and accordingly poured Kerosene and set her ablaze. This clearly shows that there was no pre-meditation. When there was altercation between accused and deceased, in a fit of anger accused poured kerosene on the deceased and set her ablaze.
13. Dying declaration was received by the Tahsildar one day before receiving complaint. How he received information before lodging of the complaint was not explained anywhere. P.W.16 also stated that he received report on 15.01.2012 at about 2:00 AM and immediately enquired about Magistrate. When the Magistrate was not available, he issued requisition to Tahsildar to record dying declaration. The Tahsildar instead of putting the date as 15.01.2012, he put the date as 14.01.2012. P.W.16 simply stated that when he enquired about the Magistrate, he could not get his presence, as such he requested the Executive Magistrate to record the statement, but the victim survived till 18.01.2012. He should have given another requisition to Magistrate either on the same day or the next day to record the statement, but he failed to do so. Moreover, the question of non-availability of the Magistrate does not arise. When the Magistrate is leaving the head quarters, in-charge officer would be kept in his place for recording dying declarations and for attending remands. In this case, A.S.I of Police simply stated that Magistrate was not available. Naturally, the dying declaration recorded by a Judicial Magistrate has much sanctity, as he records statement by duly following Criminal rules of practice. Even in this case, Tahsildar had put some preliminary questions, took endorsement of the Doctor and recorded the statement of the victim in the vernacular language and also stated the same in his evidence before the Court. Therefore, it cannot be totally brushed aside, but the A.S.I of Police was negligent in not getting it recorded by the Judicial Magistrate when she was alive till 18.01.2012 and his conduct is deprecated.
14. Section 302 of IPC is important in many ways. Person/accused of murder is tried under this section only. Further, if in the case an accused of murder is found guilty of an offence, Section 302 provides for punishment to such offenders. It states that whoever commits murder shall be punished with either life imprisonment or death (depending on the gravity of the murder) along with fine. The primary point of consideration for the Court in matters relating to murder is the intent and purpose of the accused. That is why, it is important that the object and intention of the accused is proved in cases under this section. The required materials for murder include intention (must be intended to cause death), cause of death (the act has to be done with the knowledge that the act may cause the death of another and bodily injury (there must be intent to cause such bodily injury as is likely to cause death).
15. In Basdev v. State of Pepsu' AIR 1956 SSC 488 the Apex Court held as under:
"Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.”
16. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, 'intent' and "knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat 'intent' and 'knowledge' in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC. It is in this background that the expression used in Indian Penal Code namely "intention" and "knowledge" has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. The Apex Court in Pulicherla Nagaraju @ Nagaraja Reddy vs State of Andhra Pradesh AIR 2006 SC 3010, held as under:
"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 ll. 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. 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 reference to individual cases which may throw light on the question of intention. Be that as it may.”
17. Learned counsel for the accused argued that there is no evidence to prove that there was premeditation on the part of the accused and stated that the offender must have acted in a fit of anger. The necessary requirements applicable for Section 304 – II IPC is that if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. He further argued that dying declaration of the victim was recorded by the Tahsildar. Prior to that she stated to her parents and brother and informed them about the incident, as such there are oral dying declarations. If multiple dying declarations are there, each dying declaration has to be separately evaluated on its own merits. However, in all the dying declarations she clearly stated that accused poured kerosene and set her ablaze and thus all the dying declarations are consistent. He further relied upon the decision of the Hon’ble Apex Court in the case of Abhishek sharma Vs. State (Govt. of NCT of Delhi) AIR Online 2023 SC 847, in which principles to be considered by the Court while dealing with cases involving multiple dying declarations were enumerated, and the same were extracted hereunder:
“i) The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be made in a fit state of mind.
ii) All dying declarations should be consistent. In other words, inconsistencies between such statements should be ‘material’ for its credibility to be shaken.
iii) When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purpose of corroboration of the contents of dying declarations.
iv) The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.
v) Each declaration must be scrutinized on its own merits. The Court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.
vi) When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.
vii) In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other facts such as the possibility of tutoring by relatives etc.,
18. In this case, conduct of the accused before and after the commission of offence is to be considered. No doubt, victim stated that accused poured kerosene on her and set her ablaze, but prior to that she insisted him by saying that she will definitely go to her parent’s house, if he did not allow her, he has to see her dead body. On her provocative statement, in a sudden provocation, he poured kerosene and set her ablaze. Therefore, this case clearly falls within the ambit of 304 – II of IPC, but not under 302 of IPC. Though P.Ws.1 to 3 stated regarding the payment of amount at the time of marriage, there was no demand of dowry after marriage, as such offence under Section 498-A of IPC is not proved. The accused herein is in jail from 25.03.2015 and even during the period of remand, he was in jail for 96 days and thus he is in jail for more than 9 years. Therefore, this Court finds that it is just and reasonable to modify the sentence of imprisonment as period already undergone by him, as it falls under 304-II IPC.
19. In the result, the Criminal Appeal is allowed in part. The conviction and sentence passed by the learned VIII – Additional District & Sessions Judge, Miryalaguda, against appellant/accused for the offence punishable under Section 498-A and 302 of IPC, by judgment dated 25.03.2015 in S.C.No.524 of 2012, is modified to that of Section 304 Part-II of I.P.C and is reduced to the period already undergone by him and he shall be set at liberty forthwith, if he is not required in any other case. M.Os.1 & 2 shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.
