K. Mallaiah , Mallesh, Hyd vs P.P., Hyd

This Criminal Appeal is filed against the Judgment dated 19.09.2014, in S.C.No.111 of 2012 passed by the learned Metropolitan Sessions Judge, Hyderabad.

The case of the prosecution is that as per the statement of the deceased recorded by the Head Constable on 29.09.2011 at about 1:45 AM, one Kamma Nirmala/deceased stated that her marriage with the accused was performed 10 years back and he was working as LIC agent and he was also a CPM leader. They did not beget children. On 28.09.2011 at about 11:30 PM, accused came in drunken condition, picked up quarrel with her and in intoxicated condition poured kerosene on her and set her ablaze by scolding her in filthy language. She sustained burn injuries and immediately her paternal uncle K.Ramulu, who was residing in the neighboring street, came and extinguished fire with a blanket. In the meanwhile, her father D.Yadaiah and her brother D.Kiran also came to her and shifted her to hospital in an auto and police registered a case in Cr.No.325 of 2011 for the offence under Section 307 of IPC. Later, when she succumbed to injuries, the Section of law was altered from 307 IPC to 302 IPC.

To prove the guilt of the accused, prosecution examined P.Ws.1 to 18 and marked Exs.P1 to P12B and also marked M.Os.1 to 3. The trial Court after considering the oral and documentary evidence, convicted the accused and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC. He was also sentenced to undergo simple imprisonment for a period of 2 years and to pay an amount of Rs.5,000/-, in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 498-A of IPC. Aggrieved by the said judgment, accused preferred the present appeal.

The learned Counsel for the accused mainly contended that there were discrepancies in the statement recorded by the Head Constable under Ex.P5 and the statement recorded by the learned Magistrate under Ex.P12, but it was not taken into consideration by the trial Court. There was discrepancy between the evidence of P.Ws.1 and 2, but the trial Court held that there was corroboration evidence of P.Ws.1 and 2 while finding accused guilty for the offence. He further contended that there was no consistent evidence regarding demand of additional dowry as per the deposition of P.W.16, even then accused was found guilty for the offence. There was no complaint from the parents or relatives of the deceased to show that there were disputes between accused and deceased. Though P.W.3 was an independent witness, she simply stated that she used to hear the quarrel between accused and deceased, but she did not see the same. P.W.6 who resides behind the house of the deceased supported the evidence of P.W.1 with regard to the commission of offence, but in fact, there was no such statement deposed by P.W.6 in his evidence. Therefore, requested the Court to set aside the Judgment of the trial Court.

P.W.1 is the mother of the deceased. In her evidence, she stated that she is having three daughters and deceased is her second daughter. She performed the marriage of the deceased with accused about 10 years back. Initially, they lived in Kothagudem and later came to Hyderabad and lived in Singareni Colony, Hyderabad till the death of the deceased. Accused used to harass the deceased by suspecting her fidelity and also demanding her to bring money from them. About two months prior to the incident, her third daughter Udaya came to their house during her pregnancy and her pregnancy was got terminated and stayed with them for one month. At that time, accused rang up to her daughter Udaya and informed that he has scolded his wife, as such she set fire to her by pouring kerosene and she informed the same to her. Then her husband, son and another son-in-law went to the house of accused and shifted her to hospital. When she asked his daughter, she stated that accused demanded to bring one lakh rupees and poured kerosene and set fire to her and also scolded her in filthy language. In the Cross-examination, it was elicited that her husband is also having another wife by name Suguna. She admitted that there was no panchayat conducted regarding accused harassing the deceased. She informed about the harassment of the accused to the mother-in-law of the deceased. She further stated that she purchased the house in the name of her daughter and presently she is residing in the said house. It was suggested that house at Singareni Colony was purchased by accused and that to grab the said property, she falsely implicated him in this case, but she denied it.

P.W.2 is the sister of the deceased. P.W.3 is the neighbor. She stated that deceased and accused reside opposite of their house. She also stated that accused was quarrelling with the deceased suspecting her fidelity and for not bearing children. Even on that day at about 11:00 PM, while she was sleeping in the house, on hearing cries, went there and found that deceased was burnt and smoke is coming from the body. She was scared and closed the door. Later, deceased was shifted to the hospital, but she did not go to the hospital. P.W.4 is the father of the deceased. He supported the version of P.W.1. He admitted that Sugunamma resides in Chaderghat as well as in another house which he purchased at L.B.Nagar. He also stated that he did not know the rule whether a Government employee cannot marry twice while the first wife is alive. P.W.5 is K.Ramulu. He stated that on 28.11.2011, at about 11:10 PM, P.W.2 telephoned him and informed that accused poured kerosene on the deceased and set her ablaze. He adds that accused informed to P.W.2 that deceased poured Kerosene on herself and set fire to her. He went to the house of deceased and found her with burns and a bed sheet was covered over her body. When he questioned, she stated that accused pull her inside and poured kerosene and set her to fire. Accused demanded for money and tortured her.

P.W.6 is another neighbor. She stated that deceased informed her that accused poured kerosene and set fire to her. In the Cross-examination she stated that while she was sleeping, on hearing commotion, she woke up and went to the house of deceased. She also stated that she did not go to the hospital. P.W.7 is another neighbor. She turned hostile and did not support the version of the prosecution. P.W.8 is the sister of the deceased and she supported the version of other witnesses. P.W.9 is the brother of the deceased. He stated that after marriage, accused and deceased lived happily for three years, later they picked up quarrel with each other as accused was demanding deceased to bring money. P.W.10 is the Panch witness for scene of offence Panchanama. M.Os.1 to 3 were recovered in his presence. In the Cross-examination, he stated that Police were already present, by the time he went to the house of accused. P.W.11 is the Panch witness for inquest panchanama. P.W.12 acted as Panch witness for confession of accused.

P.W.13 is the Head Constable, who recorded the statement of the deceased at the first instance. It was suggested that thumb impression on Ex.P5 is not belongs to the deceased, as her hands were burnt and he prepared the statement at the instance of her parents. P.W.14 is the Associate Professor in department of Forensic Medicine, Osmania Medical College, Hyderabad, who conducted inquest and issued postmortem examination report under Ex.P7. He stated that cause of death is due to burn injuries. P.W.15 is the Sub-Inspector of Police, who received the case file from the Head Constable to conduct further investigation. Ex.P5 bears the endorsement of the Head Constable. He registered a case in Cr.No.325 of 2011 under Section 307 of IPC and issued FIR under Ex.P8. P.W.16 is the Additional Junior Civil Judge, who recorded the Dying Declaration of the deceased. He stated that he recorded the statement of the deceased by duly following the procedure. As per the requisition, injured sustained 80% burns. He also stated that as the palms and left leg of the patient were burnt, he obtained right leg big toe impression of the declarant. P.W.17 is the doctor, who attested that patient was conscious and coherent at the time of recording the statement under Exs.P12A and B. P.W.18 is the Inspector of Police, who filed Charge Sheet.

The trial Court considering the evidence of witnesses, Dying Declaration and the statement of recorded by the Head Constable, found accused guilty for the offence punishable under Sections 498-A and 302 of IPC. As per the evidence of interested witnesses, in the statement recorded by the Head Constable and also in the Dying Declaration, it was specifically mentioned that accused demanded additional amount and in drunken condition set his wife to fire. The trial Court clearly held that offence punishable under Section 498-A of IPC was proved against the accused. The case of the prosecution is that accused scolded the deceased in filthy language demanding additional amount and poured Kerosene and set her to fire. The deceased stated that he came in drunken condition and picked up quarrel with her and in an intoxicated condition, he poured kerosene and set her ablaze. This clearly shows that there was no intention on the part of the accused to kill her. Their marriage was performed about 10 years back. They lived happily for three years after the marriage. If at all the incident happened within 7 years from the date of marriage, it is an unnatural death and if there was a demand of additional dowry, it should fall under 304 Part B of IPC, but in this case, it happened after 10 years of the marriage, as such accused was convicted for the offence punishable under Section 302 of IPC. There is a thin line between the offence under Section 302 IPC and 304-II of IPC. The gravity of the offence is one of the crucial aspect to be considered for differentiating the offence for ascertaining whether the offence falls under Section 302 IPC or 304 – II of IPC.

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).

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.”

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.”

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.

In this case, conduct of the accused before and after the commission of offence is to be considered. Accused was in drunken condition at the time of committing the offence, as such it can be presumed that there is no intention to kill her. However, he has knowledge that his conduct of pouring kerosene and setting her to fire will definitely lead to death. Therefore, this Court finds that it is just and reasonable to bring the offence under Section 304-II of IPC and to modify the sentence as the period already undergone by him, as he was in jail from 19.09.2014 i.e., for nearly 9 ½ years.

In the result, the Criminal Appeal is allowed in part. The conviction and sentence passed by the learned Metropolitan Sessions Judge, Hyderabad, against appellant/accused for the offence punishable under Sections 498-A and 302 of IPC, by judgment dated 19.09.2014 in S.C.No.111 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 to 3 shall be destroyed after the expiry of appeal time.

Pending miscellaneous petitions, if any, shall stand closed.