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Judgment
This Criminal Appeal is filed against the Judgment dated 11.07.2014 in S.C.No.472 of 2012 passed by the learned IX Additional District and Sessions Judge (FTC), Ranga Reddy District at L.B.Nagar, N.T.R. Nagar, Hyderabad.
The case of the prosecution is that appellants/accused alleged to have poured kerosene on the deceased and set her ablaze and later deceased succumbed to burn injuries and thus it is alleged that accused committed offences punishable under Section 302 and 498-A of IPC. To prove the guilt of the accused prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P10 on their behalf and also marked M.Os.1 to 3. The Trial Court after considering the arguments of both sides and also the entire evidence on record, convicted the accused Nos.1 and 2 under Section 235(1) of Cr.P.C and sentenced them to undergo life imprisonment with a fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 302 of I.P.C and also sentenced them undergo simple imprisonment for one year with a fine of Rs.500/- each, in default to suffer simple imprisonment for a period of one month for the offence under Section 498-A of IPC, both sentences shall run concurrently. Aggrieved by the said judgment and decree, accused preferred the present appeal.
Learned counsel for Accused Nos.1 and 2 mainly contended that none of the witnesses spoke about the harassment for additional dowry, but they were convicted under Section 498-A of IPC. Police further stated that P.Ws.5 and 7, who are neighbors clearly stated that accused were not present in the house when the offence took place, but their evidence was not appreciated properly. The Trial Court erred in convicting the accused basing upon Ex.P8, without any supporting witness. The Trial Court observed that dying declaration was supported by testimonies of P.Ws.1 and 3. It is for the prosecution to prove Ex.P8 and it was not mentioned under Ex.P8 that victim was not in a fit state of mind. Therefore, requested this Court to set aside the judgment.
Heard arguments of both the Counsel and perused the entire evidence on record.
Basing on the statement given by P.W.5, before the police under Ex.P1, a case in Crime No.144 of 2012 was registered under Section 302 of IPC and later when the deceased/Pochamma died, the section of law was altered from 307 to 302 of IPC.
P.W.1 is the father of the deceased. P.W.2 is the mother. Both of them stated that they performed the marriage of their daughter with accused No.1. Initially, her daughter gave birth to male child, but he died. Later, they have no issues for longer period. On that ground, accused No.1 and his mother harassed the deceased. They adopted a girl child of three days, but due to ill health, the baby was admitted in the hospital. A1 is the husband and A2 is the mother-in-law of the deceased. They abused her when they came to know that the child died in the hospital while undergoing treatment. Accused No.1 is having two brothers and three sisters residing separately. A2 and her husband were staying in the house of A1 and he was a mason. It was suggested to them that deceased committed suicide, but they denied it.
P.W.3 is brother-in-law of the deceased. He also deposed that A1 and A2 harassing the deceased with a demand of additional dowry of Rs.1 lakh. P.W.4 stated that he came to know through P.W.1 that A1 was harassing the deceased and he advised A1 not to harass her and later he came to know that deceased died in the hospital. P.Ws.5 and 7 are neighbors of the deceased. During chief-examination, P.W.5 stated that in the afternoon, he found deceased came out from the house with burns all over her body. He along with others tried to extinguish the flames, but he doesn’t know how she sustained burns. He was declared as hostile. P.W.7 stated that while he was sleeping in his house, between 12.00 noon and 1.00 pm, he heard cries and he came out and saw the crowd in front of the house of the deceased and also flames emitting from the house of the deceased. He and others broke open the door of the house of the deceased and deceased came out with flames. They poured water on her and called 108 ambulance and shifted her to hospital and at that time, accused were not present in the house. P.W.6 is the panch witness for seizure panchanama, Ex.P.3 is the rough sketch and Mo’s.1 to 3 were recovered.
P.W.8 is the panch witness for Ex.P5-inquest panchanama. In the cross-examination he stated that he does not know the contests of Ex.P5 and he signed on Ex.P5 as per the instructions of the police. P.W.9 conducted postmortem examination and issued Ex.P6-postmortem examination report. He stated that burnt injuries are in reddish pink colour on 95% of the total body surface and the cause of death was due to burns. In the cross-examination, it was suggested that the person who sustained 95% burn injuries cannot speak, but he denied it. He also stated that there are no other injuries except burn injuries on throat, lips and on the face of the deceased Pochamma.
P.W.10 is the learned Additional Junior Civil Judge, Dhone, who recorded dying declaration. He stated that on 28.02.2012 at 06:40 pm, he received a requisition from S.H.O, Hayatnagar requesting him to record the dying declaration of Smt.Y.Pochamma and he posed certain preliminary questions to the deceased in order to ascertain her mental condition and he also stated that patient is conscious and coherent and is in fit state of mind to give statement and he recorded her statement under Ex.P8. The proceedings of the dying declaration were commenced at 07.00 pm and concluded at 07.30 pm. He obtained the doctor’s endorsement regarding her mental condition throughout recording her statement and also obtained left leg big toe impression of the patient. In the cross-examination, he admitted that he had not questioned the deceased when she was brought to the hospital and also stated that he did not remember whether any person was present in the room before he enters. He had also not recorded the percentage of the burns or injuries sustained by the deceased. He admitted that as per the certificate of the doctor, she sustained more than 90% of burns.
P.W.11 recorded the statement of the deceased and he registered a case in Cr.No.144 of 2012 under Sec.307 of IPC and issued FIR and also issued requisition to the Magistrate for recording dying declaration of the deceased. He visited the scene of offence at 07.00 am and recorded the statements of neighbours. He stated that on 01.03.2012, he apprehended A1 at his house and produced him before the learned VII Metropolitan Magistrate for remand and handed over the CD file to CI of Police for further investigation. P.W.12 issued FIR under Ex.P9. On 04.03.2012, on receiving the death information, he issued alteration memo under Ex.P10. On 05.03.2012, he handed over the CD file to next Investigating Officer and P.W.13 received the same and arrested A2 on 15.03.2012 and after collecting all documents, he filed charge sheet. In the cross-examination, he stated that none of the statements recorded by P.W.12 indicates dowry harassment. He stated that all the statements reveal only harassment.
The contention of the learned counsel for the appellants herein is that none of the witnesses stated about the dowry harassment, except P.W.3-brother-in-law of the deceased, but accused was convicted for offence under Section 498-A of IPC. The main reason for harassing the deceased is that deceased was not having children though the marriage was performed about 12 years back, as such A1 and A2 abused her and set her ablaze on 28.02.2012 and her statement was recorded and in the examination of P.W.1, she stated that the deceased and A1 have no issues for about five years and deceased gave birth to a male child, but he died within six months. As the deceased was a barren woman, A1 and A2 harassed her. They adopted a girl child of three days and due to ill-health the baby was admitted in the hospital. On 28.02.2012, A1 and A2 abused the deceased and A1 who went out of the house returned at 12:30 pm, and then A2 also returned home from the market. A1 and A2 poured kerosene on her and set her ablaze and fled away from there. Hearing the cries of the deceased, neighbours rushed to the spot and put of the flames and shifted her to hospital. Even in the dying declaration, she clearly stated the same facts in detail. She also stated that they were demanding Rs.1 lakh additional dowry from several days and she further stated that as she could not bring additional dowry, they beat her. She also stated that her husband poured kerosene and her mother-in-law lit fire with matchstick and later both of them fled away from the place and neighbours put of the flames and took her to the hospital and she gave details of her husband and her mother-in-law. During recording of the statement, she was conscious and coherent.
Learned counsel for the accused stated that deceased sustained 95% burns and she was not in a position to speak and the doctor did not state in the cross-examination whether she was conscious or not during the dying declaration. He made an endorsement initially and after recording the statement he clearly stated that during the period of recording the dying declaration, she was conscious. P.W.9 clearly stated that the person who sustained 95% burn injuries also speak. Learned counsel for the accused also contended that she sustained injuries on lips, as such she may not be in a position to speak, but the evidence on record shows that immediately after receiving the requisition, the learned magistrate proceeded to the hospital and recorded the statement of the deceased in detail and stated that doctor made an endorsement that the deceased is conscious while recording her dying declaration, as such the argument of the accused that she cannot speak is not acceptable.
The learned Magistrate recorded the dying declaration as per the rules laid down in criminal rules of practice, as such dying declaration can be relied upon for basing conviction. Moreover, immediately after the incident, it was informed to P.W.11 and to the Magistrate and P.W.10 stated that deceased made an allegation against her husband and her mother-in-law and motive for the said offence was that she could not give birth to children, though their marriage was performed about 12 years back.
The Trial Court rightly relied upon the evidence of P.Ws.1 to 3 who are parents and brother-in-law of the deceased. Except in the dying declaration and in the evidence of P.W.3, no other witnesses stated that accused were demanding additional dowry from the deceased. As she could not beget the children, they beat her and also set her ablaze. It appears that the statement to an extent of demand of additional dowry in dying declaration is at the instance of P.W.3 for the purpose of filing the criminal complaint. Therefore, the sentence imposed by the Trial Court for the offence under Sec.498-A is set aside merely because certain extent of the dying declaration was an improvement, it cannot be said that entire dying declaration is to be discarded on the ground that it was a tutored version.
The Trial Court rightly convicted the accused by relying upon Ex.P8 and evidence of P.Ws.1 to 3, for the offence under Section 302 IPC. The accused were in jail from 11.07.2014 onwards i.e., 9 ½ years. The deceased in her dying declaration stated that she adopted 3 days old girl child and as such, there was quarrel between her and her husband and at that time, her mother-in-law came from market and she suggested her husband to pour kerosene on her and accordingly A1 poured kerosene on her and A2 lit fire with matchstick.
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 offenders 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.
The accused herein have already completed 9 ½ years of sentence. Therefore, this Court finds that it is just and reasonable to modify the sentence as the period already undergone by him, as it falls under 304-II IPC.
In the result, the Criminal Appeal is partly allowed. The conviction and sentence of imprisonment passed in SC.No.472 of 2012 by the trial Court on 11.07.2014 against the appellants/accused for the offence under Section 302 I.P.C is modified to that of Section 304 Part-II of I.P.C and is reduced to the period already undergone by them. The appellants/accused shall be set at liberty forthwith, if they are 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.