THE HON’BLE SRI JUSTICE A.GOPAL REDDY And THE HON’BLE SRI JUSTICE RAJA ELANGO CRL.A.No.1778 of 2007 JUDGMENT: (per RE,J) The appellant – accused who was tried for the offences punishable under Sections 302 and 498-A I.P.C in S.C No. 335 of 2007 and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for one month for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for two months for the offence under Section 498-A I.P.C by the learned III Additional Sessions Judge (Fast Track Court-II), Khammam vide judgment dated 30.11.2007 preferred this appeal challenging the conviction and sentence recorded against him. The learned Judge made it clear that the substantive sentences shall run concurrently. The prosecution story, as unfolded during the course of trial, briefly stated, is as under: The sole accused before the Court below is the appellant herein. The marriage of Boddupalli Nagamani (hereinafter referred to as ‘the deceased’) and the accused was performed about three years prior to the death of the deceased. After the marriage, they lived happily for one year and thereafter, the accused having addicted to drink used to quarrel with the deceased and abuse her while he was in drunken condition. On 14.03.2006, at about 2.00 P.M., the accused came to his house along with one Ponnala Rami Reddy (LW-8) and consumed liquor and thereafter, the said Ponnala Rami Reddy left the house. In the evening, the accused went outside and came to the house at about 4.00 P.M. in a drunken state, quarrelled with the deceased and poured kerosene on her. When the mother of the accused interfered, some kerosene spilled on her also. Then she rushed outside the house and in the meanwhile, the accused set ablaze the deceased. On hearing the cries of the deceased, the neighbours rushed to her rescue and they have taken the deceased to the Government Hospital, Khammam with 60% burn injuries and she died on 02.05.2006 while undergoing treatment. On information about the incident, the parents of the deceased went to the hospital at about 8.00 P.M. and found that their daughter suffered burn injuries all over the body. Thereafter, the father of the deceased-PW1 went to the police station, Kamepally at about 9.30 P.M. and lodged the complaint- Ex.P1. The Sub Inspector of Police, Kamepally Police Station-PW9 registered the case in Cr.No.20/2006 under Sections 498-A and 307 I.P.C. on the basis of the report given by the father of the deceased, took up investigation and issued F.I.R.-Ex.P11. Thereafter, he examined and recorded the statements of PW1, LWs 2 and 3 and visited the Government Hospital, Khammam. The Duty Medical Officer sent the requisition-Ex.P7 to the II Additional Judicial Magistrate of I Class, Khammam-PW5 at 6.40 P.M. for recording the dying declaration. PW5 in turn went to the hospital at 6.50 P.M. and recorded the dying declaration-Ex.P8 of the deceased. PW9 visited the scene of offence, incorporated the details in Crime Details Form, seized the burnt clothes of the deceased along with kerosene bottle (MOs 1 to 3) and got photographed the scene of offence by PW3. PW9 also examined and recorded the statements of LW5, PW2, PW3 and LW8. On 02.05.2006, on receipt of the death intimation, the Head Constable - PW10 altered the sections of law from 498-A and 307 I.P.C to 498-A and 302 I.P.C and issued alteration memo-Ex.P12. Thereafter, the Circle Inspector of Police (PW11) took up investigation. On the request of the police, the Mandal Executive Magistrate-PW8 conducted inquest over the dead body of the deceased on 02.05.2006 in the presence of PW4, LW12 and 13 and issued inquest report Ex.P6. After that the dead body was subjected to post mortem examination by PW6, he issued the post mortem report- Ex.P9 and opined that the death is due to septiceamic shock due to 60% deep burns. Thereafter, PW11 examined and recorded the statements of PW1, LWs 2 to 5, PW2, PW3 and LW8. After completion of the investigation, PW11 filed the charge sheet for the offences under Sections 498-A and 302 I.P.C. before the learned Judicial Magistrate of First Class, Yellandu who registered it as PRC No. 80 of 2006 and later committed to the Court of Sessions. On committal, the learned District and Sessions Judge, Khammam District registered the same as S.C No. 335 of 2007 and made over to the learned III Additional Sessions Judge, (Fast Track Court-II), Khammam who framed the charges against the accused for the offences under Sections 302 and 498-A IPC, read over and explained the same to him. The accused pleaded not guilty and claimed to be tried. To substantiate the said charges, the prosecution examined PWs 1 to 11 and marked Exs.P-1 to P-12 and produced MOs 1 to 3. After closure of the prosecution’s side evidence, the accused was examined under Section 313 Cr.P.C with regard to the incriminating circumstances and the evidence appearing against him to which he pleaded not guilty. The learned Sessions Judge after analyzing the evidence held that there are no doubtful circumstances in the prosecution case about the accused harassing the deceased and pouring kerosene and setting her ablaze. Thus, the prosecution was able to prove the offences under Sections 498-A and 302 I.P.C. against the accused and accordingly convicted and sentenced him as aforementioned. Hence, the appeal. PW1 who is the father of the deceased and who set the criminal law into motion by lodging the complaint is not an eyewitness to the occurrence. Stating that his daughter sustained burn injuries, he lodged the complaint before the police and the same was marked as Ex.P1. He also spoke about the marriage and other particulars about the accused and the deceased. PW2 who is an eyewitness to the occurrence is also a resident of the same place. She knows the accused as well as the deceased. She stated that on the date of occurrence, she heard cries from the house of the deceased. She rushed to the place of occurrence and saw the accused throwing the matchstick on the deceased and immediately deceased caught fire and as she was afraid that she may also caught fire, went away from that place and then again entered into that house and poured water and placed blankets on the deceased to extinguish the fire. PW3 is the photographer who took photos of the place of occurrence and also the dead body. PW4 is a coolie who is a witness to the inquest conducted by PW8. Ex.P6 is the inquest report. PW5 is the Junior Civil Judge, Janagam who recorded the dying declaration of the deceased on the basis of the requisition received by him on 14.03.2006 at about 6.55 P.M. After completing the formalities and after obtaining Certificate from the doctor that the deceased was in a fit condition to depose before him, he recorded the dying declaration of the deceased and the said dying declaration is marked as Ex.P8. In the said dying declaration, the deceased categorically stated that her husband used to harass her whenever he was in a drunken state. She further stated that on the fateful day when she returned from the market, the accused questioned the deceased as to where she has gone by locking the house. She answered that as usual she locked the house as he is having another key and aggrieved over the same, he quarrelled with the deceased and all of a sudden, poured kerosene on her and lit fire immediately. PW6 is the doctor who conducted the post mortem examination over the dead body of the deceased. He deposed that he found deep burns on neck, both upper limbs, chest front and back, abdomen front and back, infected pus oozing from the deep burns and they ante mortem in nature. He further deposed that there are 60% deep burns. PW7 is an eyewitness to the recovery of MOs 1 and 2, which are half burnt clothes of the deceased and MO3 kerosene bottle for which the police prepared Ex.P10. PW8 is the Mandal Revenue Officer who conducted inquest on the body of the deceased. He also attested Ex.P6, the inquest report. PW9 is the Sub Inspector of Police who received the complaint from PW1 on 14.03.2006 at 9.30 P.M. and registered a case for the offences under Sections 498-A and 307 I.P.C. in Cr.No.20 of 2006 and he examined the witnesses. PW10 is the head constable. On 02.05.2006, on receipt of death intimation of the deceased from the Government Hospital, Khammam through II Town Police Station, he altered the section of law from 307 I.P.C. to 302 I.P.C. Ex.P12 is the alternation memo issued by him. PW11 is the Investigating Officer who conducted investigation and after the death of the deceased, he requested PW 8 to conduct inquest over the dead body of the deceased. After completion of investigation and on receipt of the report, he filed the charge sheet. On the basis of the above said evidence adduced by the witnesses, the learned Sessions Judge convicted the accused as stated above. Learned counsel for the appellant submitted that it cannot be safe to convict the accused on the basis of the dying declaration alone and that the evidence of PW2 who is an eyewitness does not inspire the confidence. Learned Public Prosecutor, in contra, stated that there is nothing to suspect the dying declaration recorded by the learned Magistrate since the dying declaration discloses the circumstances under which the deceased sustained injuries. Perused the record. Heard the arguments. As rightly pointed out by the learned Public Prosecutor, in the present case, there is no delay in lodging the complaint and dying declaration also clinchingly points out the guilt of the accused. PW2 is eyewitness to the occurrence, but on perusal of her entire evidence, nothing was elicited as to the harassment of the deceased in connection with demand of dowry or of matrimonial issues. Even according to the deceased, the accused used to harass her only in drunken state. There is no evidence on record to convict the accused under Section 498-A I.P.C. Therefore, conviction imposed on the accused for the offence under Section 498-A I.P.C is liable to be set aside. Now the point before us is whether the entire evidence discloses an offence under Section 302 I.P.C. to convict the appellant - accused? On a perusal of the record, it is clear that the entire occurrence took place in a spur of moment. The accused has not pre-empted to commit the crime. It is clear that there is no quarrel between the accused and the deceased prior to the occurrence and that in the sudden quarrel, he poured kerosene over the deceased and for that, the deceased died after 50 days and the post mortem report also reveals that the deceased died due to septiceamic shock due to 60% deep burns. In such a situation, we are of the view that even though there would not have been anything to commit murder, in the spur of moment the accused committed the offence over a quarrel and, therefore, it shall fall under Section 304 Part-I I.P.C. Hence, the conviction and sentence imposed against the accused for the offence under Section 302 I.P.C is modified to conviction under Section 304 Part-I I.P.C and the sentence is also modified to seven years. Fine amount imposed by the learned Sessions Judge is maintained. In the result, the conviction and sentence recorded by the III Additional Sessions Judge, (Fast Track Court-II), Khammam vide judgment, dated 30.11.2007, in Sessions Case No.335 of 2007, against the appellant for the offence punishable under Section 302 I.P.C. is hereby modified into the one under Section 304 Part-I IPC. He is accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years. The conviction and sentence imposed on the appellant for the offence under Section 498- A I.P.C is hereby set aside. The remand period during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. The appeal is partly allowed to the extent indicated above. A.GOPAL REDDY,J RAJA ELANGO,J Dt. 28.07.2011 lvl THE HON’BLE SRI JUSTICE A.GOPAL REDDY And THE HON’BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.1778 of 2007 (per RE,J) Dt. 28.07.2011