THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 179/2007 Dt.23-6-2010 Madikonda Ravindar ..Appellant/accused V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 179/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The sole accused in SC No.80/2006 on the file of Sessions Judge, Warangal was tried for the alleged commission of offences punishable under Sections 498-A and 302 IPC and was convicted for the offence punishable under Sec.302 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of one month, by judgment of that court dt. 10-1-2007. He filed this criminal appeal challenging the correctness of the conviction and sentence recorded against him. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/accused, is as follows: The marriage of the appellant/accused with Nirmala, who is the daughter of P.W.1 and sister of P.W.2, (hereinafter referred to as “the deceased”) was performed 12 years ago. During their wedlock, they were blessed with two children. The appellant/accused who used to do coolie work addicted to alcohol. He used to harass the deceased. The deceased used to inform the harassment meted out to her to P.Ws1 and 2. She used to go to her parents’ house when the harassment was unbearable and her parents’ consoled her and sent her to her matrimonial house. On 14-4-2005 at about 12 Midnight, the appellant/accused returned home in a drunken state and picked up a quarrel with the deceased and beat her with a pestle stating that he was not provided with beer and brandy when he was at the house of the brother of the deceased and asked her to die. Then, she brought kerosene tin and poured kerosene on herself, and the appellant/accused set fire to the deceased. Unable to bear the pain, the deceased rushed to the outside raising hue and cry and fell at the backyard of her house. Immediately, the father-in-law of the deceased extinguished the flames by pouring water on her. P.Ws.3,4,5,6 and L.Ws.5,8 shifted the deceased to M.G.M. Hospital, Warangal. On P.W.8 informing P.Ws. 1 and 2 about the incident, they reached the hospital. By that time, P.W.15-Judicial Magistrate of First Class, Warangal on receiving written requisition at 10-15 AM on 15-4-2005 recorded the dying declaration of the deceased covered under Ex.P-9. After coming to know of the incident, P.W.1 lodged a report covered under Ex.P-1. On receipt of Ex.P-1, P.W.16-Sub-Inspector of Police registered it as a case in Cr.No.44/2005 of Ghanpur (M) police Station under Section 307 IPC and issued First Information Report covered under Ex.P-11. He examined P.Ws.1 and 2 and recorded their statements. On 17-4-2005, he visited the scene of offence and in the presence of P.Ws.9 and 14 he conducted panchanama and seized M.Os.1 to 4 under a cover of crime details form. He also examined P.Ws.3 to 8 and recorded their statements. P.W.17-Asst.Sub-Inspector of Police, on receipt of information from M.G.M. Hospital, Warangal on 18-4-2005 at 11 AM that the deceased died due burn injuries on 17-4-2005 filed a memo before the concerned court for altering the section of law from Sec. 307 to Sec.302 IPC. P.W.18-Circle Inspector of Police conducted inquest over the dead body of the deceased; examined P.Ws.7, 8 and 9 and others and recorded their statements. He arrested the accused on 7-5-2005. He seized M.O.5 in the presence of P.Ws.13 and 14 under a cover of seizure panchanama- Ex.P-15. After conducting inquest, P.W.18 sent the dead body for postmortem examination. P.W.12-Associate Professor, Forensic Medicine Department, Kakathiya Medical College, Warangl conducted post-mortem examination and issued post-mortem certificate covered under Ex.P-8 opining that the cause of death was due to burns. After completion of investigation and on receiving relevant reports, P.W.18 filed the charge sheet before the Judicial Magistrate of First Class, Mulug. Learned Magistrate took the charge-sheet on file as PRC No.49/2005 and committed the case to the Metropolitan Sessions Division as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.80/2006 and proceeded with. The learned Sessions Judge on hearing the prosecution and the accused, framed two charges for the offences punishable under Sections 498-A and 302 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which he stood charged, the prosecution examined 18 witnesses and proved 15 documents and exhibited 5 material objects. The learned Sessions Judge after considering the evidence adduced by the prosecution, particularly the evidence of P.Ws.1,2 and P.W.15 and Exs.P-9, while convicting the appellant/accused for the offence punishable under Section 302 IPC and sentencing him, as aforementioned, acquitted him of the offence punishable under Sec. 498-A IPC as the prosecution miserably failed to establish that the accused harassed and ill-treated the deceased for additional dowry. Sri P. Prabhakar Reddy, learned counsel for the appellant/accused contends that there is a delay of more than 34 hours in lodging the complaint with the police, which has not been explained by the prosecution. He further contends that the mother and the brother of the deceased tutored the deceased to give a false statement against the accused before P.W.15, which is evident from the suggestion put forth to P.Ws.1 and 2 that they demanded the accused to settle the property in name of the grand children of P.W.1 and when he was not agreeable, the above complaint was lodged with delay. He further contends that even according to the dying declaration covered under Ex.P-9 the appellant/accused was in a drunken state and as such it cannot be said that he has got an evil intention to do an act which will result in the death of his wife, therefore, he may be convicted for the offence punishable under Sec. 304 Part I/II IPC but not under Sec. 302 IPC. On the other hand, learned Public Prosecutor while sustaining the conviction and sentence imposed on the appellant/accused contended that dying declaration inspires confidence and it is sufficient to convict the accused. Added to the same, P.Ws.1,2 ,7 categorically deposed that the deceased told them that when she poured kerosene on herself, the appellant/ accused set fire to her. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution has proved the guilt of the appellant/accused beyond reasonable doubt and whether the conviction and sentence imposed on the appellant/accused for the offence punishable under Sec. 302 IPC are liable to be set-aside or modified? P.Ws.1 and 2 are not eye-witnesses to the incident. On receipt of the information from P.W.8, they visited the hospital on 15-4-2005. According to P.W.1, when she questioned the deceased as to what happened, the deceased told her that the accused returned home in a drunken state; abused her and beat her with a pestle and threatened her to pour kerosene on her person and she poured kerosene on herself, the accused set fire to her. On the same day, she went to the police station and lodged Ex.P-1. P.W.2 while corroborating the evidence of P.W.1 in all material particulars stated that when he questioned, the deceased told them that the accused was fully drunk when he returned home; he picked up a quarrel with the deceased and threatened her to pour kerosene on her person and when she poured kerosene on herself, the accused set fire to her. She further told them that unable to bear the pains she came out and fell down in front of the house. A suggestion was made to P.Ws.1 and 2 that after the death of the deceased an agreement was written with regard to the settlement of the land of the accused in the name of the grand children of P.W.1 towards their maintenance and when the accused refused to accept the settlement, the above complaint was lodged and the accused denied the said suggestion. P.Ws.3, 4 and 5, who took the injured to the Hospital to Dharmasagar and from there to M.G.M. Hospital, Warangal in an auto did not support the case of the prosecution and they were declared hostile. P.Ws.8,9,10,13 and 14 did not support the case of the prosecution and they were declared hostile. P.W.15 is the Junior Civil Judge. He deposed that on receipt of a written requisition from in-charge of Police Out Post, M.G.M. Hospital, Warangal on 15-4-2005 at 10-15 AM, he reached the hospital at 10-35 AM and identified the patient Nirmala with the help of duty doctor. He requested the duty doctor to certify the mental condition of the declarant. The Doctor accordingly certified that she was mentally fit to give a statement. In order to ascertain himself about the mental fitness of the declarant, he put some preliminary questions to her and after satisfying the answers given by her, he recorded the dying declaration. The deceased stated that about 12 years ago, she married the accused and since then he was consuming liquor, abusing her and harassing her. About 15 days prior to the incident, she went to the house of her younger brother, Kumaraswamy-P.W.2 in order to attend 21st day function of his daughter. Her younger son Chintu suffered from fever. She informed the same to the accused. The accused stated that it was a pretended fever. The accused asked her to provide beer and branch. He abused her; her month and her grand mother in filthy language. One day prior to the dying declaration at night, the husband of the declarant had again abused her and beat her for not providing beer and brandy while he was at the house of her younger brother and asked her to die. When she poured kerosene on herself at 11 PM in the night, the accused lit a match stick and set fire to her. When a specific question was put to the deceased who is responsible for causing injuries, she stated the name of the accused. The questions put by P.W.15 and answers given by the deceased disclose that the patient was fully conscious as on the date of recording dying declaration. P.W.12 who conducted autopsy over the dead body of the deceased stated that surface layers of the skin lost at places about 90% of total body surface and issued post-mortem certificate covered under Ex.P-8 opining that the cause of death was due to multiple burn injuries. The ante-mortem injuries found by P.W.12 are as under: “The following ante-mortem mixed burn injuries are seen over the involving chin, neck, front of the chest, both upper limbs, back of the chest, front of the abdomen, buttocks, both lower limbs, sparing face, perineum and both soles of feet. The surface layers of the skin lost at places about 90% of total body surface is involved. The burns were aged about 4 days.” A dying declaration is entitled to great weight. Once the court is satisfied that the declaration was true and voluntary, it can base its conviction without any further corroboration. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary it can base its conviction without any further corroboration as has been held by the Supreme Court in a catena of cases, which has been summarized in PANIBEN v. STATE OF GUJARAT[1]. In the light of the principles laid down, we will consider the truthfulness of the dying declaration made by the deceased to P.W.15- Magistrate. In Ex.P-9 recorded by P.W.15-Magistarte, the deceased categorically stated that on 14-4-2005 at 11 PM when the deceased poured kerosene on herself, the accused lit a match stick and set fire to her. Moreover, the statement recorded by P.Ws.15 has been corroborated with the evidence of P.W.1 and 2, who are the mother and brother of the deceased. Further, after recording the statement of the deceased covered under Ex.P-9 by P.W.15-Magistrate, the duty doctor certified that while recording the statement the deceased was in conscious and to that effect he made an endorsement on Ex.P-9. Therefore, the prosecution established beyond reasonable doubt that the deceased died due to burns and the burns were caused by the accused by setting fire to the deceased while the deceased pouring kerosene on herself. The prosecution, is therefore, made out a case against the accused beyond reasonable doubt. In the dying declaration recorded by P.W.15, the deceased stated that at that point of time, the accused was in a drunken state. Relying upon Ex.P-9, the learned counsel for the appellant/accused categorically stated that the appellant/accused cannot be imputed with knowledge or intention in the commission of offence. In the light of the above contention, the point to be decided is what is the offence committed by the appellant/accused, who was in a state of intoxication and whether he can be imputed with knowledge or intention in the commission of offence. The Supreme Court in Basdev v. State of Pepsu (AIR 1956 SC 488 : (1956 Cri LJ 919 (2)) summarized the result as under: "so far as knowledge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being ? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, the court can apply the rule that a man is presumed to intend the natural consequences of his act or acts. " In view of the principle laid down by the Supreme Court, where an offence is committed by a person under deep influence of intoxication, it can be presumed that he has knowledge of the act which he is committing, but it cannot be presumed that he has got intention and the same has to be inferred from the facts and circumstances of the case. In the present case, in Ex. P-9 dying declaration recorded by P.W.15, the deceased has stated that the accused was habituated to drinking and he was harassing her (the deceased) since the date of her marriage. On the date of incident, the accused returned home and abused the deceased; her mother and her grand mother and asked her to die. The accused abused her for not providing beer and branch while he was at the house of the brother of the deceased. When she poured kerosene on herself, the accused lit a match stick and set fire to her. From a careful perusal of Ex.P-9-dying declaration, it is evident, since the date of the marriage of the deceased with the accused, the accused was harassing her and accused was habituated to alcohol. In that view of the matter, it is presumed that there was an intention on the part of the accused to kill the deceased, and had a knowledge that such an act would definitely be dangerous to her life. Therefore, the appellant/accused cannot avail the benefit under Section 85 IPC. Similarly, the contention of the learned counsel for the appellant accused that the appellant/accused is entitled to lesser punishment also cannot be accepted for the reason that exception 1 to Sec.300 IPC provides that the culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The said exception is subject to the three provisions, appended to exception No.1. First provision is that the provocation is not sought or voluntarily provoked by the offender. In the present case, the accused himself voluntarily provoked the deceased to die and when she poured kerosene on herself, he lit a match stick and set fire to her. In view of the same, the accused cannot avail the benefit of exception 1 of Section 300 IPC. For all the foregoing reasons, we are of the opinion that the trial court, on analyzing the entire evidence, oral or documentary on record, has rightly concluded that the prosecution has established the guilt of the accused beyond reasonable doubt and rightly convicted the accused for the offence under section 302 IPC. Therefore, we find no ground to interfere with the judgment of the trial court. In the result, the Criminal Appeal is dismissed by confirming the judgment of the trial court in all respects. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 23-6-2010 Kmr [1] (1992) 2 SCC 474