THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1290 of 2007 Date of Judgment: 09-06-2010 Between: Mudivedu Ganga Devi Appellant And State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad. Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1290 of 2007 Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The sole accused in S.C.No.256 of 2004 on the file of VII Additional District and Sessions Judge, Madanapalle, who was tried for the offence punishable under Sections 449 and 302 IPC and convicted for the said charges and sentenced to suffer imprisonment for life and to pay a fine of Rs.200/-, in default to suffer simple imprisonment for two months and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.100/- in default to suffer simple imprisonment for one month respectively and both the sentences are directed to concurrently, filed the present appeal. 2. The substance of the charge levelled against the accused is that on 07-02-2006 at 2.30 P.M., she trespassed into the house of one Maineri Ramana @Venkatramana (hereinafter referred to as “the deceased”) of Vempalle Harijanawada, Madanapalle Mandal and caused his death by pouring kerosene and set fire to him. 3. The prosecution case, which lead to the filing of the appeal, is as follows: The accused is the resident of Vempalle Harijanawada, Madanapalle Mandal. She was given in marriage to one Venkataramana of Thettu Harijanawada and later she deserted her husband and living in the house of her parents. About six months prior to the date of incident i.e. 07-02-2006, the deceased developed illicit intimacy with the accused and took her to Madanapalle and later he left the accused. On that a Panchayat was held with the village elders and in the said Panchayat the deceased agreed to pay a sum of Rs.5,000/- to the accused as compensation. About 10 days prior to the incident, the deceased developed illicit intimacy with B.Rathnamma— P.W.6 and kept her in his house as concubine. Therefore, the accused bore grudge against the deceased. While so, on 07-02-2006 when the deceased was in his house, the accused went there, picked up a quarrel with him questioning his illegal contact with P.W.6 without paying compensation to her; then, she went to her house, brought kerosene tin, poured the same on the body of the deceased and set fire. As the deceased was set ablaze, he came out of his house. Then, P.W.7, the younger brother of the deceased witnessed the occurrence. P.Ws.4 and 5, who were in the street, put off the flames and admitted him in the Area Hospital, Madanapalle. On receipt of intimation from the hospital, the Assistant sub-Inspector of Police, Madanapalle Taluk police station—P.W.17 went to the hospital and recorded the statement of the deceased covered under Ex.P13. Basing on which he registered a case in Cr.No.19/2006 under Section 307 IPC. He visited the scene of offence and seized kerosene tin—M.O.1 and burnt blanket pieces—M.O.2 under a cover of Mahazar. On 07-02-2006, the II Additional Judicial Magistrate, Madanapalle— P.W.14 recorded the dying declaration of the deceased covered under Ex.P10. During the course of investigation, P.W.17 examined the deceased and P.Ws.1 to 7 and recorded their statements under Section 161 (3) Cr.P.C. On 23-02-2006 early hours, while undergoing treatment the deceased succumbed to burn injuries. P.W.13, the doctor sent death intimation—Ex.P8 to the police. Basing on which P.W.18— Sub Inspector of Police, Madanapalle Taluk Police Station altered the Section of law from Section 307 to 302 IPC and issued altered FIR— Ex.P16. He visited the hospital; examined P.Ws.1 to 7 and recorded their statements; held inquest over the dead body of the deceased in the presence of panchayatdars—P.W.12, Sattipalle Rangappa and Kannemadugu Kadirappa; sent the dead body for postmortem examination and handed over the case to the Inspector of Police, Madanapalle Taluk police station—P.W.19 for further investigation. P.W.19 examined P.Ws.8 and 9 and recorded their statements. On 23-02-2006, P.W.11, the Assistant Surgeon, Government Area Hospital, Madanapalle, who conducted autopsy over the dead body of the deceased, opined that the deceased would appear to have died of Septicemia due to burns and issued Ex.P6—postmortem report. On 05-04-2006, P.W.19 arrested the accused at Vempalle Harijanawada and sent her for remand. After completion of investigation he laid the charge sheet. 4. The learned II Additional First Class Magistrate, Madanapalle has taken cognizance of the offence under Sections 449 and 302 IPC against the accused and registered the same as P.R.C.No.18/2006. As the accusation is exclusively triable by the Court of Sessions, case is committed to the Sessions Division, Chittoor. On committal, the District and Sessions Judge, Chittoor took the case on file as S.C.No.256 of 2006 and made over to the II Additional District and Sessions Judge, Madanapalle for disposal in accordance with law. Subsequently the case was transferred to VII Additional District and Sessions Judge, Madanapalle for disposal according to law. After receipt of relevant records and upon hearing the Additional Public Prosecutor and the defence counsel, two charges under Sections 449 and 302 IPC have been framed against the accused, read over and explained to her in Telugu for which she pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined P.Ws.1 to 19 and got marked Exs.P1 to P16 besides case properties—M.Os.1 and 2. After closure of the prosecution evidence when the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against her in the evidence of prosecution witnesses, she denied the same and claimed no defence. 6. The trial court placing reliance on the dying declaration— Ex.P10 recorded by the Magistrate (P.W.14) and the statement— Ex.P13 recorded by the Investigating Officer (P.W.17) came to the conclusion that the prosecution has established its case beyond all reasonable doubt for the charges levelled against the accused and accordingly convicted and sentenced her, as stated above. Challenging the same, the present appeal is filed. 7. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant contends that there is a contradiction in the dying declaration recorded by P.W.14—Magistrate under Ex.P10 and the statement recorded by P.W.17—Investigating Officer under Ex.P13 Therefore, they cannot form basis for conviction. Even the evidence of postmortem doctor—P.W.11 shows that the deceased died due to Septicemia due to burns which are 30 to 40%; whereas P.W.16, the doctor who sent a requisition under Ex.P9 to the Magistrate stated that chance of survival of injured—deceased was remote, as burns are 70 to 80%. In view of the same, conviction of the accused for the offence under Section 302 IPC is not justified and she is entitled to either acquittal or for lesser punishment. 8. On the other hand, learned Public Prosecutor while sustaining the order under appeal contended that the trial court after hearing both sides and after considering the material on record rightly convicted the accused, referred to above, which do not require any interference by this court. 9. In view of the rival submissions, the point that arises for determination in this appeal is: “Whether the prosecution has established its case beyond all reasonable doubt for the charges levelled against the accused”. 10. Both the counsel taken us through the entire evidence on record. In the entire evidence adduced by the prosecution, there is no dispute that the deceased was admitted in the hospital on 07-02-2006 with burn injuries. P.W.16, the doctor, who was at the hospital when the deceased was admitted, sent a requisition—Ex.P9 to the Magistrate and on receipt of the said intimation the Magistrate— P.W.14 visited the hospital and recorded the dying declaration of the deceased covered under Ex.P10, wherein to a question put by the Magistrate “what happened” the deceased stated: while he was eating mixture, the accused suddenly came to his house with a kerosene tin, poured it on him and set fire; to another question posed by the Magistrate, “who were present at that time” the deceased stated: his younger brother—Ganesh Babu was present in the house; to a question “what was the reason for her doing so” the deceased answered: the accused bore grudge against him, as he did not elope her and also not married her. Whereas in the statement—Ex.P13 recorded by the Investigating officer, the deceased has stated that on the date of incident i.e. 07-02-2006 at 02.30 P.M., while Rathnamma—P.W.6, who was living along with him went for work, the accused came to his house picked up a quarrel for non-payment of amount and living with P.W.6 and while he was eating mixture the accused suddenly poured kerosene on his back and set fire. 11. We do not find any inconsistency in the dying declaration recorded by the Magistrate and the statement recorded by the Investigating Officer about the act of accused pouring kerosene and litting fire. There is no dispute that the accused after deserting her husband developed illicit intimacy with the deceased; on that a quarrel took place between the accused and the deceased and a Panchayat was also held, where the elders directed the deceased to pay fine of Rs.5,000/- to the accused. 12. The evidence of P.W.16, the doctor who admitted the deceased in the hospital and the evidence of the doctor—P.W.11 who conducted postmortem examination is consistent with regard to admission of the deceased in the hospital on 07-02-2006 and death, which occurred on 23-02-2006 nearly 16 days after the incident. The evidence of P.Ws.1 and 2, father and mother of the deceased, would go to show after the accused deserting her husband, she is living along with the deceased. According to P.W.11, the doctor, who conducted postmortem examination, the percentage of burns received by the deceased is about 30 to 40% and the deceased would appear to have died of Septicemia due to burns. She also stated in case of burns of 30 to 40%, chance of survival is more. Septicemia means total formation of pus in the blood leading to multi organ failure, due to which the deceased died. 13. The Supreme court in identical matter in GANGA DASS ALIAS GODHA v STATE OF HARYANA[1], where the deceased died 18 days after the incident due to septicemia and other complications, held it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. Therefore, the conviction of the accused for the offence under Section 302 IPC was altered to the offence under Section 304 Part II IPC. 14. This Court in OGIBOYINA KOTAIAH v STATE OF A.P.[2] in identical circumstances, where there is time gap between the incident and death and there is no intention for the accused to kill the deceased, after referring to the judgment in SHAM MADHAVRAO RUPVATE v STATE OF MAHARASHTRA (2000 Crl.L.J. 2389) allowed the appeal in part setting side the conviction of the appellant for the offence under Section 302, instead convicted him for the offence under 304 Part II IPC. 15. Recently the Supreme Court in MANIBEN v. STATE OF GUJARAT[3] also took the same view. 16. In view of the conclusions reached by us, we are of the view that the accused had not committed any offence punishable under Section 449 IPC and the conviction and sentence for the said offence is set aside. 17. The conviction and sentence recorded against the appellant for the offence under Section 302 IPC in S.C.No.256 of 2006 by the VII Additional District and Sessions Judge, Madanapalle are set aside. Instead, the accused is convicted for the offence punishable under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for five years. The sentence of fine remains unchanged. 18. In the result, the Criminal Appeal is partly allowed. _________________ A.GOPAL REDDY, J. ________________ RAJA ELANGO ,J. 09-06-2011 Murthy [1] 1994 Suppl (1) SCC 534 [2] 2007 (1) ALT (Crl.) 260 [3] AIR 2010 SC 1261