THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.232 of 2008 JUDGMENT: (Per Hon’ble Sri Justice R. Kantha Rao) This criminal appeal is from the judgment dated 05.12.2007 passed by the I Additional Sessions Judge, Chittoor in Sessions Case No.118 of 2007. The appellant/sole accused was tried by the learned Sessions Judge for the charges under Sections 498-A and 302 I.P.C. At the conclusion, the learned Sessions Judge acquitted the accused of the charge under Section 498-A I.P.C and convicted him for the charge under Section 302 I.P.C and sentenced him to undergo imprisonment for life. Challenging the said order of conviction and sentence, the appellant preferred this appeal. Briefly stated, the prosecution case is like this: Madamma (hereinafter referred to as ‘the deceased’) was the wife of the appellant – Devarajulu. On 04.10.2006, the appellant, who was habituated to drinking, asked the deceased to give money for the purpose of consuming liquor and the deceased gave him a sum of Rs.500/-. On the evening of the same day, the accused came back after consuming liquor and again demanded the deceased to give some more amount, for which, the deceased refused. By then P.Ws.1 and 3, who are the children of the deceased and the appellant, were present at the house. It is said that the appellant asked both the children to go out of the house and thereafter poured kerosene over the body of the deceased, who was cooking food and set her on fire. The incident was witnessed by P.Ws.1 and 3 by peeping through the hole, which was in the wall of the house. Soon after the deceased was caught in flames, P.Ws.1 and 3 raised cries. On hearing the cries, the neighbours gathered and shifted her to Area Hospital, Kuppam, where she was treated. P.W.1, the daughter of the deceased, who witnessed the incident, went to Periyarnagar and informed P.W.2, brother of the deceased about the incident. In the meanwhile, P.W.6- Head Constable, Kuppam Police Station received information from Area Hospital, Kuppam about the admission of the deceased in the hospital with burn injuries. He rushed to the Hospital and recorded the statement of the deceased (Ex.P.7). He handed over the statement (Ex.P.7) to P.W.7-the Sub Inspector of Police and basing on the said statement, P.W.7 registered a case in Crime No.95 of 2006 under Sections 498-A and 207 I.P.C. P.W.8-the Inspector of Police, Kuppam Circle investigated into the offence and after completion of investigation filed charge sheet against the accused. The prosecution in order to establish the guilt of the appellant before the trial Court examined P.Ws.1 to 9 and marked Exs.P.1 to P.11 apart from marking M.Os.1 to 3. The learned trial Court upon considering the entire evidence on record, acquitted the appellant of the charge under Section 498-A I.P.C, convicted him for the offence under Section 302 I.P.C and sentenced him to punishment as referred to above. We have heard Sri V.Venkat Ranga Reddy, legal aid counsel for the appellant and the learned Additional Public Prosecutor representing the State. The point for determination in the present appeal is whether the conviction and sentence passed against the appellant by the trial Court can be sustained. The trial Court recorded conviction basing on the evidence of P.Ws.1 and 3, who are the children of the appellant and the deceased. The evidence of P.W.2- brother of the deceased; the evidence of P.W.9-the Magistrate, who recorded Ex.P.11-dying declaration; the evidence of P.W.5 - autopsy surgeon and Ex.P.5-Post Mortem Certificate issued by P.W.5 which disclosed that the deceased received superficial burns on the face and deep burns on both hands. It is the opinion of the autopsy surgeon that the deceased died due to cardiac arrest because of the burns sustained by her. The deceased received burn injuries on 04.10.2006. She was treated in Area Hospital, Kuppam for the said burn injuries and died on 13.10.2006, after she was discharged from the hospital. P.Ws.1 and 3, who are the children of the deceased have categorically stated before the trial Court about their father demanding their mother money for the purpose of drinking and their mother refusing to give the same and thereafter their father asking them to go outside the house and their coming out of the house and peeping through the hole in the wall. They have clearly stated in their evidence that their father poured kerosene over the body of their mother and set her on fire. P.W.2-brother of the deceased stated in his evidence before the trial Court that after he was informed by P.W.1 about the incident, he rushed to the hospital, where the deceased was admitted and when he asked the deceased as to what happened, she told him that on her refusal to give money to the appellant for consuming liquor, the appellant poured kerosene over her and set her on fire. P.W.9-the Magistrate examined the state of mind of the deceased and after obtaining the certificate from the Civil Assistant Surgeon, who was attending on the deceased, about her fitness of state of mind to make a statement, thoroughly satisfied that the deceased was in a position to understand the questions and was able to make a statement and then recorded her statement. In the dying declaration recorded by him, the deceased has clearly stated that in the morning of 04.10.2006 the appellant demanded her to give some amount for consuming liquor and she gave him an amount of Rs.500/-, again in the evening he returned to the house and demanded her to pay some amount for consuming liquor. When she refused to give money, the appellant poured kerosene on her and set her on fire. Unable to bear the pain by the burn injuries, she came out of the house by rolling and raised cries and the neighbours who gathered there admitted her in the hospital. There is no inconsistency between the oral dying declaration made by the deceased to her brother P.W.2 and the dying declaration given by her to the Magistrate. In both the statements she had clearly stated that the appellant poured kerosene on her and set her on fire. The dying declaration are corroborated by the evidence of P.Ws.1 and 3, who are none other than the children of the appellant and the deceased, who have absolutely no necessity to give false evidence against their father. Therefore, we are not inclined to interfere with the finding of guilt recorded by the learned trial Court against the appellant. But the crucial question before us is as to whether the appellant is liable for the charge of murder or whether he is liable for punishment for the offence of culpable homicide not amounting to murder. Even the evidence of P.Ws.1 and 3 that their father told them to go out of house and then poured kerosene over the deceased and set her on fire, is believed, we do not think that the appellant intended to kill the deceased. The appellant was enraged on the refusal of the deceased to give him money for the purpose of consuming liquor and inconsequence thereof committed to above said criminal act. The criminal act of pouring kerosene and setting the deceased on fire done by the appellant, in our view, was not with any intention to cause her death, but with the knowledge that it is likely to cause the death and the offence committed by the appellant is culpable homicide not amounting to murder punishable under Part II of 304 I.P.C., but not murder punishable under Section 302 I.P.C. Therefore, we set aside the conviction and sentence passed against the appellant-accused for the offence under Section 302 I.P.C., by I Additional Sessions Judge, Chittoor in S.C.No.118 of 2007, dated 05.12.2007. In stead, we convict the appellant-accused for the offence under section 304 Part II I.P.C. Since the appellant is in jail in connection with this case for a period of more than five years, we deem it appropriate to confine the sentence against the appellant to the period which he has already been undergone by him. He shall be set at liberty forthwith, if he is not required in any other crime. The appeal is, therefore, partly allowed to the extent indicated above. A.GOPAL REDDY, J R. KANTHA RAO, J Date: 08.12.2011 va