THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1492 of 2007 Dated : 04.07.2011 Between : Shaik Mahaboob @ Mahboob …. Appellant-accused a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1492 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused questioning the judgment of conviction passed in Sessions Case No.163 of 2006 by the Metropolitan Sessions Judge, Hyderabad, on 17.09.2007 wherein the appellant was convicted and sentenced to suffer life imprisonment and also to pay fine of Rs.300/-, in default to suffer simple imprisonment for one month, for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’). 2) The Prosecution case, in brief, is that about five years prior to the occurrence the accused developed illegal intimacy with deceased- Shameem Begum when she was staying with her husband Abdul Jabbar @ Nawab and children and having come to know the same her husband deserted her and the accused kept her as his mistress at Saleem Nagar along with her children and both of them were living as wife and husband without there being any marriage and the deceased also gave birth to a female child with the accused and after shifting their residence to Syed Nagar the deceased started working as maid servant at MLA colony in Road No.12, Banjara Hills. Thereafter, accused was neglecting her and he also started suspecting her fidelity resulting in frequent quarrels between them and on 01.11.2004 the accused beat the deceased when she did not cook food for which accused was convicted to pay fine of Rs.50/- by the X Special Metropolitan Magistrate, Hyderabad, in STC No.2148 of 2004 on 02.11.2004. Thereafter, the relationship between the accused and deceased became strained and on 20.11.2004 when the deceased did not return home till late in the evening from her work, the accused waited for her arrival at NBT Kaman and at about 7.00 p.m. when the deceased came there, accused abused her questioning her late coming and after reaching the house accused poured kerosene on her and set fire to her with an intention to kill her and that when the deceased and her children raised cries, the accused put off fire by covering bed sheet and pouring water, but by that time, the deceased sustained severe burn injuries and in that process accused also sustained burn injuries to both hands. Thereafter, accused escaped from the house on the pretext of bringing an auto rickshaw, but did not return home. The deceased was shifted to Osmania General Hospital, Hyderabad, by her mother and sisters, who rushed to the scene, and while undergoing treatment in the hospital the deceased succumbed to injuries. On the strength of the statement of the deceased, Police registered a case in Crime No.856 of 2004 for the offence punishable under Section 307 of Indian Penal Code. After death of the deceased, the Section of Law was altered to Section 302 IPC. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against the accused for the offence punishable under Section 302 IPC and the said charge sheet was numbered as P.R.C. No.62 of 2005 by the III Additional Chief Metropolitan Magistrate, Hyderabad City. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.163 of 2006. The learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Section 302 IPC, in which, the accused denied the charge and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 15 and marked Exs.P.1 to P.19 apart from marking MOs 1 to 4. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. On behalf of the accused, Ex.D.1 was marked. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) P.W.1, who is the mother of the deceased, turned hostile and not supported the case of the prosecution. P.W.2, who is the brother of the deceased, also turned hostile and not supported the Prosecution case. P.W.3, who is another brother of the deceased, has deposed that he saw the deceased with burn injuries. P.W.3 also stated that the daughter of the deceased informed him that the accused set the deceased to fire and left the house and P.Ws.1 and 2 also informed P.W.3 the same fact. Apart from this witness, the other witnesses not supported the Prosecution case. The learned Sessions Judge mainly relied on Ex.P.8-the Dying Declaration recorded by the learned Magistrate and Ex.P.10, the statement recorded by the investigation officer, which is in the nature of 161 Cr.P.C. statement. For better adjudication of the matter, relevant portion of Ex.P.8 is hereby extracted: “.,…. I am a permanent maid by profession. I do work and return back at 2.00 p.m. daily. My husband is an auto driver. Yesterday morning as usual I went to attend work. My master took me to shopping along with them as a marriage function is going to take place. I returned back at 7-00 p.m. or so and I was dropped by my master in a car at our home. My husband saw this. On my reaching to home he picked up the issue. Heated arguments took place. In that anger my husband brought a kerosene tin, poured kerosene over my body, lit it with a match stick. I raised cries and put off flames with a blanket my husband went out saying he would get auto but did not return. Later my mother & sister brought me to hospital. At the time of incident my house owner also reprimanded my husband too. That is all happened……” On perusal of Ex.P.8, the name of the husband of the deceased is recorded as ‘Nawaz’, whereas the name of the husband of the deceased as per Ex.P.10 is ‘Mahboob’ and said Mahboob is the appellant herein. Learned counsel for the appellant wants to take advantage of the same and argued before this Court that the name of husband of the deceased differs in Exs.P.10 and P.8. But the evidence of P.W.1, though she turned hostile, clearly indicates that the deceased, who was a married lady, left her husband and started living with the appellant herein. Though the name of the husband of the deceased is Nawab, but subsequently she lived with the present appellant Mahaboob. So, mentioning the name ‘Nawab’ as the husband of the deceased in dying declaration is no way helpful to the appellant herein and moreover in Ex.P.10 the investigation officer has categorically recorded the name of the husband of the deceased as ‘Mahaboob’, the appellant herein. Hence, there is no doubt that the appellant herein is the person who involved in the crime. The other evidence relied on by the prosecution to connect the appellant herein with the present crime is Ex.P.19. On arrest of the appellant, he was send to hospital and treated by the doctor. Ex.P.19 is the out-patient ticket issued in the name of the appellant herein in which it is clearly mentioned that the appellant herein sustained burn injuries. In these circumstances, we are of the view that Exs.P.8 and P.10 clearly proved the involvement of the appellant herein in the offence. In Ex.P.8, the deceased has categorically stated the manner in which she sustained burn injuries and also the person who caused the same. Hence, we are of the view that the prosecution proved the fact that the death of the deceased is homicidal in nature and the appellant herein is responsible for the same. Learned counsel for the appellant further submitted that if this Court finds the appellant guilty of committing the crime, the offence will not fall under Section 302 IPC, for which she submitted for consideration of this Court that Exs.P.8 and P.10 clearly disclose that : 1) the entire occurrence took place in a spur of moment, 2) there is a quarrel between the deceased and the accused immediately prior to occurrence and 3) after the said occurrence, the accused tried to save the deceased by way of giving a blanket and also tried to admit her in the hospital by way of getting an auto. The said acts of the accused as per the statement given by the deceased clearly indicate that the appellant herein is not having any intention to cause her death, but it happened in the spur of the moment. In such a situation, we are of the view that the acts of the accused will not fall under Section 302 IPC and the conviction imposed on him can be modified to conviction under Section 304 part- II IPC. In the result, the Criminal Appeal is allowed in part. The conviction and sentence imposed on the appellant-accused by the learned Metropolitan Sessions Judge, Hyderabad, in Sessions Case No.163 of 2006 on 17.09.2007 for the offence punishable under Section 302 of Indian Penal Code are hereby modified to conviction under Section 304 Part-II of Indian Penal Code and the appellant- accused is sentenced to undergo rigorous imprisonment for seven years. The period of detention already undergone by the appellant- accused be given set off under Section 428 Cr.P.C. The fine amount paid by the appellant for the offence punishable under Section 302 IPC, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 4th July, 2011 sur