THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI RAJA ELANGO CRIMINAL APPEAL No.541 of 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgment dated 25.04.2007, passed by the Special Sessions Judge for trial of cases under S.Cs and S.Ts (POA) Act-cum-VII Additional District & Sessions Judge, Mahabubnagar in S.C.No.34 of 2006, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Section 302 I.P.C., convicted therefor, and sentenced to undergo imprisonment for life. 2 . The substance of the charges against the appellant/accused is that on 12.08.2005 at Kakarlapad Village he committed murder of Smt.Mudavath Chandramma (hereinafter referred to as ‘the deceased’), a member of schedule tribe, with the intent that she is ST by caste, by pouring kerosene upon her and setting her ablaze. 3. The prosecution story, which led to the conviction of the accused, is as under: P.Ws.1 and 2 are the parents, P.W.3 is the husband and P.W.4 is the daughter of the deceased. All the material witnesses did not support the case of the prosecution and according to them the incident occurred accidentally while the deceased was cooking. The case rests upon two dying declarations. Ex.P.12 is the dying declaration recorded by P.W.12-Special Judicial Magistrate of First Class on 13.08.2005 at 9.50 a.m. Ex.P.13 is the statement recorded by P.W.13- A.S.I on 13.08.2005 at 12.15 p.m. The substance of her declarations is that she had illicit intimacy with the accused; that about one year prior to the incident she had given him a loan of Rs.4,000/- and about four days prior to the incident she insisted him for repayment of the said amount; that on the date of incident i.e., on 12.08.2005 at about 5.00 p.m., the accused came to her, pulled her saree, pushed her down by holding her legs; that when she asked him money he took kerosene from her house, poured on her and set fire to her and that when she shouted he extinguished the fire and fled away. Thereafter, the deceased was shifted to hospital. On receiving requisition from the hospital, P.Ws.12 and 13 rushed to the hospital and recorded the statement of the deceased. Based on Ex.P.13, P.W.13 registered a case in Crime No.88 of 2005 and issued Ex.P.14-FIR. P.W.14-Sub Divisional Police Officer, who took up further investigation, on receiving the death intimation of the deceased on 14.08.2005, altered the section of law and issued Ex.P.16-altered FIR. Thereafter, he visited the hospital, examined P.Ws.1 to 7, recorded their statements, and held inquest over the dead body of the deceased in the presence of P.W.8 under Ex.P.8. Later, he sent the dead body for post mortem examination. On 14.08.2005, on requisition, P.W.11-Civil Assistant Surgeon, Government Hospital, Mahabubnagar, held inquest over the dead body of the deceased and opined that the cause of death was due to extensive burn injuries. Ex.P.10 is the post mortem report. On 14.08.2005, P.W.14 visited the scene of offence, prepared Ex.P.17- observation report in the presence of P.Ws.9 and 10 and arrested the accused on 22.09.2005. After receiving all the relevant documents and on completion of investigation, P.W.14 filed charge sheet. 4. On laying the charge sheet, the Judicial Magistrate of First Class, Mahabubnagar committed the case to the Court of Sessions and on such committal, the Special Sessions Judge for trial of cases under S.Cs and S.Ts (POA) Act-cum-VII Additional District & Sessions Judge, Mahabubnagar, framed the charges under Sections 3(ii)(v) of the S.Cs and S.Ts (POA) Act, 1989 (for short ‘the Act’) and Section 302 IPC, read over and explained the same to the accused in Telugu. The accused pleaded not guilty and claimed to be tried. 5. To substantiate the case of the prosecution, it examined 14 witnesses and got marked 17 documents—Exs.P.1 to P.17. 6. After closure of the evidence, the accused was examined under Section 313 Cr.P.C. with regard to incriminating material made against him by the prosecution, but he denied. On his behalf, D.Ws.1 and 2 were examined. 7. The learned Sessions Judge, on evaluating the oral and documentary evidence, found that the prosecution has proved the guilt of the accused for the offence under Section 302 I.P.C beyond all reasonable doubts and accordingly convicted and sentenced him to undergo imprisonment for life. But, however, the learned Sessions Judge acquitted the accused for the offence under Section 3(ii)(v) of the Act, on the ground that the prosecution failed to establish that the offence was committed because the deceased was a member of S.C/S.T., but for some other reason. Aggrieved by the conviction and sentence recorded against him, the appellant preferred this appeal. 8. The learned counsel for the appellant contended that P.Ws.1 to 7, 9 and 10 have not supported the case of the prosecution and they were declared hostile and that except the dying declarations recorded by P.Ws.12 and 13 under Exs.P.12 and P.13, there is no other evidence to connect the accused with the offence. He also contended that the evidence of D.W.1 makes it clear that the accused had been falsely implicated in the case to get monetary benefit from the State Government and that the learned Sessions Judge has not taken into consideration this aspect. He further contended that the learned Sessions Judge failed to take note of the contents in the dying declaration, in which it was stated that the accused himself extinguished the flames and in such process he also received some burn injuries, and therefore, it can be said that the accused had no intention or motive to commit the offence of murder. He further contended that the commission of the offence is only due to the sudden provocation; that the deceased was immediately taken to the hospital and that she died two days after the incident. He lastly contended that the accused had no intention of causing the death of the deceased, and therefore, a lenient view can be taken in this matter. 9. On the other hand, while sustaining the conviction and the sentence, the learned Public Prosecutor contends that the dying declarations of the deceased are corroborated with medical evidence and therefore the judgment under appeal needs no interference. But, he fairly conceded that as per Ex.P.12-dying declaration, the accused himself extinguished the fire and though the deceased was taken to the hospital on the next day morning and no medical aid was provided immediately. 10. In view of the above rival submissions, the points that arise for consideration in this appeal are whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and whether the conviction and sentence recorded by the Court below are liable to be set aside or modified. 11. In order to adjudicate the points for consideration, it is relevant to examine the evidence on record. 12. P.W.12 - the Special Judicial Magistrate of First Class (Prohibition & Excise), Mahabubnagar deposed that on receiving Ex.P.11-requisition from the Out Post Police Station, Government Hospital, Mahabubnagar, on 13.08.2005 at 9.50 a.m., he went to Government Hospital, Mahabubnagar and recorded the dying declaration of the deceased under Ex.P.12. He obtained the endorsement of the duty doctor about the condition of the patient on Ex.P.12. He deposed that the patient stated before him that the accused came to her house, poured kerosene on her and set fire and that the accused extinguished the flames. 13. P.W.13, who worked as the ASI of Police, Nawabpet at the relevant time, deposed that on receipt of information on 13.08.2005 at 14.00 hours, he went to Government Hospital, recorded the statement of the deceased under Ex.P.13 and registered a case in Crime No.88 of 2005 for the offences under Section 307 I.P.C and Section 3(ii)(v) of the Act. 14. Under Ex.P.12-dying declaration, the deceased stated that on the date of incident she went for wood, returned by 5.00 p.m and slept; that the accused came there, pulled her saree, hold two legs of her and pulled her; that the accused borrowed a sum of Rs.4,000/- from her and promised that he will present a gold chain, but he failed to return the amount; that when she asked to pay the amount, he brought kerosene, poured on her and set her to fire; that when she raised cries, the accused extinguished the flames and fled away; and that the neighbours, who went to the fields, came there and shifted her to the hospital. In Ex.P.13-Statement also the deceased stated the same thing, but she further stated that the accused had illicit relation with her and the same was true. 15. The above two dying declarations are very consistent and corroborative in material aspects. From these, the prosecution could be able to establish that it is the accused, who borrowed the amount of Rs.4,000/- from the deceased and had also illegal affair with deceased, and who poured kerosene on her, set her to fire, and extinguished the flames. 16. P.W.11-the doctor, who conducted postmortem examination over the dead body of the deceased on 14.08.2005, deposed that she found the internal injuries i.e., burns over the back of chest, back of buttocks both thighs front and back side; front of chest, neck and abdomen, genital organs, neck and upper half of both legs and the burns are nearly 80% to 90%. She issued Ex.P.10-postmortem examination report opining that the cause of death was due to extensive burn injurers and the time of death was 16 to 20 hours prior to the postmortem examination. 17. D.W.1, who was examined of behalf of the accused, deposed that on 13.08.2005 at about 6.00 a.m at the instance of the village President and others, he had taken the deceased in his jeep from Kakarlapad to Mahabubnagar Government Hospital; that in the journey one Balaiah instructed the deceased and her parents to lodge a report against the accused so that they will get money from the Government; that when the village President objected the same, the said Balaiah picked up quarrel with them and that the deceased informed Balaiah that accidentally she received burn injuries while cooking. Whereas, D.W.2, who was also examined on behalf of the accused, deposed that on 12.08.2005 at about 9.00 p.m., the parents of the deceased came to his house and informed that the deceased received burn injuries while cooking; that he went to their house and the deceased informed him that she received burn injuries accidentally while cooking; that on the next day morning they engaged the jeep of D.W.1 and took the deceased to Government Hospital, Mahabubnagar; that one Balaiah stopped the jeep at Village and talked with the parents of the deceased, but he did not hear the talks and that Balaiah did not travel in the jeep. 18. The evidence of D.W.2 falsify the evidence of D.W.1 that in the journey Balaiah instructed the deceased and her parents to lodge a report against the accused so that they will get money from the Government. In view of the inconsistency in the evidence of defence witnesses, much credence cannot be given to their evidence. Apart from that, such incredible evidence cannot be taken into consideration to disbelieve Ex.P.12-dying declaration of the deceased. 19. Now the question that falls for consideration is whether the accused can be convicted for the offence under Section 302 I.P.C or 304 Part II I.P.C. 20. Admittedly, the incident had taken place on 12.08.2005 at 5.00 p.m., whereas the deceased was taken to the hospital on the next day morning i.e., nearly 14 hours thereafter and she succumbed to burn injuries on 14.08.2005 at 23.30 hours. Ex.P.12-dying declaration discloses that it is the accused, who poured kerosene on the deceased and set her to fire, but on raising cries by the deceased, he extinguished the flames and fled away. 21. From Ex.P-12, it appears, though the accused was having knowledge that pouring of kerosene and setting of fire will cause bodily injury to the deceased, soon after he realised the same and extinguished the flames. This itself shows that the accused had no intention to cause the death of the deceased and due to sudden provocation the incident had happened. Therefore, a lenient view can be taken and the accused can be convicted for the offence punishable under Section 304 Part-II I.P.C instead of 302 I.P.C. 22. Accordingly, the conviction of the appellant/accused for the offence punishable under Section 302 IPC and sentence of imprisonment for life, recorded in Sessions Case No.34 of 2006, dated 25.04.2007 by the Special Sessions Judge for trial of cases under S.Cs. and S.Ts. (P.O.A.) Act-cum-VII Additional District & Sessions Judge, Mahabubnagar are set aside. In the alternative, the appellant— accused is convicted for the offence under Section 304 Part II I.P.C and sentenced to undergo rigorous imprisonment for five years. The remand period during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 23. The Criminal Appeal is partly allowed to the extent indicated above. _________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J Dt.06.10.2010 va