CRLA/477/2017 of MOHD AMJAD, HYDERABAD., Vs STATE, REP PP AND ANR., on 31 December 2024

1. This appea-l is Iiled aggrieved by the judgment dated13.03.2077 in S.C.No.594 of 2011, passed by the learned IAdditional Metropolitan SeSsions Judge at Hyderabad,convicting the appellant/accused for the offence underSection 3O2 of IPC and sentencing him to undergo lifeimprisonment.

2. Heard Mr. Mohd Muzaffer Ullah Khan, learned counselfor appellant and Mr. Dodla Arun Kumar, learned AdditionalPublic Prosecutor appearing on behalf of respondent_State.

3. The case of the prosecution is that on 24.CI7.2OI7around O3:O0 P.M., the appeliant poured kerosene on thedeceased and lit her on fire, since the deceased objected tothe illicit intimacy of the appellant with one Sultana. Thedeceased was taken to the hospitai. In the hospita1 pwllwho is the Head Constable of Banjara Hills police Station,recorded the statement of deceased. In her statement, thedeceased narrated that she was having three children andthey were living in a rented house in Hakeempet. The appellant was having illicit [relation ][with ][one ][Sultana' ][For ][the]said reason, appellant [quarreled ][and went ][to ][the ][house ][in]aggressive mood, the [deceased ][was ][beaten ][up ][and thereafter,]the appellant [poured ][kerosene ][on her and ][lit ][her on ][fire' ][She]was then taken to the [hospital. ][The ][said ][statement ][of]deceased was recorded at [O2:0O ][A.M. ][on ][25'Ol'2Oll ][by]PW1 1. Though requisition [was ][given ][for ][the ][purpose ][of]recording statement by the [jurisdictional ][Magistrate, ][the]statement could not [be ][recorded ][for ][the ][reason ][of ][deceased]dying while undergoing [treatment, ][even ][prior ][to ][the arrival ][of]the Magistrate.

4. On the basis of the [statement ][recorded ][by ][PW1l, ][FIR]was registered. After [knowing ][about ][the ][death ][of ][the]deceased, the Police [went ][to ][the ][house of ][the ][appellant ][which]is the scene of [offence ][and ][conducted ][scene ][of ][offence]panchanama. Inquest [proceedings ][were ][conducted ][in ][the]hospital and body [was sent ][for ][post mortem ][examination']The post mortem [Doctor having ][conducted ][post mortem ][on]the body of deceased [found ][that the ][cause ][of ][death ][was due]to "burns".

5. Police filed charge sheet [against ][the appellalt ][under]Section 3O2 of IPC. [Charge ][was framed ][for ][the said ][offence']

Learned Sessions Judge examined the witnesses pWs. i to 14and also marked Exs.P1 to pl3.

6. Learned Sessions Judge found favour with the versionof prosecution that the appellant had poured kerosene ondeceased and lit her on fire. Accordingly, the appellant wasconvicted.

7. Learned counsel appearing for the appellant wouldsubmit that PWs.l to 4 who are the neighbors of the housewhere incident happened were declared hostile to theprosecution case. PWs.7 and 8 who are parents of thedeceased stated that they received phone call from thedeceased stating that her husbald/appellalt had burnt her.However, details of the phone mrmber or the telephone dataof the deceased are not placed on record to show that thedeceased had called her parents or anyone else on the date ofincident to inform about the appellant burning her. Learnedcounsel further submits that the version given to pW 1 1differs from what was stated by the parents/pWs.7 ancl g andthe independent witness/PW9. For the reason of there beingno direct evidence, the conviction recorded by the learnedSessions Judge has to be set aside.

B. On the other hand, learned Public prosecutor wouldsubmit that PWl1 is an independent witness and un-interested. There is no reason why he would record thestatement of the deceased falsely to implicate the appellant.The version given to PW 1 I at the earliest point of timeimplicated the appellant and thereafter she died even prior tothe arrival of jurisdictional , Magistrate to record thestatement.

9. PWs.1 and 2 are the neighbors of the house where theincident happened. PW2 stated that both the appellant anddeceased were staying in the house and on the date ofincident, PW2 heard both the appellant and the deceasedquarrel and the deceased came out from the house in flames.The appellant also came out from the house and went out tobring an auto but did not return. PW2 ald othersextinguished the frre, called an ambulance and deceased wasshifted to Osmania General hospital. PWs.1 and 2 weredeclared hostile to the prosecution case and cross examinedsince they did not state about the information given to themby the deceased that appellant burnt her.

10. PW2 who is an independent and crucial witness wasnot cross examined by the appellant. The fact that theappellant and deceased were staying as husband ald wife in . +'

the same house goes unchallenged. Similariy, the fact thaton the date of incident, the appellant and deceased werepresent in the house and they quarreled with each other andafter the quarrel, the deceased was seen coming out of thehouse in flames was also not disputed. The appellant aisocame out of the house ald informed pW2 that he was goingto fetch an auto but fled and did not return.

1 1 . After being shifted to the hospital, statement ofdeceased was recorded by PWll/Constable. In the saidstatement, deceased stated that appellant was having affairwith one woman namely Sultana and for that reason, therestatement, deceased stated that appellant was having affairwith one woman namely Sultana and for that reason, therewas quarrel. The appellalt was enraged due to deceasedasking about Sultana and then in that aggressive mood, hetook up two liters of kerosene, poured on her and set her onfire.took up two liters of kerosene, poured on her and set her onfire.

12. The statement given by the deceased cannot bedisbelieved only for the reason of being recorded by pW1l.The evidence of PW2 corroborates with the version ofstatement of victim that it was appellalt who pouredkerosene on her and set her on fire.

13. Exception-4 [of ][Section 300 ][IPC, ][reads ][as ][under:]

"Culpobte homicide is not murder if it is [committed]utithiut premeditation in [o ][sudden ]fight [in ][the ][heat ][of]passion upon a sudden [quarrel ]and [uithout ][the]offender's hauing taken undue [aduontage or acted ][in]a cruel or unusual monner."

14. Further the Honble [Supreme ][Court ][in ][Mohd. ][RaJiq]

o. St@te of Madhga Pradesht [held ][as ][follows:]

"The question of tuhether in a [giuen cose, ][o ][homicide]is murder, punishable under [Section 3O2 ][IPC ][or]culpable homicide of [either desciption, ][punishable]under Section 304 of [IPC, ][has engaged ][the ][ottention]of Courts in India for [ouer one-and-a-half ][century']since the entactment of the [IPC. ][A ][u-telter ][of ][case lattt,]on the aforesaid [aspect ][eists, ][including ][perhaps]seueral hindered rulings [bg ][tLrc ][Supreme ][Court' ][The]use of th.e term "likelg" [in ][seueral ][places ][in ][respect ][of]culpabte Lnmicide, highlights [the ][element ][of]uncertainitg tluzt the act of [the ][accused ][maA ][or ][moA]not haue killed the [person. ][Sechon ][3OO ][IPC ][uthich]defines "murder", horaeuer [refrains ]from [the ][use of]term likety, uthich reueals [absence ][of ][ambiguity ][lefi']on behatf of tle accused. [The ][accused ][is ]for [sure ][that]his act uill definitely cause [death. ][It ][is ][ofien ][dffictt'lt]to distinguish betlueen [culpable homicide ][and ][murder]as both inuolue death. [Yet, there ][is ][a ][subtle ][distinction]of intention and knouLledge [inuolued ][in ][b-ot-h ][the]ii^"t. Such difference lies in [the ][degree ][of ][the act']There is a uery uide uariance [of ][degree ][of ][intention]and knouledge among [both ][the ][cimes."]

15. Since the incident [happened ][during ][a ][heated ][a-rgument]in between the spouses, this [Court ][deems ][it ][appropriate to]convict the appellalt [for ][the ][offence ][under ][Section ][3O4 ][- ][II ][of]

IPC, sentencing him to undergo 9 years imprisonment, whilesetting aside the conviction under Section 302 of IpC.setting aside the conviction under Section 302 of IpC.

16. Accordingly, this Criminal Appeal is partly-allowed.Since the appellant is on bail, the trial Court shall take stepsto cause his appearance and send him to jail to serve outremaining part of sentence, if any. The period ofimprisonment, if aly, already undergone by the appellantshaii be set-off.

.Sd/. K. SRINIVASA RAOJOINT REGISTRAR//TRUE COPY//SEION OFFICEROFFICER

\ISEION OFFICEROFFICERTo,The lAdditional Metropolitan Session Judge at Hyderabad. riwith records, ifany)2The Superintendent, Central Prison, Chanchalguda, Hyderabad!,The Station House Officer, Banjara Hills Police Station, Hyderabad4Two CCs to the Publrc Prosecutor, High Court for the State of Telangana atHyderabad [OUT]AOne CC to Sri Mohd Muzaffer Ullah Khan, Advocate IOPUC]b.Two CD CopiesVH/gho- HIGH COURT

DATED: 3111212024

JUDGMENTCRLA.No.477 of 2017

PARTLY ALLOWING APPEAL

abl),rTL

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