TheHon,bleSupremeCourt,inMohd.RafiqAliasKallu v. State of Madhya Pradestrl' held as under

THE HONOURABLE SRI J E'v' 'ENUG.PAL CRIMI NAL APPE ALN O:72 OF 20'18 c ri m i n a r Ap p e a r f l ed u n3"J dated 10.02 201 7 Passed. E?iiJipri s"*tns Judge, waransal fi : :J'irt"?'#?'u "l i,i;"fii"' n ?' l;: t["" gl i# i [o ^" Between: Rasamalla Kumar @ KumaraswamY' Warangal District' R/o. Nizampally Village' Regonda Mandal' ...Accused/APPella nt ^-"Ilri:trr:'#?il3'di:tJ"?'ruli:,i::?5'i'"*utor' High court orJudicature at .. ComPlainant /ResPondent Counsel for the Appellant :Sri S Sridhar Counsel for the Respondent : Sri ArunKumar Dodla' Additional Public Prosecutor The Court delivered the following: Judgment .1-iH i 1 THE HONOURABLE SRI.JUSTICE K.SURENDER THE HoNouRABLE "*r".I#""r"E E. v. vENucopAL No.720F 2018 PEAL CRIM INAL AP JUDGMENTi (per Hon'ble Sri Justice K.Surentler) 1. The Appeai is filed by the appellant, aggrieved by the judgment dated 10.02.2072, in S.C.No.92 of 2OtS, on the file of Principai Sessions Judge, Warangal. The appellant was convicted for the offence punishable under Section 302 and sentenced to undergo life imprisonment. 2 . Heard learned counsel for the Kumar Dodla, learned Additionai respondent_State. appellant and Sri Arun Public Prosecutor for

3. According to the case of the prosecution, the appeliant and the deceased were married 1O years prior to the incident. The deceased gave birth to one daughter and one son. Being addicted to alcohol, the appe,ant was ,I treating the deceased on a regular basis. The said harassment was abetted by accused Nos.2 to 7 (acquitted). The incident happened on 05.05.2014, around s p.m There was a quarrer between the appellant and the deceased regarding a family issue. Unable to bear the attitude of the appellant during the quarrel, the 2 deceased Poured kerosene on herself, and the appellant set her on fire

4. The comPlaint was filed bY the father of the deceased/P.W'1' In the complaint' it is alleged that the appellant and the in-laws of the deceased were harassing the deceased, and unable to bear the harassment, the deceased committed suicide' While poured kerosene on herself and und.ergoing treatment at MGM hospital' Warangal' the deceased died. In the complaint' P'W' 1 further stated that the reason for the deceased attempting suicide was the appellant and his relatives. The suicide was the result of constant harassment' both PhYsical and mental' 5. A requisition was given to the concerned jurisdictional Magistrate for recording the dying declaration of the deceased' The Magistrate started recording the statement of the deceased at 1:05 a.m. on 06'05'2014' after asking preliminary questions' Even prior to recording the statement' the Doctor endorsed that the deceased was in a fit statement of mind' conscious' and coherent to give the statement' After the said certiflcation' the Magistrate asked the deceased about the reason for her burns' The translation of the answer given by the deceased is extracted as under: -aryT 3 "Q. What happened, hotu it happened, tell me? Ans. Since 9 gears of mg marriage, my husband. uas suspecting mu charo.cter. He used to suspect me uthen I tatked. u.tith angone. He uorks as a laborer. He used. to consume liquor and. beat me u_tith sticks or pestle. He used_ uulgar language bg suspecting mg character. I also d_o labour work. He used to collect mon, abuse me in fi.tths ,";,T:^::'":T::?r:: :;;::^r; tuhen theg came to mg house. He d.id. not allow me to go mA parent's house. I haue tuo child.ren. One d.aughter and. one son. Mg daughter, is 9 years and. mg son is 6 gears old. He used to suspect mg character uhen I uent to coolte utork. He did not allota me sit outsid.e of mg house. He used_ to abuse mg daughter and son. Four times blood. oozed. from mg mouth and. ears. He sold mg reg chains. preuiousrg he poured kerosene on me. Night at 9_15 hours he tried to pour kerosene on me. Then due to unbearable harassment, I poured. kerosene on mgsel"f. He encouraged me to pour kerosene. Then he set fi.re. Then I ran toutard.s mg brother,s house to saue mgself. My in_ Iaws also used to harass utith abusiue utord.s. Somebodg couered me with a blanket. The son of mg junior matemal aunt and other relatiues shified me to hospital. Due to harassment and abusiue words I haue d_one like thi_s. Mg husband. is responsible for mg situation. Mg in_laus, mg sister_in_la uL and her husband used_ to cooperate uith my husband_,,. Certification bu dutu doctor Patient is conscloug coherent ond. in a fit state of mind. throughout recording statement,,. 4

6. On the basis of the dying declarations recorded by the Magistrate, though the FIR was registered under Section 498-A of IPC and for woman burning' however' the charge sheet was laid for the offence under Section 3O2 of IPC' and also included Sections 306 and 498-A of IPC' The appellant was arrayed as A-1, and A-2, A-3, and A-7 were also prosecuted' During the course of trial, P'Ws' 1 to 1 1 turned hostile to the prosecution case. P.Ws' 1 to 11 are the relatives and the independent witnesses. P'W 12, who is a photographer' speaks about taking photographs at the scene' P'Ws' 13 to 16 also turned hostile' They are the witnesses to the scene of offence panchnama' LearnedSessionsJudgemainlyplacedrelianceonthedying declaration of the deceased' and convicted the appellant/A- 1' 7 . The basis for placing reli'ance on the dying declaration is that a dyrng man or woman would not lie while apprehending death. It must be examined whether the dying declaration can be 8. relied upon for convicting the appellant' The deceased stated before the Magistrate that since the past 9 years of marriage ' her husband had been suspecting her character' Whenever she spoke to anyone, he would' abuse her in vulgar language' take money from her, and insult her parents' Whenever she went a.. i- 5 for coolie work, the appellant suspected that she was having an affair with someone. He was a labourer and used to consume liquor. On one occasion, when the appellant beat the deceased, blood oozed from her mouth and ears. On the date of the incident, there was an altercation between them, and unable to bear the harassment, she poured kerosene on herseif. The appellant encouraged her, and after she poured the kerosene, the appellant set her on fire. Thereafter, she ran to the house of her cousin.

9. p.W.t has lodged the complaint alleging that there was constant harassment by the appellant, and for the the deceased committed suicide. However, p.W. turned hostile to the prosecution case and did not contents mentioned in the which is Ex.p. 1. support the complaint that was filed by him, said reason, I completely

10. As already stated, a[ the independent witnesses and the relatives of the deceased, have not stated anything against the appellant. The only evidence that is available before the trial Court, and now for adjudication, is the dying declaration. 11. Though there is no independent corroboration from any quarter, however, it can be safely inferred from the statement of the deceased that consuming alcohol and fights between the 6 spouses were a regular occllrrence' Even on the said day' according to the victim, she poured kerosene on herself' and then the appellant alleged'ly set her on frre' Against the background of a quarrel between the spouses and the appellant being in a drunken state ' it cannot be said that there was premeditation on the part of the appellant to cause the death of the deceased. T2.TheHon,bleSupremeCourt,inMohd.RafiqAliasKallu vs. State of Madhya Pradestrl' held as under:- "The question of whether in a given case' a homicide is murder, punishable under Section 302 of IPC or culpable homicideofeitherdescription,punishableunderSection 3O4 of IPC, has engaged the attention of courts in India for over one-and-a-ha1f-century' since the enactment of the IPC. A welter of case law' on the aforesaid aspect exists' including perhaps several hundred rulings by the Supreme Court.Theuseoftheterm..like$inseveralplacesin respect of culpable homicide' highlights the element of uncertainty that the act of the accused may or may not have killed the person' Section 3OO IPC which dehnes ,,murder", however refrains from the use of the term likelg' whichrevealsabsenceofambiguityleftonbehalfofthe accused. The accused is for sure that his act will defrnitely cause death. lt is often difhcutt to distinguish between culpable homicide and murder as both involve death' Yet' 1 (2021)10 scc 706 7 there is a subtle distinction of intentior involved in both the crimes. Sr"h diff.:.:::,|.:.ff: degree of the act. in ten tio n ",. u.. J:.*" j" ff f ;J.T:..: :r " . e gre e or

13. The burns that were received by the deceased were on account of the quarrel that ensued between the spouses. The deceased poured kerosene on herself, and after the flames were extinguished, she was taken to the hospital, where it was stated that she had received gg% burns. In the present circumstances, when the burning incident happened during a fight between spouses, premeditation or intent to cause death cannot be inferred. Keeping in view the background of the case' we deem it appropriate to convert the conviction to one under Section 304_II of IpC. Accordingly, the conviction under Section 3O2 of IpC is set aside. The appellant is sentenced to undergo 7 years of imprisonment under Section 3O4_II of IpC. 14. Accordingly, the Criminal Appeal is partly allowed. SD/- C.V. MALLIKARJUNA VARMA JOINT REGISTRAR //TRUE COPY// R,- IUN O SECT FFICER To,

1. The Principal Sessions Judge, Warangal. (with records, if any) 2. The Superintendent, Central Prison, Charlapalli, Ranga Reddy District 3. The Judicial Magistrate Magiskate of I Class, Parkal, Hanumakonda District 4. The Station House Officer, Parkal Police Station, Hanumakonda District. 5. One CC to Sri S Sridhar, Advocate [OPUC] 6. Two'CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad (OUT)

7. Two CD Copies ADK/gh ?n- l .,3 HIGH COURT DATED:18 tO3t2O2S JUDGMENT CRLA.No.T2 ot 2O1B .) , .' \"v i:.., -i\ " o^:

1., 0 2 sEP 2025 *: .. , ,,/ C;., --:j:. --_._- -.- r, PARTLY ALLOWNG THE CRLA w ,5