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2008 (1) ALT (Cri.) 22
THE HONBLE MR. JUSTICE D.S.R.VARMA AND THE HONBLE MR. JUSTICE D.APPA RAO
Godugula Adellu s/o Malkanna — Appellant
Versus
The State of Andhra Pradesh Rep. By Public Prosecutor, High Court of A.P., Hyderabad — Respondent
Criminal Appeal No. 748 OF 2005
Decided on : 07-08-2007
Penal Code – Sections 306, 498A, 302 – Conviction – Code of Criminal Procedure – Sections 374, 222 – Criminal Appeal, by accused No.1, under Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment, in Sessions Case passed by the II Additional Sessions Judge (Fast Track Court), convicting appellant for offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine in default to suffer simple imprisonment for three months and also convicting for the offence punishable under Section 498-A IPC and sentencing him to suffer rigorous imprisonment for one year and to pay a fine in default to suffer simple imprisonment for two months, directing to run both the sentences concurrently – Held, What is meant by "a minor offence" for the purpose of Section 222 of the Code – Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence – Two illustrations provided in the section would bring the above point home well – Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence – Court feel it appropriate to modify the conviction and sentence, imposed by Court below, against the accused No.1, as under: "The appellant -- accused No.1 is found guilty for offence punishable under Section 306 IPC and, accordingly, he is convicted and sentenced to suffer rigorous imprisonment for six years and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for five months – Conviction and sentence, imposed by the Court below, on the appellant -- accused No.1, for the offence punishable under Section 498-A IPC, are confirmed – Appellant - accused No.1 is entitled to the benefit of set off, as contemplated under Section 428 Cr.P.C – Criminal Appeal Partly Allowed
Heard the earned counsel appearing for the appellant as well as the learned
Public Prosecutor, appearing for the State.
2. Appellant is the accused No.1 in the Sessions Case.
3. This Criminal Appeal, by the accused No.1, under Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment, dated 21.03.2005, in Sessions Case No.447 of 2003, passed by the II Additional Sessions Judge (Fast Track Court), Adilabad, convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code (for brevity "IPC") and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three months and also convicting for the offence punishable under Section 498-A IPC and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months, directing to run both the sentences concurrently.
4. The gravamen of the charge is that the deceased, the wife of the accused No.1, was subjected to cruelty and harassment and was eventually murdered by the accused No.1, on 09.06.2002 at about 8 pm., by pouring kerosene on her and setting fire, at the abatement of the accused No.2, father of the accused No.1. Ex.P-1 is the complaint given P.W.1 to the police on 10.6.2002 at 6.00 a.m.
5. The facts of the case, in brief, are that the deceased was working as Anganwadi Teacher and the accused was working as a driver; that their marriage took place about eight years ago and they were residing in the house of P.W.1, who is no other than the mother of the deceased, and were blessed with two daughters; that on the fateful day i.e., 09.06.2002, in the morning, P.W.1, the deceased and her daughter, P.W.8, along with relatives, participated in a festival in the village; that they cooked food at the place of festival and returned back to home and that at about 8.00 p.m., the accused came in an inebriated condition and asked the deceased to serve food with mutton; that since no mutton was served, at bedtime, he went to the room where the deceased was sleeping, allegedly poured kerosene on the deceased and set her ablaze; that the deceased came out of the room in flames and fell down. After the flames were extinguished, she was shifted to Government Hospital, Adilabad, where she succumbed to the burn injuries.
6. Basing on the complaint given by P.W.1, initially a case in Crime No.90 of 2002 was registered against the accused Nos.1 and 2 for the offences punishable under Sections 498-A and 307 IPC. P.W.21, Judicial Magistrate of First Class, Adilabad, had recorded the dying declaration of the deceased. After the death of the deceased, during the course of treatment, the section of law was altered to Section 302 and 498-A IPC. After completion of investigation, the police laid the charge sheet against the accused Nos.1 and 2.
7. In order to bring home the guilt of the accused Nos.1 and 2, the prosecution examined P.Ws.1 to 24 and got marked Exs.P-1 to P-23 and M.Os.1 and 2 on its behalf and on behalf of the accused Nos.1 and 2, no oral evidence was let in, however, portions of 161 statements of P.Ws.3 and 4 were marked as Exs.D-1 and D-2.
8. The Court blow, having considered the entire evidence, both oral and documentary, available on record, particularly the evidence of PWs.2 to 9, said to be the eyewitnesses, and the dying declaration, under Ex.P-16, recorded by P.W.21, Judicial Magistrate of First Class, Adilabad, found the accused No.1 guilty for the offences punishable under Sections 302 and 498-A IPC and sentenced him, as stated above. However, the Court below found the accused No.2 not guilty and accordingly acquitted him for the offence punishable under Section 498-A IPC, with which he was charged.
9. Aggrieved by the conviction and sentence, imposed against him, the accused No.1 has preferred this Criminal Appeal.
10. PWs.2 to
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