N.Y.Hanumanthappa, J.:-
(1) This appeal is by the sole accused in s. C. No. 284 of 1994 on the file of the metropolitan sessions judge, hyderabad, who by his order and judgment dated 12 - 6 - 1996 convicted the accused - appellantfor offence under section 302 ipc and sentenced him to undergo imprisonment for life.
(2) A few facts which are necessary to dispose of this appeal are as follows: on tine intervening night of 7/8 - 9 - 92 p. W. 9 the head constable received a telephonic message from gandhi hospital, secunderabad, stating that one smt. Anees fatima was admitted in female burns ward. He prepared a requisition letter to v metropolitan magistrate, hyderabad, for recording the dying declaration of deceased anees fatima. P. W. 9 recorded the statement of the deceased in which she stated that her husband came to the house in a drunken condition, that she gave food to her husband, after taking food while thereafter, he poured kerosene on her person, lighted a match stick and set her ablaze. When she made hue and cry, the brother - in - law and the sister of the accused came and forcibly got opened the door and put out the flames and covered her with a blanket and shifted her to gandhi hospital for treatment and she died on 13 - 9 - 1992.
(3) P. W. I is the mother of the deceased anees fatima and p. W. 3 is the brother of the deceased. The marriage of the deceased with the accused took place on 21 - 2 - 86. For about two years the deceased and the accused lived happily. Thereafter, the accused used to come in a drunken state and beat the deceased. About two years prior to her death, the deceased told p. W. I that the accused was beating her to bring money from her parents as he wants to start a business in iron scrap material and so p. W. I gave rs. 30,000/ - to the accused. Accused opened a shop of steel scrap materials. Even thereafter, he was beating the deceased in a drunken state. About 8 days prior to the death of the deceased, the accused took the deceased from p. W. L's house. Two days after the accused took the deceased to his house, the brothers of the accused came to the house of p. W. 1 and informed p. W. I and p. W. 3 that the deceased sustained burn injuries. Then p. Ws. 1 and 3 went to gandhi hospital and found the deceased with burn injuries. On enquiry the deceased told p. Ws. 1 and 3 that the accused came to the house in a drunken state and after taking food, he was about to leave the house. When she objected for the same, the deceased beat her and later poured kerosene on her person and lit match stick and burnt her. She also told them that the elder brother of the accused and his brother - in - law p. W. 2 came and covered her with a blanket and put out the flames. On 8 - 9 - 92 p. W. 4, the v metropolitan magistrate, hyderabad received a requisition from the police to record the dying declaration of the deceased. After satisfying himself that she was in a fit condition to give the statement, he recorded her statement. Ex. P. 3 is the dying declaration of the deceased. P. W. 5 was present at the time of the police observing the scene of offence. They found a blanket on the bed and it was half burnt. They also found a plastic kerosene tin m. O. I with kerosene and there was a match box on the ground. P. W. 6 is inquest panch witness and he attested the inquest report ex. P. 6. The head constable p. W. 9 on the instructions of the inspector of police went to gandhi hospital and recorded the statment of the deceased ex. P. 7. P. W. 7 is another head constable who received ex. P. 7 and registered it as f. I. R. In cr. No. 455/92 under section 307 ipc and handed over c. D. File to surya prakash, the s. I. Of police p. W. 10 for investigation. P. W. 10 visited gandhi hospital and examined the deceased and recorded her statement u/s 161 cr. P. C. He visited the scene of offence and examined p. Ws. 1. 2 and some others. P. W. 8 is the photographer who took the photos of the scene of offence. P. W. 10 also conducted inquest over the dead body in the presence of inspector of police in mortuary room in gandhi hospital. After inquest he gave a requisition for conducting post - mortem examination. P. W. 11 is the medical officer. He conducted post - mortem examination on the dead body and opined that the cause of death is due to burns and its complications. He issued the post - mortem certificate ex. P. 16. P. W. 12 is the'inspector of police who took up investigation from p. W. 10 and after completion of investigation, he filed the charge sheet.
(4) The prosecution examined as many as 12 witnesses. However, there are no direct wi witneses to speak about the incident. No witness has stated that he had seen the accused setting fire to the deceased. P. Ws. 1 and 3 are the mother and brother of the deceased. Admittedly, they were not living in the house of the accused when the offence took place. Accused, his sister, brothers and mother reside in one and the same building. Accused and deceased lived in one room and others reside in other portions of the house. According to the prosecution p. W. 2 and others entered into the portion of the deceased and the accused and put out the flames on the deceased by covering her with a blanket. P. W. 2 did not support the version of the prosecution and was treated hostile by the prosecution. The prosecution strongly relied upon two dying declarations said to have been given by the deceased before her death. Ex. P. 7 is the statement of the deceased recorded by the head constable p. W. 9 in the hospital and ex. P. 3 is the second declaration given by the deceased recorded by a judicial magistral p. W. 4 in the hospital. In both the dying declarations, the deceased categoricaly stated that on the night of 7 - 9 - 92 accused came late in the night to the house, she served food to her husband and when he began to leave the house she objected and asked her husband not to leave the house. Then the accused became angry, brought a kerosene tin, poured kerosene on her and set her on fire, she also stated that she raised cries and then others came and put out the flames and the brother of the accused took her to the hospital and admitted her in the hospital.
(5) The accused also sustained burn injuries. After completion of investigation, p. W. 12 filed charge - sheet in the court of the xv metropolitan magistrate, hyderabad, who by his order dated 17 - 6 - 94 in prc no. 1 / 94 on his file committed the case to the metropolitan sessions judge, hyderabad. On receipt of papers, learned trial judge took cognizance of the case and the same was numbered as sc. No. 284 of 1994. The trial court after assessing the entire evidence, found that the charge levelled against the accused was proved beyond reasonable doubt. Accordingly, he was convicted under section 302 ipc. Aggrieved by the same this appeal is filed by the accused.
(6) Sri padmanabha reddy, learned counsel for the appellant contended (1) appreciation of evidence by the trial court was incorrect and improper; (2) the trial court failed to take into consideration that witnesses who gave evidence in support of prosecution case were interested in that they were close relatives of the deceased, (3) in spite of existence of a number of discrepancies and contradictions, the trial court brushed aside the same and came to the conclusion that the accused committed the offence under section 302 ipc. (4) even if it is admitted that all the witnesses spoke about the accused pouring kerosene on the body of the deceased and setting fire, another circumstance should have been taken into consideration, namely, the accused also received burn injuries and was in the hospital for about two months; (5) the deceased while making dying declaration stated that the accused was in a drunken state of mind. She did not say anything as to harassment earlier to the incident or demanding dowry or was treating the deceased cruelly. As such the plea of drunkenness on the part of the accused should have been taken into consideration by the trial court. If that was considered, the finding would have been that the accused had no intention or knowledge to murder or to cause the death of the deceased; thus entitled for acquittal.
(7) As an answer to these contentions smtsusheela devi learned public prosecutor submitted that the judgment under appeal is a well - considered one. The court below appreciated the entire evidence including the plea of drunkeness and reached the conclusion that the accused was responsible for causing the death of the deceased by pouring kerosene. There are no infirmities, inconsistencies or improbabilities in the evidence. The entire evidence is most acceptable and natural which necessitated in passing the judgment convicting the appellant for the offence under section 302 ipc and sentencing him to undergo imprisonment for life. Thus, no interference is warranted.
(8) P. Ws. 1 and 3 are the mother and brother of the deceased. When the incident took place, they were not in the house. P. W. 2 is the husband of the sister of the accused. He stated that both the accused and the deceased were living together in a room when the deceased caught fire. However, he did not support the version of the prosecution. P. W. Ll is the doctor who held autopsy. P. W. 12 is the circle inspector of police who laid the charge - sheet. The other witnesses were either panch witnesses to the scene of offence or seizure. Ex. P. 1 is the 161 statement of p. W. 2 and ex. P. 3 is the dying declaration of smt. Anees fatima recorded by p. W. 4 sri anand rao, the learned magistrate. Ex. P. 8 is the fir and ex. P. 16 is the post - mortem report. The scrutiny of the evidence referred to above makes it clear that the deceased died because of burn injuries and the person responsible for causing burn injuries is the accused. This fact has been proved. Now, the question is whether the trial court is justified in convicting the accused under section 302 ipc or for some other offence?
(9) The defence took the plea that at the time of causing the incident the accused was drunk and he was not in a position to understand what he was doing. At no point of time there were quarrels between the deceased and the accused and mere is no evidence to show that the accused was ill - treating the deceased or harassing her or demanding dowry. On the other hand, the evidence is to the effect that they were living happily and gave birth to three children. As far as the fact of drunkenness is concerned, that has been confirmed by the dying declaration of the deceased ex. P. 7 a portion of which is marked in ex. D - 3. But the fact as to the accused coming fully drunk is silent in the dying declaration recorded by p. W. 4. As to the act done by the accused is concerned, there is clear information. The correctness or otherwise of the conviction and sentence ordered by the trial court depends upon how far the drunkenness is established. It is a well - established principle of law that drunkenness is not an excuse for committing a heinous act and it differs from insanity. To seek excuse under drunkenness, several factors are to be taken into consideration and one has to establish the ingredients as contemplated under sections 85 and 86 of the ipc. section 86 reads as follows:
"offence requiring a particular intent or knowldege committed by one who is intoxicated: in cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he ha d the same knowledge as he would have had if he had not be intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will."
An act done is not an offence unless done with a particular knowledge or intent. A person who does an act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. Section 85 reads as follows:
"act of a person incapable of judgment by reason of intoxication caused against his will: nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
(10) Thus, it is clear from section 85 that voluntary drunkenness is no excuse for commissioin of a crime and the court will not attach any importance to the fact that the accused was drunk at the time of commission of the crime. In order to invoke the plea of drunkenness the correct test to be applied is by reason of intoxication whether the accused person was incapable of knowing the nature of the act and that the tiling which intoxicated him was administered to him without his knowledge. In enrique f. Rio vs. State it was held:
"evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act."
It was further held:
"however, in view of section 86 indian penal code the accused should be imputed with the knowledge of his act. This takes out his case from the rigour of a case of murder to one of culpable homicide not amounting to murder."
Sometimes intention on the part of the person who is drunk can also be assessed from the nature of weapon used in the commission of the offence. If a person uses a weapon which is not dangerous and the attack results in death, malacious intention cannot be drawn against him even though drunkenness is no excuse. The difference between sections 85 and 86 is not so much and it differs in a very thin way. Still the difference can be pointed out. Section 85 speaks about knowledge. Having understood section 85 that voluntary drunkenness does not palliate any defence, but it is generally taken into account as throwing light on the factum of intention. Therefore, under section 86 prosecution has to prove that in spite of drunkenness the person had intention to commit the act forbidden by law or that he had the knowledge that on committing the said act, it will result in the death of the person on whom he has attacked. Further, it depends upon several factors involved in the case. If a person in spite of drunkenness, capable of understanding the things and he intends to do away with that person and it results in his death, it is nothing but a clear case of murder as the two ingredients, namely, intention and knowledge exist. But in a case where the person drunk is unable to form an intention to kill, though he had the knowledge that such an act will be dangerous, it will amount to committing an offence of culpable homicide. Thus, so far as knowledge is concerned the standard of test is same as in case of intention. As far as intention is concerned, it has to be gathered from various surrounding factors. To invoke section 86 the state of intoxication must make the person incapable of understanding. Therefore, under section 86 initial burden will be on the accused and he has to lead the evidence independently for bringing out the fact in the cross - examination that he was in such a drunken state, that he could not form any intention of the alleged offence. Whether the plea of drunkenness can be taken as defence for claiming acquittal or for lessening the sentence has been elaborately dealt with by the privy council in director of public prosecutions vs. Beard2 wherein it was held:
"notwithstanding the difference in the language used i come to the conclusion that (except in cases where insanity is pleaded) these decisions establish that where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved. This does not mean that the drunkenness in itself is an excuse for the crime but that the state of drunkenness may be incompatible with the actual crime charged and may therefore negative the commission of the that crime. In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm, unlawful homicide with malice aforethought is not established and he cannot be convicted of murder."
(11) In fact, the above decision became a basis for all such cases both in india and outside. Identical to the one in beard's case the supreme court in basdev vs. State of pepsu dealing with section 86 ipc held as follows:
"it is no doubt true that while the first part of the section speaks of intent or knowldege, the latter part deals only with knoeledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. " so far as knowldge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. "
A division bench of the bombay high court in babu sadashiv jadhav vs. State of maharashtra while dealing with the scope of section 86 held:
"on the evidence in this case, it cannot be said that the accused was so much intoxicated at the time of the incident that he was beside his mind altogether for the time being. He did set his wife on fire but as soon as her sari started burning he realised the folly of his act and started extinguishing the fire. It shows that he was not so much intoxicated that he was besides his mind altogether. Therefore the rule that a man is presumed to intend the natural consequences of his act can be applied to him also. At the same time, in order to gather his intention all the attending circumstances and his preceding and subsequent conduct will have to be taken into consideration. The established circumstances and the subsequent conduct of the accused mentioned above clearly indicate that the accused did not intend to cause the death of his wife, but from his act of pouring kerosene oil and setting her on fire it can be legitimately inferred that he intended to cause the burn injuries to his wife which were likely to cause death."
(12) In the instant case also though the accused was drunk at the time of causing the death of his wife by pouring kerosene and setting her on fire, it cannot be said that he was beside his mind altogether at the time of the incident. As his wife obstructed him from going out, he got very angry and caused the death of his wife. But soon he realised his folly and tried to extinguish the fire and sustained burn injuries and it is in the evidence that he was also in the hospital for the said injuries for about two months. Taking into consideration the state of drunkenness and other attendant circumstances it can be said that the offence committed by the accused is of culpable homicide not amounting to murder.
(13) It has come in the evidence that the accused used to come often drunk. There is no evidence to show that on previous occasions there used to be any quarrels or he was treating the deceased cruelly or harassing her to bring dowry. Though he was in a drunken condition, there was no intention on the part of the accused to kill the deceased, yet he had the knowledge that such an act will definitely be dangerous to the life of the deceased. If this was considered properly by the trial court, the finding would have been that the accused, though responsible for causing the death of the deceased, is guilty only for the offence under section 304 part ii ipc and not under section 302 ipc.
(14) In the result, the conviction and sentence awarded by the court below under section 302ipc are set aside and in its place we order that the accused be convicted, for an offence under section 304 part - ii ipc and sentence him for five years ri.
(15) The criminal appeal is allowed to the extent indicated above.
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