Partly allowed

Shaik Jalaluddin, Spsr Nellore Dt., v. the State of Ap., Rep Pp.

Andhra Pradesh HC13 Mar 2024CRLA/282/2016

Case brief

AI extract

What is this about?

Husband convicted of murder after setting his wife on fire appealed against the trial conviction. The High Court found the two dying declarations consistent and reliable, but held the act was committed in heat of passion without premeditation, converting the offence to culpable homicide not amounting to murder.

What did the court decide?

Conviction under S.302 IPC set aside; convicted under S.304 Part II IPC with 7 years RI and fine Rs.1,000, default SI 3 months; set off under S.428 CrPC allowed.

Shaik Jalaluddin, Spsr Nellore Dt., Vs the State of… — Dowry and Cruelty | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THURSDAY ,THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K SURESH REDDY

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AND

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THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL APPEAL NO: 282 OF 201 fi

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Appeal under Section 374(2) of Cr.P.C, aggrieved by the judgment passed in S.C.No.196 of 2010, dt.01-02-2016 on the file of the court of IV Additional District and Sessions Judge, Nellore, SPSR Nellore District.

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Between:

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Shaik Jaialuddin, S/o Nuruddin, Aged about 38 years, R/o D.No.6-2-14B, Near Kotha Masjid Centre, Ishakmidyavari Street Kavali Town, SPSR Nellore District.

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...Appellant/Accused

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AND

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The State of Andhra Pradesh, rep.by its Public Prosecutor, High Court of Andhra Pradesh at Amaravathi

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...Respondent/ Respondent

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Counsel for the Appellant: Sri. G Vijaya Saradhi

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Counsel for the Respondent: Public Prosecutor

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The Court made the following: JUDGMENT

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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(Special Original Jurisdiction)

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THURSDAY, THIS THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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SPECIAL DIVISION BENCH

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PRESENT

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THE HON’BLE SRI JUSTICE K.SURESH REDDY

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AND

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THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.282 OF 2016

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Between:

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Shaik Jalaluddin, S/o.Nuruddin, Aged about 39 years, Muslim, R/o.D.No.6-2-14B, Near Kotha Masjid Centre, Ishakmiyhavari Street, Kavali Town, S. P. S. R. NelloreDistrict. Appellant/A-1

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AND

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The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court at Hyderabad. Respondent/Complainant

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Counsel for the Appellant(s) : Sri G.VijayaSaradhi Counsel for the Respondent(s) : Public Prosecutor

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JUDGMENT:

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(Per Hon’ble Sri Justice B.V.L.N.Chakravarthi) 1. Heard Sri G.Vijaya Saradhi, learned counsel for the appellant/accused No.l and Sri S.Dushyanth Reddy, learned

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Addl.Public Prosecutor for respondent/State.

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The appeal is filed by the appellant/accused No.l aggrieved by the judgment dated 01.02.2016 passed in S.C. 196/2010 on the file of the learned IV Addl.District & Sessions Judge, Nellore, SPSR Nellore District.

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The facts as culled out from the evidence of prosecution witnesses are as under:

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(i) The appellant/accused No.l and Smt.Sk.Shakira (hereinafter referred to as ‘deceased’) are husband and wife; their marriage was solemnized on 17.05.1998; out of^their wedlock, they blessed with one son and one daughter; the appellant/A-1 went to Saudi Arabia; he returned to^Indiatwo years prior to the date of offence; Smt.Sk.Julekabee (A-2) is the mother of A-1; Smt.SyedBibijan (A-3) is the sister of A-2; A-2 and A-3 instigated A-1 to demand Rs. 1,00,000/-^fromthe deceased; the accused No.l to 3 were harassing the deceased, demanding additional dowry.

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(ii) On the intervening night of 5/6.05.2009 at about 01.00 a.m. A-1 came to the house in intoxicated condition; A-1 beat the deceased suspecting her fidelity; the^deceased questioned A-1 about his conduct; A-1 grew wild, beat the

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deceased indiscriminately, dragged her to the corner of the kitchen, poured kerosene and set her on fire in the presence of children; the deceased raised cries; A-1 immediately^triedto put off the flames, pushed her into a water tub; on hearing cries of the deceased, ShaikGhouse Basha (P.W-6) and others came to the house of accused; they found the deceased with burn injuries; the deceased was shifted to PrajaVydyasala (hospital) belonging to Dr.N.Prabhakar Naidu (P.W-10);^later shifted to Charitha Sree Hospital, Vijayawada on 07.05.2009; on intimation from hospital. Sri P.D.S. Prasad, Head Constable of Police of Suiyaraopet Police Station, Vijayawada, (P.W-8) visited the hospital and recorded statement of deceased (Ex.P-4); it was forwarded to Kavali Police Station; III Metropolitan Magistrate, Vijayawada, (P.W-11) on receipt^of requisition from the hospital, visited the hospital and recorded dying declaration of deceased (Ex.P-5); Sub Inspector of Police, I Town Police Station, Kavali, (P.W-14) on receipt of Ex.P-4, registered a case in Cr.No.75/2009 for the offence U/s.498-A and 307 of Indian Penal Code, 1860 (for brevity ‘IPC’) vide Ex.P-9 and submitted copies to all

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concerned; he visited Charitha Sree Hospital at Vijayawada, examined the deceased and recorded her statement.

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(hi) Sub Inspector of Police also examined Shaik Shareef (P.W-2), Shaik Baji (P.W-4) and others and^recorded their statements; he obtained copy of dying declaration recorded by the Magistrate; on 08.05.2009 he visited^sceneof offence i.e., house of accused No.l and deceased situated in Ishakmiyavari Street, Kavali and prepared scene observation report (Ex.P-10) and rough sketch (Ex.P-11) in the presence of P.W-9 and another mediator; he examined Shaik Ghouse Basha (P.W-6), Md.KouserJohn (P.W-7) and others and recorded their statements; he seized M.O-1 burnt clothes, M.O-2 cloth pieces having skin peeling, M.O-3 broken bangle pieces, M.O-4 water plastic can, M.0-5 partly burnt mixer, M.0-6 burnt plastic hair bonds, M.O-7 partly burnt^combed hair and M.O-8 towel at the scene of offence.

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(iv) Further investigation was conducted by the Inspector of Police, Kavali (P.W-15); on receipt of^information about death of deceased on 23.05.2009, he came to Vijayawada, visited the hospital; he secured witnesses

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. t

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Mohammed Shaheeda (P.W-3), Shaik Ghora Babu (P.W-5) and others and recorded their statements; inquest was conducted over dead body of the deceased in the presence of the Marri Immanial (P.W-12) and others under the cover of Ex.P-16 panchanama; dead body was sent for post mortem examination; he also examined and recorded statement of ShaikShareef (P.W-2) and others; he came to Kavali and filed a memo before the Magistrate for altering the offence from 498-A, 307 IPC to 498-A, 302 IPC and section 3 and 4 of Dowiy Prohibition Act, 1961; on 25.05.2009 he visited the scene of offence in the presence of Shaik Ghora Babu (P.W-5), Md.Kouser John (P.W-7) and others and recorded their statements;he also recorded the statement of Dr.N.Prabhakar Naidu (P.W-10); Associate Professor, Medical College,^Guntur (P.W-13) conducted autopsy over the dead body of deceased on 25.05.2009 and issued Ex.P-8 post mortem certificate opining that the cause of death was due to burns.

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(v) The Inspector of Police on receipt of post mortem certificate visited Vijayawada and examined the doctor at Charitha Sree Hospital, Vijayawada, and recorded his statement; photographs of the deceased were also taken

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under Exs.P-13 to P-16; Inspector of Police arrested the accused No. 1 to 3 on 15.06.2009 and produced them^before the Magistrate for remanding them to judicial custody; on completion of investigation, he laid the final report (charge sheet) against the accused No.l to 3.

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During trial, 15 witnesses were examined for the prosecution as P.Ws-1 to 15and 17 documents were marked as Ex.P-1 to Ex.P-17 respectively, apart from M.Os-1 to 8. One document was marked as Ex.D-1 for the defence during the cross-examination of P.W-10. The accused were examined under section 313 Cr.P.C. regarding the incriminating circumstances appearing against him. He denied the^sameas false. No defence witnesses were examined.

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Sri G.Vijaya Saradhi, learned counsel for appellant/A-1 submitted that the trial Court found A-1 and A-2 not guilty for the offence U/s.498-A IPC and section 3 and 4 of Dowry Prohibition Act, 1961. It was submitted that the State did not file any appeal. The case against A-3 was abated as died. pending trial before the trial Court.

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Sri G.Vijaya Saradhi, learned counsel for appellant/A-1 vehemently argued that the learned trial judge erred in placing reliance on the testimony of P.W-3, P.W-4, and P.W-7 and Ex.P-4 and Ex.P-5; the learned trial Judge failed to see that P.W-2, P.W-6 and P.W-9 did not support the case of the prosecution; the learned trial Judge failed to take into account that the two dying declarations vide Exs.P-4 and P-5 are outcome of tutoring of contradictory to each other on material aspects relating to manner, in which the incident was occurred; the evidence of P.W-2 would show that A-1 is not responsible for the death of the deceased, and on the other hand, he tried to save the deceased by putting^offthe flames, and he also suffered burn injuries; in the light of evidence of P.W-2, the learned trial Judge ought not to have relied on Exs.P-4 and P-5 which are consistent on material facts; the death of deceased was occurred after 18 days due to septicaemia due to lack of proper treatment; in the light of said facts and circumstances, the judgment of the trial Court is not sustainable in law.

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The learned counsel for the appellant/A-1 in support^of his arguments, relied upon the judgments of the HonTDle Apex Court in the cases of

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Dandu Lakshmi ReddyVs. State of A.Pd

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2 .Jayamma and another Vs. State of Karnataka^

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Pathan Shafi Vs. State of Andhra Pradesh^.

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State of U.P. Vs. Veerpal and another^

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contending that the conviction on the basis of one dying declaration, where the two dying declarations are contradictory to each other, is not sustainable in^law.

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Sri S.Dhushyanth Reddy, learned Additional Public Prosecutor, appearing for the respondent/State, would submit that P.W-2 i.e., son of appellant/A-1 did not support the case of the prosecution at the time of trial and his evidence would show that he was under the care and custody of the appellant/A-1 when he deposed before the trial Court, and in that view of the matter, no reliance can be placed on his testimony, to reject the dying declarations vide^Exs.P-4

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1999 (7) see 69

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^2021 (6) see 213

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'2016 (2)ALD (erl.) 621

''2022 (4) see 741

and P-5. He would further submit that the scrutiny of Exs.P-4 and P-5 would establish that they are consistent on all material facts about the manner of the incident occurred; and the statement of the deceased unerringly point^the guilt of the A-1.

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The learned Addl.Public Prosecutor strenuously argued that no material is available on record to say that Exs.P-4 and P-5 were outcome of tutoring or prompting made by the relatives or friends of the deceased; on the other hand, evidence show that P.W-2 was in the custody of the appellant/A-1 at the time of his evidence and it is sufficient to say that his testimony was outcome of tutoring by the accused; the learned Addl.Public Prosecutor contended that when there are more than one statement in the nature of dying declaration, the one which was first in time must be preferred; In support of his arguments, he relied upon^the judgment of the Hon’ble Apex Court in the case of Jayamma Vs. State of Karnataka and State of Uttar Pradesh Vs. Veerpal and another, for the principles of multiple conflicting dying declarations, determination of credibility and^mattersto

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be considered.

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The point that arises for consideration is:-

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“Whether the prosecution was able to bring home the guilt of A-1 for the offence U/s.302 LP.C. beyond all reasonable doubt?>9

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POINT:

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We perused the evidence of P.Ws-1 to 15. It proves^that the marriage of the deceased and A-1 was solemnized^inthe year 1998; out of their wedlock, P.W-2 son and another daughter were born to them; they were living in a house located in Ishakmiyavari Street, Kavali; A-1 was working^as a driver; A-1, the deceased, P.W-2 and their daughter are residing in the house; on the intervening night of 5/6.05.2009 in between 01.00 a.m. to 02.30 a.m. the deceased suffered burn injuries in their house; P.W-7 neighbour shifted the deceased to Dr.N.Prabhakar Naidu Hospital (P.W-10);^firstaid was given to the deceased; she was shifted to Charitha^Sree Hospital, Vijayawada on 07.05.2009, for better management of the case; she succumbed to burn injuries on 24.05.2009.

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The case of the prosecution is that the appellant/A-1 used to harass the deceased for dowry and suspecting^her

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fidelity; on the intervening night of 5/6.05.2009 in between 01.00 a.m. to 02.30 a.m. A-1 came to the house; picked up quarrel with the deceased; beat her; when the deceased was about to leave the house along with children, he dragged^her to a corner in the kitchen, poured kerosene on her person and set fire; the deceased raised cries; A-1 pushed her into a water tub; in that process he also suffered burns; P.W-7 and others shifted the deceased to the hospital of P.W-10;^first aid was given to the deceased; later the deceased was shifted to Charitha Sree Hospital, Vijayawada, for better treatment; P.W-8 on receipt of intimation from the hospital, visited the hospital on 07.05.2009 and recorded her statement vide Ex.P-4; III Metropolitan Magistrate, Vijayawada, (P.W-11)^also on receiving requisition from the hospital, visited hospital^at about 04.00 a.m. on 07.05.2009 and recorded her dying declaration vide Ex.P-5.In both the statements, the deceased made statement that on 5/6.05.2009 at about 01.30 a.m. in the night, A-1 came to house, picked up quarrel, beat her, poured kerosene, and set fire; A-1 pushed her into a water tub; and he also received burn injuries in that process.

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The contention of A-1 is that the deceased went to kitchen to heat the curry to serve dinner to the accused A-1, who came to house at 01.30 a.m. after completing his^workas driver. All of a sudden, he heard cries from the kitchen,^and he noticed the deceased in flames; he tried to put off the flames by pushing her into water tub, and he also suffered burns 20%; Later, P.W-1 i.e., mother of the deceased and brothers of the deceased, and other relatives of the deceased tutored the deceased to implicate the accused, and therefore, the outcome are Exs.P-4 and P-5; there are material contradictions in the two statements about the manner in which the incident was occurred, and therefore, in the absence of corroborative evidence, dying declarations^cannot be made sole basis for conviction.

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On consideration of evidence, we found that it was P.W-7 i.e., neighbour to the accused, shifted the deceased^to hospital of P.W-10. If it is a case of accidental burns,^and when there are no disputes between the deceased and A-1, why the relatives i.e., mother of deceased or others would tutor the deceased to give a false statement implicating^A-1. If

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the accused goes to jail, children will become orphans. A-1 did not give any explanation in his examination U/s.313 Cr.P.C.

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We perused Ex. P-4 statement recorded by the Head Constable of Police (P.W-8) and Ex. P-5 statement recorded by the Judicial Magistrate (P.W-11).The core of the statements is that on the intervening night of 5/6.05.2009 at about 01.30 a.m. A-1 came to the house, picked up quarrel with the deceased and threaten children also. Therefore, the deceased intending to leave the house along with children at about 02.30 a.m.A-1 dragged her to the corner of kitchen, poured kerosene and set fire. She raised cries, then, A-1 pushed her into the water tub. In that process, he also suffered burns. We do not find any material discrepancies in Ex. P-4 and Ex.P-5. We do not find any material, particularly in^the crossexamination of P.W-7, P.W-8, P.W-10, P.W-11 which would probable the plea of A-1 about possibility of tutoring the deceased by her mother, brothers, or other relatives and reasons. In the light of said facts and circumstances, the judgment of the HonT^le Apex Court in Dandu Lakshmi Reddy Vs. State of A.P relied upon by the learned counsel for the appellant/A-1 has no application to the case on hand.

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In the case on hand, no material discrepancies foundⁱⁿ Exs.P-4 and P-5 recorded by P.W-8 and P.W-11 respectively. As already stated above, there is no evidence on record to say that Exs.P-4 and P-5 were the outcome of tutoring or prompting. In those facts and circumstances, we do^notfind any reason to disbelieve the statements/dying declarations made by the deceased recorded by the Head Constable of Police as well as the Judicial Magistrate. The dying declarations made by the deceased inspiring confidence^that it was made by the deceased voluntarily. Therefore,^weareof the opinion that it can be made sole basis for convicting^the accused No. 1.

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We are not inclined to rely on the evidence of P.W-2,^to reject the dying declarations made by the deceased^sincehe was under the care and custody of A-1 when he deposed before the learned trial Court. In those circumstances,^wedo not see any reason to disbelieve the dying declarations^made by the deceased.

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However, the statements of the deceased, would disclose that when the deceased raised cries, the accused A-1

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immediately pushed her into a water tub, to put off the flames and in that process he suffered burns 20%. The statement of deceased would also establish that there was a quarrel between the deceased and A-1, after he returned home. When the deceased along with children intending to leave the home at about 02.30 a.m., A-1 dragged her into the kitchen, poured kerosene on her and set fire. These circumstances would establish that A-1 committed the act of pouring kerosene and setting fire without any premedication, in a heat of passion. The facts would establish that the accused No.l has no intention to cause death or bodily injury as is likely^tocause death. Therefore, it is a case of culpable homicide not amounting to murder falling under part-11 of Section 304 I.P.C. Accordingly, the point is answered.

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In the result, the appeal is partly allowed and the conviction and sentence imposed by the learned IV Addl.District & Sessions Judge, Nellore, vide judgment dated 01.02.2016 in S.C.196/2010 against the appellant/accused No.l for the offence U/s.302 I.P.C. is set aside. Instead, accused No. 1 is convicted for the offence under section 304 Part II of I.P.C., and sentenced to suffer rigorous

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imprisonment for a period of seven (7) years, and shall^also pay a fine of Rs. 1,000/(Rupees One Thousand only), in default, suffer simple imprisonment for a period of three (3) months. The appellant/A-1 is entitled to set off U/s.428 Cr.P.C.

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As a sequel, miscellaneous petitions pending, if any,ⁱⁿ this Criminal Appeal shall stand closed.

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SDI- P VENKATA RAMANA JOINT REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER