Telangana High Court
Lebaki Venu vs The State Of A.P. on 1 April, 2024
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THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL NO.181 OF 2011
JUDGMENT:
1. This Criminal Appeal is filed by the appellant/accused against the judgment of conviction dated 11.02.2011 in S.C.No.16 of 2009 on the file of the Judge-Family Court -F.A.C. Special Sessions Judge for SC & ST (POA) Act, R.R.District at L.B.Nagar, for the offence under Sections 354, 451 and 506 of IPC.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor for respondent-State. Perused the record.
3. Briefly, the case of the prosecution is that the appellant is the resident of very same area where the deceased lived. The appellant was following her regularly. P.W.1 is the father of the deceased. On the date of incident which is 25.04.2007, the appellant entered into the house of the victim and kissed her and also stated that he loves her. Unable to bear the constant harassment by the appellant, the victim poured kerosene on to herself and set fire.
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4. The victim was taken to Gandhi Hospital and a requisition was given to P.W.1 who was the concerned Magistrate for recording the dying declaration. The dying declaration was recorded on the same day. The Investigating Officer having examined the witnesses concluded the investigation and filed charge sheet for the offence under Sections 354, 301 of IPC and Sections 3 (2) (v) and 3(1) (xi) of SC & ST (POA) Act, 1989. The accused was charged for the offences under Sections 451, 354, 306 of IPC r/w. Section 3(2)(v) of SC & ST Act. The learned Sessions Judge for SC & ST cases found that no offence under provisions of SC & ST Act and 301 of IPC was made out and accordingly acquitted the accused. However, the accused was found guilty for the offences under Sections 451, 354 and 506 of IPC.
5. Learned counsel appearing on behalf of the appellant would submit that there are no eye witnesses to the said incident. The only evidence available for the prosecution was dying declaration which was recorded by P.W.9. According to P.W.8/Doctor who conducted post mortem examination, the deceased received 98% burn injuries. If the victim received 98% burn injuries, sedatives would be given to her and it is 3 highly impossible for the victim who received 98% burn injuries to make a statement before the Magistrate. For the said reason of their being no possibility to make a statement, the statement recorded appears to be fabricated. For the said reason, the conviction has to be set aside.
6. On the other hand, learned Public Prosecutor would submit that P.W.9 who is a responsible Magistrate of the area had recorded dying declaration of the victim girl. There was no necessity for the Magistrate to come up with a false version against the appellant.
7. The entire case rests on dying declaration which was recorded by P.W.9. Prior to that, P.W.11 also recorded the statement of the deceased. Thereafter, the concerned Magistrate had recorded the statement. Ex.P.7 is the dying declaration recorded by the learned Magistrate. During the said dying declaration, even before Magistrate started recording the dying declaration, the Doctor had certified that patient is in fit state of mind. Having obtained the said certification by the Doctor, P.W.9 proceeded to examine and recorded the statement of the deceased. Initially, questions were put to victim as to ascertain the situation of the victim 4 whether she was in a position to answer. Being satisfied with the answers given by the victim to the preliminary questions put by the learned Magistrate, deceased was questioned as to what happened. The deceased stated that the appellant had entered her house and kissed her. She was saddened by his act and unable to bear the insult, she poured kerosene onto herself and lit the fire. She also answered the other questions regarding who had brought her to the hospital. After stating that the accused has trespassed into the house and kissed her and unable to bear his harassment, she attempted suicide, she informed the Magistrate that she was facing difficulty in opening her eyes and wanted to get proper treatment. The victim also answered other questions as to place of her study and examinations she has written. Having gone through the questions that were asked and answers given by the deceased, it is apparent that the victim has given coherent answers having understood the questions of the learned Magistrate. Again after conclusion of recording the statement, the Doctor had endorsed that the patient was conscious and coherent while giving statement. In the said circumstances, the argument of the learned counsel appearing for the appellant 5 that there was no possibility of victim giving statement, cannot be accepted.
8. Learned counsel appearing for the appellant submits that the appellant is now aged 43 years and he has wife and two children, who are dependant on him.
9. In the said circumstances of the case, the conviction is confirmed. However, the sentence of imprisonment of five years under Section 354 of IPC is reduced to two years. The conviction under Section 451 and 506 remain unaltered.
10. Accordingly, the Appeal is partly allowed. The concerned Magistrate shall cause appearance of the appellant and send him to the prison to serve out the remaining sentence. Miscellaneous applications, pending if any, shall stand closed.
_________________ K.SURENDER, J Date: 01.04.2024 dv 6 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL NO.181 OF 2011 Dt.01.04.2024 dv