Telangana High Court
Lebaki Venu vs The State Of A.P. on 1 April, 2024
1
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.
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
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
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
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
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL NO.181 OF 2011
Dt.01.04.2024
dv
