Sri K.balaramaraju

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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs

& STs (POA) ACT-CUM-ADDL. DISTRICT COURT, EAST GODAVARI AT

RAJAHMUNDRY

PRESENT:- K.Balaramaraju VI Additional District & Sessions Judge (FTC) (FAC) Special Judge, SC & ST Court, Rajahmundry Friday, the 30th day of March, 2012.

CRIMINAL APPEAL NO.265/2011

From which court this appeal is : Assistant Sessions Court, Preferred Ramachandrapuram.

Number of the case in that Court : S.C.No.64/2009

Name and description of the : Reddy Suryarao @ Gummileti Surya Rao, S/o Venkata Raju, Hindu, 53 years, Cultivation, Velagathodu village, Mandapeta Mandal.

Appellant/Accused depended on : Sri P.Nanda Kishore, Advocate Rajahmundry

Name and description of the : The State, S.H.O., Mandapeta, Respondent Rural Police Station,

Respondent depended on : Sri Gopala Rao Special Public Prosecutor

Section of Law under which the : Under Sections 306 and 447 IPC Appellant are convicted in the : Lower Court :

Whether confirmed, reversed or : Reversed Modified, if modified what is the modified

DATE ON WHICH:

Presentation of appeal : 12-7-2011 Filing : 12-7-2011 Hearing : 26-3-2012 Judgment : 30-3-2012

This appeal coming before me on 26-3-2012 for final hearing in the presence of Sri P.Nanda Kishore, Advocate for the appellant/Accused and of

Sri Gopala Rao, Special Public Prosecutor for the State/Respondent, and upon perusing the material available on record, and upon hearing the arguments of both sides, and having stood over for consideration till this day, the court delivered the following:

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JUDGMENT

1.The appellant sought to oppugn the correctness or otherwise of the conviction and the sentence inflicted by the learned trial court in

S.C.No.64/2009.

2.Heard the counsel.

3.The main stay of the appellant is that the evidence is obscured in asmuch as the ingredients of Sections 306 and 447 IPC are not attracted.

The learned trial court relied heavily on Ex.P11 ignoring the dying declaration marked through D.W.1 the learned Judicial First Class

Magistrate. Ex.D2 Dying Declaration was the first of this kind duly

recorded, after following procedure whereas Ex.P11 does not bear the certificate of the doctor about the condition of the deceased.

4.Now the point for consideration is;

Whether the judgment under challenge can be sustained or not?

5.POINT: Before the learned trial court as many as nine witnesses were examined and Ex.P1 to P17 were marked. DW1 Judicial First Class

Magistrate was examined through the defence and Exs.D1 to D3 i.e.,

hospital intimation, dying declaration and rough sketch in S.C.No.123/2008 were marked.

6.Admittedly there are disputes between the prosecution party and the appellant herein and as such a duty is cast on the court to circumspect their evidence with utmost care and caution and see that it was free from any implications. It is therefore necessary for us to have a glance at the evidence of the witnesses.

7.P.W.1 co-sister of the deceased deposed that on 4-10-2007 around 9.00 p.m., the deceased went inside the bath room in her portion. Then 3 they heard the sceams of the deceased. Immediately they rushed there they noticed the accused pushing one Rama Rao and fleeing. When enquired, the deceased told her that the accused tried to rape her. On 6-10-2007 the deceased went to police-station and gave the complaint. As she felt insulted on 25-10-2007 at 9.00 a.m., the deceased set fire on herself and died. She found a suicide note Ex.P1. Ex.P2 is the photo containing the stool in the bathroom. Ex.P3 is the photo of the bathroom and Ex.P4 is photo of bathroom with another angle. Ex.P5 is the photo of the deceased. MO1 is half burnt stool. According to her she whiffed the smell of the Kerosene. She has clearly admitted that the deceased did not sign Ex.P1 in her presence. The handwriting found underneath Ex.P1 after the signature of the deceased, is not found in the photostat copy. She admitted that L.W.6 Rama Rao, his brother and others are accused in 307

IPC case filed by the accused. P.W.2 did not support the prosecution case.

So also P.Ws 3 and 4. P.W.5 deposed that he was present when inquest was held over the dead body of the deceased at GGH, Kakinada. They opined that being unable to bear the insult the deceased died. The evidence of P.W.6 is formal in nature. P.W.7 the doctor deposed that the cause of death was due to burns. P.W.8 a retired Head Constable deposed that he received the statement said to have been recorded by L.W.17

A.S.I. under Ex.P11 and registered the case initially under Section 309 IPC on 29-10-2007. They seized MO1 from the bathroom. He recorded the statement of the deceased. This witness has admitted that there is no number or name of the person that recorded in Ex.P11 statement. Some space was left over on the bottom of Ex.P11. There is no signature of the doctor on Ex.P11. P.W.9 the investigating officer deposed that he took up investigation and examined witnesses and recorded their statements etc.,

The investigating officer has admitted that the statement of the deceased was recorded by the Magistrate, that Magistrate was not cited as a witness 4 in that charge-sheet. This itself epicts the carelessness on the part of the prosecution in not citing the Magistrate as a witness. He did not collect the admitted signature of Vijaya lakshmi written on some Chakali paddulu to ascertain Ex.P1 was written in her hand or not.

8.It is therefore necessary for us to examine Ex.P1. Ex.P1 is said to have been recorded by the deceased herself and it was mentioned therein that she died of being unable to bear the incident in which the accused tried to commit rape on her. It is visible to a naked eye that the contents were written by somebody else and the signature of Vijaya Lakshmi was scribbled. It is therefore clear that the deceased was not the author of

Ex.P1 also for the reason when the admitted handwritings of the deceased were available, prosecution chose not to collect them and sent them to

Expert. Be that as it may, Ex.D2 dying declaration recorded by the learned

Judicial First Class Magistrate assumes significance when the deceased has given a clean chit to the accused when she stated that due to fire accident flames caught her neighbours came to extinguish the fire when her children was watching T.V. her husband was not in the house. Ex.D2 bears the endorsement of duty doctor that the deceased was conscious and coherent when she made the statement. This statement was recorded on 25-10-2007 at 1.25 p.m., Whereas Ex.P11 statement said to have been recorded by L.W.17 A.S.I. bears the timing at 3.30 p.m., on 25-10-2007.

It is therefore clear that the dying declaration at 1.25 p.m. was first recorded by the learned Magistrate. More over Ex.P11 did not bear the certificate of the duty doctor about the state of mind of the deceased. For those intrinsic lacunas a serious doubt arises about the authenticity of

Ex.P11. This court is of the opinion that it cannot be looked into as no other evidence shall prevail over dying declaration in the background of the facts and circumstances of the case, and that Ex.D2 excludes the presence of the husband of the deceased and gives clean chit to the accused. The 5 fact remains that a case under Section 307 IPC has been registered even prior to the registration of the instant case, as admitted by the prosecution witnesses.

9.The learned trial court swayed more on the uncorroborated testimony. The prosecution is bound to suffer for purposefully omitting the learned Judicial First Class Magistrate citing him as a witness. As noticed earlier the case of the prosecution is also bound to collapse for not collecting other admitted signatures of the deceased to compare them with the Ex.P1 said to have been recorded by the deceased in her own hand.

Ex.P1 is visible to a naked eye that the contents were written exactly not by the deceased but by someothers. The signature said to have been put by the deceased is altogether different from the contents written there.

10.For those glaring lacunas this court is of the opinion that the appeal can be allowed.

11.In the result, the appeal is allowed setting aside the conviction and sentence imposed by the learned trial court. Fine if any, paid be refunded.

The orders as to material objects passed by the learned trial court need not be disturbed.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me, in the open Court, this the 30th day of March, 2012

Sd/- K.Balaramaraju

(FAC) Special Judge, SC's and ST's Court,

(F.T.C.),RAJAHMUNDRY.

1.Copy submitted to the Registrar (Judicial), High Court of Andhra Pradesh, Hyderabad.

2.Copy to the Assistant Sessions Judge, Ramachandrapuram along with lower court entire record in S.C.No. 64/2009.

3.Copy to the appellant/accused.

1

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCs

& STs (POA) ACT-CUM-ADDL. DISTRICT COURT, EAST GODAVARI AT

RAJAHMUNDRY

PRESENT:- K.Balaramaraju VI Additional District & Sessions Judge (FTC) (FAC) Special Judge, SC & ST Court, Rajahmundry Friday, the 30th day of March, 2012.

CRIMINAL APPEAL NO.267/2011

From which court this appeal is : Assistant Sessions Court, Preferred Ramachandrapuram.

Number of the case in that Court : S.C.No.123/2008

Name and description of the : Reddy Suryarao @ Gummileti Surya Rao, S/o Venkata Raju, Hindu, 53 years, Cultivation, Velagathodu village, Mandapeta Mandal.

Appellant/Accused depended on : Sri P.Nanda Kishore, Advocate Rajahmundry

Name and description of the : The State, S.H.O., Mandapeta, Respondent Rural Police Station,

Respondent depended on : Sri Gopala Rao Special Public Prosecutor

Section of Law under which the : Under Sections 457 and 354 IPC Appellant are convicted in the : Lower Court :

Whether confirmed, reversed or : Reversed Modified, if modified what is the modified

DATE ON WHICH:

Presentation of appeal : 12-7-2011 Filing : 12-7-2011 Hearing : 26-3-2012 Judgment : 30-3-2012

This appeal coming before me on 26-3-2012 for final hearing in the presence of Sri P.Nanda Kishore, Advocate for the appellant/Accused and of

Sri Gopala Rao, Special Public Prosecutor for the State/Respondent, and upon perusing the material available on record, and upon hearing the arguments of both sides, and having stood over for consideration till this day, the court delivered the following:

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JUDGMENT

1.Being aggrieved by the conviction and sentence recorded by the learned trial court, the appellant has preferred this appeal.

2.Heard the State.

3.The main stay of the appellant is that there is a delay of two days in giving the complaint which remained unexplained. No reasons were assigned whether the matter was placed before the elders or that any such elder was examined. The learned trial court swayed by the 161 Cr.P.C.

statement of the deceased Vijayalakshmi before recording conviction.

Evidently the victim was not examined.

4.Now the point for consideration is;

Whether the conviction and sentence passed by the learned trial court can be sustained or not?

5.POINT: Before the learned trial court as many as seven witnesses were examined and Exs.P1 to P6 were marked. It is therefore necessary for us to have a glance at the evidence. What all P.W.1, husband of the deceased, deposed is that on 4-10-2007 at about 9.00 p.m., he along with his family members was watching T.V. Around 9.15 p.m.,, his wife went inside the bathroom, They heard screams. He noticed the accused holding the hand of his wife and insulting her and trying to outrage her modesty.

He tried to apprehend the accused. Ultimately he gave the complaint.

In cross-examination he admitted that most of the witnesses are his close relatives. There was a mention in the complaint that the accused had snatched away the Mangalasutrams and chain weighing about 5 tulas from the neck of the deceased. The house of the accused is nearer to the house of the complainant. This witness has admitted that on 6-10-2010 the accused gave a complaint against him and others for an offence under

Section 307 IPC. Admittedly Ex.P1 complaint was presented on 6-10-2007 at 3.30 p.m., It is therefore imperative for us to bear in mind that evidently no reasons were assigned for giving the complaint lately that too after the accused giving complaint against the prosecution party. P.W.1 has stated that he did not tell to police as in Ex.D1. Ex.D1 is to the following effect. “As P.W.1 and others learnt that the accused had filed a 3 case against them, he took his wife to give complaint.” Evidently no reasons were assigned for not giving complaint either on 4th or atleast on 5th. The evidence of P.W.2 brother of P.W.1 is to the effect that they heard cries from the bathroom and noticed the accused. He noticed P.W.1 trying to hold the accused. This witness has however admitted that one Venkata

Raju father of the victim was convicted in criminal case on the evidence of accused. P.W.3 another brother of P.W.1 also spoke on the same lines. It is significant to note that this witness has admitted that he is the accused in

Sessions Case NO.392/2008. He did not tell to police as in Ex.D2. Ex.D2 is

to the following effect “as they went to the house of the accused, the accused was not there. Again on 6-10-2007 when they went and questioned, the accused hid himself in the house.” The evidence of P.W.4 is hearsay in nature. This witness has also admitted that he is one of the accused in Sessions Case No.392/2008 filed by the accused herein. P.W.5 is an independent witness turned hostile. The evidence of P.W.6 is to the effect of preparing scene of offence and observation report. The cross- examination of the investigating officer gains significance when he stated that P.W.1 did not tell that P.Ws 2 and 3 tried to catch the accused. The investigating officer has deleted Sec. 379 IPC.

6.As is seen, admittedly excepting the family members, no other independent witnesses have supported the case of the prosecution. Be that as it may, the contradiction in Ex.D1 marked through DW1 raises any amount of doubt when P.W.1 he stated that as he learnt that the accused herein had filed a case against them, he took his wife to the police-station and got the complaint given. Be that as it may, evidently therefore there was no explanation whatsoever by the prosecution for the inordinate delay of two days giving complaint. This delay, in the background of the facts and circumstances of the case that earlier on a complaint given by the accused herein the father of the victim was sentenced to imprisonment and someother sessions case was also pending against the prosecution witnesses on the complaint given by the accused herein raises any amount of doubt. The learned trial court, while recording the conviction, appears to have being swayed by 161 Cr.P.C. statement of L.W.1 (since dead). The approach of the learned trial court do not therefore stand to test or reason when it relied on the 161 Cr.P.C. statement t of L.W.1.

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7.The case of the prosecution is bound to suffer not only for the inordinate delay of two days in giving the complaint, but also for the reasons that differences were brewing simmer by the date of giving complaint in asmuch as the father of the victim was jailed and other prosecution witnesses were accused in Sessions Cases on the complaint given by the accused herein.

8.In the result, the appeal is allowed setting aside the conviction and sentence imposed by the learned trial court. Fine if any paid be refunded.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me, in the open Court, this the 30th day of March, 2012

Sd/- K.Balaramaraju

(FAC) Special Judge, SC's and ST's Court,

RAJAHMUNDRY.

1.Copy submitted to the Registrar (Judicial), High Court of Andhra Pradesh, Hyderabad.

2.Copy to the Assistant Sessions Judge, Ramachandrapuram along with lower court entire record in S.C.No. 123/2008

3.Copy to the appellant/accused.