Muggula Viiaykumar v. The State of Telangana

THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR CRIMINAL APPEAL No. 446 <rF 2oL7 JITDGMEIIT: (per Hon'ble Sri Justice K.surender) 1. This appea_l is liled by the appellant/accused No.2, aggrieved by the judgment dated, 22.OS.2OtZ, in S.C.No.517 of 2olo, passed by the II Speciar Sessions Judge court For Trial of Cases Relating to Atrocities Against Women, Cyberabad, convicting the appeilant/accused No.2 for the offences under Sections 342 and 3O2 of IpC, and sentencing him to undergo imprisonment for life.

2. Heard Mr. K.prabhakar Reddy, learned counsel for the appellalt and Mr. Dodla Arun Kumar, learned Additional public Prosecutor appearing on behalf of the respondent_State.

3. Appellalt is the accused No.2. In all, accused Nos.l to 5 were prosecuted for the offences under Sections 3O2, 342,326, and 42O of IPC.

4. Learned Sessions Judge found accused Nos.2 and 3 guilty for the offences under Sections 302 atd. 342 of IpC, however, acquitted them for the offences under Sections 376 and 42O of IPC. Accused No.4 was acquitted under Sectio n 342 of IpC arld accused No.5 was acquitted under Section 420 of IpC. I Z

5. Learned counsel for appellant submits that accused No'3 has not preferred any appeal' which is not disputed by the 1 Pubiic Prosecutor. 6 1S Briefly, the case of the prosecution is that the victim girl about 15 years old (deceased)' and she was admitted in Gandhi hospital on 17'03'2010 with burn injuries' PWl6' who is the InsPector of Police, went to the Gandhi HosPital and of deceased at 02'00 P'M' on recorded the statement In the statement made to 17.03.2010 in the female burns ward the Police, it was narrated as follows: *Mv name is Va-ralaxmi and I am resident of upto 6* class and i "ruai"d P"d;jt;*'ilg"t' at home' Two months back'.i ,.""""i,, , "-'","Ving f.'' Venkat' vijav' charan' Anil ;;;:;'"i;;"-*i'*' .KL-* *r,o are the tenants of one Narayana' On 9th .i ii,[ -.",r,, Vijav. Charan, Anil told me that there is birthday party in Vijayawada and asked me tu ir,em ana we went to vuayawada and ;;;;;"i ; hotel. From there, three davs back they :;;;"; i."Lgt, me back to kushaiguda and tied. TV nanlf ."Ji.g= ."a kept ctoth in my mouth and they went ;"; Til;;.rni,,g, tht"e of them forcetuUv tried to o. -1, for which I have retused' and .;;;ii;;r; ir thev do so, I will die bv pouring ;;td;;;';J said whv I strgut! lllt ;;;";; ti'"t thev will kiII me and poured ;;;;,n d;, kerosene on me set llre with match stick . 3"i"p.Jrt.- the."' av [stening- to. my. hue "li :Y' our ^ neighbours carne and admitted me ln trre hospital." ; mvself' "Jia -rhev 7 . On the basis of the said complaint' an FIR was registered for the offences under Sections 363' 3O7' 342' and 376 r/w 51 1 3 of IPC. The requisition was grven to the Jurisdictional Magistrate, who is pWl3. PW13 went to the Gandhi hospital and recorded the Dying Declaration gf the deceased on 18.03.2010 at 10.45 A.M. pW13, after putting l0 preliminaqr questions a,d having been convinced about the ftt state of mind of the deceased, recorded the statement of deceased. The Dying Declaration recorded by pWl3 is as follows: "On written requisition received at 1O:4S A.M. on 18.O3,.20-1! rhrough Kushaiguda p.S. f.om lu-ty' Oor:tor, 9T9n1 {osnita.l, H-yderabad-, r pro""ed"d"'tJlJcoro qJnng decla-ration of Kum Ch. Vara,lak s hmi D/o Krishna Age: 15 years. Resident of Bapuji Nug;, p;;rn;'n"uo .,rg*, Secunderabad. To ascertain the condition of the patient, the following questions are asked.

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6. 7. a 9. What is your Name: Varalakshmi What is your Father,s name: Krishna What is your age: 15 years Whether you have matried or not: Un married Have you got children: ..... are you residing: Bapuji nagar ,Where wnere are you now: Hospital Are you educated: 6th Class Are y_ou in a lit mental state of mind to make statement about the incident: yes 10. Do you know who am I ?: No, Identity is disclosed. I am satisfied daf fi"- ,r"*"-." g;;;-U declarant ald find that she is in con?ciiu. of mind to answer all questio"" p;; ;-; -the the duty doctor to certiff thl _"aiti.l .f pJI"t. "irra the victim/ i., fit state and I asked Patient is statement CERTIFICATE conscious, Coherent, in fit state of mind to give 18/3/2O1O 1l-3oa.m. sd/- Signature of Duty Doctor \ 4 I have tierefore proceeded to record her statement on this the 18th day of March, 2OlO at 11-30 a.m. as follows: Q. What happened? Ans: About six days back, Kumar, Charan, Vija;l took me away in a van forcibly. Q. From where and to which place, they have taken you? Ans: While I am going from home to Tailor shop, they forcibly kidnapped me in a van, and put clothes in my mouth and took me to Vijayawada. Q. How many days did you stay there? What happened? Ans: I stayed for two days at Vijayawada, they told me about the birthday party of Kuma,r. and took me to the Temple, on that I got scared, and asked them to send me to Hyderabad, on that we came to BHEL and they kept me in a room. Q. How many days did you stay there? What they did? Ans: There, I was constrained in a room, The above said persons forcibly participated in sexual intercourse with me. The three persons removed my clothes and made me nacked. The fourth person also tried to commit rape on me, when I tried to escape from him, then among them one Vijay took kerosene can and poured kerosene on me, before that Charan among them tied my legs, Kumar also poured kerosene on me, Charan set fire with match stick and they all fled away. My clothes were burnt due to fire. I ran outside, then neighboring persons took me to hospital in I O8 ambulance. Q) When, where and at what time, it was happened? Ans). In BHEL Yesterday Afternoon 12:30 PM the incident was occurred. Q) Can you tell their details? Ans) I can't tell the details of them except those three persons: 1. Kumar, 20 years, he is black in colour, Medium in height. 2.YlSay,19 years, white in colour, he will be in normal height. 3. Charan, 25years. He looks good. Q) Do you v/ant to tell anything more? Ans) They have to be Punished sir. RTI of varalakshmi The above statement is read over to the deceased and exptained to her in telugu and admitted the statement made by her. sd/_ -------------- 5 The certrficate of the doctor with regard to condition of the patient dunng recording her statement: .. through out the statement. Patient is conscious, Coherent, in fit state of mrnd r8.03.2010 12.15p.m." sd/- P.S. Raja Ravikumar 18_03_2010

8. The deceased died on 2l.O3.2OIO.After her death, Section of law was alterecl to Sections 363, 342,302, and 376 of IpC. 9. Having concluded the autopsy was conducted. rnquest .of the dead body, rLn

10. According to the prosecution case, the accused No.S was acquainted with the deceased and he promised to marry her. However, the accused No.5 refused to marry her, resulting in the deceased coming in search of accused No.S, meeting him and ultimately, coming into contact with accused Nos.l to 4. According to the deceased, 6 days prior to.the incident, she was acquainted with accused Nos.1 to 3, and they have forcibly taken her in a van, when she went to the tailor shop taken to Vijayawada, where she stayed for 2 days and thereafter, they came back to Hyderabad and stayed at BHEL. The incident happened on lZ.O3.2OlO, wherein the deceased was burnt by the accused, and thereafter, the accused fled. She was l I 6

11. The two statements, one given to the Police and the other to the Magistrate, are already extracted.

12. karned Sessions Judge mainly placed reliance on the Dying Declaration given to the Magistrate, and convicted the accused Nos.2 and 3.

13. karned counsel for the appellant would submit that the two Dying Declarations are totally contradictory. Learned Sessions Judge has selectively believed the version of the accused causing the death of the deceased, however, disbel'ieved the version of rape. No rape was confirmed by the Doctor. In the said circumstances, when two different versions are given, one in the statement to the Police, which is Ex.P18, where she stated that all 3 of them burnt her, and another before the Magistrate, where she stated that accused No.2 poured kerosene on her, while accused No.3 .set her on fire with a match stick, the said discrepancy goes to the root of the case and in the similar circumstances, the Hon'ble Supreme Court, in Dandu lakshm:i Reddg a. State of Andhra Ptod.eshl, acquitted the accused by setting aside the conviction. The relevant paragraphs held are as follows: '(1999) 7 scc 69 I -------------- 7 "rrj, "13. The first among such tests is to scrutinize whet-her there are inherent improbabilities in that version. We are unable to detect any such improbability inherent therein. The next test is whether tiere is irrh"..rrt contradiction therein. In that scrutiny we caffre across one material contradiction as between the two dying declarations regarding the context in which the deceased cerught fire. Ex.p14 shows that she was set hre !9 when shc was lighting a stove for preparing the coffee. The relevant portion of Ex.p14 is extracied heieinbelow: "Toda1, morning i.e., 9'lO-1994 when I w:ts lighting rhe stove in the kitchen and preparing coffee at about 6.OO a.m. my mother_in-law and husband came from behind. After entering the -and kitchen, my husband caught hold of my trair I was unable to move. My mother-in_law Narayanamma sprinkled kerosene on my body anri clothes. She asked her son to set fire, my husbanrt lit the rnatchstick and threw it on my clothes. When my clothes caught fire I started shouting with fear. My mother-in-law Narayanamma and my husbanrl Lakshmi Reddy ran away a from there.,,

14. In Ex.P-11 (which is a dying declaration given to the Judicial Maglstrate of the lst class) the conlext stated by the declarant was altogether different. The relevant portion is extracted below: "My mother-in-law's name is Narayanamma, my husbald's name is Dandu Lakshmi In the mornilg at 6.O0 a.m. when I was sweeping, my mother-in-law Narayanamma and my nuJUand Lakshmi Reddy both poured kerosene on me, lit the matchstick and set me to fire.,' -Reddy.

15. The above material divergence between the two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned Judges of the }Jigh Court, as they have observed thus: rThough there is a difference in ttte version of the deceased as to what she was doing at the relevant point of time the fact remains that A_ I and A_2 poured kerosene ald lit flre to her- These aspects are mentioned in Exs.p-l1 and p_14. Therefori, rve are unable to agree with the contention of the learnecl counsel for the accused appellants.,, \ 8

16. Thus the High Court has sidelined such a noticeable discrepalcy looming large as between the two different statements made by the same person. When the sphere of scrutiny of the dying declaration is a restricted area, the court cannot afford to sideline such a material divergence relating to this very occasiga-of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to t}re opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course."

74. Finally, learned counsel submits that according to the evidence of PWl /mother of deceased, the deceased narrated that accused No.3 poured kerosene on her and accused No. 1, using a match stick, set her on Iire. Thereafter, all of them ran away. The deceased informed her mother in the hospital about the incident but did not attribute any role to accused No.2. Different versions were stated by the deceased to PWl, PW2 and Magistrate. It casts any amount of doubt regarding the correctness of her statements.

15. Learned Additional Public Prosecutor would submit that though two Dying Declarations were given by the deceased, under Exs.Pl4 and P18, however, it was specifically stated by the deceased that accused Nos. 1 to 3 were involved in burning

16. The argument of the learned counsel appears attractive, however, as seen from the evidence of the Magistrate/PW 13, he ,./ /" 9 stated that on 17.03.2010, he received a requisition. from the Station House Officer to record the statement of the deceased. He went to the hospital and it was inforr4ed that the patient was not in a fit state to give a statement as the deceased was under sedation. Accordingly, he made an endorsement in Ex.Pl1, which is the requisition given to him. The said time frame given by the Magistrate coincides with the statement recorded by the Police Officer. Ex,p1g was recorded on I7.O3.2O|O. PWl6, who recorded the statement, did not seek assistance of the Doctor to know whether the deceased was in a fit state of mind to give her statement. pwl6 also did not put any preliminary questions to satisfu himself that the deceased was in a fit state of mind. Having perused Ex,plg, nowhere has PWl6 made any endorsement to the effect that he was satisfred about the condition of the deceased to give statement. There is no endorsement by the Doctor or the satisfaction of pWl6 that the deceased was in a fit state of mind. At the same time when Ex.Pl8 was recorded, it is not disputed that the M2grstrate went to the hospital ald he was informed that the deceased was not in a fit state of mind to give statement. For the said reason, Ex.P18 cannot be considered. Once the deceased was found not to be in a fit state of mind due to sedation, the statement recorded by PW16 cannot be relied upon, to say that what was l0 stated in the statement is contrar5z to the statement made before the Magistrate.

17. Once the statement of the deceasedlinder Ex.P1B is not considered, the Dying Declaration recorded by the Magistrate, when the victim was in a fit state of mind, has to be looked into. At this juncture, learned counsel submitted that the evidence of PW 1 is again contra4r to the statement given before the Magistrate. The accused are strangers to PWl. It was informed by the deceased to her mother that 3 persons were involved. The evidence of PW1 only stating about accused Nos. 1 and 3's involvement, cannot be made basis to disbelieve deceased's statement in the background of the accused being strangers and PWl not knowing their narnes either. The said contradiction cannot be made basis to disbelieve the statement made to the Magistrate.

18. Learned Magistrate arrived at the hospital at 10.45 A.M. on 18.O3.2O1O, The duty Doctor endorsed at 11.3O A.M. that the patient was conscious, coherent, and in a fit state of mind to give statement, and accordingly, the doctor has signed. As extracted above, the Magistrate went on to ask 10 preliminary questions ald having been satisfied with the answers given, the Magistrate endorsed that the deceased was in a Iit state of mind .'-----------,. l1 to give statemr:nt. Thereafter, he continued to rer:ord her statement.

79. In the said statement, the deceased }ras clearly stated that she was confined for nearly 6 days, i.e., 2 days initially in Vijayawada, and thereafter, at BHEL. They used to forcibly participate in sexual intercourse. On the date of the incident, the appellant/accused No.2 poured kerosene on her, while accused No.3 set her on fire with a match-stick and fled.

20. Even during the 313 Cr.P.C. examination, accused.No.2 has only denied the allegations, and when the Sessions Judge asked whether he wished to say an5rthing more in this case, he stated that a false case had been filed.

21. Identity of the accused was not disputed by them. It is not the case of the accused that the narnes mentioned in the Dying Declarations were incorrect or that the named persons were not the accused. Their identitSr is established by the prosecution, during the course of trial. The neighbotx /pW4, who is the owner of the house, identified accused No.l as the person who had taken the girl from the house. The incident happened in the house of PW4. However, PW4 did not identifr the other accused Nos.2 to 5. AU the accused were subsequently identilied during the course of investigation. As already discussed, the accused I I t2 have not disputed their identity or their presence when the incident took place.

22. The version given by the deceased -lo the Magistrate can be beiieved. The statement made to PWI and others, i.e , PWs'2 and 3 by the deceased and statement made to the Police cannot be said to be contradictory to what was stated before the Magistrate. As already discussed, on the date of incident, i'e', 17 .O3.2OLO, the deceased was under sedation and was riot in a position to give statement' The statement before the Police- Ex.P18 was recorded on the date when she was sedated and was not in a fit state of mind. All precautions were taken by the Magistrate, and thereafter, statement was recorded by the Magistrate. In the said circumstances, the version given by the deceased in her statement to the Magistrate can form basis to convict the accused under Section 3O2 of IPC, which was rightly done by the Sessions Judge.

23. The argument of the learned counsel that once it is found that no rape was committed, the question of convicting appellant for murder does not arise. The said argument cannot i be accepted. Nowhere in her statement, has the deceased stated that preceding the burning incident, she was forcibly raped by any of the accused. The narration given by her is that in l3 Vijayawada and thereafter, in BHEL, for six days, the accused had forcibly committed rape on her. In the said circumstances, the Doctor not finding or collecting any semen or spermatozoa from the deceased will not have any impact on the case of the prosecution.

24. Criminal a.ppeal is dismissed. //TRUE COPY// SD/. E.SATYAVATHI OINT REGISTRAR ECTION OFFICER To, 1'ThellspecialsessionsJudgefortrialofCasesrelatingtoAtrocities.against Wor"n, Cyberabad, Ranga Reddy District at L'B Nagar' Hyderabad Z. ine Supetintendent'Centril Pri.on, Cherlapalli Police Station' Hyderabad 5. r*" bcs to tne public prosecutor, High court for the State of relangana at Hyderabad (OUT) +. One CC to Sri P Prabhakar Reddy, Advocate [OPUC] 5. Two CD CoPies ADK/PSL w HIGH COURT DATED:1 110212025 JUDGMENT CRLA.No.846 of 2017 HE S A i e 1 C o 2 5 APn 20tr o * t) s pAi () E_O DISMISSING THE CRLA g .rSA &l" I