IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1157 of 2004 Date:27.08.2011 Between: Allampalli Bhumanna .. Petitioner And State of A.P., rep., by its Public Prosecutor ..Respondent This Court made the following: HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1157 of 2004 (on being mentioned) JUDGMENT: This revision is filed under Section 397(1) and 401 Cr.P.C against judgment made in Crl.A.No.7 of 2003 dated 23.06.2004 on the file of the Court of Additional Sessions Judge (Fast Track Court), Adilabad confirming conviction and sentence imposed in S.C.No.212 of 1997 dated 21.01.2003 on the file of the Court of Assistant Sessions Judge, Nirmal, Adilabad District. The revision petitioner(for short ‘A.1’) is A.1 in the case. 2. The prosecution case is as follows: A.1 is a resident of Jaam village. The de-facto complainant- Gangavva and her husband E.Chinnanna are also the residents of the same village. Bakka Narsavva-deceased was their daughter and on 08.10.1995 she was in their house. On that day at about 10.00 p.m., the deceased Bakka Narsavva went to answer the calls of nature in the outskirts of Jaam village. Then A.1 went and held her hand and invited her for sexual intercourse and thereby the deceased beat him with a tumbler and escaped from his clutches and on seeing P.W.3 and others, A.1 fled away. Thereafter A.2 and A.3 went to the house of the deceased and abused her in filthy language questioning her character. Therefore the deceased got vexed with her life and tried to commit suicide on 09.10.1995 at 05.00 a.m., by pouring kerosene on herself and set herself ablaze. Thereafter the deceased was taken to the Government Hospital, Nirmal, where P.W.9 recorded her dying declaration. On the basis of a report given by the father of the deceased i.e. P.W.1 the S.H.O., Sarangapur registered the case in Cr.No.101 of 1995 initially under Section 354 I.P.C. Further after the death of the deceased, Section 306 I.P.C was also added therein. 3. Accordingly A.1 to A.3 were tried for the said offences. For the prosecution, P.Ws.1 to 11 were examined and Exs.P.1 to P.8 and M.Os.1 and 2 were marked. For the defence, none was examined but Ex.D.1 was marked. Basing upon the material available, the trial Court found A.1 guilty of the charges and convicted and sentenced him to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- and in default of payment of the fine amount, to suffer simple imprisonment for a period of one month for the offence punishable under Section 354 I.P.C and was further sentenced to suffer rigorous imprisonment for a period of five years and to pay fine of Rs.500/- and in default of payment of the fine amount, to suffer simple imprisonment for a period of one month for the offence punishable under Section 306 I.P.C. while acquitting A.2 and A.3 of those charges whereas being aggrieved by the conviction and sentences, A.1 preferred Crl.A.No.7 of 2003 and the appellate Court after considering the matter dismissed the appeal confirming the conviction and sentences imposed by the trial Court, following which, this revision has been preferred. 4. It is the contention of learned counsel for A.1 that the prosecution version clearly discloses that the alleged incident of outraging the modesty of the deceased took place nearby the residential locality of the deceased and it is quite un-natural that A.1 would have committed the offence punishable under Section 354 I.P.C as any cries made by the deceased would have attracted the inmates of the locality and the evidence of P.Ws.1 and 2 who are the parents of the deceased is hearsay and the evidence of P.W.3 examined as eye witness to the incident was discarded by the trial Court in that context and hence cannot be reopened now and leaving that aspect the appellate Court did not accept the dying declaration and acquitted A.2 and A.3 of the charge under Section 306 I.P.C and there is no basis to say that A.1 abated the deceased to commit suicide whereas as per the prosecution version A.2 and A.3 abated the deceased mainly to commit suicide and hence there is no basis to convict and sentence A.1 for the alleged offences and the deceased got illegal intimacy which was noticed by A.1 and to prevent from revealing it, a false case was foisted against him and so on. 5. In order to decide the matter, the following points are to be established. 1. Whether the prosecution placed sufficient evidence with regard to the charges framed against A.1 under Section 354 and 306 I.P.C? 2. Whether Courts below appreciated the evidence properly and arrived at correct conclusions; and 3. Whether the conviction and sentences imposed by the Courts are sustainable or not? 6. POINTS: P.W.1 and PW.2- the parents of the deceased deposed that the deceased went to the outskirts of the village for answering the calls of nature and at about 10.00 p.m., she returned to the house and narrated about the incident of outraging her modesty and thereafter A.2 and A.3 came to their house and abused the deceased and themselves and later she resorted to commit suicide. On the other hand, P.w.3 said to be the eyewitness to the incident deposed that he along with one Pothanna and Praveen on hearing the cries of the deceased, rushed towards her and found that A.1 was running towards Sarangapur side and on enquiry, the deceased informed about the incident. P.W.5, the husband of the deceased deposed that he came to know about the incident subsequently. 7. It is pertinent to note here that there are two separate incidents, one covered by Section 354 I.P.C and the other covered by Section 306 I.P.C said to have been committed by A.1. 8. There is only the direct evidence of P.W.3 about the alleged incident. Therefore it is to be seen as to how far the evidence of P.W.3 is useful to establish the charge under Section 354 I.P.C. It is clearly observed by the trial Court that Ex.P.4 dying declaration of the deceased provides that while she was returning she found P.W.3 and another and they asked her as to what happened but she did not reveal about the incident whereas it is the evidence of P.W.3 that when he and the others contacted the deceased she informed that the accused caught hold of her hand and outraged her modesty. Therefore it appears that false evidence was given by P.W.3 to that effect and hence the same cannot be considered here. Leaving that apart his evidence that he found A.1 running is not sufficient to prove that charge. 9. Then it is to be considered as to how far the statement said to have been given by the deceased to her parents-P.Ws.1 & 2 about the alleged incident punishable under Section 354 I.P.C can be taken into consideration here. By virtue of Section 32 of the Evidence Act, only the statements of the deceased with regards to the cause of her death are admissible in evidence. Therefore what she is said to have stated to her parents about the question of outraging her modesty by the accused is only to be taken as hearsay and therefore cannot be considered for the purpose of establishing the offence punishable under Section 354 I.P.C. The prosecution has to establish the charge under Section 354 I.P.C basing upon some direct evidence or some circumstantial evidence which can be considered which is absent here whereas what the deceased is said to have stated to her parents which is only hearsay cannot be taken into consideration. Accordingly the accused is to be acquitted of the same charge. 10. Insofar as the charge against A.1 under Section 306 I.P.C is concerned, significantly the circumstances of the case provide that the deceased committed suicide because A.2 and A.3 went to her house and abused her in filthy and un-parliamentary language and not solely because of the alleged offence committed by A.1 of outraging her modesty. Further the appellate Court discarded the dying declaration on the ground that the M.R.O who recorded it did not specify whether the deceased was in conscious state to give the same, which is acceptable. Hence that cannot be considered now. Therefore, I am of the opinion that the charge under Section 306 I.P.C is also not established against A.1 and accordingly A.1 is to be acquitted of that charge also. 11. The Courts below failed to appreciate this matter properly and hence the findings given by the Courts below are liable to be set aside. 12. In the result, Crl.R.C is allowed setting aside the conviction and sentences imposed by the Courts below against the petitioner/A.1 and acquitting him of the charges under Sections 354 and 306 I.P.C. __________________________________ JUSTICE G. KRISHNA MOHAN REDDY 27.08.2011 VJL