AVVARU RAMACHANDRA RAO Vs. STATE

JUDGEMENT

(1.) This revision is filed against judgment dated 9-10-2001 in Criminal Appeal No. 82 of 1996 on the file of Principal Sessions Judge, Ongole, modifying the conviction and sentence imposed by Assistant Sessions Judge, Chirala, in S.C.No. 400 of 1995. The Assistant Sessions Judge convicted the accused for the offence under Section 306 IPC and sentenced him to suffer rigorous imprisonment for a period of 5 years and also to pay a fine of Rs. 5,000-00. He acquitted the accused of the charge under Section 376 read with Section 511 IPC. Accused preferred an appeal before Principal Sessions Judge against his conviction and sentence for the offence under Section 306 IPC. The Sessions Judge in the appeal altered the conviction from Section 306 IPC, and convicted the accused for the offence punishable under Section 354 IPC. He imposed the same sentence as that imposed by Assistant Sessions Judge for the offence under Sec. 306 IPC. Thereupon this revision is filed by the accused.

(2.) It is an unfortunate case where there is miscarriage of justice due to non-application of mind by the Assistant Sessions Judge and inaction on the part of the prosecuting agency and where the injustice cannot now be undone by this court.

(3.) Necessary facts for disposal of this revision are as follows: K. Sujatha (hereinafter referred to as "deceased") is an uneducated and unmarried daughter of P.W. 1 K. Sundara Rao. She hailed from a weavers' community family. She was aged about 19 years on the date of her death. Accused hails from the same village. His house is adjacent to the house of parents of the deceased. The deceased was living with her parents on the date of her death. According to the prosecution on 28-11-1994 at about 9.00 p.m., she was taking bath in a bathroom situated in the backyard of the house. At that time the accused suddenly entered the bathroom. The deceased was in a totally naked condition at that time. Accused caught hold of her, gagged her mouth and attempted to commit rape on her. The deceased resisted the attempts of the accused and then managed to raise cries. On hearing her cries, K. Srinivasulu (P.W. 2), who was residing in a nearby house, heard her cries and rushed to the scene of offence. He saw the accused running away. He caught hold of the accused and kicked him. However accused managed to escape and ran away. The deceased informed P.W. 2 as to what happened. Thereafter deceased informed her relations, parents and others in the house about the incident. She was unable to bear the shame inflicted on her by the accused. In the early hours of 29-11-1994 she poured kerosene on her body and set fire to her. She sustained extensive 95% burn injuries. She was rushed to a hospital. On a medical intimation received from the hospital, the Head Constable P.W. 9 recorded her dying declaration Ex.P-6. Similarly the Judicial Magistrate P.W. 6 on receiving similar intimation from the hospital, recorded Ex.P-4 dying declaration of the deceased. The dying declarations were recorded in the presence of Duty Medical Officer who certified that the deceased was in a fit condition and conscious to give the dying declarations in question. In those two declarations she gave the above consistent version. She was shifted from Government Hospital, Chirala, to the Medical College Hospital at Guntur. While undergoing treatment in Guntur Medical College Hospital, she died on or about 2-12-1994. Later, after completion of investigation, the police filed a charge-sheet before the Committal Magistrate. The Committal Magistrate by his order dated 24-7-1995 committed the accused to take trial in the Sessions Division. The Sessions Judge made over the Sessions Case to Assistant Sessions Judge, Chirala, for trial.