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Andhra High Court · body

2001 DIGILAW 940 (AP)

Keerthi Suryanarayana v. State Of A. P.

2001-08-24

V.ESWARAIAH

body2001
V. ESWARAIAH, J. ( 1 ) THE sole accused filed this appeal against the judgment dated 19-4-19% in SCNo. 28 of 1996 on the file of the Assistant Sessions judge, Pithapuram, East Godvari District in convicting the accused under Sections 417 and 376 IPC and sentencing him to undergo r. I. for 7 years and to pay a fine of Rs. 500/-, in default, to suffer SI for 3 months for the offence under Section 376 IPC, and further to undergo RI for 6 months for the offence under Section 417 IPC. ( 2 ) THE charges against the accused are that on 18-9-1994 at about 12-45 midnight at pithapuram near Sowgandhi Theatre, the accused committed rape on one Kesavarapu suryavathi aged about 28 years of Gokiwada; and that the accused posed himself as Police constable in mufti and brought her near pithapuram Police Station and took her to a thatched hut and committed rape on her in that hut. ( 3 ) BRIEF facts of the case are that P. W. 1 one mr. Palepu Suri Babu and P. W. 2 the victim lady Kesavarapu Suryavathi are neighbours and residents of Gokivada; and P. W. 1 treated p. W. 2 as her brother by courtesy; and p. W. 3 is related to P. W. 2. P. W. 2 went to her relatives house at Pithapuram and went to vijayalaxmi Hospital, Kakinada on that day of medical check up; and thereafter, she went to see movie in Venkateswra Theatre, where she met P. W. 1; and both of them witnessed the movie; and P. Ws. 1 and 2 again went to sowganthi theatre to see another movie; P. W. 1 puthis cycle in the cycle stand. By that time, the movie was already started. They came to know another picture was projected at pakshulamarri. They saw the picture State rowdy there. After the picture was over, they returned back to Sowganthi Theatre and started going to relatives house. Then, the accused went there and threatened saying that he is a police constable and took them to the police station. The accused alone went into the police station and returned stating that the S. I. was not there. He threatened p. W. 1 and took P. W. 2 into a thatched house and had sexual intercourse forcibly with p. W. 2 without her consent and offered her rs. The accused alone went into the police station and returned stating that the S. I. was not there. He threatened p. W. 1 and took P. W. 2 into a thatched house and had sexual intercourse forcibly with p. W. 2 without her consent and offered her rs. 300/- saying that he is police constable and revealed his name as Kirthi suryanarayana @ Suribabu, P. W. 2 went out and told the fact to P. W. 1. ( 4 ) ON early hours of the next day, i. e. , on 19-9-1994 at 5. 00 a. m. , P. W. 1 lodged a complaint (Ex. P-1) to P. W. 7, S. I. of Police, pithapuram; and P. W. 7 registered a case as crime No. 131/94 under Section 376 IPC and sent Ex. P-9 FIR to all the concerned and sent P. W. 2 for medical examination to government Hospital, Pithapuram, where she was examined by P. W. 5; Ex. P-4 is the analyst report; and Ex. P-5 is the final opinion of P. W. 5. P. W. 6 examined the accused and found him potent and accordingly issued ex. P-7 certificate of potency of the accused. P. W. 9 is the Inspector of Police, who arrested the accused on 19-9-1994 itself and sent him for medical examination. ( 5 ) ON behalf of the defence, none was examined and no documents were marked. ( 6 ) AFTER the evidence was over, the accused was examined under Section 313 Cr. P. C. to explain the incriminating evidence against him and the accused disputed the same. ( 7 ) P. W. 1 is Tailor and a neighbour of p. W. 2 residing in Gokiwada. He stated that he knew the accused and saw him on 18-9-1994. On 18-9-1994, he went to pithapuram to see a movie "pandava vanavasam" in Venkateswara Theatre. He saw P. W. 2 outside the theatre. He calls her as sister by courtesy. She also came to see the movie. Again, both of them went to sowganthi Theatre to see another picture. He. put his cycle in the cycle stand. By that time, the movie was started. He came to know that a picture was projected at pakshulamarri. The name of that place and witnessed the movie. Again, they went to sowganthi theatre to collect the cycle and to go to the relatives house of P. W. 2. He. put his cycle in the cycle stand. By that time, the movie was started. He came to know that a picture was projected at pakshulamarri. The name of that place and witnessed the movie. Again, they went to sowganthi theatre to collect the cycle and to go to the relatives house of P. W. 2. Then, the accused came to them saying that he is a constable and asked them as to why they were roaming in the midnight and asked them to come to the police station. Then, all the three went nearer to the police station. The accused kept him there and took P. W. 2 into the hut. After half an hour, P. W. 2 came and told him that the accused raped her. Then, P. Ws. 1 and 2 went to the Government hospital and again went to the Police Station to gave Ex. P-1 report. ( 8 ) P. W. 2 Suryavathi also stated that she went to her relatives house at Pithapuram and went to Vijaylaximi Hospital in Kakinada on that day and then went to see a movie in venkateswara theatre and the name of the picture was "pandava Vanavasam"; there, she met P. W. 1 and both of them witnessed the movie and went to the Sowganthi theatre to see another picture. P. W. 1 put his cycle in the cycle stand; and the movie was already started there. Then, they went to another picture "state Rowdy" at Pakshulamarri; and when returning back to the Sowganthi threatre to go to her relatives house, the accused came to them and threatened them saying that he is a police constable and brought them to the police station. The accused went inside the police station and returned stating that the S. I. was not there; and he threatened her brother (P. W. 1) and took her into the thatched house. He placed her on the folding cot, removed her saree; when she tried to raise alarm, he shut he mouth, and he had sexual intercourse forcibly with her and offered Rs. 300/- saying that he is a police constable and revealed his name as Kirthi Suryanarana @ Suribabu. At that time, he was having beard red in colour. After coming out of the house, she told the facts to P. W. 1. 300/- saying that he is a police constable and revealed his name as Kirthi Suryanarana @ Suribabu. At that time, he was having beard red in colour. After coming out of the house, she told the facts to P. W. 1. Then, both of them went to the Government Hospital and again went to the police station and P. W. 1 gave a report. The police sent her to the hospital and she was examined by a female doctor and a medical Officer seized her saree and petty coat (M. Os. 1 and 2 ). In the cross-examination, she stated that the accused did not enter into the police station; he chitchatted outside the police station and returned back and he took her into the opposite thatched house, where he removed her saree totally and he removed all his clothes and when she tried to raise alarm, the accused shut her mouth. After completing the intercourse, he offered her rs. 300/ -. ( 9 ) P. W. 4, the relative of P. W. 2, stated that p. W. 2 came to their house at Pithapuram; and after getting medical checkup at kakinada, she went to see a movie in venkateswara theatre, but she did not turn up to her house and that night; and she came to know on the next day about the rape said to have been committed by the accused on p. W. 2. She stated that P. W. 2 is not in the habit of going to the picture alone. ( 10 ) P. W. 5, the doctor who examined p. W. 2, stated that there is nothing to suggest that P. W. 2 is not potent; and it appears that she would have participated in sexual intercourse; and Ex. P-5 is her final opinion. ( 11 ) THUS, the documents available on record show that there are no external or internal injuries on P. W. 2 and a perusal of the evidence shows that there was no restraint or attempt to resist from the act of the accused either by P. W. 2 or by P. W. 1. P. Ws. ( 11 ) THUS, the documents available on record show that there are no external or internal injuries on P. W. 2 and a perusal of the evidence shows that there was no restraint or attempt to resist from the act of the accused either by P. W. 2 or by P. W. 1. P. Ws. 1 and 2 hail from the same village and went to see a picture independently and met at the theatre and after seeing the 1st show, they went to the 2nd show and while coming to the house of relative of P. W. 2 on a bicycle, the accused met there and stated that he is a police constable and threatened P. Ws. 1 and 2 took her into a thatched shed infront of the police station and raped her and gave her rs. 300/ -. Neither P. W. 1 nor P. W. 2 stated that they have made any hue and cry or any resistance. Therefore, against the wish of male and female (P. Ws. l and 2), committing rape by the accused on P. W. 2 without her consent does not arise. Really had the accused committed any rape right infront of the police station, they would have straight away gone to the police station and given a complaint. As per the evidence of PWs. 1 and 2, instead of going to the police station, they went straightaway to the hospital; and again from the hospital, they went to the police station and gave the complaint. This evidence of p. Ws. l and 2 looks very unnatural and disbelievable. I, therefore, do not see any grounds to sustain the judgment of the Trial court. Accordingly, the judgment under appeal is set aside. The accused is acquitted of the charges framed against him under sections 376 and 417 IPC. The fine amount, if any paid, shall be refunded to him. He shall be set at liberty forthwith, if not required in any other case. The Criminal Appeal is allowed.