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2003 DIGILAW 1073 (AP)

Avvaru Ramachandra Rao v. State Of A. P.

2003-08-26

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 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. 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. ( 4 ) THE trial Judge framed two charges, namely, charges under Section 306 read with section 511 I. P. C. , against the accused. For the purpose of disposal of this revision, I feel it just and necessary to extract hereunder the charge under Section 306 I. P. C. , framed by the learned trial Judge. ( 4 ) THE trial Judge framed two charges, namely, charges under Section 306 read with section 511 I. P. C. , against the accused. For the purpose of disposal of this revision, I feel it just and necessary to extract hereunder the charge under Section 306 I. P. C. , framed by the learned trial Judge. It reads as follows:"firstly that you on the day of 28th november, 1994 at 9 p. m. , in Epurupalem while the deceased Karyampudi Sujatha was taking bath in their bathroom, entered into the bathroom and attempted to commit rape on the deceased Sujatha who was naked at that time, threatened her to spoil her life and due to you acts, the deceased Sujatha on 29-11-1994 at about 7. 30 p. m. , poured kerosene on her body and set fire and that you thereby committed an offence under Section 306 ipc, and within my cognizance. "in the trial court prosecution examined p. Ws. 1 to 10 and marked Exs. P-1 to P-7. After closure of prosecution evidence, section 313 Cr. P. C, statement of the accused was recorded by the trial Judge. Accused did not examine defence witnesses on his behalf. Ex. D-1 was marked on his behalf. On a consideration of oral and documentary evidence and after accepting the version of the deceased in her dying declarations and other oral evidence adduced by the prosecution, the learned trial Judge held that the accused is guilty for the offence under section 306 IPC. He further held that so far as the offence under Section 376 read with section 511 IPC, is concerned, there is no evidence on record that the accused tried to have sexual intercourse with the deceased - sujatha during her life time against her will, without her consent or by putting her in fear of death or injury. He accordingly held that the prosecution has not proved its case against accused beyond reasonable doubt for the offence under Section 376 read with section 511 IPC. He imposed sentence as stated supra for the offence under Sec. 306 ipc. ( 5 ) AGGRIEVED by the above conviction and sentence, accused preferred an appeal before the Sessions Judge. The learned Sessions judge also accepted and relied upon two dying declarations and oral evidence adduced by the prosecution. He imposed sentence as stated supra for the offence under Sec. 306 ipc. ( 5 ) AGGRIEVED by the above conviction and sentence, accused preferred an appeal before the Sessions Judge. The learned Sessions judge also accepted and relied upon two dying declarations and oral evidence adduced by the prosecution. However, he held that there was no abetment by the accused to the deceased to commit suicide and Section 306 IPC, does not come into play. He also held that merely because the deceased committed suicide on account of previous night incident, it cannot be said that the accused abetted the deceased to commit suicide. He further held that it is proved beyond doubt that on 28-11-1994 at about 9. 00 p. m. , while the deceased was taking bath naked in her bathroom, accused trespassed into the privacy of the deceased and caught hold of her and tried to molest her. He further held that merely because there was no material to show that there was an attempt to commit rape and he was found not guilty for that purpose, it cannot be said that such an act of the accused does not attract any offence punishable under IPC. He was of the opinion that the act of the accused squarely attracted Section 354 IPC, accused used criminal force with an intention to outrage or knowing it to be likely that he will thereby outrage her modesty. He held that Section 306 IPC, does not attract to the facts of the case and it attracts Section 354 ipc. He convicted the accused for the offence under Section 354 IPC. As already pointed out the sentence imposed by the trial court for the offence under Section 306 IPC, is imposed by the learned Sessions Judge as sentence for the offence under Section 354 ipc. Aggrieved by the said conviction and sentence, the accused preferred the present revision. ( 6 ) THE charge framed by the learned trial judge under Section 306 IPC, was extracted supra. Any person who abets the commission of a suicide by any other person and if the other person commits suicide, the person who abetted the commission of suicide becomes liable for punishment under section 306 IPC. The main ingredients of the offence under Section 306 IPC, are ommission of suicide and abetment by the accused of the commission of suicide by another person. The main ingredients of the offence under Section 306 IPC, are ommission of suicide and abetment by the accused of the commission of suicide by another person. Therefore, in a charge relating to Section 306 IPC, the words used must clearly and unambiguously indicate ommission of suicide by a named person, that the accused abetted the said commission of suicide and it must also indicate in clear words the manner in which the accused abetted the commission of suicide by the deceased. Unfortunately in the present case in the charge framed under Section 306 IPC, the learned trial Judge did not state anywhere in his charge that the accused abetted the commission of suicide by the deceased. He did not even state that Sujatha died. Without setting forth the necessary ingredients in the charge framed by him, the Assistant Sessions judge convicted the accused for the offence punishable under Section 306 IPC. The manner in which the learned trial Judge framed the charge indicates that he did not at all look into the provision in Section 306 IPC, at the time of framing the charge. If he had a glance at the provision in Section 306 IPC, he would have mentioned in the charge that sujatha committed suicide and the accused abetted the commission of suicide by the deceased. Even in the course of his judgment, after accepting the two dying declarations as true, the trial Judge merely held that "thus, i hold that the accused is guilty for the offence under Section 306 IPC". He did not discuss and analyse the crucial evidence to give such a finding for the charge under Section 306 ipc. ( 7 ) THE trial Judge held that the prosecution failed to prove guilt of the accused beyond reasonable doubt for the second charge under section 376 read with Section 511 IPC. Even at the time of giving such a finding the learned trial Judge did not discuss the evidence on record. Further, the said finding of the trial judge is quite contrary to his own observations in the course of his judgment. This circumstance was noticed by the learned sessions Judge at the time of disposal of the appeal. Even at the time of giving such a finding the learned trial Judge did not discuss the evidence on record. Further, the said finding of the trial judge is quite contrary to his own observations in the course of his judgment. This circumstance was noticed by the learned sessions Judge at the time of disposal of the appeal. The learned trial Judge at the end of para 20 of his judgment held as follows:"it is proved from the evidence available on record that the accused gained entrance into the bathroom of Sujatha for the purpose of having sexual intercourse as she resisted and raised cries which attracted the attention of P. W. 3 and the accused ran away from the scene". After making such an observation, curiously and surprisingly the learned trial Judge held that the prosecution has not proved its case against the accused beyond reasonable doubt for the offence under Section 376 read with section 511 IPC. This conduct of the learned assistant Sessions Judge makes it clear that he did not apply his mind to the facts of the case either at the time of framing the charges or at the time of pronouncing the final judgment in the case. ( 8 ) NOW I will take up the judgment of the learned Sessions Judge altering the conviction from Section 306 IPC, to that of Sec. 354 IPC. I make it clear that this court is in full agreement with the finding of the learned sessions Judge that the evidence adduced by the prosecution did not establish that the accused abetted the commission of suicide by the deceased and thereby committed the offence punishable under Section 306 IPC. However, this court cannot uphold the conviction given by the Sessions Judge for the offence under Section 354 IPC. The learned Sessions Judge ignored fundamental principles of law while altering the conviction from Section 306 IPC. , to that of Section 354 ipc I will give the reasons hereunder. ( 9 ) SECTION 222 Cr. P. C, permits under certain circumstances conviction under a charge different from the original charge, provided accused was not in any way prejudiced. The learned Sessions Judge ignored fundamental principles of law while altering the conviction from Section 306 IPC. , to that of Section 354 ipc I will give the reasons hereunder. ( 9 ) SECTION 222 Cr. P. C, permits under certain circumstances conviction under a charge different from the original charge, provided accused was not in any way prejudiced. Before invoking the said provision, this court must make sure that the ingredients of the offence under which the court proposes to convict an accused of an offence without any charge form part of some material ingredients of any other charge already framed. The principle is that the graver charge gives notice to the accused of all the circumstances going to constitute the minor one of which he may be convicted. If the ingredients that constitute the offence under which the court proposes to convict an accused do not constitute some of the main ingredients of the offence for which the accused already stood charged, the provision in Section 222 Cr. P. C. , cannot be invoked. ( 10 ) BEFORE the learned Sessions Judge the accused stood convicted of a charge framed under Section 306 IPC. The Sessions Judge found the accused not guilty of the said charge under Section 306 IPC. However, he found the accused guilty of the offence punishable under Section 354 IPC. There was no charge under Section 354 IPC. , against the accused. The accused did not face the trial to meet a charge under Section 354 IPC. Therefore, Sessions Court has to consider whether the principle in Section 222 Cr. P. C. , can be applied to convict the accused of the offence punishable under Section 354 IPC. As already noticed, the main ingredient of the offence under Section306 IPC. is abetment by the accused of committing suicide by the deceased person. The said ingredient is not at all an ingredient of an offence under section 354 IPC. The main ingredients of an offence under Section 354 IPC, are assault or using criminal force to any woman and such assault or using criminal force is with intentionv to outrage or knowing it to be likely that accused will thereby outrage the modesty of the said woman. The main ingredients of an offence under Section 354 IPC, are assault or using criminal force to any woman and such assault or using criminal force is with intentionv to outrage or knowing it to be likely that accused will thereby outrage the modesty of the said woman. These ingredients, namely, assault or using criminal force against any woman and outraging the modesty of such a woman are not any of the ingredients of the offence covered by section 306 IPC. The offences under Secs. 306 and 354 IPC, are quite distinct and different offences. They are not of cognate offences which have main similar ingredients. The offence under Section 354 IPC, can never be treated as a minor offence of the offence punishable under Section 306 IPC. I therefore hold that as the principle in Section 222 cr. P. C. , is not applicable to the facts of the present case, the learned Sessions Judge committed a serious error in convicting the accused under Section 354 IPC without a specific charge under Section 354 IPC, and by merely observing that he is recording conviction under Section 354 IPC, in the place of conviction under Section 306 IPC. ( 11 ) IF there was a conviction of the accused for an offence punishable under Section 376 read with Section 511 IPC, and under those circumstances if the learned Sessions Judge in the appeal had come to the conclusion that the act of the accused gaining entry into the bathroom of the deceased for the purpose of having sexual intercourse amounts to outraging the modesty of a woman and punishable under Section 354 IPC, can be sustained to some extent. In the present case, the learned trial Judge acquitted the accused of the charge under Section 376 red with section 511 IPC. The State did not prefer any appeal against the acquittal of the accused of the charge under Section 376 read with section 511 IPC. Further, the learned Sessions judge is not an Appellate Judge over the orders of acquittal passed by the Subordinate magistrates or Assistant Sessions Judges. He has no power to set aside an order of acquittal passed by the Subordinate Magistrates or assistant Sessions Judges and then convict the accused of the said charge. Further, the learned Sessions judge is not an Appellate Judge over the orders of acquittal passed by the Subordinate magistrates or Assistant Sessions Judges. He has no power to set aside an order of acquittal passed by the Subordinate Magistrates or assistant Sessions Judges and then convict the accused of the said charge. The judgment of the learned Sessions Judge cannot even remotely be construed as a conviction under section 354 IPC, converting a charge under section 376 read with Section 511 IPC. Further, even according to the learned sessions Judge, he convicted the accused for the offence under Section 354 IPC, in the place of conviction recorded by Assistant sessions Judge for the offence under section 306 IPC. ( 12 ) THE learned Public Prosecutor relied upon a judgment of the Supreme Court reported in K. Prema S. Rao v. Yadla Srinivasa rao. The decision deals with omission or defect in framing of charges. This decision has no application to the facts of the present case There is no charge under Section 354 ipc. Therefore, there is no question of omission or defect in framing any charge relating to the offence under Section 354 IPC. It is the contention of the learned Public prosecutor relying upon this decision that the accused may be convicted for offence actually committed and proved on the basis of evidence on record, so long as accused has not been mislead by any error or omission in framing the charge and no failure of justice has been occasioned. In that case, charges under Sections 498-A and 304-B IPC, were framed against the accused. He was convicted for the offence under Section 498-A IPC. Later he was convicted of the offence punishable under Section 306 IPC. , without any specific charge under Section 306 IPC. In that case the charge under Section 498-A ipc, framed against the accused referred to the ingredients for the offence punishable under Section 306 IPC. In my considered opinion, this decision has no application to the facts of the present case. ( 13 ) AT the outset I observed that there is a failure of justice on account of non- application of mind by the learned Assistant sessions Judge and also inaction on the part of the prosecuting agency. In my considered opinion, this decision has no application to the facts of the present case. ( 13 ) AT the outset I observed that there is a failure of justice on account of non- application of mind by the learned Assistant sessions Judge and also inaction on the part of the prosecuting agency. The discussion made by me earlier clearly indicate that the learned Assistant Sessions Judge did not apply his mind to the facts of the present case and his findings are contrary to his own observations. I would now deal with the inaction on thepart of theprosecutingagency. After the learned Assistant Sessions Judge acquitted the accused of the charge under section 376 read with Section 511 IPC, after fully accepting the version put forward by the deceased in her two dying declarations, the prosecuting agency should have moved the competent authority and filed an appeal over the order of acquittal passed by the learned Assistant Sessions Judge for the offence under Section 376 read with section 511 IPC. It is common knowledge that prosecuting agencies (for statistical purposes) will be satisfied for conviction under any offence. They will after recording that the accused was convicted by the trial court. They do not generally bother about the acquittals made by the courts of major offences with which they are charged if a conviction is given for minor offences. In the present case, though there was sufficient evidence before the assistant Sessions Judge to convict the accused for the offence under Sec. 376 read with Section 511 IPC, or under Section 354 ipc, the learned Assistant Sessions Judge committed a serious blunder in acquitting the accused and in spite of that blunder, the prosecuting agency did not move the High court for getting order of acquittal under the charge under Section 376 read with section 511 IPC, set aside and for obtaining a conviction of the accused for the said offence. For and the reasons stated supra, I hold that the learned Sessions Judge committed an error in convicting the accused of the offence punishable under section 354 IPC. His judgment is liable to be set aside. ( 14 ) IN the result, the revision is allowed. Accused is found not guilty and accordingly acquitted of the offence punishable under section 354 IPC. His conviction and sentence imposed by the Sessions Judge are set aside. His judgment is liable to be set aside. ( 14 ) IN the result, the revision is allowed. Accused is found not guilty and accordingly acquitted of the offence punishable under section 354 IPC. His conviction and sentence imposed by the Sessions Judge are set aside. His bail bonds stand cancelled forthwith. The fine amount paid by him shall be refunded to him forthwith.