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Andhra High Court · body

2005 DIGILAW 966 (AP)

Biddu Suribabu v. State Of A. P.

2005-10-19

ELIPE DHARMA RAO

body2005
( 1 ) THIS criminal revision case is preferred by the accused against the judgment dated 13-2-2001 passed in crl. A. No. 100 of 2000 by the District and sessions Judge, Visakhapatnam, modifying the judgment dated 7-7-2000 passed in S. C. No. 160 of 1999, by the Assistant Sessions judge, Narsipatnam. ( 2 ) THE petitioner is the accused and the respondent is the complainant in s. C. No. 160 of 1999. For the purpose of convenience, the parties are hereinafter referred to as they were arrayed in the trial court. ( 3 ) THE case of the prosecution in brief is that on 11-7-1999 at 2 p. m. , while PW-1 was taking lunch for her husband, she encountered the accused and PW-3 at gorrelametta near Sidhipatnam, and the accused questioned the prosecutrix where she was going, for which she replied that she was taking lunch for her husband. After going to a little distance, the accused having told PW3 that he was going for attending calls of nature, went back, caught hold of the tuft of hair of PW-1 pushed her on ground, dragged her into near by bushes, removed her clothes and attempted to commit rape. When she raised hue and cry, PW-3 came to the spot and found the attempt of the accused to commit rape on PW-1. After seeing PW-3 the accused left the place after threatened PW-1 with dire consequences if she revealed the incident anywhere. Due to fear, PW-1 went to her parents house at Surampalem of East godavari District, and later on 8-8-1999 lodged Ex. P1 report to the Station House officer, Nathavaram Police Station and the same was registered as a case in Cr. No. 38 of 1999 under Sections 354 and 506 Part-II of IPC and after completion of investigation charge-sheet was laid. ( 4 ) AFTER appearance of the accused a charge under Section 376 read with 511 of IPC or alternatively under Section 354 ipc and also under Section 506 Part-II of ipc were framed against him, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. ( 5 ) TO establish its case, the prosecution examined PWs. 1 to 6 and got marked exs. Pl to P4. On behalf of defence, DWs. l to 3 were examined and no document was marked. ( 5 ) TO establish its case, the prosecution examined PWs. 1 to 6 and got marked exs. Pl to P4. On behalf of defence, DWs. l to 3 were examined and no document was marked. ( 6 ) THE learned Assistant Sessions judge on appreciation of both oral and documentary evidence found the accused guilty for the offence under Sections 376 read with 511 and 506 Part-II of IPC and accordingly convicted and sentenced to undergo rigorous imprisonment for three and a half year and to pay a fine of Rs. 2,000/ in default to undergo rigorous imprisonment for three months of the charge under section 376 read with 511 of IPC and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for two months of the charge under section 506 Part-II of IPC. The learned sessions Judge on reappraisal of both oral and documentary evidence, while setting aside the conviction and sentence passed insofar as the charge under Section 506 part-II of IPC confirmed the conviction and sentence passed in respect of the charge under Section 376 read with 511 IPC. Aggrieved by the Judgments of the Courts below, the petitioner-accused has come up with the present criminal revision case. ( 7 ) HEARD the learned Counsel for the petitioner-accused and the learned Additional public Prosecutor and perused the impugned judgments as well as the other material on record. ( 8 ) THE learned Counsel for the petitioner-accused contended that the evidence of the prosecutrix PW-1 cannot be believed as there is nearly 28 days delay in lodging Ex. P1 report, which is fatal to the case of the prosecution. He further contended that PW-3, an alleged eye-witness did not support the case of prosecution and turned hostile. He also contended that the learned Sessions Judge erred in believing the evidence of PW-1 in regard to the alleged acts of the accused attempting to commit rape on her as provided under section 376 read with 511 of IPC, while holding that the prosecution failed to establish the acts of criminal intimidation committed by the accused as provided under Section 506 part-II of IPC. He further contended that even though there so many discrepancies in the evidence of PW-1, both the Courts below failed to consider those discrepancies while coming to the conclusion that the prosecution has proved its case against the accused of the charge under Section 376 read with 511 IPC. He, therefore, prays that the conviction and sentence passed by the trial Court and confirmed by the appellate court is liable to be set aside. ( 9 ) ON the other hand the learned additional Public Prosecutor while supporting the impugned judgments of both the Courts below vehemently contended that there is no error apparent in regard to the findings of the lower Court and in the absence of pointing out any illegality or irregularity, the concurrent findings of guilt recorded by the Courts below cannot be disturbed. He further contended that though there are some minor discrepancies in the evidence of the prosecutrix that alone is not sufficient to disbelieve the entire case of the prosecution, and therefore, prays to dismiss the criminal revision case. ( 10 ) AS seen from the case of prosecution, on 11-7-1999 few minutes after 2 p. m. , while PW-1 was taking lunch for her husband, the accused met her at gorrelametta near Sidhipatnam, and caught hold of her tuft of hair, pushed her on ground dragged her into near by bushes, removed her clothes and attempted to commit rape, and when she raised a hue and cry, pw-3 came to the spot and witnessed the incident. In view of the gravemen of the charge levelled against the accused, PWs. l and 3 are the crucial witnesses. No doubt in her chief-examination PW-1 while supporting the case of prosecution deposed that after the incident she ran and met PW-5 on the way at the cashew nut garden and on her request PW-5 accompanied her to her husband and she informed the incident to PW-2, her husband and returned home at 6 p. m. , and that on the next day she went to her parents house due to fear of the accused, whereat a major operation was conducted on her and tumors were removed whereas she deposed in her cross examination that she met PW-5 at about 2 p. m. , and the distance between the place of incident and the cashew nut garden is about 3 K. Ms. Since the distance between the place of incident and the place where pw-5 was staying is 3 KMs the possibility of PW-1 meeting PW-5 at 2 p. m. , on the way at the cashew nut garden is highly impossible as the alleged incident itself took place at 2 p. m. , which casts a cloud on the very case of the prosecution. ( 11 ) IT is also elicited from the evidence on record that the accused belongs to congress-I Party and the prosecutrix belongs to Telugu Desam Party, and there exists rivalry between them. Further. PW-3, another eye-witness did not support the case of prosecution and turned hostile. On a careful perusal of the evidence of the prosecution witnesses particularly PW-1 it appears there are so many discrepancies in her evidence with regard to the manner in which the offience has been committed and in spite of her evidence being incoherent, both the courts below erroneously came to the concurrent conclusion that the accused attempted to commit rape on PW-1. ( 12 ) WITH regard to delay of 28 days in lodging the complaint, it is the case of the prosecution that on the very day of the incident PW-1 informed the incident to pw-2, and on the next day she went to her parents house due to fear of the accused where her health was spoiled and she underwent operation for tumors, and was treated there as inpatient for 15 days. The evidence of PW-1 that she underwent operation is not supported by any clinching evidence. The prosecution has not taken pinch of pain either to obtain medical certificate in respect of the said operation or to examine any witness connected with her operation. Thus the abnormal delay of 28 days in lodging the complaint is not properly explained. Both the Courts below have lost sight of the fact that the evidence of FWs. 2 and 4, who are husband and mother of-PW-1, respectively, is highly interested, and, therefore, the Courts below ought to have taken utmost caution and sought corroboration from independent source. PW-3, who is cited as an eyewitness, has turned hostile. In such circumstances, it becomes all the more necessary for the Court to strictly scrutinize the evidence. The Court below has erred in resorting to rely on Section 161 Cr. PW-3, who is cited as an eyewitness, has turned hostile. In such circumstances, it becomes all the more necessary for the Court to strictly scrutinize the evidence. The Court below has erred in resorting to rely on Section 161 Cr. P. C. statement of PW-3 in coming to the conclusion that the petitioner-accused has threatened PW-1 that he would kill her and her husband, if she reveals the incident to any body. This part of evidence of PW-1 is given only with a view to overcome the delay caused in reporting the matter to the police. ( 13 ) THE evidence on the aspect of scene of offence is also not cogent. In ex. P-1 report PW-1 stated that the petitioner came to her from backside, caught hold of tuft of her hair, pushed her down on the ground removed her clothes, fell on her and tried to molest her and tried to commit rape on her and on hearing her cries, PW-3 came there and the petitioner took to his heels. In her evidence she deposed that the petitioner dragged her into the bushes. PW-6, Investigation Officer, deposed that he visited the scene of offence along with pws. 1 to 3 and prepared a rough sketch of the scene of offence, Ex. P-4, as per which the scene of offence is a cashew nut tope, whereas it is bushes according to PW-1. If that is so and had PW-1 been dragged to the bushes, naturally, there would have been scratch injuries. Therefore, apart from discrepancy in the scene of offence, the medical evidence is also silent about the injuries on the person of the prosecutrix. Therefore, both the Courts went on wrong premise and accepted the evidence of pw-1 and PW-6 and wrongly held that the place of offence is corroborated. ( 14 ) ONE of the strong circumstances to disbelieve the prosecution case is that pw-2 lodged a complaint against two male persons alleging that they beat him and that accused is not one among them. There is also suggestion that there are land disputes between the petitioner and PW-2. This suggestion gets support from the evidence of DWs. 1 to 3. There is also suggestion that there are land disputes between the petitioner and PW-2. This suggestion gets support from the evidence of DWs. 1 to 3. It is the evidence of DW-1 that PW-2, about five years back, gave a complaint to the police against one bullabbai, father of the accused alleging that he was practicing witchcraft and the police did not register any case against him on his report. In the background of these circumstances, the Courts below ought to have scanned the evidence of prosecution witnesses with utmost care inasmuch as there are not only land disputes between pw-2 and the petitioner, but there was also political rivalry. Even the examination of the petitioner under Section 313 Cr. P. C shows that his caste elders chastised him for enjoying Ac. 4. 00 acres of land when they are enjoying only Ac. 1. 00 acre each. Thus there appears to be land disputes between pw-2 and other villagers. The Courts below have simply ignored all these material contradictions and inconsistencies in the evidence of prosecution and therefore, the benefit of doubt should go to the accused. ( 15 ) IN the result, the criminal revision case is allowed setting aside the conviction and sentence in respect of the charge under section 376 read with 511 of IPC passed in s. C. No. 160 of 1999, by the Assistant sessions Judge, Narsipatnam and as confirmed in Crl. A. No. 100 of 2000 by the district and Sessions Judge, Visakhapatnam. The bail bond of the accused shall stand cancelled and the fine amount paid by the accused shall be refunded to him.