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2008 DIGILAW 971 (AP)

Sammangi Nagabhushanam v. State of A. P.

2008-11-13

GOPALA KRISHNA TAMADA

body2008
JUDGMENT Sole accused in Sessions case NO.3 of 2003 on the file of the Court of the Sessions Judge, Mahila Court, Visakhapatnam, filed this Criminal Appeal assailing his conviction and sentence of the offences punishable under Sections 417 and 307 of the Indian Penal Code, 1860. 2. The case of the prosecution, as culled out during the course of evidence, is that the victim by name volisetty Padmavathi @ Padma (P.w. 1) was a student of X class and was residing along with her parents at D.L.B. Quarters at Kailasapuram in Visakhapatnam. In the year 2001, she joined in Mahila Sangham, run by one Sailakshmi (P. W. 11), for the purpose of learning lacing and stitching, etc. While P.W. 1 was returning from Mahila Sang ham, the appellant used to stand in the junction and follow P. W. 1 every day. It happened for a period of three months, during the course of which they got acquaintance with each other. When P.W. 11 saw both of them, she admonished P.W. 1. The appellant was telling P.W. 1 that he was in love with her. Thereafter, on one day, the appellant sent a message through his friend asking P.Q. 1 to come to Ayyappaswamy temple. Accordingly, she went there and both of them met there for the first time, where they talked with each other for a long time. Thereafter, they went to Ramakrishna Beach and Vuda Park on a motorcycle and since then both of them used to meet frequently. While so, on 16-10-2001, which happened to be the birthday of the appellant, P.w.1 and the appellant met at the terrace of the house of one Ramanamma at7.30 p.m., and P.W. 1 presented a gift to the appellant. Appellant promised P. W. 1 that he would marry her and thus hugged her. Though p.w. resisted initially, but because of the promise made by the appellant, she allowed him to have sexual intercourse with her and thus they continued their sexual relationship for a period of two months i.e., upto 30-12-2001. Later, when P.W.1 informed about the marriage alliance, which her father was Looking for her, appellant assured that she need not worry about it as he is going to marry her. Later, when P.W.1 informed about the marriage alliance, which her father was Looking for her, appellant assured that she need not worry about it as he is going to marry her. Be that as it may, on 14-01-2002 at about 7.15 P.M. the appellant called p.w. 1 to the backside of the hospital of D.L.B. quarters and, accordingly, P.W. 1 went there and informed the appellant about the alliance being fixed by her parents. The appellant, in a casual manner, asked her to marry the said person. When she questioned the same, appellant stated that his parents are also intending to perform his marriage with one Lakshmi, who is closely related to him. When p.w. 1 questioned as to why he promised her that he would marry her and had sexual intercourse with her, appellant said that he Ioved her only for time pass. During the course of the said discussion between p.w. 1 and the appellant, P.W. 1 questioned the appellant by catching hold of the CD liar of his shirt. Then appellant slapped her on the cheeks and pushed her away, on account of which P.W. 1 fell down from the third floor of the said building and became unconscious. When she gained consciousness, she saw the appellant by her side and ten minutes thereafter, appellant and his friends informed the matter to the parents of p.w. 1, who in turn, took her to the Local hospital, from where she was shifted to Seven Hills Hospital, Visakhapatnam. The resident medical officer of Seven Hills Hospital (P.w. 5) examined P. W. 1 and found swelling of both feet with fracture of both calcaneum bones and fracture DfL3 vertebra. He gave Ex. P-2 wound certificate opining that the injuries found by him are grievous in nature. On the advise of p.w. 5, p.w. 1 was referred to Orthopedic Surgeon, Seven Hills Hospital (P.wA), and she was thereupon operated by him. Thereafter, on the basis of the information given by the father of P.w. 1, byname Volisetty Potteyya (P.w. 2), the Assistant Sub-lnspector of Police, V Town Law and Order Police Station, Visakhapatnam (P.w. 10) visited Seven Hills Hospital and recorded the statement (Ex. P-1) of p.w. 1. Based on Ex. Thereafter, on the basis of the information given by the father of P.w. 1, byname Volisetty Potteyya (P.w. 2), the Assistant Sub-lnspector of Police, V Town Law and Order Police Station, Visakhapatnam (P.w. 10) visited Seven Hills Hospital and recorded the statement (Ex. P-1) of p.w. 1. Based on Ex. P-1 statement, the Sub-Inspector of Police, V Town Law and Order Police Station, Visakhapatnam (p.w 12) registered a case in Crime No. 35 of2002forthe offences punishable under Sections 417 and 307 IPC and investigated into. Thereafter, he visited Seven Hills Hospital and recorded the statement of P.W. 1. He also visited the scene of offence and observed the scene in the presence of mediators i.e., P.W. 9 and one Damodara Rao, and prepared Ex. P-6 scene observation report and Ex. P-9 rough sketch of the scene of offence. On 28-01-2002, p.w. 12 arrested the appellant and referred him to the Causality Medical Officer, K.G.H., Visakhapatnam (P.w. 7) for potency test. p.w. 7, on examination of appellant, gave Ex. P-4 certificate opining that appellant was capable of performing sexual intercourse. Subsequently, on 29-01-2002, on the requisition sent by P.W. 12, the A5sistant Professor of Obstetrics and Gynecology, Andhra Medical College, Visakhapatnam (P.W. 6) examined P. W. 1 and issued Ex. P-3 final opinion stating that P.W. 1 was habituated to sexual intercourse. After completion of entire investigation, P.W. 12 laid charge sheet against the appellant. 3. In support of its case, prosecution examined P.Ws. 1 to 12 and marked Exs. P-1 to P-9. Among P.Ws. 1 to 12, P.Ws. 8, 9and 11 did not support the case of the prosecution. No oral and documentary evidence was adduced on behalf of the defence. 4. Considering the oral and documentary evidence, the trial Court found the appellant guilty of the offences punishable under Sections 417 and 307 IPC and accordingly convicted and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for a period of three months, for the offence punishable under Section 3071PC, and further sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for a period of two months for the offence punishable under Section 417 IPC. Aggrieved thereby, appellant/accused preferred this Criminal Appeal. 5. 2,000/- in default to suffer rigorous imprisonment for a period of two months for the offence punishable under Section 417 IPC. Aggrieved thereby, appellant/accused preferred this Criminal Appeal. 5. Sri C. Praveen Kumar, learned counsel for the appellant contended that thetrial Court erred in convicting the appellant for the offences punishable under Sections 417 and 3071PC. According to him, the acts alleged to have been committed by the appellant do not satisfy the ingredients of either Section 417 or 307 IPC. The learned counsel has also drawn my attention to various discrepancies in the evidence of the prosecution witnesses and tried to contend that a false case has been foisted against the appellant. 6. Opposing the said submissions, the learned Additional Public Prosecutor contended that the appellant made a false promise and on account of which P.W. 1 submitted herself, and he intentionally pushed p.w. 1, which definitely attracts the provisions of Sections 417 and 307 IPC. Therefore, the learned Additional Public Prosecutor seeks to sustain the conviction and sentence imposed on the appellant by the trial Court. 7. From a reading of the entire evidence let in by the prosecution during the course of trial, this Court is thoroughly satisfied that the prosecution has miserably failed in bringing home the guilt of the appellant for the offences punishable under Sections 417 and 307 of IPC. Section 415 of lPC defines what cheating is. According to the said provision of law, whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Here is a case where the appellant according to P. W. 1 promised that he would marry her and because of the said promise only, P.W. 1 allowed him to have sexual intercourse with her. But what is to be seen is as to whether the appellant at the time of making such a promise was having the fraudulent intention or not. But what is to be seen is as to whether the appellant at the time of making such a promise was having the fraudulent intention or not. The prosecution has to establish that, right from the inception, the appellant made P. W. 1 to believe that he would marry her, but in reality he never entertained the idea of marrying her. Nowhere in the evidence it came out that the appellant was having the said fraudulent intention at the time when he made promise to P.W. 1 that he would marry her. May be he was sincere with P.w. 1 at the earliest point of time, but subsequently, on account of various circumstances, he might have resiled from what he has stated. From that it cannot be inferred that the appellant entertained the said fraudulent intention through out and thus cheated P.W. 1 by making her believe that he would marry her and had sexual intercourse with her. In fact, it came in the evidence of P.W. 1 that the parents of the appellant are insisting the appellant to marry his "maradalu by name Lakshmi" and that might be the reason for the appellant to tell P.W. 1 that he cannot marry her. So. this Court is thoroughly satisfied that the trial Court had erred in convicting the appellant and punishing him under Section 417 of IPC. 8. Section 307 of IPC deals with attempt to murder. According to the said provision of law, intention or knowledge are very much essential. If the prosecution fails to establish that the appellant had the required intention or knowledge at the time when the said offence had taken place, it cannot be said that the appellant is guilty of the offence punishable under Section 307 IPC. When we look at the case on hand, it is clear that the appellant never had the intention to kill P.W. 1 and similarly, he did not do anything knowingly to attribute knowledge. According to the evidence of P.W. 1, they both went to upstairs of the building where there was heated discussion between both P.W.1 and the appellant. What P.W. 1 spoke during her cross-examination is as follows:- "Till 10 p.m. on that night we had the talks. I implored the accused not to cheat me and to marry me, and I also questioned about his conduct by catching hold of his collar of his shirt. What P.W. 1 spoke during her cross-examination is as follows:- "Till 10 p.m. on that night we had the talks. I implored the accused not to cheat me and to marry me, and I also questioned about his conduct by catching hold of his collar of his shirt. When the accused tried to escape from my hand, I caught hold of him and informed him that if he is not going to marry me, that I will take action against him. The accused slapped me with his right hand on both my cheeks and he has pushed me away from the up stair, i.e., from the 3,d floor. As the accused pushed me from the 3,d floor, I fell down from the 3,d floor and I became unconscious." From the said evidence of p.w. 1, even by stretch of imagination, it cannot be said that the appellant had the intention or knowledge so as to attract the provisions of Section 307 of IPC. It came in the evidence of P.W. 1 that the appellant slapped her on her cheeks and pushed her away from the upstairs, on account of which she fell down and became unconscious. In fact, from a perusal of the entire evidence, it can definitely be said that the aggressor is P. W. 1 and because of the said heated discussion, all this happened. But from that, it cannot be said that the accused has committed the offence punishable under Section 307 of IPC. 9. Now what is to be seen is as to whether the prosecution is able to prove the guilt of the appellant for any offence, other than the offences for which he was tried? 10. It is true, as contended by the learned counsel for the appellant, that there are certain discrepancies in the evidence of prosecution witnesses. The alleged incident took place on 14-01-2002, whereas the report was given after lapse of 11 days i.e., on 25-01-2002. Further, according to P.W. 1, she was conscious even after the incident, but the report was lodged only after a lapse of about 11 days. 11. In my considered view, the said discrepancies and the other discrepancies pointed out by the learned counsel for the appellant would not make this Court to conclude that no offence is made out. Further, according to P.W. 1, she was conscious even after the incident, but the report was lodged only after a lapse of about 11 days. 11. In my considered view, the said discrepancies and the other discrepancies pointed out by the learned counsel for the appellant would not make this Court to conclude that no offence is made out. This Court is of the view that the said discrepancies such as whether P.W. 1 was conscious or unconscious etc. are totally immaterial. It shall be borne in mind that P.W. 1 allowed the appellant to have sexual intercourse with her even before the marriage and no woman would dare to come out and say that she had physical relationship with a particular person prior to her marriage. Probably that is the reason why P. W. 1 did not reveal anything either to her parents or to the doctors, who examined her. As P.W. 1 did not reveal the said incident till 25-01-2002, it cannot be said that the prosecution has come up with a totally false story. In fact, the evidence of P. W.1, in my considered view, inspires confidence that she had sexual contact with the appellant and it continued for a period of three months. May be it is true that the offences for which the appellant was tried are not made out, but it cannot be said that the appellant had not committed any offence. According to P. W. 1, the appellant slapped on her cheeks and pushed her away and thereafter she fell down from the third floor and became unconscious. From the above, it can definitely be said that there was negligence on the part of the appellant and that on account of such negligence only, P.W. 1 was grievously hurt. 12. At the instance of the appellant, P.W. 1 went to the backside of the hospital of D.L.B. Quarters at about 7.15 p.m. on 14-01-2002, where there were heated exchange of words between P.W. 1 and the appellant till 10.00 p.m. When p.w. 1 caught hold of the color of the appellant, he slapped her with his right hand on her cheeks and pushed her away from the upstairs i.e., from the third floor, on account of which she fell down and became unconscious. The said act, in my considered view, would definitely attract the definition of rashness and negligence. 13. The said act, in my considered view, would definitely attract the definition of rashness and negligence. 13. Section 338 of IPC which deals with causing grievous hurt by act endangering life or personal safety of others, states that whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to we years, or with fine which may extend to one thousand rupees, or with both. As this Court has come to the conclusion that the said act of falling P.W. 1 from the third floor is on account of rash and negligent act of the appellant, it can definitely be held that the appellant is guilty of the offence punishable under Section 338 of IPC. 14. It is true that the appellant was not tried of the offence punishable under Section 338 of I. P .C. and no charge is framed for the offence punishable under Section 338 of IPC. But as the said offence is minor to the offence under Section 307I.P.C. and no prejudice is going to be caused because of non-framing of the charge for the offence under Section 338 I.P .C., the appellant need not be put on notice once again about the sentence. Accordingly, the conviction and sentence imposed by the trial Court on the appellant for the offences punishabieunderSections417and 307 of lPC is set aside, but in the alternative, he is convicted for the offence punishable under Section 338 of IPC. 15. At this juncture, the learned counsel for the appellant submitted that P.w. 1 is married and, simultaneously, the appellant is also married and they are leading marital life with their respective spouses and, hence, a lenient view may be taken. It is the further submission of the learned counsel for the appellant that the appellant was in remand for about one month i.e., from 29-01-2002 to 22-02-2002. 16. In the light of the above, this Court is of the considered view that the sentence of imprisonment which the appellant has already undergone is sufficient in the interest of justice, but however, this Court by invoking the provisions under Section 357 of Cr.P.C. directs the appellant to pay a total compensation of Rs. 25,000/-, which includes the fine amount of Rs. 25,000/-, which includes the fine amount of Rs. 5,000/-already paid by him. Hence, the appellant is hereby directed to deposit a sum of Rs. 20,000/- (Rupees Twenty thousand only) in the Court of the Sessions Judge, Mahila Court, Visakhapatnam, within a period of six weeks from the date of receipt of a copy of the judgment, and thereafter, the Sessions Judge, Mahila Court, Visakhapatnam, shall disburse the entire amount of Rs. 25,000/- to P.w. 1. 17. Accordingly, this criminal appeal is disposed of.