Andhra HC (Pre-Telangana)
Uppari Siddi Ramulu S/O. Balaiah vs State Of A.P. Rep. By P.P., High Court Of ... on 4 August, 2004
Equivalent citations: 2004(2)ALD(CRI)698, 2004CRILJ4732
JUDGMENT P.S. Narayana, J.
1. Heard Sri Ganga Rao representing Sri Bhooma Goud learned counsel for the appellant and the learned Additional Public Prosecutor Sri T. Niranjan Reddy.
2. The learned counsel for the appellant had brought to the notice of this Court that the learned Assistant Sessions Judge had totally erred in placing reliance on highly interested and uncorroborated, hearsay evidence of P.Ws. 4 to 7 who are not eyewitnesses to the incident. The learned counsel would also point out that except statement under Section 164 of Criminal Procedure Code (for short "Cr.P.C") of the defacto-complainant, she was not examined since she is no more in this world and there is no medical evidence also available before the Court to prove the offences with which the appellant-accused had been charged with. Hence, the appellant-accused is entitled to an acquittal.
3. The learned Additional Public Prosecutor would submit that no doubt the defacto complainant died, but her statement recorded under Section 164 Cr.P.C. is available on record, which would narrate what actually had happened. The learned counsel no doubt, in all fairness submitted that this would not constitute substantive evidence, but however, on the material available on record, the learned Judge had recorded certain findings. The learned counsel also in all fairness submitted that the Doctor was also not examined.
4. Heard both the counsel and perused the findings recorded by the learned Assistant Session Judge, Siddipet.
5. Uppari Siddi Ramulu - Accused in Sessions Case No. 278 of 1995 on the file of Assistant Sessions Judge, Siddipet, aggrieved by the judgment dated 9-7-1997 convicting and sentencing him under Section 324 and 376 of Indian Penal Code (for short 'IPC') for rigorous imprisonment of three years for the offence punishable under Section 324 I.P.C and rigorous imprisonment for ten years for the offence punishable under Section 376 I.P.C and to pay a fine of Rs. 1,000/-, and the substantial sentences of imprisonment to run concurrently, and in default of payment of fine, to undergo simple imprisonment for one year, preferred the present appeal.
6. It is brought to the notice of this Court that the accused was in custody for some time. The case of the prosecution is that one Prasuna who studied S.S.C., fell sick and her parents neglected her and in helpless condition, without money she left her parental abode at Lingareddipally on foot on 16-6-1994. at 8 A.M to go over to Chegunta for treatment. She borrowed Rs. 10/- from a Police Constable at Police Station Chegunta and boarded a bus for Hyderabad but alighted it at Toopran since the sum of Rs. 10/- was not sufficient to buy a ticket for Hyderabad. Hence, she proceeded to Toopran police station, explained her plight to the Sub Inspector of Police how her parents neglected her and borrowed Rs. 10/- from him and proceeded towards lorry stand to go over to Hyderabad.
7. It is the further case of the prosecution, that the appellant herein-accused was classmate of the said Prasuna upto 5th class and three of his associates stopped her moving alone and they had tea in Mukhamukhi hotel and she followed the accused to Zilla Parishad High School, at Toopran, where he had a conversation with her for half an hour, during which she had explained how she was driven out from the house, the accused also pretended to have been driven out from his house. She told him that she was sick and was going to Gandhi Hospital for treatment. Accused told her that it was not necessary to go over to Hyderabad and asked her to stay back in his house misrepresenting that his wife and sister are in the house near Railway Quarters. It was 12.00 Noon when both of them boarded a lorry and reached Masaipet Railway Quarters by 4 P.M. Accused also mi-represented to her that he was working in Railways, which she had not believed. Accused introduced her to two of his associates as his sister-in-law, Manju and she cooked food and prepared egg omlettes, had meals and slept in the quarter on that night. On the following day i.e. on 17-6-1994, accused gave her a saree and blouse. She cooked food for the second day also when she was normal. At about 4 P.M., he took her to Toopran Hospital, where she was given tablets and brought her back to Railway Quarters in his bicycle. When accused made a proposal to accompany him to a movie, she refused. Therefore, he left the house and returned back at 8.30 P.M, in an intoxicant condition having consumed toddy. Both of them had food and slept in the night, she was wearing a chudidar-pyjama. In the mid-night, at about 12 'o' clock, accused played vulgar cassettes, called 'Rayalaseema Cassettees' and he surprised her with a knife and a handle of spade, threatened her to undress and when she refused to undress, he asked her not to act, accusing her that she was a spoiled girl and that accused should also be allowed to spoil her. On her refusal to undress, he beat her with the handle of spade on her head, back and kicked her in her stomach and she shouted for help but nobody came to her rescue.
8. It is the further story of the prosecution that she struggled with him for some time. He showed her a picture of an actress and asked her to dress like that, to which she did not oblige. He threatened her with a knife to kill her. Though she struggled with him when he was beating her up, he over-powered her and raped her once, by keeping the door open and again by closing the doors and the accused also threatened to kill her and hang her if she goes out and asked her to remain in the house.
9. It is also the case of prosecution that the accused also asked her to lick his penis and when she fell down unconscious and she could wake up in the morning on hearing arrival signal sounds of a train and ran out of the quarter, and reached Secunderabad Railway Station where she boarded an auto to go over to Sanathnagar Police Station and on being told by a Police Officer, she proceeded to Gandhi Hospital in the same auto and while she was being treated in the Gandhi Hospital, she disclosed to the duty Doctor about her having been raped. The duty Doctor flashed message to the Police outpost in Gandhi Hospital, where from PC No. 7457 (V.D. Solomon) accompanied her to Market P.S and handed her over to the Sub Inspector of Police, K. Surendran, who instructed H.C. No. 2487, to record her statement and the said H.C. recorded her statement and the same was endorsed by the said S.I. and a case in Crime No. 210 of 1994 was registered under Sections 376 and 324 I.P.C at Market Police Station, Secunderabad, and her detailed statement was recorded by the S.I of Police, under Section 161 Cr.P.C at 3.30 P.M., and referred her to Gandhi Hospital, Secunderabad, for medical examination.
10. On 19-6-1994, the Inspector of Police, Market P.S. Secunderabad, transferred the case file in Crime No. 210 of 1994 to P.S. Toopran on the point of jurisdiction. On 20-6-1994 at 6 P.M., H.C.537 re-registered a case in Crime No. 71 of 1994 and flashed F.I.Rs. to all concerned. On receipt of express F.I.R. at 7 P.M., on 20-6-1994, the C.I of Police, Toopran, proceeded to Market P.S., Secunderabad, on 21-6-1994, verified the investigation done by Market P.S., examined the victim-Prasuna, seized the clothes worn by her at the time of the offence under a seizure report dated 21-6-1994.
11. It is also the case of the prosecution that Prasuna stated before the S.I. of Police in her 161 Cr.P.C. statement how she was raped by the accused twice, which was also recorded by the S.I of Police (K. Surendran). So the C.I of Police, did not record her statement again. The statements of other witnesses were also recorded, and sent a requisition to the Judicial First Class Magistrate, Siddipet, to record the statement of the prosecutrix victim-Prasuna, under Section 164 Cr.P.C, on 24-6-1994 and she narrated all the events in a sequence, explaining how the accused took her to his quarter, beat her, raped her twice and how she escaped from the quarter, reached Gandhi Hospital. On 25-6-1994 she was examined by Doctor. Subsequently on 26-6-1994 the C.I. of Police, Toopran, gave a requisition to the Judicial First Class magistrate, Gajwel, for referring the victim to a Rescue Home in Hyderabad as she was not inclined to go over to her parental abode. On 27-6-1994 the Judicial First Class Magistrate, Gajwel, referred her to Rescue Home, Hyderabad. On 30-6-1994 Prasuna sent a petition to the Judicial First Class Magistrate, Gajwel, stating that her parents were willing to take her back and requesting her to be sent back to her parents. However, when she was produced before the Judicial First Class Magistrate, Gajwel, on 13-7-1994, she gave a statement before the Judicial First Class Magistrate, expressing her apprehension about insecurity to her life if she was set free or allowed to stay in the village with her parents. Hence, she was sent back to the Rescue Home on 13-7-1994.
12. The accused, who was found absconding from the date of offence, was arrested on 15-9-1994 and taken to Police Station, Toopran, and when the C.I of police interrogated him, during which he admitted to have committed the offence. On 1-10-1994 Dr. P.M. Ragamalika, Deputy Civil Surgeon, examined the accused and opined that he had well developed genital organs and capable of performing sexual intercourse. The Assistant Direct, Forensic Science Laboratory opined that semen and spermatozoa were detected on two glass-slides and cut-drawyer. Investigation revealed that the accused voluntarily caused hurt to Prasuna with a stick and raped her twice on 17-61994 & 18-6-1994 and hence the C.I of Police, Toopran has laid a Charge Sheet, against the accused for the offences punishable under Section 376 and 324 I.P.C. During the trial P.Ws. 1 to 10 were examined and Exs.P. 1 to P.18 were marked. P.W.9 is the JFCM, who recorded statement of the victim-Prasuna under Section 164 Cr.P.C..
13. As per the findings recorded, though it is a pathetic case, it is unfortunate that the prosecutrix-victim, inasmuch as she is no more, her evidence was not recorded and hence the statement made by her under Section 164 Cr.P.C., before P.W.9 alone is available.
14. In State of Delhi v. Shri Ram Lohia, AIR 1990 SC 490 the Supreme Court held that statement of witness recorded under Section 164 of Criminal Procedure Code is not substantive evidence and it can be used only to corroborate or contradict that witness.
15. In the light of the same, it is clear that there is no substantive evidence on record, since the prosecution could not examine Prasuna, inasmuch as she is no more in this world. P.Ws. 1, 2 and 3 are the witnesses who speak about the circumstances. P.W.4 is the Deputy Superintendent of Police and Investigating Officer, P.W.5 is the Head Constable, P.W.6 is the P.C.7497, P.W.7 is the S.I of Police and Investigation Officer, P.W.8 is the Head Constable No. 537, P.W.9 is aforesaid JFCM, who recorded the statement of the victim-Prasuna under Section 164 Cr.P.C and P.W.10 is Dr. P.M. Ragamalika, Medical Officer, who examined the accused.
16. It is unfortunate that there is yet another problem in the present case that a finding had been recorded that the Doctor who had examined Prasuna, inasmuch as the whereabouts are not known, it was stated that the prosecution was unable to bring her before the Court and the said crucial medical evidence, which is definitely essential to prove both the offences with which the accused had been charged with, the said evidence is not available on record. It is no doubt true that from the series of events as per the version of the prosecution, the story of the victim-Prasuna appears to be highly pathetic, but this being a Court of Law, in the light of want of crucial evidence, the evidence of the prosecutrix-victim who is no more in this world and in view of the non-examination of the Doctor who had examined her, it cannot be said that the prosecution had proved the case beyond all reasonable doubt. The findings recorded by the learned Judge definitely cannot be sustained, since the evidence had not been appreciated in proper perspective and in accordance with the settled principles of criminal law.
17. Hence, this Court is not inclined to accept the said findings and for the foregoing reasons, the appellant is bound to succeed in the appeal.
18. The Criminal Appeal is accordingly allowed and appellant-accused is acquitted of all the charges. The bail bonds shall stand cancelled.