Andhra Pradesh High Court - Amravati
Ganja Srinivas, vs The State Of A.P., Rep By Pp., on 15 March, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.1501 of 2008
ORDER:
This Criminal Revision Case under Sections 397 and 401 Cr.P.C. assails the conviction of the revision petitioner for the offence under Section 354 I.P.C. which was initially handed down by a judgment dated 31.03.2008 by learned Assistant Sessions Judge, Ramachandrapuram in Sessions Case No.333 of 2006 and thereafter confirmed in appeal by a judgment dated 16.09.2008 by the learned Principal Sessions Judge, East Godavari, Rajahmundry in Criminal Appeal No.180 of 2008. Respondent herein is the State.
2. The assault or criminal force to a woman or a girl with an intention to outrage her modesty is punishable under Section 354 I.P.C. The accusation for such an offence is very easy to make and very difficult to rebut. Therefore, it is always felt necessary by Courts to see that the conduct of the victim is consistent with ordinary probabilities and independent corroboration is normally insisted upon. The entire surrounding circumstances require appreciation.
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Dr. VRKS, J Crl.R.C.No.1501 of 2008
3. Crime No.77 of 2006 was investigated into by Sub-Inspector of Police, Draksharama Police Station and that resulted in filing a police report in terms of Section 173 Cr.P.C. alleging offence under Section 376 read with 511 I.P.C. Learned Judicial First Class Magistrate, Ramachandrapuram complied with the procedure under Section 209 Cr.P.C. and committed that case to the learned Sessions Court, East Godavari. The accused was charged for the offence under Section 376 read with 511 I.P.C. and after due trial, he was found not guilty for that offence but was found guilty for a lesser cognate offence under Section 354 I.P.C. The learned Assistant Sessions Judge, Ramachandrapuram convicted and sentenced the accused directing him to undergo simple imprisonment for five years and pay a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month. The remand period was directed to be set off. In the appeal before the learned Sessions Judge there was due hearing and finally learned Sessions Judge found that the judgment impugned was right on facts and law and dismissed the appeal and thereby confirmed the guilt, conviction and sentence imposed by the trial Court against the accused. All the principles of fair trial have been complied with 3 Dr. VRKS, J Crl.R.C.No.1501 of 2008 as the record discloses it. The accused was furnished with copies of documents on which the prosecution intended to rely upon and was informed of the charge against him and his plea of not guilty was recorded and all the witnesses were allowed to be cross-examined by the defence and his response to incriminating evidence was recorded under Section 313 Cr.P.C. Althroughout the accused has been defended of his own learned counsel while the State has been represented by the learned Public Prosecutors at various stages. In this revision with reference to competence of the Courts that tried the case and that heard the appeal and the manner in which the trial was conducted and the appeal was heard, there are no challenges. Therefore, it is sufficient now to find out the substance of the case for the purpose of analysis.
4. The case mentioned offence allegedly took place on 18.05.2006 in a village called Kapavaram in Ramachandrapuram Mandal, East Godavari District. The accused was aged about 25 years by then. He was married and had a child. The victim was a girl aged 14 years and studied upto VII Class and discontinued it and was remaining at her house helping her family members. She lives in a hut along 4 Dr. VRKS, J Crl.R.C.No.1501 of 2008 with her younger brother and younger sister and the father and mother. The accused and this family are residents of the same village called Kapavaram. They are not immediate neighbours. The parents of the victim girl have been agricultural coolies. The accused for some time did agriculture and thereafter he has been an agricultural coolie. The alleged offence took place in this village setting and the scene of offence is stated to be the very house of the victim girl. It was during broad day light at about 2:30 P.M. inside the house of the victim the offence allegedly took place. The house of the victim is surrounded by several residential houses. On all these aspects there is evidence and these aspects have never been questioned as incorrect by the defence.
5. At the trial prosecution examined PWs.1 to 8 and got marked Exs.P.1 to P.4. Victim gave evidence as PW.1. She is the direct witness to the alleged crime incident. PW.3 is her junior paternal aunt and lives in the house that is adjoining the house of the victim girl. She stated to be an eye witness to the crime incident. At the time of alleged offence it was stated that the parents of the victim girl went out for agricultural works and the two siblings of the victim girl went out for playing games 5 Dr. VRKS, J Crl.R.C.No.1501 of 2008 and the victim girl was alone in the house. Rest of the witnesses examined by the prosecution are not direct witnesses to the constituting elements of the crime, but their evidence is reflective of immediate conduct of the victim and the response on part of others in handling the crime etc. Since it was a case that was initially tried for attempted rape there was evidence of PW.7-Assistant Surgeon who examined the victim girl on 13.06.2006 and he found there were no traces of rape and he issued Ex.P.2 certificate. But this medical evidence was found not relevant in proving or disproving the case by the Courts below. PW.2 is the father of the victim girl who was away from the house when this crime incident took place in the house. On his return at about 4:00 P.M. he was appraised of the facts by the victim girl and her junior paternal aunt/PW.3. He thereafter went and informed it to the maternal uncle of the accused. That maternal uncle is PW.4 and he gave evidence to the extent of facts that were informed to him by PW.2. PW.4 is not a witness to the crime. However, his evidence was found giving a great support to the prosecution version as observed by both the Courts below. PWs.5 and 6 are elders of Kapavaram Village who felt that the crime incident need not be processed 6 Dr. VRKS, J Crl.R.C.No.1501 of 2008 through law and they could see that the dispute could be resolved at the village level. However, as they found that their efforts were not bringing result, they gave advise to the family of the victim to proceed in accordance with law. These two witnesses also supported the case of prosecution. Broadly that is the nature of evidence available.
6. Coming to a few more details about the evidence on record, it is to be stated that the evidence of the victim/PW.1 is that on the day she was alone in the house watching television and at about 2:30 P.M. the accused who is known to her came to her, enquired with her about her parents and she told him that they went to attend the agricultural works. Then the accused reached close to her, kissed on her cheek and lips. The girl did not like it and immediately sought for help by shouting Chinnamma, Chinnamma/PW.3 summoning for her help. The accused did not like it and he immediately closed her mouth very tight and then dragged her and pushed her to the cot, caught her tight and was putting efforts to lift her garments. However, on listening the shouts and cries of PW.1, her neighbouring paternal aunt/PW.3 came out of her house and reached the house of PW.1 and she saw the accused holding 7 Dr. VRKS, J Crl.R.C.No.1501 of 2008 PW.1 and trying to lift the lower garment. She reached to rescue PW.1 and the accused pushed her aside and escaped from the spot. It is this evidence of PW.1 that was considered sufficient proof under Section 354 I.P.C. by the Court that tried the offence. In this revision it has not been the contention of the revision petitioner that these facts do not constitute offence under Section 354 I.P.C. Therefore, as far as existence of evidence proving all the constituting elements of Section 354 I.P.C. is not in dispute. The entire defence turns on the credibility of the evidence and nothing else. The evidence of PW.3 contains all these facts. PW.3 said that having noticed such an incident she remained at the house of PW.1 till her parents arrived. PWs.1 and 3 said that parents arrived at 4:00 P.M. and they immediately informed the incident. PW.2 is father of PW.1 and he said that on hearing this incident he reached to the maternal uncle of accused and told him about it. The said maternal uncle testified as PW.4 and said that at 4:00 P.M. this PW.2 came to him and informed him of the outrage suffered by PW.1 in the acts of the accused. The reply from PW.4 was that he could not do anything in this regard and PW.2 and his family was to take recourse to the steps they felt 8 Dr. VRKS, J Crl.R.C.No.1501 of 2008 needed. The fact that PW.4 is the maternal uncle and in other words the accused is nephew to PW.1 is deposed by PW.4 and is not challenged by the defence. Thus one of the closest relations of accused gave evidence on facts known to him and that go in support of the prosecution version. The evidence of PW.2 and that of PW.1 and others is that as they did not find help from PW.4, they reached to the village elders/PWs.5 and 6 and told them about the incident. These two witnesses claimed that they are village elders and admitted that they were so informed by PW.2 and others about the crime incident. It is the evidence of all these witnesses that PWs.5 and 6 wanted to call the accused and see the issue was resolved. However, they did not find the accused in the village and they observed that he was not making himself available at the village. Even then PWs.5 and 6 advised PW.2 not to aggravate the situation and obediently that was followed by PW.2. It is about 25 days later it came to the knowledge of the village elders that the accused arrived at. Then despite their efforts they could not get him and therefore expressing their helplessness they advised the victim and her father to go and secure solace through process of law. It was in that context, there was 25 days delay between the date of 9 Dr. VRKS, J Crl.R.C.No.1501 of 2008 offence and lodging written information/Ex.P.1 by PW.1. Ex.P.3-F.I.R. was registered by PW.8 investigating officer on 11.06.2006.
7. Before the trial Court as well as the appellate Court defence raised various contentions. One point that was argued was delay in lodging F.I.R. Both the Courts below dealt with it and the learned trial judge extensively dealt with it and referring to the whole sequence of facts that occurred from the time of offence till the time of lodging F.I.R. and found that the evidence of PWs.5 and 6 was credible and thereby put faith in the correctness of the version spoken to by PW.2 and PW.1 for the delay in lodging F.I.R. Learned Assistant Sessions Judge recorded that there was absolutely no hint to find any concoction or embellishment that took place in that 25 days gap between registration of crime and offence. It was in such circumstances, the contention of the defence was negatived. The repeat argument on the same point met with same result from the learned Sessions Judge dealing with the appeal. One of the contentions from the defence went on the lines that it was mid May in the year 2006 and the parents of victim were stated to be at agricultural fields attending paddy cutting and that was 10 Dr. VRKS, J Crl.R.C.No.1501 of 2008 improbable because by the end of April itself paddy cutting should have been over. That version if accepted would go to show that according to the accused even the parents of the victim girl were in the house when this offence occurred. While cross-examining PW.1, defence never said that the victim girl's parents were there in the house at 2:30 P.M. when he was allegedly engaged in this detestable act of crime against young girl. He himself did not testify, though an agriculturist, that the crop cutting was already over. His own uncle/PW.4 said in his evidence that at 4:00 P.M. when PW.2 came to him informing him of this crime incident he himself was engaged in drying up the paddy etc. Considering all these pieces of evidence, both the Courts below held that it was still a season for cutting up of crop in certain lands and other agricultural operations in some fields and therefore, non-availability of parents of PW.1 in the house at that time was found to be a normal circumstance.
8. While cross-examining PW.1 it was elicited that the house of the grandparents of PW.1 was adjacent to the house of the accused. On eliciting such fact the suggestion given by accused to the prosecution witnesses was that there was boundary dispute between his family and the family of grandparents of 11 Dr. VRKS, J Crl.R.C.No.1501 of 2008 PW.1 and therefore, this false case was foisted against him. Either through cross-examination of prosecution witnesses or through positive evidence from defence the relevant details of that alleged dispute between these two families was never brought on record. When was the dispute, what was the full amplitude of the dispute and what were actions and reactions on part of both families on such boundary disputes, there was no evidence. According to his own junior maternal uncle/PW.4, it is an old dispute and that the day on which the dispute arose it was resolved. That remained unchallenged as could be seen from the cross-examination of PW.4. On considering these facts, learned trial Court as well as the appellate Court found no truth and substance in the defence contention and therefore, they held that there was no false implication of accused out of any particular grouse for the grandparents of PW.1/victim.
9. It is in the light of such evidence by giving cogent reasons Courts below found the accused guilty.
10. In this criminal revision, it is contended that the evidence of PWs.1 to 6 ought not to have been believed because they are interested testimonies. PW.3 was not a neighbour to PW.1. 12
Dr. VRKS, J Crl.R.C.No.1501 of 2008 There was abnormal delay in lodging F.I.R. There was no independent evidence supporting the case of prosecution. The version of PW.1 was an exaggeration as against her earlier statements. Investigation was flawed. On these contentions learned counsel for revision petitioner submits that judgments of the Courts below are erroneous and deserve reversal.
11. Learned Special Assistant Public Prosecutor appearing for the respondent-State made his serious submission that on impeccable evidence led by the prosecution, immaculate findings were recorded by the Courts below and there is absolutely no reason to exercise any revisional jurisdiction by this Court.
12. Learned counsel on both sides submitted arguments.
13. The point that falls for consideration is:
"Whether the convicting judgments of the Courts below suffer from irregularity or illegality or impropriety requiring interference?"13
Dr. VRKS, J Crl.R.C.No.1501 of 2008
14. Point:
The assertions of prosecution and the material evidence led by prosecution and the manner in which that was dealt with by the Courts below are already indicated in the earlier paragraphs. It is a case where both at the time of charge hearing as well as hearing at the time of Section 313 Cr.P.C. no particular line of defence was spoken to by the accused. There was no positive evidence from defence in proving or disproving any fact. It is never the defence of accused that the victim girl was a consenting party. Be it noted that the victim girl was a minor by the time of this offence. Record does not show any particular tiff between accused on one side and PW.1 or PW.2 or PW.3 or PW.4 or PW.5 or PW.6 on the other side. It was not the case of defence that at the alleged time and date of this offence the accused was elsewhere but not in the village. All the prosecution witnesses stated that in the evening when PW.2 came and informed them of the offence when they tried to secure the accused he was found absconding. That he did not make himself available to their reach is a fact that was believed 14 Dr. VRKS, J Crl.R.C.No.1501 of 2008 by both the Courts below. As one could see from the cross- examination of witnesses that this accused admits of leaving the village and coming back only several days later. It seems he contended that the father of the victim girl was proclaiming to kill him and therefore, he even lodged a complaint with police. Both the Courts below accepted that as fact. If that is considered as a fact proved, one should see as to why the father of the victim girl was proclaiming to kill the accused. Was it because his minor child was molested or was it because of the alleged non-descript dispute between parents of PW.2/grandparents of PW.1 and the parents of accused. In the light of the facts and circumstances available on record, it was only with reference to the indignity the family suffered, PW.2 was prowling for accused on smelling that accused remained scarce for their grasp. This immediate conduct post event is one circumstance that adds strength to the credibility of prosecution version. Record discloses full particulars and evidence from prosecution and no particulars and no valid defence from accused. Courts below rightly recorded that the delay in lodging F.I.R. for 25 days was fully explained by the prosecution through its witnesses and that explanation was 15 Dr. VRKS, J Crl.R.C.No.1501 of 2008 found to be genuine and credible. In what manner that appreciation of evidence is incorrect is to be shown by the revision petitioner. This Court must say that there is absolutely no endeavour from the revision petitioner in sustaining that contention he raised in the revision petition. PW.1 being the victim is the one who was supposed to speak and she spoke to the facts. PWs.5 and 6 are elders and well-wishers of the villagers. They have neither affinity with other witnesses for prosecution nor were shown to have any antagonism against the accused or his family members. Therefore they are neutral witnesses and disinterested witnesses. PW.8 is the investigating officer who has no connection with either of the parties except having his duty to investigate which he did it according to law. He cannot be stated to be an interested witness especially when his evidence merely spoke about collection of evidence and nothing else. PW.4 is the very relative and that too a close relative of accused having spoken against the accused and having not been shown to be holding any malice against the accused is certainly a virtuous witness and he cannot be said to be an interested witness. It seems his interest lies in the interest of justice and nothing else. PW.3 is junior paternal 16 Dr. VRKS, J Crl.R.C.No.1501 of 2008 aunt of PW.1. She is dubbed as interested witness by the revision petitioner. He has not shown any particular desire in PW.3 to see that an innocent is implicated and punished. Nothing was brought from her mouth by the defence as to why she was inclined to speak facts against the accused. Thus, what she spoke on oath was only what she witnessed and nothing else. Mere relationship does not make a witness a witness of suspicion. An interested witness is one who is particularly inclined to speak falsehood and implicating an innocent. On analysis of evidence of PW.3, no such thing could be deciphered. Therefore, calling her as an interested witness is against the terms of the law and is also against the material on record. PW.2 is the father. It is not known as to why defence could say that a father should not be interested in the welfare of his daughter. In fact PW.2 if really intended to speak falsehood could have stated that he also witnessed the crime incident. From the facts it is seen that even at the cost of the trouble suffered by his own daughter, he obliged the words of village elders and waited for 25 days. That itself would indicate that he was searching for justice first in the village and then through process of law. It is difficult to say a man of that character as 17 Dr. VRKS, J Crl.R.C.No.1501 of 2008 an interested witness. The tendency of the defence to categorize every witness as interested witness is nothing short of vexatious contention. There is absolutely no reason to call any of the witness as tainted or interested. Therefore, this contention of the revision petitioner is baseless and meritless.
15. The revision petitioner states that in Ex.P.1 complaint the victim girl omitted to mention about kiss on her lips and cheek and she brought those statements only in her sworn evidence and therefore, she is a liar. Be it noted that on a perusal of the cross-examination of PW.1, the accused was suggesting about the number of rooms in the house of PW.1 and where the furniture was lying etc. All of it would show that the accused has full acquaintance of the house and the setting in the house. The evidence of PW.1 that the accused reached her physically and closed her mouth and caught her tight by the accused and that the accused threw her out on the cot and was lifting her dress are all facts and these facts that are deposed by witness on oath found full corroboration from her earlier statement in Ex.P.1 in terms of Section 157 of the Indian Evidence Act. That she missed out mentioning about kisses in her Ex.P.1 may be considered as an embellishment brought out by her in her 18 Dr. VRKS, J Crl.R.C.No.1501 of 2008 evidence or that she missed out mentioning them in Ex.P.1 out of her inability to record facts very comprehensive. In either of the events that one piece of statement cannot make any reasonable prudent man to discard the rest of her evidence. At any rate, the manner in which this aspect of the matter was dealt with by both the Courts below is on sound reasoning. Not a single area is shown by the revision petitioner as to how the Courts below erred in appreciating the evidence.
16. A reading of the judgments of the Courts below and the entire evidence led by prosecution and defence, this Court should say that both the Courts below considered all that is relevant and gave appropriate reasons and reached to appropriate conclusions. They did not consider anything that was not part of the record. The evidence was properly appreciated and no principles of law in appreciating the evidence were violated. This revision petitioner failed to show any irregularity or illegality or impropriety in the judgments of the Courts below. There is absolutely no merit in this revision.
17. Learned counsel for revision petitioner submits that in the facts and circumstances of the case, the sentence inflicted is too 19 Dr. VRKS, J Crl.R.C.No.1501 of 2008 large and harsh where the man/revision petitioner was found using criminal force or assault against the girl.
18. Learned Special Assistant Public Prosecutor submits that Courts have to maintain proportionality in sentencing the guilty. The incident occurred in the year 2006. Thus, for the last 17 years the proceedings have been pending at one Court or the other. The revision petitioner is a married man with children. While the modesty of girl/PW.1 was outraged it is to be noticed that no injuries were inflicted on her and the accused/revision petitioner never intended to do any further physical harm or harm to her reputation or her property. According to the record, it is his first offence. Considering these facts and circumstances, this Court is of the opinion that the sentence imposed against the revision petitioner/accused by both the Courts below is on harsher side. Therefore, it is found appropriate to alter the sentence imposed by the Courts below.
19. In the result, this Criminal Revision Case is allowed in part modifying the judgment dated 16.09.2008 of learned Principal Sessions Judge, East Godavari, Rajahmundry in Criminal Appeal No.180 of 2008 and the judgment dated 20 Dr. VRKS, J Crl.R.C.No.1501 of 2008 31.03.2008 of learned Assistant Sessions Judge, Ramachandrapuram in Sessions Case No.333 of 2006. While retaining the fine and the default sentence that were imposed by the Courts below, the substantive sentence of simple imprisonment for five years that was passed by the Courts below is reduced to simple imprisonment for two years. The revision petitioner shall submit himself immediately before the learned trial Court and undergo the punishment, failing which the learned trial Court shall secure his presence and enforce the punishment.
20. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the Court below and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner in Sessions Case No.333 of 2006, dated 31.03.2008, and to report compliance to this Court. Registry is directed to dispatch a copy of this order along with the lower Court record, if any, to the Court below on or before 18.03.2023. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
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Dr. VRKS, J Crl.R.C.No.1501 of 2008 As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 15.03.2023 Ivd 22 Dr. VRKS, J Crl.R.C.No.1501 of 2008 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.1501 of 2008 Date: 15.03.2023 Ivd