Andhra Pradesh High Court - Amravati
Angara Mohana Rao, Another, vs The State Of Ap Rep By Its Pp Hyd., on 4 March, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Revision Case No. 717 of 2008
Criminal Revision Case No. 719 of 2008
COMMON ORDER:
1) These Revisions are filed against the Judgment and conviction in Crl. A. No. 227 of 2007 and Crl. A. No. 228 of 2007. Since, these Revisions are filed against the judgments in appeal, which in turn came to be filed against the Judgment in S.C. No. 205 of 2005, they are disposed off by this Common Judgment.
2) Originally, Accused No. 1 to 4 were tried for the offences punishable under Sections 354, 342 and 323 read with 34 IPC. By its Judgment, dated 08.10.2007, the learned Principal Assistant Sessions Judge, Eluru, convicted all the four accused for the offence punishable under Section 354 read with 34 IPC and sentenced each of them to suffer rigorous imprisonment for a period of 05 years and to pay fine of Rs.500/- in default to suffer simple imprisonment for 03 months. Further, the accused were also convicted for the offence punishable under Sections 342 and 323 IPC and sentenced each of them to suffer rigorous imprisonment for a period of 06 months respectively. The substantive sentences were directed to run concurrently. On appeals filed, the learned Principal Sessions Judge, West Godavari, Eluru, vide its Judgment, dated 01.05.2008, confirmed the conviction and sentence. Challenging the same, the present revisions came to be filed.
3) The facts, in issue, are as under:-
2i. Accused No. 1 is the father of victim girl-PW2. Both Accused No. 1 and PW3 got separated with each other due to some clashes in their domestic life and since then they are living separately. While, the mother [PW3] of the victim girl [PW2] was staying in Komadavolu village, the Accused No. 1 was staying in Denduluru village. PW1 and PW2 were said to have been staying with their father-Accused No. 1. It is said that, Accused No. 2 along with her daughter were staying in the house of Accused No. 1 by preparing food.
ii. While things stood thus, on 15.09.2003 at about 5.00 PM, a quarrel took place between PW2-victim and Accused No. 2 in respect of vessels in the house and in that respects all the accused beat PW2 with hands and also outraged her modesty by removing her clothes from her body. Subsequently, the accused wrongfully confined PW2, who is a deaf and dumb girl, in a room. On coming to know about the same, PW1 and PW3 rushed to the house in which PW2 was confined and rescued her and thereafter, the law was set into motion by lodging the report.
iii. The evidence on record show that, on 15.09.2003 at about 10.00 PM, while PW7-ASI of Police was present in the police station, PW1 to PW3 came to the police station and PW1 lodged a report. Basing on which, a case in Crime No. 95/2003 came to be registered for the offence punishable under Sections 342, 323, 354 read with 34 IPC. Ex.P3 is the 3 FIR. PW7 is said to have examined PW1 and PW3 and recorded the statements, but, could not record the statement of PW2 as she was a deaf and dumb girl. Thereafter, he sent PW2 to Government Hospital for medical examination through PC371 and then proceeded to the scene of offence at the house of accused no. 1. He examined the scene of offence and prepared rough sketch, which is placed on record as Ex.P4. Later, he secured the presence of PW4 and PW5 and recorded their statements.
iv. PW6- the Civil Assistant Surgeon, Government Hospital, Eluru, examined PW2 on 16.09.2003 at 12.30 PM and issued Ex.P2 wound certificate. According to him, an abrasion of 3 x 3 centimeters over medial aspect of left ankle brownish read in colour; and an abrasion of 1 x 1 centimeter over lower lip, was found.
v. PW7 who continued the investigation arrested the accused on 17.09.2003 at 6.30 PM at his house. On the next day, he is said to have arrested Accused No. 3 and 4 at the house of Accused No. 4 and sent them to custody. LW-8 Ch.
Rambabu, SI of Police, took up further investigation in the matter. He verified the investigation done by PW7 and filed a charge-sheet, which was taken on file as P.R.C. No. 62 of 2004 on the file of II Additional Judicial First Class Magistrate, Eluru.
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4) On appearance of the Accused, copies of all the documents, as required under Section 207 Cr.P.C., were furnished and charges as referred to above came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
5) In support of its case, the prosecution examined PW1 to PW7 and got marked Ex.P1 to Ex.P4. After completing the prosecution evidence, the Accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but did not adduce any oral or documentary defence evidence.
6) Believing the evidence of PW1 to PW3, more particularly, the evidence of PW2, the learned Sessions Judge convicted the accused. Aggrieved by the Judgment of conviction in Appeal, these two Revisions came to be filed.
7) Sri. G. Venkateswar Rao, the learned Counsel for accused would submit that, there are clear indications to show that a false case has been foisted using PW2 in view of the dispute between the families. According to him, when PW2 tried to commit suicide by pouring kerosene, the accused removed her clothes and thereafter confined her in a room. He submits that the suggestions given and the version of PW2 amply establishes that it was a case where she attempted to commit suicide and when she was forcefully leaving the house, accused no. 3 and 4 obstructed her and brought her 5 and thereafter accused no. 1 who is her father removed the clothes to save her and then put her in a room. He submits that, PW1 and PW3 are not in good terms with accused no. 1 and they foisted a false case against the family members by taking the help of an interpreter in whose school PW2 studies. He took me through the evidence of PW1 to PW5 in support of his plea.
8) The same is opposed by the learned Public Prosecutor contending that there is no need for PW2 to speak falsehood against accused no. 1, more so, when she is staying along with accused no. 1. He further pleads that, though accused no. 3 and 4 only prevented PW2 from leaving the premises, but, the same is being done only with a view to outrage her modesty and wrongfully confined her in a room.
9) In order to appreciate the rival contentions, it would be just and necessary to refer to the evidence available on record, which is in the form of PW1 to PW5.
10) PW1 is the mother of the victim girl [PW2]. In his evidence, PW1 states that, A1 is his father, while A2 is the kept mistress of A1. A3 is the tenant and A4 is a tractor driver. On 15.09.2003 at about 5.00 to 6.00 PM, A1 was trying to lock the room by keeping PW2 in a room. At that time, PW2 came outside by pushing A1 and meanwhile, A3 and A4 caught hold of PW2, dragged her to a room and beat her with hands and sticks indiscriminately and tried to lock the door. Meanwhile, neighbors gathered there. He further states that, he was not present in the house at that time. According 6 to him, he returned home at 7.20 PM and at that time his sister [PW2] informed the same to him through gestures. He further states that, PW1 told him that A1 and A2 removed her clothes, closed her mouth with cloth pieces and detained her in a kitchen. He further states that, by the time he went to the house, police were present in the house and there PW1 drafted the report, went to the police station and gave it to the police. He also speaks about police referring PW2 to the hospital for medical examination. He further states that, when police examined PW2, he translated her gestures. He states that, A1 and A2 intended to kill him and PW2 to give the property to A2 and they were planning it since six months.
11) From the evidence in chief of PW1, it is clear that, he was not present in the house at the time when the incident took place. He returned home at about 7.20 PM, by which time, the police were present in the house. PW2 is said to have informed him about the incident and also about the involvement of the accused by gestures and signs to PW1. According to PW1, A1 and A2 were planning to kill PW1 and PW2 to knock away the property.
12) In the cross-examination of PW1, it has been elicited that, he does not know whether his maternal grandfather retired as A.S.I. According to him, himself, his mother and sister filed M.C. No. 26 of 1996 on the file of II Additional Judicial I Class Magistrate, Eluru against A1 for maintenance, which was allowed and maintenance was granted to them except to the mother. PW1 7 admits that, he does not know whether civil or criminal cases filed between them and A1. Further, he admits that, his mother lodged a report against A2 and her daughter allegedly trying to kill his sister by tying a chain. PW1 admits that, he did not mention the case details in Ex.P1 report. According to him, from the next day of the incident, they have been staying in the house of her maternal grandfather at Palagudem village. To a suggesting that by 15.09.2003 PW2 was not present in Dendulur village was denied by him. PW1 further admits that, three months prior to the present incident, A1 and A2 took PW2 to railway track with an intention to kill her, but, no police report was given about the incident against A1 and A2. The same was also not informed to others. It was further elicited in the cross-examination that PW1 did not file any suit against partition alleging that it was an ancestral property. All the other suggestions made were denied by PW1. Therefore, from the answers elicited in the cross-examination of PW1, it is very clear that there were disputes between A1 and PW1 to PW3 and not only criminal cases, but also civil disputes came to be filed against A1, apart from maintenance case.
13) PW2 is the victim girl, who is deaf and dumb. Hence her tutor in deaf and dumb school was taken as translator to interpret her gestures. According to PW2, A1 is her father. A2 is second wife of A1. PW1 is her elder brother. According to her, since August 2003 her father was living separately with A2. On 15.09.2003 after 5.30 PM, A1 and A2 beat PW2 at the house and when she tried to come out of the house, A3 caught hold of her legs and A2 caught hold of 8 her neck. Her evidence further discloses that A1 closed her mouth and thereafter, A1 and A2 removed her clothes and then she became unconscious. Two hours thereafter, she regained consciousness. According to her, A1 and A2 removed her clothes and as she felt ashamed, poured kerosene herself on the body. After her mother came there, gave clothes to her. Police came and took her to police station. In the cross-examination, it has been elicited that, the translator is her tutor. To a suggestion that, no incident as alleged took place on 15.09.2003 was denied by her. To a further suggestion that, at the instance of her mother, she is speaking falsehood and the accused did not beat her or removed clothes were denied by her. To a suggestion that she is speaking false was denied by her.
14) What emerges from the evidence of PW2 is that, on 15.09.2003 at about 5.30 PM, A1 and A2 beat her at the house and when she was trying to escape, A3 caught hold of her legs, A2 caught hold of her neck and when she raised cries, A1 closed her mouth and thereafter, A1 and A2 removed her clothes. Feeling ashamed of the same, she is alleged to have poured kerosene on the body. But, one fact which should be noted here that the clothes was not seized. Apart from that, it is to be noted that, her evidence discloses that, being ashamed of the incident of her father removing clothes she poured kerosene herself on her body. From the evidence of PW2, it appears that, after her clothes were removed by her father and her step mother, she felt ashamed and poured kerosene on her body. Immediately, thereafter, she became 9 unconscious and two hours later clothes were given by her. But, if the evidence of PW2 is tested with the evidence of PW3, a doubt arise as to whether really PW2 is speaking the truth.
15) PW3 is none other than the mother of PW1 and PW2. According to her, one Ravi Kumar, who is a Head Constable was her brother. A1 is her husband and she knows A2 to A4. According to her, since five years, A1 is living separately with A2. Herself, PW1 and PW2 together are living in the house of her father. PW2 is a deaf and dumb girl studied upto intermediate at Madona Deaf and Dumb, Gundala, Vijayawada. On 15.09.2003 at about 6.00 or 6.30 PM while she was present in her parents house at Palagudem village, she received phone call from one Ravi Kumar stating that PW2 was beaten and asked her to come to Denduluru immediately. She went to the house of Ravi Kumar, but by then, PW2 was in the house of Ravi Kumar. She found PW2 wetted with kerosene and she asked PW2 as to what happened, she is said to have informed that "at about 5.30 PM, A2 came and shifted household articles and when she interfered her, A1 and A2 pushed her aside and when she tried to come out to inform the police, A1, A2 and A3 caught hold of her, dragged her, detained her in a room and beat her. She further told her that, A1 caught hold of her neck and A2 caught hold of her legs and removed her clothes. She further deposed that, A1 did not beat her. She further stated that, she lost consciousness and after some time gained consciousness and found her clothes removed. She felt ashamed and poured kerosene herself on her body with intent to commit suicide. Meanwhile, 10 neighbors came and rescued her. But, one fact, which is to be noted here is that, the version of PW3 is to the affect that PW2 was wet with kerosene. But, it is not her case that, PW2 was not wearing the clothes at that time, meaning thereby the clothes which she was wearing were wet with kerosene. But, this is not the version of PW2, who in her evidence speaks about pouring kerosene having noticed that there were no clothes on her body. If that is so, the question of clothes being wet with kerosene is highly impossible.
16) Further, in the cross-examination, PW3 admits about the cases which are pending between both the families. Not only M.C. No. 26/1996 was filed against A1 for grant of maintenance by PW3 and children, but, also a Criminal Case No. 824/1996 for the offence punishable under Sections 494 and 498A IPC and also O.P. No. 63/1996 for restitution of conjugal rights, which was allowed. She further admits that there is no property in her name or in the name of PW1 and PW2. In the cross-examination, PW3 admits that, she did not state before police that Ravi Kumar telephoned to her. To a further suggestion that, by the time she went to the house of Ravi Kumar, she was getting kerosene small from PW2 was denied. She further states that, she sent PW1 and PW2 to the house of A1 to collect maintenance amount. She denied that she is speaking falsehood with an intention to harass A1.
17) From the answers elicited in the cross-examination of PW3, it appears that, PW1 and PW2 were sent to the house of A1 to collect 11 maintenance amount and the incident occurred when PW1 went there to collect maintenance amount. But, this version which has been spelled out by PW3 in the cross-examination was not the case of PW1 or PW2. There version is totally different, which runs contrary to PW3, who in her evidence deposed about herself, PW1 and PW2 living together in the house of her father and PW1 was sent to the house of A1 for collecting money.
18) Further, the evidence of PW4 gives a totally different version. According to him, at about 7.30 PM someone came and informed him about a galata going on in the house of A1. Immediately, he rushed there and by that time A1 and A3 caught hold of PW2. There was no clothes on the body of PW2. He asked A1 to leave PW3, then, A1 got angry on him. At that time, A1 to A4 were present. He then informed about the incident to the neighbors and then to the police.
19) It is to be noted here that, according to PW4, at the time of incident, A1 to A4 were present. There were no clothes on the body of PW2 when he went to the house at 7.30 PM. But the evidence of PW1 is to the affect that, the incident happened at about 5.00 PM and while the evidence of PW2 is to the affect that it was 5.30 PM. Even PW3 in her version speaks about receiving a phone call at 6.00 or 6.30 PM. Therefore, this version of PW4 that PW2 was not having any dress on her body even by 7.30 PM cannot be accepted. In-fact, in the cross-examination, he admits that by the time he went to the house of A1 neighbors gathered outside the house. He 12 further admits that, he did not state before police about the persons who gathered at the house of A1. Further, the probability of PW2 being without clothes even by the time neighbors gathered appears to be incorrect for the reason that the evidence of PW3 shows that by 6.00 PM PW2 was in the house of one Ravi Kumar, who is a Police Constable and on the basis of said information, she is said to have gone there. Therefore, seeing PW2 in the house of A1 at 7.30 PM by PW1 and also by PW4 cannot be accepted.
20) Similarly, PW5, who is no other than the person who translated the version of PW2 deposed that, about 13 days prior to the incident, a galata took place between A2 and her daughter and PW2 and they intend to kill PW2. At that time, police interfered and advised A1 to live separately. The neighbors also informed him that A1 to A3 misbehaved against PW2. In the cross-examination, he admits that, he gave evidence in all civil and criminal cases filed by PW1 to PW3 against A1 for the last seven years. From the admissions elicited in the evidence of PW5 that he gave evidence in all civil and criminal cases for the last seven yeas, a doubt arises as to whether, he is really giving the correct translation. Definitely, he cannot be treated as an independent witness, as he has been giving evidence in all the cases filed against A1 to A3. Moreover, he was a tutor to PW2 in the School. Things would have been different had an independent translator was summoned by the court to translate the version of PW2 in-stead of PW5, who can be attributed with an element of bias against A1.
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21) From the evidence of these witnesses, the argument of the learned counsel for the Revision Petitioner that a false case has been foisted cannot be brushed aside, more so, in view of the admissions by PW5 in his cross-examination, wherein, he states that, he was a witness in the cases filed by PW1 to PW3 against A1 since last seven years. Further, the inconsistencies which are pointed out earlier, namely, that if really PW2 was undressed at 5.30 PM by A1 and A3, is it possible to believe that she will still remain undressed till 7.30 PM. Though, PW2 claimed to have became unconscious after she was undressed, but, the same also appears to be not consistent. As seen from the evidence on record, in one breadth, PW2 informed PW1 that she became unconscious after being undressed while the other version is that after she was pushed into the room, she found two hours later that her clothes were removed. Then she poured kerosene. If really the version of PW2 is true, definitely, PW3 would have smelt kerosene when she met her at the house of PW4 which again goes contrary to the version of PW2. None of the witness speaks about clothes of PW2 being drenched with kerosene. If that is so, the prosecution should have seized the clothes which are drenched with the kerosene. It is not the case of prosecution that the body of PW2 was emanating the smell of kerosene. Apart from that, as observed by me earlier, the version of PW3 is to the affect that, herself, PW1 and PW2 were living together in the house of her father and she sent PW1 to the house of A1 to collect maintenance money, which is again does not fit in with the version of PW1 and PW2.
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22) It is no doubt true that this is a revision, where, both the courts have concurrently found the involvement of the accused, but, having seen the entire evidence available on record, a doubt arise as to the incident in question, having regard to the disputes between both the families.
23) Accordingly, the Criminal Revisions Cases are allowed. The conviction and sentence recorded against the Petitioners in the judgment dated 08.10.2007 in S.C.No. 205 of 2005 on the file of the Principal Assistant Sessions Judge, Eluru, for the offences punishable under Sections 354, 342 and 323 read with 34 IPC, which was confirmed in Crl. Appeal No. 227 and 2008 of 2007 by the Principal Sessions Judge, West Godavari, Eluru, are set aside. Consequently, the Petitioners shall be set at liberty forthwith, if they are not required in any other case or crime.
24) Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date: 04.03.2020 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Revision Case No. 717 of 2008 Criminal Revision Case No. 719 of 2008 Date: 04.03.2020 SM.