Andhra Pradesh High Court - Amravati
This Criminal Revision Case vs Unknown on 16 March, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.1937 OF 2004
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the petitioner, who was the appellant (A-1) in Criminal Appeal No.37 of 2002, on the file of the Court of VI Additional District and Sessions Judge (Fast Track Court), Narsapur (for short, 'the learned Additional Sessions Judge'), challenging the judgment therein, dated 16.11.2004, where under the learned Additional Sessions Judge, dismissed the Criminal Appeal, confirming the conviction and sentence of the appellant under Section 451 of the Indian Penal Code, 1860 (for short, 'the IPC') and modified the conviction and sentence from Section 376 R/w.511 IPC to that of Section 354 IPC and sentenced the appellant to suffer Rigorous Imprisonment for two years for the offence under Section 354 IPC besides maintaining the fine imposed by the Assistant Sessions Judge, Narsapur (for short, 'the learned Assistant Sessions Judge') in S.C. No.109 of 20003, dated 14.02.2002.
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2. The parties to this Criminal Revision Case will hereinafter be referred to as arrayed before the trial Court, for the sake of convenience.
3. Sessions Case No.109 of 2000 arose out of the committal order in PRC No.12 of 1999 on the file of the Court of Judicial First Class Magistrate, Palakol. The case of the prosecution, in brief, according to the charge sheet filed pertaining to Crime No.3 of 1999 of Poduru Police Station is that A-1 is the son of A-2 and resident of Pappugunta, H/o.Jagannadhapuram of Poduru Mandal and they belonged to Scheduled Caste. One Kolli Karuna Devi @ Karuna Kumari was the daughter of Narasimha Murthy, aged 19 years and belonged to Scheduled Caste (Mala) (the deceased) and she was resident of Pappugunta, H/o.Jagannadhapuram of Poduru Mandal. She used to reside in her own house along with LW.2 - Jillella Bhudevi (grandmother). Parents of the deceased were at Kuwait. She studied up to Intermediate. LW.2 is maternal grandmother of the deceased. LW.3 - Kolli Maraiah and LW.4 - Kolli Kanthamma are the grandparents of the deceased (father's parents). LW.5 - Koyya Emeliamma is the maternal aunt of the deceased. Rapaka Mary, Chadalavada Vimala, Kodamanchili 3 AVRB,J Crl.R.C. No.1937/2004 Srirama Murthy, Muppidi Venkanna and Kondeti Adinarayana are the independent witnesses.
On 29.01.1999 at 03:00 p.m. Kolli Karuna Devi @ Karuna Kumari (hereinafter referred to as the 'deceased') was alone present in the house. Taking advantage of it, A-1 trespassed into the house situated at Pappugunta, H/o.Jagannadhapuram of Poduru Mandal and made an attempt to commit rape on her forcibly gagging her mouth. Then, she raised the cries for help. On hearing the cries of the victim, the above persons rushed to the house of the victim. They identified the accused (A-1) committing the offence. On seeing them, A-1 absconded. During the absence of the grandmother of the victim, the offence took place. The above named persons along with the victim proceeded to the house of A-2 and reported the offence before A-2 against A-1. A-2 abused the victim in filthy language, insulted her chastity in the public place. The victim felt insulted, left the place, reached the house and consumed pesticide poison at about 04:30 p.m. on that day. While she was vomiting, LWs.6 to 11 saw it and took her to a private nursing home at Martair and Penugonda to save her. But, she lost her breath. The dead body of the deceased was shifted to the house premises of LW.2. LW.2 came to know about the facts of occurrence.
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AVRB,J Crl.R.C. No.1937/2004 LW-1 - D. Ravi, VAO, visited the scene of offence and found the dead body of the deceased. Hence, he prepared a report and presented it to SI of Police, Poduru Police Station. On the strength of his report, SI of Police registered a case in Crime No.3 of 1999 under Section 174 Cr.P.C. on 29.01.1999 at 10:30 p.m. and investigated into.
On 30.01.1999, inquest was held over the dead body of the deceased in the presence of LW.1 - VAO and LW.14 - Sannamanda Rajarao and LW.13 - Kondeti Challa Rao. It was opined that the deceased committed suicide due to the acts of A-1 and A-2. On the strength of it, the SI of Police altered the Sections of law to Sections 448, 376 R/w.511 IPC and 306 IPC and issued altered FIR and further continued the investigation. He got referred the dead body of the deceased for post-mortem examination. LWs.15 and 16, team of doctors, conducted autopsy over the dead body of the deceased and preserving viscera, issued preliminary postmortem certificate with pending opinion. The SI of Police prepared letter of advice and sent the material objects to RFSL, Vijayawada for analysis and report. On the basis of it, the team of doctors issued final opinion with regard to the death of the deceased i.e., the deceased would have died of phorate which is an organophosphate insecticide poison about 18 to 24 hours prior to 5 AVRB,J Crl.R.C. No.1937/2004 post-mortem examination. On 31.01.1999, the SI of Police arrested the accused and sent him for remand. Hence, A-1 is liable for punishment under Sections 448, 376 R/w.511 IPC and Section 306 IPC and further A-2 is liable to be punished for the offence under Section 306 IPC as he abetted the commission of the suicide.
4. The learned jurisdictional Magistrate took cognizance of the case under the above provisions of law and after complying the necessary formalities committed the case to the Court of Sessions. The Court of Sessions after numbering the case as Sessions Case made over the same to the learned Assistant Sessions Judge. The learned Assistant Sessions Judge on appearance of the accused framed charges under Sections 451 IPC and 376 R/w.511 IPC against A-1 and charge under Section 306 IPC against A-2 and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.
5. During the course of trial before the learned Assistant Sessions Judge, on behalf of the prosecution, PWs.1 to 10 were examined and Exs.P-1 to P-15 were marked and during the course of cross-examination of PW.5, Ex.D-1 was marked. Further, MOS.1 and 2 were marked.
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6. After closure of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the incriminating circumstances. They did not let in any defence evidence.
7. The learned Assistant Sessions Judge, on hearing both sides and after considering the evidence on record, found guilty of A-1 of the charges and convicted him under Section 235(2) Cr.P.C. After questioning him about the quantum of sentence, the learned Assistant Sessions Judge sentenced him to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for one month for the offence under Section 451 IPC and further sentenced him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.400/- in default to suffer Simple Imprisonment for two months for the offence under Section 376 R/w.511 IPC and that both the sentences shall run concurrently. The learned Assistant Sessions Judge found A-2 not guilty of the charge under Section 306 IPC and acquitted him under Section 235(1) Cr.P.C.
8. A-1 felt aggrieved of the judgment in S.C. No.109 of 2000, dated 14.02.2002, filed the aforesaid Criminal Appeal before the 7 AVRB,J Crl.R.C. No.1937/2004 learned Additional Sessions Judge, Narsapur. The learned Additional Sessions Judge, dismissed the Criminal Appeal confirming the conviction and sentence under Section 451 IPC and modified the conviction under Section 376 R/w.511 IPC to that of the offence under Section 354 IPC and sentenced him to suffer Rigorous Imprisonment for two years under Section 354 IPC besides maintaining the fine amount imposed by the trial Court and both the sentences shall run concurrently.
9. As against the above said judgment of the learned Additional Sessions Judge, the unsuccessful appellant therein filed the present Criminal Revision Case.
10. Now, in deciding this Criminal Revision Case, the point that arises for consideration is as to whether the judgment in Criminal Appeal No.37 of 2002, dated 16.11.2004, on the file of the Court of VI Additional District and Sessions Judge (FTC), Narsapur suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the impugned judgment?
11. POINT: Sri A.S.K.S. Bhargav, learned counsel, representing Sri P. Durga Prasad, learned counsel for the revision petitioner, would contend that the learned Assistant Sessions Judge, while 8 AVRB,J Crl.R.C. No.1937/2004 disbelieving the case of the prosecution against A-2 under Section 306 IPC, believed the case of the prosecution against A-1 for the charges under Sections 451 IPC and 376 R/w.511 IPC without proper reasons and even the learned Additional Sessions Judge erroneously dismissed the Appeal but however modified the conviction to that of Section 354 IPC from that of Section 376 R/w.511 IPC besides maintaining the conviction and sentence under Section 451 IPC. In Ex.P-1 report lodged by the VAO, there was no whisper as to the allegations under Section 376 R/w.511 IPC. Though the direct witnesses to the occurrence i.e., PWs.4 and 5 claimed that PW.1 enquired them as to what happened but there was no whisper as regards the allegations under Section 376 R/w.511 IPC. The allegations under Section 376 R/w.511 IPC came to the light of the day only on the next day when the Police proceeded for investigation after conducting inquest over the dead body of the deceased. If really, there was incident under Section 376 R/w.511 IPC or 354 IPC, the direct witnesses would have revealed the same to PW.1 and PW.1 - VAO would have mentioned the same in Ex.P-1. There were disputes between the accused and the Sarpanch of that particular village and on account of the same, the accused was falsely implicated in the case. The testimony of PWs.4 and 5, the so called direct witnesses, suffers 9 AVRB,J Crl.R.C. No.1937/2004 with discrepancies, omissions and contradictions. There were no injuries on the person of the victim as regards the allegations of attempt to commit rape. Under the circumstances, the judgment of the learned Additional Sessions Judge is not sustainable under law and facts as such the same is liable to be set-aside.
12. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, would contend that PW.1 was under
the impression that he had to report the un-natural death of the deceased, who consumed poison, to Police and he confined himself only to narrate death of the deceased. He did not think over to make a mention about the act committed by A-1 and A-2 in Ex.P-1. PW.2 was not in the house at the time of offence in question. PWs.4 and 5 were the direct witnesses who supported the case of the prosecution. There were no ill-feelings between PWs.4 and 5 on one hand and the accused on another hand and both the Courts below with cogent reasons believed the case of the prosecution. When the evidence adduced by the prosecution before the Court below was convincing and when the Courts below believed the evidence adduced by the prosecution, this Revision against the concurrent findings of the learned Assistant Sessions Judge and Additional Sessions Judge deserves no merits. What all 10 AVRB,J Crl.R.C. No.1937/2004 the contentions now raised were appropriately dealt with by the learned Additional Sessions Judge as well as learned Assistant Sessions Judge as such the Revision is liable to be dismissed.
13. Ex.P-1 was the report lodged by PW.1, the concerned VAO, bringing about the factum of death of the deceased by consuming pesticide poison. PWs.2 and 3 were not witnesses to the occurrence. They came to know about the occurrence after the incident. It is PWs.4 and 5 who were the direct witnesses to the occurrence, according to the case of the prosecution. As seen from the evidence of PW.1, he deposed that on 29.01.1999 at 07:30 p.m. Village Servant - S. Veeraiah intimated to him that Kolli Karunadevi consumed pesticide poison. Then with the help of the village servant, he went to Kappuguntapalem H/o. Jagannadhapuram to the house of Jillella Bhudevi and found the dead body there. He enquired in the neighbourhood. Chadalvada Vimala narrated to him as to what had happened. Then he sent a report to the Poduru Police Station through village servant. Ex.P-1 is the report. On the next day at about 07:00 a.m. Police called him to act as mediator for the inquest over the dead body. Police got drafted the scene observation report, Ex.P-2. He also drafted inquest, Ex.P-3. Police seized the earth where the deceased 11 AVRB,J Crl.R.C. No.1937/2004 vomited. Inquest elders opined that the deceased died by consuming pesticide. The neighbourers told them that there was an attempt to commit rape on her.
14. PW.2 was Jillella Bhudevi. According to her, Kolli Karunadevi is her daughter's daughter. Deceased used to reside in her house prior to her death. Her parents were at Kuwait. She failed in Intermediate and used to stay in the house of her. House of the accused is beside her house intervened by a road. Houses of Mary and Vimala are situated by the side of her house. On 29th of January about three years ago, she went to coolie work. Kolli Karunadevi alone stayed at the house. At 05:30 p.m. she was informed that Karuna Devi died by consuming poison. Immediately, she rushed to the house. Vimala and Mary intimated her that accused (A-1) went into the house, closed the doors and attempted to rape Karunadevi and then they took the victim to the house of the accused (A-2) and questioned them and the wife of A-2 and that they further abused them. So, Kolli Karunadevi consumed pesticide poison. VAO came to their house. Police examined her.
15. PW.3 is also hearsay witness and she claimed to be the relative of Karunadevi. According to her, deceased Karunadevi is 12 AVRB,J Crl.R.C. No.1937/2004 the daughter of her younger brother. She used to reside in her maternal grandmothers house. At about 06:00 p.m. on 29.01.1999, she came to know about the death and went to the house of PW.2, Jillella Bhudevi. Karunadevi already died. When she questioned Vimala and Mary, the neighbourers, they intimated to her that Srinu (A-1) came to rape the victim and that he escaped on seeing them and when they questioned, A-1 and A-2 abused as such deceased died unable to tolerate the abusive words.
16. PW.4 - Mary is the direct witness to the occurrence and according to her, incident took place on 29.01.1999 at 03:00 p.m. By then they were available at their houses. They heard the cries of Karunadevi as 'Baboyi Baboyi'. Then she and her sister-in-law viz., Vimala rushed into the house of PW.2. They pushed the doors and went into the house of Bhudevi and found the deceased lying on the cot in the hold of A-1 Srinu. On seeing them, A-1 fled away from the house by removing the latch of the door on the backward side. They got her up from the cot and brought her outside and asked her as to what happened. She intimated that Srinivas (A-1) caught her. Then they took her to A-2, who is father of A-1, and A-2's wife. She and Vimala asked A-2 about the incident. A-2 13 AVRB,J Crl.R.C. No.1937/2004 asked them and questioned them as to why they were implicating his son when someone else went to Karunadevi. Then they sent Karunadevi to her house stating that the matter would be dealt with after arrival of Bhudevi. At 04:00 p.m. they found Karunadevi when she came out from the house vomiting. She disclosed that she consumed pesticide. Then they called Sreerammurthy and Venkanna and took her to one doctor at Martair, where the doctor did not admit her. Then they took her to Penugonda. On the way to Penugonda, she died. They brought her back at 05:00 or 05:30 pm. Later, VAO came there. On the next day, she was examined by Police.
17. The evidence of PW.5 is that the incident took place on 29.01.1999 at 03:00 pm. By then they were present at their houses. They heard the cries of Kolli Karunadevi. She and Mary rushed to her house. They found A-1 attempting to commit rape on Karunadevi. Karunadevi was lying on the cot. They got doorways on east and west. They pushed the doors and entered into the house. On seeing them, A-1 fled away to west towards backside. Victim was weeping. They questioned her and they were intimated that A-1 tried to commit rape on her person. Then they took her to the father of A-1, who is A-2. They intimated to A-2 14 AVRB,J Crl.R.C. No.1937/2004 about the acts of A-1. A-2 told them that not to make false allegations and he knows the nature of the victim and he abused the victim. Then they sent the victim to the house stating that the matter can be dealt with after arrival of her grandmother. By telling so, they also went to their houses. Later, after half an hour, they found the victim vomiting by coming out from her house. When they questioned her, she intimated that she consumed pesticide. Then they rushed to the house of Srirammurthy and Venkanna and after their arrival to the house of PW.2 they intimated that the victim consumed pesticide. Then in the auto of K. Adinarayana they took the victim to a private doctor at Martair, where the victim was not admitted. Then they took her to Penugonda hospital. By then, she died already. They brought back the dead body and later VAO came there.
18. The evidence of PW.6 - Venkanna in substance is that he heard the cries at the house of PW.2 and then he went there, Mary and Vimala intimated him that victim consumed pesticide and then the victim was taken to hospital in the auto. He made arrangements in this regard to arrange auto. The doctor at Martair refused to admit Karunadevi. Then they took her to Penugonda 15 AVRB,J Crl.R.C. No.1937/2004 after and after she was taken there, doctor intimated that she already died. Then they brought back the dead body of the victim.
19. The evidence of PW.7 is almost similar to that of PW.6.
20. PW.8 is the photographer, who took photos over the dead body of the deceased.
21. PW.9 is the Medical Officer who conducted autopsy over the dead body of the deceased and issued opinion as to the cause of death of the deceased.
22. PW.10 is the Investigating Officer.
23. The facts, which were not in dispute, as seen from the evidence on record, are that the accused was the neighbourer to the house of the victim. The house of the accused and the victim were separated by a road. Victim discontinued her education after studying Intermediate and she was staying in the house of her grandmother. Whenever her grandmother went to fields, victim used to stay alone. PWs.4 and 5 were immediate neighbourers to the house of the victim because their houses were abutting to the house of PW.2. PW.5 was the brother's wife of PW.4 and she was sister-in-law of PW.4. Topographical particulars, as regards the 16 AVRB,J Crl.R.C. No.1937/2004 location of the houses of the accused and PWs.4 and 5, were not in dispute.
24. There was no dispute that the victim was aged about 19 years at the time of offence. There was no dispute that she committed suicide by consuming the pesticide poison. It is altogether a different aspect that the learned Assistant Sessions Judge found A-2 not guilty of the offence under Section 306 IPC. The contention of the revision petitioner is that having disbelieved the case of the prosecution as regards the charge under Section 306 IPC against A-2, the learned Assistant Sessions Judge and the learned Additional Sessions Judge were not justified in convicting the petitioner either under Section 376 R/w.511 IPC or under Section 354 IPC respectively. It is also the contention of the revision petitioner that even the conviction under Section 451 IPC is not sustainable under law and facts.
25. This Court would like to make it clear that simply because the accused (A-2) was exonerated of the charge under Section 306 IPC, it cannot be held that the case of the prosecution was to be disbelieved by the learned Assistant sessions Judge as well as the Additional Sessions Judge. Keeping in view the evidence is to be appreciated 17 AVRB,J Crl.R.C. No.1937/2004
26. As seen from the cross-examination part of PW.1 - VAO, he brought to the notice of the Police about the commission of the suicide by the victim, by virtue of Ex.P-1 report. He was not a witness to the occurrence. Having come to know about the commission of suicide by the deceased through his Village Servant, he visited the house of the victim, caused enquiries with the neighbourers as such sent Ex.P-1 through the Village Servant. Ex.P-1 though did not whisper literally that it was sent by Village Servant, it cannot be held that Police came into possession of Ex.P-1 through other means. PW.10, the Investigating Officer, clearly testified about the receipt of Ex.P-1. In cross-examination, he deposed that it was received by him through the Village Servant. One cannot expect that there should be a whisper in Ex.P-1 that PW.1 was sending Ex.P-1 through the Village Servant. Hence, it is immaterial as to whether PW.10 received Ex.P-1 either through the Village Servant or through somebody else. Hence, the cross-examination done on behalf of the accused either before PW.1 or PW.10 in this regard deserves no merits.
27. Admittedly, as seen from Ex.P-1, it is the written report of PW.1. He intimated to the Police in substance that on 29.01.1999 at 07:45 p.m. he came to know that the deceased consumed 18 AVRB,J Crl.R.C. No.1937/2004 pesticide and committed suicide. He learnt about it through Village Servant. Then he rushed to the house and caused enquiry and learnt that at 05:00 p.m. she consumed pesticide poison as such he is bringing the facts to the notice of the Police. He opined that he does not know the reason for commission of suicide. So a look at the evidence of PW.1 coupled with Ex.P-1 means as he felt that the death of the deceased was un-natural, being a Village Administrative Officer, he though it fit to bring the said fact to the notice of the Police as such sent Ex.P-1 to the Police. It is evident from the cross-examination of PW.1 that soon after knowing about occurrence, he did not make a phone call to Police and did not take any written report either from Rapaka Mary or Chadalavada Vimala and did not record their statements but Mary and Vimala informed him that there was an attempt of commission of rape on the person of the deceased. He admitted that the said allegation is not find place in Ex.P-1. It is the contention of the revision petitioner that, if really, there was an attempt on the part of the accused to commit rape on the victim, certainly the said fact would have been found place in Ex.P-1, especially when PWs.4 and 5 talked with VAO before VAO sending Ex.P-1. Much was argued in this regard before the learned Assistant Sessions Judge as well as learned Additional Sessions Judge. The Courts below 19 AVRB,J Crl.R.C. No.1937/2004 negatived the contention of the accused by giving findings that PW.1 was under the impression to intimate to the Police about the un-natural death of the deceased as such he was not supposed to make an enquiry regarding the case of death etc., This Criminal Revision Case is filed against concurrent findings of the Court below as well as the learned Additional Sessions Judge. So, the scope of the Criminal Revision Case is as to whether the findings of the learned Additional Sessions Judge suffered with illegality, irregularity and impropriety. At this juncture, I would like to refer here Section 40 of Cr.P.C, which reads as follows:
"40. Duty of officers employed in connection with the affairs of a village to make certain report -
(1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer-in-charge of the nearest police station, whichever is nearer, any information which he may possess respecting-
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village;
(b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under Section 143, Section 144, Section 145, Section 147, or Section 148 of the Indian Penal Code (45 of 1860 );20
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(d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, Sections 231 to 238 (both inclusive), 302, 304, 382, 392 to 399 (both inclusive), Sections 402, 435, 436, 449, 450, 457 to 460 (both inclusive), Sections 489-A, 489-B, 489-C and 489- D;
(f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information. (2) In this section,-
(i) " village" includes village-lands;
(ii) the expression" proclaimed offender" includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 302, 304, 382, 392 to 399 (both inclusive), Sections 402, 435, 436, 449, 450 and 457 to 460 (both inclusive);
(iii) the words "officer employed in connection with the affairs of the village" means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village." 21
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28. A close perusal of Section 40 Cr.P.C. reveals that the Village Officer is duty bound to intimate to the Police as to the sudden or un-natural death or of any death under suspicious circumstances in or near such village in circumstances which leads to a reasonable suspicion that such death has occurred, in the circumstances which leads to a suspicion that non-bailable offence has been committed. It contemplates the duties of VAO with regard to the commission or intention to commit certain offences near such village i.e., Sections 143, 144, 145, 147 or 148 IPC and further the offences under Sections 231 to 238, 302, 304, 382, 392 to 399, 402, 435, 436, 449, 457 to 460 and 489-A to 489-D of IPC.
29. Having regard to the above this Court is of the considered view that duty of an Officer like PW.1, employed in connection with the affairs of the Village, was to furnish the information to the Police with regard to the un-natural death and relating to the commission of the offences and intention to commit offences as referred to above. So, PW.1 was not an investigator to ascertain the reasons leading to the death of the deceased. Having regard to the overall facts and circumstances, I am of the considered view that PW.1 was under the impression that he had to report the un- 22 AVRB,J Crl.R.C. No.1937/2004 natural death of the victim to the Police and in that view of the matter, he was not supposed to make any enquiry as to the circumstances which lead to the death of the victim. So, if that be the case, naturally Ex.P-1 would not contain any whisper with regard to the offence alleged against the accused that either he attempted to commit rape or outraged the modesty, as the case may be.
30. Another line of contention of the accused is that according to the evidence of PW.1, in cross-examination, the Investigating Officer made a visit to the scene of offence on the date of offence during the night and examined other witnesses and, if that be the case, PWs.4 and 5 would have revealed the incident to the Police on the same day. It is to be noticed that PW.10 - Investigating Officer specifically deposed that though he registered FIR on the date of offence at 10:30 p.m. having received Ex.P-1 from VAO i.e., PW.1 but after submission of copies, he visited the scene of offence and found the dead body and posted a guard there. He deposed that on 30.01.1999 at 07:30 a.m. he examined the scene of offence in the presence of the mediators and got drafted observation report. He conducted inquest over the dead body of the deceased and during investigation he recorded the statements of Jillella 23 AVRB,J Crl.R.C. No.1937/2004 Bhudevi, Kolli Mariah, Kolli Kanthamma, Koyya Emeliamma, Rapaka Mary, Chadalavada Vimala, Kodamanchili Sriramamurthy, Muppidi Venkanna, Kondeti Adinarayana, Akumarthi Jyothi, Dasika Ravi and Nerili Gangadhara Rao. He prepared rough sketch, which is Ex.P-15. He forwarded the dead body for post-mortem examination. After that he altered the Sections of law to 448, 376 R/w.511 and 306 IPC. He arrested A-1 and A-2 during investigation on 31.01.1999 at 01:40 p.m. In cross-examination, the testimony of PW.10 is not impeached by suggesting to him that he had knowledge about the offence committed by the accused i.e., relating to attempt to rape on the date of offence itself. All this goes to show that virtually PWs.4 and 5, direct witnesses to the occurrence, had no occasion to intimate to the Police on the date of offence with regard to the act alleged against the accused. The Investigating Officer could know about the commission of offence alleged against the accused i.e., the attempt to commit rape only on the next date of the offence. After examining the statements of the witnesses, he altered the Sections of law.
31. As seen from the evidence of PWs.2 and 3, admittedly, they are not the direct witnesses to the occurrence. They came to know 24 AVRB,J Crl.R.C. No.1937/2004 about the occurrence through PWs.4 and 5. They testified that they learnt about the incident through Mary and Vimala. PWs.4 and 5 Mary and Vimala testified this fact.
32. As this Court already pointed out the location of the houses of PWs.4 and 5 abutting to the house of the accused is not in dispute. The location of the house of the deceased and the accused, opposite to each other intervened by a road, is not in dispute. As pointed out above, PWs.4 and 5 categorically testified that on hearing the cries from the house of the victim, they rushed to there and found the accused caught hold of the victim and on seeing them, he absconded from the place of offence. The contention of the accused is that accused family had disputes with the Sarpanch of the Village as such he was falsely implicated in the case on hand. It is to be noticed that during the entire cross- examination of PWs.4 and 5 nothing was elicited to show that they have any motive to depose false against the accused.
33. According to PW.4, in cross-examination, there were clothes on the person of the deceased by that time she and Vimala entered into the house of victim. A-1 was in lungi. A-1 and victim were scuffling. The bed sheet was disturbed. She did not state to Police that A-1 and victim was on the cot and on seeing them A-1 fled 25 AVRB,J Crl.R.C. No.1937/2004 away from the backside door by removing its latch. According to PW.5 in cross-examination, the eastern side doors in the house of victim were not bolted from inside. The clothes of the victim were on her when they found her on the cot. Her clothes were not tore. By the time they saw A-1, he was fleeing away. A-1 having gone out from western side door finally reached to his house. Both PWs.4 and 5 testified that they did not inform the incident to the Police. It is to be noticed that both PWs.4 and 5 have consistently spoken about the presence of the accused in the house of the victim catching hold of her. Whether the clothes of the victim were in torn condition and they were on the body of the victim was not supposed to be spoken by PWs.4 and 5 with mathematical precision. Having considered the testimony of PWs.4 and 5, their evidence with regard to the manner of the incident is totally consistent. They had no motive at all to implicate the accused falsely. Accused failed to connect PWs.4 and 5 with that of the Sarpanch of the village who was alleged to have enmity with the accused family. In my considered view, PWs.4 and 5 are the natural witnesses to the occurrence being adjacent inmates to the house of the accused and they were neighbourers to the house of the victim as well. In my considered view, the act of the learned Assistant Sessions Judge and Additional Sessions Judge in 26 AVRB,J Crl.R.C. No.1937/2004 believing the testimony of PWs.4 and 5 cannot be said to be illegal or irregular.
34. As seen from the testimony of PWs.2 to 7, it is very clear that to save the life of the deceased they made every effort by taking her to hospital. After victim was taken to Penugonda hospital, she was found dead as such they brought the victim back to the village. So, it is a case where PWs.4 and 5 engaged in taking the victim to the Hospital to save her life. In such circumstances, especially when the Village Administrative Officer sent Ex.P-1 to the Police, they were not supposed to go to the Police and lodge a report. Hence, the inability on the part of PWs.4 and 5 to report the matter to the Police is not fatal to the case of the prosecution. When the Investigating Officer did not examine PWs.4 and 5 on the date of offence, they were not supposed to state before the Investigating Officer as to the attempt made by the accused on the victim either to commit rape or that he outraged her modesty. A perusal of the evidence of PWs.4 and 5 undoubtedly goes to show that their evidence is consistent throughout on material aspects and their evidence does not suffer with any infirmities, improvements or contradictions. 27
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35. PW.6 testified the fact that he heard cries from the house of the Kolli Karunadevi and learnt about the incident through PWs.4 and 5 and later he brought an auto to take the victim to the hospital. His evidence is also consistent with the evidence of PW.7, auto driver.
36. There were no infirmities in the case of the prosecution with regard to the photographs taken by PW.8 over the dead body of the deceased and further the action of the Police in conducting inquest over the dead body on the next date of the offence. In my considered view, the learned Additional Sessions Judge rightly appreciated the evidence on record. He appreciated the case of the prosecution and the defence theory in proper perspective by analyzing the evidence on record on each and every aspect and on each and every contention raised by the appellant on sound reasons. The petitioner miserably failed to show that the judgment of the learned Additional Sessions Judge suffers with any illegality, irregularity and impropriety.
37. Though the learned Assistant Sessions Judge found the accused guilty of the offences under Sections 451 and 376 R/w.511 IPC but the learned Additional Sessions Judge minutely examined the case of the prosecution and was of the view that the 28 AVRB,J Crl.R.C. No.1937/2004 prosecution could establish that the accused outraged the modesty of the victim and he dealt with the stages of the commission of the offence i.e., preparation, attempt and commission of the offence as such was of the view that the evidence adduced by the prosecution would not establish that he made an attempt to commit rape but he outraged the modesty of the victim with an evil intention. The said findings of the learned Additional Sessions Judge cannot be said to be un-reasonable, in the light of the nature of the evidence available. Having regard to the above, I see no reason to interfere with the judgment of the learned Additional Sessions Judge in Criminal Appeal No.37 of 2002, dated 16.11.2004.
38. In the result, the Criminal Revision Case is dismissed.
39. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court along with the lower Court record, if any, to the Court below on or before 24.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner (A-1) in S.C. No.109 of 2000, dated 14.02.2002, in terms of the judgment in Criminal Appeal No.37 of 2002, dated 16.11.2004, on the file of the Court of VI Additional District and 29 AVRB,J Crl.R.C. No.1937/2004 Sessions Judge (Fast Track Court), Narsapur and report compliance to this Court. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 16.03.2023 DSH