Andhra Pradesh High Court - Amravati
Kalavakolanu Lakshmi Ganapathi, vs Addala Raju And Another, on 27 February, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL REVISION CASE No.614 of 2007
ORDER:
The present Criminal Revision Case came to be filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 by the informant/P.W.1 challenging the judgment, dated 5.2.2007, in Criminal Appeal No.206 of 2005 on the file of the learned II Additional District and Sessions Judge, East Godavari at Amalapuram wherein and where under, the appeal was allowed reversing the judgment, dated 7.12.2005, in Sessions Case No.183 of 2005 on the file of the learned Assistant Sessions Judge, Razole, and acquitting respondent No.1/accused for the offence punishable under Section 354 I.P.C.
2. Originally, A-1 was tried for the offences punishable under Sections 354 and 506 (2) I.P.C. whereas A-2 and A-3 were tried for the offence punishable under Section 506 (2) I.P.C. in Sessions Case No.183 of 2005 on the file of the learned Assistant Sessions Judge, Razole. While acquitting A-1 to A-3 for the offence punishable under Section 506 (2) I.P.C., the trial Court convicted A-1 for the offence punishable under Section 354 I.P.C. and sentenced him to suffer simple imprisonment for a period of five years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two (2) months. Challenging the same, A-1 CPK, J Crl.R.C.No.614 of 2007 2 preferred Criminal Appeal No.206 of 2005 on the file of the learned II Additional District and Sessions Judge, East Godavari at Amalapuram. Vide judgment, dated 5.2.2007, the Criminal Appeal was allowed reversing the judgment of the Sessions Case. Challenging the said judgment, the present revision case came to be filed by the informant/P.W.1.
3. The case of the prosecution is that P.W.1 is the mother of the victim girl, who was examined as P.W.2. P.Ws.3 and 4 are the relatives of P.W.1. The house of P.W.5 is near to the house of P.W.1. P.W.6 is the Investigating Officer who conducted investigation and filed the charge sheet.
4. P.W.2, who was aged about five years on the date of incident, was studying I Class in the river side school in Moripodu Village. A-1 was also a resident of the same village and his house is situated at some distance from the house of P.W.1. It is stated that on the date of Deepavali in the year 2004, when P.W.2 was playing in front of her house, A-1 wrongfully confined her at his house, made her to sleep on the bed naked, touched her private parts and later, kissed them. Again, on 12.4.2005 evening, A-1 took P.W.2 inside the house and did the same thing which he did on Diwali day. Further, he is said to have committed the said act of CPK, J Crl.R.C.No.614 of 2007 3 making P.W.2 lie on a cot. Being afraid, P.W.2 raised cries and on hearing the same, P.W.1 rushed there and noticed P.W.2 lying naked on the cot and A-1 kissing on her private parts. On seeing P.W.1, A-1 ran away. P.W.2 is said to have disclosed about the same to P.W.1, who informed about the incident to P.W.4 - Akula Kanakadurga, and thereafter, they went to the house of A-1 and questioned about the same. A-1 to A-3 threatened and proclaimed that if they inform about the incident to others, they would kill them. After informing the family members about the incident, a report came to be lodged on 14.4.2005 before P.W.6 - Assistant Sub Inspector of Police. Ex.P-1 is the report. Basing on the said report, a case in Crime No.32 of 2005 of Sakhinetipalli Police Station came to be registered for the offences punishable under Sections 342, 354 and 506 read with 34 I.P.C. Ex.P-2 is the original F.I.R. On the same day, P.W.6 secured the presence of P.Ws.1 and 2 and recorded their statements. He then visited the scene of offence and prepared a rough sketch under Ex.P-3, examined P.Ws.3 to 5 and Akula Mahalaxmi and Akula Mahalaxmi Prasad (L.Ws.5 and 6) and recorded their statements. On 15.4.2005, he is said to have arrested the accused at about 12:30 P.M. near main road, Antervedipalem and sent them to judicial remand. After completing the investigation, police filed a charge CPK, J Crl.R.C.No.614 of 2007 4 sheet for the offences punishable under Sections 342, 354 and 506 read with 34 I.P.C. before the learned Additional Judicial Magistrate of First Class, Razole, which was taken on file as P.R.C.No.8 of 2005.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied and the case was committed to Sessions under Section 209 Cr.P.C., as the offence punishable under Section 354 I.P.C. is triable by a Court of Sessions.
6. Accordingly, the same was made over to the Court of the learned Assistant Sessions Judge, Razole for trial and disposal in accordance with law.
7. Basing on the material available on record, charges under Sections 354 and 506 (2) I.P.C. came to be framed against A-1 and under Section 506 (2) against A-2 and A-3, read over and explained to them in Telugu, to which they pleaded not guilty and claimed to be tried.
8. To substantiate its case, the prosecution examined P.Ws.1 to 6 and got marked Exs.P-1 to P-3. After the closure of the prosecution evidence, the accused were examined under Section CPK, J Crl.R.C.No.614 of 2007 5 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral evidence was adduced on behalf of the accused but Exs.D-1 and D-2 were marked.
9. Believing the evidence of P.Ws.1 and 2, the trial Court convicted A-1 for the offence punishable under Section 354 I.P.C. while acquitting A-2 and A-3. On appeal by A-1, the same was reversed. Challenging the same, the present revision came to be filed by the informant/P.W.1.
10. Sri N.Siva Reddy, learned counsel for the petitioner, contends that having held that the evidence of P.W.2 does not appear to have been a tutored one, erred in rejecting the same. He further pleads that the minor alterations/contradictions, if any, in the F.I.R., do not go to the root of the matter and it is only the Investigating Officer, who can explain the alleged contradictions. The finding of the appellate Court that P.W.1 failed to explain the alterations in the F.I.R. is absurd. He further contends that in the absence of any motive for P.W.2 to file a false case against the accused, it is a fit case which is required to be remanded to the appellate Court for rehearing of the appeal.
CPK, J Crl.R.C.No.614 of 2007 6
11. On the other hand, learned counsel appearing for respondent No.1/accused would contend that the findings of the appellate Court with regard to the contradictions in the F.I.R. and the evidence of P.W.2 are sufficient to throw out the case of the prosecution. The appellate Court acquitted the accused mainly on the ground that there are alterations in the F.I.R. and basing on the version of P.W.2 with regard to coming home alone after school hours, which do not affect the case of the prosecution.
12. P.W.1 in her evidence deposed that her daughter was studying 1st Standard, in river side school, which is situated near to her house. Herself, her cousin by name Akula Ramana Kumar @ Pedababu or her maidservant used to take her daughter to school and also bring her back to the house. On the last Deepavali day, her daughter informed her that while she was playing, A-1 took her to his house, made her naked, touched her private parts with his hands and kissed on her private parts. She informed the same to P.W.4 - Akula Kanakadurga. They questioned A-1, who denied the same. On 12.4.2005, at about 4:00 P.M., while she was going to school to bring her daughter and when she reached the house of A-1, she heard the cries of her daughter. Then, she entered into the house of accused and she found her daughter CPK, J Crl.R.C.No.614 of 2007 7 lying naked on a cot. A-1, who was in the room, on seeing her, ran away. She dressed her daughter and brought her to the house. On questioning, her daughter informed her that when she was returning from the school, A-1 took her inside the house by placing her school bag on the steps and made her naked, kissed her private parts and also touched her private part with his hands. She informed the incident to P.W.4 Kanakadurga and both of them went to the house of A-1 and questioned him. Then, A-1 to A-3 proclaimed that they would kill them. The neighbours admonished the accused and sent them away. She informed the news to her family members and later, on 14.4.2005, she lodged Ex.P-1 report to the police.
13. Before recording the evidence of P.W.2, the trial Court questioned her and after being satisfied with regard to her capacity to give statement, proceeded to record her evidence. She, in her evidence, deposed that P.W.1 is her mother and she knows the accused. According to her, her maid servant used to take to school and bring her back from school. She further states that her school, which is near to her house, would be over by 4:00 P.M. She further states that if her mother or others do not turn up, she herself will return from the school. On one day evening, while she CPK, J Crl.R.C.No.614 of 2007 8 was returning from school, A-1 removed her school bag and placed the same on the steps, took her inside the house, removed her clothes, touched her private parts (the place wherefrom she passes urine) and pressed her private parts. When she raised cries, A-1 threatened her not to disclose the same to anyone. On hearing the cries, P.W.1 came and on seeing her, A-1 ran away. Pedababu (L.W.3) and Durga also (L.W.4) asked her about the incident. P.W.2 claimed to have informed about the incident to P.W.1. She further stated that A-1 committed the very same thing on Diwali day. Later on, law was set into motion basing on the report lodged by P.W.1. She further admits that when questioned, she informed the same to them.
She was subjected to lengthy cross examination but nothing came to be elicited so as to discredit her testimony. She categorically states that she was taken to the police station on the next day of the incident. She further admits that on the next day of the incident, she attended the school and thereafter, no examination was conducted as they were complete by then. It has been elicited that on the day when she was taken to the police station, she attended the school and in the evening, she was taken to the police station by P.W.1. As such, P.W.1 and one Boby uncle CPK, J Crl.R.C.No.614 of 2007 9 went to the police station. According to her, police asked her in the police station like a judge. To a suggestion, she states that she did not state before the police that on the date of incident, she appeared for an examination in the school. It has been elicited in the cross examination that A-1 took her to the room which was adjacent to the steps. When asked as to whether she has seen the counsel for the accused previously, she stated that she has not seen him previously. She further states that she knows that if she tells lies, she will be punished. To a suggestion as to whether she has seen Public Prosecutor before coming to Court, she says "yes". According to her, on that day morning, they visited the office of the learned Public Prosecutor along with her parents. However, she categorically states that she was not asked to give a particular answer in the Court to particular questions. However, she says that she has to answer the questions put to her. To a suggestion that she is speaking false is denied by her.
14. From the evidence of P.W.2, it is very clear that she is not tutored by her parents or the learned Public Prosecutor before entering the box. The cross examination done by the learned counsel for the accused does not, in any way, prima facie indicate that nothing useful was elicited through her. Apart from that, it is CPK, J Crl.R.C.No.614 of 2007 10 to be noted that even the appellate Court categorically said that the deposition of P.W.2 does not appear to have been tutored but however, disbelieved the version of P.W.2 as there is some doubt that if someone comes and picks her regularly, there is no justification for her to come home alone. But in fact, the finding given by the appellate Court is answered by P.W.2 in her evidence wherein she says that at times, when nobody comes to pick her up, she alone comes as her house is very near to her school.
15. Coming to the alleged alterations in the F.I.R., the finding of the appellate Court is that P.W.1 failed to answer the alterations. Definitely, it is for the Investigating Agency to answer the same with regard to the alleged minor alterations in the F.I.R. but nothing has been suggested to P.W.6 with regard to the alleged alterations in the F.I.R. It may be true that there is some over writing on the number "2", while referring to the crime number and also writing the word "Thursday" instead of "Tuesday" but these things, prima facie, do not go to the root of the matter when no motive was suggested to P.W.2 to speak false.
16. Insofar as the evidence of P.W.1 is concerned, a suggestion was given that her father, under the influence of police, got the case foisted, but the same was denied. Insofar as the contents of CPK, J Crl.R.C.No.614 of 2007 11 Ex.P-1 are concerned, a suggestion was given that the same was prepared with the help of a legal adviser to fabricate the case against the accused and that is why, there are corrections in the F.I.R., but the same was denied. Even assuming for the sake of argument that there were some disputes between the two families, the reason for disbelieving the evidence of P.W.2 by the appellate Court is not convincing. Hence, having regard to the evidence of P.Ws.1 and 2, in my view, the appellate Court has not properly appreciated the evidence. Hence, it is a fit case where the matter requires to be remanded to the appellate Court for re-appreciating the evidence of P.Ws.1 to 4, more particularly, the evidence of P.Ws.1 and 2, having regard to the finding of the appellate Court that P.W.2 is not a tutored witness.
17. Accordingly, the Criminal Revision Case is allowed setting aside the judgment, dated 5.2.2007, in Criminal Appeal No.206 of 2005 on the file of the learned II Additional District and Sessions Judge, East Godavari at Amalapuram and the matter is remanded back to the appellate Court for deciding the matter on merits. It is made clear that the appellate Court shall not be influenced by any findings given by this Court in this revision and observations made are only for the purpose of this order.
CPK, J Crl.R.C.No.614 of 2007 12 Consequently, miscellaneous petitions pending, if any, in this Criminal Revision Case shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR Date: 27.02.2020 AMD CPK, J Crl.R.C.No.614 of 2007 13 137 THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR CRIMINAL REVISION CASE No.614 of 2007 Date: 27.02.2020 AMD