HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.794 OF 2009
JUDGMENT:
1. The appellant is convicted for the offence under Section 376(f)of IPC r/w Section 511 of IPC and sentenced to undergo rigorous imprisonment for a period of ten years vide judgment in SC No.435 of 2008 dated 14.07.2009 passed by the Assistant Sessions Judge, Nalgonda. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that the appellant resides in the same village where P.Ws.1 to 3 reside. PWs.1 and 2 are the parents of P.W.3, the victim girl. The victim girl was aged about 7 years when the incident occurred. It is the case of the prosecution that P.W.1, who is the father of the victim girl filed a complaint Ex.P1 stating that when P.W.1 and his wife, P.W.2 went to attend agriculture work, the appellant who is resident of the same village took P.W.3 to his house on the premise of giving chocolate and he removed the underwear of P.W.3 and also removed his underwear and laid on her. The said incident was known on the next day when P.W.2 tried to bathe 2 P.W.3 and that is when P.W.3 victim girl informed P.W.2 that she was getting pain in her private parts. When questioned she has narrated the incident.
3. P.Ws.1 and 2 who are parents have stated about P.W.3 intimating them about the acts of the appellant. The victim girl P.W.3 was examined in the Court. During her examination preliminary questions were put by the learned Assistant Sessions Judge to ascertain the capacity of victim to understand the situation and also to answer the questions. Having found that P.W.3 was mentally alert, the learned Assistant Sessions Judge had recorded the evidence.
4. According to P.W.3, on the date of incident, the appellant carried her to his house and removed her underwear and also his underwear and laid on her by keeping his organ on the place where she passes urine. The appellant also gave 0.50 paise to the victim girl. Due to fear, she did not inform anyone about the said incident. However, on the next day, when she suffered the pain, she had informed the same to her parents P.Ws.1 and 2.
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5. Learned counsel for the appellant would submit that even according to the evidence of P.W.3 in her cross- examination she stated that the appellant and the parents informed as to what to depose in the court. For the said reason of P.W.3 being tutored, the conviction has to be set aside.
6. On the other hand, learned Public Prosecutor submits that the said act of the appellant was on a seven year old girl and such minor discrepancies are bound to occur, for which reason, the finding of the learned Assistant Sessions Judge cannot be interfered with.
7. The evidence of P.W.3 victim girl is that her underwear was removed and appellant laid on her and tried to commit rape on her. Learned Assistant Sessions Judge found that in the complaint and also on the basis of the evidence, there was no penetration to any extent, for which reason, the Assistant Sessions Judge had convicted the appellant under Section 376(2)(f) r/w Section 511 of IPC.
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8. The findings of the learned Assistant Sessions Judge cannot be interfered with. However, the conviction is one under Section 376(1) IPC r/w 511 of IPC, for the reason of the appellant not being a relative, guardian or a teacher or a person in position of trust or authority towards the victim and thereby attempted rape on such victim as required under Section 376(2)(f) of IPC.
9. In the said circumstances, the appellant is convicted for the offence under Section 376(1) r/w Section 511 of IPC and sentenced to undergo rigorous imprisonment for a period of five years. The period of judicial custody shall be set off under Section 428 of Cr.PC.
10. In the result, the Criminal Appeal is partly allowed. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
__________________ K.SURENDER, J Date: 24.08.2022 kvs 5 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.794 OF 2009 Date: 24.08.2022.
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