Andhra Pradesh High Court - Amravati
Assistant Sessions Judge vs Unknown on 3 February, 2021
THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI
Criminal Appeal No.214 of 2018
JUDGMENT:
This Criminal Appeal is directed against the judgment & Order,
dated 05.01.2017, in S.C.No.100 of 2016 on the file of the Court of the
Assistant Sessions Judge, Hindupur, convicting the appellant for
commission of offences punishable under Section 376 read with 511 IPC
and under Section 324 IPC and sentencing him to suffer Rigorous
Imprisonment for a period of eight years and pay fine of Rs.5,000/- in
default to suffer Simple Imprisonment for a period of one month for
commission of offence punishable under Section 376 read with 511 IPC
and to suffer Simple Imprisonment for a period of six months for
commission of offence punishable under Section 324 IPC. Both the
sentences were directed to run concurrently.
2. Prosecution case, as alleged against the appellant, is to the effect
that on 11.07.2015, at 07.45 PM, the appellant came to the residence of
the victim/Pw1 in a drunken state and demanded bajjis. She told the
appellant bajjis were not available. No one was present in the house.
Still, the appellant trespassed into the house, closed the door from
inside, caught hold of the victim and pushed her down. Thereafter, he
lifted her saree and forcibly attempted to commit rape on her. She
raised hue and cry. Her husband and neighbours came to the spot and
caught hold of the appellant. The appellant beat her husband on the
hand and ran away. On the next day, she lodged complaint/exhibit P1
with the police. On the basis of her complaint, Hindupur Rural police
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registered a case for the offences punishable under Sections 324, 376
read with 511 IPC for investigation. The police proceeded to the place of
occurrence, recorded the statements of witnesses, seized broken bangles
from the place of occurrence. Subsequently, the appellant was arrested
on 13.07.2015. PW2, husband of the appellant, was treated in the
hospital. On conclusion of investigation, charge sheet was filed against
the appellant. Case was committed to the Court of Sessions; whereupon,
charges were framed under Sections 376 read with 511 IPC and 324 IPC.
The appellant pleaded not guilty and claimed to be tried. During the
course of trial, prosecution examined eight witnesses, exhibited number
of documents as well as material exhibits. In conclusion of the trial, the
trial Court Judge, by the impugned judgment, dated 05.01.2017,
convicted the appellant and sentenced him as aforesaid.
3. Learned counsel for the appellant submits that there was enmity
between the parties and the allegation of attempt to commit rape is
false. There is delay in lodging the First Information Report and other
evidence on record does not corroborate the version of the victim/PW1
and accordingly, the appellant is to be acquitted.
4. On the other hand, learned Additional Public Prosecutor submits
that the evidence of Pw1 is reliable. PW2 is her husband. Her evidence
is corroborated by not only the evidence of her husband but local
witnesses, PWs 3, 4 and 5. Hence, the appeal may be dismissed.
5. PW1 is the victim and the most vital witness. She deposed on the
fateful evening, at 7.45 PM, she was selling bajjis from her house. The
appellant came in a drunken condition and demanded bajjis. She
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informed him that bajjis were not available. No one is present in the
house at that time. The appellant came into the house, closed the door
from inside. Then, he caught hold of her and pushed her down. He
lifted her Saree and attempted to commit rape on her. She raised hue
and cry. On hearing her cries, her husband/PW2 and neighbours,
namely, PW3/Sarojamma, PW4/Santhamma and others rushed to the
spot. Her husband caught hold of the appellant. He bit him on the hand
and ran away. PW3/Sarojamma consoled her and gave her drinking
water. She narrated the incident to them. As the night had descended
and there was no public conveyance, she came to the police station on
the next day and lodged complaint/ Exhibit P1. She withstood lengthy
cross-examination. She denied any suggestion with regard to enmity
between them over village disputes. The evidence of the victim/PW1 is
corroborated by not only the evidence of her husband/PW2 but also
independent witnesses, PW3/Sarojamma, PW4/Santhamma, and one
Shaik Idris/PW5. All the witnesses in unison stated on hearing hue and
cry, they went to the house and found the appellant there, PW2 caught
hold of the appellant, whereupon, the appellant bit him and ran away.
PW6, Dr.Sivakumar, treated PW2 and found human bite marks on his left
upper arm. He proved Wound Certificate, exhibit P2. The aforesaid
ocular including medical evidence corroborate the version of PW1 in
material particulars. The plea of enmity is not probabilized either
through cross-examination or by leading independent evidence. Hence, I
am of the view that conviction of the appellant on both counts is liable
to be upheld.
6. Coming to the issue of sentence, I note that the appellant does not
have criminal antecedents. He is a villager and has roots in society.
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Balancing the aggravating and mitigating factors, I am of the opinion that
some reduction in sentence would serve the ends of justice.
7. Accordingly, I modify the sentence imposed on the appellant and
direct that the appellant shall suffer Rigorous Imprisonment for a period
of six (6) years and pay a fine of Rs.5,000/- in default to suffer Simple
Imprisonment for one month for commission of offence punishable under
Section 376 read with 511 IPC. The sentence imposed under Section 324
IPC shall remain unchanged. Both the sentences shall run concurrently.
The period of incarceration already undergone by the appellant during
investigation, enquiry and trial shall be set off under Section 428 Cr.P.C.
8. Subject to the above modifications as to sentence, the Criminal
Appeal is disposed of.
Pending miscellaneous applications, if any, shall stand closed.
_________________
JOYMALYA BAGCHI, J
Dt.03.02.2021
RAR
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Crl. Appeal No.214 of 2018
THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI
Criminal Appeal No.214 of 2018
RAR
DATED : 03.02.2021
