Mamidala Venkayamma vs Tumati Yedukondalu Konuru ...
2023 Latest Caselaw 1160 AP

      THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

          CRIMINAL REVISION CASE NO.745 OF 2009

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

was    Prosecution   Witness   No.1    (defacto-complainant)    in

Sessions Case No.298 of 2008, on the file of Assistant Sessions

Judge,     Nandigama,    challenging    the   judgment,     dated

05.02.2009, where under the learned Assistant Sessions Judge,

Nandigama, found the accused not guilty of the charges framed

against him under Sections 354 and 506 of the Indian Penal

Code ("I.P.C." for short) and accordingly, acquitted him under

Section 235(1) of the Code of Criminal Procedure ("Cr.P.C." for

short).

      2)     The parties to this Criminal Revision Case will

hereinafter be referred to as described before the trial Court for

the sake of the convenience.

      3)     The case of the prosecution, in brief, according to

the charge sheet filed by the police pertaining to Crime No.49

of 2008 of Chandralapadu Police Station before the Judicial Fist

Class Magistrate, Nandigama, is that when the defacto-

complainant (P.W.1) was alone at her house on 02.06.2008,

accused entered into her house, caught hold of her hand,
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pulled her saree, torn her blouse and tried to outrage her

modesty. He also threatened her with dire consequences, if she

does not fulfil his sexual desire. When she made hue and cries,

P.W.3 and P.W.4 rushed to the spot and on seeing them, the

accused fled away from the scene. P.W.1 informed the matter

to P.W.5, who is the Sarpanch of the village and she sent a

message to the accused to enquire it, but, the accused did not

come for panchayat. On 14.06.2008 at 11-00 a.m., P.W.1 and

P.W.2 (husband of P.W.1) went to the police station of

Chandralapdu and lodged complaint.       P.W.7 received it and

registered as Crime No.49 of 2008 under Sections 354 and 506

of I.P.C. and took up investigation. He visited the scene of

offence, examined the witnesses and seized material objects in

the presence of mediators, P.W.6 and L.W.7-Eedara Madhava

Rao.   He prepared rough sketch. He arrested the accused on

14.07.2008 and after investigation, he filed charge sheet.

       4)   The learned Judicial Magistrate of First Class,

Nandigama, took cognizance under Sections 354 and 506 of

I.P.C. and numbered it as P.R.C.No.30 of 2008 and after

complying the necessary formalities under Section 207 of

I.P.C., committed the case to the Court of Sessions. After that
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the case was numbered as Sessions Case and it was made over

to the Assistant Sessions Judge, Nandigama.

     5)        On appearance of the accused before the Assistant

Sessions Judge, Nandigama, charges under Sections 354 and

506 of I.P.C. were framed and explained to him in Telugu for

which he pleaded not guilty and claimed to be tried.

     6)        During the course of trial before the trial Court, on

behalf of the prosecution, P.W.1 to P.W.7 were examined and

Ex.P.1 to Ex.P.5 and M.O.1 were marked. After the closure of

the evidence of the prosecution, accused was examined under

Section   313     Cr.P.C.    with   reference   to   the   incriminating

circumstances in the evidence adduced by the prosecution, for

which he denied the same and stated that he has defence

witnesses.

     7)        The learned Assistant Sessions Judge, Nandigama,

on hearing both sides and on considering the evidence on

record, found the accused not guilty of the charges under

Sections 354 and 506 of I.P.C. and acquitted him under Section

235(1)    of    Cr.P.C.     Challenging   the   same,      the   defacto-

complainant (P.W.1) filed the present Criminal Revision Case to

revise the order of the learned Assistant Sessions Judge,

Nangidama and further with a prayer to convict the accused.
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      8)    Before   going   to   frame   appropriate   point   for

consideration, this Court would like to make it clear that in view

of the embargo under Section 401(3) of Cr.P.C., this Court

cannot convert an order of acquittal into an order of conviction.

It is also well settled that in a Criminal Revision Case against

an order of acquittal what the High Court can do is to see as to

whether the reasons furnished by the Court below in recording

an order of acquittal or perverse or whether the judgment was

delivered ignoring the evidence available on record so as to

remand the matter. Keeping in view, the point is to be framed

for consideration.

      9)    Hence, the point for consideration is that as to

whether the judgment, dated 05.02.2009 in S.C.No.298 of

2008, on the file of Assistant Sessions Judge, Nandigama,

suffers with any illegality, irregularity and impropriety and

whether it is perverse and whether it was delivered ignoring the

evidence available on record and if so whether it is to be

remanded?

Point:-

      10)   Sri E. Sambasiva Pratap, learned counsel for the

petitioner, would contend that the prosecution witnesses i.e.,

P.W.1, P.W.2 and P.W.4 supported the case of the prosecution.
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The learned Assistant Sessions Judge, Nandigama, erroneously

delivered the judgment recording an order of acquittal.          The

evidence of P.W.1 was corroborated by the evidence of P.W.2

and P.W.4, direct witness to the occurrence.         In fact, though

the complainant lodged a report on 04.06.2008, but the police

were at their default in registering the case on 14.06.2008, for

which the complainant was not to be held responsible. The

Court below on assumptions and presumptions delivered the

judgment, as such, the Criminal Revision Case is liable to be

allowed.

       11)    Sri   Y.   Jagadeeswara    Rao,    learned     counsel,

representing the learned Public Prosecutor appearing for the

second respondent/State, represented that the Court may

dispose the matter on merits. The first respondent having

received notice did not appear.

12) As seen from Ex.P.1, the substance of the report is

such that on 02.06.2008 at 2-00 p.m., while defacto-

complainant was attending some work at her house, the

accused entered into the house, caught hold of her hand.

When she fell down, he pulled her saree, torn her blouse and

threatened her to satisfy his desire and when she thrown him,

he caught hold of her tuft and threatened. Then, she raised

cries. Then, the accused noticed that neighbourers are coming,

as such, he left by taking away her Mobile phone on the bed. In

the evening her husband came to the residence and she

revealed the incident to him and they met the Village Sarpanch,

complained the incident and she assured to call the accused

and later, Village Sarpach told that accused did not respond.

Then, they decided to lodge a complaint. This is the substance

of Ex.P.1.

13) Coming to the evidence of P.W.1, she spoken that

on 02.06.2008 when she was alone in the house at 2-00 p.m.,

accused came there, caught hold of her hand, pulled her hand

and then she fell down. When she tried to get up, he pulled

her saree and torn her blouse and tried to outrage her

modesty. Accused threatened her that he will chase her, if she

does not fulfil his desire. Then, she made hue and cries. Then,

he threatened to see her end. He also took away her cell

phone. L.W.3-Mamidala Ramaiah and L.W.4-Balusupati

Vijayamma witnessed the occurrence. At 5-00 p.m., when her

husband returned, she informed the incident to him. They

complained the incident to village Sarpanch, who assured to

look into the issue. On the next day, village Sarpanch told them

that accused did not respond. On 04.06.2008 they lodged a

report. As seen from her cross examination part, she deposed

that she made in the report that L.W.3 and L.W.4 came to the

scene of offence. She denied that nothing was happened and

she is deposing false on account of a site dispute. She further

deposed that she does not know whether the wife of the

accused lodged a complaint against her that they beaten her.

14) Admittedly, the presence of P.W.4 is not mentioned

in Ex.P.1. Coming to the evidence of P.W.4 on 02.06.2008 at

2-00 p.m., Kondalu entered into the house of P.W.1 and

dragged the right hand of P.W.1. Then, she made hue cries

and then she went to the spot and accused fled away. Then,

P.W.2 came there. Then they informed about the incident and

then P.W.1 and P.W.2 went to the house of the President.

During the cross examination, she deposed that she did not

state before police that the accused caught hold of right hand

of P.W.1. On perusal of the evidence of P.W.4 in chief and cross

examination it reveals that absolutely she was not a direct

witness to the incident. So, according to her after the alleged

incident, she gone there and then the accused fled away.

15) It is to be noticed that according to the evidence of

P.W.1, her husband came at 5-00 p.m. and then she revealed

the incident to her husband. According to the evidence of

P.W.4, after the incident, immediately, P.W.2 came there.

According to the evidence of P.W.2 the husband of P.W.1, when

he returned after coolie work at 5-00 p.m., he noticed many

persons at his house and then he enquired and came to know

that accused committed the offence. So, it all goes to show

that the time of incident as projected by P.W.1 is inconsistent

with the evidence of P.W.2 and P.W.4, the direct witness to the

occurrence. P.W.3 did not support the case of the prosecution.

All these goes to show that the presence of P.W.3 and P.W.4

was not mentioned in Ex.P.1 as if they witnessed the

occurrence. P.W.1 mentioned that neighbourers were coming

and accused fled away. The defence was able to show

inconsistency in the evidence of P.W.1, P.W.2 and P.W.4 with

regard to the time of occurrence. It was really doubtful as to

whether the alleged incident was at 2-00 p.m. or 5-00 p.m.

16) Admittedly, according to the case of the

prosecution, when P.W.1 and P.W.2 brought the incident to the

notice of P.W.5, Sarpanch, she assured to enquire the incident,

but on the next day, she told to P.W.1 and P.W.2 that accused

did not respond, as such, on 04.06.2008 P.W.1 lodged a report.

17) According to the evidence of P.W.7, the

investigating officer, it was on 14.06.2008 P.W.1 went to the

police station and presented a written report. As evident from

Ex.P.1, there was endorsement of the concerned Magistrate as

to the date of receipt of Ex.P.1 from the police as 16.06.2008.

So, when the incident was said to be occurred on 02.06.2008,

report came to be lodged on 14.06.2008. The contention of the

revision petitioner is that when the police did not register the

FIR on 04.06.2008, nothing can be attributed against her. It is

very difficult to accept such contention. It was the bounden

duty of the prosecution before the Court below to explain as to

why report came to be lodged on 14.06.2008, if really Ex.P.1

was prepared on 04.06.2008. Prosecution failed to elicit

anything from the mouth of P.W.7 to explain the same.

According to him on 14.06.2008, he received the report.

18) The learned Assistant Sessions Judge, Nandigama,

looked into all these aspects as to the inconsistency about the

time of offence and expressed doubt about the presence of

P.W.4 and further looked into the abnormal delay in lodging

Ex.P.1 report. It is not a case where the reasons furnished by

the learned Assistant Sessions Judge, Nandigama, were

perverse. Even it is not a case where the learned Assistant

Sessions Judge, Nandigama, delivered the judgment ignoring

the evidence available on record.

19) Having regard to the above, this Court is of the

considered view that no other conclusions could be possible

than arrived at by the learned Assistant Sessions Judge,

Nandiama and I see no reason to interfere with the judgment.

20) In the result, the Criminal Revision Case is

dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 28.02.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. REVISION CASE NO.745 OF 2009

Date: 28.02.2023

PGR