Between vs The State Of Andhra Pradesh
2023 Latest Caselaw 3137 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                               ****

CRIMINAL APPEAL No.1728 OF 2009

Between:

Bassa Babjee, S/o. Venkata Raju, Aged about 20 yrs,Occ:Coolie, R/o.Simhadripuram Village, Kirlampudi Mandal, East Godavari Disrict. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P. ... Respondent/Complainant.

DATE OF JUDGMENT PRONOUNCED : 14.06.2023 SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes/No

2. Whether the copy of judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the Fair copy of the judgment? Yes/No

___________________________ A.V.RAVINDRA BABU, J

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

+ CRIMINAL APPEAL No. 1728 OF 2009

% 14.06.2023

# Between:

Bassa Babjee, S/o. Venkata Raju, Aged about 20 yrs,Occ:Coolie, R/o.Simhadripuram Village, Kirlampudi Mandal, East Godavari Disrict. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh. ... Respondent/Complainant.

! Counsel for the Appellant : Ms.N.Swarnalatha, learned

counsel, Rep. Sri. S.R.Sanku,

learned counsel.

^ Counsel for the Respondent : Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

This Court made the following:

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

CRIMINAL APPEAL NO.1728 OF 2009

JUDGMENT:-

The judgment, dated 26.11.2009 in SC ST Session Case

No.68 of 2008, on the file of Special Judge for Trial of Cases

under SCs & STs (POA) Act, East Godavari at Rajahmundry

("Special Judge" for short) is under challenge in this Criminal

Appeal filed by the unsuccessful accused in the above said SC

ST Sessions Case. The accused before the learned Special Judge

faced trial for the charge under Section 376 r/w 511 of the

Indian Penal Code ("I.P.C." for short) and another charge under

Section 3(1) (xi) SCs & STs (POA) Act, 1989 and the learned

Special Judge on conclusion of trial and after hearing the

arguments, found the accused guilty of the charges, convicted

and sentenced him for the said charges. Challenging the same,

the unsuccessful accused filed the present Criminal Appeal.

2) The parties to this Criminal Appeal will hereinafter

be referred to as described before the Court below for the sake

of the convenience.

3) The SC ST Sessions Case No.68 of 2008 on the file

of Special Judge arose out of a committal order in P.R.C.No.23

of 2007 on the file of Judicial Magistrate of First Class,

Prathipadu, pertaining to Crime No.9 of 2007 of Kirlampudi

Police Station.

4) The State, represented by the Sub-Divisional Police

Officer, Peddapuram Sub-Division, filed the charge sheet in the

above said crime alleging in substance as follows:

(i) The victim girl belongs to SC-Mala and aged 16 years.

She is working as coolie along with Talupulamma and Kotnala

Seetha. While so, on 06.02.2007 at about 7-00 a.m., she along

with Kotnala Seetha went to coolie work in the paddy field of

Kalepureddy Koteswara Rao located at Jagapathi Nagaram, H/o

Simhadripuram village. While she was attending the work, the

accused went to the land, called her by gestures and when she

abused, he ran away. At about 1-00 p.m., after completing the

work while she was returning from the fields along with L.W.3-

Kotnala Seetha and when they were going to their house along

with the cart track, the accused who hide himself near the grass

heap in the land of Malla Appa Rao, caught hold of the victim all

of a sudden, dragged her forcibly, laid her down near one of the

heaps, torn her upper garments, laid himself over her, lifted her

undergarments and attempted to commit rape. On seeing the

same, LW.3-Kotnala Seetha raised cries. LW.4-Tangidipalli Satti

Babu, LW.5-Kotnala Nageswara Rao, LW.6-S. Veerabhadra Rao

and LW.8-K. Koteswara Rao, who were working nearby in the

sugarcane land of Kalepureddy Koteswara Rao joined with LW.2-

Talupulamma and rushed to the land of Malla Appa Rao and

found the accused getting up from the victim. When they tried

to catch hold of him, he tried to escape and then they caught

hold of him. But, in the mean time, Kapu caste elders

intervened. On receipt of written report from the victim, case

was registered and investigated into.

(ii) During the course of investigation, the Sub-Divisional

Police Officer, recorded the statements of witnesses, visited the

scene of offence in the presence of the mediators and drafted

observation report and prepared rough sketch. He sent the

victim for medical examination. He altered the Section of law

from Section 354 of IPC into 376 r/w 511 of IPC and filed a

memo to that effect before the Court concerned.

(iii) While so, the accused visited Kirlampudi Police Station

on 06.02.2007 and gave statement which was recorded by

L.W.14-Sub Inspector of Police and was registered as a case in

Crime No.10 of 2007 under Sections 342 and 323 r/w 34 of

I.P.C. against L.W.4-Tangidipalli Sathi Babu, L.W.5-Kakada

Nageswara Rao and L.W.6-Sundarapalli Veerabhadra Rao. The

Sub Inspector of Police kept the accused under surveillance after

getting him treated at Community Health Center, Prathipadu.

L.W.15-Sub Divisional Police Officer arrested the accused on

07.02.2007 and sent him to remand.

(iv) L.W.11 Medical Officer, who examined the victim,

issued wound certificate, stating that the victim is habituated to

sexual intercourse, but, there is no evidence of recent sexual

intercourse. L.W.12 Professor, Forensic Medicine, GGH,

Kakinada, examined the victim and certified that victim is aged

about 16 years. According to L.W.13-Mandal Revenue Officer,

Kirlampudi, the victim belonged to Mala caste which comes

under Scheduled Caste and the accused belonged to Kapu caste

which comes to Other Caste. Hence, the charge sheet.

5) The learned Judicial Magistrate of First Class,

Prathipadu, took cognizance of the case under Section 376 r/w

511 of IPC and Section 3(1)(xi) of SCs & STs (POA) Act and

numbered it as PRC. On appearance of the accused and on

complying the provisions of Section 207 of Cr.P.C., the learned

Magistrate, committed the case to the Court of Sessions and

thereby it was numbered as Sessions Case and made over to

the learned Special Judge for disposal in accordance with law.

6) On appearance of the accused before the learned

Special Judge and after complying the procedure contemplated

under Section 228 of Cr.P.C., charge under Section 376 r/w 511

of I.P.C. and another charge under Section 3(1)(xi) of SCs & STs

(POA) Act were framed and explained to the accused in Telugu,

for which he pleaded not guilty and claimed to be tried.

7) To bring home the guilt against the accused, the

prosecution before the learned Special Judge examined P.W.1 to

P.W.11 and got marked Ex.P.1 to Ex.P.16 and M.O.1 to M.O.5.

After closure of the evidence of the prosecution, the 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.

8) The accused filed a written statement during the

course of Section 313 of Cr.P.C. examination along with certified

copies of charge sheet and F.I.R. in Crime No.10 of 2007 of

Kirlampudi Police Station concerned with C.C.No.43 of 2007, on

the file of Judicial Magistrate of First Class, Prathipadu. The

contention of the accused in the written statement is to the

effect that he did not commit any offence and he was beaten by

the prosecution party for which he made a report which was

registered as a case in Crime No.10 of 2007 of Kirlampudi Police

Station under Sections 342 and 323 r/w 34 of IPC. The present

case is filed by the complainant as a counter-blast to the case

filed by the accused with false allegations. The accused did not

let in any defence evidence.

9) The learned Special Judge on hearing both sides and

on considering the oral as well as documentary evidence, found

the accused guilty of both the charges and convicted him under

Section 235(2) of Cr.P.C. and after questioning him about the

quantum of sentence, sentenced him to suffer rigorous

imprisonment for five years and to pay a fine of Rs.2,000/-, in

default to suffer simple imprisonment for three months for the

charge under Section 376 r/w 511 of I.P.C. and further

sentenced him to suffer rigorous imprisonment for one year and

to pay a fine of Rs.1,000/-, in default to suffer simple

imprisonment for one month for the charge under Section

3(1)(xi) of SCs & STs (POA) Act and that both the sentences

shall run concurrently. Felt aggrieved of the same, the

unsuccessful accused filed the present Criminal Appeal.

10) Now, in deciding the present Criminal Appeal, the

points that arise for consideration are as follows:

(1) Whether the prosecution before the Court below proved that the accused on 06.02.2007 at about 1-00 p.m., while the victim was returning from the fields to the house, made an attempt to commit rape?

(2) Whether the prosecution before the Court below proved that the accused assaulted or used criminal force against the victim within the meaning of Section 3(1)(xi) of SCs & STs (POA) Act?

(3) Whether there are any grounds to interfere with the judgment of the learned Special Judge?

Points:-

11) Ms. N. Swarnalatha, learned counsel, representing

the learned counsel for the appellant, would contend that in fact

the accused was beaten severely by the prosecution party for no

fault of him for which he lodged a report which was registered

as a case in Crime No.10 of 2007 against P.W.3 and others and

as a counter-blast to the said case, the present case is falsely

foisted. The accused became a scapegoat at the evil advice of

one Veerababu, who is behind this issue. As the accused refused

to work under Veerababu, he used the victim as a tool and

implicated the accused in the false case. There are omissions,

contradictions and exaggerations from the evidence of the

prosecution witnesses. The victim developed the case during the

course of trial without any basis from Ex.P.1. The omissions that

are suggested to P.W.1 to P.W.3 are proved through the

evidence of P.W.11, the investigating officer. The prosecution

did not explain as to what was the scene of offence in Ex.P.1

and later the investigating officer located the scene of offence as

in the lands of one Malla Appa Rao without there being any

basis. The prosecution did not prove the essential ingredients of

the charges framed against the accused. The evidence on record

did not prove that the accused prepared himself to commit rape,

as such, the charge under Section 376 r/w 511 of IPC is not at

all tenable. The prosecution did not explain the fact how the

accused received injuries on the date of offence. The accused

filed copies of his report and charge sheet against P.W.3 and

others and in spite of that the Court below found favour with the

case of the prosecution and erroneously convicted the accused,

as such, the Criminal Appeal is liable to be allowed.

12) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the so-called Crime No.10 of 2007 has nothing to do with the

present offence in question. Obviously, the time of offence

alleged by the accused in Crime No.10 of 2007 was evening,

but, the time of offence in this case was at 1-00 p.m. The

accused was caught hold red handedly by P.W.3 and others at

the spot when he was committing the offence and later the Kapu

caste elders intervened with assurance to admonish the accused

and took away. The evidence of P.W.1, P.W.2, P.W.3 and P.W.4

is quietly consistent. P.W.3 has no reason to depose false

against the accused. Because P.W.3 and others caught hold of

the accused, the accused felt humiliated and appears to have

reported leisurely in the evening with fabricated version. The

Court below categorically gave findings that Crime No.10 of

2007 was not a counter-blast case to the present case. The

Court below rightly looked into the evidence on record and with

tenable reasons ordered conviction and sentenced against the

accused, as such, the Criminal Appeal is liable to be dismissed.

13) P.W.1 is no other than the victim. P.W.2 is

Tangidipalli Talupulamma, who claimed to have witnessed the

occurrence. P.W.3 is Kakada Nageswara Rao, who claimed to

have witnessed the occurrence. P.W.4 is Kalepureddi Koteswara

Rao @ Koti S/o Veerraju in whose lands P.W.3 and others were

stated to have worked on the date of incident. P.W.5 is the

medical officer, who examined the victim and issued age

determination certificate. P.W.6 is another medical officer, who

examined the victim and issued certificate. P.W.7 is the

mediator to the observation of the scene of offence. P.W.8 is

Mandal Revenue Officer, who issued caste certificates of accused

as well as victim. P.W.9 is Sub Inspector of Police, who

registered the FIR. P.W.10 is the Panchayat Secretary, who

acted as witness to the observation of the scene of offence by

the police. P.W.11 is the investigating officer.

14) For better appreciation, firstly this Court would like

to refer here the substance of the contents of Ex.P.1 which was

lodged by the victim on the date of offence at 7-00 p.m. when

the time of offence was said to be at 1-00 p.m. Ex.P.1 reads in

substance that it is the report lodged by P.W.1. Her age is 15

years. Her father was expired about five year back. She used to

work along with her mother Sita. On 06.02.2007 at 7-00 a.m.,

she along with her maternal aunt Tangidipalli Talupulamma went

to the lands of Veerraju for coolie work. At 8-00 a.m., one Bassa

Babjee, S/o Venkata Raju (Accused) in the fields made signs

towards her and she abused him and he went away. At 1-00

p.m. while she was returning from the fields by the side of

Veerraju lands, near hayrick, accused caught hold of her,

dragged her towards hayrick and made her to lay over and torn

her clothes and made attempt to commit rape. In the meantime,

her maternal aunt Tangidipalli Talupulamma raised cries and

brought nearby persons working in the fields i.e., Tangidipalli

Sathi Babu, Kakada Nageswara Rao, Sundarapalli Veerabhadra

Rao and Kalipureddy Koteswara Rao. When the accused tried to

escape on seeing them, Tangidipalli Sathi Babu, Kakada

Nageswara Rao and Sundarapalli Veerabhadra Rao caught hold

of him. This is the substance of the report lodged by the victim.

15) Now the substance of the evidence of P.W.1 is that

on 06.02.2007 at about 7-00 a.m., she along with L.W.2 went to

attend coolie work in the land of one Veerraju. At 9-00 a.m.,

accused came to land where she was working and was looking

at her from the hayrick located in the land where they were

working. She questioned the accused as to why he was looking

at her, for which he replied that he was not looking at her. She

strongly asked him that he was telling lies and that he was

looking at her. Accused grew wild and abused her in filthy

language. She also abused him. Then accused opened his pant

zip and shown his private part uttering "antinchu" "antinchu"

(stick stick). Co-coolies of the accused took him away. After the

work was over between 12-30 or 1-00 p.m., she along with

L.W.2 were going to the house. When they reached the hayrick

of Appa Rao, accused pushed away L.W.2 and accused lifted her

(P.W.1) and took her to the hayrick of Appa Rao. He closed her

mouth with his rumalu (handkerchief) and made her to lay

down. He placed his legs on her shoulders and removed her

chokka which was wore by her and torn her bra, lifted her inner

petty coat and upper petty coat and attempted to commit rape.

Then, L.W.2 came to the scene along with co-workers L.W.4,

L.W.5 and L.W.6 whose names she do not remember. L.W.7 also

came to the scene along with L.W.2. On seeing them, accused

was running away, but they caught hold of him. L.W.7

admonished the accused. He asked L.W.2, L.W.4 and L.W.5 and

others to take him to the village. When they were taking the

accused to the village, Kapu caste people came and assured to

take him to village. Later, Kapu caste people took the accused

away, but, he was not produced in the village. She and L.W.2

came to the house and informed the incident to her mother and

junior paternal uncle. On the same day, she went to Kirlampudi

Police Station and lodged a written report. Ex.P.1 is her written

report which bears her signature. Police sent her to the

Government Hospital, Prathipadu. On the next day, D.S.P.

examined her and she handed over her brinjal colour shirt, outer

petty coat, inner petty coat, jacket and bra. M.O.1 is brown

colour outer petty coat, M.O.2 is saffron colour inner petty coat,

M.O.3 is brinjal colour shirt, M.O.4 is jacket and M.O.5 is bra.

Later, she was taken to Government General Hospital, Kakinada.

16) According to the evidence of P.W.2 about two years

back, she and P.W.1 went to coolie work in the lands of

Veerraju. At about 1-00 p.m., after the work was over, she and

P.W.1 were going to the house. By the time they reached

hayrick of one rythu belongs to their village, accused came,

lifted P.W.1 and took her to hayrick. Then she (P.W.2) raised

cries and called the coolies working in the sugarcane field.

L.W.4, L.W.5 and L.W.7 and some others whose names she do

not remember, came to the scene. They went to the scene and

separated the accused from P.W.1. She was coming towards the

scene at some distance. L.W.4 is her son. When her son along

with others asked the accused to come to the village along with

them after the incident, the accused hacked her son on his hand

with sickle. They tied the hands and legs of the accused and was

taking him to the village. On the way, Kapu caste people came

and took away the accused. After the incident, she and P.W.1

went to their house. She went to police station along with

P.W.1. As the witness did not speak about the morning incident,

the prosecution cross examined her and in the cross

examination by the learned Addl. Public Prosecutor, she stated

before police that on 06.02.2007 at about 8-00 a.m., the

accused came to the land of Veerraju and calling P.W.1 with

signs for which P.W.1 abused and he went away and that at

about 1-00 p.m., while they were going to their house when

they reached near the hayrick of Malla Appa Rao, the accused

caught hold P.W.1 forcibly to the hayrick of Appa Rao, laid her

down, torn her clothes and blouse, lifted her petty coat and

attempted to commit rape, etc. as in Ex.P.2. So, the prosecution

elicited from the evidence of P.W.2 as to the manner which she

gave her statement as in Ex.P.2 before the police. Though she

did not speak about the morning incident, but, insofar as the

incident at 1-00 p.m. is concerned, she supported the case of

the prosecution.

17) Coming to the evidence of P.W.3, about 2 ½ years

he, L.W.4, L.W.6 and L.W.8 went to coolie work to the

sugarcane filed of L.W.7. At 1-00 p.m., P.W.2 was coming

towards them by raising cries. They all ran towards her and

found the accused lying over P.W.1 at the hayrick of Malla Appa

Rao. On seeing them, accused tried to escape and they caught

hold of him. They brought him to the village and in the

meantime, Kapu caste elders took away. When questioned

P.W.1, she replied that the accused attempted to commit rape

on her.

18) Coming to the evidence of P.W.4, who is son of

Veerraju in whose lands P.W.1 and P.W.2 claimed to have

worked, he deposed that on 06.02.2007 at about 1-00 p.m., on

hearing cries of P.W.2, they all went to cart track situated in the

land of Malla Appa Rao and found P.W.1 and accused at the

hayrick of Malla Appa Rao. He again says that he was coming

behind P.W.3, L.W.3, L.W.4 and L.W.6. They were ahead of him

and they were caught hold of the accused. Meanwhile village

elders came to the scene and took away the accused. He did not

enquire anything about P.W.1 and P.W.2.

19) Now, I would like to deal with as to whether there

are any omissions in the evidence of P.W.1 to P.W.4 and if so,

whether they are fatal to the case of the prosecution.

20) During the course of cross examination P.W.1 denied

a suggestion that she did not mention in Ex.P.1 and she did not

state before police that at about 9-00 a.m., on 06.02.2007 the

accused came to the land where they were working and was

looking at her from the hayrick located in the land where they

were working and that the accused opened his pant zip and

shown his private part uttering "antinchu" "antinchu". She

denied that she did not mention in Ex.P.1 or state before the

police that the accused abused her in filthy language and that

she also abused him. She denied that she did not mention in

Ex.P.1 and did not state before police that the co-coolies of the

accused took him away. She denied that she did not state

before police that the accused pushed away L.W.2 (stress is on

pushed away). She further denied that she did not state before

police that the accused closed her mouth with his rumalu

(handkerchief) and that while they were taking the accused,

their village Kapu caste people came and took away the accused

with an assurance to produce him in the village. P.W.2 during

course of cross examination denied that she did not state before

police that the coolies in the sugarcane field came to the scene

and separated the accused from P.W.1 and that she did not

state before police that the accused hacked her son with sickle.

P.W.3 during the course of cross examination denied that he did

not state before police that Kapu caste elders took away the

accused from their custody. He further denied that he did not

state before police that by the time they went to the scene, they

found the accused lying over P.W.1 at the hayrick of Malla Appa

Rao (stress is on coming towards their side). Turning to the

evidence of P.W.4 during cross examination, he denied that he

did not state before police that the village elders came to the

scene and took away the accused.

21) Now, coming to the evidence of P.W.11, the

investigating officer, he deposed in cross examination that P.W.1

did not state before him that at about 9-00 a.m., on 06.02.2007

accused came to the land where they were working and was

looking at her from the hayrick located in the land where they

were working and that the accused opened his pant zip and

shown his private part uttering "antinchu antinchu" and that the

accused abused her in filthy language and she abused him and

that co-coolies of the accused took him away and that the

accused pushed P.W.2 and that the accused closed her mouth

with his rumalu (handkerchief) and that the village Kapu caste

people took away the accused with an assurance to produce him

in the village. He further deposed in cross examination that

P.W.2 did not state before him that the coolies in the sugarcane

field came to the scene and separated the accused from P.W.1

and accused hacked her son with a sickle. He further deposed in

cross examination that P.W.3 did not state before him that

P.W.2 accompanied him to the scene and that P.W.2 was coming

towards them by raising cries and that by the time he went

there, he found the accused lying over P.W.1 and that Kapu

caste people took away the accused. He deposed in cross

examination that P.W.4 did not state before him that the village

elders came to the scene and took away the accused.

22) As seen from Ex.P.1, the crucial allegations in the

version of P.W.1 are that when she was attending agricultural

work in the fields at 8-00 a.m., the accused came there and

made signs towards her and when she abused him, he went

away. It is no doubt true that P.W.1 elaborated in her evidence

the manner in which the accused made signs to her at 8-00

a.m., and further she deposed that it was happened at 9-00

a.m. The F.I.R. cannot be taken as encyclopedia. P.W.1

categorically testified that in the morning hours, when she was

working in the field, the accused came there and made signs

towards her and she abused him and then the accused went

away. That is there in Ex.P.1. In the evidence, she elaborated

the manner in which the signs were made. So, the case of the

prosecution even if the improvement evidence of P.W.1 is

excluded from consideration remained intact with reference to

the contents in Ex.P.1 about the incident happened in the

morning. What P.W.1 deposed is the manner in which the

accused made signs and on that the evidence of P.W.1 cannot

be disbelieved. With regard to the fact that at the time of

incident, accused shut her mouth with rumalu, etc., it cannot be

taken as a major omission. Even if the evidence of P.W.1 on the

improvement version is excluded from consideration, the rest of

her evidence has corroboration from Ex.P.1, the report. Hence,

what all the omissions that are suggested to P.W.1 and elicited

from P.W.11 are not at all material to disbelieve the case of the

prosecution. Similarly, the omissions that are suggested to

P.W.2 to P.W.4 are trivial in nature. They are not going to affect

the case of the prosecution. They are not going to the root of

the matter.

23) As seen from Ex.P.1, it contains the names of

persons, who witnessed the occurrence. The presence of P.W.2

and P.W.3 at the time of occurrence is there in Ex.P.1. Apart

from this, the name of P.W.4 is also there in Ex.P.1. Even the

name of another person is also there who was not examined by

the prosecution. The case of the prosecution is that P.W.2 on

witnessing the occurrence, raised cries and the persons who are

working in the neighbouring fields came there. Under the

circumstances, it is not the case of the accused that the names

of P.W.2 to P.W.4 were not there in Ex.P.1 and that they were

planted witnesses. Under the circumstances, it is immaterial

whether P.W.2 separated the accused from P.W.1 or the

neighbouring ryths separated accused from P.W.1. Therefore,

insofar as the so-called omissions are concerned, they are

minor, which are not going to the root of the matter. It is no

doubt true that the evidence of P.W.2 is such that she made an

improvement as if the accused also attacked her son with a

sickle which she did not speak in her Section 161 of Cr.P.C.

statement. The facts and circumstances are such that even

according to the evidence of P.W.1, P.W.3 and others caught

hold of the accused after the incident and when they were

taking the accused to the village, Kapu caste people intervened

with an assurance to produce him in the village and they did not

keep up their promise. The contention of the accused is that he

was beaten by P.W.3 and others severely for which he lodged a

report and as a counter-blast to the said case, the present case

is filed.

24) It is to be noticed that the defence of the accused is

totally inconsistent. What was suggested before P.W.1 during

cross examination is that as the accused refused to work under

one Veerraju, he got lodged this complaint through P.W.1. It is

rather improbable to assume that when the accused refused to

work under one Veerraju, Veerraju used the victim as a tool and

implicated him in the false case. It is very difficult to believe

such a defence theory. Contrary to that, he put up another

contention that on the date of incident, accused lodged a police

complaint alleging that L.W.4-Tangidipalli Sathi Babu, L.W.5-

Kakada Nageswara Rao and L.W.6-Sundarapalli Veerabhadra

Rao beat him and as a counter-blast to that, the present case is

filed. In support of such a theory, during the course of Section

313 of Cr.P.C. examination before the learned Special Judge, he

filed certified copies of the report pertaining to Crime No.10 of

2007 and the charge sheet relating to C.C.No.43 of 2007.

25) It is to be noticed that the present case is pertaining

to Crime No.9 of 2007 and the time of offence was at 1-00 p.m.

In Crime No.10 of 2007 P.W.3 was shown as accused and

further L.W.4-Tangidipalli Sathi Babu and L.W.6-Sundarapalli

Veerabhadra Rao were also shown as accused. There is no

dispute that the report lodged by P.W.1 is first in point of time.

Therefore, when P.W.1 went to the police station at 7-00 p.m.,

and lodged Ex.P.1, accused cannot contend that Crime No.9 of

2007 is a counter-blast to Crime No.10 of 2007. It appears that

as P.W.3 and others caught hold of the accused and detained

him, even according to the evidence of P.W.2, accused lodged

such a report pertaining to Crime No.10 of 2007. It is to be

noticed that the so-called incident pertaining to Crime No.10 of

2007 was subsequent to the alleged commission of offence

against P.W.1 when witnesses caught hold of the accused red

handedly. Under the circumstances, the contention of the

accused that the present case is filed as a counter-blast to

Crime No.10 of 2007 is not at all tenable. At one hand accused

contended that as a counter-blast to Crime No.10 of 2007, the

present case is filed which is not tenable. At another hand, he

contended that at the instance of one Veerraju, victim

implicated him in a false case and it is also not tenable. It is to

be noticed that no previous animosity was elicited between the

family of P.W.1 and family of the accused.

26) The incident in question was happened in the fields

at 1-00 p.m. Prior to that the accused was alleged to have

made some signs to P.W.1 for which P.W.1 abused the accused.

Absolutely, P.W.1 had no reason whatsoever to implicate the

accused falsely. The evidence of P.W.1 has support from the

evidence of P.W.2. Though the version of P.W.1 that the accused

pushed away P.W.2, and the version of P.W.2 that she was

pushed away by the accused were not there in Ex.P.1, but their

evidence that when they were returning to the house after

completion of work the offence happened cannot be doubted.

Further P.W.3 has no reason to depose false against the

accused. In fact, he was an independent witness to the incident.

The so-called fact that he was shown as accused in the report

lodged by the accused along with others was only on account of

the incident happened subsequent to the commission of offence

against the victim. Therefore, even the presence of P.W.3 at the

scene of offence is quietly probable and his presence is not at all

doubtful. P.W.4, the son of Veerraju, testified the fact that on

hearing the cries of PW.2 they all went to the cart track and

found P.W.1 and accused at the hayrick of Malla Appa Rao.

Hence, his evidence also supports the presence of the accused

at the hayrick of Malla Appa Rao along with P.W.1. The evidence

of P.W.3 corroborates the evidence of P.W.1 and P.W.2.

27) There was a contention raised by the accused before

the Court below that the prosecution deliberately shifted the

scene of offence to some other place. This Court has carefully

looked into the above said contention. Though Ex.P.1 did not

disclose literally exact place of scene of offence, but, it depicts

that the scene of offence was near hayrick and the said hayrick

was located in the lands adjacent to the lands of one Veerraju.

The investigating officer during course of investigation prepared

Ex.P.11 scene observation report and Ex.P.13 rough sketch of

the scene of offence.

28) Now, this Court has to look into the contention as to

whether the prosecution deliberately shifted the scene of offence

to un-suit the defence of the accused. Ex.P.1 depicts the scene

of offence was near hayrick and the said hayrick was located in

the lands adjacent to the lands of one Veerraju. Though there

was no whisper that the scene of offence is a hayrick situated in

the field of Malla Appa Rao, but, Ex.P.1 depicts that the scene of

offence was near hayrick and the said hayrick was located in the

lands adjacent to the lands of one Veerraju. As seen from

Ex.P.13 rough sketch and Ex.P.11 mediators report, there is a

description regarding the pathway leading to the fields running

to the north-south. Therefore, the so-called pathway can be

connected to the pathway mentioned in Ex.P.1. There is no

dispute that the land of Veerraju is abutting to this pathway.

Even as seen from the above, the land of Malla Appa Rao is also

there as abutting the said pathway. So, it goes without saying

that on the immediate west of the pathway, paddy field of

Veerraju and hayrick of Malla Appa Rao were situated. P.W.1

and P.W.2 were attending agricultural works in the land of

Veerraju. So, the lands of Veerraju and the lands of Malla Appa

Rao were adjacent with each other. It further reveals that the

hayricks were also to the north of land of Veerraju. Towards the

west of the scene of offence, hayricks and paddy field of Malla

Appa Rao were located. Even Ex.P.1 describes that scene of

offence as hayrick located in the field of Malla Appa Rao. The

evidence of P.W.11, the investigating officer, is not at all

challenged disputing the location shown in Ex.P.13 rough sketch

of the scene of offence. With regard to the observation report,

though one of the mediators i.e., P.W.7 did not support the case

of the prosecution as he turned hostile, but, his hostility was

proved by virtue of the evidence of P.W.11, the investigating

officer. But, there is evidence of P.W.10 in support of the

preparation of the observation report by P.W.11. P.W.10

deposed that he along with D.S.P. and other staff on 07.02.2007

proceeded the field of Malla Appa Rao where the D.S.P. prepared

observation report. This Court has no doubt about the

preparation of observation report and rough sketch of the scene

of offence, in the absence of challenge to the testimony of

Ex.P.11. So, on thorough scrutiny of the evidence on record, this

Court is of the considered view that the hayrick as made in

Ex.P.1 can only be the hayrick of Malla Appa Rao, as such, the

contention of the appellant that the scene of offence was

deliberately shifted is not at all tenable.

29) It is a case where the offence in question was

happened at 1-00 p.m. According to the evidence of P.W.1 Kapu

caste people took away the accused with an assurance to

produce him in the village. She claimed that after returning to

the house along with P.W.2, she revealed the incident to her

mother and her junior paternal uncle and then they went to the

police station. As seen from Ex.P.1, it was lodged on 06.02.2007

at 7-00 p.m. There is no denial of the fact that after reaching to

the house only P.W.1 revealed the incident to her mother. The

learned defence counsel before the Court below elicited in cross

examination of P.W.1 that she went to the house after the

incident at about 4-00 p.m. or 5-00 p.m. she reached to the

house and after informing the incident they went to the police

station and lodged report. Under the circumstances, there is no

delay in lodging report and even otherwise, there was no

agitation on the part of the accused about the delay in lodging

Ex.P1. It is not a case where there was any bitter animosity

between the defacto-complainant party and the accused party.

Apart from this, in a case of this nature, the delay is bound to be

happened, as victim on her own cannot go to the police station

straight away and as lodging report in such an offence would

invite stigma everybody would hesitate to present a report in a

case of this nature. However, the circumstances does not show

any delay in lodging the report. Under the circumstances, the

evidence adduced by the prosecution is convincing and this

Court has no reason to disbelieve the evidence of P.W.1 to

P.W.4.

30) Now, this Court has to consider as to whether the

evidence on record which is convincing would invite the essential

ingredients of Section 376 r/w 511 of I.P.C. and Section 3(1)(xi)

of SCs & STs (POA) Act. There is a whisper in Ex.P.1 that the

accused took away the victim from the pathway to the hayricks

and laid her down and made an attempt to commit rape. It is

clearly testified by P.W.1. Though there was no allegation in

Ex.P.1 that the victim was in fact subjected to rape, but, the

investigating officer referred the victim to the hospital for

medical examination. It is altogether a different aspect that he

referred the victim to ascertain the age of her. According to the

evidence of P.W.5, the age of the victim was of 16 years and

she conducted general examination, physical examination,

dental examination and radiological examination and issued

Ex.P.3. But, the investigating officer also sent the victim to the

Assistant Professor, Obt. & Gynecologist, Kakinada and

according to the evidence of P.W.6, after noting the physical

condition of the victim, she obtained swab and sent it to RFSL

and according to her, the victim is habituated to sexual

intercourse, but, there is no evidence of recent sexual

intercourse and issued Ex.P.6 final opinion. As it is not the case

of the prosecution that the accused in fact committed rape, the

evidence of P.W.6 assumes a little importance. During the cross

examination, P.W.11 the investigating officer deposed that he

noticed blood stains on the inner petty coat of the victim and in

RFSL report also blood stains were noted in item Nos.9 and 10.

It is the case of the prosecution that the investigating officer

collected M.O.1 to M.O.5 from the victim during the course of

investigation. Therefore, it appears that as he found blood

marks on the inner petty coat, he referred the victim to the

Gynecologist for obtaining necessary opinion. Under the

circumstances, as it is not the case of rape and as only

attempted to commit rape, the evidence of P.W.6 has no

significance.

31) The prosecution categorically established the

incident happened in the morning in the fields where P.W.1 was

working. According to the evidence of P.W.1, the accused made

signs to her for which she abused him. So, it appears that from

morning itself, the accused developed evil intention on P.W.1.

The act of the accused in pulling her from the pathway into the

hayricks and made her to lay down and fell upon her by

removing her clothes is nothing but an attempt made by the

accused towards the commission of rape. It is not a case of

assaulting a woman with criminal force. If the intention of the

accused was such that he intended to outrage the modesty, he

would have done it on the pathway itself, but he would not have

pulled the victim to a hayrick in the lands of Malla Appa Rao.

The learned Special Judge in fact rightly dealt with in elaborate

manner the conduct of the accused from the morning in

developing an intention to commit rape against the victim.

32) Having regard to the overall facts and

circumstances, the commission of offence made by the accused

was after making preparation and the attempt made by the

accused was only towards the commission of offence i.e., to

commit rape against the victim.

33) Coming to the evidence of P.W.8, there is no dispute

that the victim belonged to Scheduled Caste and accused

belonged to Forward Caste. The accused had knowledge that

the victim is of a Scheduled Caste. The act of the accused in

going to the fields where P.W.1 was working and making signs

was nothing but a desperate. Further the act of the accused in

taking away the victim from the pathway to the hayrick was also

desperate. In my considered view, the evidence on record

squarely attracts the essential ingredients of Section 376 r/w

511 of I.P.C. as well as Section 3(1) (xi) of SCs. & Sts. (POA)

Act. The learned Special Judge rightly considered the evidence

on record in a proper manner and made appreciation of the

evidence with sound reasons and rightly found the accused

guilty of both the charges.

34) Having regard to the above, I am of the considered

view that the prosecution before the Court below categorically

proved both the charges against the accused beyond reasonable

doubt, as such, I do not see any reason to interfere with such

well reasoned judgment of the Special Judge for Trial of Cases

under SCs & STs (POA) Act, East Godavari at Rajahmundry.

35) In the result, the Criminal Appeal is dismissed, as

such, the judgment, dated 26.11.2009 in SC ST S.C.No.68 of

2008, on the file of learned Special Judge for Trial of Cases

under SCs & STs (POA) Act, East Godavari at Rajahmundry,

shall stands confirmed.

36) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the judgment of this Court

along with the trial Court, if any, to the Court below on or before

21.06.2023 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

appellant (accused) and to report compliance to this Court.

Consequently, miscellaneous applications pending, if any, shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.06.2023.

PGR

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

CRL. APPEAL NO.1728 OF 2009

DIRECTION:

Date: 14.06.2023

PGR