Ganja Srinivas, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1413 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.1501 of 2008

ORDER:

This Criminal Revision Case under Sections 397 and 401

Cr.P.C. assails the conviction of the revision petitioner for the

offence under Section 354 I.P.C. which was initially handed

down by a judgment dated 31.03.2008 by learned Assistant

Sessions Judge, Ramachandrapuram in Sessions Case No.333

of 2006 and thereafter confirmed in appeal by a judgment dated

16.09.2008 by the learned Principal Sessions Judge, East

Godavari, Rajahmundry in Criminal Appeal No.180 of 2008.

Respondent herein is the State.

2. The assault or criminal force to a woman or a girl with an

intention to outrage her modesty is punishable under Section

354 I.P.C. The accusation for such an offence is very easy to

make and very difficult to rebut. Therefore, it is always felt

necessary by Courts to see that the conduct of the victim is

consistent with ordinary probabilities and independent

corroboration is normally insisted upon. The entire surrounding

circumstances require appreciation.

Dr. VRKS, J Crl.R.C.No.1501 of 2008

3. Crime No.77 of 2006 was investigated into by

Sub-Inspector of Police, Draksharama Police Station and that

resulted in filing a police report in terms of Section 173 Cr.P.C.

alleging offence under Section 376 read with 511 I.P.C. Learned

Judicial First Class Magistrate, Ramachandrapuram complied

with the procedure under Section 209 Cr.P.C. and committed

that case to the learned Sessions Court, East Godavari. The

accused was charged for the offence under Section 376 read

with 511 I.P.C. and after due trial, he was found not guilty for

that offence but was found guilty for a lesser cognate offence

under Section 354 I.P.C. The learned Assistant Sessions Judge,

Ramachandrapuram convicted and sentenced the accused

directing him to undergo simple imprisonment for five years and

pay a fine of Rs.1,000/- with a default sentence of simple

imprisonment for one month. The remand period was directed

to be set off. In the appeal before the learned Sessions Judge

there was due hearing and finally learned Sessions Judge found

that the judgment impugned was right on facts and law and

dismissed the appeal and thereby confirmed the guilt,

conviction and sentence imposed by the trial Court against the

accused. All the principles of fair trial have been complied with

Dr. VRKS, J Crl.R.C.No.1501 of 2008

as the record discloses it. The accused was furnished with

copies of documents on which the prosecution intended to rely

upon and was informed of the charge against him and his plea

of not guilty was recorded and all the witnesses were allowed to

be cross-examined by the defence and his response to

incriminating evidence was recorded under Section 313 Cr.P.C.

Althroughout the accused has been defended of his own learned

counsel while the State has been represented by the learned

Public Prosecutors at various stages. In this revision with

reference to competence of the Courts that tried the case and

that heard the appeal and the manner in which the trial was

conducted and the appeal was heard, there are no challenges.

Therefore, it is sufficient now to find out the substance of the

case for the purpose of analysis.

4. The case mentioned offence allegedly took place on

18.05.2006 in a village called Kapavaram in

Ramachandrapuram Mandal, East Godavari District. The

accused was aged about 25 years by then. He was married and

had a child. The victim was a girl aged 14 years and studied

upto VII Class and discontinued it and was remaining at her

house helping her family members. She lives in a hut along

Dr. VRKS, J Crl.R.C.No.1501 of 2008

with her younger brother and younger sister and the father and

mother. The accused and this family are residents of the same

village called Kapavaram. They are not immediate neighbours.

The parents of the victim girl have been agricultural coolies.

The accused for some time did agriculture and thereafter he has

been an agricultural coolie. The alleged offence took place in

this village setting and the scene of offence is stated to be the

very house of the victim girl. It was during broad day light at

about 2:30 P.M. inside the house of the victim the offence

allegedly took place. The house of the victim is surrounded by

several residential houses. On all these aspects there is

evidence and these aspects have never been questioned as

incorrect by the defence.

5. At the trial prosecution examined PWs.1 to 8 and got

marked Exs.P.1 to P.4. Victim gave evidence as PW.1. She is

the direct witness to the alleged crime incident. PW.3 is her

junior paternal aunt and lives in the house that is adjoining the

house of the victim girl. She stated to be an eye witness to the

crime incident. At the time of alleged offence it was stated that

the parents of the victim girl went out for agricultural works and

the two siblings of the victim girl went out for playing games

Dr. VRKS, J Crl.R.C.No.1501 of 2008

and the victim girl was alone in the house. Rest of the

witnesses examined by the prosecution are not direct witnesses

to the constituting elements of the crime, but their evidence is

reflective of immediate conduct of the victim and the response

on part of others in handling the crime etc. Since it was a case

that was initially tried for attempted rape there was evidence of

PW.7-Assistant Surgeon who examined the victim girl on

13.06.2006 and he found there were no traces of rape and he

issued Ex.P.2 certificate. But this medical evidence was found

not relevant in proving or disproving the case by the Courts

below. PW.2 is the father of the victim girl who was away from

the house when this crime incident took place in the house. On

his return at about 4:00 P.M. he was appraised of the facts by

the victim girl and her junior paternal aunt/PW.3. He

thereafter went and informed it to the maternal uncle of the

accused. That maternal uncle is PW.4 and he gave evidence to

the extent of facts that were informed to him by PW.2. PW.4 is

not a witness to the crime. However, his evidence was found

giving a great support to the prosecution version as observed by

both the Courts below. PWs.5 and 6 are elders of Kapavaram

Village who felt that the crime incident need not be processed

Dr. VRKS, J Crl.R.C.No.1501 of 2008

through law and they could see that the dispute could be

resolved at the village level. However, as they found that their

efforts were not bringing result, they gave advise to the family of

the victim to proceed in accordance with law. These two

witnesses also supported the case of prosecution. Broadly that

is the nature of evidence available.

6. Coming to a few more details about the evidence on

record, it is to be stated that the evidence of the victim/PW.1 is

that on the day she was alone in the house watching television

and at about 2:30 P.M. the accused who is known to her came

to her, enquired with her about her parents and she told him

that they went to attend the agricultural works. Then the

accused reached close to her, kissed on her cheek and lips. The

girl did not like it and immediately sought for help by shouting

Chinnamma, Chinnamma/PW.3 summoning for her help. The

accused did not like it and he immediately closed her mouth

very tight and then dragged her and pushed her to the cot,

caught her tight and was putting efforts to lift her garments.

However, on listening the shouts and cries of PW.1, her

neighbouring paternal aunt/PW.3 came out of her house and

reached the house of PW.1 and she saw the accused holding

Dr. VRKS, J Crl.R.C.No.1501 of 2008

PW.1 and trying to lift the lower garment. She reached to

rescue PW.1 and the accused pushed her aside and escaped

from the spot. It is this evidence of PW.1 that was considered

sufficient proof under Section 354 I.P.C. by the Court that tried

the offence. In this revision it has not been the contention of

the revision petitioner that these facts do not constitute offence

under Section 354 I.P.C. Therefore, as far as existence of

evidence proving all the constituting elements of Section 354

I.P.C. is not in dispute. The entire defence turns on the

credibility of the evidence and nothing else. The evidence of

PW.3 contains all these facts. PW.3 said that having noticed

such an incident she remained at the house of PW.1 till her

parents arrived. PWs.1 and 3 said that parents arrived at

4:00 P.M. and they immediately informed the incident. PW.2 is

father of PW.1 and he said that on hearing this incident he

reached to the maternal uncle of accused and told him about it.

The said maternal uncle testified as PW.4 and said that at 4:00

P.M. this PW.2 came to him and informed him of the outrage

suffered by PW.1 in the acts of the accused. The reply from

PW.4 was that he could not do anything in this regard and PW.2

and his family was to take recourse to the steps they felt

Dr. VRKS, J Crl.R.C.No.1501 of 2008

needed. The fact that PW.4 is the maternal uncle and in other

words the accused is nephew to PW.1 is deposed by PW.4 and is

not challenged by the defence. Thus one of the closest relations

of accused gave evidence on facts known to him and that go in

support of the prosecution version. The evidence of PW.2 and

that of PW.1 and others is that as they did not find help from

PW.4, they reached to the village elders/PWs.5 and 6 and told

them about the incident. These two witnesses claimed that they

are village elders and admitted that they were so informed by

PW.2 and others about the crime incident. It is the evidence of

all these witnesses that PWs.5 and 6 wanted to call the accused

and see the issue was resolved. However, they did not find the

accused in the village and they observed that he was not

making himself available at the village. Even then PWs.5 and 6

advised PW.2 not to aggravate the situation and obediently that

was followed by PW.2. It is about 25 days later it came to the

knowledge of the village elders that the accused arrived at.

Then despite their efforts they could not get him and therefore

expressing their helplessness they advised the victim and her

father to go and secure solace through process of law. It was in

that context, there was 25 days delay between the date of

Dr. VRKS, J Crl.R.C.No.1501 of 2008

offence and lodging written information/Ex.P.1 by PW.1.

Ex.P.3-F.I.R. was registered by PW.8 investigating officer on

11.06.2006.

7. Before the trial Court as well as the appellate Court

defence raised various contentions. One point that was argued

was delay in lodging F.I.R. Both the Courts below dealt with it

and the learned trial judge extensively dealt with it and referring

to the whole sequence of facts that occurred from the time of

offence till the time of lodging F.I.R. and found that the evidence

of PWs.5 and 6 was credible and thereby put faith in the

correctness of the version spoken to by PW.2 and PW.1 for the

delay in lodging F.I.R. Learned Assistant Sessions Judge

recorded that there was absolutely no hint to find any

concoction or embellishment that took place in that 25 days gap

between registration of crime and offence. It was in such

circumstances, the contention of the defence was negatived.

The repeat argument on the same point met with same result

from the learned Sessions Judge dealing with the appeal. One

of the contentions from the defence went on the lines that it was

mid May in the year 2006 and the parents of victim were stated

to be at agricultural fields attending paddy cutting and that was

Dr. VRKS, J Crl.R.C.No.1501 of 2008

improbable because by the end of April itself paddy cutting

should have been over. That version if accepted would go to

show that according to the accused even the parents of the

victim girl were in the house when this offence occurred. While

cross-examining PW.1, defence never said that the victim girl's

parents were there in the house at 2:30 P.M. when he was

allegedly engaged in this detestable act of crime against young

girl. He himself did not testify, though an agriculturist, that the

crop cutting was already over. His own uncle/PW.4 said in his

evidence that at 4:00 P.M. when PW.2 came to him informing

him of this crime incident he himself was engaged in drying up

the paddy etc. Considering all these pieces of evidence, both the

Courts below held that it was still a season for cutting up of

crop in certain lands and other agricultural operations in some

fields and therefore, non-availability of parents of PW.1 in the

house at that time was found to be a normal circumstance.

8. While cross-examining PW.1 it was elicited that the house

of the grandparents of PW.1 was adjacent to the house of the

accused. On eliciting such fact the suggestion given by accused

to the prosecution witnesses was that there was boundary

dispute between his family and the family of grandparents of

Dr. VRKS, J Crl.R.C.No.1501 of 2008

PW.1 and therefore, this false case was foisted against him.

Either through cross-examination of prosecution witnesses or

through positive evidence from defence the relevant details of

that alleged dispute between these two families was never

brought on record. When was the dispute, what was the full

amplitude of the dispute and what were actions and reactions

on part of both families on such boundary disputes, there was

no evidence. According to his own junior maternal uncle/PW.4,

it is an old dispute and that the day on which the dispute arose

it was resolved. That remained unchallenged as could be seen

from the cross-examination of PW.4. On considering these

facts, learned trial Court as well as the appellate Court found no

truth and substance in the defence contention and therefore,

they held that there was no false implication of accused out of

any particular grouse for the grandparents of PW.1/victim.

9. It is in the light of such evidence by giving cogent reasons

Courts below found the accused guilty.

10. In this criminal revision, it is contended that the evidence

of PWs.1 to 6 ought not to have been believed because they are

interested testimonies. PW.3 was not a neighbour to PW.1.

Dr. VRKS, J Crl.R.C.No.1501 of 2008

There was abnormal delay in lodging F.I.R. There was no

independent evidence supporting the case of prosecution. The

version of PW.1 was an exaggeration as against her earlier

statements. Investigation was flawed. On these contentions

learned counsel for revision petitioner submits that judgments

of the Courts below are erroneous and deserve reversal.

11. Learned Special Assistant Public Prosecutor appearing for

the respondent-State made his serious submission that on

impeccable evidence led by the prosecution, immaculate

findings were recorded by the Courts below and there is

absolutely no reason to exercise any revisional jurisdiction by

this Court.

12. Learned counsel on both sides submitted arguments.

13. The point that falls for consideration is:

"Whether the convicting judgments of the Courts

below suffer from irregularity or illegality or impropriety

requiring interference?"

Dr. VRKS, J Crl.R.C.No.1501 of 2008

14. Point:

The assertions of prosecution and the material evidence

led by prosecution and the manner in which that was dealt with

by the Courts below are already indicated in the earlier

paragraphs. It is a case where both at the time of charge

hearing as well as hearing at the time of Section 313 Cr.P.C. no

particular line of defence was spoken to by the accused. There

was no positive evidence from defence in proving or disproving

any fact. It is never the defence of accused that the victim girl

was a consenting party. Be it noted that the victim girl was a

minor by the time of this offence. Record does not show any

particular tiff between accused on one side and PW.1 or PW.2 or

PW.3 or PW.4 or PW.5 or PW.6 on the other side. It was not the

case of defence that at the alleged time and date of this offence

the accused was elsewhere but not in the village. All the

prosecution witnesses stated that in the evening when PW.2

came and informed them of the offence when they tried to

secure the accused he was found absconding. That he did not

make himself available to their reach is a fact that was believed

Dr. VRKS, J Crl.R.C.No.1501 of 2008

by both the Courts below. As one could see from the cross-

examination of witnesses that this accused admits of leaving the

village and coming back only several days later. It seems he

contended that the father of the victim girl was proclaiming to

kill him and therefore, he even lodged a complaint with police.

Both the Courts below accepted that as fact. If that is

considered as a fact proved, one should see as to why the father

of the victim girl was proclaiming to kill the accused. Was it

because his minor child was molested or was it because of the

alleged non-descript dispute between parents of

PW.2/grandparents of PW.1 and the parents of accused. In the

light of the facts and circumstances available on record, it was

only with reference to the indignity the family suffered, PW.2

was prowling for accused on smelling that accused remained

scarce for their grasp. This immediate conduct post event is

one circumstance that adds strength to the credibility of

prosecution version. Record discloses full particulars and

evidence from prosecution and no particulars and no valid

defence from accused. Courts below rightly recorded that the

delay in lodging F.I.R. for 25 days was fully explained by the

prosecution through its witnesses and that explanation was

Dr. VRKS, J Crl.R.C.No.1501 of 2008

found to be genuine and credible. In what manner that

appreciation of evidence is incorrect is to be shown by the

revision petitioner. This Court must say that there is absolutely

no endeavour from the revision petitioner in sustaining that

contention he raised in the revision petition. PW.1 being the

victim is the one who was supposed to speak and she spoke to

the facts. PWs.5 and 6 are elders and well-wishers of the

villagers. They have neither affinity with other witnesses for

prosecution nor were shown to have any antagonism against the

accused or his family members. Therefore they are neutral

witnesses and disinterested witnesses. PW.8 is the investigating

officer who has no connection with either of the parties except

having his duty to investigate which he did it according to law.

He cannot be stated to be an interested witness especially when

his evidence merely spoke about collection of evidence and

nothing else. PW.4 is the very relative and that too a close

relative of accused having spoken against the accused and

having not been shown to be holding any malice against the

accused is certainly a virtuous witness and he cannot be said to

be an interested witness. It seems his interest lies in the

interest of justice and nothing else. PW.3 is junior paternal

Dr. VRKS, J Crl.R.C.No.1501 of 2008

aunt of PW.1. She is dubbed as interested witness by the

revision petitioner. He has not shown any particular desire in

PW.3 to see that an innocent is implicated and punished.

Nothing was brought from her mouth by the defence as to why

she was inclined to speak facts against the accused. Thus,

what she spoke on oath was only what she witnessed and

nothing else. Mere relationship does not make a witness a

witness of suspicion. An interested witness is one who is

particularly inclined to speak falsehood and implicating an

innocent. On analysis of evidence of PW.3, no such thing could

be deciphered. Therefore, calling her as an interested witness is

against the terms of the law and is also against the material on

record. PW.2 is the father. It is not known as to why defence

could say that a father should not be interested in the welfare of

his daughter. In fact PW.2 if really intended to speak falsehood

could have stated that he also witnessed the crime incident.

From the facts it is seen that even at the cost of the trouble

suffered by his own daughter, he obliged the words of village

elders and waited for 25 days. That itself would indicate that he

was searching for justice first in the village and then through

process of law. It is difficult to say a man of that character as

Dr. VRKS, J Crl.R.C.No.1501 of 2008

an interested witness. The tendency of the defence to categorize

every witness as interested witness is nothing short of vexatious

contention. There is absolutely no reason to call any of the

witness as tainted or interested. Therefore, this contention of

the revision petitioner is baseless and meritless.

15. The revision petitioner states that in Ex.P.1 complaint the

victim girl omitted to mention about kiss on her lips and cheek

and she brought those statements only in her sworn evidence

and therefore, she is a liar. Be it noted that on a perusal of the

cross-examination of PW.1, the accused was suggesting about

the number of rooms in the house of PW.1 and where the

furniture was lying etc. All of it would show that the accused

has full acquaintance of the house and the setting in the house.

The evidence of PW.1 that the accused reached her physically

and closed her mouth and caught her tight by the accused and

that the accused threw her out on the cot and was lifting her

dress are all facts and these facts that are deposed by witness

on oath found full corroboration from her earlier statement in

Ex.P.1 in terms of Section 157 of the Indian Evidence Act. That

she missed out mentioning about kisses in her Ex.P.1 may be

considered as an embellishment brought out by her in her

Dr. VRKS, J Crl.R.C.No.1501 of 2008

evidence or that she missed out mentioning them in Ex.P.1 out

of her inability to record facts very comprehensive. In either of

the events that one piece of statement cannot make any

reasonable prudent man to discard the rest of her evidence. At

any rate, the manner in which this aspect of the matter was

dealt with by both the Courts below is on sound reasoning. Not

a single area is shown by the revision petitioner as to how the

Courts below erred in appreciating the evidence.

16. A reading of the judgments of the Courts below and the

entire evidence led by prosecution and defence, this Court

should say that both the Courts below considered all that is

relevant and gave appropriate reasons and reached to

appropriate conclusions. They did not consider anything that

was not part of the record. The evidence was properly

appreciated and no principles of law in appreciating the

evidence were violated. This revision petitioner failed to show

any irregularity or illegality or impropriety in the judgments of

the Courts below. There is absolutely no merit in this revision.

17. Learned counsel for revision petitioner submits that in the

facts and circumstances of the case, the sentence inflicted is too

Dr. VRKS, J Crl.R.C.No.1501 of 2008

large and harsh where the man/revision petitioner was found

using criminal force or assault against the girl.

18. Learned Special Assistant Public Prosecutor submits that

Courts have to maintain proportionality in sentencing the guilty.

The incident occurred in the year 2006. Thus, for the last 17

years the proceedings have been pending at one Court or the

other. The revision petitioner is a married man with children.

While the modesty of girl/PW.1 was outraged it is to be noticed

that no injuries were inflicted on her and the accused/revision

petitioner never intended to do any further physical harm or

harm to her reputation or her property. According to the

record, it is his first offence. Considering these facts and

circumstances, this Court is of the opinion that the sentence

imposed against the revision petitioner/accused by both the

Courts below is on harsher side. Therefore, it is found

appropriate to alter the sentence imposed by the Courts below.

19. In the result, this Criminal Revision Case is allowed in

part modifying the judgment dated 16.09.2008 of learned

Principal Sessions Judge, East Godavari, Rajahmundry in

Criminal Appeal No.180 of 2008 and the judgment dated

Dr. VRKS, J Crl.R.C.No.1501 of 2008

31.03.2008 of learned Assistant Sessions Judge,

Ramachandrapuram in Sessions Case No.333 of 2006. While

retaining the fine and the default sentence that were imposed by

the Courts below, the substantive sentence of simple

imprisonment for five years that was passed by the Courts

below is reduced to simple imprisonment for two years. The

revision petitioner shall submit himself immediately before the

learned trial Court and undergo the punishment, failing which

the learned trial Court shall secure his presence and enforce the

punishment.

20. The Registry is directed to take steps immediately under

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

Court below and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

petitioner in Sessions Case No.333 of 2006, dated 31.03.2008,

and to report compliance to this Court. Registry is directed to

dispatch a copy of this order along with the lower Court record,

if any, to the Court below on or before 18.03.2023. A copy of

this order be placed before the Registrar (Judicial), forthwith, for

giving necessary instructions to the concerned Officers in the

Registry.

Dr. VRKS, J Crl.R.C.No.1501 of 2008

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 15.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1501 of 2008

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.1501 of 2008

Date: 15.03.2023

Ivd