Andhra Pradesh High Court - Amravati
Donkena Venkateswararao, vs State Of A.P., Rep By Pp., on 6 August, 2024
APHC010497232009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
TUESDAY ,THE SIXTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 2177/2009
Between:
Donkena Venkateswararao, ...PETITIONER
AND
State Of A P Rep By Pp ...RESPONDENT
Counsel for the Petitioner:
D SANGEETHA REDDY
Counsel for the Respondent:
PUBLIC PROSECUTOR
The Court made the following:
ORDER:
Assailing the judgment dated 18.12.2009 in Crl.A.No.103
of 2008 on the file of the Court of learned I Additional Sessions
Judge, Krishna at Machilipatnam, confirming the conviction
and sentence passed against the petitioner/accused by the
judgment dated 09.07.2008 in S.C.No.73 of 2008 on the file of
the Court of learned I Additional Assistant Sessions Judge at
Vijayawada, for the charges under section 448 and 354 of
Indian Penal Code (hereinafter referred to as "IPC"), the
petitioner/accused filed the present criminal revision case
under Section 397 r/w.401 of the Criminal Procedure Code,
1973.
2. The revision case was admitted on 23.12.2009 and the
sentence of imprisonment imposed against the petitioner was
suspended, vide orders in Crl.R.C.M.P.No.3066 of 2009.
3. The shorn of prosecution case is that:
i). On 29.08.2007, in the morning hours, P.W.2 went to
Mylavaram for purchase of medicines as he is practicing
as P.M.P. doctor and P.W.1, who is wife of P.W.2, was
alone present in the house. Then the accused went to
her house and asked her to give some tablets for his
mother and P.W.1 given some tables. Few minutes
thereafter, accused again came to her and asked to give
another tablet. While P.W.1 was going inside the house,
accused followed her and caught hold her hand, took her
into her bedroom and outraged the modesty demanding
her to satisfy his lust. On that P.W.1 resisted and raised
crimes and then the accused escaped from the place by
threatening her with dire consequences. On hearing her
cries, neighbors came there.
ii). Basing on the report of P.W.1, P.W.6-A.S.I.,
Mylavaram Police Station, registered a case in
Cr.No.139p of 2007 for the offences under Section 448
and 354 of IPC and investigated into.
4. After completion of investigation, P.W.6 filed charge sheet
and the same was numbered as P.R.C.No.44 of 2007 on the file
of the Court of learned I Additional Metropolitan Magistrate at
Vijayawada, committed to the Court of Sessions, numbered as
S.C.No.73 of 2008 on the file of the Court of learned I Additional
Assistant Sessions Judge at Vijayawada, after full-fledged trial,
vide judgment dated 09.07.2008, found the accused guilty of
the offences under Section 354 and 448 of IPC, sentenced him
to undergo simple imprisonment for two (2) years and to pay
fine of Rs.100/-, in-default to suffer simple imprisonment of one
week and also sentenced him to pay fine of Rs.100/-, in default
to suffer simple imprisonment of one week, for the respective
offences.
5. Aggrieved by the same, the petitioner/accused preferred
an appeal, vide Crl.A.No.103 of 2008, before the Court of
learned I Additional Sessions Judge, Krishna at Machilipatnam
and the same was dismissed, vide judgment dated 18.12.2009,
by confirming the conviction and sentence passed by the trial
Court.
6. Against the said judgment of the Appellate Court, the
present criminal revision case was preferred by the
petitioner/accused.
7. Heard Sri Md.Ismail, learned counsel representing
Smt.D.Sangeetha Reddy, learned counsel for the
petitioner/accused and Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent-State.
8. Now the point that arises for determination in this
revision is "whether there is any manifest error of law or flagrant
miscarriage of justice in the findings recorded by the Trial Court
as well first Appellate Court?"
9. Sri Md.Ismail, learned counsel representing
Smt.D.Sangeetha Reddy, learned counsel for the
petitioner/accused submits that prosecution failed to establish
the ingredients to constitute the charge alleged against the
petitioner; that there is abnormal delay in lodging the F.I.R.;
that the sole testimony of P.W.1 is interested in nature and
same cannot be relied upon; that none of the neighbours were
examined to support the prosecution version, which is fatal to
the prosecution case; that there is material discrepancy in 161
statement and Ex.P.1 with regard to date of incident, which is
not considered by the Courts below; that the Trial Court as well
first Appellate Court failed to appreciate the material on record
in proper perspective, erroneously convicted the petitioner for
the said offences and thereby, prays to consider the present
revision.
10. As against the same, Sri S.Dheera Kanishk, learned
Special Assistant Public Prosecutor for the respondent-State
submits that the testimony of prosecution witnesses
categorically shows that the accused outraged the modesty of
P.W.1; that sole testimony of P.W.1, which is consistent and
cogent, is sufficient to come to conclusion that accused has
committed the offence; that the minor discrepancies regarding
dates in the statement, while appreciating the evidence in
criminal cases, cannot be a ground to discredit the entire
testimony and they can be ignored; that prosecution
categorically established the guilt of the petitioner beyond all
doubt; that the Courts below rightly appreciated the material on
record, convicted the petitioner for the said charges and that
there is no material on record to discard the findings recorded
by both the Courts below.
11. In view of the above rival contentions, this Court perused
the entire material available on record. To prove the charges
leveled against the petitioner, prosecution got examined P.Ws.1
to 6. P.W.1 is the victim, P.W.2 is husband of P.W.1, who came
to know the incident through P.W.1, P.Ws.3 and 4 are
neighbours, who said to be present immediately after the
incident on hearing the cries of P.W.1, P.W.5 is the mediator to
the observation of scene of offence and P.W.6, who registered
the F.I.R. and investigating officer.
12. It is the prosecution version that on hearing the cries of
P.W.1, P.W.3 and 4 went to the scene of offence and found the
accused escaped from the scene of offense by jumping he wall.
But, during cross examination, P.W.4 categorically testified that
she did not hear the cries, she was inside the house and
watching the green gram and the house of P.Ws.1 and 2 is not
visible where she was sitting and she found accused at the
house of Gowda people. Thereby, the testimony of P.W.4 is of no
use to the prosecution case.
13. Admittedly, the testimony of P.W.2 is hearsay in nature
and to corroborate the testimony of P.W.1/victim, the only
testimony available to the prosecution is P.W.3. He testified that
he heard the cries of P.W.1 from her house, rushed to main gate
of P.W.1, found the accused while he was escaping from the
house of P.W.1 and he chased him to some distance by
questioning about the reason for escape.
14. To appreciate the same, the testimony of P.W.1 is that
after the incident, accused came out from the house and while
jumping the wall P.W.3 questioned him and followed him. But
the testimony of P.W.3, as stated supra, all-together different
that he chased the accused for some distance by questioning
about the incident. More so, during cross examination, P.W.1
admitted that there are two entrances to her house, accused
came out of the house from the eastern entrance and she came
out of the house on the northern entrance, which is front of the
kitchen. On perusal of Ex.P.4 rough sketch, there is a
compound wall to the house of P.W.1 and there is a main road
in front of the house of P.W.1, which is northern side. But
nothing was stated in the testimony of P.W.3 regarding the
alleged jumping of compound wall by the accused while
escaping from the house of P.W.1. On the other hand, he
categorically testified that he rushed to main gate of P.W.1,
found accused and cashed him to some distance. This
inconsistency goes to show that his testimony became
unreliable. Thereby, the testimony of P.W.3 also is of no use to
the prosecution case. As such, to establish the charges leveled,
the only testimony available to the prosecution is P.W.1/victim.
15. No doubt, in a case of outrage the modesty of a women,
the testimony of the victim is sufficient, however, it should be
free from improvements, contradictions, or exaggerations. To
determine whether the testimony of victim is trustworthy,
wholly reliable and sufficient to prove the charges, the Court will
carefully evaluate the victim's testimony by considering the four
factors i.e., consistency, corroboration, credibility, and
reliability.
16. As discussed supra, there is no corroboration to the
testimony of P.W.1. Regarding credibility and consistency in the
testimony of P.W.1, it is the main contention of the petitioner
that there is material discrepancy in respect of date of alleged
offence. As per the prosecution version, the incident said to be
happened on 29.08.2007 and she presented Ex.P.1 report at
05.00 p.m., but on perusal of Ex.D.1/relevant portion in 161
Cr.P.C. statement of P.W.2, the entire incident was taken place
on 28.08.2007 itself. More so, as per the 161 Cr.P.C. statements
of other witnesses, including P.W.1, the incident said to be
taken place on 28.08.2007 itself. Furthermore, the date put
underneath the signature of the investigating officer, who
recorded the said statement of prosecution witnesses on date of
incident itself, also shows that the same was recorded on
28.08.2007 itself. If that is so, the entire testimony of P.W.1 that
the incident said to be happened on 29.08.2007 cannot be
believed. The said discrepancy is not explained by the
prosecution, which cut the root of the case.
17. More so, it is the testimony of P.W.1 that when the
accused taken the PW1 to the bedroom and lifted her saree, bed
sheet was scattered in that scuffle and she bites the hand of
accused and raised cries. But no medical record or otherwise
produced by the prosecution to prove the said fact. More over in
the complaint and statement of PW1 stated her bed sheet was
scattered in that scuffle, but the same is not noticed by the
police while observing the scene offence nor stated by PW1 and
that there are no two gates as suggested and if there are two
gates why the accused jumped from the wall, all it goes a long
way to doubt the testimony of PW1.
18. Thereby, viewing from any angle, as discussed supra, the
prosecution miserably failed to prove the guilt of the accused for
the said charges. The Trial Court as well as the first Appellate
Court failed to appreciate the above said aspects, mechanically
proceed with the prosecution version and erroneously made the
findings against the petitioner. As such, the Trial Court as well
first Appellate Court miserably failed to appreciate the lacunas
in the prosecution case, which cut the root of the case and
convicted the petitioner for the said charges, which is not
tenable under law.
19. Having regard to the above discussion, this Court is of the
considered opinion that the Trial Court as well first Appellate
Court failed to appreciate the material on record in proper
perspective, there is manifest error of law and flagrant
miscarriage of justice in the findings recorded by the trial Court
as well first Appellate Court, thereby, the present criminal
revision has merits and liable to be considered.
20. In the result, the Criminal Revision Case is allowed. The
conviction and sentence passed against the petitioner/accused,
vide judgment dated 09.07.2008 in S.C.No.73 of 2008 on the file
of the Court of learned I Additional Assistant Sessions Judge at
Vijayawada, as confirmed in the judgment, dated 18.12.2009 in
Crl.A.No.103 of 2008 on the file of the Court of learned I
Additional Sessions Judge, Krishna at Machilipatnam, are
hereby set aside. The revision petitioner/accused is acquitted of
the charges under Section 448 and 354 of IPC. The fine amount
paid by the petitioner/accused, if any, shall be refunded to him.
Interim orders granted earlier if any, stand vacated.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
______________________
JUSTICE V.SRINIVAS
Date: 06.08.2024
Krs
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.2177 of 2009
DATE: 06.08.2024
Krs
