Ade Sakru Bai A2, Jainoor, ... vs The State Of A.P., Rep. By P.P., ...
2022 Latest Caselaw 4119 Tel

              HON'BLE SRI JUSTICE K.SURENDER

     CRIMINAL APPEAL Nos.1197 OF 2009 and 485 of 2010
COMMON JUDGMENT:
1.

Since both these appeals are arising out of Spl.S.C.No.2 of

2009, they are being heard together and disposed off by way of this

Common Judgment.

2. Criminal Appeal No.1197 of 2009 is preferred by the

appellants/A2 to A4 and Criminal Appeal No.485 of 2010 is

preferred by the appellant/A1.

3. The 1st appellant/A1 is convicted and sentenced to undergo

rigorous imprisonment for a period of seven years and to pay fine of

Rs.10,000/-, in default of payment of fine, to undergo simple

imprisonment for a period of three months under Section 376 r/w

Section 511 of IPC. A1 is also convicted and sentenced to undergo

rigorous imprisonment for a period of two years and to pay fine of

Rs.2,000/-, in default, to suffer simple imprisonment for a period of

one month for the offence under Section 3(1)(xii) of SCs/STs (POA)

Act, 1989. The Accused Nos.2 to 4/appellants 2 to 4 are convicted

and sentenced to undergo rigorous imprisonment for a period of

seven years each and to pay fine of Rs.5,000/- each, in default, to suffer simple imprisonment for a period of three months under

Section 376 r/w Section 109 of IPC vide judgment in Spl.S.C.No.2

of 2009 dated 25.09.2009 passed by the Special Judge for trial of

SCs & STs (POA) Act, 1989, Adilabad. Aggrieved by the same,

present appeal is filed.

4. For the sake of convenience, the parties hereinafter will be

referred to as arrayed in the Sessions Case. The case of the

prosecution is that P.W.1 is the father of the victim girl P.W.2. On

28.08.2007, P.W.1 lodged a complaint stating that on 27.08.2007 at

about 11.00 p.m, A3 went to the house of P.W.1 and sprinkled

water on the face of P.W.2 and stated that her mother-A2 had some

work. P.W.2 followed A3, A4 was waiting outside accompanied by

A2 and A4. A2 and A4 allegedly pushed P.W.2 into the house of A2

and closed the door. It is the evidence of P.W.2 that when she was

in the room, A1 removed his pant and tried to remove her pyjama

and commit rape and when she made hue and cry, P.W.1 and his

wife( not examined) went to the rescue of P.W.2. P.W.2 came out

and narrated what transpired inside the house of A2.

5. Learned counsel for the appellants submit that the alleged

case of the prosecution appears to be a made up case and highly

improbable for the reason of the appellants A2 to A4 pushing P.W.2

inside the house where A1 was present and A1 trying to commit

rape on her. He further submits that even according to the

complainant and the statement of P.W.2, A1 when inside the house

removed his pant and tried to remove the clothes of P.W.2, for

which reason, it cannot be said that the offence under Section 376

of IPC read with Section 511 of IPC is attracted. He further submits

that A2 to A4 except stating that they had pushed her in the room.

It cannot be said that A2 to A4 have committed the offence under

Section 376 r/w 109 of IPC. In the said circumstances, the

appellants are liable to be acquitted. In support of his contentions,

he relied on the judgments reported in: i) Tukaram Govind Yadav

v. State of Maharashtra [ 2011 Cri.L.J.1501], in which case, the

High Court of Bombay held that outraging the modesty of women

and attempt to commit rape has a thin line of division and should

be decided on the facts of each case; ii) State of Orissa v. Sukadev

Pradhan [1987 Crl.L.J 605], wherein the Orissa High Court held

that in the facts and circumstances, no case under Section 376 of IPC was made out. However, the appellant therein was convicted

under Section 354 of IPC; iii) Ram Sagun Yadav v. State of Bihar [

2018 Crl.L.J.435], wherein the Patna High Court reduced the

sentence of imprisonment to the period already undergone by

altering the conviction under Section 376 to Section 354 of IPC.

6. Learned Public Prosecutor submits that there is a clear

admission of rape committed on P.W.2 by A.1. The said admission

was pursuant to A2 to A4 pushing P.W.2 inside the house of A2,

wherein A1 was present. The said acts of A2 to A4 amounts to

abetting the commission of rape, for which reason, the conviction

cannot be interfered with.

7. The complaint Ex.P1 and also the evidence of P.Ws.1 and 2 go

to show that A1 had removed his pant and also tried to remove the

clothes of P.W.2. However, it is not the case that her wearing

apparel was removed and there was attempt of rape. The act of

trying to remove the clothes will not amount to an offence under

Section 376 r/w 511 of IPC. However, the allegation that A1

removed his clothes and tried to pull the clothes of P.W.2 will amount to an offence of outraging the modesty of woman

punishable under Section 354 of IPC.

8. The appellants 2 to 4 were convicted for the offence under

Section 376 r/w 109 of IPC. There is no evidence to suggest that A1

had tried to commit rape on P.W.2, for which reason, the charge

under Section 376 of IPC r/w 109 of IPC against A2 to A4 cannot be

sustained. Accordingly, the conviction of A2 to A4 is set aside.

9. However, the act of A1 in removing his wearing apparel and

trying to pull down the clothes of P.W.2 would amount to an offence

under Section 354 of IPC and accordingly, the conviction under

Section 376 r/w 511 of IPC is set aside and the A1 is convicted and

sentenced to undergo rigorous imprisonment for a period of two

years under section 354 of IPC.

10. In the evidence of P.Ws.1 and 2 coupled with Ex.P1, there is

no mention of any act committed by A1 with the knowledge that

P.W.2 belongs to SC or ST community. In the said circumstances,

the provision of Section 3(1)(xii) of SCs/STs (POA) Act is liable to be

set aside and accordingly set aside.

11. In the result, the impugned judgment in Spl.S.C.No.2 of 2009

in so far as A2 to A4 is concerned, the same is set aside and A2 to

A4 are acquitted. Since A2 to A4 are on bail, their bail bonds shall

stand cancelled. As far as A1 is concerned, the conviction and

sentence under Section 376 r/w 511 of IPC and Section 3(1)(xii) of

SCs/STs (POA) Act is set aside. However, A1 is convicted and

sentenced to undergo rigorous imprisonment for a period of two

years for the offence under Section 354 of IPC. The trial Court shall

take steps to secure the presence of the A1 and sent him to prison

to serve out the sentence. The remand period undergone by the

appellant shall be set off under Section 428 of Cr.P.C.

12. Accordingly, the Criminal Appeal No.1197 of 2009 is allowed

and Criminal Appeal No.485 of 2010 is partly allowed. As a sequel

thereto, miscellaneous applications, if any, shall stand closed.

_________________ K.SURENDER, J Date:11.08.2022 kvs HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.1197 of 2009 & 485 OF 2010

Dated: .08.2022

kvs