The State Of Ap., vs Ajmeera Raghu
2022 Latest Caselaw 444 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

               CRIMINAL APPEAL No.353 of 2014
ORDER:

This Criminal Appeal is preferred by the State represented by

the Public Prosecutor to set aside the judgment dated 26.07.2012

passed in SC No.405 of 2011 by the Principal Assistant Sessions

Judge, Warangal, against the respondent - accused acquitting him for

the offences under Sections 448, 354 and 506 IPC .

2. The case of the prosecution in brief was that on 07.08.2009

at 2.30 AM, the complainant, a victim woman, aged about 35 years

came to Subedari Police Station and lodged a report against the

respondent - accused stating that on 06.08.2009 at 11.30 PM the

accused criminally trespassed into her house at Banjara Colony,

Ramnagar, Hanmakonda, outraged her modesty and threatened her

with dire consequences. The complainant stated in the complaint that

her husband died five years ago and she had two children and she was

eking her livelihood by doing coolie work. On 06.08.2009 as usual

she returned home from coolie work at 6.00 PM and after having

dinner she along with her children slept at 9.00 PM. The accused who

was residing in the same locality, who had an evil eye on her,

trespassed into her house when she was in deep sleep at about 11.00

PM, slept on her cot by her side and laid his leg with an intention to

fulfil his lust and tried to outrage her modesty. She raised hue and cry

and tried to catch the accused. In the tussle her blouse was torn. On

her hue and cry, the colony people woke up and tried to catch the Dr.GRR,J

accused. The accused threatened her with dire consequences that if

she reported the matter to anybody or police, he would see her end

and fled away. The colony people tried to catch hold him, but he

managed to escape. Basing on the said report, Crime No.368 of 2009

was registered under Sections 448, 354 and 506 IPC. The accused was

arrested on 10.08.2009 and after completing the investigation police

filed charge sheet against him for the above offences. The case was

taken on file by the IV Additional Judicial Magistrate of First Class,

Warangal and committed to the Sessions Court, Warangal. The same

was made over to the Principal Assistant Sessions Judge, Warangal

for disposal in accordance with law. The Principal Assistant Sessions

Judge framed charges against the accused for the offences under

Sections 448, 354 and 506 IPC. The accused pleaded not guilty and

claimed to be tried. The prosecution got examined PWs.1 to 8 and got

marked Exs.P1 to P5. No defence evidence was adduced by the

respondent - accused. After considering the oral and documentary

evidence on record, the Principal Assistant Sessions Judge, acquitted

the accused on all the counts.

3. Aggrieved by the said acquittal, the State preferred this

appeal contending that the judgment of the learned Principal Assistant

Sessions Judge, Warangal was contrary to law, weight of evidence

and probabilities of the case. The learned Judge ought to have seen

that the ingredients to constitute the offences punishable under

Section 448, 354 and 506 IPC were made out by the prosecution Dr.GRR,J

against the accused. The learned Judge ought to have seen that the

evidence of PWs.1 to 4, 7 and 8 were corroborating with each other,

the learned Judge had not considered the evidence of the prosecution

witnesses in correct perspective. The reasons assigned in acquitting

the accused were unsustainable and prayed to set aside the judgment

of the trial Court.

4. Heard the learned Assistant Public Prosecutor. Notice was

served on the respondent - accused. But he failed to appear before the

Court and contest the matter.

5. Now, the point for consideration is whether the judgment of

the trial court is sustainable or whether it needs any interference by

this Court?

6. Perused the record and the evidence of the prosecution

witnesses. The complainant-victim was examined as PW.1. She

stated in her evidence that about 2 years 7 months ago while she was

asleep at 11.30 PM she woke up as she found the accused lying beside

her and placed his hand and leg on her and tried to outrage her

modesty, she caught hold him, he had torn her upper garment. She

raised hue and cry. Her neighbours Ramdas and Shanthi rushed to

her. They had seen the accused fleeing away from her house. The

accused gained entry into the house as the door was not bolted from

inside of the house and he tried to commit rape on her. She stated

that, she went to the police station and lodged complaint thereafter,

and identified Ex.P1 as the complaint given by her. In her cross-

Dr.GRR,J

examination, she stated that Ex.P1 was scribed by her brother-in-law.

It was suggested to her that there was a pan shop run by one Rajitha

and the accused came to the said pan shop at 9.00 PM for purchase of

cigarettes and a quarrel took place between her and the accused and

she and her brother bet the accused in retaliation, which was denied

by her. When questioned about the age of her children, she stated that

her daughter was 11 years old and her son was 9 years old.

7. A neighbour of PW.1, by name, L. Ramdas, who was cited

as an eye witness to the incident, was examined as PW.2. He stated

that two years ago at 11.30 PM, on hearing the cries of PW.1, he

along with LW.3 Tirupathi (brother-in-law of PW.1) and the brother

of PW.1 rushed to the house of PW.1 and found the accused fleeing

away from the house of PW.1. They chased the accused and tried to

catch him. PW.1 informed them that the accused entered into her

house to outrage her modesty. She lodged a complaint in the said

regard.

In his cross examination he stated that his house was situated

three houses after the house of PW.1, the house of PW.1 was a hut

having one room and there was a door to the said house. She was

having a daughter aged 14 years or 15 years old and a son 11 years

old. He admitted that PW.1 made hue and cry, there was every

possibility of her children waking up. He admitted that there was a

pan shop at a distance of 100 yards from the house of PW.1 and he

stated that he did not know whether the accused came to the said pan Dr.GRR,J

shop for the purpose of purchasing the cigarettes and the brother of

PW.1 picked up a quarrel with the accused and PW.1 foisted a false

case against the accused.

8. The brother of PW.1 by name Banoth Bhura was examined

as PW.3. He stated that he was a resident of Pedavangara village.

PW.1 was his sister. She was a widow. He went to the house of

PW.1 from his village. He slept in the shed (paaka) in front of the

house of PW.1. He heard the cries of PW.1 at 11.00 PM, woke up and

rushed to her and found the accused fleeing away from the house of

PW.1. PW.1 informed him that the accused entered into the house

and when she raised hue and cry, he fled away. He stated that

Tirupathi, Ramdas and Shanta rushed to the house of PW.1 on hearing

the cries of PW.1. He along with PW.1 and others went to the police

station at 2.00 AM and PW.1 lodged the complaint.

He stated in his cross examination that he slept in front of the

house of PW.1 in the court yard, it was during rainy season the

incident took place and on hearing the cries, he woke up and found the

accused fleeing away from the house of PW.1. He chased and caught

hold the accused at his house but the accused escaped and thereafter,

the police arrested him. He stated that LW.3 Tirupathi (brother-in-law

of PW.1) rushed to the house of PW.1 on hearing her cries

immediately and by the time he woke up, the accused was on the way

to his house.

Dr.GRR,J

9. Another neighbour of PW.1, by name, P. Shanta, was

examined as PW.4. She stated that about 3 years 6 months ago, at

about 11.00 PM, she heard the cries of PW.1. She along with

Tirupathi, PWs.2 and 3 rushed to the house of PW.1. On enquiry,

PW.1 informed her that accused entered into her house and outraged

her modesty by tearing her blouse and when she raised hue and cry, he

fled away. She stated that she had seen the accused fleeing away from

the house of PW.1 and found the blouse of PW.1 torn.

In her cross-examination she stated that the house of PW.1 was

situated two or three houses after her house. She stated that she had

not seen the accused tearing the blouse of PW.1, she had seen the

accused fleeing away from the house of PW.1 towards his house,

which was situated towards her house.

10. The panch witnesses for the crime details form were

examined as PWs.5 and 6. Both these witnesses turned hostile and

stated that police obtained their signatures on some papers two years

ago.

11. The Head Constable of Subedari Police Station, who

registered the FIR, was examined as PW.7. He stated that on

07.08.2009 at 2.30 AM, PW.1 came to the police station and lodged

the report. Basing on it, he registered a case in Crime No.368 of 2009

for the offences under Sections 448, 354 and 506 IPC and issued FIR.

He stated that he recorded the statement of PW.1, visited the scene of

offence on the following day morning, drafted the crime detail form in Dr.GRR,J

the presence of mediators and also examined PWs.2, 3, 4 and LW.3

Tirupathi and recorded their statements.

12. The Sub-Inspector of Police of Subedari Police Station,

who investigated the case, arrested the accused and filed charge sheet,

was examined as PW.8. He stated about the investigation conducted

by him and that he arrested the accused on 10.08.2009 at 11.00 AM

and on interrogation, the accused confessed the crime and he

produced him before the Court and after investigation, filed charge

sheet.

13. LW.3 Tirupathi - the brother-in-law of PW.1 was reported

to have expired as such he could not be examined. PW.4 stated in her

evidence about the expiry of LW.3 Tirupathi.

14. The trial court observing that PW.1 had not stated about

her brother PW.3 rushed to her house on hearing her hue and cry, and

PWs.2 and 4 stated about PW.3 and LW.3 rushing to the house of

PW.1, considered it as inconsistency in the evidence of PWs.1 to 4.

The trial court also observed that PW.3 initially stated about sleeping

in front of the house of PW.1 and subsequently, in his cross

examination shifted his version by stating that he slept in front of the

house in the court yard, also considered it as an inconsistency. The

trial Court also observed that non-examination of the children of

PW.1 was fatal to the prosecution case and considered them as

material witnesses to the case of the prosecution. The trial court also

made an observation that PW.1 stated about not bolting the door of Dr.GRR,J

the house from inside and therefore, accused managed to gain entry

into the house and the said explanation did not appeal to the reason as

she should have bolted the door from inside before going to sleep,

being a widow and having minor children which was not in the

normal state of things. The trial court also observed that there was a

delay of more than 12 hours in lodging the complaint. The trial Court

observed that the incident having taken place at Hanmakonda town

where the police station of Subedari was situated, it was quite possible

for lodging the complaint at least in the early hours of 07.08.2009.

15. The trial Court also pointed out that Ex.P.5 Crime Detail

Form did not show the house of PW.1, but would show the house one

Guguloth Bujji as the scene of offence and it was not the case of the

prosecution that PW.1 was called as Bujji. None of the prosecution

witness including PW.1 stated that Bujji was no other than PW.1.

Thus, the occurrence of the incident at the house of PW.1 itself was

doubtful.

16. PW.1 stated in her evidence on 20.03.2012 that the incident

took place at 11.30 PM about 2 years 7 months ago. As per the FIR,

the complaint was given on 07.08.2009 at 2.30 hours. All the

witnesses also stated about lodging the report immediately in the

police station at the time of the incident itself. The Head Constable

examined as PW.7 also stated that PW.1 lodged the complaint on

07.08.2009 at 2.30 AM. As such there was no delay in lodging the

report. Immediately after the incident that occurred on 06.08.2009 at Dr.GRR,J

11.30 PM on the mid night itself, PW.1 went to the police station

accompanied by other witnesses PWs.2 to 4 and lodged the report.

Thus, the observation of the trial Court that there was a delay in

lodging the report is considered not proper as it was contrary to the

oral and documentary evidence on record.

17. The trial Court also observed that there was delay in

dispatch of the FIR to the Court. But the FIR was received by the IV

Additional Judicial Magistrate, Warangal on 07.08.2009 at 4.00 PM.

The delay of dispatching FIR in the absence of any explanation was

also considered as fatal to the case of the prosecution by the trial

Court. But how the said delay in dispatching FIR to the court was fatal

was not explained by the trial Court. Each and every delay was not

fatal to the prosecution case unless there is a suggestion as to the false

implication of the accused due to the said delay. There was no cross

examination on PW.7 with regard to the delay in dispatch of FIR to

the Court. As such, the said observation of the trial Court is also

considered as improper.

18. Though PWs.5 and 6 - the panch witnesses of crime details

form turned hostile, PW.7 the Head Constable stated in his evidence

that he visited the scene of offence on the following day morning and

drafted the crime detail form. He admitted that the house of Guguloth

Bujji was shown in Ex.P.5 map. But no doubt was expressed by the

defence and no cross examination was made on PW.1 if there was any

doubt as to whether PW.1 was also called as Guguloth Bujji or not. If Dr.GRR,J

PWs.1 and 3 were questioned with regard to the same they would

have explained or answered about it, whether PW.1 was also called as

Bujji or not. When PW.1 stated that the incident took place at her

house, there is no reason to suspect her evidence that the occurrence

of the incident at the house of PW.1 was doubtful by the trial Court.

19. The inconsistencies observed by the trial court were also

not on material facts. PW.3 stated that he slept in the shed (paaka) in

front of the house of PW.1 in his chief examination and in his cross

examination stated that he slept in front of the house of PW.1 in the

court yard during the night time. This court does not find any

inconsistency in the said evidence.

20. The observation of the trial Court that there was

inconsistency in the evidence of PWs.1 to 4 with regard to PWs.3 and

LW.3 Tirupathi rushing to the house of PW.1 is also not proper as it

was not on a material fact. Who rushed to the house of PW.1 first is

not a material fact to prove the alleged offences under Sections 448,

354 and 506 IPC. PW.1 not stating about her brother and brother-in-

law rushing to the house on her hue and cries is not a material

omission. When the victim stated in clear terms that the accused slept

beside her and placed his hand and leg on her and tore her upper

garment and outraged her modesty and the evidence of the other

independent witnesses like PWs.2 and 4 also supported her evidence

that they found the accused fleeing away from the house of PW.1 and

PW.4 stated that she observed the blouse of PW.1 torn, the trial Court Dr.GRR,J

disbelieving their evidence and acquitting the accused pointing

inconsistencies on some irrelevant facts is highly improper. The trial

court failed to observe that PW.1 was a young widow, a tribal woman

having two minor children, living in a hut and eking her livelihood by

doing labour work. The trial court pointed out that not bolting the

door of the house from inside does not appeal to reason, but failed to

observe that she was living in a hut where there might not be strong

doors and bolts to the house.

21. The observation of the trial court that non-examination of

the children was fatal to the prosecution case also does not appeal to

reason. Children cannot be called to the court and cited as witnesses

unless it is very much essential and there were no other witnesses to

prove the said facts. When there were adult witnesses available, the

victim herself as well as the neighbours and the other persons who can

speak about the incident, the non-examination of children to prove the

incident is considered as not fatal. The trial Court had not given any

cogent reasons for not believing the evidence of the victim PW.1 and

that of the other witnesses PWs.2 to 4.

22. The accused tried to take a weak defence that some

incident took place at the pan shop in the day time due to which a

false case was foisted by PW.1, but failed to examine any witnesses to

prove the said defence. The prosecution witnesses had not supported

the defence version on the same.

Dr.GRR,J

23. Thus, it is considered that the trial Court committed an

error in not considering the evidence of prosecution witnesses in

correct perspective though the evidence of PWs.1 to 4, 7 and 8 were

corroborating with each other, acquitted the accused on some minor

inconsistencies which were not fatal to the prosecution case at all.

The evidence of all the witnesses is cogent, reliable and trustworthy.

Nothing was elicited in the cross-examination of PWs.1 to 4 to

disbelieve their evidence. As such, it is considered fit to set aside the

acquittal of the accused for the offences under Sections 448, 354 and

506 IPC.

24. As the evidence of PW.1 is corroborated by the evidence of

the other witnesses PWs.2 to 4 and 7 and 8, to prove the alleged

offences under Sections 448, 354 and 506 IPC against the respondent-

accused, it is considered fit to convict the respondent-accused for the

said offences and sentence him for the said offences.

25. In the result, the Criminal Appeal is allowed setting aside

the judgment dated 26.07.2012 passed in SC No.405 of 2011 by the

Principal Assistant Sessions Judge, Warangal, acquitting the

respondent- accused for the offences under Sections 448, 354 and 506

IPC. The respondent-accused is found guilty of the said offences and

is accordingly convicted and sentenced to undergo rigorous

imprisonment for a term of one year for the offence under Section 448

IPC, to undergo rigorous imprisonment for a term of two years and to

pay a fine of Rs.2,000/- in default, to undergo simple imprisonment Dr.GRR,J

for a period of three months for the offence under Section 354 IPC

and also to undergo rigorous imprisonment for a term of one year for

the offence under Section 506 IPC. All the sentences shall run

concurrently.

26. The respondent-accused shall surrender before the Court

concerned within fifteen (15) days from the date of receipt of a copy

of this judgment, to serve the sentences inflicted against him under

this judgment and in the event he fails to do so, the Court concerned

shall initiate steps in accordance with law to apprehend and

incarcerate him for the sentence imposed against him. The period of

custody at the time of arrest of the respondent-accused in this case

shall be given set off.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J February 04, 2022 KTL