Sankidi Jaipal Reddy, A1, ... vs The State Of Ap Rep By Its Pp Hyd.,
2022 Latest Caselaw 3692 Tel

            HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.152 OF 2008
JUDGMENT:

1. The 1st appellant/A1 was convicted and sentenced to

undergo rigorous imprisonment for a period of ten years for

the offence under Section 376 IPC and also to pay fine of

Rs.5,000/-, in default, simple imprisonment for a period of six

months; he was further convicted and sentenced to undergo

rigorous imprisonment for a period of ten years for the offence

under Section 306 IPC and also to pay fine of Rs.5,000/-, in

default, simple imprisonment for a period of six months and

also to pay fine of Rs.1,000/-, in default, simple imprisonment

for a period of three months and also to pay fine of Rs.1,000/-

under Section 506 IPC, in default, simple imprisonment for a

period three months; 2nd appellant/A2 was convicted and

sentenced on the same counts as that of A1, except Section

376 and the offence under Section 392 IPC, as the same are

not made out, vide judgment in SC No.252 of 2003, dated

04.12.2007 by the learned Assistant Sessions Judge, Jagtial

(for short 'learned Assistant Sessions Judge').

2. The 1st appellant/A1 died on 25.05.2017 and death

certificate is filed, as such, the appeal abates as against 1st

appellant/A1.

3. The case of the prosecution is that on 13.03.2002, the

appellants herein and another accused(A-3) met in

Karimnagar around 11.00 p.m. They consumed liquor up to

1.00 a.m and after consuming liquor, A3 went to purchase

cigarettes and noticed the deceased along with P.W.5, who

were waiting for Raikal Bus and suspected that the deceased

was a prostitute. He called A-1 and A-2. A1 impersonating as a

police officer, asked them to reveal their identity. A2 and A3

also impersonated as police officers and informed that they

intend to collect blood samples for aids test from the deceased.

A1 and A2 took the deceased in auto and A3 took P.W.5 to

the guest house. A1 and A2 arrived and forcibly sent out

P.W.5 with a warning not to report to anyone and took

Rs.200/- from her forcibly. Then, A1 got opened the bar gate

and kept A2 and A3 at the gate and forcibly committed rape on

the deceased by threatening her with a beer bottle. At 3.00

a.m, the deceased was dropped at Karimnagar Bus stand. On

15.03.2002, the deceased meet P.W.5 and informed that she

was raped on 13.03.2002, but refused to report the matter to

the police. She was mentally disturbed and consumed

pesticide on 16.03.2002. At about 2.30 p.m, the sister of the

deceased P.W.1 took the body of the deceased and gave a

written complaint stating that the deceased sister went about

10.00 a.m to attend calls of nature and consumed poison.

4. The police registered a crime and took up investigation.

On 18.03.2002, P.W.5 was examined, who narrated the facts

regarding A1 to A3 forcibly taking the deceased and thereafter,

the deceased informing him on 15.03.2002 that she was raped

on 13.03.2002 after PW5 left the guest house.

5. On completion of investigation, the police filed charge

sheet under Sections 376, 306, 170, 506 and 392 of IPC.

6. Since A3 was absconding, the case was split up and A1

and A2 were tried. Subsequently, A3 was also tried vide

S.C.No.160 of 2009 and by judgment dated 05.05.2014, A3

was acquitted by the Assistant Sessions Judge, Jagityal.

7. The prosecution has not preferred appeal against the

acquittal of A3.

8. Learned counsel for the appellants would submit that the

allegation of rape is against A1 and even according to the

prosecution, since A1 committed rape on her, she committed

suicide. There is no allegation of rape against A2 and A2 and

A3 stand on the same footing. A3 was acquitted by the

learned Assistant Sessions Judge and there is no appeal

preferred by the State. In the said circumstances when there

is no evidence against A2, in view of acquittal of A3, the

present appeal against A2 has to be allowed.

9. Learned Assistant Public Prosecutor submits that three

persons have indulged in raping the deceased and it is a

heinous act. A2 has abetted the act of rape committed by A1,

as such, A2 is liable to be convicted under Section 306 of IPC

and rightly so by the learned Assistant Sessions Judge.

10. Having gone through the record, P.W.5's evidence is

crucial to the case of the prosecution. P.W.1, who is the

sister, who gave complaint did not mention or state anything

about any rape being committed on her deceased sister.

Further, according to the complaint, no reasons were stated by

the deceased for committing suicide. PW1 stated that she

found her sister smelling pesticide and took her to hospital.

11. P.W.5 was allegedly present on 13.03.2002, when the

alleged rape had taken place but he was examined on

18.03.2002. There is no explanation as to why P.W.5 did not

narrate the reason for the deceased committing suicide

immediately after the death on 16.03.2002 and no reason is

given as to why he left the deceased with accused in night

around 1 am and did not inform anyone about the incident on

the same day or the next date. It is the evidence of P.W.1 that

she found the deceased having consumed pesticide but she

does not know the reason for which her sister consumed

pesticides.

12. According to P.W.5, he met the deceased on the next date

i.e., 14.03.2002 and again says that she met her on

15.03.2002 during cross-examination. The evidence of P.W.5

goes to show that A1 had taken P.W.5 with him to the bar,

however, during trial of A.3, P.W.5 stated that it was A3 who

had taken him to the bar on his motor cycle.

13. As seen from the evidence of P.W.5, it becomes doubtful

as to why P.W.5 has not stated anything to the police for five

days and did not even give any statement regarding any such

rape being committed on the day when the deceased narrated

or the day she died.

14. The case of the prosecution is that it was A1, who had

committed rape on the deceased and there are no witnesses to

the alleged incident of rape as P.W.5 stated that Rs.200/- were

taken from him and he was sent away. It is curious as to why

PW.5, who is friend of the deceased left her in the company of

the deceased in the bar, coupled with the circumstance that

he was only identified to test after the death, as a witness to

the incident accompanying A1. However, there is no other

evidence to connect this appellant to the commission of rape

on the deceased. When the case of the prosecution is that the

deceased committed suicide for the reason of A1 raping her,

A2 cannot be convicted for the offence under Section 306 IPC,

No charge is framed against him for being involved in the act

of rape committed by A1.

15. In the said circumstances, the benefit of doubt has to be

extended to the appellant/A2 and accordingly, the conviction

recorded under Section 306 of IPC against A2 is set aside.

However, the conviction under Section 506 of IPC is to be

maintained for threatening PW5.

13. In the result, the conviction imposed by the learned

Assistant Sessions Judge, vide judgment dated 04.12.2007,

against the appellant-A2 for the offence under Section 506 is

confirmed. However, the sentence of imprisonment imposed

by the learned Assistant Sessions Judge under Section 306 of

IPC is set aside.

14. With the above modification, the Criminal Appeal is

partly allowed. As a sequel thereto, miscellaneous

applications, if any pending, shall stand closed.

__________________ K.SURENDER, J Date: 14.07.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.152 OF 2008

Date: 14.07.2022.

kvs