Chintakayala Venkataiah, vs State Of A.P., Rep By Pp.,
2022 Latest Caselaw 5635 Tel

       THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

         CRIMINAL REVISION CASE No.877 OF 2009

ORDER:

This Criminal Revision Case, under Sections 397 & 401 of

Cr.P.C., is filed by the petitioner/accused No.2, challenging the

judgment, dated 24.04.2009, passed in Criminal Appeal No.178 of

2017 by the learned IV Additional District and Sessions Judge (Fast

Track Court) at Mahabubnagar, whereby, the conviction and

sentence of rigorous imprisonment for a period of three years and

also sentence to pay a fine of Rs.2,000/- for the offence

punishable under Section 376 of IPC imposed against the

petitioner / Accused No.2 by the learned Assistant Sessions Judge,

Nagarkurnool, vide judgment, dated 07.11.2007, passed in

S.C.No.640 of 2005, was partly allowed and the sentence of

imprisonment imposed by the Trial Court is confirmed and the fine

imposed by the trial Court has been modified as compensation of

Rs.25,000-00 instead of fine of Rs.2,000-00.

2. The case of the prosecution, in brief, is as follows:

On 08-10-2004 at about 6.30 p.m. LW-1 Sevakula Utharaiah

lodged a report at Bijinapally Police Station stating that his

daughter Sevakula Chamantha, 12 years old, who was working as

a maid servant in the house of one Thumma Salman Reddy, was

found to be pregnant. On enquiry, she revealed that one Kune

Shekar resident of Velgonda Colony was responsible for her

pregnancy. Hence, requested for action.

Basing on the complaint, LW-14 Sub Inspector of Police,

Bijinapally registered a case in Crime No.93 of 2004 for the offence

punishable under Section 376 IPC and investigated into.

During the course of investigation, he examined and

recorded the statements of LWs. 1 and 2. LW-2 stated that she

was raped by her neighbour Chinthakayala Venkataiah and while

she was working in the house of Salman Reddy another person by

name Kuna Shekar raped her against her consent, resulting which,

she became pregnant. Accordingly, she was referred to

Government Area Hospital, Nagarkurnool for medical examination.

The Doctor gave a report that the age of prosecutrix is between 14

to 16 years approximately and she was carrying 28 to 30 weeks

pregnancy.

LW-15 took up further investigation and verified the

investigation done by LW-14 and found it on correct lines. Later

he examined and recorded the statements of LW-3 to LW-5 and

visited the scene of offence situated behind the Church at

Velgonda Colony, drawn the rough sketch before mediators LW-6

and LW-7 and conducted panchanama. He also visited the second

scene of offence i.e. house of A-2 draw the rough sketch and also

conducted scene of offence panchanama before mediators LW.8

and LW9. He also filed a requisition before LW10 Judicial

Magistrate of First Class, Kollapur to record 164 Cr.P.C. statement

of the prosecutrix.

On 10-11-2004 at about 3.00 p.m. on credible information,

A-1 Kuna Shekar and A-2 Chinthakayala Venkataiah were arrested

at Bijinapally Bus Stand and on interrogation, they admitted the

offence. Hence, they were referred to Government Area Hospital,

Nagarkurnool for potency test. LW-13 examined and opined that

both A-1 and A-2 are potent and then they were remanded to

judicial custody. Accordingly, after collecting all the material

documents, charge sheet was filed against A-1 and A-2.

3. Charges under Sections 376 and 506 IPC were framed

against the petitioner/accused. During the course of trial,

prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to

P.13. On behalf of the petitioner/accused, Ex.D1 and D2 were

marked and no witnesses examined.

4. After a thoughtful consideration of the oral and documentary

evidence available on record, the trial Court found the

petitioner/accused No.2 not guilty of the offence punishable under

Section 506 IPC, however, found the petitioner/accused No.2

guilty of the offence punishable under Section 376 IPC and

sentenced to undergo rigorous imprisonment for three years and

also to pay a fine of Rs.2,000-00 and in default of payment of fine,

petitioner/accused No.2 shall suffer further simple imprisonment

for six months, by judgment dated 07.11.2007. Aggrieved

thereby, the petitioner preferred Criminal Appeal No.178 of 2007

on the file of IV Additional District and Sessions Judge (Fast Track

Court), at Mahabubnagar. However, the learned IV Additional

District and Sessions Judge (Fast Track Court), after re-

appreciating the entire material available on record, partly allowed

the appeal and the judgment of the lower court is modified and the

sentence of imprisonment imposed by the lower Court is confirmed

and the fine imposed by the lower Court is modified as

compensation of Rs.25,000-00. Hence, the present Criminal

Revision Case.

5. Heard Sri C.Sharan Reddy, the learned counsel for the

petitioner/accused No.2 and the learned Assistant Public

Prosecutor representing the respondent - State and perused the

record.

6. The learned counsel for the petitioner contended that the FIR

was lodged by PW-1, who is the father of PW-2, against A-1 alone

and it is stated in the complaint-Ex.P1 that A-1 committed rape on

the victim and he alone was responsible for the pregnancy.

However, PW-1 deposed before the Court that when he went to

the police station, the S.I. informed him that A-2 was responsible

for the pregnancy and when he asked PW-2, she told that A-2 was

responsible for the pregnancy and he does not speak about A-1 at

all. In the cross examination he deposed that he does not know

the contents of the complaint, hence the evidence of PW-1 is a

complete turnaround and his evidence cannot be relied upon.

7. The learned counsel for the petitioner would further submit

that PW-2 gave statement before PW-12 under Section 164 Cr.P.C.

wherein she stated that about eight months before the report, A-2

took her to his house and committed rape and repeated the

offence ten days later and she stated that PW-7, who is her sister,

noticed the same and informed her parents and thereafter she was

sent to work as a maid in the house of Salman Reddy and that A-1

also raped her and she became pregnant through A-2 and

subsequently delivered a baby. However, PW-2 does not speak

about A-1 in her evidence and she deposed that the present report

was given as A-2 refused to marry her. She further deposed that

she went to the house of A-2 willingly as he promised to marry her

and participated in sexual intercourse with him. Hence the entire

evidence of PW-2 is full of material contradictions and omissions

and her evidence is not trustworthy and it appears that A-2 has

been implicated to shield A-1 from the offence. He would further

submit that PW-3, who is the mother of PW-2, deposed that the

report was lodged as the marriage between PW-2 and A-2 was not

performed, however in her cross examination she deposed that

though the mother of A-2 asked her to give PW-2 in marriage,

they refused to do so. Hence the evidence of PW-3 shows that

there was no forcible rape and A-2 was willing to marry PW-2 but

it was the family of PW-2, who did not permit the same.

8. The learned counsel for the petitioner would further submit

that PW-4, the grandmother of PW-1, deposed that the wife of

Salman Reddy informed her that PW-2 had friendship with A-1,

however A-1 denied the affair and later found out that A-2

committed the offence. She deposed that when she confronted

the father of A-2 and demanded money for abortion, he gave her a

silver kadiyam, however the doctor did not perform the abortion,

as such the entire evidence of PW-4 is an improvement to the case

of the prosecution and has absolutely no corroboration. PW-7,

sister of PW-2 deposed that PW-2 did not inform her about the

illicit intimacy with A-2. Therefore, the learned counsel for the

petitioner would submit that the petitioner is entitled to acquittal

because the prosecution failed to prove the guilt of the accused

beyond reasonable doubt and prayed to allow the Criminal

Revision.

9. The learned Assistant Public Prosecutor representing the

respondent - State supported the judgment passed by the

appellate Court.

10. PW-1 stated in his evidence that he know both the accused

persons who are residents of his village. About 3 or 4 years back,

his daughter Chamantha at the age of 12 years worked as maid

servant in the house of one Salman Reddy, after 3 months he

observed his daughter's stomach was big and then he went to the

SI of Police, then he informed the SI that his daughter Chamantha

became pregnant. The SI informed that he wanted to enquire in

Manganoor, then he came to the P.S. and called him. The SI

informed that A2 had illicit intimacy with his daughter due to which

she became pregnant. He further deposed that at the time of

scribing the complaint one Auto Thirupathaiah also present. Both

together scribed complaint while Auto Thirupathaiah dictated the

complaint and Sreenu scribed complaint. PW-1 further deposed

that he does not know the contents of the complaint and whose

names were mentioned in the complaint.

11. PW-2 who is the victim stated in her evidence that since the

petitioner (A.2) promised to marry her she went to the house of

A.2 and that he had intercourse with her for every two days.

About 20 days she had intercourse with A.2. While she was with

A.2 her sister caught hold of them red handedly and she did not

reveal her sister about her pregnancy. She further deposed that

since A.2 refused to marry her, they filed complaint before the

police.

12. PW-3 stated in her evidence that her daughter PW2 some

times used to go to one Gugilla Venkataiah without their

knowledge, she became pregnant and her daughter did not reveal

the name of the person, who was responsible for her pregnancy,

and she does not know the accused. When they lodged a

complaint before the DSP, no marriage was performed between

P.W.2 and A.2. When all of them enquired with PW2, she revealed

that she became pregnant through A2.

13. PW-4 stated in her evidence that finally they came to know

that A2 had intercourse with PW2 and made her pregnant, they

saw PW2 in the house of A2 and PW2 also revealed finally that

Venkataiah had intercourse with P.W.2 due to which she became

pregnant and when she asked the father of A2 to give some

money so that to get the pregnancy of PW2 abort but he did not

give any amount stating that he had no amount but he gave silver

kadiyam so she mortgaged silver kadiyam and got Rs.2,000-00

and went to Chennaikah hospital, Nagarkurnool to get abortion to

PW2. But Dr.Chennaiah refused to do abortion as it would be

danger to the life of PW2.

14. PW5 stated in his evidence that police called A.1 to the cattle

shed at Velugonda village along with another person and A.1

admitted to have committed rape on PW2 at the scene of offence,

whereas, PW6 also deposed in the same lines.

15. PW7, who is the sister of PW2, stated in her evidence that on

their enquiry PW2 did not inform anything about illicit intimacy

with Accused No.2.

16. A perusal of the evidence available on record would show

that initially, P.W.1, who is the father of the victim, P.W.2, lodged

complaint against accused No.1 only and that the name of the

revision petitioner, A-2 was not shown in the complaint. Further,

in the statements recorded by the Judicial First Class Magistrate,

Kollapur, under Section 164 of Cr.P.C., P.W.1 and P.W2 (victim)

both have categorically stated that accused No.1 committed rape

at first instance forcibly. P.W.9, A.S.I. of Police, Kollapur, who

registered a case in Crime No.125 of 2004 and issued the F.I.R.,

has categorically stated in his evidence that both P.Ws.1 and 2

have stated before the Police that first A-1 raped and even before

the Judicial Magistrate of First Class, Kollapur, P.W.2 has stated

same in her statement recorded under Section 164 Cr.P.C. that

first A-1 raped and thereafter A-2 raped her forcibly. The

prosecution failed to take any steps for D.N.A. test of the male

child born to P.W.2 to show whether the said male child was born

through A-1 or A-2. In view of the admissions made by the P.W.2

and without conducting D.N.A. test, the trial Court as well as the

appellate Court has acquitted A-1 and convicted only A-2. In the

absence of any conclusive and positive evidence, the petitioner -

A-2 can be acquitted by extending benefit of doubt.

17. For the aforesaid reasons, I am of the prima facie view that

the prosecution failed to prove the guilt of the petitioner/A-2 for

the offence under Section 376 of IPC beyond all reasonable doubt.

18. Accordingly, the Criminal Revision Case is allowed, setting

aside the judgment, dated 24.04.2009, passed in Criminal Appeal

No.178 of 2017 by the learned IV Additional District and Sessions

Judge (Fast Track Court) at Mahabubnagar and also the judgment,

dated 07.11.2007, passed in S.C.No.640 of 2005 by the learned

Assistant Sessions Judge, Nagarkurnool. The Bail bonds of the

accused shall stand cancelled.

Miscellaneous applications, if any, pending in this Criminal

Revision Case, shall stand closed.

_________________ JUVVADI SRIDEVI, J

4th November, 2022 Ksk