Telangana High Court
Gopireddy Srinivas , Srinu, vs The State Of Andhra Pradesh, on 13 March, 2024
1
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.1745 OF 2009
Between:
Gopireddy Srinivas ... Appellant/accused
And
The State of A.P. rep. by its Public Prosecutor,
High Court of A.P., Hyderabad.
... Respondent/complainant
DATE OF JUDGMENT PRONOUNCED: 13.03.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ Criminal Appeal No.1745 OF 2009
% Dated 13.03.2024
# Gopireddy Srinivas ... Appellant/Accused
And
$ The State of A.P. rep. by its Public Prosecutor,
High Court of A.P., Hyderabad.
... Respondent/Complainant
! Counsel for the Appellant: Sri C.Masthan Naidu, learned Senior
Counsel
^ Counsel for the Respondent: Sri Suresh Goud, learned Assistant
Public Prosecutor
>HEAD NOTE:
? Cases referred
3
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1745 of 2009
JUDGMENT:
1. The appellant was found guilty for the offence of rape punishable
under Section 376 of IPC and sentenced to undergo rigorous
imprisonment for a period of seven years, by the IV Additional
Metropolitan Sessions Judge, Hyderabad vide judgment in SC No.85 of
2009 dated 09.12.2009.
2. The case of the prosecution is that P.W.1/victim lodged
complaint by giving oral statement which was recorded by the police
on 18.03.2008. According to the statement of the victim, about four
months prior to lodging complaint, she was residing along with her
parents and three brothers. She went out to search for her brother's
son. At that time, the appellant caught hold of her hands, closed
her mouth, took her into a school premises and raped her. On
08.03.2008 when she was suffering from fever, her mother/P.W.2
took her to hospital and it was known that she was pregnant.
Accordingly, P.W.2/mother and other family members including
P.W.3/brother questioned as to who was responsible for the
pregnancy. P.W.1 informed that she was raped four months prior,
by the appellant. Abortion procedure was done on 13.03.2008.
Thereafter complaint was lodged on 18.03.2008 requesting to take
necessary action against the appellant.
3. Police examined witnesses and also sent the appellant and
victim/P.W.1 for medical examination. Thereafter police filed charge
sheet for the offence under Section 376 of IPC against the appellant.
Having concluded examination of witnesses P.Ws.1 to 12 and
marking Exs.P1 to P8 on behalf of the prosecution, the learned
Sessions Judge found that the appellant was guilty of committing
rape on the victim/P.W.1 and sentenced him accordingly.
4. Sri C.Mastan Naidu, learned Senior Counsel appearing for the
appellant would submit that there is an inordinate delay of four
months in lodging the complaint. The said delay is not explained.
Only for the reason of P.W.1 becoming pregnant and she stated that
the appellant had committed rape on her, conviction was recorded
without any other corroboration. Even the recording by the learned
Sessions Judge is incorrect. Chief examination of the victim/P.W.1
was conducted by the Public Prosecutor by putting leading
questions which is impermissible.
5. Counsel submitted that the Learned Public Prosecutor
requested the Court, since witness was not able to understand
questions, he may be permitted to put leading questions. Learned
Sessions Judge had mechanically permitted such procedure, which
is contrary to law.
6. Learned counsel relied on the judgment of Varkey Joseph v.
State of Kerala (1993 Supp(3) Supreme Court Cases 745), wherein
the Hon'ble Supreme Court held that the procedure adopted by the
prosecution in recording the evidence in the form of questions put
by the Public Prosecutor in Chief Examination which were leading
in nature is incorrect. On the said basis, the Hon'ble Supreme
Court set aside the conviction for the offence under Section 302
IPC.
7. Learned Public Prosecutor submitted that there was nothing
wrong in the procedure adopted by the learned Sessions Judge
when the questions were put with the permission of the Sessions
Judge. When questions and answers are recorded, it is fair and
such recording is after observation by the learned Sessions Judge
regarding answers being given by the victim/P.W.1.
8. Public prosecutor further submitted that the fact remains that
she was impregnated and she has specifically stated that she was
raped by the appellant.
9. It is necessary that the evidence of P.W.1/victim is extracted,
which is as under:
"About one year back on one day I went to in search of
my brother son. At that time accused caught hold of my
hand, closed my mouth with hand and Cherchaddu.
This incident took place in the evening hours. Accused
caught hold my hand and taken me towards upwards of
a building consisting of three floors from the cross-
roads.
Question:- Where the accused taken you, whether it is a
building, or a room. Addl. PP also asked the questions
repeatedly. But the witness says as follows repeatedly.
Answer:- Accused caught hold my hand. Closed my
mouth and taken there and Cherchaddu by removing
clothes, without answering about the place of scene of
offence.
When the accused removing the clothes, I requested him
not to remove the same and even then the accused
removed it and threw away, witness gave the answer
when Addl.PP asked that after spoiled you by accused,
what happened later.
Again the Addl.PP asked the question after spoil you
what happened later. The witness given the same
answer.
At this stage Addl.PP reported that the witness not
understanding the question about the subsequent to the
incident and permit him to put leading questions. In
such a case, question and answer will be noted in the
chief examination as the witness giving answer to other
aspects than questions put by Addl.PP with regard to
things subsequent to the incident or should with regard
to main incident.
Question:- After the incident whether you have gone to
the hospital.
Answer:- Yes we went to Koti Hospital. Where the Doctor
examined me and told that I became pregnant.
Question:- What the doctors did about the pregnancy.
Answer:- Doctors terminated my pregnancy, inspite of
my request not to terminate and I required the said
Baby.
Question:- My mother and Maternal aunt taken me to
the Hospital at Koti. When you told the incident to your
mother and others.
Answer:- Accused threatened me not to disclose the
same to anybody. I inform the incident to my mother
about one year back.
Question: Have you informed same to the police.
Answer: Yes. Police also recorded my statement.
Question: Addl.PP read over the statement and put the
questions as: Whether you give such report with those
contents.
Answer from the witness: Yes, it is Ex.P1.
The police examined me later. The witness not able to
give answer with clear words out of her mouth.
I am an illiterate. I am also not went to school. I will
speak slowly and thereby not speak fluently as that of
others."
10. According to P.W.1, one year prior to her deposition, when she
went in search of her brother's son, the appellant caught hold of her
hands and stated that "Cherichaddu"(when translated into English
as 'spoiled'). The Public Prosecutor had repeatedly asked whether it
was a building or room and the witness repeatedly stated that the
appellant caught hold of her hand and removed her clothes without
saying anything about the scene of offence. Then request was made
by the learned Public Prosecutor that the witness was not
understanding the questions about the events subsequent to the
incident and permitted to put leading questions. Accordingly,
permission was given.
11. Under Section 141 of Indian Evidence Act, leading questions
are questions suggesting the answers, putting the same expecting
to receive an answer is called leading question. Under Section 142,
if leading questions are objected by the adverse party in chief
examination or in re-examination, they shall not be asked except
with the permission of the Court. However, the Court shall confine
such leading questions which are introductory or undisputed or in
the opinion of the Court which facts were sufficiently proved.
Accordingly, the Court granting permission to put leading questions
in chef examination or re-examination shall be limited to; i)
Introductory issues; ii) Undisputed facts; iii) Facts which have
already been proved.
12. Learned Sessions Judge found that the witness was giving
answers to other questions put by the Public Prosecutor other than
the main incident. The main incident would be commission of rape
which is totally denied by the appellant. Such questions regarding
the main incident which is rape should not have been permitted by
the Sessions Judge since questions are not introductory in nature
or undisputed.
13. The learned Sessions Judge found that other than the main
incident, for other questions P.W.1 was answering properly.
Permitting Public Prosecutor to put leading questions is wholly
incorrect in the said circumstances. As seen from the deposition,
she has given answers in the cross-examination and there is no
observation by the Sessions Court that she had any difficulty to
understand the questions or answer questions during cross-
examination.
14. The Sessions Court ought not to have permitted the learned
Public Prosecutor to put any leading questions in chief
examination. The course adopted should have been to declare the
witness as hostile to the prosecution case and permission should
have been given to cross-examine the witness. Even in cases of
declaring a witness hostile and cross-examining a witness,
admissible portions of evidence and also evidence which is
convincing can always be considered by the Court while
adjudicating upon the case. It is not necessarily that every witness
who is declared hostile, the complete evidence has to be discarded.
15. Any statement by a witness in the Court had to be voluntary
for which reason leading questions are not permitted in chief
examination. It was found by the learned Sessions Judge that
except the main incident of rape, the witness was in a position to
understand all other issues. Understanding appears to be selective
in the present case, which appears to be deliberate. It is apparent
that the witness understood what was going on in the Court,
however, she was not inclined to answer. Again after putting leading
questions, after being permitted by the Sessions Judge, the victim
gave answer and the victim stated that she became pregnant and
though she requested the Doctor not to terminate her pregnancy
and required baby, the Doctor terminated her pregnancy.
16. The narration of P.W.1 before the Court is not free from
suspicion and creates any amount of doubt regarding the
correctness of her statement. She voluntarily stated that she
wanted to keep the child but abortion was forced on her. It cannot
be said that Pw1 did not understand the proceedings. The case
against the appellant has to be proved beyond reasonable doubt
and the case of the prosecution should not appear to be true but
must be true. Further the Court should be in a position to come to
a conclusion that the evidence of a witness is free from any
reasonable doubt and accordingly adjudicate upon the facts
narrated by the witnesses.
17. As already discussed in the above paragraphs, firstly, the
procedure adopted by the learned Sessions Judge and the Public
Prosecutor is not in accordance with law. Secondly, the events give
rise to any amount of suspicion regarding commission of rape by
the appellant. The appellant was aged around 19 years and the
victim was nearly 33 years when the incident had taken place.
Though it is stated by PW1 that she was forcibly raped and her
clothes were forcibly taken off, it is not the case that she received
any injuries or her clothes were torn. Pw1 never informed about the
alleged rape until she was found to be pregnant and was confronted
by all the family members about the pregnancy. There is a delay of
nearly four months in filing the complaint and the complaint was
filed only after five days of terminating her pregnancy. No reasons
are given as to why no complaint was filed when it was found that
P.W.1 was carrying pregnancy. It is not the case of PW1 that
appellant was a prior acquaintance. According to doctors PW9 and
PW11 who examined PW1, she had low IQ. According to
Investigating Officer PW10, while recording statement, PW1
stammered. The trial Court did not find or observe that PW1 had
low IQ or stammered while deposing. According to PW1 she was
severely beaten by PW2-mother and two brothers before complaint
to Police. The evidence of witnesses is discrepant and doubtful. The
procedure adopted in the Court during examination of victim is
prejudicial to the accused. Collectively, the case of prosecution is
not free from serious doubts. This Court deems it appropriate to
extend benefit of doubt to the appellant.
18. In the result, the judgment in SC No.85 of 2009 dated
09.122009 is set aside. Since the appellant is on bail, his bail bonds
shall stand discharged.
19. Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date: 13.03.2024.
Note: L.R.copy to be marked
kvs
