THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1527 of 2007 25-07-2014 BETWEEN:
G.V.Prakash Babu …..Appellant/accused AND State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1527 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 02.11.2007 passed in S.C.No.232 of 2007 by the learned Principal Assistant Sessions Judge, Kurnool, whereby the learned Judge convicted the appellant/accused for the offence under Sections 376 IPC and 420 IPC and accordingly, sentenced him to suffer rigorous imprisonment for a period of seven years and also to pay a fine of Rs.5,000/- (Rupees five thousand only), in default to suffer simple imprisonment for six months for the offence under Section 376 IPC and further sentenced him to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to suffer simple imprisonment for three months for the offence under Section 420 IPC .
The case of the prosecution, as recorded by the Court below, is as follows.
That P.W.1 to P.W.3, namely, the victim woman S.Apsarabee @ Glori, Shaik Adam Razvi and S.Basheerunbee were residing opposite to the house of the accused in Veldurthi. The accused developed acquaintance with P.W.1 and approached her parents P.W.2 and P.W.3 and requested them to send P.W.1 with him for training in stitching. P.W.2 and P.W.3 believed the words of accused and sent P.W.1 with him in the month of November, 2004 to Kurnool. The accused asked P.W.1 to take cash towards expenses but P.W.1 expressed her inability and took the title deed of house plot and followed the accused to Kurnool and stayed in Sandadi Lodge.
The further case is thereafter the accused went out from the lodge to meet and talk with Hostel Authorities. He returned to Sandadi Lodge in the evening and committed rape on P.W.1 by removing her clothes. Thereafter, the accused took one house at Dharmapet, Kurnool and resided with P.W.1. He introduced P.W.1 as his wife to the residents of the said locality. In the month of January, 2005, the accused took P.W.1 to the Church and changed her name as Glory and converted her as christian. The accused administered sleeping pills to P.W.1 and obtained her signatures on white papers and used to her advantage. The accused stopped going to the house of P.W.1 at Dharmapet since two months prior to the date of lodging complaint with the police.
The further case is that P.W.1 narrated what had happened between her and the accused to P.W.4, Smt D.Nagamani and requested her to bring the accused from Veldurthi. On 01.12.2005, P.W.4 and Shaik Salarjung went to Veldurthi and questioned the accused. The accused replied to them that he never married P.W.1 and said to do whatever they wanted and asked them to go. Thereafter, P.W.1 narrated the affair between her and the accused to P.W.2, P.W.3 and Shaik Salarjung.
The further case is that thereafter P.W.1 on 25.12.2005 lodged a complaint with Kurnool II Town Police Station. The Police registered the case against the accused for offences under Sections 420 and 376 IPC and investigated the case. During the course of investigation, the accused surrendered before the Judicial Magistrate of First Class on 17.01.2006 and he was remanded to Judicial Custody. On the requisition filed by P.W.10, the Inspector of Police, Kurnool II Town Police Station, the Court of Additional Judicial Magistrate of First Class, Kurnool given the accused for police custody from 26.01.2006 to 28.01.2006. On 27.01.2006 at 1500 hours, P.W.10 recorded the confessional statement of accused in the presence of P.W.6, U.A.Sunkanna and P.W.7, T.Venkat. In pursuance of the confession, the accused lead P.W.10 along with P.W.6 and P.W.7 to Dharmapet, Kurnool and there he produced six photos and one negative from the second floor of the house bearing D.No.40-650. P.W.10 seized the photos and negative at 1700 hours. Further, P.W.1 was examined by P.W.8 Dr Srilatha, Assistant Professor, Kurnool Medical College and issued Medical Certificate and opined that she underwent sexual intercourse. Further, the accused was referred for Medical Examination and he was examined by Dr M.S.R.K.Prasad, Professor, Forensic Medicine Department, Kurnool Medical College and he issued Medical Certificate and opined that the accused is potent and capable of performing intercourse. Thus, the accused is liable to be punished for offences under Sections 420 and 376 IPC.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 10 were examined and Exs.P.1 to P.10 were marked.
No oral evidence was adduced but Exs.D.1 to D.7 were marked on behalf of the accused.
P.W.1 is the victim woman. P.Ws.2 and 3 are the parents of the P.W.1. P.W.4 is a social worker and resident of Kurnool. P.W.5 is the landlord of house at Dharmapet, Kurnool. P.Ws.6 and 7 are the residents of Kurnool acted as panch witnesses to Ex.P.4, confessional statement of the accused and Ex.P.5, seizure panchanama, both dated 27.01.2006.
P.W.8 is the Assistant Professor who issued Medical Certificate certifying that P.W.1 underwent sexual intercourse. P.W.9 is the Doctor and Professor who issued Medical Certificate certifying that the accused is potent and capable of performing sexual intercourse. P.W.10 is the Inspector of Police who investigated this case.
The learned trial Judge, on appreciation of oral and documentary evidence, found the appellant/accused guilty for the offences under Sections 376 IPC and 420 IPC and accordingly convicted and sentenced the appellant/accused as stated above. Aggrieved by the same, the appellant/accused preferred the present criminal appeal.
Heard the learned counsel for the appellant/accused and the Public Prosecutor and perused the entire material available on record.
In the present case, it is necessary to peruse the evidence of P.W.1, who is the victim, to decide whether the evidence of P.W.1 inspires the confidence of the Court and whether the prosecution was able to prove the guilt of the appellant/accused beyond any reasonable doubt?
follows.
The evidence of P.W.1, as recorded by the Court below, is as “P.W.1 deposed that she originally a native of Veldurthi. She knows the accused. Her house is situated to the opposite of the house of the accused. She was going to the house of the accused to fetch drinking water every day, thereby she developed acquaintance with the accused and his family members. The family members of the accused also visited her house. She studied upto IX Class. The accused enquired her educational qualifications and she told him that she studied upto IX Class. The accused proposed to her as she is unemployed that she can learn tailoring at Kurnool by staying in a hostel for which she replied that she prepared to join provided her parents are willing. Then the accused consulted her parents and they agreed to send her to learn tailoring with the accused. Before going to Kurnool along with the accused, she was enquired by the accused to bring money. She replied that she does not have for that she proposed that she is having a document of title to the house plot and this was asked to bring by the accused. She further deposed that this was in the year 2004 and she went to Kurnool along with the accused, and he took her to sandadi Lodge near the government General Hospital, Kurnool and put her in a room. Thereafter, the accused locked the room from outside by keeping her inside with the instructions not to make any shout and went out to meet hostel wardon. On the same day evening at 6.00 p.m., the accused returned to the room with fully drunk. She enquired the accused that what the hostel warden said. He told her that he would tell her after one hour and wanted her to come nearer to him as he wants to speak with her. Then the accused used vulgar language and said that she completed more than 15 years and nothing would happen and saying so he removed her clothes. He removed his clothes and wanted her to remove her clothes. Then the accused got undress and when she tried to go protest, the accused pulled her back and threw her on the cot. By doing so, the accused committed rape on her by force, having intercourse by removing all her clothes. Further, the accused beat on her cheeks, nose and her shoulders. When she tried to wear clothes, the accused prevented her by keeping her clothes on the top of bathroom wall out of her reach. Then she covered her body with the blanket on the bed. This was also prevented by the accused. Having told her that she should be undressed so that he will get mood. The accused through out the night had intercourse with her, till he gained consciousness from alcohol.
She further deposed on the next day morning, she was weeping and questioned the accused for deceiving her. She told the accused that she does not want any job and she will go to her parents. Then the accused told her to forget the incident that the god brought them together and he would marry her and not to go to her parents as the matter would go to the notice of the police, and he will be put in the jail. She further deposed that the accused took her and kept in the second floor of the house in Dharmapet, Kurnool. There the accused used to administer pills to her. After few days, the accused proposed to her that he does not like to call her as Apsarbee and took her to Hosanna Mandiram and there changed her name as Glory. Thereafter, she celebrated her Birthday as Glory in the room at Dharmapet and at that time, she cut the Birthday Cake and this was photographed. For two months period, the accused coming to her in the morning and leaving the room in the evening. On the day of her Birthday Celebration night, the accused obtained her signatures on two empty papers. Ten days after Birthday Celebration, the accused started scolding and beating her and administering sleeping pills to her. The accused was bringing beer bottles and consuming. When she proposed to go to her village, the accused prevented her.
She further deposed that after six months period, the accused told her that he does not need her and he will not visit her and wanted her to go to her native place or otherwise she can die. Then she picked up quarrel with the accused for deceiving her. The accused beat her. She demanded the accused to return the signed papers by her. Thereafter, the accused stopped coming to her. Then she went to her Junior uncle in the Weaker Section Colony, Kurnool. The wife of her Junior uncle not allowed her to enter inside the house and she met her uncle outside the house and narrated to him the entire incident happened between her and the accused. She wanted her uncle to inform to her parents and thereafter she took Rs.20/- from her uncle and returned to the room. On the next day, her parents, P.W.2 and P.W.3 along with her Junior uncle came to her room in Dharmapet, Kurnool. She narrated the whole incident to them. Thereafter, she along with them proceeded to the II Town Police, Kurnool and she had given report, Ex.P.1.”
On perusing the evidence of P.W.1, it is to be observed that even though P.W.1 deposed that she was subjected to sexual harassment by the appellant in the month of November, 2004 after she accompanied the appellant, when he has taken her in the pretext of joining her in a tailoring shop, the same was reported to the police only on 25.12.2005. When the alleged harassment is meted out by P.W.1 in the hands of the appellant/accused in November, 2004, the reason for not reporting the same till 25.12.2005 is not properly explained by the prosecution. In her cross-examination P.W.1 stated that she issued a notice, dated 03.09.2005, to the accused, which is marked as Ex.D.1. In the said document, she has not stated anything regarding the commission of rape or forcible sexual intercourse by the appellant herein. The contents stated in Ex.D.1, are contrary to the evidence adduced by P.W.1 before the Court. If it is the case of the P.W.1 that she was forcefully detained in a place, which prevented her from informing the same to anyone, there should be a charge under Section 342 IPC. It is curious that the investigation agency has not charged the appellant/accused for the offence under Section 342 IPC. This Court is of the view that the investigation agency could not able to collect any evidence to substantiate the same, and as such, the appellant/accused is not charged for the offence under Section 342 IPC.
Apart from the above, P.W.3 deposed that on the next day after P.W.1 left home along with the accused, she enquired the accused about P.W.1 and he replied that he sent P.W.1 back in the previous day evening itself. It is not known as to why either P.W.2 or P.W.3 did not make any complaint for thirteen months with regard to missing of P.W.1. It is evident from the record that the complaint was lodged only on 25.12.2005. Further, the appellant/accused proved that there were disputes between the appellant/accused and the family of P.W.1, and that the same was also admitted by P.W.2 in his cross-examination. P.W.2 in his cross-examination categorically deposed that the accused gave evidence against him in C.C.No.776 of 2003 on the file of the Judicial First Class Magistrate, Dhone. Apart from the same, civil suits are pending between the appellant and P.W.2, and that the one suit was decreed in favour of the appellant herein. If it is the admitted fact that the appellant and the P.W.2 are enemical towards each other, the evidence of P.W.3 that P.W.1 was taken by the appellant in her presence to join her in a tailoring institute is highly improbable and unbelievable. Further, at the time of occurrence, according to prosecution, the victim girl is aged about 25 years. Even admitting that the appellant had sexual relationship with P.W.1, it is assumed that P.W.1, knowing fully aware the fact that the appellant is a married man and having three sons, had sexual intercourse with the appellant/accused. Further, if it is the case of P.W.1 that the appellant/accused detained her in a room and committed rape upon her, necessarily she should have lodged a complaint on her return from that place. But the fact remains that even in the notice, dated 03.09.2005, P.W.1 did not mention about the illegal detention and sexual harassment by the appellant/accused, instead she has mentioned a different story.
In view of the above discussion, and when the evidence of P.W.1 suffers from lot of discrepancies, this Court is of the view that the prosecution has miserably failed to prove the guilt of the appellant/accused. It is highly unbelievable that the appellant/accused has committed any offence under Section 376 IPC, and as such, the conviction and sentence imposed by the Court below against the appellant/accused is liable to be set aside.
Insofar as the offence under Section 420 IPC is concerned, even admitting the entire evidence adduced by P.W.1 to be true, it will not attract the offence under Section 420 IPC. On perusing the entire evidence, this Court is of the view that P.W.1 has not stated either in the notice or in the evidence adduced before the Court that because of the persuasion of the appellant/accused, she believed the appellant/accused and handed over the documents to him. In the notice, dated 03.09.2005, which is marked as Ex.D.1, she has stated that the appellant/accused has taken signatures on white papers and also obtained patta documents in the pretext of preparing documents for their marriage. She also stated that the appellant/accused has deceived and cheated P.W.1 in obtaining such documents and that with the active support of the friends of the appellant/accused, he has arranged a function as if the appellant/accused and P.W.1 got married. Except alleging the same, the prosecution has failed to prove the same by placing any reliable and admissible evidence substantiating the said facts. Hence, the appellant/accused cannot be found guilty for the offence under Section 420 IPC and as such, the conviction and sentence imposed by the Court below against the appellant/accused for the offence under Section 420 IPC is liable to be set aside and the appellant/accused is entitled for acquittal of the charge.
In the result, the conviction and sentence imposed against the appellant/accused by the Principal Assistant Sessions Judge, Kurnool, in S.C.No.232 of 2007 for the offences under Sections 376 and 420 IPC is hereby set aside, and the appellant/accused is acquitted of the charges. The appellant/accused shall be set at liberty forthwith, if not required in any other crime.
Accordingly, the Criminal Appeal is allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 25.07.2014 pln