HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1423 OF 2007 Dated 25-8-2014 Between:
Konda Pullaiah.
And:
..Petitioner.
State of Andhra Pradesh, represented by its Public prosecutor, High Court, Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1423 OF 2007 ORDER:
This revision is against judgment dated 18-9- 2007 in Criminal Appeal No.115 of 2007 on the file of Principal District and Sessions Judge, West Godavari at Eluru whereunder Judgment dated 7-5-2007 in S.C.No.330 of 2005 on the file of Principal Assistant Sessions Judge, Eluru, is confirmed.
Brief facts leading to this revision are as follows: Sub-Inspector of Police, T.Narsapuram Police Station filed charge sheet against revision petitioner alleging that on 3-4-2003 at about 11 A.M., when P.W.2 went to fields for attending calls of nature, accused followed her and kidnapped her without her consent in order to keep her as concubine and kept her at nearby garden for some days and thereafter, took her to Mukkampadu of Chintalapudi Mandal and kept her in the house of P.W.7 for about 10 days and in the meantime, father of victim gave report to police which is registered as Crime No.15 of 2003 on 11-4- 2003 and on receipt of message from P.W.7, police proceeded to Mukkampadu village and arrested the accused and rescued P.W.2 and that investigation revealed that accused is liable for punishment for the offences under Sections 363, 417 and 366 (A) I.P.C. The learned trial judge framed charge under Section 366 (A) I.P.C. against revision petitioner and conducted trial, during which, ten witnesses are examined and nine documents are marked on behalf of prosecution and no witness is examined and no document is marked on behalf of accused. On an overall consideration of oral and documentary evidence, trial court found the accused not guilty for the offence under Section 366 (A) I.P.C. but found him guilty for the offence under Section 363 I.P.C. and sentenced him to suffer three years imprisonment with a fine of Rs.500/- and aggrieved by which, he preferred appeal to the court of Sessions and the learned Sessions Judge, on a reappraisal of evidence, confirmed conviction and sentence. Aggrieved by the same, present revision is preferred.
Heard both sides.
Advocate for revision petitioner submitted that both courts failed to see that the ingredients for the offence under Section 363 I.P.C. are not made out and that there is no acceptable evidence. She further submitted that the evidence of prosecution witnesses is with several infirmities and discrepancies and all of them are highly interested witnesses and relying on such discrepant material convicting the accused is not correct. She further submitted that there is no legal and reliable evidence to prove the charge under Section 363 I.P.C. He further submitted that conduct of P.W.2 staying with accused for more than ten days without raising any alarm or resistance is a strong circumstance to discard the version of prosecution. She further submitted that the very silence on the part of father of victim for nearly eight days without reporting the matter to police is another strong circumstance to discard the version of prosecution. She further submitted that the very inaction on the part of wife of P.W.7 in not reporting the stay of P.W.2 and accused in their house either to the parents of P.W.2 or to the wife of the accused is another inherent improbability and both courts have failed to consider these aspects and simply convicted the revision petitioner by accepting the prosecution story and therefore, conviction is liable to be set aside.
On the other hand, learned Public Prosecutor submitted that the delay of eight days is properly explained and both the courts have rightly accepted the said delay and therefore, the objection of the revision petitioner is not tenable. He further submitted that the victim was 17 years old and as she was minor, taking away from the lawful guardianship is an offence and evidence of prosecution witnesses would clinchingly show that accused took away P.W.2 from the lawful guardianship of P.W.1 and therefore, conviction recorded against him for the offence under Section 363 I.P.C. is quite legal and that there are no grounds to interfere with the concurrent findings.
Now the point that would arise for my consideration in this revision is whether the Judgments of the courts below are legal, correct and proper?
POINT:
According to prosecution on 3-4-2003 at about 11 A.M., when P.W.2 went to fields to answer calls of nature, the accused followed her and kidnapped her and took her away and she was traced at the house of P.W.7 on 12-4-2003. To prove its case, father of victim is examined as P.W.1, victim is examined as P.W.2, mother of victim is examined as P.W.3, brother-in-law of victim is examined as P.W.4, cousin of victim is examined as P.W.5, Medical Officer who issued certificate to victim is examined as P.W.6, relative of accused at whose house the victim was traced is examined as P.W.7, Head Master of the school where victim studied is examined as P.W.8, Medical Officer who issued potency certificate to the accused is examined as P.W.9 and Investigating Officer is examined as P.W.10.
P.W.1 deposed in his evidence that on the date of incident, he went for coolie work and returned back at 5 P.M., on his return, his wife informed that his daughter-P.W.2 who went to fields to attend calls of nature did not come back and on that, they searched for P.W.2 and they could not trace her and on the next day, he telephoned to his brother-in-law (P.W.4) and enquired whether P.W.2 had been to their house and that he along with his relatives searched in the surrounding villages and houses of his relatives but could not trace his daughter P.W.2 and on that, he gave a report to police under Ex.P.1. Since the accused was also not found in the village from the date of missing of his daughter, he gave report against the accused on suspicion.
He further deposed that on the next day of giving report, police called him and informed him that his daughter was traced. The victim who is examined as
P.W.2 deposed that on the date of incident at about 10 or 11 A.M., while she was returning home after attending calls of nature, the accused caught hold of her hand and forcibly took her to nearby forest and there committed rape on her and that he detained her in the said forest for two days and thereafter took her to Mukkampadu village and detained her in the house of Rasabrolu Chinna Yacob (P.W.7) and that she informed Chinna Yacob that she was brought there forcibly and requested him to inform her parents but he did not telephone to her parents and after ten days, police came to the house of Yacob and took her to police station and that police telephoned to parents and on that, her father came to Police Station and that police handed over her to her father. She deposed that during her stay at the house of Yacob, the accused sexually enjoyed her. P.Ws.3, 4 and 5 deposed in the same lines as deposed by P.W.1.
P.W.7 deposed in his evidence that one week prior to Ugadi festival, he went to Ayyapparajugudem to transport fertilizers on a tractor and came back to his house three days after the festival and that police came to him and enquired about P.W.2 and that he told them that he does not know. On the next day of his examination by police, he came to his house at about 2 P.M., and there, he found the accused and P.W.2 in his house and that he questioned the accused as to why he brought P.W.2 and that he chastised accused and then, telephoned to P.W.1 and two hours thereafter, parents of P.W.2 came to his house and took P.W.2 and accused.
According to investigating Officer-P.W.10, on 11- 4-2003, P.W.1 came to his police station and presented a report and that he registered it as Crime No.15 of 2003 and issued F.I.R. and that he searched for P.W.2 and accused on that day. He further deposed that on 12-4-2003, when he was in police station at about 2.30 P.M., he received phone call from P.W.7 and he left along with his staff and proceeded to the house of P.W.7 which is at Mukkampadu and there, he arrested accused. He deposed that victim girl was also found in the same house along with the accused and he brought the accused and victim girl to police station and that he recorded the statements of victim and P.W.7 and thereafter, referred the victim to Government Hospital, Chintalapudi and so also accused.
Here according to P.W.1, as the accused was also not seen in the village, he gave complaint to the police suspecting the accused but as seen from Ex.P.1, allegation is otherwise. In Ex.P.1, specific averment is that the accused took away his daughter and requested the police to take action against the accused. According to P.W.2, the incident was on the Ugadi festival day and when she was returning after attending calls of nature, the accused caught hold of her hand and took her forcibly and kept her there for two days. In the evidence, P.W.2 stated that the accused detained her in the forest and went out and brought food for them on these two days. She deposed that the accused committed sexual act against her will in the forest. According to her evidence, after detaining two days in the forest, the accused took her to the house of P.W.7 and illegally detained her for seven or ten days. According to P.W.7 in whose house, the accused said to have illegally detained, P.W.2 he left the village three or four days prior to Ugadi festival and returned back to village and on the date of his return, police enquired him about P.W.2 and that he informed them that he is not aware but on the next day, when he came back home from his place of work, he found P.W.2 and accused in his house and he chastised the accused and then telephoned to police. This version is quite contra to the version stated by P.W.2 that she was illegally detained in the house of P.W.7 for about seven days. According to P.W.2, she requested P.W.7 to inform her parents as she was brought forcibly but he did not heed to her request, but P.W.7 gave contra version. From the evidence of P.W.7, it is clear that his wife is a school teacher and she was staying in the very same house and if that is so, stay of P.W.2 and accused in his house without his knowledge is highly improbable. Police have not examined wife of P.W.7 and no reasons were assigned for her non- examination. According to prosecution, though P.W.1 and his relatives have searched in the village and nearby villages and also at places where their relatives reside, they could not trace out P.W.2 but the police one day after giving police report could trace P.W.2. When it is clear from the evidence of P.W.2 that the accused left her alone in the forest and went out to bring food for them, there is no explanation from P.W.2 as to why she did not use that opportunity to escape from the forest or at least to raise alarm for her rescue. Further, when she was detained in the house of P.W.7 where admittedly, wife of P.W.7 is also staying, there is no explanation from the victim-P.W.2 as to why she did not raise any alarm or protest for the illegal detention by informing wife of P.W.7. It is not the case of prosecution that P.W.7 and his wife have helped the accused in detaining P.W.2. If there was any such allegation, both P.W.7 and his wife should have been figured as accused along with the revision petitioner but no such allegation is there against P.W.7and his wife. When that is so, the silence on the part of P.W.2 in not reporting the matter to wife of P.W.7 or to escape from the clutches of the accused is a strong circumstance against the prosecution version.
Further, when the alleged incident was on 3-4- 2003, till 11-4-2003, no report was given to police. There is no acceptable explanation for this delay. According to P.W.1, as he was searching for her daughter, he did not give report to police till 11-4- 2003. But as seen from his evidence, his search for P.W.2 was only for two or three days after date of her missing but why he has waited till eight days without giving any report to the police is not at all explained. Further, while searching for P.W.2, he can as well simultaneously report to police as his search is not a bar to approach police. Further, P.W.1 did not give specific details as to the places of the search and the result thereon in detail. Except making omnibus statement that he searched for P.W.2 in his village and nearby villages, he has not given any details.
Further, according to Investigating Officer, he received phone call from P.W.7, on that, he proceeded to village o f P.W.7, there traced P.W.2 and accused. According to P.W.7, he informed to father of P.W.2 on phone and on that, parents of P.W.2 came to his house and took away P.W.2, which is quite contra to prosecution version.
As rightly pointed out by advocate for revision petitioner, all these aspects would throw any amount of doubt as to the correctness of prosecution case and both trial court and appellate court have lost sight of this aspect and simply convicted the revision petitioner ignoring these inherent improbabilities.
According to the Medical officer, the victim was about 17 years old as on the date of alleged offence and as rightly pointed out by learned counsel for revision petitioner, investigation, opinion of medical Officer plus or minus of two years is to be taken and the age advantage to the accused is taken, she must be 19 years for which, Section 363 I.P.C. is not attracted.
Considering all these aspects, I am of the view that both trial court and appellate court have not properly appreciated the evidence and facts and they committed error in convicting the accused.
On a scrutiny of the material, I am of the view that the findings of the trial court and appellate court are not based on sound principles and both courts have lost sight of inherent improbabilities pointed out supra and for these reasons, I am of the view that the conviction recorded by trial court and upheld by appellate court is liable to be set aside.
Accordingly, this Criminal Revision Case is allowed and the conviction imposed against the revision petitioner by the trial court for the offence under Section 363 I.P.C. which is confirmed by appellate court is hereby set aside and he is acquitted of the said charge. His bail bonds shall stand cancelled and fine amount paid shall be refunded.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-8-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.1423 OF 2007 Dated 25-8-2014 Dvs