THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.2055 of 2006 Date:16.06.2014 Between:
Myaka Sudhakar . Petitioner.
AND The States of Telengana and Andhra Pradesh, rep by its’ Public Prosecutor, High Court of Judicature at Hyderabad for the states of Telangana and A.P.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.2055 of 2006 ORDER:
This revision is preferred against the judgment dated 20-07-2006 in Crl.A.No.59/2004 on the file of IV Additional District & Sessions Judge (FTC), Karimnagar whereunder judgment dated 17- 05-2004 in Sessions Case No.102 of 2004 on the file of Assistant Sessions Judge, Karimnagar was confirmed.
2. Brief facts leading to filing of this revision are as follows:-
Sub-Inspector of Police, Gangadhara filed charge sheet against the revision petitioner alleging that on 18-12-2003, at about 5:00 P.M., while P.W.1 was attending to her house hold work, the revision petitioner by entering into her house, caught hold of her hands and tried to molest her, in the mean time, P.W.2 came there and on seeing P.W.2, the accused fled away and that P.W.1 narrated the incident to P.W.3 after her return, and they all went to the house of P.W.4 and through him, a report is given to police and investigation revealed that the accused is liable for punishment for the offence under Sections 448 & 354 IPC. On these allegations, Assistant Sessions Judge, Karimnagar conducted trial, during which, five witnesses are examined and two documents are marked on behalf of prosecution and no witness is examined and no document is marked on behalf of accused. On a over all consideration of oral and documentary evidence, trial Court found the accused guilty for both the offences and sentenced him to suffer five years imprisonment with a fine of Rs.2,000/- for the offence under Section 354 IPC and one year imprisonment for the offence under Section 448 IPC. Aggrieved by the same, he preferred appeal to the Court of Session, Karimnagar and IV Additional District & Sessions Judge (FTC), Karimnagar confirmed the conviction and sentence. Now aggrieved by the same, present revision is preferred.
4. Heard both sides.
5. Advocate for revision petitioner submitted that both the Courts have committed error in convicting the revision petitioner relying on interested testimonies of P.Ws.1 to 4. He further submitted that there is delay in lodging First Information Report and both the Courts failed to consider the delay.
He further submitted that both the Courts failed to consider cross- examination of investigating officer, who admitted that the house of P.W.1 is surrounded by 20 to 30 houses and that he did not examine any one of them. He further submitted that both the Courts committed error in convicting the accused and the same is liable to be set aside. He further submitted that the sentence of imprisonment of five years is on higher side and the revision petitioner was unmarried and he was 20 years as on the date of alleged incident, now he is married and got two small children and considering the same, the sentence of imprisonment may be reduced.
6. On the other hand, learned Public Prosecutor submitted that both the Courts have rightly convicted the revision petitioner and that there are no grounds to interfere with the concurrent findings of the Courts below. He submitted that with regard to sentence, he would leave the matter to the discretion of the Court.
7. Now the point that would arise for my consideration is whether judgments of the Courts below are legal, proper and correct?
8. Point:-According to prosecution, on 18-12-2003, at about 5:00 P.M., when P.W.1 was in her house, the accused entered into her house, caught hold of her hand and dragged her towards him by using criminal force and made an attempt to commit rape and thereby tried to out rage her modesty. The victim is examined as P.W.1 and she deposed in her evidence supporting the complaint averments. She further deposed that she raised cries and on hearing the same, P.W.2 came there and on seeing P.W.2, the accused left her and fled away and when P.W.3 came back to house, she narrated the incident to P.W.3 and thereafter, lodged complaint with police. P.W.2 deposed that on 18-12-2003, while he was proceeding in front of the house of P.W.1, he heard cries from the house of P.W.1 and on that, he rushed to the house and found the accused caught hold of hand of P.W.1 and was using force against her and on seeing him, the accused ran away. The evidence of P.Ws.1 & 2 is corroborating with each other with regard to the manner in which accused misbehaved with P.W.1. P.W.3 is the mother of the victim and she came to know about the incident through P.W.1 and she deposed that she retuned home at about 8:00 P.M and by that time, she found her daughter weeping and when she enquired her, she disclosed the incident that happened and on that, they proceeded to P.W.4 and through him, they lodged a complaint. P.W.4 is grandfather of P.W.1 and father-in- law of P.W.3, who supported the version of P.Ws.1 to 3. The main contention of the revision petitioner is that all the four witnesses i.e., P.Ws.1 to 4 are interested witnesses and their testimonies are not supported and corroborated by any other independent evidence. I have perused the evidence of P.Ws.1 to 4. All the four were cross- examined on behalf of the accused at length. There are no contradictions or omissions in the evidence of these four witnesses on any of the important material aspects. Simply because, they are related, their evidence cannot be brushed aside unless it is shown that their evidence is not trustworthy, motivated and inconsistent. When the evidence available is the only interested testimony, the Courts have to scrutinize such evidence with great care and caution. Here both trial Court and appellate Court have scrutinized evidence of these four witnesses meticulously and considered every objection raised on behalf of accused while appreciating their evidence. In fact, trial Court has extracted relevant portions of evidence of these witnesses and held that there is no reason to disbelieve their evidence or to hold that their evidence is not trustworthy. I do not find any wrong appreciation of evidence either by trial Court or by appellate Court.
9. Though a general allegation is made against the prosecution witnesses and that they are interested and implicated the accused falsely, there is no material to support the said allegation. One of the objections raised on behalf of the revision petitioner before the trial Court and the appellate Court is that there is delay of eight days in lodging the First Information Report and that delay is fatal to the prosecution case. But both the trial Court and appellate Court have considered this aspect and held that prosecution has explained the delay properly and that there is no material to discard the explanation offered by the prosecution for the delay. The other objection of the accused is that investigating officer has not examined any independent witnesses and the same is admitted by him in his cross- examination. But as seen from the evidence of P.W.5, he has given reasons for not examining the neighbours. According to his evidence, on the date of incident, all the villagers went to Karimnagar to participate in C.M. Program and therefore, there were none in the village at the time of incident. Even as seen from the evidence of P.W.3, she too went to Karimnagar for C.M Programme and she deposed in her evidence that after attending C.M Programme at Karimnagar, she reached the house at about 8:00 P.M she found her daughter weeping and when enquired, she came to know about the incident. So the explanation of I.O for not examining the neighbours is quite convincing and that reason is further substantiated with the evidence of P.W.3. On a scrutiny of the evidence on record, I am of the view that both the Courts have rightly convicted the revision petitioner and that there are no grounds to interfere with the conviction recorded against him.
10. Now coming to the sentence part, trial Court imposed minimum sentence of five years as prescribed for the offence under Section 354 IPC. As per the State Amendment, Section 354 IPC, the minimum imprisonment prescribed is five years, but according to proviso, the Court for adequate and special reasons, can reduce the minimum sentence of five years, but it shall not be less than two years. Now the submission of Advocate for revision petitioner is that, after this incident, the revision petitioner got married and now he is the father of two small children and he is the only breadwinner of the family.
He further submitted that since the offence was about 10 years back, considering the facts of the case, nature of offence and the family responsibility of the revision petitioner, the sentence of five years imprisonment may be reasonably reduced. As already referred above, this five years minimum sentence can be reduced by recording adequate reasons, but the same cannot be less than two years. Considering the fact that petitioner has got two small children and the fact that he is not involved in any similar offences or any other criminal cases, I feel that five years imprisonment can be reduced to two years.
11. With the above modification, the revision is liable to be dismissed.
12. For the above reasons, revision is dismissed confirming the conviction recorded against the petitioner for the offence under Section 354 IPC but the sentence of five years imprisonment is reduced to two years.
13. Trial Court shall take steps for apprehension of accused for undergoing unexpired portion of sentence.
14. As a sequel, miscellaneous petitions, if any pending in this Criminal Revision Case, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:16.06.2014 mrb