THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.42 of 2007 Date:17.04.2014 Between:
Shaik Rasool Saheb . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.42 of 2007 ORDER:
This revision is preferred against judgment dated 03-01-2007 in Crl.A.No.12/2005 on the file of IV Additional District & Sessions Judge, Nellore whereunder judgment dated 11-01-2005 in Sessions Case No.147/2003 on the file of Assistant Sessions Judge, Gudur, Nellore District was confirmed.
2. Brief facts leading to filing of this revision are as follows:- When there are civil disputes between the victim and accused in respect of land in Survey No.71/2, accused filed a civil suit for injunction and ultimately that suit was disposed of on 10-12-2002 in favour of the defacto-complainant. While so, on 14-12-2002, at about 5:00 P.M., defacto-complainant was ploughing her land with the help of tractor of P. Subbaiah through its driver D. Ramanaiah, then accused came there and asked the driver to stop the tractor. When the driver of the tractor advised him to approach P.W.1, the accused went to his house and brought a knife and tried to damage the tyres of the tractor and when defcto-complainant intervened, the accused kicked on her abdomen and when she fell down on a thorny fencing, the accused caught hold of her tuft, pulled her saree and tried to out rage her modesty, which was witnessed by neighbouring people. On the same day, at about 6:30 P.M., victim lodged a complaint, which was registered as Crime No.150/2002 and investigation revealed that, accused committed offences under Sections 354 & 323 IPC. On these allegations, trial Court examined seven witnesses and marked five documents on behalf of prosecution and no witness is examined and no document is marked on behalf of accused. On an over all consideration of oral and documentary evidence, trial Court found accused guilty for the offence under Sections 354 & 323 IPC and sentenced him to suffer five years imprisonment with a fine of Rs.200/-
for the offence under Section 354 IPC and fine of Rs.500/- for the offence under Section 323 IPC. Aggrieved by the same, accused preferred appeal to the Court of Session, Nellore and IV Additional District & Sessions Judge, Nellore on a reappraisal of evidence, confirmed the conviction, but modified the sentence of five years imprisonment for the offence under Section 354 IPC into two years and confirmed the fine amount imposed for the offence under Section 323 IPC. Now aggrieved by the same, he preferred present revision.
3. Heard both sides.
4. Advocate for revision petitioner submitted that there is no evidence for the offence under Section 354 IPC, but the trial Court and appellate Court have wrongly convicted the revision petitioner for the said offence. He submitted that to attract ingredients of Section 354 IPC, there must be intention at the inception itself and as per the evidence, the alleged acts are committed during scuffle and therefore, no intention can be attributed. He further submitted that accused is aged about 70 years and P.W.1 is daughter to him by relation and the alleged act is in the process of objecting P.W.1 from ploughing the land, except that there is no intention of any kind and the offence under Section 354 IPC is only added to harass the petitioner. He submitted that there is delay in reaching F.I.R to the Court and the same is not properly explained and for all these reasons, the accused is entitled for acquittal. On the other hand, learned Public Prosecutor submitted that delay of reaching the F.I.R to the Court is to the administrative reasons and that cannot be a ground to throw away the prosecution case. He submitted that the evidence on record would disclose that accused committed both the offences of Sections 323 & 354 IPC and that there are no grounds to interfere with the concurrent findings of the Courts below.
5. Now the point that would arise for my consideration is whether the judgments of the Courts below are legal, proper and correct?
6. Point:- According to prosecution, on 14-12-2002, at about 5:00 P.M., while P.W.1 was ploughing her land with the help of tractor, accused went there and tried to stop the tractor, when the driver of the tractor advised him to approach P.W.1, the accused went to his house and brought a knife and tried to damage the tyres of the tractor and when P.W.1 intervened, he beat her, kicked on her abdomen and pulled her saree and committed offences of Sections 323 & 354 IPC. To prove the same, seven witnesses are examined. Out of them, P.W.1 is the victim, P.W.2 is the driver of the tractor, P.W.3 is owner of the tractor, P.Ws.4 & 5 are the witnesses who came to know about the incident through P.W.1, P.W.6 is the medical officer and P.W.7 is the investigating officer. Out of seven witnesses, P.W.3 has not supported the prosecution case and he was treated hostile.
P.Ws.4 & 5 have no personal knowledge and they only came to know about the incident through P.W.1. So the main witnesses are P.W.1 & P.W.2. P.W.1 is the victim and P.W.2 is the driver of the tractor. P.W.2 deposed in his evidence that the accused asked him not to proceed with the ploughing and that the accused went to his house and brought a knife and tried to damage the tyres of his tractor and then P.W.1 came and objected and caught hold the knife of the accused, then the accused kicked P.W.1 on her abdomen and when she fell down, the accused lifted her by caught hold of her tuft and also pulled her pyta (upper portion of her saree). According to P.W.1, the accused kicked on her abdomen and when she fell towards back, she sustained scratch injury on fore-arm and on the left leg and then accused caught hold of her tuft and pulled her upwards and abused her in filthy language and threatened her that he can rape her and then pulled her saree. This version of P.W.1 is not supported and corroborated by P.W.2. Even in the complaint-Ex.P1, these abusive words and threat to rape her is not mentioned.
As seen from the cross-examination, she admitted that she has not stated these aspects before the police in her 161 Cr.P.C statement. So the entire evidence of P.W.1 with regard to offence under Section 354 IPC is a complete improved version. P.W.2 is an independent witness and he has not supported this improved version and according to him, the accused kicked on her abdomen and when she fell down, he pulled her by caught holding of her tuft and pulled the pyta of her saree. Admittedly, there are land disputes between P.W.1 and accused. When there is enmity between the parties, the interested testimony of P.W.1 cannot be taken into consideration for convicting the accused, unless it is supported and corroborated with some independent evidence either direct or circumstantial. Here P.W.2 is a direct witness who has not corroborated P.W.1 for the acts attracting 354 IPC. From the material on record, it is clear that the accused had no intention at the inception, his entire endeavour is to prevent P.W.1 from ploughing the land. It is also clear from the evidence that there was a civil suit and it was disposed of in favour of P.W.1 on 10-12-2002 and this incident happened on 14-12-2002. As rightly pointed out by the learned counsel for the revision petitioner to constitute an offence under Section 354 IPC, there must be intention or knowledge. Here both these things are absent and in the process of preventing P.W.1 from ploughing the land, these things happened, for which, no motive or intention can be attributed. Particularly, when the accused is aged about 70 years and P.W.1 is a daughter to him in relation, the charge for an offence under Section 354 IPC requires positive and convincing evidence. As already referred above, P.Ws.4 & 5 have no personal knowledge of the incident and according to them, they came to know about the incident through P.W.1 only. On a thorough scrutiny of the evidence on record, I am of the view that both trial Court and appellate Court have erred in convicting the revision petitioner for the offence under Section 354 IPC on the basis of sole testimony of P.W.1. When the evidence of P.W.1 is an improved version from that of F.I.R and her earlier statement believing her evidence in a grave crime is absolutely not warranted. With regard to offence under Section 323 IPC, the evidence of P.W.1 is supported and corroborated with the evidence of P.W.2 and also with the evidence of medial officer and the trial Court was right in convicting the revision petitioner for the offence under Section 323 IPC.
7. In view of my findings and observations mentioned supra, I am of the view that trial Court and appellate Court have in convicting the revision petitioner for the offence under Section 354 IPC and the same is liable to be set aside.
8. For the above reasons, revision is partly allowed by setting aside the conviction against the revision petitioner for the offence under Section 354 IPC, but conviction and sentence for the offence under Section 323 IPC is confirmed. The fine amount paid by the revision petitioner for the offence under Section 354 IPC shall be refunded.
12. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date: 17.04.2014 mrb