THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.408 of 2007
17-07-2014
BETWEEN:
The State of Andhra Pradesh, represented by The Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh …..Appellant AND Kasireddy Mutyalarao And others …..Respondents/Accused THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO
CRIMINAL APPEAL No.408 of 2007
JUDGMENT:
The Criminal Appeal is preferred by the State challenging the Judgment dated 10.08.2005 passed in S.C. No.257 of 2003 by the Court of the Assistant Sessions Judge, Tanuku, whereby the learned Judge acquitted the accused for the offence under Sections 147, 148, 354 and 447 read with 149 IPC.
The case of the prosecution, as recorded by the Court below, is as follows:
The Sub Inspector of Police Penugonda Police Station filed charge sheet against the accused, alleging that A1 is facing trial in 4 cases. A2 is facing trial in 4 cases, registered by Penugonda Police Station and pending on the file of II Addl. Judicial First Class Magistrate’s Court, Tanuku and in Assistant Sessions Judge’s Court, Tanuku, A3, A6 and A7 are also facing trial in the said cases. Due to previous enmity on 20-11-2002 at above 7.00 pm., when the de facto-complainant/victim was brooming her front-yard at Nowdu Complex, all the accused formed into an unlawful assembly with common intention to cause harm to the de facto-complainant N. Durgarao, and N. Srinu, holding iron rods, sticks etc, criminally trespassed into her front-yard. A1 and A2 outraged her modesty by pulling her clothes, and forcibly made her fall on the ground. A3, A6 and A7 pushed her forcibly by putting their hands on her breasts, and thereby insulted her, A2 caught hold her tuft and tagged her. On the instigation A4 and A6, A3 beat N. Durgarao with an iron rod, on left ankle and testicles. A4 and A5 filed and kicked N. Srinu, while A6 and A7 beat N. Srinu on left hand index finger and thereby inflicted bleeding injuries. Ch.Apparao and M.Manoher witnessed the occurrence. On 21-11- 2002 at 7.00 pm the de facto-complainant lodged a report which was registered as a case in Cr.No.110/02 U/Sec.147, 447,354,325 of IPC and sent the injuries to Govt. Hospital Tanuku. The investigating officer visited the scene of offence at 8.00 am, prepared a rough sketch and observation report in the presence of M.S.S.R.Krishna Murthy, and P. Durgamma, the doctor who treated the injured opined that the injuries are simple in nature, and might have caused with blunt object. All the accused surrendered before the Court. The A1 to A3, A6 and A7 are Rowdy sheeters of Penugonda Police Station and they are liable to be punished for the said offences. Hence the charge.
To substantiate the case of the prosecution, the prosecution examined P.Ws.1 to 7 and marked Exs.P.1 to P.8. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court acquitted the accused. The trial Court observed that there is a delay in lodging the complaint and also the delay in issuing First Information Report. The relevant observations in this regard are as follows.
Regarding the evidence of P.W.7, who is the investigating officer, he deposed that immediately after receiving the complaint, he registered it but immediately A4 came to the Police Station who also lodged a complaint which was registered as crime No.111/02 but after investigation referred it. He filed charge sheet on the complaint of P.W.1 thus the Investigating officer registered the case at 7.00 pm on 21-11-02. It is the consistent version of P.W.1 and P.W.2 that immediately they were sent to Govt. hospital, Tanuku for treatment, whereas the evidence of P.W.6 the doctor who treated the injured, goes to show that he received memo from P.W.7 on that he examined P.W.1 and P.W.2 and N.Srinu at 11.10 pm and issued Ex.P3 to Ex.P5 wound certificates. In the police memo sent by P.W.7 Crime number was not mentioned. If really a F.I.R. was registered, then P.W.7 would have mentioned the crime number. The non-mentioning of crime number, in the memo sent to P.W.6, throw any amount of doubt on the registration of first information report immediately after it received. Further more the First information Report was received by the Court on 27-11-02 at 10.30 am, there is no explanation from P.W.7 for sending the First Information Report after a gap of 26 hours. Reporting of incident was after 12 hours. The said delay was not explained by the prosecution properly and considering the above circumstances, there is any amount of doubt on the case of the prosecution.
The trial Court while acquitting the accused further observed as follows:
Regarding the intention of the accused, to outrage her modesty, the prosecution alleged that A1 and A2 pulled her clothes, forcibly made her fall on ground, A3, A6, and A7 put their hands on the breasts of P.W.1 and insulted her, A2 caught hold her tuft and dragged her. Upon considering the material placed, it is very easy to make such charges but it is very difficult to rebut, when such a charge is made it is necessary to see whether it is supported by independent evidence, besides that of the women herself, or is corroborated by her conduct and the surrounding circumstances and is consistent of with ordinary probabilities. In support of the case of the prosecution, P.W.2 is examined, but he is not an independent witness, because he is also an injured and he came out of the shop only after hearing cries of P.W.1, P.W.2 has stated that while he was moving in that area he witnessed the incident, but during cross-examination he stated that he was alone present, at the time of incident, and afterwards Manohar came there. The said Manohar is examined as P.W.4, who stated that at the time nobody gathered, at that place, except himself and P.W.3. Regarding the independent evidence, the evidence of P.W.3 is a known person to P.W.1. During cross- examination, P.W.3 has stated that in the earlier sessions case, the father of P.W.3 deposed evidence as though he witnessed the incident, thus this part of evidence goes to show that the family of P.W.3 i.e. his father and P.W.3 were known persons to P.W.1 and they have been deposing evidence in the cases of P.W.1, further stated that the house of P.W.3 is situated some where at a distance of 2 furlongs whereas the investigating officer has shown the house of P.W.3, situated to the West of Nowdu complex. During cross-examination of P.W.3 he stated that Minerva theatre road is busy road and he does not know which shops are situated in that road but he was alone present at the time of incident and afterwards Manohar came there. He also admitted that his father gave evidence in sessions case No.99/2000 on behalf of the complainant and the practice of deposing evidence by the father and by P.W.3 on behalf of the complainant and that the earlier cases were ended in acquittal. Therefore corroborated the P.W.1 and thereby prove outrage the modesty of P.W.1.
The veracity of P.W.1 further goes to show that she was pulled down and her saree was spoiled, but the said saree was not seized by the investigating officer and there is no reason why such evidence was suppressed by P.W.7. Regarding the injuries on P.W.1, she deposed that her tuft was caught hold by A2, and dragged her on the ground. If such incident was happened, then P.W.1 would have suffered some pain and it was not stated to the doctor when she was treated. The further aversion of P.W. 1 is that A3, A6 and A7 beat on her chest. If 3 persons beat on the chest of P.W.1 at a time, then she would have received some injuries and they were not stated by her to the Doctor. Regarding those injuries, the evidence of P.W.7 who is the investigating officer has stated that the injured have not told about the pain, and about their sufferance at the time of lodging complaint but stated only in the evening, then only they were sent to Govt. hospital for treatment. If really the injuries as deposed to by P.W.1 were received by her, then she would have definitely raised mediation before elders, on the same day or her husband would have reported the matter to the elders either on the same day or on the next day morning, but strangely her husband remained silent, and kept also of this case. There is delay in reporting the matter. Even though the parties are enemical since long time, even after reporting the matter to the police, there is delay about 16 hours in sending the injured to hospital. Further more, there is delay of 27 hours in sending the F.I.R. to Court. The crime number was not noted in the memo that was sent by P.W.7 to the doctor P.W.7 also stated that P.W.4 is working as labour in Kamablavari Iron Safe Works and he came there to collect the keys from there. In those circumstances, the evidence of P.W. 1 is not inspiring to prove that the accused outraged her modesty. The evidence of P.W. 3 and P.W.4 is not independent in nature, to corroborate the evidence of P.W.1. As stated supra, when the accused and P.W.1 and P.W.2 are enemical since long time and have been filing cases against each other, then it is not safe to rely upon the evidence of P.W.1 and thereby to convict the accused for the offence punishable U/Sec.354 of IPC.
Regarding the offence U/Sec.324, of IPC, P.W.1 has stated that the accused beat him with an iron rod, on his testicles. P.W.2 further stated that he received injury on his left ankle. During cross-examination, he stated that after hearing the crime of P.W.1 he went to the place of evidence, that he was pulled down, he raised cries, the accused beat him severely, he received contusions of over the body and further the accused beat him for 2 to 3 minutes and till such time, P.W.3 and P.W.4 did not come to the spot. He also stated that his clothes were spoiled due to the incident. The said clothes were spoiled due to the incident. The said clothes were not handed over to police. The medical evidence on this aspect goes to show that the Doctor found no external injuries on the body of P.W.2, at least not complained body pains. This is because P.W.7 has stated that the injured complained pain, then he sent them to Govt. Hospital for treatment. But P.W.1 has not complained the alleged pains to the doctor and consequently P.W.6 issued Ex.P.3 certificate that he found no injuries on the body of P.W.1. Ex.P.4 is the wound certificate of P.W.2 who complained some tender swelling near the left ankle and it is simple in nature. The evidence of P.W.2 shows that he was beaten by the accused with an iron or on his testicles. If it is true, then he would have complained some pain in the testicles. During cross-examination P.W.7 stated the if a well- built person continuously beat any person for a period of 5 minutes with 1 ½ inches diameter of 2 feet iron rod, definitely the person will receive serve injury and it may cause loss of life also. With the severity of injuries, if a person continuously beat the injured with an iron rod, but nothing was complained by P.W.2 to the doctor, then it throws any amount of doubt of the alleged incident, beating P.W.2 by the accused. Further cross-examination of P.W.2, goes to show that he filed S.C.99/2000 complaining that some of the injured in that case pressed testicles, thus it has became habit of P.W.2 to complain this type of cases, that the accused beat him on his testicles. The further cross-examination of P.W.2 goes to show that the Police registered a case against the injured for the offence U/Sec.307 of IPC even though they complained that the accused committed theft of Rs.45,000/-. This shows the intention of P.W.2 to depose false or to make severe allegations against the accused and thereby to implicate them in one way or the other. Further more P.W.7 during his cross- examination deposed that P.W.2 has not stated in his 161 Cr.P.C. statement about his injury on his left ankle and the medical evidence and P.W.3 has not stated that the accused caught hold the tuft of P.W.1 and beat her on her chest. This part of evidence throw any amount of doubt over the case of the prosecution.
The learned trial Judge came to the conclusion that prosecution has failed to prove its case as the evidence of P.Ws.1 and 2 is not corroborated with the evidence of P.Ws.3 and 4, who are the eyewitnesses, and their evidence is self-contradictory and contradictory to other evidences. In this regard, the learned trial Judge observed as follows:
Considering the entire case of the prosecution, the prosecution failed to establish the delay in lodging the first information report, registering the First information Report and sent the first information report to the Court. The evidence of P.W.1 to P.W.2 is not corroborated with the evidence of P.W.3 and P.W.4 and their evidence is not independent in nature. Both the parties having litigation since long time and some of the cases filed by P.W.1 against the accused were ended in acquittal. The evidence of P.W.1 and P.W.2 about their injuries is not corroborated to the evidence of P.W.6 i.e., the doctor who treated the injured. The prosecution failed to seize the soiled clothes, and failed to examine M.Srinu and independent witnesses, at the scene of offence. In view of deposing in evidence, by P.W.3, and his father in the earlier evidence, his evidence is not independent evidence and cannot be believable P.W.3 stated that P.W.4 came after the incident, therefore his evidence is not believable. Thus, the prosecution failed to establish the guilt of the accused beyond all reason doubt.
This Court is of the view that the Court below has considered the evidence in proper perspective and the reasoning given above while acquitting the accused is also in accordance with law.
The Judgment of the trial Court does not suffer from any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court. The criminal appeal fails and is liable to be dismissed.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 17.07.2014 pln