THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.760 of 2007 24-01-2014 BETWEEN:
Yandamuri Srinivas ….. Appellant/Accused AND The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.760 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused challenging the Judgment, dated 13.09.2006, in Sessions Case No.132 of 2005 passed by the Court of Sessions Judge (Mahila Court), Vijayawada.
The case of the prosecution is as follows:
That the appellant/accused was working in a hotel run by the father of the victim girl. The victim girl along with her brother went to their home from their hotel. The brother of the victim girl went for sleeping and the victim girl was studying her class books. When the appellant/accused knocked the doors and the victim girl opened the door and the appellant/accused trespassed into their house by pushing her inside and bolted the doors from inside and caught hold of the victim girl and pulled her towards him. Then the victim girl raised cries and then the brother of the victim girl woke up and neighbours also came there. Then the accused assaulted the victim girl by trying her neck with a door curtain and escaped by pushing her brother and jumping from the compound wall. On the basis of the complaint lodged, a case was registered against the appellant/accused for the offences under Sections 354 and 451 IPC. After completion of the investigation, charge sheet was filed.
To prove the guilt of the accused, P.Ws.1 to 7 were examined and Exs.P.1 to P.5 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused..
On appreciation of oral and documentary evidence, the trial Court found the appellant/accused guilty of the offences under Sections 354 and 451 IPC, and accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer simple imprisonment for a period of one month for the offence under Section 354 IPC; and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer simple imprisonment for a period of one month for the offence under Section 451 IPC. Aggrieved by the same, the appellant/accused preferred the present criminal appeal.
Heard the learned counsel for the appellant/accused and the learned Public Prosecutor and perused the record.
This Court is of the view that except the evidence of P.W.1, the victim girl, no other evidence is available on record regarding the allegations made by P.W.1. Even in the said evidence of P.W.1, she has not stated that the accused attempted to outrage her modesty. However, in her evidence, she stated that the appellant/accused entered into the house and roped her neck with the curtain available there, in which she sustained injuries.
To attract an offence under Section 354 IPC, an intentional act of a person to outrage the modesty of a woman shall be established. In the present case, on perusing the entire evidence of P.W.1, the victim girl, this Court is of the view that there is no evidence, except the evidence of P.W.1, victim girl, that the appellant/accused has done an intentional act of attempting to outrage the modesty of the victim girl. Hence, the appellant/accused is entitled for acquittal for the offence under Section 354 IPC. Hence, the conviction and sentence imposed by the trial Court against the appellant/accused for the offence under Section 354 IPC is liable to be set aside, and is accordingly set aside. However, this Court modifies the offence of 354 IPC to one under Section 509 IPC.
The fact of the appellant/accused entering into the house of the victim girl and trying to assault the victim girl amounts to an offence under Section 451 IPC and also an offence under Section 509 IPC.
When this Court expresses its view that the appellant/ accused is liable to be punished for the offences under Sections 451 IPC and 509 IPC, the learned counsel for the appellant/accused confines his argument with regard to quantum of sentence and submits that the appellant/accused has been suffering from HIV positive and as such a lenient view may be taken by this Court while imposing sentence of imprisonment, to spend his last days with his parents.
Considering the submissions made by the learned counsel for the appellant/accused and the nature of the offence, and also in view of long lapse of time, this Court is inclined to take a lenient view.
In the result, the conviction and sentence recorded by the trial Court against the appellant/accused for the offence under Section 354 IPC is hereby set aside. However, the conviction for the offence under Section 451 IPC is hereby confirmed, and the offence under Section 509 IPC, as modified by this Court from 354 IPC, is also hereby confirmed. However, the sentence of imprisonment for the said offences under Sections 451 IPC and 509 IPC are modified and reduced to the period, which the appellant/accused has already undergone. The sentence of fine stands confirmed.
The Criminal Appeal is accordingly partly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 24.01.2014 pln