IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.391 OF 2001 Between: Merugu Sammaiah ..... Petitioner/Appellant/Accused AND State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent/Respondent/Complainant The Court made the following: ORDER: The criminal revision case under Section 397 read with 401 of Cr.P.C., 1973, is directed against the judgment, dated 20.03.2001, in Criminal Appeal No.141 of 1999, on the file of the learned I Additional Sessions Judge, Warangal, in confirming the conviction and sentence recorded in the judgment, dated 11.10.1999, in S.C.No.621 of 1998, by the learned I Additional Assistant Sessions Judge, Warangal, whereunder the petitioner/A2 was convicted for the offence punishable under Section 376 read with 511 IPC and sentenced to undergo Rigorous Imprisonment for a period of three years three months and to pay a fine of Rs.2,000/-, in default to undergo Simple Imprisonment for a period of three months. 2. The case of the prosecution in brief may be stated as follows. On 29.04.1998 at about 1.00 p.m., the parents of P.W.3 went to their avocation leaving P.W.3 and her brother (P.W.5) in the house. On seeing the same, A1 and A2 with an intention to commit rape on P.W.3 proceeded to her house and sent the brother of P.W.3 outside asking him to get insecticide from the nearby tamarind tree and thereafter, A1 took P.W.3 inside the house and bit on her right cheek and committed rape on her, while A2 was waiting outside her house. Thereafter, A2 went inside the house and on seeing A2 entering the house, she raised cries. In the meantime, P.W.5 returned home. On seeing his sister weeping, he also raised cries. On hearing the cries of P.Ws.3 and 5, One Sugunamma, who is a neighbour, rushed to the house of P.W.3. On seeing P.W.5 and Sugunamma, both the accused ran away. P.W.3 narrated the incident to P.W.5 and Sugunamma and after return of her parents in the evening, she narrated the incident to them. On 01.05.1998 at about 8.00 p.m., P.W.1 (mother of P.W.3) lodged Ex.P1-complaint in Hasanparthy Police Station, basing on which a case in Crime No.63 of 1998, under Section 376 read with 34 IPC was registered. The Inspector of Police, Hasanparthy took up the investigation, visited the scene of occurrence and examined the witnesses and sent P.W.3 to the Government Maternity Hospital, Hanamkonda, for examination and report. On 11.05.1998 at about 4.00 p.m., the Inspector of Police arrested A1 and A2 at Madipalli village. After completion of investigation, the police filed the charge sheet. 3. When a charge under Section 376 read with 511 IPC was framed, read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P11, besides case property M.O.1. 5. After closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence of P.Ws.1 to 12. They denied the same. On behalf of the accused, D.W.1 was examined and Exs.D1 and D2 were marked. 6. The trial Court, after considering the evidence on record, found the petitioner/A2 guilty for the offence punishable under Section 376 read with 511 IPC. Challenging the same, the petitioner preferred appeal before the I Additional Sessions Judge, Warangal. The Appellate Court vide impugned judgment dismissed the appeal confirming the conviction and sentence recorded against the petitioner/A2. Hence, this revision. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. Learned counsel appearing for the petitioner/A2 contended that there was no allegation of whatsoever that the petitioner/A2 made an attempt to commit rape on P.W.3, that P.W.3 was mentally retarded person, and she has given a different version, that the petitioner simply accompanying A1 to the house of P.W.3 does not amount to an offence as he has not made any attempt to commit rape on her and therefore, both the courts below have not considered the evidence on record and hence, he prays to set aside the conviction and sentence recorded against the petitioner/A2. 9. Counsel representing the learned Public Prosecutor contended that the findings are based upon proper appreciation of evidence on record, that none of the findings is shown to be incorrect or illegal, that the evidence of P.Ws.3 to 5 would go to show that the present petitioner was waiting outside and after A1 committed rape on P.W.3, he tried to enter into the house with an intention to commit rape, but in the meanwhile, P.W.5 came there and raised cries, that on hearing his cries, one Sugunamma, who is the neighbour, came there and on seeing P.W.5 and Sugunamma, both the accused ran away and hence, she prays to dismiss the revision. 10. The case as depicted by P.W.3 was that on 29.04.1998 at about 1.00 p.m., when the parents of P.W.3 went on their avocation leaving her and her brother at the house, A1 and A2 in furtherance of their common intention to commit rape on P.W.3 proceeded to the house and sent P.W.5 outside asking him to get insecticide from the nearby tamarind tree. Thereafter, A1 took P.W.3 into her house and bit on her right cheek and committed rape on her. On seeing A2 entering into the house, P.W.3 raised cries and in the meantime, P.W.5 also returned to the home. On seeing her sister weeping, he also raised cries. On hearing his cries, One Sugunamma, who is the neighbour, came there. On seeing the neighbourer coming, the accused ran away. 11. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973, are truncated. Unless the findings are shown to be incorrect, illegal, or improper, normally this Court will not interfere with the concurrent findings. The petitioner/A2 was found guilty under Section 376 read with 511 IPC. Therefore, there should be an attempt to commit rape on P.W.3. There cannot be any dispute that the preparation to commit crime is not an offence unless followed by some overt act. 12. No doubt, A2 went to the house of P.W.3 along with A1 and he was waiting outside the house while A1 was committing rape on her. After A1 came out, A2 was about to enter into the house. Then P.W.3 raised cries. In the meantime, P.W.5 also came there. On seeing P.W.3 crying, P.W.5 also raised cries. On hearing the cries, one Sugunamma, who is the neighbour, came there. On seeing Sugunamma and P.W.5, both the accused ran away. Therefore, in such circumstances, it can safely be said that A2 was preparing to commit an offence of rape. In the meanwhile, Sugunamma came there on hearing the cries. Then A1 and A2 ran away. 13. It is not a case where the petitioner/A2 did some overt acts by doing something or catching hold of the victim-P.W.3 with an intention to commit rape on her. Though the intention of the petitioner/A2 appears to be to commit rape and in pursuance of the said intention, when he was about to enter into the house, the victim raised cries. Therefore, before the petitioner/A2 made an attempt, the crime was stopped. In such circumstances, the case does not fall under Section 376 read with 511 IPC. To attract the said provision, there must be an attempt to commit an offence. Even the entire evidence of the prosecution is to be accepted, there was no such attempt on the part of the petitioner to commit crime except to the fact that while he was about to enter into the house, she raised cries. Therefore, he ran away. Hence both the Courts below have completely overlooked this aspect of the case. In the absence of any evidence, the conviction and sentence recorded against the petitioner/A2 is not correct. Hence, it is liable to be set aside. 14. Accordingly, the criminal revision case is allowed setting aside the judgment, dated 20.03.2001, in Criminal Appeal No.141 of 1999, on the file of the learned I Additional Sessions Judge, Warangal, insofar as the present petitioner/A2 is concerned. The petitioner/A2 is found not guilty of the charge under Section 376 read with 511 IPC and accordingly, he is acquitted of the said charge. Bail bonds of the petitioner/A2 shall stand cancelled. Fine amount, if any, paid by the petitioner/A2 shall be returned to him. _____________ (K.C.BHANU, J) Date: 21st August, 2009. KL