THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1688 of 2004 Date: 27.04.2011 Between: Taneti Nageswara Rao .. Petitioner AND The State of A.P., rep.by its Public Prosecutor, High Court of A.P., at Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1688 of 2004 ORDER: As many as 4 accused faced prosecution before the Assistant Sessions Judge, Tanuku in S.C.No.43 of 2003 for the offences under Sections 354 and 324 read with Section 34 of the Indian Penal Code (‘IPC’ for short). The offence u/s.354 IPC was against A.2 only. The offence u/s.324 r/w Sec.34 IPC was against all the accused. 2. As many as 12 witnesses were examined by the prosecution before the Assistant Sessions Court. The silk blouse of the prosecutrix, who is PW.3, was marked as MO.1. Considering that the entire case was made out by the prosecution, the learned Assistant Sessions Judge convicted all the accused. He convicted A.2 for the offence u/s.354 IPC and sentenced him to Rigorous Imprisonment (R.I.) for a period of five years. He also convicted A.1 to A.4 for the offences u/s.324 r/w Sec.34 IPC and sentenced each of them to R.I. for a period of two years and also fine of Rs.1,000/- in default of payment of which, to suffer Simple Imprisonment (S.I.) for further period of one month. 3. Aggrieved by the same, the accused preferred appeals in Criminal Appeal Nos.238 of 2003 and 239 of 2003. The learned IV Additional Sessions Judge, West Godavari at Tanuku dismissed both the appeals so far as the conviction recorded by the trial Court is concerned. So far as the sentence of imprisonment against A.2 is concerned, the learned IV Additional Sessions Judge confirmed the same. Insofar as the sentence of imprisonment relates to A.1, A.3 and A.4, the learned IV Additional Sessions Judge set aside the same viz., R.I. for a period of two years and confined the sentence to fine of Rs.1,000/- each with appropriate default sentence. The second accused consequently preferred the present revision assailing the judgment of the trial Court and the appellate Court. 4. The case of the prosecution briefly is: a) The accused and PWs.1 to 3 belong to schedule caste. All of them are poor people. b) PW.3 is the victim with reference to the offence u/s.354 IPC. PW.2 is her brother. PW.1 is her senior paternal uncle. c) On 01.06.2002, PW.3 went with the cattle for grazing purpose. Unfortunately, cattle entered the field of the accused at about 11 a.m. At that time, A.2 was in the fields cutting grass. When the cattle of PW.1 guarded by PW.3 entered the fields of A.2, A.2 pulled PW.3, caught hold of her hand and abused her in vulgar language. In the process, A.2 also tore the blouse of PW.3. d) PW.3 felt ashamed and ran home. She went to the house of PW.1 and informed PW.1 as to what occurred in the fields of the accused. PW.2 also heard the representation of PW.3 to PW.1. PWs.1 and 2 then went to the house of A.1, who is the father of A.2, to question A.1 about the conduct of A.2 and to protest about the unbecoming behaviour of A.2. As PWs.1 and 2 were questioning A.1 about the conduct of A.2, A.1 to A.3 rushed out and caused blows over various parts of the body of the PW.1. When PW.2 tried to rescue PW.1, A.4 beat PW.2 also. e) Thus, A.2 committed the offence u/s.354 IPC and all the accused committed the offence u/s.324 r/w Section 34 IPC. 5. As already pointed out, the prosecution examined as many as 12 witnesses. PW.3 is the victim. PW.2 is her elder brother. PW.1 is their paternal uncle. PWs.4 to 7 are said to be neighbours of A.1’s house. PW.8 is one of the mediators for the seizure of MO.1 blouse of PW.3 under Ex.P.6 mediators report. PW.9 is said to be the co-mediator of PW.8. PW.10 is the Doctor, who treated PWs.1 and 2. PW.11 was the Head Constable at the time of the incident. He registered the case against the accused on the complaint of PW.1 under Ex.P.1 and issued First Information Report (FIR) under Ex.P.9. Then he conducted the major portion of the investigation. PW.12 was the then Sub-Inspector of Police who continued the investigation and laid the charge sheet. Prosecution for the offence under Section 354 IPC: 6. The learned counsel for the contesting accused who is A.2 submitted that the offence u/s.354 IPC is not made out against A.2. It may be recalled that the offence u/s.354 IPC is levelled against A.2 only. 7. There was no eyewitness for the offence u/s.354 IPC. The only evidence regarding the overt acts of A.2 against PW.3 is the evidence of PW.3. There is no corroboration for the evidence of PW.3. Be that as it may, if the evidence of PW.3 is sufficiently inspiring, conviction u/s.354 IPC would certainly be warranted, even if there was no specific corroboration for the evidence of PW.3 where the offence is u/s.354 IPC. 8. Where the only piece of evidence primarily is the evidence of PW.3, it deserves to be tested with the other circumstances of the case. 9. Sri C. Praveen Kumar, learned counsel for the contesting accused pointed out that there are sufficient inconsistencies between the evidence of PWs.1 and 2 on the one side and the evidence of PW.3 on the other side as well as between the evidence of PW.3 and PW.11 to grant benefit of doubt to A.2 regarding the very commission of the offence. 10. Regarding the inconsistency between the evidence of PW.3 and PW.11, he drew my attention to the evidence of PW.11. PW.11, as already pointed out, was the Head Constable of Penugonda Police Station at the time of the incident proper. He registered the complaint of PW.1 as Ex.P.1, issued FIR and took up investigation. He deposed that he seized MO.1 green coloured silk blouse of PW.3 on 01.06.2002 itself on which date the incident occurred. 11. As against this evidence of PW.11, it is the case of PW.3 that after the incident, she went to PW.1, informed the same and then proceeded to the house of her senior paternal uncle at Vendra village. She further deposed that she returned to her village Vadali on the fifth day after the incident from Vendra. In the cross-examination, PW.3 stated that she boarded a bus to go over to Vendra at about 3 p.m. She remained vague as to when police examined her and as to when MO.1 was seized from her by police. 12. Ex.P.9 original FIR was registered at 2 p.m. on 01.06.2002 at Penugonda. PW.3 boarded the bus at about 3 p.m. to go over to her senior maternal aunt’s place at Vendra. It is the further case of PW.11 that apart from examining PWs.1 and 2 at the police station and recording their detail statements, he reached the scene of offence and examined PWs.4 to 7 and recorded their detailed statements. He claimed that he seized MO.1 on the same day from PW.3. If PW.11 registered the FIR on receiving the information about the commission of the offence at about 2 p.m., it would be impossible for PW.11 to record the statements of PWs.1 and 2 thereafter, go over to the village, record the statements of PWs.4 to 7 and seize MO.1, all before PW.3 left for Vendra. The learned counsel for the accused pointed out that in view of the registration of the FIR at about 2 p.m. and in view of the evidence of PW.11 and PW.3, it is doubtable whether MO.1 was seized from PW.3 on 01.06.2002 itself. 13. The learned counsel for the accused indeed contended that MO.1 was seized from PW.3 on 05.06.2002. The evidence of PW.3 is not explicit in this regard as to when she was examined by police and as to when MO.1 was seized from her. I may, however, point out that it is a grey area as to when MO.1 was seized from PW.3. 14. The learned counsel for the petitioner/accused also contended that prima facie the offence u/s.354 IPC is not made out. He pointed out that A.2 was about 16 years old at the time of the incident and that the intention of A.2 to outrage the modesty of PW.3 was certainly not made out. Section 354 IPC provides punishment for outraging the modesty of any lady if anyone assaults or use criminal force upon such a lady with an intention to outrage the modesty of such lady or knowing it to be likely that he would thereby outrage the modesty of such a lady. It is the case of the prosecution that A.2 caught hold of the hand of PW.3 with a view to abuse here. Further, it is the case of the prosecution that A.2 tore the blouse of PW.3. I am afraid that if A.2 had no intention to outrage the modesty of PW.3, he must have been aware that his action in tearing the blouse of PW.3 would outrage the modesty of PW.3. I, therefore, do not agree with the contention of the learned counsel for A.2 that prima facie the offence u/s.354 IPC is not made out. At the same time, I have already pointed out that there is a marked difference between the evidence of PW.3 and PW.11 as to when PW.3 was examined by police and as to when PW.11 seized MO.1 from PW.3. 15. Further, PW.1 deposed that soon after informing PW.1 about the incident, PW.3 proceeded to the house of her paternal aunt at Vendra which is at the distance of 20 k.m. from Vadali where the incident occurred. He further deposed that the younger brother of PW.1 by name Kameswara Rao brought PW.3 back to Vadali. Curiously, PW.3 denied that K. Kameswara Rao brought her back to Vadali from Vendra. 16. To the extent as to when PW.3 left for Vendra, either PWs.1 and 3 agree that PW.3 proceeded to Vendra soon after she informed PW.1 about the overt act of A.2 or there is a marked disagreement between PW.1 and PW.3 as to when PW.3 left for Vendra. In either event, the benefit of doubt should go to A.2 so much so, it shall be presumed that PW.3 left for Vendra soon after the incident and had no occasion to be examined by PW.11. The corollary is that PW.11 had no possibility of seizing MO.1 blouse from PW.3 on 01.06.2002. 17. PW.8 claimed that he was present when PW.11 seized MO.1 from PW.6. Curiously, although PW.8 spoke about the seizure of MO.1, the prosecution chose to examine PW.9 who was the other mediator for the seizure of MO.1. PW.9, however, did not support the prosecution case. The very evidence of PW.8 consequently became processed where PW.9 deposed that Ex.P.6 was placed before him for his signature. Indeed, the evidence of PW.8 is not material albeit the disagreement between PW.8 and PW.9 also throws doubts over the case of the prosecution that MO.1 was seized by PW.11 on 01.06.2002 from PW.3. 18. It may also be pointed out that neither PW.3 nor PWs.1 and 2 spoke about the intention of the accused. PW.3 did not state that A.2 deliberately tore her blouse with a view to outrage her modesty. Needless to state that PWs.1 and 2 did not speak about the intention of A.2 as the very information about the incident to them was on the narration of the same by PW.3. PW.3 is not even clear that A.2 had the intention to outrage the modesty of PW.3. 19. Where PW.3 herself did not speak about the intention of A.2 to outrage the modesty of PW.3, assuming that A.2 had the knowledge that his action would outrage the modesty of PW.3 would not arise. Viewed in this angle, I agree with the contention of the learned counsel for A.2 that the prosecution failed to establish the guilt of A.2 for the offence u/s.354 IPC. 20. I am not able to agree with the finding of the trial Court and the appellate Court that the prosecution established the guilt of A.2 for the offence u/s.354 IPC beyond reasonable doubt. The finding of the trial Court and the appellate Court in this regard are erroneous and are liable to be set aside. Conviction and sentence of A.2 for the offence u/s.324 r/w 34 IPC: 21. PW.10 is the medical officer who examined PWs.1 and 2. He found that PW.1 sustained four injuries while PW.2 sustained a single injury. All the injuries were simple in nature. Taking the nature of the injuries suffered by PWs.1 and 2, the appellate Court considered that the ends of justice would be met if A.1, A.3 and A.4 were sentenced to fine without any imprisonment. The appellate Court set aside the sentence of R.I. for two years imposed by the trial Court against A.1, A.3 and A.4. The appellate Court, however, confirmed the sentence of imprisonment of two years together with fine of Rs.1,000/- imposed by the trial Court against A.2 for the offence u/s.324 r/w 34 IPC. 22. I am afraid that A.2 stands on the same footing as A.1, A.3 and A.4 are concerned, so far as the offence u/s.324 r/w 34 IPC is concerned. The overt acts attributed against A.2 are that A.2 hacked on the head of PW.1. PW.1 did not state what weapon was used by A.2. However, PW.2 deposed that A.2 hacked on the forehead of PW.1 with an axe. The others also caused injuries upon PW.1. PW.4 caused injuries again with an axe on the left leg of PW.2. Thus, the overt acts attributed against A.1 to A.4, so far as the injuries to PWs.1 and 2 are concerned, are similar. I agree with the contention of the learned counsel for A.2 that A.2 cannot be singled for serious punishment while A.1, A.3 and A.4 were sentenced to fine only and not any imprisonment. Perhaps, the trial Court considered that no special damage would be caused to A.2 by sentencing him to imprisonment for the offence u/s.324 r/w 34 IPC as he was at any rate was convicted for the offence u/s.354 IPC and was sentenced to R.I. for a period of five years. Where the very conviction for the offence u/s.354 IPC against A.2 is found to be bad, the imprisonment of A.2 for the offence u/s.324 r/w 34 IPC would matter greatly. I consider that A.2 shall be treated on par with the rest of the accused for the offence u/s.324 r/w 34 IPC. Consequently, while the conviction of A.2 for the offence u/s.324 IPC r/w 34 IPC deserves to be maintained, the sentence deserves to be reduced to fine of Rs.1,000/- with appropriate default sentence without any jail term. 23. Accordingly, the Criminal Revision Petition is allowed in part. The revision petitioner, who is A.2, is found not guilty of the offence u/s.354 IPC and is acquitted for the offence u/s.354 IPC. The conviction recorded by the trial Court as confirmed by the appellate Court for the offence u/s.324 r/w 34 IPC is confirmed against the petitioner/A.2. The petitioner, however, is sentenced to a fine of Rs.1,000/- in default of payment of which, to suffer S.I. for a period of one month for the offence u/s.324 r/w 34 IPC. The sentence of R.I. for a period of two years imposed by the trial Court and confirmed by the appellate Court against A.2 for the offence u/s.324 r/w 34 IPC is set aside. The order regarding the disposal of MO.1 as recorded by the trial Court is maintained. ________________ K.G. SHANKAR, J Date: 27.04.2011 Isn