IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.244 of 2008 DATED:16.11.2010 Between: Gaddam Srinivas and another … Appellants And State of A.P., rep., by Public Prosecutor High Court, Hyderabad … Respondent THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.244 of 2008 JUDGMENT: The appellants herein were tried as accused Nos.1 and 2 in Sessions Case No.151 of 2007 by the II Additional Sessions Judge, Karimnagar, at Jagtial, for the offences punishable under Sections 394 and 376(g) of the Indian Penal Code (IPC). The trial Court having considered the evidence of P.Ws.1 to 15 and Exs.P.1 to P.18 on behalf of the prosecution and the evidence of D.W1 and Ex.D.1 for the defence, came to the conclusion that the appellants are guilty of the said offences and accordingly sentenced them to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 394 of IPC, and twelve years for the offence punishable under Section 376(g) of IPC. Further, the appellants were directed to pay fine of Rs.5,000/- on each count. The same is questioned in this appeal. The case of the prosecution, as per the evidence of the prosecution witnesses, in brief is as follows. On 15.3.2006 the victim, who was examined as P.W.2, her husband, who was examined as P.W.1, and three others, who were examined as P.Ws.3, 4 and 5, went to attend the agricultural work in the maize garden of P.W.6 and after finishing the work in the evening P.Ws.2 to 5 were coming together on bullock carts whereas, the husband – P.W.1 was coming on his T.V.S. Motor cycle. When they reached Kistampet Village at about 7.15 p.m., the appellants, who were wearing masks beat P.W.1 with a cart-peg and took all of them to a nearby hillock and made them to sit there. It is further alleged that the appellants took P.W.2 to nearby bushes and robbed her articles. It is also the case of the prosecution that the appellants after taking P.W.2 to nearby bushes, robbed her ornaments and also committed rape, one after the other. After the incident, while they were returning home, P.W.2 did not reveal about the said incident of rape, and after reaching the home she informed her husband – P.W.1 about the appellants committing the act of rape. On the next day, P.W.1 met P.W.6, i.e., owner of the maize garden, informed him about the incident and they both went to an Advocate and got drafted a report and all of them, P.Ws.1, 2, 3 and 6, went to the Police Station, Jagtiyal Rural, and gave the report on the basis of which a case in Crime No.33 of 2006 was registered by the Sub-Inspector of Police, Jagtiyal Rural Police Station. The Sub-Inspector of Police, who registered the said crime, recorded the statements of all the witnesses, and the injured i.e., P.Ws.1, 2, and 3 were referred to Government Area Hospital, Jagtial, for treatment. The Civil Assistant Surgeon, Government Area Hospital, Jagtial, who was examined as P.W.10, examined P.Ws.1 and 3 issued wound certificates and the same were marked as Exs.P.7 and P.9 respectively. P.W.2 was examined by P.W.9 - Civil Assistant Surgeon, Government Area Hospital, Jagtial, and her report was marked as Ex.P.5. P.W.9 - doctor also gave a final opinion and the same was marked as Ex.P.6. After three days, the Inspector of Police, who was examined as P.W.14, took up further investigation in the case, proceeded to the village and examined P.Ws.1 to 6. He arrested the appellants on 03.4.2006 at Sarangapur cross roads and examined them in the presence of P.Ws.8 and 12. In the light of the confession made by the appellants, M.Os 1 to 5 and some other gold ornaments were recovered from the appellants in the presence of the mediators. The Civil Assistant Surgeon, who was examined as P.W.11, conducted potency test on the appellants on 3.4.2006 and issued a certificate – Ex.P.10 with regard to their potency. With regard to the property, an identification parade was conducted in the presence of one Darikota Yellaiah, who was examined as P.W.15, on 04.04.2006 and the properties – M.Os 1 to 5 and other gold ornaments were identified by P.Ws.2 and 3. On a requisition, the Judicial Magistrate of First Class, Metpalli, who was examined as P.W.13, conducted Test Identification Parade on 06.5.2006 during the course of which P.Ws.1 and 5 did not identify the appellants, but the victim – P.W.2 identified them. The Test Identification Parade proceedings are marked as Ex.P.13. After completion of the entire investigation, the Inspector of Police, who was examined as P.W.14, filed the charge sheet. It is mainly contended by the learned Counsel for the appellants, Sri C. Praveen Kumar, that the entire case is falsely foisted, for the reason that the appellants are having enmity with P.W.6 and the said fact is borne on record. It is his further submission that if really the alleged act of rape had taken place and the same was informed to her husband P.W.1 and while preparing the report - Ex.P.1, he would have mentioned about it, but curiously there is absolutely nothing with regard to the said act of rape in Ex.P.1. It is his further submission that even according to the case of the prosecution the appellants were wearing masks at the time of the incident and the appellants are strangers to P.Ws.1 and 2 and nothing is elicited as to how P.Ws.1 and 2 identified the appellants. On the contrary, the learned Public Prosecutor while supporting the judgment of the trial Court, submitted that the learned Sessions Judge weighed the entire evidence in holding that the appellants are guilty of the said offences punishable under Sections 394 and 376(2) (g) of IPC and as such it is not a case for interference. In the light of the respective submissions of the learned Counsel, this Court looked into the evidence on record. P.W.1 is the husband of P.W.2 – victim. P.W.1 is the author of the report Ex.P.1, on the basis of which the law was set in motion. Either in his evidence or in Ex.P.1, he did not state anything with regard to the alleged act of rape. In the evidence what was stated by P.W.1 is that the appellants took away P.W.2 to the nearby bushes and snatched away the gold ornaments from her. Similarly, in Ex.P.1 report dt.16.3.2006, there is no whisper about the alleged rape that has been committed by the appellants on P.W.2. This aspect really throws a doubt in the mind of the Court as to whether the act of rape is really committed by the appellants or not. The evidence of P.W.2, i.e., the victim – wife of P.W.1 is to the effect that the appellants took her to a nearby field, committed rape and also removed some gold ornaments. Though the said fact was not stated while P.Ws.1 to 5 were returning home after the incident, she has categorically admitted that after reaching home she narrated the incident to her husband on the night itself, i.e., 15.3.2006 night. When P.W.1 knows about the said act of rape, it is really curious and surprising to note that he does not make any mention about the said act of rape in his report, Ex.P.1, on the basis of which the crime was registered. In fact on the basis of the said report the crime was registered for the offence punishable under Section 392 of IPC only. It is only during the course of investigation and when the statements of all the witnesses, including P.W.2 – victim, were recorded, it came to light from the statement of P.W.2 about the act of rape and then an alternation memo was filed on the basis of which F.I.R. was altered from Section 392 of IPC alone to Section 394 and 376(g) of IPC. All these aspects appear to be somewhat absurd. When the husband, who was examined as P.W.1, is aware of the said act of rape, while giving a report to the Police, normally the said fact would also be mentioned. In these circumstances, this Court is of the considered opinion that the act of rape appears to be false. Coming to the offence punishable under Section 394(g) of IPC is concerned, no doubt the witnesses have spoken about the alleged hurt in committing robbery. The doctors also certified that there are injuries on the bodies of P.Ws.1, 2 and 3. Whether the appellants have caused the said hurt while committing robbery or not is the question. The prosecution itself has come forward with a case stating that the appellants were wearing masks at the relevant point of time. It is the further case of the prosecution that they are strangers and P.Ws.1 to 3 do not know them at all. In the test identification parade conducted on 06.5.2006 P.Ws.1 and 5 did not identify the appellants and it is only P.W.2, who identified the appellants. The said identification parade proceedings are marked as Ex.P.13. When the appellants were wearing masks and are strangers, it is not known as to how P.W.2 could identify the appellants. In fact, immediately after the test identification parade, when the learned Magistrate asked the appellants as to what they would say with regard to test identification parade, it is categorically recorded in Ex.P.13 that the appellants are having enmity with P.W.6, i.e., Sridhar. The case of the prosecution also is to the effect that P.Ws.1 and 2 went to P.W.6 and it was P.W.6 who got the report drafted by an Advocate and the said report was given by P.W.1 to Jagtial Rural Police Station. In those circumstances, it can definitely be inferred that a false case has been foisted by P.W.6 because of the enmity he has with the appellants. In the light of the above discussion, this Court has no hesitation to come to the conclusion that a false case has been foisted and the appellants were falsely implicated and the trial Court erroneously came to the conclusion that the appellants were guilty of the offence punishable under Section 394 and 376(2)(g) of IPC. Accordingly, the appeal is allowed. The impugned judgment dated 20.02.2008 passed by the Court of II Additional Sessions Judge, Karimnagar, at Jagtial, in S.C. No.151 of 2007, is set aside. The appellants are acquitted of the charges under Sections 394 and 376(2) (g) of the Indian Penal Code, for which they were tried and sentenced. The appellants shall be released forthwith, if they are not required in connection with any other crime. ______________________________ JUSTICE GOPALA KRISHNA TAMADA 16th November 2010 bnr