THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 49 of 2006 ORDER: 1. This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed against the judgment dated 18.11.2005 in Criminal Appeal No.147 of 2005 on the file of the V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, whereunder and whereby the conviction and sentence recorded against the petitioner/ accused in the judgment dated 11.08.2005 in Sessions Case No.307 of 2003 on the file of the Assistant Sessions Judge, Ramachandrapuram, for the offence punishable under Section 376 read with 511 of the Indian Penal Code, 1860 (for short, ‘I.P.C.’), were confirmed. 2. The brief facts of the case of prosecution are that, P.W.1, who is defacto complainant, after death of her husband, returned to the house of her parents in Ramavaram village, and after staying there for about 3 years, she started residing with her in a rented house. The accused is a resident of Mallidivari street of the village. On 23.05.2003 at about 9.00 PM, while P.W.1 was lonely sleeping in her house, the accused entered into her house, made her to wake up and asked her to fulfil his sexual desire, for which she refused stating that she is not such a type of woman. Then, the accused pounced upon her, pressed her bubbles, torn her jacket and made an attempt to commit rape on her. Then, she struggled with the accused and also raised hue and cry. In the said struggle, she sustained nail scratches over her neck. On hearing the cries, P.W.2-younger sister of P.W.1 rushed there, and on that, the accused pushed P.W.1 aside and ran away. On the complaint lodged by P.W.1, police registered the case and laid the charge sheet on completion of investigation. 3 The trial Court framed a charge for the offence punishable under Section 376 read with 511 I.P.C., and when the charge was read over and explained to him in telugu, he pleaded not guilty and claimed to be tried. 4 To substantiate its case, prosecution examined P.Ws. 1 to 7 and got marked Exs.P1 to P4 besides case property M.O.1. 5. After closure of the prosecution side evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same and no evidence was adduced on his behalf. 6. The trial Court, upon considering the evidence on record, found the petitioner/accused guilty of the charge levelled against him and accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.500/- in default to suffer simple imprisonment for one month. On appeal by the accused, the appellate court dismissed the appeal confirming the conviction and sentence recorded by the trial Court. Challenging the same, the present Criminal Revision Case is preferred. 7. Now, the point for determination is whether the judgments of the courts below are correct, legal and proper ? 8. The learned counsel for the petitioner contended that even if the entire evidence is accepted, the case falls under Section 354 I.P.C., but not under Section 376 read with 511 I.P.C., and therefore, he prays to set aside the conviction and sentence recorded by the trial court as confirmed by the appellate court. 9. On the other hand, the learned counsel representing the Public Prosecutor opposed the same and contended that the intention of the accused was to commit rape on P.W.1 and that the concurrent findings of the courts below need not interfered with. 10. As seen from the evidence of P.W.1, while she was sleeping in the house, the accused went there and expressed his desire to have sexual intercourse, but she refused to agree for the same stating that she was not of that type of woman; then the accused pounced upon her and scratched with his nails on her neck with a view to spoil her; then, she raised cries, and on hearing the same, P.W.2-her sister and P.W.3-her younger brother came there. Except alleging that the accused pounced on P.W.1, he did not do any indecent acts of removing or tearing her jacket or removing saree, or catching hold of her breast of P.W.1. If really the intention of the accused is to commit rape on P.W.1, he would have done some indecent acts. Except stating that the accused scratched on her neck with nails, there are no other acts which would indicate that the intention of the accused is to commit rape on P.W.1. Therefore, the evidence of P.W.1, even if taken as true and correct, at best, an offence punishable under Section 354 I.P.C. would attract. These aspects have not been considered by the courts below in right perspective. Hence, the conviction and sentence recorded against the accused for the offence punishable under Section 376 read with 511 I.P.C. are liable to be set aside, and the accused is liable to be convicted for the offence punishable under Section 354 I.P.C. and accordingly, he is convicted of the said offence. 11. With regard to sentence, both the complainant (P.W.1) and the accused are present. They are identified by the learned counsel for the petitioner. They produced their respective identity cards issued by the Election Commission of India, and the complainant also produced her ration card. The said documents show their identity. The complainant stated that the accused is no other than her junior paternal uncle and she compromised the matter with him, and that, the accused has not committed any offence similar to the present one thereafter. In view of the fact that the offence punishable under Section 354 I.P.C. is compoundable, permission is accorded. Accordingly, the petitioner/accused is acquitted under Section 320 (8) Cr.P.C. 12. The Criminal Revision Case is, accordingly, allowed. ----------------------- (K.C.Bhanu, J.) 16.07.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 49 of 2006 16.07.2010 THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 49 of 2006 Date: 16.07.2010 Between: Denkati Surya Rao, s/o.Pentayya …Petitioner And State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent