IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINENTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1133 OF 2004 Between: Gouravarapu Venkata Rathnam. - - - Petitioner/ Appellant/ Accused AND The State of A.P., Rep by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Complainant. The Court made the following: THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1133 OF 2004 ORDER: This Criminal Revision Case under Sections 397 and 401 of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against judgment dated 25-06-2004 made in Criminal Appeal No.39 of 2001 on the file of II Additional Sessions Judge, Nellore, where under and whereby, conviction and sentence to suffer Simple Imprisonment for five years and to pay a fine of Rs.2,000/- and in default of payment of the fine amount to undergo Simple Imprisonment for three months for offence punishable under Section 354 IPC as imposed in Sessions Case No.341 of 2000, dated 15-03-2001 by the Assistant Sessions Judge, Kavali, Nellore District against the Revision Petitioner/Accused (for short, ‘the accused’) was confirmed except modifying the sentence of imprisonment to two years keeping the fine clause intact. 2. The brief facts that are necessary for the disposal of the present revision may be stated as follows: On 21-04-1999, at about 01:00 A.M., while P.W.1 (Akula Kondamma) was sleeping on a cot in front of her house, the accused went and lifted her and gagged cloth into her mouth and carried her to the hayrick situated at the northern side of her house and made an attempt to outrage her modesty. On hearing the cries of PW.1, V. Kondaiah (PW.2), A Koteswara Rao (PW.3) and A. Rama Devi (LW.4) woke up and observing them the accused left PW.1 proclaiming “Appude emaindi inka undile nee kadha”. One year prior to the said incident also the accused attempted to outrage the modesty of PW.1 and consequently paid Rs.200/- as penalty to the village Panchayat in the presence of S. Venkateswarlu (PW.4). On a report given by PW.1 on 23-04-1999 at 16-00 hours after the arrival of her parents, T. Sundaram Head Constable (PW.6) registered the case and after the completion of the investigation of the case Charge sheet was filed. 3. Charge under Section 354 I.P.C. against the accused was framed, read over and explained to him, for which, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 6 and marked Exs.P-1 to P-3. No evidence, either oral or documentary, was adduced on behalf of the accused. 5. Now the Points for consideration are : 1) Whether the prosecution placed sufficient evidence in order to uphold the charge leveled against the accused? 2) Whether the Courts below properly appreciated the matter? and 3) Whether the conviction and sentences imposed against the accused are tenable or not? 6. It is the contention of learned counsel for the Petitioner that where the alleged incident is said to have been taken place on 22-04- 1999, the corresponding report was given to the police on 23-04-2009 with a delay of 33 hours and PW.1 gave explanation to the effect that as her father was not available and he came later the delay was occurred but according to PW.4 elder, the father of PW.1 and PW.1 approached him on 22-04-1999 at 09-00 a.m. and complained against the accused which falsify the explanation given by PW.1 and it is fatal and as per Ex.P1 report further PW.1 stated that while she was sleeping in the house along with her brother PW.2, the accused entered the house and lifted her and carried her to their hayrick and outraged her modesty or tried to have sexual intercourse with her which is quite unnatural, under such circumstances, whereas PW.1 deposed to the effect that the accused committed the offence at the hayrick without disclosing the other aspects referred and further PWs. 1 and 2 clearly admitted in their evidence that there were houses by the side of her house and if the version given in Ex.P1 and also given by PW.1 is true, definitely she would have raised cries which would have attracted the attention of her brother and their neighbours to take necessary action but no evidence is adduced to that effect whereas PW.1 also deposed that if any cries were raised at their house those cries would not have been heard by their neighbours which is quite unnatural and the Courts below failed to appreciate the matter properly and arrived at incorrect conclusions and hence the conviction and sentence imposed by the Courts below are liable to be set aside. 7. It is quite significant that Ex.P1, first information report statement provides that while she was sleeping in their house along with her brother PW.2 during nighttime, the accused entered the house and lifted and carried her to their hayrick and tried to commit the alleged offence. In fact it is deposed by PWs. 1 and 2 that there were houses nearby their house. It is something unbelievable that PW.1 did not raise any cries even though the accused involved in the alleged misconduct. Therefore, her cries, if made by her, would have attracted the attention of PW.2 and their neighbours to take necessary measures immediately. The explanation given by PW.1 that her cries if any would not have attracted the attention of their nieghbours particularly during night time is quite unnatural and hence untenable. Therefore, the conduct of PW.1 amply infers that she did not make any such cries, which therefore is highly suspicious. It may give an inference that she was consenting party in doing so. 8. Further, there was a delay of 33 hours in giving the report to the police, which is to be properly explained by the prosecution. In this context, it is testified by PW.1 that her father was away and hence she could not take necessary measures to do so but PW.4 testified to the effect that on 22-04-1999 at 07-00 a.m. itself both PW. 1 and her father approached him in the matter, which disproves the explanation given. It appears that PW.1 gave the explanation for the purpose of overcoming this discrepancy and without any truth in it. It is observed by the Appellate Judge that there might be a move to place the matter before elders, hence such a delay was possible, but there is no basis to come to such a conclusion. The Judge should not have assumed that it might have happened without any substance. Therefore, the delay caused in giving the report to the police is fatal to the prosecution. 9. So, the prosecution failed to establish the charge framed against the accused. The claim of the defence is that due to political reasons a false case was foisted against him but there is no ground to uphold his claim, however it is not important when the charge is not established, otherwise. 10. The Courts below accepted such explanations given by the prosecution witnesses while holding that the prosecution established the charges against the accused, which therefore is not tenable. Accordingly, the Criminal Revision Case is allowed. __________________________ G. KRISHNA MOHAN REDDY, J June, 29, 2011. Dsh. THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 235 CRIMINAL REVISION CASE No.1133 OF 2004 Date:29.06.2011 Dsh.