IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE SEVENTH DAY OF DECEMGBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 384 OF 2003 Between: Shaik Jeelani Basha & 4-Ors. … Petitioners V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad … Respondent Counsel for the appellants : Sri V.R.Reddy Kovvuri Counsel for the Respondent : Addl.Public Prosecutor The court made the following : (order follows 2nd page) THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 384 OF 2003 O R D E R : Aggrieved by the conviction and sentence recorded by the Assistant Sessions Judge, Rayachoty, in SC.No. 33 of 2002 dated 18-03-2001, whereby and whereunder the appellants were found guilty for the offences punishable under section 376 (g) and 379 IPC and sentenced to undergo Rigorous Imprisonment for ten years for the first charge besides that they were sentenced to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for six months and they were further sentenced for the offence under section 379 IPC to undergo Rigorous Imprisonment for one year and further directed to run both the sentences concurrently, this criminal appeal is filed. 2. The facts of the case are that on 27-3-2001 the victim Devara Alivelamma and her husband Ramanaiah while they were going to Gollapalli village for selling cart thread and by the time they reached Tekka near Darga on the way to Gollapalli, the accused waylaid and obstructed them and they tied Ramanaiah with thread and then the accused took the victim to nearby bushes and removed her clothes and tied a cloth on her mouth and committed rape on her one by one and went away and in the said incident her gold Talibottu and cash ofRs.300/- was taken away by the accused. Later they returned to their house and informed the incident to her mother Sayamma and the victim was taken to Dr.T.V.Ramana Reddy, as she was suffering from stomach pain and during treatment they informed that the victim was assaulted by some unknown persons and taken herTalibottu and cash and on that he instructed her to give police complaint and she replied that she do not know the identity of the accused and finally they identified the accused on 08-4-2001. She lodged a report before the police and the same was registered for the above said offences. 3. The learned Additional Judicial Magistrate of First Class, Rayachoti on receipt of charge sheet assigned PRC.No.18 of 2001 on his file and complied the formalities as contemplated under section 207 Cr.P.C. and committed the same to the Court of Session, Sessions Division, Mahbubnagar under section 209 (a) Cr.P.C. and under section 209 (c) Cr.P.C. submitted the record of the case and thereafter under section 209 (d) Cr.P.C. notified the Public Prosecutor of the commitment of PRC.No. 18 of 2001 to the Court of Session. 4. On receipt of records in PRC.No. 18 of 2001, the learned Sessions Judge, Kadpa, made over the same to the Court of Assistant Sessions Judge, Rayachoti by assigning SC.No. 33 of 2002. 5. On appearance of the accused, the learned Assistant Sessions examined them under section 228 Cr.P.C. alleging the substance of accusation. All the accused denied the same. Charge under section 376 (g) and 379 of IPC were framed, read over and explained to them. They all pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined in all 11 witnesses; PWs 1 to 11 and marked Exs.P1 to P15 besides MOs 1 and 2. On behalf of the accused no oral and documentary evidence was adduced. 7. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. for the incriminating evidence appearing against them. All the accused denied the same but the contradictory statements of PWs 1 to 4 were marked as Exs.D1 to D9. 8. On appreciation of the oral and documentary evidence placed on record, the learned trial Judge found the accused guilty for the offences punishable under section 379 (g) and 379 of IPC and convicted and sentenced them for the said offences as stated hereinabove and acquitted A-3 for the said offences. 9. Aggrieved thereby, the accused filed the present criminal appeal. 10. Heard the learned counsel for the petitioners as well as the learned Additional Public Prosecutor representing the State. 11. It is the case of PW-1 victim lady that on 27-3-2001 the appellants herein dragged her on that day at 04:00 p.m. near bushes, which is 30 feet away from the cart track where they committed rape on her in the presence of her husband PW-2. Further she informed that she lodged a complaint on 08-04-2001. Prior to lodging of complaint she reported regarding the incident to PW-4 the doctor, who treated her. Whereas she has not stated regarding the rape committed but of complaining body pain, for which PW-4 deposed that he has given treatment and she informed that some persons committed rape and he advised her to lodge a complaint. The contention of PW-1 supported by the evidence of PW-2 the husband, who witnessed the occurrence on the date of commission of offence, the point for consideration on the basis of the evidence given by the prosecutirix and PW-2 husband the victim lady, the case of the prosecution that the complaint lodged on 08-4-2001 since PW-1 was not in a position to identify the persons who committed rape. Hence, she took five days time to recollect and identify the persons, who committed crime and then she lodged the complaint on 08-4-2001. Even admitting the fact that she took five days of time to identify the persons, there is no explanation from the prosecution that why the complaint is not given prior to 08-4-2001. But on perusal of the evidence of PW-1, the accused belongs to the same village and they reside 150 feets away from the house of PW-1. PW-1 further stated that she know the names of the appellants-accused. But she does not know who is the person and what is the name of particular person concerned. In the above statement given by PW-1, it is very clear that the victim lady PW-1, who know the accused by their name then the victim lady PW-1 know the names of the accused who committed the crime. Nothing prevented her from lodging the complaint before the police informing the names of the accused concerned. If such a complaint is lodged by PW-1, it is the duty of the Investigating Officer to secure the concerned persons and make PW-1 to identify them either in the Police Station or before the Court. But it is highly improbable evenafter knowing the names of the persons, who committed the crime, she has not lodged the complaint and also she wants the names of the accused concerned and further it is highly unbelieveable when the persons those who are resident of the same village that too more particularly the accused persons reside 150 feets away from the house of PW-1. The evidence adduced by PW-1 that she could not be able to identify them at the first instance, which clearly shows that PW-1 with an ulterior motive implicated these accused persons in the said crime and as far as the offence under section 376 (g) iPC is concerned, it is the case of PW-1 that she has not stated before the police that they snatched away gold talibottu which is recovered on the basis of the confession given by A-5 before the Police. In the absence of any such evidence, they committed the theft of gold talibottu, there is no offence under section 379 IPC. Even the evidence of PW-2, which is not inspiring confidence of the court, since he is also resident of the same village, who has not lodged the complaint before the police on the same day and further it is the evidence adduced by PW-2, he is able to recollect the name of the persons within three days. There is also no explanation from the prosecution as to why PW-2 has not lodged any such complaint before the police concerned. The Investigating Officer also not in a position to explain on the said inordinate delay in lodging the complaint. Further even it is the case of PW-1 that that she can identify the persons, who committed the crime. It is the duty of the Investigating Officer to conduct test identification parade and make PW-1 to identify the assailants, who committed the crime. If the Investigation Officer is not inclined to conduct any such test identification parade, it would also show that the accused persons already known to the victim lady. Hence, the evidence adduced by PWs 1 and 2 is highly improbable, unbelievable and also the entire case is foisted against the appellants here with some ulterior motive. Therefore, the conviction and sentence recorded by the trial court is liable to be set aside. 12. Accordingly, the criminal appeal is allowed and the conviction and sentence recorded by the trial court be and is hereby set aside. The fine amount, if any, paid by the appellants shall be directed to be returned to the appellants. __________________________ JUSTICE RAJA ELANGO. 07-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 384 OF 2003 Circulation No.67 Date:07-12-2010 Court Master : I s L Computer No. 43