IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE THIRTYETH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 5 2 6 of 2005 Between: Undadi Mallaiah … Petitioner V/s. State of Andhra Pradesh, Represented by its Public Prosecutor, High Court of A.P. Hyderabad … Respondent Counsel for the Petitioner : Sri D.Bhaskar Reddy Counsel for the Respondent : Public Prosecutor THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION No. 5 2 6 OF 2005 O R D E R : This Criminal Revision is directed against the conviction and sentence passed by the III-Additional Sessions Judge, Karimnagar, dated 10-3-2005 in Crl.A.No. 51 of 2004, confirming the conviction and sentence passed in SC.No. 842 of 2003, dated 06-4-2004 by the Assistant Sessions Judge, Karimnagar, whereby and whereunder the petitioner was found guilty for the offence punishable under section 354 IPC and was sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer Simple Imprisonment for three months. 2. The brief facts of the case for the disposal of the present Criminal Revision Case are as follows : On 27-3-2003 at about 09:00 a.m., while PW-1 was taking bath in her bath room, the accused jumped into the bath room by scaling over bath room wall and caught hold of her hand and used criminal force with an intent to commit rape on her and when she shouted loudly, the accused Mallaiah fled away by jumping over the wall. On hearing the cries, PWs. 2 to 4 rushed to the spot and saw the accused fleeing away and they caught hold of him. The accused relieved him from their hands and fled away. Thereafter PW-1 gave a complaint to the Police. On 24-7-2003 at about 08:00 a.m., the accused was arrested by the police and he was sent for judicial remand. 3. On appearance of the accused, he was examined under section 228 Cr.P.C., and a charge under section 354 IPC was framed against the accused, read over and explained to him in Telugu alleging the substance of accusation. The accused denied the substance of accusation and pleaded not guilty and claimed to be tried. 4. To substantiate the case of the prosecution, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to P-4 were marked. On behalf of the accused, no oral evidence was adduced but marked Exs. D1 and D2, which are admissible portion in 161 Cr.P.C. statements of PWs. 2 and 3. 5. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C., for the incriminating evidence appearing against him. Accused denied the same. 6. Upon consideration of oral and documentary evidence placed on record, the trial court found the accused guilty of the offences under section 354 IPC and was sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer Simple Imprisonment for three months. 7. On appeal, the conviction and sentence recorded by the learned Assistant Sessions Judge was confirmed by the learned III-Additional Sessions Judge, Karimnagar, in Crl.A.No. 51 of 2004, dated 10-3-2005. Challenging the same, the present Criminal Revision is filed. 8. Heard both sides and perused the oral and documentary evidence placed on record. 9. The evidence adduced by the prosecution runs as follows: i) PW-1 Mrs. Laxmi deposed in her chief examination that she is resident of Laxmipur village. She knows the accused Mallaiah as he also belongs to her village. About 6 or 7 months ago at about 09:00 a.m., while she was taking bath in her bath room she was applying soap to her body, at that time the accused Mallaiah jumped into the bath room by scaling over the wall. She could not say whether he came to take away her gold chain from her neck or to outrage her modesty. When she raised cries immediately her husband was also there in her house at that time, on hearing her cries the accused again jumped over the wall and went outside. She further deposed that her husband and other neighbours had caught hold of the accused. Thereafter, she went to the police station alone with her husband and gave a complaint. She also stated that the accused was taken to the police station and handed over him there. She further deposed that the accused came inside the bathroom only to take away her gold chain. Ex.P-1 is the report. Police examined her. ii) PW-2 Mr. Ganapathi deposed in his chief examination that he is the husband of PW-1. He deposed that the accused also belongs to his village. About more than six months ago at about 09:00 a.m., while his wife was taking bath in the bathroom, he heard her cries. Immediately he went near the bathroom. He opened the bathroom and he found the accused there and he caught hold of collar of the shirt of the accused and pulled him out. The neighbours also came there. The accused had scaled over the wall of the bathroom and jumped into the bathroom. He further deposed that he cannot say for what reason the accused had entered the bath room. Thereafter, he went to the police station there his wife had given a report to the police. He handed over the accused to the police. Police examined him. iii) PW-3 Edla Raji Reddy deposed in his chief examination that he know PWs 1 and 2 are his neighbours. He knows the accused, as he belongs to his village. About six months ago at about 09:00 a.m., PW-1 was taking bath in her bathroom. His house is situated in the house of PW-1. PW-1 raised cries in the bathroom. Then PW-2 Ganapathi, himself and LW-3 Sravan Kumar and LW-5 Gopaiah had rushed to bathroom. Then himself and PW-2 had opened the door of the bathroom and pulled out the accused from the room. The bathroom has no roof. The accused had scaled over the wall of the bathroom and entered into the bathroom with a view to commit rape on PW-1. He further deposed that after they pulled out the accused they along with PW-1 went to Police Station and there a report was given to the police. He also deposed that he handed over the accused to the Police. Police examined him. iv) PW-4 Edla Sravan Kumar deposed in his chief examination stating that PW-2 Ganapathi is his junior paternal uncle. PW-1 is the wife of PW-2. He know PW3 and LW-5 Gopaiah. He further deposed that he know the accused Mallaiah, who belongs to his village. PW-4 further deposed that his house is situated at a distance of 20 yards from the house of PWs 1 and 2. About six months ago, he was sitting at his house and on that day at about 09:00 a.m. he heard the cries of PW-1 from the bathroom. He rushed to the house of PW-1 then himself, PW-2 had caught hold of the accused in the bathroom. The accused jumped over the well and entered the bathroom, when PW-1 was taking bath. He pulled out the accused from the bathroom PW- 3 and LW5 Gopaiah also came there. The accused escaped from the house and ran away, again he caught hold of him and handed over him to the police by giving report. Police examined him. v) PW-5 Dasari Gopal deposed in his chief examination stating that he knows PWs 1 to 4 and the accused, they all belong to his village. About six months ago at about 09:00 a.m. PW-2 and PW-3 Raji Reddy caught hold of the accused and they were bringing him from the house of PW-2. When he questioned them, they had informed him that while PW- 1 was taking bath the accused had jumped into the bathroom to snatch away the gold ornaments from the body of PW-1 and when PW-1 raised cries they caught hold of the accused. Thereafter, they have taken the accused to the house of Sarpanch. Police examined him. vi) PW-6 P. Prashanth Reddy, the Sub-Inspector of Police, Jagtial town deposed in his chief examination stating that he worked as Sub-Inspector of Police Manakondur from July 2002 to August 2003. On 23-7- 2003 at about 11:30 a.m., PW-1 Laxmi along with her husband PW-2 came to the Police Station and presented Ex.P1 report. He registered the said complaint under Ex.P1 as a case in Cr.No.104/03 under section 354 of IPC. He examined PWs 1 and 2 and recorded their statements under section 161 Cr.P.C. Thereafter, he visited the scene of offence which is at the house of PWs 1 and 2, their he examined PWs 3 to 5 and recorded their statements under section 161 Cr.P.C. He conducted a panchanama at the scene of offence, which is at the bathroom of PW-1. Ex.P3 is the FIR issued by him. Ex.P4 is the panchanama conducted in the presence of K.Rajaiah and K.Rangaswamy (LWs-6 and 7). He had drawn a rough sketch of the scene of offence in the panchanama itself. On 24-7-2003 he apprehended the accused at about 08:00 a.m., at Laxmipur village at his house and secured his judicial remand after producing him before Judicial Magistrate of First Class, Karimnagar. After completion of investigation his successor, Veerabhadram had filed charge sheet. He did not conduct any further investigation in this case. 10. At the hearing the learned counsel for the petitioner submitted that PW-1, who lodged the complaint turned hostile and she has not supported the version in Ex.P1 complaint. In the trial court the learned Additional Public Prosecutor treated the witness as hostile and cross-examined her. 11. On the other hand, the learned Additional Public Prosecutor submitted that mere entering into the bathroom also attracts the offence under section 354 of IPC. Even though PW-1 has not stated that he has not committed any physical assault. 12. The point for consideration in this case as per the evidence adduced in this case, it is evident that the petitioner is not aware of the fact whether a person more particularly PW-1 is taking bath in the bathroom. The evidence of PW-1 further normally indicates that on her making hue and cry, the petitioner-accused tried to run away from the place and it is the specific case of PW-1 that he has not attempted to outrage the modesty of the complainant. It is also to be noted that none of the witnesses deposed that he made any attempt to outrage the modesty of the complainant/PW-1. In a criminal case the intention to commit the offence has to be taken into account to convict the accused. 13. In the present case, the evidence adduced by the prosecution shows that he entered into bathroom while PW-1 was taking bath but there is no evidence to show that he is aware of the fact that some body is in the bathroom and also the intention of the accused only to outrage the modesty of the complainant-PW1. In view of the same, this Court is of the view that the offence alleged under section 354 of IPC is not made out in this case. Hence, this Criminal Petition is allowed and the petitioner-accused is acquitted of the said offence. The fine amount, if any, paid by the petitioner-accused is directed to be refunded. 14. In the result, the Criminal Case is allowed. _________________________ JUSTICE RAJA ELANGO. 30-09-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No. 5 2 6 OF 2005 Circulation Entry No. 2 8 Date: 30-09-2010 Computer No. 43 Court Master: I s L