Dasara Guravayya v. The State Of A.P. Rep. By Public Prosecutor

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL REVISION CASE NO.989 OF 2005 ORDER:

Aggrieved by the conviction and sentence confirmed by the II Additional District and Sessions Judge (Fast Track Court), Srikakulam in Crl.A.No.142 of 2000 dated 16.06.2005, wherein, the Appellate Court found the petitioner guilty for the offences punishable under Sections 452 and 354 I.P.C and sentenced the petitioner to undergo rigorous imprisonment for two years and five years respectively with fine of Rs.500/- for the offences punishable under Sections 452 and 354 I.P.C with default sentence. Questioning the propriety and legality of the judgment in Crl.A.No.142 of 2000, the present criminal revision case is preferred.

The defacto complainant/P.W.1 and the petitioner/accused are the residents of the same village and the accused is working as a farm servant under Kolli Gopalam, whereas the defacto complainant Kolli Mohinamma is the resident of Amalapadu Village, Palasa Mandal, Srikakulam District. On 23.10.1996 at about 1:00 P.M, the accused with an intention to outrage the modesty of P.W.1 entered the house of P.W.1, fell upon her while she was alone sleeping in her house and used criminal force on P.W.1. P.W.1 raised cries, escaped from the scene and went out from the house and informed about the same to Kolli Gopalam and others. Thereafter, when the elders called the accused, he did not

turn up to attend the dispute raised before them. Therefore, a complaint by P.W.1 was lodged with the police and on the strength of the report Ex.P-1, the police registered Crime No.377 of 1996 for the offence punishable under Section 354 IPC and issued Ex.P-2 F.I.R.

After completion of investigation, the investigating agency filed charge sheet before the Judicial Magistrate of First Class, Palasa and the Court took cognizance of the offence punishable under Section 354 I.P.C and after following necessary procedure under Section 209 Cr.P.C, committed the case to the Sessions Division, Srikakulam. In Turn, the Principal District & Sessions Judge, Srikakulam registered the same as Sessions Case No.87/98 and made over to Assistant Sessions Judge, Sompeta for disposal of the case, in accordance with law.

Upon securing the presence of the accused and after compliance of necessary formalities, charges for the offences punishable under Sections 452 and 351 IPC were framed, read over and explained to the accused and he pleaded not guilty and claimed to be true.

During trial, on behalf of the prosecution, P.Ws 1 to 5 were examined and Exs.P-1 to P-4 were marked and material object M.O.1 was marked. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C, explaining the incriminating circumstances in the testimony of P.Ws.1 to 5, the accused denied and report no defence.

Upon hearing argument of both the counsel, the Trial Court found the accused guilty for the offence punishable under Sections 452 and 354 I.P.C and convicted and sentenced the accused as stated supra. Aggrieved by the conviction and sentence in S.C.No.87 of 1998 dated 17.10.2000, the petitioner preferred an appeal before the II Additional District and Sessions Judge (Fast Track Court), Srikakulam, whereby, the Sessions Court vide order dated 16.06.2005 confirmed the calendar and judgment, conviction and sentence passed by the Trial Court. Aggrieved by the conviction sentence confirmed and imposed by Sessions Court, the petitioner preferred the present criminal revision case on the following few grounds.

a) The Trial Court placed much reliance on the oral evidence of P.Ws 1 to 4, despite material discrepancies, testimony of the witness with regard to occurrence of incident. b) Then Trial Court and the Appellate Court did not consider the unexplained abnormal delay in lodging the complaint, though the police station is at short distance from the place of incident.

c) The Courts below did not insist independent corroborative evidence based on highly interested testimony of related witnesses, both the Courts recorded conviction of the accused and sentenced him as stated supra, erroneously. d) It is contended that when the prosecution case is that the accused made an attempt to rape P.W.1 and when her

blouse and saree were torn, and bangles were broken and no scratches were found on the victim P.W.1, this is a strong circumstance to disbelieve the case of the prosecution, but both the Courts below did not appreciate the evidence in proper perspective and committed an error and requested this Court to set-aside the concurrent fact findings recorded by the Courts below and prayed to acquit the accused/petitioner for the offences punishable under Sections 452 and 354 I.P.C.

During hearing, learned counsel for the petitioner Sri M. Viswanadham would contend that P.W.1 who is the victim woman made certain admissions with regard to attempt made by the petitioner to rape her and outrage her modesty. She also admitted that in the process of outraging her modesty, her blouse and saree were torn and bangles were broken, but, no material was collected by the investigating agency to substantiate such contention, except producing M.O.1. Apart from that, there was abnormal delay in lodging complaint and the delay was not explained property and in the absence of sufficient explanation for the delay, the possibilities of implicating the petitioner due to consultation who is working under the grandfather of P.W.1 as a farm servant cannot be ruled out. In such case, the Courts below ought to have accepted the false implication of the petitioner in the incident, overlooked the impact of such delay without any sufficient reason. It is also contended that the witnesses P.Ws.1 to 4 are related to one another and no independent witness was

examined to establish the incident and in the absence of any independent corroboration based on testimony of related witnesses recording conviction by the Trial Court and confirmed by the Appellate Court is erroneous and prayed to set-aside the same, acquitting the petitioner for the offences punishable under Sections 452 and 354 I.P.C.

Learned Public Prosecutor for the State of Andhra Pradesh supported the judgment of both the Courts finding the petitioner/accused guilty for the offences punishable under Sections 452 and 354 I.P.C and requested this Court to dismiss the criminal revision case, in view of limited jurisdiction that is conferred on this Court to interfere with the concurrent findings recorded by both the Courts.

Considering rival contentions and perusing the material available on record, the points that arise for consideration are as follows:

1. Whether the prosecution explained the delay in lodging the complaint properly. If, not, whether it is fatal?

2. Whether failure to insist corroboration of independent witnesses is a serious defect in the conviction. If so, whether the conviction and sentence recorded by both the Courts based on evidence of P.Ws 1 to 4 is illegal and liable to be set-aside?

3. Whether failure to seize the saree, torn blouse and broken bangle pieces and finding no injuries on the body of the victim-P.W.1 is fatal to the case of the prosecution. If so,

whether the petitioner/accused is liable to be acquitted for the offences punishable under Sections 452 and 354 I.P.C? P O I N T NO.1:

The first and foremost contention raised by the learned counsel for the petitioner is that there is abnormal delay in lodging the complaint which is fatal to the prosecution case, since there is possibility of implicating this petitioner due to disputes between his master i.e. grandfather of the victim woman under whom the petitioner is working as a farm servant, cannot be ruled out. the alleged incident occurred at 1:00 P.M on 23.10.1996 and whereas the complaint was lodged on 24.10.1996 at 05:00 P.M. Thus, there is delay of 29 hours in lodging the complaint by P.W.1 against this petitioner. The victim is a married woman and granddaughter of P.W.4- Kolli Gopalam, under whom the petitioner is working as a farm servant. When the petitioner is working as a farm servant under P.W.

4, the petitioner and victim could be well aware of each other, being the residents of same village and normally, they will have acquaintance with each other. Therefore, due to acquaintance with P.W.1-victim woman, the petitioner/accused by taking advantage of absence of husband of P.W.1 outraged her modesty at her house while she was sleeping near the door frame of her house at 1:00 P.M i.e. during broad day light. When P.W.1 was resting her head on the door frame, the doors would normally be kept ajar. Thus, when P.W.

while she was sleeping. The Court can infer the intention of the petitioner/accused due to such act i.e. in sitting on the body of P.W.1 by the accused while she was sleeping alone, that too, on a grown up and married woman of 29 years age by the date of incident. That apart, the evidence of P.W.1 disclosed that her blouse was torn and attempted to have forcible intercourse against her will and in the struggle, her bangles were broken. Therefore, when such unexpected incident takes place, normally, the mental condition of any woman would be hazy to react swiftly, as it is a sudden and unexpected event. However, as per the evidence of P.W.1, she raised cries but the petitioner/accused ran away towards backyard and immediately she went to her grandfather and informed about the incident. Thereupon, P.

W-4 called for the petitioner/accused, but he did not turn up. Since she is a married woman and such incident would have a stigma not only on the victim woman, but also on the members of the family for sexual assault by the accused against P.W.1. Therefore, P.W.4 tried to pacify the issue by calling for the petitioner/accused under whom the petitioner was working as a farm servant. P.W.2 is the husband of P.W.1 who was absent at the time of incident in the house. But, normally, a married woman would wait till the arrival of her husband to inform such incident to the elders or police, as it is a stigma against a married woman. P.Ws 1 to 4 and the accused belong to Yadava Community and P.W-3 is the elder of Yadava Community in the village i.e. President of Yadava Sangham of the Village to whom the matter was referred.

But the dispute could not be settled for one reason or the other. Therefore, P.W.

husband P.W.2 having waited for settlement of the dispute did not report the matter to the police immediately. But when the settlement had failed, P.W.1 lodged a complaint Ex.P-1 with the police with a delay of 29 hours. In view of the explanation offered by the prosecution, the Court has to examine whether the delay was properly explained or not. If the delay was explained properly, taking into consideration of various factors, the delay would become insignificant. In the present case, P.Ws. 1 and 2 are the wife and husband, P.W.4 is the grandfather of P.W.1 and they are closely related to each other. P.W.3 is the President of Yadava Sangham Community to whom the dispute was referred and he also specifically testified about making an attempt to hold panchayat. P.W.3 specifically stated that P.Ws 1 and 2 came to him and P.W.

1 informed about the incident that took place at 1:00 P.M while she was sleeping in the house while doors were ajar. In the absence of the husband of P.W.1, who went to fields, the accused entered into the house of P.W.1 and tried to molest her and immediately she pushed the petitioner aside and raised cries. Thereupon, when P.W.4 sent for the petitioner/accused with one Thavitayya, he reported that the petitioner was not at his house and the parents of the accused also did not attend the Sangham meeting. P.Ws 1, 2 and 4 waited till the next day, expecting that the accused would be produced before the Sangham meeting to settle the issue. When the petitioner and his parents did not turn up to the said Sangham meeting, P.W.1, 2 and 4 went to police station and presented Ex.P-1 at 5:00 P.M. P.

W-1 was accompanied by Kolli Gopalam, Thavitayya, and Appalamma.

the cross-examination of P.W.3, nothing could be elicited by the defence counsel before the Trial Court and a specific question was put to the witness about drafting of report and he admitted that he drafted the report before coming to the police station on the next day and he is the scribe of the report. He scribed the report in the presence of Kolli Gopalam, Thavitayya, and Appalamma, as he is a literate person, whereas P.Ws 1 & 2 are illiterates. Even in the entire cross-examination, nothing was elicited to attribute malafides to P.W.3 who is an independent witness and village elder who made an attempt to settle the dispute and no suggestion was put to him whether the petitioner was falsely implicated due to disputes between the P.W.4 and the petitioner. But, at the end of cross-examination, a bald suggestion was put to P.W.

4 that since the accused is a poor person, he raised a dispute for wages and this false case is foisted, got denial. But, this fact was not substantiated by ay material evidence. Therefore, based on the evidence of P.Ws 1,2 & 3, both the Courts concluded that, as the dispute was referred to the caste elders and the petitioner did not appear before the caste elders for settlement, having no other alternative, they lodged the complaint. Therefore, the delay of 29 hours in lodging the complaint was accepted by the Trial Court and the Appellate Court. Now, it is contended that the delay was not properly explained. When both the Courts below accepted the explanation offered by the victim woman P.W.

1 for the delay in lodging the complaint, this Court cannot re-appreciate the entire evidence, unless the Courts finds manifest perversity or apparent error.

There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the F.I.R.

(Amar Singh vs Balwinder Singh & Ors1) Therefore, totality of the circumstances prevailing at the time of incident shall be taken into consideration for failure to lodge proper F.I.R swiftly with the police concerned. Here, P.W.1 is a married woman and when the petitioner/accused outraged her modesty in the absence of her husband at her residence, she would have normally waited till arrival of her husband whether to inform about the incident or not.

P.W.1 in Ex.P-1 complaint itself explained the reason for the delay, more particularly about referring the matter to the President of Yadava Sangham and calling for parents of the accused etc. The said fact is supported by P.W.3 who is the President of Yadava Sangham of the village. In the F.I.R, it is mentioned that the distance between the police station and the scene of offence is 10 1 (2003) 2 SCC 518

kms. Even to travel from the village to police station, covering a distance of 10 kms, any person may require not less than two hours by walk. The evidence of P.W.4- grandfather of the victim woman P.W.1 is more satisfactory and in the evidence of P.W.4, nothing was elicited to disprove the reference of dispute to him by P.W.1 and thereafter to P.W.3-President of Yadava Sangham Community when the petitioner and his parents did not turn up, Ex.P-1 was lodged. Therefore, when the delay was properly explained, more particularly, cases of this nature, where the family prestige is involved, the delay is insignificant. In Taiyab Ali v. State of West Bengal2, an illiterate lady was searching for her abducted daughter from place to place and there was four days delay in lodging F.I.

R and the same was explained, wherein the Court held that lodging F.I.R with four days delay will have no serious impact on the proceedings. In Prithi Chand v. State of Himachal Pradesh3, a rape was committed on a minor girl resulting in her experiencing great pain and profuse bleeding from vagina. When the girl narrated the incident to mother and other neighbouring ladies, women folk decided to wait for return of father of victim and when father returned and contracted Sarpanch, who advised to go to Police Station next morning. F.I.R was lodged next morning. In this aspect, the Court held that delay was properly explained, no adverse inference shall be drawn.

is sufficient or in most of the cases, it depends upon the circumstances of each case, including nature of offence, the background of the victim and family members. Therefore, the Court must take into consideration the attending circumstances and take a realistic view in deciding the delay, while deciding whether delay is fatal to the prosecution case. (Ram Kumar v. State of Haryana4).

In Alakunta Narasimloo v. State of A.P5, this Court held that delay of 14 1⁄2 hours in lodging F.I.R is not fatal when police station is situated at a distance of 6 1⁄2 km from place of incident. Therefore, taking into consideration the fact situation, including the distance between the place of occurrence and police station and literacy background of the petitioners, the conditions prevailing in the village to settle the disputes by the villagers, the Trial Court and the Appellate Court accepted the explanation offered by the P.W.1 in lodging the complaint. In State of Punjab vs.

Gurmit Singh and Others6, the Supreme Court held that the courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. In sexual offences, the reluctance of the victim or her relative to lodge the F.I.R is a relevant consideration.

It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Therefore, the delay is not only properly explained but is also natural.

In an extreme circumstance where a rape of a girl was committed and F.I.R was lodged with 17 or 18 days delay and delay had been explained, the prosecution case of rape would not be held to be doubtful. (vide State of Punjab v. Ramdev Singh7) The cumulative effect of the law declared by the Courts in long line of judgments, the Court cannot lay down mathematical calculation to consider the explanation for the delay in lodging the F.I.

R and it depends upon various circumstances like nature of offence, background of the complainant and his family members, literacy background and practice prevailing in the village for settlement of the dispute for referring the matter to the elders, distance from the place of such incident, apprehension of stigma not only against the victim girl, but also against the entire family members, the Court has to consider and decide. In the present case, both the Trial Court and Appellate Court accepted the explanation and this Court while sitting in revision, cannot play the role of an Appellate Court and re-appreciate the entire evidence afresh, except when the findings of the Trial Court are totally perverse or apparently erroneous, as held by the Apex Court in State of Maharashtra Vs.

complainant and beat her. The Trial Court imposed conviction and sentence which was confirmed by the Court of Sessions. But, the High Court on minute re-examination and re-appreciation of the evidence acquitted the accused. The Apex Court held that the High Court has exceeded its revisional jurisdiction by carrying out in depth re-examination of the evidence and upsetting the judgments of the two lower Courts. By applying the principle laid down in the above judgment, I cannot substitute different findings with regard to delay. Therefore, I hold that the explanation offered by the prosecution and accepted by the Trial Court and Appellate Court is in accordance with law and such findings cannot be interfered by this Court.

P O I N T NOs.2 & 3 One of the contentions raised by the learned counsel for the petitioner is that the material objects were not seized from the victim woman, though she stated that her bangles were broken at the time of incident. But, non-seizure of the broken bangle pieces is not itself a ground to disbelieve the case of prosecution. Apart from that, P.W.1 did not sustain any injuries due to the act of the petitioner. But, failure to sustain injuries is also not a ground for the simple reason that the incident occurred while she was sleeping, resting her head on the door frame and while she was sleeping, the petitioner laid on her with an intention to rape her and pressed her breast. Therefore, such act would certainly amount to outraging modesty of a woman and non-sustaining of injuries is not a ground to disbelieve the evidence of P.W.1.

Therefore, sustaining no injuries on the body is not fatal to the prosecution case and it is not necessary to sustain injuries on the body in every case. Learned counsel for the petitioner did not elicit anything about nature of the flooring, whether it is rough or loose or sand and also the clothes which P.W.1 was wearing at the time of incident. If the surface was hard with rough flooring, then there is every possibility of sustaining injuries by P.W.1. If there is a loose soil or sand, possibility of sustaining injuries by P.W.1 are bleak. Therefore, it is not a determinative factor regarding occurrence of an offence punishable under Sections 452 and 354 I.P.C.

It is further contended that failure to seize the broken bangle pieces from the scene of offence in the presence of mediators during prosecution is fatal to the prosecution case. But, a minor lacuna in the investigation would not vitiate the entire prosecution case. Though it is a minor defect in the investigation, when the evidence is consistent with regard to outraging modesty of P.W.1, the entire case cannot be thrown out on account of minor lacunae in investigation. Apart from that, a green colour blouse was seized marked as M.O.1 and was seized, as per Ex.P-3 Mediators Report, and that itself is suffice to conclude that P.W.1 was subjected to sexual assault. When the petitioner suddenly entered into the house and sat over the body of P.W1 while she was sleeping, he outraged her modesty and in the process of escaping by P.W.1 her blouse got torn. Such act would amount to outraging of modesty. But, no independent witness to the occurrence of incident was

examined, but insisting upon a testimony of independent witness in such sexual assault is rather a serious consequence for the reason that, such sexual offence will take place only in secret places, unnoticed by any individual public. That too, the incident took place while P.W.1 was sleeping, in the absence of her husband or any inmates in the house. In such case, the question of witnessing the occurrence by any independent witnesses would not arise, in view of the secrecy maintained by the accused while committing such sexual offence. Therefore, insisting the evidence of independent eye witness is unwise, particularly in sexual offences. Therefore, failure to seize broken bangle pieces and sustaining no injuries by P.W.

1 in the incident are inconsequential, the Trial Court rightly concluded that non production of bangle pieces is not a ground and non-sustaining of injuries by P.W.1 is not a ground and disbelieved the defence set up by the petitioner. Therefore, such fact findings cannot be disturbed by this Court while exercising power under Sections 397 & 401 of Cr.P.C. Accordingly, the point is answered. The offence allegedly committed by the petitioner is outraging modesty of a woman, which is punishable under Sections 452 and 354 I.P.C. Both the Courts found the accused guilty for the offences stated supra.

Section I.P.C deals with house-trespass after preparation for hurt, assault or wrongful restraint and according to it, whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for

wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine. Similarly, Section 354 I.P.C deals with Assault or Criminal force to woman with intent to outrage her modesty and according to it, whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine.

In the present case on hand, the petitioner entered into the house of P.W.1 with an intention to outrage her modesty. Therefore, such act would attract an offence punishable under Section 452 I.P.C, as he is not the owner of the house and as he has no right to enter into the house.

When a person entered into the house with an object to commit an offence and committed an offence i.e. entering into the house is nothing but trespass after preparation to commit an offence. That would attract Section 452 I.P.C. (State of Maharashtra vs. Tulshiram Bhanudas Kamble and Ors.9). When the petitioner entered into the house of P.Ws 1 & 2 and sat or laid on P.W.1 who was sleeping resting her head on the 9 AIR 2007 SC 3042

door frame, torn her blouse M.O.1 in the struggle, that would amount to an offence punishable under Section 354 I.P.C i.e outraging modesty by criminal force. When a trespass after preparation to commit an offence is true and sitting or lying on the body of P.W.1 when she was sleeping would clearly suggest the intention of the petitioner to outrage the modesty of P.W.1. When any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section (State of Punjab vs. Major Singh10).

In Sailendra Nath Hati vs. Aswini Mukherji11 the Calcutta High Court held that Intention is not the sole criterion of the offence under Section 354, I.P.C. and an offence under Section 354, I.P.C. can also be committed by the person assaulting or using criminal force to any woman, if he knows that by such acts the modesty of the woman is likely to be affected. Now knowledge and intention are things of the mind and cannot be demonstrated like physical objects. The existence of such knowledge or intention or otherwise should be gathered from various circumstances in which and upon whom the alleged offence under Section 354, I.P.C. is said to have been committed.

Here, in the present case, the act of the petitioner is sitting or lying on the body of P.W.1 who was resting her head on the door frame and pressing her breast and tearing of her blouse would 10 AIR 1967 SC 63 11 1988 Cri LJ 343

certainly amount to act of outraging modesty of P.W.1. Therefore, the acts done by the petitioner are punishable under Sections 354 & 452 I.P.C. Hence, the Trial Court rightly held that the petitioner is guilty of the offences punishable under Sections 354 & 452 I.P.C.

At the end of the argument, learned counsel for the petitioner Sri M.Viswanadham contended that a false case is foisted against the petitioner who is working as a farm servant under P.W.4. That may be one of the relevant considerations under Section 8 of the Indian Evidence Act and it is only a corroborative piece of evidence, but not a substantive piece of evidence. Here, the petitioner did not substantiate his contention by eliciting anything in the cross-examination of P.W.4 regarding dispute about nonpayment of wages to the petitioner, being a farm servant and his refusal to pay the same. Even in the examination under Section 313 Cr.P.C or when, charges framed by the Trial Court were explained to the petitioner. For question no.13 in the examination under Section 313 Cr.P.

C, the petitioner stated that he worked as a farm servant under P.W.4 and when he demanded payment of salary, the petitioner was implicated in false case. But, this fact is not substantiated by the defence in the crossexamination of P.W.4. P.W.4 is the grandfather of P.W.1. In his cross-examination, he admitted that the petitioner/accused worked as a farm servant.

him. But P.W.4 denied the same. Therefore, putting the suggestion and getting denial is of no use and it is not a substantive evidence to accept the plea of the defence i.e. the petitioner/accused herein. In the absence of any material to prove raising of dispute within the proximate time, it is difficult to conclude that a false case is foisted. If, really, P.W.4, who is an independent witness had foisted a false case, they need not wait for 19 1⁄2 hours to lodge a complaint with the police. But here, they waited for 19 1⁄2 hours waiting for the parents of the petitioner and petitioner to settle the dispute, referring the matter to P.W-3-President of Yadava Sangham and if P.W-4 intend to such falsely implicate the petitioner/accused, he need not wait for such long time and waiting for 19 1⁄2 hours is sufficient to believe that there was no false implication. Therefore, I find no ground to accept this contention.

In view of my foregoing discussion, I find the criminal revision case deserves to be dismissed, as it is devoid of any merits.

In the result, the criminal revision case is dismissed. Consequently, miscellaneous applications pending if any, shall stand dismissed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:22.09.2017 SP