//1//
IN THE COURT OF IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-
CUM-SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (EXCISE):: ELURU.
Present: Smt. K.Spandana
IV Addl. Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class, Eluru
Friday, the 9th day of August, 2024
C.C.No.166 of 2023
Between:-
State: Sub Inspector of Police, Eluru III Town Police Station Crime No.233/2014 …Complainant
And
Andra Srinivasa Rao @ Srinu, PC.421, Buttaigudem Police Station, W.G. District. …Accused
This case is coming before me on 05.07.2024 for final hearing in the presence of Learned Assistant Public Prosecutor for State and of Sri.G.V.Anand Kumar, Counsel for the accused, upon hearing both sides and matter having stood upon for consideration till this day, this Court delivered the following:
: J U D G M E N T :
1.The Sub Inspector of police, Eluru III Town Police Station filed charge sheet in Cr.No.233/2014 for the offences U/Secs.354A, 509 and 203 of IPC against the accused.
2.The case of the prosecution in brief is that the accused worked as a police constable No.421. PW.5 is a resident of Satrampadu, Eluru and worked as Dwakra Group President. PW.5 is presently residing at Santhi
Nagar of Eluru. Previously, she used to live in MRC colony, Satrampadu,
Eluru. She worked as President to the Velugu Sangam which is a Dwakra //2// group. She had two children to her husband Nagaraju, who is a judicial employee. The accused worked at Pedavegi, Narasapur Rural, Palakol
Town at the time of filing of this charge sheet and he is presently working at Buttaigudem Police Station. During the year of 2004 when PW.5 was working as Velugu project at Pedavegi village, the accused who is PC of
Pedavegi Police Station followed and induced PW.5 and developed intimacy with her. Taking advantage of the same, the accused used to visit the house of complainant at MRC colony of Satrampadu, Eluru and enjoyed her sexually. Further, their illegal relationship went into the notice of husband of PW.5 and he took divorce from PW.5 through the Court.
Since then, the accused frequently used to visit the house of PW.5 and they both cohabitated at Narasapur town, where the accused worked as
Police Constable. Further, the accused had discarded her and necked out from the house. On that PW.5 filed a rape case in Narasapur Town Police
Station on the file of Hon’ble Assistant Sessions Judge, Narasapur vide
S.C.No.95/2011. While the accused was working at Palakol Town Police
Station, he went to Narasapur Rrual Police Station on 12.9.2009 and he made a fake allegation on PW.5 through 1090 call centre between 10.00
PM to 11.00 PM alleging that PW.5 was doing prostitution at her house in
Satrampadu, Eluru. The accused also made sexually coloured remarks against PW.5. According to the complaint, the police of Eluru III Town
Police Station visited the locality and enquired about the allegations and returned back as nothing incriminating was found at the locality of house of PW.5. PW.5 has obtained the call details from telecom authority and
Narasapur Rural Police under RTI Act and submitted the copies to the police. She also filed a case before Hon’ble Lokayukta vide complaint
No.2852/2012/B1. Basing on the said report, PW.6 registered the same as a case in Cr.No.233/2014 u/Secs.354, 509, 506 and 203 of IPC and took up investigation. During the course of investigation, he visited the scene of offence and examined all the charge sheeted witnesses and //3// recorded their statements. Basing on the evidence of witnesses, he deleted the Sec.506 of IPC against the accused. On 05.08.2014 the accused filed a petition vide Crl.P.No.8543 and Hon’ble High Court of AP,
Hyderabad has made an order not to arrest the accused during pendency of investigation till filing of charge sheet. On enquiry at Buttaigudem police station, it is revealed that the accused is absented duty from 24.07.2014. After completion of further investigation, PW.6 laid charge sheet against the accused for the offences U/Secs.354-A, 509 and 203 of
IPC.
3.The II Addl. Judicial Magistrate of I Class-Cum-II Addl. Civil Judge (Junior Division) Court, Eluru took cognizance for the offences
U/Secs.354-A, 509 and 203 of IPC against the accused and numbered as
C.C.No.930/2014.
4.When the accused appeared before the Court of II Addl. Judicial
Magistrate of I Class-Cum-II Addl. Civil Judge (Junior Division), Eluru,
copies of all documents were furnished to him U/Sec.207 Cr.P.C.
5.Later, the case in C.C.No.930/2014 was transferred from the Court of II Addl. Judicial Magistrate of I Class-Cum-II Addl. Civil Judge (Junior
Division), Eluru to I Addl. Civil Judge (Junior Division), Eluru and said
Court re-numbered the same as C.C.No.137/2015.
6.The I Addl. Civil Judge (Junior Division), Eluru had examined the accused U/Sec.239 Cr.P.C. Charges Under Secs.354-A, 509 and 203 of
IPC were framed against the accused and the contents of the charges were read over and explained to him in Telugu language for which he pleaded not guilty and claimed to be tried.
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7.The I Addl. Civil Judge (Junior Division), Eluru examined the prosecution witnesses i.e. PW.1 to PW.4 and got marked the documents as Ex.P1 to Ex.P3 and also examined the complainant as PW.5 and got marked Ex.P4 and posted for continuation chief examination. Thereafter, as per orders in Tr.Crl.M.P.No.1008/2022 dt.13.01.2023 on the file of
Hon’ble Prl. District Court, W.G., Eluru, the I Addl. Civil Judge (Junior
Division), Eluru transferred the said case to this Court and this Court re- numbered the same as C.C.No.166/2023.
8.In support of its case, the prosecution examined PW.1 to PW.6 and got marked Ex.P1 to Ex.P32.
9.After completion of prosecution evidence, the accused was examined U/Sec.313 Cr.P.C by putting the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the same and reported no defence evidence. While examining the accused U/Sec.313 Cr.P.C., he filed a statement along with certified copy of judgment in SC.No.95/2011. The said case resulted in acquittal of the accused founding him not to be guilty. The accused filed the said certified copy of the judgment to show that PW.1 is in habit of filing false cases against him. Accused also filed the final report case diary dt.23.09.2008 in
Cr.No.44/2008 of SHO, Eluru III Town Police Station and another final report case diary dt.31.08.2011 in Cr.No.252/2010 of SHO, Eluru III Town
Police Station along with letter issued by Sub Divisional Police Officer,
Eluru. He contends that these two final reports also helps him in proving to the Court that PW.1 is habituated of filing false cases against him.
10.Heard the learned APP and the counsel for the accused. Written arguments filed by learned APP.
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11.After hearing to the arguments of both APP and counsel for the accused and upon considering the entire material on record, now the point for determination before the Court is:
Whether the prosecution is able to prove the guilt of the
accused for the alleged offences U/Secs.354-A, 509 and 203 of
IPC beyond all reasonable doubt?
POINT::
12.In order to prove its case, the prosecution examined PW.1 to PW.6 and got marked documents as Ex.P1 to Ex.P32. PW.1 to PW.3 are neighbours to the house of PW.5. PW.4 is Head Constable of
Narasapuram Rural Police Station. PW.5 is the defacto complainant.
PW.6 is the investigating officer. Ex.P1 is the 161 Cr.P.C. statement of
PW.1. Ex.P2 is the 161 Cr.P.C. statement of PW.2. Ex.P3 is the 161
Cr.P.C. statement of PW.3. Ex.P4 is the complaint given by PW.1 to the police. Ex.P5 is the letter from Superintendent of Police to PW.5 dt.08.10.2010. Ex.P6 is the letter by Head Constable to SHO,
Narasapuram Rural Police Station, dt.08.08.2011. Ex.P7 is the certificate of person with disability issued for complainant. Ex.P8 is the SHO,
Narasapuram Rural PS letter to PW.1 with regard to sentry duty particulars. Ex.P9 is the Narasapuram BSNL Office certificate dt.08.08.2011. Ex.P10 is the Regional BSNL office letter with regard to user details dt.06.08.2011. Ex.P11 is the regional BSNL Office letter with regard to call timings and register, dt.06.08.2011. Ex.P12 is the
Lokayukta complaint and order of removal of accused from service.
Ex.P13 is the FIR in Cr.No.233/2014. Ex.P14 is the rough sketch. Ex.P15 is the Xerox copy of complaint against accused on 14.07.2009 in III town
PS. Ex.P16 is the request Letter of Complaint under RTI. Ex.P17 is the
S.P., W.G., Eluru furnished call details to complainant. Ex.P18 is the
Xerox copy of complaint, dt.15.10.2010. Ex.P19 is the Xerox copy of one complaint, dt.10.11.2010 and FIR. Ex.P20 is the Xerox copy of the //6// complaint by one K.V.Prasad Gupta, dt.03.05.2011. Ex.P21 is the
Original challan, cash memo, receipt of lokayuktha, Hyderabad on 06.11.2012. Ex.P22 is the original proceedings No.2852/2012/Lok/B1/ 15769/2012 dt.18.12.2012. Ex.P23 is the Xerox copy of the detailed report against accused to the Deputy Registrar of Hon’ble A.P.
Lokayuktha by Superintendent of Police, W.G. District dt.15.03.2013.
Ex.P24 is the Original of the Hon’ble lokayuktha summoned for appearance of Superintendent of Police, W.G. District on 25.06.2014.
Ex.P25 is the Xerox copy of the Hon’ble lokayuktha order on 10.07.2014 and further action taken report called for on 20.10.2014 from S.P., W.G.,
Eluru. Ex.P26 is the Xerox copy of the Superintendent of Police, West
Godavari District informing to the Hon’ble lokayuktha about Latest Status
Report of action taken on accused dt.18.10.2014. Ex.P27 is the Notarized copy of Certificate issued by Panchayath Secretary, Satrampadu Gram
Panchayat, dt.09.11.2015. Ex.P28 is the Original adhaar card of complaiannat. Ex.P29 is the Original voter ID card of complainant. Ex.P30 is the Xerox copies of passport authority dt.23.08.2014. Ex.P31 is the
Xerox copies of house hold card issued the Government of AP, dt.10.01.2013 to complaiannt. Ex.P32 is the Xerox copy of information given by lokayuktha Under RTI Act, dt.19.07.2022 to the complainant.
13.PW.1 to PW.3 who are neighbours to the house of PW.5 turned hostile and did not support the case of prosecution and their contradictory 161 Cr.P.C. statements were marked as Ex.P1 to Ex.P3. Nothing was elicited contrary by the learned APP during their cross examination.
Chief examination of PW.4:-
14.PW.4 deposed that he worked as Police Constable in Narasapuram
Rural Police Station from 24.06.2007 to 01.08.2011. On 12.09.2009 while he was present in the police station as a station watch at 10.30 PM, one //7//
PC.421 by name Srinu came to him and requested him to allow him to make a call to District Head Quarters i.e. SP Control phone No.1090, which is a free call. On that he gave the phone to said constable. He observed that said constable is informed on phone that prostitution is going on at Satrampadu, Eluru. He warned him not to do such things and took the phone away from him. He identified the accused in open court.
Cross examination of PW.4:-
15.During his cross examination he deposed that he cannot say the date of his examination by the police. Police examined him through phone, but not personally. He admitted by the date of his examination by the police, he was already retired from the service. On the next day, he intimated about the incident happened to his SHO. But to that effect, the
SHO did not make any GD entry about the phone conversation by
PC.421. He admitted that the phone is situated in the room of SHO and in the absence of said SHO, the doors of the room will remain closed and stated an interconnection of the phone is available in the Police Station on the table of Head Constable.
Chief examination of PW.5:-
16.Of all the alleged facts deposed by PW.5, which are relevant to the present case are only extracted here, PW.5 who is defacto complainant deposed that she resided in Satrampadu, Eluru from 1993 to 2014. She know the accused. In the year 2005 accused committed rape against her in her house situated at Satrampadu. She gave a complaint to
Narasapuram Police Station against the accused and same was registered as crime of Narasapuram Police Station. Later police filed a charge sheet against the accused and then it was registered as a
Sessions Case No.95/2011. The said case was prosecuted in the
Sessions Court of Narasapuram. During the pendency of the said case,
//8// on 12.09.2009 at about 11.00 PM, while she was sleeping in her house,
Eluru III Town PS came to her house stating that they received a phone call from 1090 that some prostitution is going on in her house. After searching her house, the police came to conclusion that no one present in the house and they went away. Later, she addressed a letter to BSNL
Regional Office and SP Office, Eluru under Right to Information Act to know the person who informed that the prostitution is going on in her house to the police. The BSNL regional office addressed a letter to her by intimating that the said call was came from police station of Narasapuram
Police Station. Then she went to Narasapuram Police Station and enquired about the person who informed the same to the police. On that the Narasapuram Police Station stated to her that while PW.4 was in duty, the accused came to him and on phone the accused intimated to
Eluru III Town PS that prostitution is going on in her house through 1090.
Later, she filed an application before Lokayuktha, Hyderabad against the accused by alleging that since 10 years, accused had been harassing her by canvassing that prostitution is going on in her house. As she gave the complaint against accused to Narasapuram Police Station, the accused with an intention to threaten her to withdraw the said case, he is harassing her by sending Eluru III Town Police to her house on giving fake intimation to them that prostitution is going on in her house. After elaborate enquiry, Lokayuktha gave finding to conduct the Departmental
Enquiry against the accused. The police department gave a letter to her by submitting that the accused was removed from the service, as charges on him were proved in departmental enquiry. Later, she addressed a complaint against the accused to Superintendent of Police, West
Godavari District, Eluru to take necessary action. Then Superintendent of
Police, Eluru forwarded the same to Eluru III Town Police Station for taking the action against the accused. The complaint is marked as Ex.P4.
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Further chief examination of PW.5:-
17.During continuation of chief examination PW.5, she deposed that on her complaint to the Lokayuktha an order of removal of accused from the service was made. Lokayuktha order is marked under Ex.P12. The defence counsel objected marking of the said document and subject to the proof and relevancy the same has been marked. She deposed that she went to Lokayuktha basing on the false information furnished by
Superintendent of Police, West Godavari with respect to the application filed by her under RTI Act seeking information with respect to the call tracking of phone. Later, she obtained Ex.P5 to Ex.P11 documents and filed the complaint before Lokayuktha. After obtaining order to initiate the criminal proceedings against the accused under Ex.P12, she gave a report to the Superintendent of Police, West Godavari, Eluru under Ex.P4.
She gave a complaint against the accused in Narasapuram Police
Station, but they did not lodge the said complaint. On that she approached Human Rights Commission and the said commission gave an order to registered the criminal proceedings against the accused. In the year 2011 accused threatened her, bet her and also threatened her attendant by name Prasad Guptha. The said Prasad Guptha gave a complaint against the accused in Eluru II Town Police Station. Later she gave a representation to Vikalangula Commission about the acts of accused. They referred the matter to Superintendent of Police to take action. She also complained at Human Rights Commission and they also referred the matter to Superintendent of Police to take action. On one day a retired SI of Eluru III Town Police Station by name Srinivas came to her and informed her that accused is the one who is behind giving false information relating to the prostitution and instructed her to leave the place as they are influential persons behind the accused. On this she shifted from her own house to a rented house. In the year 2011 SI Naga
Murali threatened her that she gave her house for rent to prostitutes and //10// directed her to vacate them, otherwise he will register an FIR against her.
Later she destructed her own house. She obtained Ex.P5 to Ex.P11 on her own enquiry and filed the complaint in Lokayuktha. Basing on enquiry order copy of Ex.P12, she gave a report to Superintendent of Police,
West Godavari District, Eluru and same was forwarded to Eluru III Town
Police Station which is marked as Ex.P4. From the past 10 years, she is suffering because of acts of accused.
Cross examination of PW.5:-
18.During cross examination, PW.5 deposed that by the time of filing of this case, she lived in Satrampadu. After direction from the Lokayuktha she filed the report in this case. Prior to this report, she gave 8 complaints against to the accused. The said 8 complaints are closed by the Court.
She again adds that out of the said 8 complaints, accused faced punishment in one of the complaint and to her knowledge the other 7 complaints were closed. She denied that the accused was acquitted in the case in which, she deposed as a witness at Narasapuram Sessions
Court. She added that the said case was closed. She admitted that she do not know the exact meaning of the result portion of order dt.20.10.2014 under Ex.P12 i.e. Lokayuktha order. She admitted that she did not give any written complaint to the concerned authorities against the accused between the year 2009 to 2011, Ex.P6 which is obtained from CI of Narasapuram Rural Police Station do not have seal, stamp or endorsement showing that she received it. But she added the connected papers to Ex.P6 has seal, stamp and endorsement by the concerned police station along with the signature of the concerned Circle Inspector.
Accused committed rape on her on 17.01.2005 at her house and on the same day, he took her to the hospital. She admitted, that the said alleged fact is not stated by her in her chief examination. It is also admitted by her that on her request the Doctor who treated her did not inform about the //11// incident of rape to her husband. While she was working as Junior
Assistant in Polavaram project, the wife of accused came to her house, obtained the photographs from her children from the family album and morphed them. Later the wife of accused started canvassing in their area by showing the morphed photos stating that she is living in an illegal relationship with her husband/accused since 2003. On that residents of
Ambedkar colony came to her house, dragged her out of house by tearing the saree, blouse and taken her to Eluru I Town Police Station, II Town
Police Station, Eluru Rural Police Station and Women Police Station. She gave complaint against the residents and accused along with her husband and father. But to that effect no action was taken against them.
Because of the said incident, she shifted with her family to a rented house. Since then accused used to harass her and her children through his wife. Because of this, she used to have regular disputes with her husband. Accused also canvassing the same at her work place. Because of this her husband and children left her. Because of all these her husband obtained divorce from her. On the information that prostitution is going on in her house, Eluru III Town Police Station used to visit her house for enquires on several occasions and they came to conclusion that the said information was false. She admitted by the time of issuance of passport to her under Ex.P30 she was residing at Satrampadu, Eluru, which is a rented house. Again she stated on the date of issuance of
Ex.P30 i.e. on 23.08.2014 she was residing in her own house. She added that her house is in existence till 2014, subsequently the same was demolished. She accepted the address furnished by her for obtaining passport under Ex.P30 is correct. By the time of visiting of scene of offence/her house at Eluru by PW.6, her house was already demolished.
She admitted that no document pertaining to house No.5-41/C was filed by her before the Court.
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19.It is pertinent to state here that initially complainant did not file
documents pertaining to her house. On questioning by accused
counsel, she filed them along with some other relevant documents
Ex.P15 to Ex.P32 vide a document petition which was allowed by
this Court.
Chief examination of PW.6/CI of Police:-
20.PW.6 deposed that on 14.07.2024 while he was in the police station he received a complaint with enclosures in Xerox through Tappa from SP Office, W.G. On that the complaint under Ex.P4 was registered by him against the accused. On 15.07.2014 he visited the scene of offence, examined witnesses and recorded their detailed statements. On the same day he prepared Ex.P14 rough sketch. On 18.07.2014 he examined PW.4 and recorded his statement.
Cross examination of PW.6:-
21. He deposed that, during the course of investigation when he asked
PW.5 about the original documents which were enclosed as Xerox copies under Ex.P4 she replied that the originals are in lokayukha and also in the
Sessions Case at Narasapuram Court that is the reason why she is
enclosing that the Xerox copies along with her report. Ex.P12 is not produced by PW.5 during investigation and by the time the charge sheet has been already filed in this case. Along with Ex.P4 he had not received any complaint copy which was previously filed by PW.5 before Eluru III
Town PS and SP, W.G. before registering this case. There are no averments as to previous complaints given to the police on accused by
PW.5. He stated that it is true that Ex.P4 does not disclose the date and time of subsequent alleged offence committed by accused after 12.09.2009. There is a difference of 5 years between the alleged incident i.e. 12.09.2009 and between Ex.P13 dt.14.07.2014. He added that there //13// is a continuance of offence i.e. from 12.09.2009, but, admitted that either in his investigation or in 161 Cr.P.C. statement, his charge sheet and
Ex.P4 does not disclose about the continuing offence in this case. He accepted it is true the averments mentioned in the charge sheet that accused made sexually coloured remarks against PW.5 and in accordance to that police of Eluru III Town Police Station visited the locality and enquired about the allegation and return back as nothing incriminating material found at that locality of the house of PW.5, relating to the alleged phone call on 12.09.2009. Again he adds that the said averment is not true. He admitted that his investigation do not disclose how Eluru III Town Police Station received information from 1090 call centre and at what time and who is SHO by the time. He added as these are immaterial to this case, he did not investigate in that regard. He do not have knowledge whether any police person is deputed with regard to the information received from 1090 call centre in this case on 12.09.2009.
He stated in Ex.P4 it was disclosed as Eluru III Town Police Station raided the house of PW.5, but his investigation is revealed it is an enquiry. He accepted that the police personnel who visited the house of
PW.5 as per the allegations from the crime stopper are not shown as witness in this case, as he thinks they are unnecessary with respect to the sections alleged against the accused in this case. He examined PW.4 in Narasapuram PS premises. He admitted he did not examine the person who issued the respective enclosures under Ex.P4 as he thought it is unnecessary under this case. He did not secure any documentary proof to show that PW.4 and PC 421 i.e. accused are in duty or not on the date of alleged offence i.e. on 12.09.2009. Why because he relied on
Ex.P6 and Ex.P8 and basing on that he thought that to secure the documentary proof about the duty of them is not necessary. He did not receive Ex.P6 and Ex.P8 from concerned persons in this case. He did not secure any documentary proof as to show that PW.5 is residing in the //14// house by the time on 12.09.2009 as on date of alleged incident and subsequently also by the time he registered Ex.P13, the house is completely demolished and to that effect he did not obtain any documents. He admitted that there is no order from the lokayuktha to initiate any criminal proceedings against the accused by the time of
Ex.P13. Superintendent of Police, West Godavari District gave assurance to complaiannt to initiate criminal proceedings against accused in lokayuktha. He admitted that it is not shown in the rough sketch that
PW.5’s house is demolished by the time he went there for investigation.
In order to prove the said demolished house belongs to PW.5 he did not enquire with any of the revenue authorities or obtained any documents for the same. He added that the said demolished house was got identified by the oral testimony of PW.5 and also basing on Aadhar card supplied by her. He also enquired with the surrounding neighbouring witnesses near the demolished house and they also stated that the said house belongs to
PW.5.
Arguments
22.The learned APP submitted his arguments in the written form. He reiterated the substance of the accusation of PW.5 against the accused.
Further he stated that the Superintendent of Police, West Godavari
District awarded the accused with the punishment of removing from service as per the direction of Hon’ble Lokayuktha and a report was filed to that effect. The order of Hon’ble Lokayuktha is that complainant is directed to pursue the criminal case pending before the Hon’ble Court of
Addl. Sessions Judge, Narasapuram. On that direction, the Lokayuktha complaint got closed. It is further submitted that though the witnesses
PW.1 to PW.3 who are termed to be the independent witnesses turned hostile, the evidences of PW.4 and PW.5 are main witnesses whose evidence can be taken into consideration pertaining to the offence //15// committed by the accused. The cardinal principal of law is that no particular number of witnesses is necessary to prove a fact and single and sole testimony is sufficient to prove a fact, if it inspires the confidence of the Court. So, in the case on hand, PW.4 and PW.5 are the crucial witnesses to speak about the incident and their evidence is proper, consistent and cogent. The main fact in the case on hand is to scandalise the reputation of PW.5 in the society and to defame, insult, humiliate and outrage modesty of her and to see that she should compromise with the accused in the rape case that was pending against him before Hon’ble
Sessions Court, Narasapuram by using his official power as a police
constable. The police did not take any action against the accused and also false information was furnished by the Superintendent of Police, for which, complainant made a complaint against the accused and the concerned police officials before Hon’ble Lokayuktha. Because of this the
Superintendent of Police, West Godavari District, got removed the accused from his service. Further with Ex.P9 to Ex.P11 which are the documents obtained under RTI by the complainant and with the evidences of PW.4 and PW.5, it is evident that the accused was the one who made phone call to the crime stopper 1090 on the alleged date of incident, which made the Eluru III Town PS raid the house of complainant. This act defamed her and outraged her modesty in the eye of society. With the evidence of PW.4 who is constable of Narasapuram
Rural PS and who is doing night watch, it is clearly disclosed that the accused made calls from there to crime stopper. Further, it is submitted that though PW.4 was cross examined by the learned counsel for the accused nothing was elicited to discredit the testimony of making phone call by the accused to the crime stopper from Narasapuram Rural PS. No doubt there is discrepancy about the date and time of examination of
PW.4 by the police. But based on such discrepancy, the entire consistent evidence of PW.4 cannot be brushed aside. In fact there is no animosity //16// and was neither suggested or elicited from the evidence of PW.4 to state that he spoke falsehood against the accused. It is consistent from the evidence of PW.4 coupled with the contents of Ex.P9 to Ex.P11 that the accused knowing fully well that the information is false made a phone call and informed that prostitution is going on in complainant’s house, for which, he should be made liable for the punishment u/Sec.203 of IPC.
Further prosecution argued that in order to prove the offence under
Section 354A of IPC, the accused must have intention to outrage or knowledge that his act will outrage the modesty of a woman. It is settled law the burden of proof is rest on the prosecution to prove that the accused had an intention of outraging the modesty. It is submitted that the very act of the accused making the false phone call to the crime stopper and falsely alleging the prostitution was going on in the house of complainant and pursuant to the phone call, the Eluru III Town PS, raiding the house of complainant would clearly goes to show that accused had got knowledge that his act will outrage the modesty of the complainant.
Further, it is also a settled law that if an individual deliberately try’s to insult a woman modesty through offensive words, gestures, action or encroach upon her privacy, the said individual shall be made liable for the punishment for the offence u/Sec.509 of IPC. In this case, the action of the accused clearly goes to show the intention of his outraging the modesty of the complainant. PW.6 the Investigating Officer also deposed evidence which favours the prosecution and against the accused. Further it is submitted the charge u/Sec.203 of IPC is that the accused have known or have reason to believe that an offence has been committed.
The provision does not require exclusively that an offence should have been committed. It would be sufficient if the accused believed that an offence has been committed. The information of a nature which the accused knows to be false or believes to be false should have been given in order to complete the offence. Whether the accused believed an //17// information to be false can be gathered from the circumstances as appearing from the evidence. This section interpretation was provided by the prosecution under Para No.7 of the written arguments. It is further submitted that basing on the above interpretation, it is sufficient that accused believes that an offence has been committed. Thus with the evidences of PW.4 to PW.6 coupled with exhibits it is established that accused made the complaint against the defacto complainant believing that an offence had been committed. So the first ingredient of Sec.203
IPC stands established. Thus the accused is quite responsible for his acts and he must be made suffer the penal consequences u/Secs.203, 354A and 509 of IPC. Further more it is submitted that defacto complainant since the incident on 12.09.2009 went to the police station concerned and approached all the higher authorities from pillar to post and as no action was taken she had accumulated all the relevant documents pertaining to the case and approached the Hon’ble Lokayuktha and later when the petition was closed with a direction to her, she again lodged Ex.P4 report in this case. So it is submitted that in such a case, the nature of delay is quite natural and it is not at all fatal to the case of the prosecution. It is further argued by the prosecution that the defacto complainant is victim who suffered a lot due to the acts of accused since the year 2009. She being the physically handicapped lady and sustained grievous mental injury, for which she requires rehabilitation by way of compensation. So the defacto complainant is eligible for victim compensation from the State.
In view of the aforesaid submitted arguments, the prosecution prayed to convict the accused for the offences alleged against him and also to refer for victim compensation to compensate the defacto complainant in the interest of justice.
//18//
Arguments of accused counsel
23.It is submitted that the date of offence is 12.09.2009 and it came to the knowledge of the complainant in the year 2011 i.e. on 06.08.2011. In the lokayuktha order there is no whisper that such order is related to this case. As per the lokayuktha order no further investigation is necessary.
The complainant is boldly stating that lokayuktha directed her to lodge the criminal complaint against the accused, such direction is false. The said lokayuktha order relates to the pursuance of proceedings before Hon’ble
Sessions Court, Narasapuram and not related to this case. He requested
to peruse the judgment given by Hon’ble Sessions Court, Narasapurm, which was filed by the accused during his 313 Cr.P.C. wherein the accused was acquitted. Mere marking of the documents is not a necessary proof and all the enclosures are Xerox copies. As per Ex.P8 in the reply given by SHO, the Head Constable who is unconnected and unauthorized person permitted the accused to do phone call. If such is the case, when PW.4 permitted the accused to do phone call, no little finger has been raised against him by the complainant. The SHO who given the report was not cited as a witness and not examined, this cause great prejudice to the accused and prosecution failed in proving that the accused is one who made the phone call. Further, the prosecution accepted that they did not try to examine the complainant and did not elicit the place of prostitution correctly. During the cross examination of
PW.4, he admitted there is a phone available in SHO room and interconnection phone is available on the Head Constable table. If such is the case, the police did not point out or state that the accused used the interconnected phone available on the table of Head Constable and not the phone i.e. available in SHO room. The accused could not gain access into SHO room as the same is been locked in the absence of SHO.
Except the oral testimony of PW.4, there is no documentary proof by the prosecution. Further, in his chief examination PW.6 Investigating Officer //19// admitted that PW.4 is examined in Narasapuram PS, whereas PW.4 stated that he got examined on phone as per his evidence in his cross examination. When PW.4 is stated to be crucial witness by the prosecution there is no corroboration of PW.4 with the Investigating
Officer even on the material aspects. There is contradiction in version of the Investigating Officer and PW.4 with regard to examination of PW.4.
Further there is no explanation offered by the prosecution for invoking the sections as alleged against the accused. The original documents are
before lokayuktha and Narasapuram Court as per version of PW.5. But
no investigation was done by the police to obtain original documents.
Moreover all the documents are submitted to the Court by PW.5 during evidence. It is difficult to distinguish between the original and Xerox copies as there is no seal of Court on that documents showing that the case is pending on the file of Hon’ble Sessions Court, Narasapuram.
Ex.P12 is not produced by PW.5 to Investigating Officer during his investigation. Investigating Officer admitted that there is lapse of 5 years from the date of incident to the date of complaint. No GD entry was made about raid conducted by Eluru III Town PS. On receiving the phone call, the crime stopper will inform the same to the concerned police station. As such, the link of phone from 1090 to Eluru III Town PS is not established by the prosecution. The chain of circumstances is not established by the prosecution. It is further argued by the accused counsel that no neighbours at the scene of offence were examined as witnesses and except the oral testimony of the complainant, there is no document on record to say that the raid conducted is official. Except the statement of the complainant, there is no competent witness to depose the evidence with regard to the alleged phone call made by the accused. The Xerox copy of the letter from the BSNL office which got marked by the complainant was not taken into consideration by the investigating officer and to that effect, he did not investigate the BNSL officials to know and to //20// prove its veracity. The Investigating Officer failed completely. By the date of visit of scene of offence by the Investigating Officer, the house of the complainant is completely demolished. Without any help of revenue people, how did the Investigating Officer identify the vacant site belongs to the complainant. There is no documentary proof in respect of the house of the complainant. Except the evidence of PW.4 to PW.6, none of the witnesses supported the version of the prosecution. There is an inordinate delay of five years from the date of offence to registering of
FIR, for which the prosecution did not offer for valid explanation and there is bar to take cognizance of offence under limitation provided u/Sec.468 of Cr.PC..
Further arguments by APP
24.He argued that limitation aspect is not applicable. The complainant gave complaint to SP, Eluru which was forwarded to Eluru III Town PS. At this juncture, the complainant herself represented that her house is there till 2011 and to that effect, the house receipts are there which are filed
before this Court. She requested to appoint a commissioner so as to
inspect about the existence of her house, which is the alleged scene of offence.
25Further, the accused counsel argued that there is no investigation done with regard to the actual words that was spoken to crime stopper 1090 and Investigating Officer did not obtain voice records during his enquiry and in his investigation, details of calls of 1090 are not obtained and no concerned persons were examined. By stating all these, the accused counsel contention is that the prosecution miserably failed in proving the guilt of accused and therefore, requested this Court to acquit the accused accordingly.
//21//
Citations filed on behalf of accused
26.The accused counsel filed citation of Hon’ble AP High Court between 1) Shaik Pakeer Ahammad and others vs. State of AP and
another dt.16.03.2006 in Crl.P.No.1216 of 2001 in 2006(1) ALD (Crl.)
817 (AP). Where in it is held that by Hon’ble Court that limitation bar of,
for taking cognizance of offence beyond period of limitation under
Clauses (a)(b)&(c) of Sub Section (2) of 468, construction of period
of imprisonment in lieu of fine cannot be taken into account. Taking cognizance of a case beyond the period of limitation without there being a request for time being and without application of the mind of the Court in relation thereto no doubt would be without jurisdiction. No Court shall take cognizance of an offence after expiry of period of limitation. The commencement of period of limitation is from the date of offence or where notice of prosecution of an offence has been given.
2) Between Andhra Pradesh Farm Needs, Vijayawada and
another vs. State of Andhra Pradesh and another 2020(1) ALD (Crl.)
142. Wherein it was held by the Hon’ble Court that, if the complaint is
lodged well beyond the period of limitation prescribed u/Sec.468(2)
(a) of Cr.P.C., the complaint itself thus being not maintainable as
barred by limitation, continuation of proceedings would amount to
abuse of process of Court. Therefore, petitioners are entitled to be discharged for the offence.
Analyzation of documents filed and marked on behalf of the
prosecution:-
27.It is pertinent to mention that some of the documents are filed in original and some are filed in the way of Xerox copies by PW.5 and they are marked. For this during their marking itself, the complainant rendered a reason that some of the documents are lost and some of the documents are misplaced during the proceedings before Hon’ble Lokayuktha, //22//
Hyderabad and before the Hon’ble Session Court, Narasapuram. The contention of the petitioner is that as accused is police constable by profession, the prosecution at Narasapuram Court and the police officials had intentionally got the documents misplaced during the proceedings. In proof of the same, she also filed a letter which was addressed to the
Hon’ble Lokayuktha for want of documents, for which, the Hon’ble
Lokyakautha replied that the record was destroyed on the lapse of prescribed time of appeal against its order. The same is got filed by the complainant. Most of the documents relied on by the complainant are obtained from the concerned authorities under RTI Act. So on satisfaction for the reason stated in by the complainant, even though they are the
Xerox copies for appreciating the evidence on the complainant side, the said documents are marked as secondary evidence. The objections if any raised by the accused counsel cannot be sustained and same are over ruled. And moreover of all the documents produced by the complainant only the documents which are relevant to the present case on hand and which stands proved and admissible for this case are extracted here under and will be given evidentiary value.
28.Ex.P5 is the letter from SP, W.G., Eluru to the complainant dt.08.10.2010 which was furnished on an application by complainant under RTI Act dt.16.09.2010 seeking information. Wherein it is stated that oral enquiry was conducted on the accused and held that the charges framed against him as proved. There is no clarification with regard to the charges that were framed against the accused according to this document. So treating that this document is not related and relevant to this present case, it is not being taken into consideration. Ex.P6 is a letter addressed by PW.4 to SHO, Narasapuram Rural PS stating that on 12.09.2009 while he was doing a watch duty for Narasapuram Rural PS at 10.30 PM, the accused who is working in Palakollu police station as a //23// constable under PC.No.421 by name Srinu came to his police station and asked him that he needs to make a call to 1090, Eluru. Keeping in view that the accused is colleague Constable to him he permitted the accused to make the phone call. He is furnishing this letter to SHO, Rural PS,
Narasapuram for information sake. This document is crucial and shall be taken into consideration, as it corroborated with the alleged facts depicted against the accused by PW.4 in his 161 Cr.P.C. statement as well as with the chief examination evidence, he deposed in the open Court. Ex.P8 is the letter addressed from SHO, Rural PS, Narasapuram to the complainant dt.05.09.2011 upon the application submitted by the complainant on 22.08.2011 seeking information with regard to the details of sentry duty constable particulars of Narasapuram Rural PS on 12.09.2009. Wherein it is stated by SHO that the former PC.No.1363 of
Narasapuram Rural PS, who is working now as, HC.No.1363 of
Veeravasaram PS attended night, sentry duties in Narasapuram Rural PS on 12.09.2009. He also further stated in the letter addressed to the complainant that in this connection when enquired by him, the said PC submitted a report addressing him that on 12.09.2009 while he is on station watch duty at about 10.30 PM, one P.C.No.421 by name Srinu working as PC in Palakollu Town came to Narasapuram Rural PS and represented before the sentry duty PC No.1323 that he wanted to use police station phone and on that the sentry PC 1363 M.Bhanuchandar allowed P.C.421 Srinu considering his rank in Palakollu Town PS and on that PC 421 talked with 1090 Eluru for some time. This information was sent to the complainant for her application under RTI Act. This document is also crucial and shall be taken into consideration as got tallied with the allegations of prosecution. This letter also stands in consonance with
Ex.P5 as well as with the evidence deposed by PW.4. Ex.P9 is a letter addressed to the defacto complainant from Sub Divisional Engineer,
Telecom Urban Sub Division, Narasapuram of BSNL dt.08.08.2011. The //24// information under this letter is also furnished to the complainant under
RTI. The telephone number as alleged by the complainant from which the accused made phone call to 1090 address is given that it is working at
Narasapur Rural PS. Ex.P10 is another letter from BSNL from General
Manager telecom to the defacto complainant under RTI with regard to call details of phone No.1090 dt.06.08.2011. Under this the authority furnished the call details and timings that were received by the crime stopper on 12.09.2009/the alleged date of offence. A Xerox copy of the information relating to the telephone call details of 1090 is also supplied along with it. The telephone numbers from which phone call was received by 1090 and the respective timings of it are clearly addressed in the letters under Ex.P11. Ex.P9 to Ex.P11 are very relevant to the present case as they matches with the allegations of the complainant that phone call was made to the crime stopper from Narasapuram Rural PS at alleged time i.e. between 10.00 PM to 11.00 PM. Ex.P12 is the complaint preferred by defacto complainant herein against the accused and other public servants before Hon’ble Lokayuktha, AP, Hyderabad. Pursuant to this, the order given by the Hon’ble Lokayuktha is also filed by the complainant, wherein it is stated that after conducting the enquiry and in view of the gravity of the charges against the complainant herein a punishment of removal of service was awarded against the accused and the period from 15.08.2008 to 08.03.2009 of his service is stated to be under suspension, as not on duty. This was done based on the report submitted by SP, W.G., District, dt.18.10.2014. Further, it is stated that no further investigation is necessary against the accused and directed the complainant to pursue the criminal case which is pending before the
Hon’ble Addl. Sessions Judge, Narasapuram. This document do not
pertains to this case. The same is also admitted by the accused counsel during the course of his cross examination of the complainant. On the application of the complainant under Ex.P16, information was furnished //25// from SP, W.G,, Eluru to the complainant under Ex.P7 dt.12.11.2009 furnishing the call details and timings asked for in the said application.
The complainant got marked the complaint given by her to Eluru III Town
PS against the accused under Ex.P18. The same got registered under
Cr.No.252/2010 and under the mistake of fact a referred final report was filed by the police on 31.08.2011 which is filed by the accused before this
Court as a statement under 313 Cr.P.C. Ex.P23 is the detailed connected copy to Ex.P12 which was addressed by Superintendent of Police, West
Godavari District, Eluru to the Deputy Registrar, Hon’ble Institution of AP
Lokayuktha, Hyderabad. On the complaint given to Hon’ble Lokayuktha by the complainant, summons were issued to the Superintendent of
Police, West Godavari District. An order was rendered under Ex.P25, wherein the Superintendent of Police, submitted that it was only seven months since he joined the duty and if a fresh representation or complaint is given by the complainant he will certainly see that prompt legal action is been taken either criminal or disciplinary or both against the accused and will assure to see that the complainant grievances are redressed. This complainant was dt.10.07.2014 and further action taken report was called for on 20.10.2014. The further action taken report was submitted by the
Superintendent of Police, W.G., Eluru to Hon’ble Lokayuktha, Hyderabad under Ex.P26 stating the charge against the accused herein has proved and in pursuant to that he was removed from service. While marking
Ex.P26, the complainant herself submitted that the accused was partially removed from service and again got reinstated into the service. She awaited for the action to be taken by the concerned authorities, but no action was taken she preferred for filing the complaint under Ex.P4 against the accused on the file of this Court. The complainant in order to show the existence of alleged scene of offence/house at MRC colony,
Satrampadu during the commission of offence filed Ex.P27 to Ex.P31. So basing upon these exhibits with related to the existence of alleged scene //26// of offence, the allegation of the accused counsel, that during the time of visit of Investigating Officer to the alleged scene of offence during the course of his investigation, the alleged house where the offence has happened does not exist cannot be taken into consideration, as because the complainant proved its existence during the commission of offence.
Documents filed by accused during his 313 Cr.P.C. examination for
perusal by this Court:-
29.The document under Cr.No.252/2010 had been already discussed above. Another final report which is referred as mistake of fact under
Cr.No.44/2008 is also filed. The copy of judgment in Session Case
No.95/2011 before Hon’ble V Addl. District and Sessions-Cum-Spl. Court for trail of offences against Women, W.G., Eluru against the crime registered before Naraspuram Town PS was filed by the accused. In that case, the accused is found not guilty for the offences under Sections 420, 376, and 497 of IPC and he is acquitted accordingly. The said judgment and referred crimes cannot be taken into consideration as the set of facts alleged against the accused differ from the present case on hand.
Admittedly, the offences for which, the accused was charged with and got acquitted are different from the offences alleged in the present case.
Moreover, the complainant allegations is that the police falsely referred the crimes registered by her against the accused as mistake of fact in order to favour the accused, as he is a police constable. So, this Court is not inclined to place reliance on the documents submitted by the accused and decided to proceed individually with the available material evidence and proof of allegations against the accused on record and it is evident that this approach will not cause any prejudice to the accused.
//27//
Courts observations and findings:-
30.The entire case of the complainant revolves only upon the alleged phone call which was made by the accused to crime stopper informing that the prostitution is going on in her house, for which, the police raided the house and returned back found nothing incriminating and because of which, her modesty got insulted, humiliated and defamed in the eye of society. There are no specific allegations and no specific overtacts and evidence on record in order to prove the offence against the accused u/Sec.354A of IPC. The bare reading of explanation appended to Sec.203 of IPC indicates a category of offences, which attracts the offence of
Sec.203 of IPC, wherein, the offences alleged by the complainant do not fall under the category of such offences, as specified in the explanation under 203 of IPC. Therefore, the allegations of the complainant against the accused do not attract the ingredients of Sec.203 of IPC and hence, the charges under the same cannot be considered. The act of the accused outraging and insulting the modesty of the complainant comes under the purview of Sec.509 of IPC. In support of the allegations of the complainant, the prosecution put forth the evidence of complainant coupled with the evidence of PW.4 and Ex.P5, Ex.P6, Ex.P9 to Ex.P11,
Ex.P16, Ex.P17 as their supportive evidence. Admittedly, except the evidence of PW.4 to PW.6, there are no evidence of independent witnesses in corroboration to the allegations of the complainant on record.
All the independent witnesses did not support the version of the prosecution. Even then, the evidence of PW.4 is crucial to decide the case. It is now to be decided basing on the evidence of complainant and corroborative evidence of PW.4 and PW.6 and from the exhibits that whether the prosecution had proved the guilt of the accused for the
Sec.509 of IPC beyond reasonable doubt.
//28//
31.It is argued by the accused counsel that police did not add the
Police Constable who received phone call and who conducted raid on
PW.5’s house. For this the prosecution replied in the written arguments and even the investigating officer admitted during his cross examination that when there is evidence of PW.4 which is corroborating with the complainant’s allegations, the police did not find it necessary for examining the Police Constable, as alleged by the accused counsel. The prosecution version is totally acceptable. It is also settled principle of law under Evidence Act that they shall not be a need of certain number of witnesses in order to prove the guilt against the person, even the testimony of sole witness which is consistent, cogent and corroborative to the allegations of prosecution is enough to bring home the guilt of the accused. In this case, it is evident that the prosecution brought forth the evidence of PW.4 coupled with exhibits marked by PW.5 which was obtained under RTI supports the prosecution case in all material aspects.
32.It is the argument by the accused counsel that complainant provided documents to prove the alleged phone call by the accused. But whether on that phone call, police went to the PW.5’s house and raided is in question and to that effect no evidence was put forth by the prosecution. This argument of accused cannot be accepted, as because the Investigating Officer himself admitted during his cross examination that, during his course of investigation it is found out that an enquiry was made. Accused counsel further argued that there is no GD entry and data proving that official raid has been conducted at PW.5’s house. This plea of the accused counsel cannot be taken into consideration, why because, the act of accused of making phone call to the crime stopper itself insults and outrages the modesty of the complainant. So the accused cannot take shelter under the guise of no entry of raid to PW.5’s house was made in order to escape from the liability u/Sec.509 of IPC. The evidence //29// of PW.4 is completely corroborated to the allegations of the complainant.
The exhibits which got marked by PW.5 also shows that PW.4 is the one who did sentry duty for Narasapuram Rural Police Station on the alleged date of offence. It is elicited from PW.4 by the accused counsel during his cross examination that no complaint was given by PW.4 on accused to
SHO of Narasapuram Rural PS. But it is seen that the information was submitted by PW.4 to SHO with regard to the incident happened which was marked as exhibit under Ex.P6 by the complainant. It is contention of the accused counsel that phone is located in SHO room in the
Narasapuraam PS and in the absence of SHO, the room will be closed.
Even PW.4 admitted to it during the course of his cross examination.
PW.4 stated that there is interconnection phone available on the table of
Head Constable. When such is the case, the accused might have used the interconnection phone for making the alleged phone call to the crime stopper. So, this contention of the accused counsel is ruled out. The accused counsel is further contending that the exhibits marked are concocted for the purpose of this case. On observing the exhibits, it is found that most of the exhibits are obtained under RTI from the concerned officials. So, they can certainly be deemed to be genuine.
Admittedly, no contrary evidence was elicited from the complainant by accused counsel in order to prove the said exhibits are fabricated for the purpose of this case. Moreover, it is admitted fact that the charges against the accused are termed to be proved under the Departmental
Enquiry and an action of suspending him from the service was taken.
Admittedly, of the accusations made against the accused by the complainant for the Departmental Enquiry, the accusations of the present case on hand is also found to be part of it. Further, during the course of his examination, PW.4 identified the accused in the open Court. The defence counsel contended that complainant has a habit of filing false cases against the accused. For this, the complainant herself reported that //30// under the fear of the accused, no independent witness are doing dare enough to enter into the witness box and adduce their evidence in support of her. As the official authorities colluded with the accused and did not take any action it took all these years for her to obtain all the relevant material to prove the offence committed by the accused and requested to do the justice to her. Further, the counsel opposed the version of prosecution as there is no document to show that PW.4 is on duty on the alleged date of offence and by the time of offence and there is no proof to show that complainant is residing at the alleged scene of offence/her house at MRC colony, Satrampadu. It is seen that, the complainant got marked Ex.P8 which is letter addressed by SHO,
Naraspuram Rural PS to her furnishing that PW.4 is on sentry duty as a police constable on the alleged date of offence. The said report is also enclosed with a report submitted by PW.4 to the SHO, Narasapuram
Rural PS which is marked by complainant under Ex.P7. It goes to show that even PW.4 admitted that he did the sentry duty as police constable on the alleged date of offence in Narasapuram Rural PS. Ex.P27 to
Ex.P31 goes to show that PW.5 resided at the alleged scene of offence on 12.09.2009 i.e. by the time of alleged date of offence. So, these objections of the defence counsel is ruled out. Moreover, when the defence counsel himself stated that Ex.P12 Hon’ble Lokayuktha order is not related to this case, the admission of complaint about its non submission to the investigating officer during course of his investigation and as to the absence of direction of initiating criminal action against the accused by the complainant and other discrepancies are considered to be needless for discussion. Not only the oral testimony of the complainant, there are also the documentary proofs from the prosecution side, more crucially the corroborative evidence of PW.4 which goes to clearly show that the accused is one who is behind making the alleged false phone call to the crime stopper about the prostitution in PW.5’s house. It is evident //31// and rightly pointed out by the prosecution in their arguments that there is no animosity that was elicited between PW.4 and accused to show that
PW.4 is intentionally deposing false evidence against the accused favouring the complainant. So when the prosecution is able to put forth cogent, consistent and corroborative evidence in support of their case, the same cannot be easily brushed away in the light of minor discrepancies in their case. The oral and documentary evidence put forth by the prosecution are considered to be credible and trust worthy.
Admittedly, no oral and documentary evidence that is considerable was put forth by the defence in order to discredit the testimony of complainant and PW.4 and so as to doubt the veracity of documents marked. Another objection from the defence is about limitation. It is pointed out that, there is delay from the date of offence to lodging of complaint. So there is bar to take the cognizance. This objection as to limitation was taken by the defence at the flag end of the case after completion of full fledged trial. It is admitted fact even from the side of prosecution that there is delay caused in lodging the complaint against the accused by the complainant.
But for that the prosecution offered a valid and justifiable reason stating that the defacto complainant since the date of incident on 12.09.2009 went to the police station concerned and approached all the higher authorities and as they did not take up any action she herself has accumulated all the relevant documents pertaining to this case and later, she approached the Hon’ble Lokayuktha and other forums like Mahila
Commission, Vikalangula Sangham etc. to initiate action against the acts of the accused. So, the delay of such kind cannot be considered to be fatal to the case of the prosecution. Apart from bar of taking cognizance u/sec.468 of Cr.P.C., power has been conferred u/Sec.473 of Cr.PC..
stating that the Court may take cognizance of the offence after expiry of period of limitation if it is satisfied on the facts and in the circumstances of the Court that the delay has been properly explained or that is necessary //32// to do in the interest of justice. The aspect of not taking cognizance on bar of limitation comes into picture, when there is no valid explanation offered for causing such delay by the prosecution and to rescue the accused from building up of concocted and fabricated evidence against him on lapse of time and to protect him from the prejudice of that being caused to him.
But this is not so in the case of present case on hand. It is settled principle that justice must not only be done but must appears to be done.
So when their exists clear, consistent and cogent evidence on record from the prosecution simply the aspect of limitation cannot curtail (or) be a legal impediment for not grating the relief to the complainant. When the evidence gathered by the complainant, holds authenticity for proving the guilt of the accused, the same cannot be given away that easily without consideration. More importantly the failure of Investigating Officer and the lapses in the prosecution shall not punish the complainant from seeking justice for which, he or she is eligible to. No doubt there are minor contradictions and omissions in the prosecution case and its evidence but that cannot out weigh the crucial evidence on record that favours the version of the prosecution. These cannot pointed out to be fatal to the case of the prosecution. So, summing up of all these above circumstances, it can be said that the Court did not find anything contrary elicited by the defence which favours to them and which is against to the case of the prosecution. One of the eyewitnesses to the incident PW.4 whose is physically present with the accused during commission of offence came and deposed evidence that corroborated in all material particulars with the case of prosecution for the offence u/Sec.509 of IPC.
With the evidence of PW.4 to PW.6 coupled with Ex.P5, Ex.P6, Ex.P9 to
Ex.P11, Ex.16, Ex.17 and other exhibits, it can be said that the prosecution established all the circumstances of the alleged offence committed by the accused. Hence, it can be said and concluded that prosecution has proved, that the accused insulted and outraged the //33// modesty of complainant. Therefore, accused is convicted only for the offence u/Sec.509 of IPC, and as the other charges against him u/Sec.354A and 203 of IPC remained unproved, he is acquitted for those charges. Accordingly, point is answered in favour of the prosecution and against the accused.
33.In the result, the accused is found not guilty for the offence
U/Secs.354A and 203 of IPC. Accordingly, he is acquitted U/Sec.248(1)
Cr.P.C. Further the accused is found guilty for the offence under Section 509 of IPC. Accordingly he is convicted u/Sec.248(2) Cr.P.C.
Typed to my dictation by the Stenographer Grade-III, corrected and pronounced by me in Open Court, this the 9th day of August, 2024.
Sd/- K.Spandana
IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.
34.When the accused is questioned about the sentence, he stated that he has wife and children, who are purely depending on his sole earnings.
He also pleaded mercy while imposing sentence and the learned counsel
for the accused pleaded to impose fine.
35.On considering the facts of the case, as this is the offence committed against the women, no lenient view can be taken against the accused and the court is of the view that it is not a fit case to apply the provisions of Probation of Offenders Act.
36.Hence, the accused is sentenced to undergo Simple Imprisonment for a period of six months and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under section 509 of IPC, in default of payment of fine, he shall suffer simple imprisonment for a period of two months. The total fine amount of Rs.10,000/- is ordered to //34// be given to PW.5 towards compensation u/Sec.357(1) Cr.P.C. after expiry of appeal time.
37.Accused is informed about his right to prefer an appeal against the
Calendar and Judgment of this court. When he is asked about his means to prefer an appeal, he stated that he do not need any legal aid. There is no remand period of accused to be set off under Section 428 Cr.P.C.
Typed to my dictation by the Stenographer Grade-III, corrected and pronounced by me in Open Court, this the 9th day of August, 2024.
Sd/- K.Spandana
IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence
PW.1: K.China Nageswara RaoNone
PW.2: P.Kondala Rao
PW.3: J.Rama Rao
PW.4: M.Bhanuchander
PW.5: S.Anjali
PW.6: D.Prasad Kumar-SI of Police.
DOCUMENTS MARKED
For Prosecution :- For Defence:- Nil
Ex.P1161 Cr.P.C. statement of PW.1.
Ex.P2161 Cr.P.C. statement of PW.2.
Ex.P3161 Cr.P.C. statement of PW.3.
Ex.P4Complaint given by PW.1 to the police.
Ex.P5Letter from Superintendent of Police to PW.5 dt.08.10.2010.
//35//
Ex.P6Letter by Head Constable to SHO, Narasapuram Rural Police Station, dt.08.08.2011.
Ex.P7Certificate of person with disability issued for complainant.
Ex.P8SHO, Narasapuram Rural PS letter to PW.1 with regard to sentry duty particulars.
Ex.P9Narasapuram BSNL Office certificate dt.08.08.2011.
Ex.P10Regional BSNL office letter with regard to user details dt.06.08.2011.
Ex.P11Regional BSNL Office letter with regard to call timings and register, dt.06.08.2011.
Ex.P12Lokayukta complaint and order of removal of accused from service.
Ex.P13FIR in Cr.No.233/2014.
Ex.P14Rough sketch.
Ex.P15Xerox copy of complaint against accused on 14.07.2009 in III town PS.
Ex.P16Request Letter of Complaint under RTI.
Ex.P17S.P., W.G., Eluru furnished call details to complainant.
Ex.P18Xerox copy of complaint, dt.15.10.2010.
Ex.P19Xerox copy of one complaint, dt.10.11.2010 and FIR.
Ex.P20Xerox copy of the complaint by one K.V.Prasad Gupta, dt.03.05.2011.
Ex.P21Original challan, cash memo, receipt of lokayuktha, Hyderabad on 06.11.2012.
Ex.P22Original proceedings No.2852/2012/Lok/B1/ 15769/2012 dt.18.12.2012.
//36//
Ex.P23Xerox copy of the detailed report against accused to the Deputy Registrar of Hon’ble A.P. Lokayuktha by Superintendent of Police, W.G. District dt.15.03.2013.
Ex.P24Original of the Hon’ble lokayuktha summoned for appearance of Superintendent of Police, W.G. District on 25.06.2014.
Ex.P25Xerox copy of the Hon’ble lokayuktha order on 10.07.2014 and further action taken report called for on 20.10.2014 from S.P., W.G., Eluru.
Ex.P26Xerox copy of the Superintendent of Police, West Godavari District informing to the Hon’ble lokayuktha about Latest Status Report of action taken on accused dt.18.10.2014.
Ex.P27Notarized copy of Certificate issued by Panchayath Secretary, Satrampadu Gram Panchayat, dt.09.11.2015.
Ex.P28Original adhaar card of complaiannat.
Ex.P29Original voter ID card of complainant.
Ex.P30Xerox copies of passport authority dt.23.08.2014.
Ex.P21Xerox copies of house hold card issued the Government of AP, dt.10.01.2013 to complaiannt.
Ex.P32Xerox copy of information given by lokayuktha Under RTI Act, dt.19.07.2022 to the complainant.
Material Objects Marked
Nil
Id/- KS
IV ACJ(JD)-CUM-
SJFCM(E), ELURU.
//37//
CALENDAR AND JUDGMENT
CALENDAR AND JUDGMENT IN C.C.No.166/2023 ON THE FILE OF
THE IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-SPECIAL
JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE) ELURU.
DATE OF
Offence ComplaintApprehensioReleasTaken CommencClose ofOrder of or reportn of accusede onon filee-ment oftrialsentence bailtrial
From 14.07.201----31.9.14 26.11.21 05.7.24 09.8.2024 12.09.24 009
Explanation for delay: No avoidable delay took place.
Complainant : State: The Sub Inspector of Police, Eluru III Town Police Station, Crime No. 233/2014
S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused Andra Srinivasa Rao @ Srinu, PC.421, Male, Buttaigudem Police Station, W.G. District.
Offence: u/Secs.354A, 509 and 203 of IPC
Crime No.233/2014 of Eluru III Town Police Station.
Finding: Found not guilty for the offence u/Secs.354A and 203 of IPC Found guilty for the offence u/Sec.509 of IPC.
RESULT: In the result, the accused is found not guilty for the offence
U/Secs.354A and 203 of IPC. Accordingly, he is acquitted U/Sec.248(1)
Cr.P.C. Further the accused is found guilty for the offence under Section 509 of IPC. Accordingly he is convicted u/Sec.248(2) Cr.P.C. Hence, the accused is sentenced to undergo Simple Imprisonment for a period of six months and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under section 509 of IPC, in default of payment //38// of fine, he shall suffer simple imprisonment for a period of two months.
The total fine amount of Rs.10,000/- is ordered to be given to PW.5 towards compensation u/Sec.357(1) Cr.P.C. after expiry of appeal time.
Accused is informed about his right to prefer an appeal against the
Calendar and Judgment of this court. When he is asked about his means to prefer an appeal, he stated that he do not need any legal aid. There is no remand period of accused to be set off under Section 428 Cr.P.C.
Note : Fine amount of Rs.10,000/- is paid by accused.
Sd/- K.Spandana
IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.
Seal:
Copy submitted to: The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru through CD.
Copy to accused.