IN THE COURT OF THE ASSISTANT SESSIONS JUDGE
AT RAMACHANDRAPURAM
Present : Sri S.Ramesh., III Additional Assistant Sessions Judge, Kakinada., F.A.C_ to the Assistant Sessions Judge, Ramachandrapuram.
Friday, the Twenty third (23rd) day of October, 2015
SESSIONS CASE No.82 of 2014
In Preliminary Registered Case (P.R.C) No.02 of 2012, committed by the proceedings of the Additional Judicial Magistrate of First Class, Ramachandrapuram, dated 27-10-2013, relating to the case in Crime No.99 of 2009 of Police Station, Pamarru, for the alleged offences punishable under sections 341, 324 and 376 r/w 511 of the Indian Penal Code.
Prosecution: Sri Sudhakar,
Additional Public Prosecutor.
Defence Counsel: Sri K.Suryanarayana, Advocate (Defence) for the Accused.
Name of Accused: Pachimala Prasad, s/o.Kotayya, age 45 years, Community: Mala, R/o.Old Kota village, K.Gangavaram Mandal.
Offence under section(s): 341, 324 and 376 r/w 511 of Indian Penal Code.
Nature of offence(s): - Punishment for wrongful restraint, - Voluntarily causing hurt by dangerous weapons or means, - Punishment for attempt to commit rape.
Plea of the Accused : Pleaded not guilty.
Finding of the Court: Found guilty.
Result of the Judgment: The accused found not guilty of the charges framed against him punishable under sections 341, 324 and 376 read with 511 of I.P.C.,and is acquitted for the same under section 235 (1) of Cr.P.C.
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The above numbered Sessions Case coming on 16-10-2015 for final hearing before me, the matter having stood over for consideration till this day, this Court delivered the following :
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// J U D G M E N T //
The State- being represented by the Sub-Inspector of Police,
Pamarru Police Station (P.S), filed charge sheet in Crime No.99 of 2009,
before the Court of Additional Judicial Magistrate of First Class,
Ramachandrapuram, alleging that the accused committed offence(s) and liable for punishment under sections 341, 324 and 376 r/w 511 of the
Indian Penal Code (for short I.P.C).
1.Allegations against the accused in the charge sheet, in brief are that_
On the night of 10-09-2009 at about 11-30 p.m.,when the De facto
Complainant (a married woman, aged about 40 years- her name is concealed, in view of restriction under section 228-A of I.P.C and herein after refers to as the victim/ prosecutrix), accompanied by her husband-
G.Thrimurthulu, returning to their home in PathaKota, from
K.Gangavaram, when reached the fields of Chekuri Chinnabbai, at out skirts of Pathakota, the accused came behind, went ahead of them on his bicycle, attacked and pushed them aside, beat her husband, caught hold of her (victim) tuft, dragged her into the nearby fields forcibly, with intent to commit rape on her, to which she resisted his acts and returned to her husband, the victim and her husband made hue and cries, G.V.V.Ramesh and A.Satyanarayana came there, on seeing their arrival, the accused escaped from there.
On receiving report of the victim, the Sub-Inspector of Police,
Pamarru P.S.,registered this case, took-up investigation, recorded statements of the witnesses, visited the scene of occurrence, examined it in the presence of mediators, prepared rough sketch of the scene, arrested the accused, forwarded him to the court for remand and later filed charge sheet.
The accused was enlarged on bail, as per orders of the V Additional
District and Sessions Judge's Court, Rajahmundry, vide orders in Crl.M.P.
No.1756 of 2013, dated 11-12-2013.
2.The Additional Judicial Magistrate of First Class, Ramachandrapuram had taken the matter into cognizance (as P.R.C.No.02 of 2012) against the accused, for the alleged offences punishable under sections 341, 324 and 376 r/w 511 of I.P.C.,after -3- complying the legal requirement of furnishing copies of all the relevant documents as contemplated under section 207 of Criminal Procedure
Code (for short Cr.P.C), has committed the case through the proceedings
dated 27-12-2013 under section 209 of Cr.P.C., to the Court of Sessions,
Rajahmundry Division, since the offence under section 376 r/w 511 of
I.P.C.,is exclusively triable by the court of Sessions.
3.Hon'ble Principal District and Sessions Judge, Rajahmundry, had taken the matter into file (as Sessions Case No.82 of 2014) and made it over to this Court (Additional Assistant Sessions Judge's Court,
Ramachandrapurma), for Trial and disposal according to law.
4.The accused examined under section 228 of Cr.P.C.,in which he denied the offence and the allegations levelled against him, pleaded not guilty of the charges framed against him punishable under sections 341, 324 and 376 r/w 511 of I.P.C.,the contents of which are read over and explained to him in Telugu (local language), and he claims to be tried.
5.During the course of trial, the prosecution altogether examined 12 persons as Prosecution Witnesses (P.W.'s) 1 to 12 and got the marked
Exhibits (Ex.'s) P.1 to P.7. No material objects are marked.
Ex.'s D.1 to D.3 are marked (on behalf of the accused) through the evidence of D.W.3.
6.After closure of evidence of prosecution, the accused examined under section 313 of Cr.P.C.,the gist of incriminating evidence appeared in oral and the documentary evidence adduced against him is read over and explained in Telugu, to which he denied the entire evidence adduced against him.
7.Then the accused is called upon to enter his Defence and to adduce any evidence he may have in support of him, as contemplated under section 233 (1) of Cr.P.C., to which he reported as “no Defence Witnesses.
No documentary evidence is adduced on his behalf.
8.Heard arguments of learned Additional Public Prosecutor for the State- Complainant and the Defence Counsel.
9.Now the point for my determination is_
Whether the prosecution has proved charges framed against the accused, beyond all reasonable doubt (s) ?
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The settled principle is that every accused is presumed to be innocent unless the guilt is proved, however, subject to the statutory exceptions if any, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. And it is the system of our criminal jurisprudence that the prosecution has to prove the case against the accused beyond all reasonable doubts.
10.The 1st charge framed against the accused is under section 341 of
I.P.C., which deals with punishment for the offence of wrongful restraint, it is alleged that the accused restrained the victim and her husband while their were going towards their house. The 2nd charge is under section 324 of I.P.C which deals with punishment for voluntarily causing hurt, allegation against the accused is that he assaulted P.W.2 herein. The last and 3rd charge is under section 376 r/w 511 of I.P.C., the allegation is that the accused with intent to commit rape on P.W.1, dragged her towards the fields and she was able to escape from his clutches.
11.To bring home guilt of the accused, for the offences under sections 341, 324 and 376 read with 511 of I.P.C.,with which he is charged, and to prove it's case, the prosecution firstly examined, the victim- prosecutrix as P.W.1.
She said in her evidence that at about 10-30 p.m.,on 09-10-2009 while she was returning to their house, accompanied by her husband, when reached Kota road centre, the accused who is their villager, came on a bicycle, at about 11 p.m.,he came behind their back, pushed them down and beat them with a stick, she sustained contusion on left hand, middle of neck and over left side of hip, her husband also sustained a contusion over head and shoulders, then the accused caught hold of her hair (tuft), dragged to some distance with intent to commit rape, torned her blouse and saree and made an attmept to commit rape on her, then she raised cries, on hearing the same two persons came, on seeing arrival of the said two persons, the accused fled away from there.
12.She said further that later, they went to Ramalayam, secured the presence of villagers who convened a panchayat, on their advise, she has presented Ex.P.1- report, dated 11-09-2009 to the police.
Husband of the victim and injured, by name G.Thrimurthulu, as
P.W.2, he also claimed the same version to that of the chief examination -5- of P.W.1 that the accused came, beat them, attempted to commit rape on
P.W.1, and that on hearing their cries, one Ramesh and Akkala
Satyanarayana came, the accused run away, panchayat was held, they reported the matter to the police who in turn sent them to the Area
Hospital (for treatment).
13. Next the prosecution examined a circumstantial witness by name
M.Rajabanu @ Raju, as P.W.3, deposed that at about 11 p.m.,on 10-09- 2009 after closing the pan shop (business), he was returning to his house by riding his two wheeler (bajaj chetak),when reached road turning which leads to pathakota, noticed the accused who was going on bicycle, later he noticed P.W.'s 1 and 2 while going on the way by walk, and 10 minutes after reaching the house, he heard the cries of P.W.'s 1 and 2, came out and asked them as to what happened, they informed that the accused bet them, P.W.1 informed that the accused made an attempt to commit rape on her, on the next day the leaders of S.C.Peta conducted
Test Identification parade, in which P.W.1 has identified the accused who also confessed about the commission of offence.
14.Next the prosecution examined a hearsay witness by name
A.Satyanarayana as P.W.4 and he deposed that by the time of incident, he along with G.V.V.Ramesh proceeding towards for watering their land,
P.W.'s 1 and 2 came and informed that an unknown bet and dragged P.W.1 aside.
Learned Additional Public Prosecutor, by treating the witness as hostile examined him in cross, but no useful information is drawn from him, and he denied Ex.P.2 which is his statement recorded by the
Complainant Police during Investigation under section 161 of Cr.P.C.
15.An Independent witness by name G.V.V.Jagadeesh as P.W.5. He deposed that, on the midnight of 10-09-2009 at 12, P.W.'s 1 and 2 came and informed that P.W.1 was subjected to rape by a person who belonged to S.C.,community, as she didn't disclose the name of the person, on the next day morning he alongwith P.W.'s 1 to 4 and G.V.V.Ramesh went to
Ambedkar's statue, conducted test Identification Parade, by producing 4 persons, P.W.1 identified the accused, on enquiry the accused also confessed the offence.
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Another witness by name J.Krishna Murthy as P.W.6 said that about 11 p.m.,P.W.'s 1 and 2 came, woke him up, informed that some unknown bet P.W.2 and tried to take P.W.1 away, on the next day he and others got conducted parade by securing 5 or 6 persons, as the accused didn't confess the offence, he asked P.W.1 to lodge report with the police.
16.P.W.5 said in his cross examination that for the first time he was disclosing that the parade was conducted among 4 persons and P.W.1 has identified the accused.
P.W.6 deposed in his cross examination that he didn't inform the police that he conducted Parade, P.W.1 didn't furnish the identity particulars, of the culprit, though the accused was present among the persons who gathered there, P.W.1 has not identify him.
17.The testimony of P.W.'s 5 and 6 appears as vague and un-believable.
There is no provision enabling the villagers like these witnesses to conduct identification parade for the culprits that too without informing the police and prior to registration of a case as crime. They have not claimed that they are connected with the affairs of the said village either as president, village revenue officer(s) or recognized by the villages as village elders, therefore, P.W.5 stated that only 4 persons are secured for the parade and the accused confessed the offence, whereas P.W.6 stated that 5 to 6 persons are secured for the parade and as the accused has not diclosed or confessed anything about the alleged incident or offece, he asked P.W.1 to approach the police, there is discrepancy in between their evidence, therefore this court is not considering the testimony of them.
18.According to prosecution one Nandam Surya Prakash- a private medical practitioner, allegedly treated P.W.1 for her injuries. But for the known reasons, the prosecution examined a person by name Nandam
Surya Bhaskar Rao @ Suribabu, as if he is the said person, as P.W.7. He deposed that he is a private medical practitioner, said that about 12 midnight on the day, P.W.1 told him that somebody bet her, then he gave first aid.
He deposed in his cross examination that, his name is Surya
Prakash, as he is only P.M.P.,he was not in possession of medicines. The testimony of this witness creates suspicion in the mind of the court. As -7- per charge sheet, he is not the witness who gave statement to the police, therefore, his evidence is no way helpful to the case of prosecution.
19.Next the prosecution examined a photographer by name P.Satyam as P.W.8, he deposed that on the request of the police, he went to the scene and took Ex.P.3- photos.
He said in his cross examination that he not a licensed photographer, there is no proof that he took Ex.P.3. In fact, even the prosecution is not specific with regard to the scene, whether it is road, road side or the field to which P.W.1 was allegedly dragged, therefore, his evidence pales into insignificance.
20.The prosecution examined the Village Revenue Officer(V.R.O) of
Kotal village, by name K.Venkanna as P.W.9. He deposed that, the police taken him and D.Nageswara Rao, Gali Sreenivasa Rao to the scene which is at a distance of 1 K.M.,from village, they observed the place and he signed in Ex.P.4- scene observation report.
He said in his cross examination that as per the said report, the scene is metal road. When there are no signs or material objects relating to the offence, his claim that metal road is the scene, appears as vague and artificial.
21.Next the prosecution examined medical witness by name Dr T.Durga
Raju as P.W.10, he said that, at about 3.25 a.m.,on 11-09-2009, he examined P.W.1 herein, found the injuries viz.,an abrasion on right hand elbow joint and a contusion on left hand little finger, both are simple in nature, might be caused about 24 hours prior to the examination, Ex.P.5 is the Wound Certificate of P.W.1.
He said in his cross examination that P.W.1 has not informed him that she took treatment prior to his examination, she informed that she was beaten by a known person with stick but as per record, there was no prior acquaintance in between the accused and the victim.
It is alleged in the case record, that P.W.2 was beaten with stick indiscriminately, but P.W.2 neither consulted the private medical practitioner nor visited the Government Hospital for treatment, therefore, the prosecution has not proved the 2nd charge framed against the accused, satisfactorily.
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22.The then Sub-Inspector of Police (Pamarru P.S)- Investigation Officer (I.O), by name Mr K.Solomon Raju as P.W.11 stated in his evidence that he received Ex.P.1 -report from P.W.1 at about 12 noon on 11-09-2009, registered the same as a case in Crime No.99 of 2009, Ex.P.6 is the First
Information Report (F.I.R), examined P.W.'s 1 and 2, sent them to the
Hospital, visited the scene of offence with mediators, observed it, prepared Ex.P.7- Rough Skech of the scene, got it photographed, secured the presence of witnesses and recorded their statements.
The Complainant- the then Sub-Inspector of Police (the successor in office to P.W.11) by name Mr Ch.Nageswara Rao as P.W.12 who said in his evidence that he has verified the investigation done by P.W.11, found it on correct lines, after receiving the wound certificate of the injured, he filed charge sheet, and subsequently the accused surrendered before the court.
23.P.W.1 deposed in her cross examination that she doesn't know what is full name of the accused, she had shown the scene to the police, as per
Ex.P.1- report, she was at Pathakota centre by 11-30 p.m.,she also has shown her torned blouse and saree to the police.
P.W.2 said in his cross examination that, the police brought the accused to the police station, the accused bet them with a stout stick, he is illiterate, the incident occurred in ninenth month that is in July, could not say what is the month after July, and he was given treatment at
Government (Area) Hospital, Ramachandrapuram.
24.The evidence of P.W.'s 1 and 2 is not corroborated by the evidence of other witnesses. According to them, some unknown person bet them, then they went to the village and informed the villagers. The alleged incident occurred at 11-30 night, that too at out skirts of village, there was no prior acquaintance in between P.W.'s 1, 2 and the accused, therefore, it is not possible for them and especially to P.W.1 either to remember or to disclose the identity particulars of the accused so as to state the same to the villagers.
P.W.3 said in his cross examination that he has not stated as in Ex.'s
D.1 to D.3 (relevant parts of his statement recorded by P.W.12- I.O.,during
Investigation, under section 161 Cr.P.C), that the accused -9- was standing at Choultry, and to some distance further P.W.'s 1, 2 are proceeding by walk and he told the police that he saw the accused at the said Choultry.
25.P.W.11- I.O., deposed in his cross examination that, P.W.1 didn't state the full name of the accused, one person on behalf of P.W.1 had shown the scene to the police, there is no cattle shed as per the scene observation report, P.W.1 didn't state to him that the accused made an attempt to commit rape against her, as per investigation the accused outraged the modesty of P.W.1, she didn't state to him that her blouse and saree are torned, he recorded statements (161 Cr.P.C) of listed witnesses 12, 13 but the handwriting is different.
The manner in which P.W.11 proceeded for investigation also creates doubts in the mind of the court. Only P.W.'s 1 and 2 are the proper persons to show the alleged scene of occurrence, after completion of registration of F.I.R., and recording their statements, the I.O has sent them to the Hospital for treatment, so, I.O may not have any idea to identify the alleged scene. It is not the case of prosecution that the incident occurred in specific place like house, mile stone, culvert or like so.
26.In every crime, there is first intention to commit it; secondly, the preparation to commit it; thirdly attempt to commit it. If the third stage that is attempt is successful, then the crime is complete.
Attempt is the direct movement towards the commission after the preparations are made. In the present case, there is no corroboration to the evidence of P.W.'s 1, 2 that the accused with intent to commit such offence. Even the presence of the accused at the place (scene) is not established except the self serving testimony of the victim and her husband who is interested witness.
27.The I.O.,has stated in his cross examination that the accused outraged the modesty of P.W.1, but it is not her claim during the course of trial. Even to the I.O.,she has not stated that the accused had touched any of her private body with bad intention.
It is also the settled law that an indecent assault upon a woman does not amount to an attempt to commit rape.
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28.If really, P.W.'s 3 to 5 have conducted identification parade, and the victim has identify the accused, there was no question to abandon the accused freely, i.e.,without handing ove the accused to the police. P.W.2 claims that the accused was also brought to the police station but the
I.O.,has stated that the accused surrendered before the court, later.
The alleged confession it all was made, it is inadmissible in evidence since it was not voluntary, as there was threat of the village elders upon the accused where he was residing. The admissible portion of confession is not marked as an exhibit.
29.Mere allegation that the accused dragged the victim by caught holding her tuft, is not sufficient to believe that the accused with intent to commit rape on her. Column No.4 of Ex.P.6- F.I.R meat for type of information discloses as oral, but the victim herein submitted the written report. Though this slight deviation may not affects the entire case, but the other circumstances are not supporting to the case. Column No.3 of
Ex.P.6 states that the police received report from P.W.1 at about 1 p.m., as per Ex.P.5- the victim was produced before P.W.10- medical witness at about 3-25 p.m.,on 11-09-2009, but P.W.2 never claimed that he was also referred to the Hospital.
There is no corroboration to the evidence of P.W.'s 1 and 2 that the accused way laid them and it was seen by any of the witnesses. The identification parade allegedly conducted by the villagers over the people of that colony, is nothing but taking the law into their own hands, that too pre-investigation stage.
30.When there is no allegation of attempt to commit rape on P.W.1 except the allegation that she was dragged on the road to some small distance, drafting report for the scene of occurrence, preparing rough sketch by the I.O., that too either P.W.2 or P.W.1 were not present there, appears as artificial. The allegations of wrongful restraint and the other severe allegation that there was an attempt to commit rape is not not established.
Considering the evidence on record, on hearing arguments, I came to strong conclusion that the prosecution is unable to connect the accused to the alleged crime, and therefore, the 1st and 3rd charges are not proved, the point is answered accordingly holding that the prosecution -11- has not proved the case against the accused beyond all reasonable doubts and the accused is entitled for acquittal.
31. In the result, the accused found not guilty of the charges framed against him punishable under sections 341, 324 and 376 read with 511 of
I.P.C.,and is acquitted for the same under section 235 (1) Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of six months if no appeal is pending as per section 437(A) of Cr.P.C. The unmarked non valuables if any shall be destroyed after appeal time.
Typed to my dictation, corrected and pronounced by me in open court on this the 23rd day of October, 2015.
III Additional Assistant Sessions Judge, Kakinada, Full Additional Charge to Assistant
Sessions Judge, Ramachandrapuram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the Prosecution:
P.W.1: Palivela Venkatalakshmi
P.W.2: Palivelka Nagabushanam
P.W.3: Koppisetti Chandrarao
P.W.4: Penkey Siva alias Sivayya
P.W.5: Pampana Kalyan Srinivasa Rao
P.W.6: Palivela Sai Krishna
P.W.7: Petta Sathiraju
P.W.8: T.Kranthikumar
For the accused (as Defence):
D.W.1..Cheeekatla Srinivasa Rao
D.W.2.Tekukmudi Satyanarayana
D.W.3..Penkay Durga Prasad -12-
DOCUMENTS MARKED
For the Prosecution:
Ex.P.1: Statement of defacto complainant (P.W.1)
Ex.P.2: Portion of 161 Cr.P.C. statement of P.W.3
Ex.P.3: Scene observation report
Ex.P.4: F.I.R.
Ex.P.5: rough sketch
For the accused (as Defence):
--nil--
MATERIAL OBJECTS MARKED
--nil--
III Additional Assistant Sessions Judge, Kakinada, Full Additional Charge to Assistant
Sessions Judge, Ramachandrapuram.