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IN THE COURT OF THE SESSIONS: SESSIONS DIVISION::
VIZIANAGARAM.
BEFORE THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER SCS & Sts (POA)
ACT-cum-IV ADDL.DISTRICT & SESSIONS COURT, VIZIANAGARAM.
PRESENT: Smt.S.Sarada Devi,
Judge for trial of cases under Scs & STs(POA) Act-cum-IV
Addl.District and Sessions Judge, Vizianagaram. ; 2020.
Thursday, this the 25th day of March, 2021.
Scs & STs. SESSIONS CASE No.49 of 2016
NAME OF THE COMPLAINANT:The State represented by the Assistant SuperintendentofPolice, Parvathipuram.
Name of the accused1. Penki Hari, S/o Ramulu, 30 years, T.Kapu, Post Office veedhi, Belagam, Parvathipuram.
2. Penki Sridevi D/o Ramulu, 25 years, Kapu, Head Post Office Street, Belagam, Parvathipuram.
3. Penki Ramakrishna S/o Ramulu, 35 years, Kapu, Head Post Office Street, Belagam, Parvathipuram.
Date, time and place of offencePrior to 15.04.2016 at Head Post Office Veedhi, Belagam, Parvathipuram.
ChargeUnder Sections 341, 376 IPC and Section 3(2)(v) of SCs, STs (POA) Amendment Act, 2015 against A1 and Section 3(1)(r)(s) of SCs, STs and (POA) Amendment Act, 2015 against A1 to A3.
Plea of the accusedAccused pleaded not guilty.
Finding of the CourtFound not guilty.
Sentence or orderIn the result, the accused/A1 is found not guilty for the offence punishable under Sections 341 and 376 of IPC and Section 3(2)(v) of SCs and STs (POA) Amendment Act, 2015 and the accused/A1 to A3 are found not guilty for the offence punishable under Section 3(1)(r)(s) of Scs and Sts (POA) Amendment Act 2015, the respective charges leveled against them and accordingly they are acquitted for the said charges under Section 235(1) Cr.P.C. The un-marked property, if any, shall be destroyed after expiry of appeal time.The 2 bail bonds of accused shall stand cancelled. The accused/A1 to A3 are ordered to execute self bond for Rs.20,000/- each to appear before the Appellate Court as and when they received summons or notices from the Appellate Court as per the Provision of Section 437-A of Cr.P.C.
Prosecution was conducted bySpecial Public Prosecutor, Vizianagaram.
Accused was defended bySri M.V.Ganapathi Rao, Learned counsel for the accused, Vizianagaram.
This Sessions case is coming on 19.03.2021 for final hearing before me in the presence of Special Public Prosecutor, Vizianagaram for State- complainant and of Sri M.V.Ganapathi Rao, learned Counsel for accused and the matter is having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.The Assistant Superintendent of Police, Parvathipuram filed charge- sheet against the accused alleging that they have committed the offences punishable under Sections 341, 376 IPC and Sections 3(1)(r)(s), 3(2)(v) of
SC/ST (POA) Amendment Act-2015 in Cr.No.54/2016 of Parvathipuram Town
Police Station.
2.The case of prosecution in brief that culled out from the charge sheet is as follows;
The victim/PW1/Arasada Ramanamma is Madiga by caste and she is a resident of Head Post Office Veedhi, Belagam, Parvathipuram. The accused/A1 appointed the victim/PW1as servant maid for bringing three (3) pots of drinking water from outside to their house for a remuneration of
Rs.300/- per month. In the year 2015 from March to August, PW1 worked in the house of the accused and later they stopped her to work as they installed Municipal water tap in their house. But, the accused did not pay the salary of July and August months. When PW1 asked the accused to pay her dues, the accused/A1 took PW1’s cell phone No.9550804671 saying 3 that he will inform her when he will pay the dues. Ever since the accused/A1 used to call PW1over her phone with his phone
Nos.9059786932 and 8099915289, utter obscene words and on one fine day asked her to come to the building under construction situated near rear side of the Government Area Hospital, Parvathipuram on the pretext that he will pay the dues. On that when PW1went there for money, then the accused/A1 said that he is liking her and wants to spend with her and saying so, committed rape on her. She was afraid and did not inform the same to anybody. Like that the accused/A1 used to threaten her and having sexual intercourse with PW1 every time. One day while the
Accused/A1 was calling PW1 over her phone, her husband/PW2 lift the phone to whom the accused/A1 abused, on which when PW2 asked her as to what is the matter, then PW1 informed to him about the happenings.
Then, both of them went to police station and PW1 submitted report.
Basing on her report, PW12/Sub Inspector of Police, Parvathipuram Town
PS registered a case in Crime No.54/2016, under Sections 341, 376 of IPC and Sections 3(1)(r)(s), 3(ii) (v) of SCs/STs (POA) Amendment Act-2015 against the accused. As per ExP10/ the proceedings of Superintendent of
Police, Vizianagaram vide C.No.2795/C2/2016 dated 15.04.2016, PW13 / the then Assistant Superintendent of Police, Parvathipuram, took up investigation and on completion of the investigation, filed charge sheet against the accused for the offence punishable under above referred sections. Hence the charge.
3.This court being the Special Court, took cognizance of the case for the offence punishable under sections 341, 376 of IPC and Section 3(2)(v) of SC, ST (POA) Act against the accused/A1 and Section 3(1)(r)(s) against the accused/A1 to A3, on their appearance, furnished the copies of the case documents to them as required under Section 207 of Cr.P.C, and upon 4 hearing both the parties framed the charges under sections 341 and 376 of the Indian Penal Code and Section 3(2)(v) of Scs & STs (POA) Act, 2015 against the accused/A1 and Section 3(1)(r)(s) against the accused/A1 to A3 and, read over and explained to them in Telugu, to which as they pleaded not guilty and claimed to be tried, commenced trial.
4. During the course of trial, the prosecution has examined 13 witnesses from out of 15 listed witnesses as PWs 1 to 13 and got marked Exs P1 to
P12 on their behalf and Exs.D1 and D2 for defence. After closure of prosecution side evidence, the accused are got examined under section 313 of Cr.P.C., during which they denied the incriminating evidence placed
before them and reported no evidence on their behalf. Thus, the defence
evidence is closed.
5.Heard oral arguments on both sides. Besides submitting oral arguments both the parties filed their respective written arguments.
6.Now, the point for determination is;
“Whether the prosecution could bring home the guilt of
accused/A1 for the offences punishable under sections 341 and 376
of the Indian Penal Code and Section 3(2)(v) of Scs & STs (POA)
Act, 2015 and the guilty of the accused/A1 to A3 for the offence
punishable under Section 3(1)(r)(s), the respective charges
levelled against them, beyond all reasonable doubt ?
7.POINT:- The case of prosecution in nutshell is that the defacto complainant/victim/PW1 belongs to SC/Madiga by community and is member of SC and ST and working as servant maid; that the accused appointed her as servant maid in their house for bringing drinking water to their house for Rs.300/- per month as her remuneration; that she worked in their house from March to August,2015 and later they stopped her to work, but the accused did not pay her remuneration for July and August months, for which when she asked the accused to pay the dues, the accused/A1 took her cell phone number and said that he will inform her when he will 5 pay the dues; and that later the accused/A1 used to call her over phone with his phone and utter obscene words and finally asked her to come to the building under construction near rear side of the Government Area
Hospital, Parvathipuram on the pretext that he will pay the dues, on that when she went there for money, then the accused/A1 committed rape on her, but PW1 did not inform the same to anybody from out of fear, like that the accused/A1 used to threaten her and had sexual intercourse with her every time. It is further case of the prosecution that one day while the accused/A1 was calling PW1 over phone, her husband/Pw2 lifted the phone and asked her about the matter, then informed to him about the happenings and that the accused/A1 to A3 abused PW1 in her caste name for giving the report and thus, the accused/A1 committed the above referred offences.
8.The case of accused/A1 to A3 is entire denial and their specific case is that nothing was happened as alleged, but a false case is foisted against the accused due to money disputes with the accused/A2 at the instigation of the then counselor; and that PW1 is of quarreling nature and habituated to file false cases to grab money and even in this case, she demanded
Rs.1,00,000/- from the accused to withdraw the case and in fact the accused 1 to 3 are not at all residing at Parvathipuram where the alleged offence took place and in fact they are residing in Visakhapatnam, while pleading alibi; and that they are no way connected to the present case. It is also their further case that PWs1 and 2 filed this case as a counter blast to the case C.C.No.213 of 2016 which was filed by the accused/A2 against
PWs1 and 2, when they went to the house of the accused/A2 abused her and PW2/husband of PW1 threatened and tried to molest her regarding money transaction and the people in the vicinity intervened and rescued her.
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9.Thus, the burden heavily lies on the prosecution to prove their case as alleged by ruling out the case of the defence as contended by them refrref to above. Let us see as to whose version is proved to be true and correct.
Before scrutinizing the evidence available on record and analyzing it’s
merits and demerits, it is apposite hereunder to refer the respective contentions raised by both the parties for better understanding.
10. During the course of arguments, the learned Special PP has raised the following points for consideration:
1. The prosecution has proved their case as alleged through Pws 1 to 13 beyond all reasonable doubt since all the material, Medical and other Official witnesses supported the prosecution case;
2. The evidence of Pws 1 to 13 remained unshaken even after due cross- examination since nothing could be elicited by the accused in their favour;
3. All the accused 1 to 3 in this case are not married even though they are aged nearly 40 years because of their bad character and that to satisfy their lust, they are committing such offences;
4. The accused 1 to 3 filed a counter case C.C.No.213 of 2016 against Pws 1 to 3 herein with false allegations as to threaten them to withdraw this case. In fact, they did not rely on the investigation done by the Investigation Officer and given up all the material witnesses and brought new witnesses into their case which probable that the said case is false case;
5. The evidence of material witnesses Pws 1 to 6 is consistent and corroborated with each other proving that all the accused 1 to 3 intentionally insulted, abused PW1 and that the accused/A1 also exploited her sexually and threatened with dire consequences;
6. Minor contradictions and inconsistencies are insignificant and do not effect the core of the prosecution case and should not be a ground to reject prosecution case as laid down in Yogrsh Singh Vs. Mahabeer Singh and others AIR 2016 (4) SC 95;
7. Section 357-A Cr.P.C., recommends compensation to victims in the Award if the accused is convicted, where the victim suffered loss or injury as a result of offence as held in Nipun Saxena Vs. Union of India Ministry of Home decided on 5 th september, 2018;
8. Sole testimony of prosecutrix is sufficient to convict the accused and corroboration is not necessary unless the victim has strong motive to implicate the accused falsely as held in the case of O.M.Baby Vs. State of Kerala in Crl.A.No.133 of 2007 of Supreme Court and Ajay @ Neethu Vs.State of Haryana in Crl.A.No.1196 of 2016 of Supreme Court; 7
9. Atrocities on SC, ST Woman is only because she belongs to such caste as held in Asharfy Vs.State of U.P., in Crl.A.No.1182/2015 of Supreme Court;
10. Omissions to give names of assailants or the names of the witnesses in the FIR is not at all fatal to the prosecution case and non-examination of some witnesses is also not fatal to their case. In support of her arguments, she relied upon the decision of Mothiram Padu Joshi Vs. State of Maharashtra 2018;
11. The relationship is not a ground effecting the credibility of a witness as laid down in the case of Mohabbath Vs. State of MP (2009) 13 SCC 630; and
12. The evidence of the victim/PW1 and other material witnesses is consistent to the extent that the accused are continuing the offence and did not change their attitude even after reporting the case, which is nothing but
additional strength to the prosecution case.
11.With the above back drop, the learned Special PP has argued that the prosecution has established their case as alleged through consistent and cogent evidence of PW1 which is supported by other material and official witnesses Pws 2 to 13. Arguing so, she prayed the Court to convict and sentence the accused for the respective charges levelled against them according to law.
12.On the other hand, the learned defence counsel has raised the following points for consideration :
1. ExP1 report is completely silent about the presence of children of PW1 in the house and the investigation agency did not examine them and no explanation is given for their non-examination, which is fatal;
2. PW3 is a planted witness, while drawing my attention to the attending circumstances;
3. No explanation is given by the prosecution for the delay of FIR, which is fatal;
4. Evidence of PW12/IO who registered the FIR to the extent that there is no delay in the FIR, is proved to be false, while drawing my attention to the relevant attending circumstances;
5. The evidence of Pws 4 and 5 regarding the alleged offence said to have been committed by the accused/A1 against PW1 is proved to be false;
6. The unexplained extraordinary belated report given by PW1 is fatal to the prosecution case; 8
7. Even though PW13 is a high ranking IPS Officer no scientific investigation has been conducted regarding the evidence of PW2 that he produced voice recording between the accused/A1 and PW1 regarding the alleged threatening said to have been made by the accused/A1 against PW1, which is fatal;
8. PW1 is completely silent that she recorded the alleged threats coupled with obscene approaches of A1 against her which falsifies the evidence of PW2 that he produced a voice recording of A1 and PW1 in this regard;
9. Non seizure and non-production of the alleged voice record and failure to send the same to the FSL by PW13/IO, is fatal to prosecution case;
10. Non-production of the call data of the cell phones of PW1 and the accused/A1 and not assigning any reasons for non-production of the same is fatal to prosecution case by which an adverse inference has to be drawn for suppression of the record;
11. Non-production of the relevant call data, in support of the evidence of Pws 1 and 2 that the children of PW1 telephoned to PW1 and informed about the alleged violence said to have been done by the accused/A3 when she and her husband/PW2 went to police station, is fatal to prosecution case;
12. The conduct of PW1 itself shows that she is not reluctant woman and that the alleged sex is consensual only;
13. No reliance be placed on the evidence of PW1, being not trustworthy witness, while drawing my attention to the relevant attending circumstances;
14. Non production of the call data by PW13 in support of the evidence of PW2 that the accused/A1 and A3 telephoned to PW1 and abused PW2, the husband of PW1 when he picked up the said call, is fatal to prosecution case;
15. PW4 is completely silent that the accused/A3 came and beat the husband of PW1 as deposed by PW1. Thus, evidence of PW4 is no way helpful to prove the alleged fact;
16. The evidence available on record clearly proves that PW1 has submitted another report prior to ExP1 report, which is not seen the day light till date and as such, ExP1 report is to be treated as statement of PW1 under Section 162 Cr.P.C.;
17. No reliance be placed on ExP1 report as it came into existence after due deliberations and consultations and thus, the extraordinary unexplained delay has been taken place;
18. The evidence of PW1 and her version in ExP1 report are inconsistent, self contradictory, in-compactable and in-congruous; 9
19. The 164 Cr.P.C., statement of PW1 said to have been recorded by the Learned Magistrate, Bobbili was not filed into the Court nor copy of the same is supplied to the accused, which vitiates the entire trial;
20. No evidence is available on record to prove the alleged caste abuses said to have been made by the accused and that the same was witnessed by the public and without any corroboration from the public witnesses, aplication of Sections 3(1)(r)(s) is unsustainable;
21. Evidence of PW2 is not consistent with the version of his wife/PW1, which proves the case of defence that this false case is foisted against the accused;
22. Admittedly the alleged scene of offence is located in a busy area in which event committing of rape by the accused/A1 against PW1 is not believable and reliable, being un-natural;
23. The version of PW3 is contrary to the version of PW2 which indicate that intentionally this false case is foisted by PW1 to grab money;
24. Evidence of PW5 is no way helpful to prosecution in any angle;
25. Evidence of PW6 strongly proves that Pws 1 and 2 are habituated to extort money only by compromises;
26. Pws 1 to 3 and 6 belong to same caste;
27. The alleged scene of offence is not correct;
28. Prosecution failed to prove that PW1 is SC-Mala by caste beyond all reasonable doubt through PW11;
29. Evidence of PW10/Medical Officer has no evidential value;
30. There are material omissions in ExP1 FIR as per the evidence of PW12;
31. No reliance be placed on ExsP10 and P11 since they are remained on record as unproved, since by mere marking of document it can not be said it’s contents are proved as per decisions reported in 2005 (2) Part II ALD
Crl.806, 2006 Crl.L.J. 824, 1995 Crl.L.J.3100;
32. The investigation done by PW13 is not correct and proper, having many lacaunae;
33. No reliance be placed on the evidence of material prosecution witnesses, being full of material omissions as admitted by PW13; and
34. Regarding the alleged offence under Section 376 of IPC, except the mere ipsi dixit of PW1, there is no supporting circumstantial evidence even. On the other hand, her silence for months together without disclosing the continuous act of rape is rather suspicious.
13.With the above back drop, the learned defence counsel has argued that the prosecution has miserably failed to prove their case as alleged and 10 on other hand, the circumstances of the case referred to above highly probable the defence case as contended by them referred to above. He has further argued that simple oral version of Pws 1 to 3, 6 and 7 regarding the alleged forcible sex of the accused/A1 with PW1 by putting her under threats to life through mobile cells, etc., cannot be accepted under any strength of imagination as evidence until and unless the scientific evidence is produced as held in Tahsildars’s case reported in AIR 1959 Supreme
Court 1012 and once the prosecution failed to prove the alleged offence under Section 376 IPC, the charges under Sections 3(2)(v) of SC, ST (POA)
Act automatically also fails. Arguing so, he prayed the Court to acquit the accused for the respective charges levelled against them.
14.To prove their case as alleged, the prosecution has examined altogether 13 listed witnesses from out of 15 listed witnesses as Pws. 1 to 13 and got marked Exs.P1 to P12 on their behalf and got marked Exs D1 and D2 for accused as stated above.
15.PW1 is the defacto complainant-cum-victim. She submitted ExP1 police report. The learned Additional Judicial Magistrate of I Class, Bobbili recorded her 164 Cr.P.C., statement; PW2 is the husband of PW1. PW3 is mother-in-law of PW1. Both of them are hear-say witnesses to the extent of alleged offence under Sections 341 and 376 IPC, the charges levelled against the accused/A1. According to prosecution, PW3 got personal knowledge about the abusing of her son/PW2 by the accused/A1 and A3 and committed the offence punishable under Section 3(1)(r)(s) of SCs, STs (POA)
Act, 2015. She supported the prosecution case in all respects; Pws 4 and 5 are independent circumstantial witnesses regarding the alleged offence under Section 376 IPC said to have been committed by the accused/A1 against PW1; and Pws 6 and 7 are independent witnesses and they acted as elders and tried to settle the matter between the accused and Pws 1 and 11 2 regarding the present case and the counter case filed by the accused against Pws 1 and 2 herein. All the material witnesses Pws 1 to 7 supported the prosecution case.
16.PW8 is mediator to the scene observation under ExP2 scene observation report; PW9 is photographer and he took bunch of six photographs under ExP3 coupled with CD showing the scene of offence i.e., a building under construction situated at Golla veedhi, Parvathipuram;
PW10 is Medical Officer, who is working as Civil Assistant Surgeon, Area
Hospital, Parvathipuram. She examined PW1 and issued ExP4 wound certificate; PW11 is the then Tahsildar, Parvathipuram. He issued Exs P5 to P7 showing the caste particulars of the victim/PW1 under ExP5 and that of the accused 1 to 3 under Exs P6 to P8; PW12 is the then S.I. of Police,
Parvathipuram Town. He registered the case in Cr.No.54 of 2016 under
Sections 3(1)(r)(s) and 3(2)(va) of SC, ST (POA) Amendment Act and
Sections 341 and 376 IPC and issued ExP9 original FIR. Exs D1 and D2 i.e., Xerox copy of charge sheet in C.C.No.213 of 2016 and Xerox copy of receipt No.151 of 2016 dated 04.03.2016 are got marked through PW12; and PW13 is the then Assistant Superintendent of Police, Parvathipuram.
ExP10 is the proceedings issued by SP vide C.No.2795/C2/2016, dated 15.04.2016, ExP11 is the rough sketch and ExP12 is the potency certificate of the accused/A1 are got marked through him.
17.Thus, it is clear that Pws 1 to 7 are material witnesses and rest of the witnesses Pws 8 to 13 are Medical and Official witnesses and Investigation
Officers. As stated earlier all the material witnesses Pws 1 to 7 supported the prosecution case. Admittedly, Pws 1 to 3 are the close relatives to each other since PW2 is the husband of PW1/victim and PW3 is mother of PW2 and mother-in-law of PW1. Thus, undoubtedly they are interested witnesses. However, their evidence shall not be thrown out on the simple 12 ground that they are interested witnesses, being close relatives to each other but their evidence shall be scrutinized in strict sense and if, any doubt arises regarding their trustworthiness and credibility, automatically the benefit of doubt goes to the accused.
18. In view of the contentions of both the parties referred to above, it is apposite hereunder to refer the recitals of ExP1 FIR, 164 Cr.P.C.,
Statement of PW1 and the oral evidence of material witnesses PWs 1 to 7 as it is for better appreciation and understanding being relevant;
The recitals of ExP1 FIR submitted by PW1 reads as follows :
“గరవనయలలన పరరతపరర టన పలస ససషన S.I. గరక పరరతపరర బలలర హడ పసస ఆఫస వధల నవసమరటనన ఆరసడ రవణమమ W/o. Sreenu, SCమదగ కలర నమససరససస వవసకనన రపరస అరశమల అయయ నన పరరతపరర హడ పసస ఆఫస వధల న భరసశన, ఇదదర పలలలత జవసససయననన. నన ఇరట పనల చసససరటన. న భరస శనవసరవ భవన నరమణ కరమకడ గ చససస జవనమ సగసససననమ. 2015 సరవతతరమల బలలర హడ పసస ఆఫస వధల నవసమరటనన పరక హర ఇరటల పనక నమతసర రమమనగ రజక 3 బరదల నటక నలక ౩౦౦/ రసపయల డబబల ఇవరరనక మటల డకననన 2015 మరర నరడ ఆగషసవరక పరక హర ఇరటల పన చశన. తరరత వర ఇరటక కళయ వసకననరదన నక పన మన వయమన చపప జలల, ఆగషస నలల జతమ నక ఇవరలద. నన ఆ బకయ పన డబబల పరక హరన అడగగ న యకస సల ఫన నరబర అడగగ న ఫన No.9550804671 న పరక హరక ఇవరగ న యకస డబబల ఎపడ ఇసస న అనద ఫనల తలయపరసస న అన చపపనడ. అరతట పరక హర తన యకస ఫన నరబరల9059786932, 8099915289 తనక ఫన చస నతఅసభయకరరగ మటల డతస ఏరయ ఆసపతత నరమణర జరగతనన భవనర దగలరల గల ఇరట దగలరక వసస బకయల డబబల ఇసస నన చపపనర. అరతట నన డబబల కరక వళలగ పరక హర నవరరట నక ఇషసర, నత గడపలన వరద అన ననన పటస కన బలవరతర చసడ. నన భయపడ ఎవరక చపపలద. అల చలసరలఫన ల భయపటస అనభవసససనర. ఒక రజ నక ఫన చసససరడగ న భరస శనవసరవ ననన నలదయగ నన జరగన వషయర న భరసక తలయ చసనన. వరటన న భరస పరక హరన జరగన వషయర గరరచ అడగగ మల లరజ కడక ననన అడగతవ అన తటస కలర పరత దసషరచ భయపటసనర. నక దకస వనన దగలర చపపక అన చపపనడ. ఈ వషయర మ పపకస ఇరటల ఉరటనన మడధన కమర, మరపక గరలక కడ తలస. తరరత పదదల దగలర మటల డకరదర అన అడగగ అరదక మమ అరగకరరచ పరరతపరర మనతపలట వలస చలరమన జయబబ గర దగలర పటసగ జరగన వషయరపల పదదల పరక హర క నవర చసనద తపప, కమరచమన అడగ ఇకపల అల పపవరసరచన అన చపపమనగ అరదక పరక హర అరగకరరచక పగ దకసనన చట చపపకరడ అన వళళపయనర. అపపటనరడ రజ పరక హర మమమలన అసభయకరరగ తడతననడ. కలర పరత దసషరచచననడ అరత కకరడ హర చలల పరక శదవ ఇలల ఊడరన తకసన బయట పరవయటక నన వళలగ ననన చసస తటసడర మదల పటసరద. ఎరదక తడతననవ అన నన అడగగ గట బయట వనన ననన గట లపల వనన శదవ న జటసపటస కన కటసనద. అరతకకరడ న పన నమతసర నన బయటక వళళనపడలల పరక హర, పరక శదవ మరయస హర అననయయ పరక రమకకషష ల SC మదగ దనవ నవర ఏమ చయలవ అన అడడగరచ అసభయకరరగ తటస మటల డ బధపడతననర. కవన పల మగలర పల తగ చరయ నమతసర ఈ దనర అనగ త 15.04.2016 దనర మక ఈ రపరస దరర తలయ చసకరటననన.
13 ఇటల తమ వధయరల ఆరసడ రవణమమ 9550804671.
164 Cr.P.C., statement of PW1obbili Magistrate reads as follows :
“ Six months prior to August, 2015 I used to work in the house of one Penki Hari, S/o Ramulu in Head Post Office Street, Belagam, Parvathipuram i.e., for pouring water in their house from the public water tap. Thereafter the said Penki Hari fell due to give salary for two months to me. He asked me not to work in his house as he has erected water tap in his house. The said Hari stated that he will give my salary as and when he receives his father’s pension amount and took my phone number also. After ten days the said Hari gave telephone call to me stating that he will give my salary and he asked me to come near the Government Hospital. When I went there, the said Hari asked me to fulfill his lust for giving the said salary to me. On that I abused him and came back. Thereafter I started doing domestic work in two houses. Whenever I used to go to any place for my work, the said Hari used to follow me and he used to threaten me if I did not fulfill his lust, he will see the end of my family members. On that I was compelled to have sexual intercourse with him keeping in view the reputation of my family in the village. On one day, the said Hari gave telephone call to me but the same was lifted by my husband. The said Hari abused my husband. On that when my husband questioned me as why he was abusing him, I narrated the entire facts to my husband. On that myself and my husband gave report in Parvathipuram Town PS. On knowing about the report, the said Hari sent his brother Ramakrishna to my house who questioned my husband about giving report and further he beat my husband Srinivasarao with hands. Further the younger sister of Penki Hari by name Penki Sridevi caught hold of my hair and beat me with her hands on my back. Further the said Penki Hari, his brother Ramakrishna, sister Sridevi abused me and my husband in the name of our caste as “SC danivi nuvvu eti cheyyalevu”. Thereafter I again gave report to the police. The above incident took place three months back. Sd/ Arasada Ravanamma Evidence of PW1 reads as follows :
“ LW2 Srinivasa Rao is my husband. LW3 Mahalakshmi is my mother inlaw. I know Lws 4 to 7 named in the charge sheet. I know the accused Nos 1 to 3. I worked as servant maid in some houses. I have one son and daughter. My husband is a mason. The accused is acquainted to me for the reason that I was requested to provide water cans to the house of Penki Hari from the street tape which is fresh water. It was agreed for Rs.300/ per month to provide three pots of water every day. For about six months, I provided the water. He gave 4 months amount and failed to pay the other two months amount. Later said that he has got water connection and no need to provide water. When I asked for the two months amount he said after receiving his father’s pension he will give. He ad taken my phone number. After 10 days he telephoned me and asked me to come to Government Hospital back side at Parvathipuram where there is under construction house in order to take the amount. The Penki Hari said “ NEE MEEDA NAAKU 14
KORIKA VUNNADI NAA KORIKA NUVVU THEERCHU ANI NAA MEEDA
CHEEYYIVESI BUGGAPAINA KOTTI BALAVANTHAM CHESAADU”. I said I am not that type of woman. Then he said ‘ NUVVU KADANTE NEE PILLALNI
SCHOOL NUNCHI RAANIVVAKUNDA CHESTAANU, NEBARTHANI
PANIKELLINAVAADINI ROWDILANIPETTI KOTTINCHESTAANU AND NINNU
KOODA CHAMPISTAANU’. He forcibly committed sex on me. Every week he used to phone me to come there and used to commit forcible sex on me for four months. Thereafter one day in the afternoon he telephoned at which time my husband lifted the phone. Since they both know each other my husband asked his welfare. Then Hari had given the phone to his brother. Since my husband heard that Hari is not well he enquired with the brother of Hari named Ramakrishna/A3 about his welfare. A3 was in drunken state and asked my husband to get ready with liquor and he is coming to our house. Hari also abusing from the side then my husband asked me why they were abusing us. Then I revealed what had happened. Afterwards we went to lodge a complaint. A3 came to know that we went to police, he went to our house and asked who is Srinu. My children were afraid of and telephoned us. Then we came back after lodging complaint. On the said night, A3 came and beat my husband which was witnessed by my neighbour named Kumari/LW4. Later elders called us for Panchayat in the presence of Jayaprakash/LW5 and others but the accused did not admit their wrong and said to do what can we do. Afterwards where ever I was found the accused used to abuse me. Their sister Sridevi also abused for lodging complaint against her brothers as “ NUVVU MAADIGA DAANIVI EMI CHEYYALEVU. When I asked why she was abusing and she is also a lady then she caught my tuft and beat me outside her house gate. ExP1 is my report signed by me. I received Rs.75,000/ from the Government after filing this case. Police referred me to the hospital where I was checked by a lady doctor. Police examined me and recorded my statement”.
Evidence of PW2 reads as follows :
“ PW1 is my wife. I know the accused. LW3 Varalakshmi is my mother. I know LW4 to LW8. One day, A1 telephoned to my wife. I was there and lifted the phone. He said that he is Penki Hari. As I came to know he was not well I asked his welfare. Then he had given telephone to his brother Ramakrishna who asked me to get ready with quarter liquor and he will come. Penki Hari from the side saying “ AA DENTI NAA EEKALU PEEKUTAADU”. Then I asked my wife why there are talking so. My wife revealed that Hari called her saying that he will give the coolie amount and when she went there he forcibly committed rape on her and whenever she refused after calling her he used to threaten her. Then we both went to police station. On the same day in the evening A3 beat me coming to our house. We were called to the vice chairman Jaya Babu but the accused did not present. After one month again both were called and A1 and A3 admitted the wrong committed by them. Then the mediator asked what I want. But I did not like to receive any cash for the wrong and I wanted for a case thereby the case continued. Police examined me and recorded my statement”.
Evidence of PW3 reads as follows :
“ Pws 1 and 2 are my daughterinlaw and son. I know Lws 4 to 7 named in the charge sheet. I know all accused standing in the court hall. My 15 daughterinlaw was engaged to provide water to the house of accused about three years back. She served for about 7 or 8 months. They failed to pay the rent for 2 or 3 months for providing water. Then Hari telephoned to her but my son received the call and Hari said something. The brother of Hari taken phone and claimed quarter bottle from my son calling him “ orey, and that he will come in the night”. Then my son beat his wife saying that every time she was going to them under the guise of getting wages for her work and what was going on. She informed that the said Hari called her many times and threatened her that he will kill her children and husband if she does not obey him. It is for “ Amenu Longadisukundiki”. Then my son and daughterinlaw went to police station. Mean while the brother of accused went to my neighbours house and abused in filthy language for complained against them and when they said that it is not Srinu’s house, he came to our house and asked “ edi vadu, a Lanja koduku ekkada vunnadu”. Myself, my grand daughter and grand son were there by that time. My grand daughter telephoned to her parents due to fear. By the time, Pws 1 and 2 reached home he escaped. On the same day at about 7.30 pm, both the brothers came on a bike to our house and beat my son calling as “ Madiga, Mala Lanjakodaka, maa into paniki vochi, maa paine kesu pedatava”. Later the accused themselves taken us to one Jayababu/LW5 before him they admitted their wrong that they misbehaved and used her sexually and later they have taken us to the CI of Police. Police called us separately and afterwards sent us away. The accused made us to roam round the mediators and police for about one month. Then we went to the ASP, then only police took action. Police examined me and recorded my statement”.
Evidence of PW4 reads as follows :
“ I work in Surya Hotel, as labourer. My husband is a painter. I know Pws 1 to 3 and Lws 5 to 8 named in the charge sheet. I know one out of the accused. The witness has shown accused No.1 (Hari). My house is adjacent to the house of PW1. Every day I go to work and return by 7 pm, I had seen PW1 and the accused No.1 conversing each other many times near the back side of the hospital. I heard from general public that PW1 and A1 were having some contacts. As I am her neighbour, I know that PW1 and her husband quarrelled and she was beaten by him after receiving the phone call from A1. PW1 used to supply water to the house of A1. Police examined me and recorded my statement”.
Evidence of PW5 reads as follows :
“ I know PW1 and 2, PW4 and LW5 Jayaprakash. I do not know PW3. I know the accused. As they reside in my street. About 3 or 4 years back, I was taking the clothes as a washer man and at that time, I had seen PW1 and accused No.1 near Sub Jail, Parvathipuram, another time I had seen both at Post Office. I had seen them together for about 3 times. I do not know the reason for the quarrel between PW1 and her husband. I used to hear the quarrel as the house is nearby. I know the house owner Prabhakara Rao who comes once in six months to take the rent. Hari used to come and call Ramanamma for providing water. I had seen Hari and Ramanamma talking to each other. There houses are near to one another in the same street. Police examined me and recorded my statement”.
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Evidence of PW6 reads as follows :
“ By profession I am a Carpenter. I know Pws 1 to 5 and LW5 Jayaprakash. I know all the accused. About 3 years back one day one person named Penki Hari/A1 phoned me and said that his sister was harassed by a person named Srinivasa Rao I said to lodge a complaint before police and I also come to police station. I met him at the police station at which time A1, A2 and their father were there. PW1 and 2 were also present. Since they are all my ward members I went there. I asked PW1 and PW2 as to why they came. PW2 said that A1 indecently behaved with his wife and also physically contacted her. I requested the S.I. to grant three days time to settle the matter between them. One Jaya Prakash/LW5 is my Municipal Vice Chairman, Parvathipuram and called both parties LW5 asked what had happened. When PW2 said the same thing, A1 denied. Then PW2 brought a cell and made us to hear the voice record about the conversion between accused and PW1. We heard small discussion in the voice of A1as “ Nuvvu Raakapothe Nee Pillalni, Nee Aayanani, Bhatakanivvanu”. But A1 denied that it is his voice. Again when we asked him repeatedly, he admitted it is his voice. The both sides were called two or three times but though PW1 and PW2 present, the accused did not turn up. PW1 and PW2 used to ask us to compromise. Since the accused did not turn up, I advised them to file a complaint before police. I know the house owner of accused named Prabhakar. PW1 used to work in the house of A1. I do not know who entrusted the work to PW1. Police examined me and recorded my statement”.
Evidence of PW7 reads as follows :
“ I am a document writer and I am Vice Chairman in Municipality of Parvathipuram. I know Pws 1 to 6. I know A1 and A2 standing in the court hall. I do not know the third person/A3. In the year 2016, Pws 1, 2 and accused had some dispute. PW6 went and requested time from police to compromise the matter. Both parties approached me. When I asked the dispute, PW2 Srinivasa Rao and made me to hear some cell conversation of A1 with PW1. I asked A1 whether the voice is his voice. He denied it. The conversation is “ NUVVU PILAVAGAANE RAAKAPOTHE NEE BHARTHANI PILLANI CHAMPISI NINNU TEESUKU VELTAANU”. Both sides quarrelled and the meeting was postponed. Two or three sittings held. A1 denied his cell number and voice. When I insisted him that his voice in the cell is similar to his language used by him generally and asked him to say truth, he kept quite. Then I took it as granted. I asked them to get compromise the matter by paying some compensation. But later they did not come to me. But PW1 and 2 came to me and asked what to do. Since, no fruitful result I asked them to go to police. Police examined me and recorded my statement”.
19.The first question falls for consideration is as to whether the prosecution has proved the respective castes of PW1 and the accused as alleged to attract the provisions of SCs & STs (POA) Act. In order to prove the same, the prosecution has relied upon the sole evidence of PW11/the then Tahsildar, Parvathipuram, an independent Official witness coupled with
Exs P5 to P8 Caste particularsissued by him. ExP5 caste particulars 17 issued by PW11 shows that PW1 belongs to SC Madiga and as per Exs P6 to P8 caste particulars the accused/1 to 3 belong to BC-D Turpu Kapu.
PW11 has supported the case of prosecution in this regard. Oral evidence of PW11 shows that on the requisition of police, he issued Exs P5 to P8 caste particulars showing that PW1 belongs to SC Madiga and the accused 1 to 3 belong to BC D Turpu Kapu.
20.Thus, the evidence of PW11 referred to above is not only supported by
Exs P5 to P8 caste particulars but also remained unshaken even after due cross-examination. Thus, I find no reasons to disbelieve the evidence of
PW11, having not attributed any motive against him. Therefore relying upon the evidence of PW11 coupled with ExsP5 to P8 caste particulars, I hold that the prosecution has proved that PW1/victim is SC Madiga and the accused 1 to 3 are BC D Turpu Kapu by caste as alleged beyond all reasonable doubt.
21.The next question falls for consideration is whether the prosecution could prove that the accused/A1 to A3 threatened and abused PW1 by touching her caste to attract the offence punishable under Section 3(1)(r)(s) of SC, ST (POA) Amended Act, 2015, the charge leveled against them. To answer the same, it is relevant to consider the recitals of ExP1 FIR, 164
Cr.P.C., statement of PW1 and the oral testimonies of PWs 1 to 7.
22.In ExP1 FIR, dated 15.04.2016 submitted by PW1, it is mentioned that when PW2/the husband of PW1 questioned the accused/A1 about the offence under Section 376 IPC committed by him against PW1, he/A1 abused him as to how dare he is to question him and also abused him/PW2 in his caste name as ‘Mala Lanja Kodaka’ and that the same said fact is known by her neighbours namely Mudidana Kumari/PW4 and Muripaka
Gowri/PW5. But PW1 did not state the same said fact in her 164 Cr.P.C., statement, but she has simply stated that the accused/A1 abused PW2/her husband.
23.That apart surprisingly, even in her oral evidence, PW1 did not whisper the above fact as reflected in ExP1 FIR referred to above. But she 18 has stated that one day in the afternoon, the accused/A1 telephoned to her but her husband lifted the phone and since they both know each other, her husband/PW2 asked his welfare on which, the accused/A1 gave the phone to his brother/A3 and since PW2 heard that the accused/A1 is not doing well, he enquired with the brother of the accused/A1 namely
Ramakrishna/A3 about his welfare and at that time, the accused/A3 was in drunken state and asked PW2 to get ready with liquor and he is coming to their house and at that time the accused/A1 was abusing from the side on which PW2 asked her as to why they are abusing them. Thus, it is an evident fact that PW1 did not whisper in her oral evidence also that the accused/A1 and A3 abused her husband/PW2 by touching his caste.
24. In his oral evidence, PW2 gave different version in this regard by stating that one day the accused/A1 telephoned to his wife and he lifted the said phone as he was there and as he came to know that he was not doing well, he asked his welfare, then the accused/A1 gave phone to his brother/A3, who asked him to get ready with quarter liquor and he will come and at the same time, the accused/A1 from the side saying ‘Aa denti naa eekalu peekuthadu’ on which he asked PW1 as to why they are talking so. Thus, the fact that remained is even PW2 did not whisper that the accused/A1 and A3 abused him by touching his caste. For the sake of argument, even if it is believed that the accused/A1 and A3 abused PW2 by touching his caste on phone, it does not attract Section 3(1) (r)(s) of SC, ST
Act since such abuse is not in public view.
25.Except the above evidence, the other material witnesses Pws 3 to 7 more particularly, Pws 4 and 5 did not whisper about the alleged incident as reflected in ExP1 FIR and as stated by Pws 1 and 2, having no personal knowledge about the same. Thus, I ignored the relevant recitals of ExP1 FIR referred to above, having not proved having lack of corroboration.
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26.In ExP1 FIR, it is further mentioned that the matter was placed before the elders but in-vain, since the accused/A1 did not accept the offence under Section 376 IPC committed by him against PW1 and ever since, he followed and abused them in filthy language and also abusing them by touching their caste. ExP1 FIR further shows that besides that the accused/A2, who is the younger sister of the accused/A1 started abusing
PW1 whenever she comes out to throw the garbage and when she questioned her as to why she is abusing her, the accused/A2 caught hold her hair and beat her and that apart whenever she goes out for work, all the three accused 1 to 3 abusing in filthy language and also by touching her caste and threatening her that she, being SC/Madiga cannot do anything to them.
27.The same said facts referred to above are also reflected in her 164
Cr.P.C., statement of PW1, by stating that on coming to know that the accused/A1 committed rape on her, her husband/PW2 and herself gave police report in Parvathipuram Town PS and knowing about the said report, the accused/A1 sent his brother/A3 to her house, who questioned PW2 about giving report and further he beat her husband/PW2 with hands; that the accused/A2, the younger sister of the accused/A1 caught hold her hair, beat her with hands on her back and that all the accused/A1 to A3 abused her and her husband/PW2 in the name of their caste as “SC Daanivi, nuvvu eti cheyyalevu” and thus, she/PW1 again gave report to the police and that the above incident took place three months back.
28.Thus, according to her own 164 Cr.P.C., statement, PW1 gave two police reports viz., one report regarding committing the rape said to have been committed by the accused/A1 on her and the 2nd report is regarding the subsequent offences after the police report said to have been committed by the accused/A1 to A3 against Pws 1 and2. Irrespective of the 20 truth or otherwise of the said subsequent events, the fact that remained is that except ExP1 report, the other report said to have been given by PW1 is not seen the day light till date by which an adverse inference can be drawn and created any amount of doubt about the prosecution case that if the said report seen the day light, the same would be against to them.
29.Be that as it may, as per her own 164 Cr.P.C., statement of PW1 the fact that remained is all the accused/A1 to A3 abused Pws 1 and 2 by touching their caste after the submitting the report by PW1 regarding the alleged offence under Section 376 IPC said to have been committed by the accused/A1 on PW1. As per her own evidence of PW1, she submitted Ex P1 report immediately after coming to know by her husband/PW2 about the offence under section 376 of IPC said to have been committed by the accused/A1 on her. If really that be the case, the subsequent events said to have been occurred after submitting ExP1 report ought not have reflected in ExP1 report. But contrary to that, ExP1 report reflects all the subsequent incidents and offences said to have been occurred after submitting said report which is absurd. In Ex P1 report it is mentioned that after coming to know about the offence under section 376 of IPC said to have been committed by the accused/A1 on PW1, when they were asked to settle the matter before the elders, they accepted the said proposal and placed the matter before Parvathipuram Municipal Vice Chairman Jayababu/PW7 during which the elders warned the accused/A1 that what he did is wrong and asked him to apologize PW1 and to state that he will not behave towards
PW1 in such manner, for which the accused/A1 did not accept and left the place asking them to tell to whom they want and ever since the accused/A1 followed and used to abuse them in filthy language and also by touching their caste and other happenings that were happened subsequently, which created any amount of doubt regarding the version of PW1.
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30. Coming to her oral version, PW1 has stated that when she and her husband/PW2 went to police station to lodge a complaint against the accused/A1, his brother/A3 went to their house and asked who is ‘Srinu’, on which their children afraid of and telephoned them, then they came back after lodging the complaint and on the said night, the accused/A3 came and beat her husband/PW2 which was witnessed by her neighbour named
Kumari/PW4 and thereafter the elders called them for panchayat in the presence of PW7/Jaya Prakash and others, but the accused did not admit their wrong and asked to do what they can do. and that thereafter where ever she was found, the accused used to abuse her and their sister/A2 also abused for lodging complaint against her brothers as ‘Nuvvu Maadiga daanivi, emi cheyyalevu’ and when she asked the accused/A2 as to why she was abusing, then she caught hold her tuft and beat her outside of her house out gate.
31.After going through the relevant oral evidence of PW1 referred to above, it is clear that PW1 did not whisper any incriminating against the accused/A1 and A3 that they abused her in filthy language and also by touching her caste particularly after giving ExP1 report as reflected in ExP1
FIR and in her 164 Cr.P.C., statement referred to above, but she has only stated that the accused/A2 abused her by touching her caste. But the evidence of PW1 to that extent is nothing but an improvement, being material omission since PW13/IO has admitted that PW1 did not state
before him the same said fact. Thus, no reliance be placed on the evidence
of PW1 to the extent that the accused/A2 abused her for lodging complaint against her brothers as “Nuvvu Maadiga Daanivi, emi cheyyalevu”, being an improvement, being material omission.
32. Thus, I hold that the prosecution has failed to establish that the accused/A1 to A3 abused Pws 1 and 2 in filthy language and also by 22 touching their caste as alleged beyond all reasonable doubt and thereby failed to establish that the accused/A1 to A3 committed the offence punishable under Section 3(1)(r)(s) of SC, ST (POA) Amendment Act, 2015, the charge levelled against them.
33.Coming to the offence punishable under Section 341, 376 of IPC and
Section 3(2)(v) of SCs, STs (POA) Amendment Act, 2015 said to have been committed by the accused/A1, in ExP1 report submitted by PW1, it is mentioned that PW1 is residing with her husband/PW2, her children at Head
Post Office Street, Parvathipuram; that she was a servant maid; that her husband is working as a house construction labour, who eke out their livelihood; that in 2015, she was engaged in the house of the accused/A1 situated at Head Post Office Street to provide 3 pots of drinking water for a monthly remuneration of Rs.300/- and accordingly she worked in his house from March to August and later, they stopped her for providing the drinking water as they got Municipality tap connection but she was not paid the remuneration for the months of July and August and then she asked the accused/A1 for the said due amount payable by the accused/A1, he took her phone number 9550804671 stating that he will inform as to when he will pay the said dues and ever since, the accused/A1 used to call her phone through his phone numbers 9059786932, 8099915229 and utter obscene words and asked her to come to a building under construction situated near Area Hospital, then he will pay the dues. On which, she went there then the accused/A1 stated to her ‘ Nuvvante Naku Istam, Neetho gadapalani vundi ani nannu pattukoni balavantham chesadu’, but she did not reveal the same to any one out of fear and like wise, the accused/A1 put her under threat and enjoyed her sexually for several times.
34.In her 164 Cr.P.C., statement PW1 has stated the same facts noted above as Ex P1 report. In addition to that PW1 has further stated that when 23 she went to the building under construction situated on the rear side of the
Governments Hospital for the dues payable by him, the accused/A1 asked her to fulfill his lust to pay her dues on which she abused him and came back and thereafter, she started doing domestic work in two houses and whenever she used to go to any place for her work, the accused/A1 used to follow her and threaten her if she did not fulfill his lust, he will see the end of her family members and thus, she was compelled to have sexual intercourse with him keeping in view of the reputation of her family in the village. This threatening part as stated by PW1 in her sec 164 Cr.P.C statement noted above is not at all reflected in her ExP1 FIR, which created any amount of doubt about the alleged threatenings.
35.Coming to the oral evidence regarding the offence punishable under
Sections 341, 376 IPC and Section 3 (2) (v) of SCs, STs (POA) Amendment
Act, 2015, PW1 has stated the same set of facts as in ExP1 FIR and her 164
Cr.P.C., Statement by stating that when she went to the Government
Hospital back side at Parvathipuram where there is an under construction house to take her dues payable by the accused/A1, he stated to her ‘ Nee
Meeda Naku korika vunnadi, naa korika nuvvu teerchu” and naa meeda cheeyyi vesi, bugga meeda kotti balavantam chesadu”, then she said to him that she is not that type of women on which the accused/A1 threatened her “ Nuvvu kadante, nee pillani school nunchi raanivvakunda chestanu, nee bhartani panikellina vadini rowdylani petti kottinchestanu and ninnu kuda champestanu” and threatening so, he forcibly committed sex on her and every week he used to call her over phone to come there and used to commit forcible sex on her for four weeks. The above threatening words in specific are not at all reflected in ExP1 FIR and so also in her 164 Cr.P.C., statement though the threatenings are reflected therein.
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36.PW2 who is the husband and PW3 who is mother-in-law of PW1 are not having any personal knowledge about the same and that they are hear-say witnesses as they came to know the said facts only through PW1, hence, their evidence is no way helpful to prove the case of the prosecution in this regard.
37.Pws 4 and 5 are the neighbours of Pws 1 and 2 and that they are circumstantial independent witnesses. They both supported the prosecution case in this regard. Evidence of PW4 shows that her house is adjacent to the house of PW1 and she knows only the accused/A1 but not other two accused. She has further stated that every day she goes to work and return by 7.00 pm and she had seen PW1 and the accused/A1 conversing each other many times near back side of the hospital and she heard from general public that PW1 and A1 are having some contacts and she, being her neighbour knows that PW1 and her husband quarrelled with each other and PW1 was beaten by him after receiving the phone call from A1 and PW1 used to supply water to the house of accused/A1. Her evidence remained unshaken to that extent even after due cross-examination.
38.Evidence of PW5 shows that she knows Pws 1 and 2 as they reside in her street ; that about 3 or 4 years back, when he was taking the clothes for washing as a washer man, he had seen PW1 and the accused No.1 near Sub
Jail, Parvathipuram and another time he had seen both at Post Office and like wise he had seen them together for about 3 times, but he did not know the reasons for the quarrel between PW1 and her husband/PW2 and he used to hear the quarrel as their house is nearby and that the accused/A1 used to come and call PW1 for providing water and all their houses are near to one another in the same street. Even the evidence of PW5 to that extent remained unshaken even after due cross-examination.
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39. Thus, the evidence of PW1 if read with the evidence of Pws 4 and 5 coupled with the recitals of ExP1 FIR and 164 Cr.P.C., statement of PW1 without any hesitation, I hold that the prosecution has proved that the accused/A1 had sexual intercourse with PW1 on several times, but now the question falls for consideration is as to whether PW1 is a consenting party for that sex or whether it amounts to rape since PW1 has stated that the accused/A1 had sexual intercourse with her for several times forcibly by putting her under alleged threats and as to whether the alleged threats said to have been made by the accused/A1 against PW1 as alleged by her are true and correct is to be seen.
40.As stated earlier in ExP1 report, there is no whisper at all that the accused/A1 threatened PW1 much less under specific words as stated by her either in her 164 cr.P.C., statement or as stated in her oral evidence which created any amount of doubt since if really the accused/A1 put her under threat and had sexual intercourse with her, PW1 ought to have mentioned the same said fact in her ExP1 statement which moved the criminal law into motion.
41.But, PW1 has stated for the first time about the alleged threatenings in her 164 Cr.P.C., statement which was recorded on 16.07.2016 i.e., about 3 months after ExP1 report without any explanation as to why she did not mention about the said threatenings in her ExP1 statement which created any amount of doubt about the alleged threatenings and it can be said that the alleged threatenings are nothing but an improvement taking advantage of the delay of three months in recording her 164 Cr.P.C., statement.
42.Be that as it may, in her 164 Cr.P.C., statement, PW1 has stated that the accused/A1 threatened her that he will see the end of her family members and compelled her to have sexual intercourse with him. But when comes to her oral evidence, which was recorded on 05.02.2019 i.e., 26 about 2 ½ years after her 164 Cr.P.C., statement, PW1 stated that the accused/A1 threatened her ‘Nuvvu kadante, nee pillalni school nunchi raanivvakunda chestanu, nee bhartani, panikellinavadini rowdylani petti kottistanu and ninnu kuda champestanu’. Thus, it is evident fact that PW1 is not consistent and changed her version from time to time. More so, evidence of PW1 to that extent is nothing but an improvement, being material omission, since PW13/IO has clearly admitted in his cross- examination that PW1 did not reveal in her statement that if she does not agree to fulfill his lust, the accused/A1 threatened her that he will see the end of her children, who go to school and also to see the end of her child and her husband and that every week, he used to telephone her to come there and used to commit forcible sex on her for four months. Thus, taking into consideration of all these facts, without any hesitation, I hold that PW1 is not trustworthy to rely upon particularly to the extent that the accused/A1 had sexual intercourse with her forcibly by putting her under threat. Therefore, I hold that PW1 is a consensual party and thus, the sexual intercourse of A1 with PW1 does not amount to rape.
43.That apart, it is an evident fact that as per the version of PW1, the alleged incident of rape by the accused/A1 on her was committed after
June, 2015 and she gave a report under ExP1 on 15.04.2016 i.e., about ten months after the alleged incident and more particularly only on the initiation of her husband/PW2. Evidence of PW1 shows that one day in the afternoon, the accused/A1 telephoned to her, but the same was lifted by her husband/PW2 and at that time on his enquiry only, she revealed to
PW2 what was happened and thereafter, they went to police station and lodged the complaint.
44.Even the evidence of PW2 is in the same lines as stated by PW1. His evidence also shows that on that day,the accused/A1 telephoned to his wife 27 and he lifted the said phone as he was there and he asked the accused/A1 about his welfare as he came to know that he is not doing well, then he/A1 gave telephoned to his brother Ramakrishna/A3, who asked him to get ready with quarter liquor and he will come there in the mean while, he listened the accused/A1 from the side was saying “ Aadenti naa eekalu peekuthadu”, then he asked his wife/PW1 as to why they are talking like that, on which PW1 revealed that the accused/A1 forcibly committed rape on her and whenever she refused to fulfill his lust, the accused/A1 used to threaten her and thereafter they both went to police station.
45. Thus, it is proved that apparently and evidently, there is a delay of more than ten months in giving the report by PW1 from the date of the alleged offence of rape said to have been committed by the accused/A1 on
PW1 and more particularly only on the initiation of PW2. Even it is not the evidence of PW1 that she has informed the said threatenings to any one other than her husband/PW2. Medical evidence under ExP4 wound certificate coupled with the oral evidence of PW10/Civil Assistant Surgeon,
Parvathipuram Area Hospital shows that PW1 is habituated to sexual intercourse and that no injuries are found on external genitalia. Thus, all these circumstances proved that PW1 is a consensual party and that there are no threatenings on the part of the accused/A1 to have sexual intercourse with her.
46.Pws 6 and 7 are the elders before whom the matter was placed for settlement. They both supported the prosecution case in this regard.
Evidence of PW6 shows that about 3 years back, one day the accused/A1 telephoned to him and said that his sister was being harassed by the accused/A2 on which he advised him to lodge a police complaint and further stated to him that he also will come to police station and accordingly, when he went to police station, the accused/A1, A2 and their 28 father were there and Pws 1 and 2 were also there. Then when he asked
Pws 1 and 2 as to why they came there, PW2 stated that the accused/A1 indecently behaved with his wife/PW1 and also had physical contact with her on which he requested the S.I. of Police to grant three days time to settle the matter between them and thereafter their Municipal Vice
Chairman, Parvathipuram Jayaprakash/PW7 called both the parties and asked what was happened on which, when PW2 said the same fact, the accused/A1 denied, then PW2 brought a cell and made them to hear the voice record about the conversation between PW1 and the accused/A1 and they heard small discussion in the voice of the accused/A1 as “ Nuvvu raakapothe, nee pillalni, mee aayanni batakanivvanu, but the accused/A1 denied his voice, but when they asked him repeatedly he/A1 admitted it is his voice and both sides were called 2 or 3 times, but, though Pws 1 and 2 present, the accused did not turn up and Pws 1 and 2 used to ask them to compromise the matter, but in vain since the accused did not turn up and as such he advised Pws 1 and 2 to file complaint.
47.But the evidence of PW6 to the above extent is nothing but an improvement, being material omission since in his cross-examination,
PW13/the IO has clearly admitted that PW6 did not state before him about the cell discussion and that the accused/A1 has admitted his voice in the cell phone as referred to above.
48.PW7 is B.Jayaprakash Narayan, the then Vice Chairman in Municipality of Parvathipuram. His evidence is also in the same lines as stated by PW6.
PW7 has stated that in the year 2016, Pws 1 and 2 and the accused had some dispute and PW6 went and requested time from police to compromise the matter and both the parties approached him and when he asked about the dispute, PW2 made him to hear some cell phone conversation of the accused/A1 with PW1 on which when he asked the accused/A1 whether the 29 voice in the phone is his voice, he denied the same and the conversation is “ Nuvvu pilavagaane rakapothe nee bharthani, pillalni champesi ninnu teesuku velathanu”. The evidence of PW7 further shows that since both sides quarrelled, the meeting was postponed and 2 or 3 sittings were held but the accused/A1 denied his cell number and voice, but when he insisted him to say truth, he kept quite, then he took it as granted and asked them to compromise the matter by paying some compensation, but the accused did not come to him though Pws 1 and 2 came to him and asked what to do on which, he asked them to give complaint.
49.But, even the evidence of PW7 to the above extent is an improvement being material omission as admitted by PW13/IO, who stated that PW7 did not reveal the above facts before him. Thus, even the evidence of PW7 to the above extent is not trustworthy and thus, no reliance be placed on the same, being an improvement, being material omission.
50.More surprisingly, PW1 did not whisper about the facts as stated by
PWs6 and 7 referred to above either in her ExP1 report and her 164 Cr.P.C., statement nor whispered in her oral evidence, which created any amount of doubt about the evidence of Pws 6 and 7 and on the other hand, the above circumstances highly probable that they are planted witnesses.
51.At this juncture, it is further significant to note that PW2 gave different version. In his evidence PW2 though has stated that they were called to the
Vice Chairman Jayababu, but the accused did not present; that after one month again they both parties were called and the accused/A1 and A2 admitted the wrong committed by them. Then the mediators asked him what he wants, but he did not like to receive any cash for the wrong and he wanted for a case and thereby the case continued. Thus, according to PW2 after filing of the case the mediators tried to settle the matter, but he did not agree for the same which was not at all spoken by Pws 6 and 7. Thus, 30 the evidence of Pws 2 is not in corroboration with Pws 6 and 7 in this regard.
52.It is also quite interesting to note that, PW2 though has stated that they were called to the Vice Chairman Jayababu/PW7 to settle the matter, but PW2 not at all whispered about producing of the cell phone before him, having the alleged threatening of the accused/A1 against PW1 as stated by
Pws 6 and 7 in their respective evidences referred to above, which also created any amount of doubt about the trustworthiness of Pws 6 and 7 in this regard.
53.If really what Pws 6 and 7 has stated is true and correct, definitely the investigation agency ought to have seized the alleged cell phone and placed before the Court along with the call data, but admittedly and evidently the alleged cell phone is not seized and not produced before the
Court along with the call data of the accused/A1 in particular to prove the alleged threatenings said to have been made by the accused/A1 against
PW1 to have sexual intercourse with her. In his cross-examination PW13/IO has admitted that he did not seize any cell phone though PW1 has stated the phone numbers in her statement; that no call data is called for regarding any cell phone in this case, but as per the CD file, a request was made for call data regarding the cell phone numbers of the accused/A1 on 17.06.2016, but no call data was furnished to the Court, which is fatal to the prosecution case, by which an adverse inference can be drawn against the case of the prosecution that if such call data and the alleged cell phone are produced before the Court, the truth would come out that there are no threatenings on the part of the accused/A1 against PW1 to have sexual intercourse with her as alleged by prosecution.
54.Thus, as per the discussion held supra, it can be said that the prosecution though has proved that the accused/A1 had sexual intercourse 31 with PW1 on several times but miserably failed to prove that he had sexual intercourse with her/PW1 forcibly by putting her under fear of threats. Thus, without any hesitation, it can be said that PW1 is a consenting party to have sexual intercourse with the accused/A1 for several times and thus, it does not amount to rape as alleged by the prosecution and thereby failed to prove that the accused/A1 committed the offences punishable under
Sections 341, 376 IPC and Section 3(2)(v) of SC, ST (POA) Amendment Act, 2015, the charges levelled against him.
55.Thus, without any hesitation I hold that the prosecution has failed to prove that the accused/A1 to A3 committed the alleged offences under the respective charges leveled against them. Accordingly this point is answered.
56.In the result, the accused/A1 is found not guilty for the offence punishable under Sections 341 and 376 of IPC and Section 3(2)(v) of SCs and STs (POA) Amendment Act, 2015 and the accused/A1 to A3 are found not guilty for the offence punishable under Section 3(1)(r)(s) of Scs and Sts (POA) Amendment Act 2015, the respective charges leveled against them and accordingly they are acquitted for the said charges under Section 235(1) Cr.P.C. The un-marked property, if any, shall be destroyed after expiry of appeal time.The bail bonds of accused shall stand cancelled.
The accused/A1 to A3 are ordered to execute self bond for Rs.20,000/- each to appear before the Appellate Court as and when they received summons or notices from the Appellate Court as per the Provision of Section 437-A of Cr.P.C.
Typed to dictation by the Stenographer Grade-I, corrected and
pronounced by me in Open Court, on this the 25th day of March, 2021.
Sd/- S.Sarada Devi
Judge for trial of cases under Scs & STs POA) Act-
cum-IV Addl.District and Sessions Judge, Vizianagaram.
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Appendix of evidence. Witnesses examined For Prosecution: PW.1:05.02.2019Arasada Ramanamma PW.2:05.02.2019A.Srinivasa Rao PW.3:12.02.2019A.Mahalakshmi PW.4:12.02.2019M.Kumari PW.5:28.02.2019M.Gowri Sankara Rao PW.6:28.02.2019S.Srinivasa Rao PW.7:28.02.2019B.Jaya Prakash Narayan PW.8:26.03.2019G.Venkata Ramana PW.926.03.2019A.Perraju PW.1001.05.2019P.Swathi, Civil Asst. Surgeon, Area Hospital, Parvathipuram PW.1101.05.2019K.Chinnarao, Tahsildar, Parvathipuram, Vizianagaram District. PW1202.05.2019B.Surendranaidu, the then S.I. of Police, Parvathipuram Town. PW1320.11.2019Siddarth Kaushal, the then Assistant Superintendent of Police, Parvathipuram. For Defence : None
Documents Marked
For Prosecution: Ex.P.1Statement/Complaint of PW1 dated 15.04.2016; Ex.P.2Scene observation report dated 16.04.2016 at 9.00 am; Ex.P.3Bunch of photographs (six) with CD; Ex.P.4Wound certificate of PW1 issued by PW10; Ex.P.5 Caste particulars of PW1; Exs.P.6 to P8Caste particulars of the accused; Ex.P.9Original FIR in Cr.No.54/2016 of Parvathipuram Twon PS; Ex.P10ProceedingsC.No.2795/C2/2016,dated 15.04.2016 of Superintendent of Police, Vizianagaram; Ex.P11Rough sketch; Ex.P12Potency Certificate of A1. For defence:-
Ex.D1 : Xerox copy of charge sheet in C.C.No.213/2016;
Ex.D2 : Xerox copy of receipt bearing No.151/2016 dated 04.03.2016 issued by Office co Superintendent of Police, Vizianagaram in C.C.No.213/2016.
Material Objects marked
NIL
Sd/- S.Sarada Devi
Judge for trial of cases under Scs & STs POA)
Act-cum-IV Addl.District and Sessions Judge, Vizianagaram.
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Copy submitted to the Honourable Registrar (Judicial), Hon’ble High Court of A.P., Nelapadu, Guntur District ( by way of CD). Copy communicated to :
1. The Spl.Public Prosecutor, Vizianagaram.
2. District Collector, Vizianagaram.
3. The Superintendent of Police, Vizianagaram.
4. Assistant Superintendent of Police, Parvathipuram.
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