Darsi Venkata Rao, Vs the State of a.P., Rep by Pp.

Revision filed under Sections 397 & 401 of Cr.P.C. praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to present this Memorandum of Criminal Revision Case, aggrieved by the judgment in Crl.A.No.23 of 2008 dt. 29.07.2009 on the file of the IV Additional District and Sessions Judge, Ongole, confirming the judgment dt. 13*^ March, 2008 in SC.No.237 of 2007 on the file of the Principal Assistant Sessions Judge Court, Ongole Prakasam District.

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LA. NO: 1 OF 2009 (CRLRCMP. NO: 1772 OF 2009\

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Petition under Section 397 (1) Cr.P.C. praying that in the circumstarices stated in the affidavit filed in support of the petition, the hligh Court may be pleased to suspending the sentence imposed in judgment in Crl.A.23 of 2008 dated 29.7.2009 on the file of the IV Additional District and Sessions Judge, Ongole, confirming the judgment dt. 13*' March 2008 in SC.No.237 of 2007 on the file of the Principal Assistant Sessions Judge Court, Ongole Prakasam District, at release the petitioner on bail pending disposal of the above Criminal Revision Case.

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Counsel for the Petitioner: SRI N RAVI PRASAD

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Counsel for the Respondent : PUBLIC PROSECUTOR

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The Court made the following:

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IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No. 1295 of 2009

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Between;

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Darsi Venkata Rao, S/o.Advaiah, Aged 32 years, Gonugunta Village, Cheemakurthy Mandal, Prakasam District.

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... Petitioner/Accused

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AND

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The State of Andhra Pradesh

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Rep. by Public Prosecutor,

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High Court of A.P.

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...Respondent

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DATE OF JUDGMENT PRONOUNCED: 07.01.2025

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SUBMITTED FOR APPROVAL:

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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Whether Reporters of Local newspapers Yes/Np may be allowed to see the Judgments?

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Whether the copies of judgment may be Marked to Law Reporters/Journals.

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yes/No

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Whether Their ladyship/Lordship wishes to see the fair copy of the Judgment?

yes/No

/

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* HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE NO. 1295 OF 2009

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% 07.01.2025

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Darsi Venkata Rao, S/o.Advaiah, Aged 32 years, Gonugunta Village, Cheemakurthy Mandal, Prakasam District. .. Petitioner / Accused

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Vs. $

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The State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P.

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...Respondent

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! Counsel for the Petitioner : Sri N.Ravi Prasad, learned counsel. Counsel for Respondent/State ; Miss P.Akhila Naidu, learned counsel appearing for the State.

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<Gist :

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Head Note:

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? Cases referred:

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1996 see Online Se 51

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(2006) 8 see 560

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(2022) 2 see 74

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(1996) 2 see 384

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(2004) 7 see 659

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AIR 1977 se 892

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AIR 1973 se 2127

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2019 (3) erimes 89

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'i'^is Court made the following:

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JUDGMENT:

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Assailing the judgment dated 29.07.2009 in Crl.A.No.23 of 2008 on the file of the Court of learned IV Additional Sessions Judge at Ongole, confirming the conviction and sentence imposed against the accused by the judgment dated 13.03.2008 in S.C.No.237 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Ongole, for the offence under Section 354 of Indian Penal Code (hereinafter^referredto as IPC”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973. 2. The revision case was admitted on 04.08.2009 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No. 1772 of 2009.

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The shorn of necessary facts are that:

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i). P.W. 1, who is the victim minor girl, is the daughter^of P.W.3, who is residing at Hyderabad by doing coolie works, and residing in the house of her material aunt P.W.2. On 18.04.2007, when P.W.2 sent the victim to purchase the eggs, the accused came to her and asked her to board his cycle with an evil intention. On believing him, she boarded the cycle to proceed to the village.^On

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the way, when they reached Anganwadi building, the accused stopped his cycle and when she refused to get down from the cycle, he forcibly took her into the Anganwadi building, attempted to commit rape on her. ii). In the meanwhile, P.W.5 noticed the same and on seeing him (P.W.5), accused absconded by scaling over the wall. Then P.W. 1 went to the village, purchased^the eggs, returned to house, and informed the same to P.W.2. Since the husband of P.W.2 was away from the village, P.W.2 informed the same to P.W.3 by phone^on 20.04.2007 after arrival of her (P.W.2) husband to^the village. Then P.W.3 came to P.W.l, both of them went to police station and submitted Ex.P.l report to P.W.7-SubInspector of Police, Chimakurthy Police Station and the same registered as a case in Cr.No.70 of 2007 under Section 366 and 376 r/w.511 of IPC and investigated into.

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After completion of investigation, P.W.7 laid charge^sheet and the same was taken cognizance vide P.R.C.No.l9 of 2007 on the file of Court of the learned III Additional Munsif Magistrate at Ongole and committed to the Court of Sessions and numbered as S.C.No.237 of 2007 on the file of the Court of

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learned Principal Assistant Sessions Judge at Ongole,^afterfull- fledged trial, found the accused guilty of the offence under Sections 354 of IPC, vide judgment dated 13.03.2008 sentenced him to undergo rigorous imprisonment of five (5) years and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment of one month. However, found him not guilty^of the charges under Section 366 and 376 r/w.511 of IPC.

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Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.23 of 2008, before the Court^oflearned IV Additional Sessions Judge at Ongole and the same wa,s dismissed, yide judgment dated 29.07.2009, by confirming^the conviction and sentence passed by the trial Court against^the accused.

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Against the said judgment of the first Appellate Court,^the present criminal revision case was preferred by the petitioner/ accused.

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Heard Sri N.Ravi Prasad, learned counsel for the petitioner/accused and Miss P.Akhila Naidu, learned counsel appearing for the respondent-State.

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Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant

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miscarriage of justice in the findings recorded by^{theTrialCourt} as well first Appellate Court?” 9. Sri N.Ravi Prasad, learned counsel for the petitioner/accused submits that the testimony of P.W.¹ is not believable; that the alleged independent eyewitness is not supported the prosecution case; that the delay in lodging^the F.l.R. is fatal to the prosecution version; when the prosecution is not able to prove the charge under Section 376 r/w.511 of IPC, the offence under Section 354 is not applicable;^thatthe Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioner for the said offence and the same is liable to be set aside. 10. Per contra. Miss P.Akhila Naidu, learned counsel appearing for the respondent-State submits that the testimony of P.W.l is sufficient to prove the offence against the accused; that the delay in registering the F.l.R. is properly explained by the prosecution through the testimony of P.W.l; that the testimony of P.W.l is supported by the testimony of^P.Ws.2and 3; that even P.W.4 did not support the prosecution version, the testimony of P.Ws. 1 to 3 is sufficient to prove the offence against the accused; that the Courts below rightly appreciated the

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evidence of on record and convicted the petitioner^forthesaid offence, thereby, the present revision has no merits. In support of the above contentions, she relied upon the pronouncements of Hon’ble Supreme Court in State of Punjab v. Major Singh^

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and Tarkeshwar Sahu v. State of Bihar (Now xJharkhandf.

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In view of the above rival contentions, this Court perused the entire material available on record. To prove the offence under Section 354 of IPC against the accused, the main testimony relied upon by the prosecution is P.W.l,^whoisvictim minor girl aged about 13 years by the date of incident. She categorically testified that on 18.02.2007 at about 08.00 p.m.. when she went to purchase the eggs, the accused came^toher and asked her to board his cycle to go to th? village(voorloki). On the way, there is an Anganvadi Building present,^accused stopped the cycle at the building, forcibly removed^herfromthe cycle and took her to the Anganvadi building. By removing^the

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pant, he tried to commit rape by threating her to do away

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her life, if she tell to anyone. In the meanwhile,^P.W.5and another came there, on seeing the cycle on the road,^andcame to the building. On seeing them, accused left the spot^andran away by jumping over the wall. Then she went to the village and

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’ 1996 see OnLine Se 51

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2 (2006) 8 see 560

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purchased the eggs, went to the house, and informed the same to P.W.2, who is maternal aunt of P.W.l. Since the husband of P.W.2 is not available in the village, on 20.04.2007, P.W.2 informed the same to her (P.W.l) mother P.W.3. On 21.04.2007 at about 07.00 a.m., P.W.3 came to the village, then^shetook P.W.l to the police Station and submitted Ex.P.l report to police.

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The testimony of P.W.l is corroborated to the testimony^of P.Ws.2 and 3. The only suggestion given by the accused during cross examination of P.W. 1 is that there are no talking^terms between their family, which is denied by P.W.l. The^saiddefense was not substantiating by placing and material or otherwise. Nothing incriminating was elicited during cross examination^of P.Ws.l to 3 to disbelieve their testimony. More so, it is the categorical testimony of P.W.l during cross examination^that “after stopping the vehiele, aceused took her into the Anganwadi building by closing her mouth with his hand and therefore she could not ciy. While removing the pant by the aceused she raised cries. 13. It is also contention of the accused that when P.W.5,^who said to be independent eyewitness, did not support the prosecution version, the testimony of P.W. 1 eannot^bebelieved.

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The said contention has no legs to stand, when there is categorical and trustworthy testimony of prosecutrix as observed by the Hon’ble Supreme Court in Phool Singh v. State of Madhya Pradesh^, by referring plethora of^itsearlier pronouncements, that: “the testimony of the victim^isvitaland unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should ifnd no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence^and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injurg.

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In the present case on hand, as discussed supra, there is no substantial material placed on record to disbelieve the testimony of P.W.l, which corroborates to the testimony of P.Ws.2 and 3. Thereby, this Court has no reason to^discardthe trustworthy and reliable testimony of P.W. 1 /victim minor girl. 15. Another contention raised by the learned counsel for^the accused is that there is delay of three (3) days in registering the F.I.R., which is fatal to the prosecution case.

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3 (2022) 2 see 74

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The said contention also cannot be accepted in view^ofthe categorical admission made by P.W. 1 during cross examination that her junior paternal uncle Ramesh was not in the village on that date and returned from Hyderabad on 20^^ only. Her mother was not present in the village on the date of incident, which is not in dispute, and only came to village on^21.04.2007 at about 07.00 a.m. Thereby, they gave Ex.P. 1 report to police on 21.04.2007 at about 10.00 A.M. As such, the circumstances for the delay in submitting Ex.P.l report was properly explained by the prosecution. The testimony of P.W.l is fully supported and corroborated to the testimony of P.Ws.2 and 3 regarding^the said aspect.

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Even the Hon’ble Supreme Court categorically held in State of Punjab v. Gurmit Singh^, which was relied^and referred in Phool Singh case (referred to supra), that; ’the delay in filing F.I.R. for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof ”

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However, as discussed supra, in the present case on hand, the delay is properly explained by the prosecution in submitting Ex.P.l report to police by P.W.l. Thereby,^the said

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2 see 384

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contention also has no merits to disbelieve the prosecution version. 19. Furthermore, it is also contention of the learned counsel for the accused that when the accused found not guilty^forthe offence under Section 376 r/w.511 of IPC, he cannot be convicted for the offence under Section 354 of IPC. 20. The said contention also has no merits in view of the settled legal position by the Hon^ble Supreme Court in Tarkeshwar Sahu case (referred to supra) that “The^offence committed does not come within the purview of offenCe punishable under Sections 376/511 IPC. The offence committed squarely covers the ingredients of Section^366and 354 IPC. The Appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of^theCodeof Criminal Procedure, the accused charged with major^offencecan always be convicted for the minor offence if necessary ingredients of minor offence are present. 21. Now, it is relevant to refer the ingredients to constitute the offence under Section 354 of IPC, which reads as^follows:

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“354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any women, intending to outrage or knowing it to be likely that he will thereby outage her modesty.

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shall be punished with imprisonment of either description for a term which may extend to two years,^or with fine, or with both.”

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Even to prove the offence under Section 354 IPC, the culpable intention of the accused is the crux of the matter. In the present case on hand, the prosecution categorically proved the intention of the accused to commit the said offence by the testimony of P.W. 1 that the accused forcibly removed^herfrom the cycle and took her to the Anganvadi building. By removing the pant, he tried to commit rape. Thereby, he committed an assault on her by using criminal force. As such, the Courts below rightly convicted the accused for the offence under Section 354 of IPC. 23. It is settled law as observed by the HonTDle Supreme Court in State of Maharashtra v. Jagmohan Singh Kuldip Sing Anand^, that “in exercise of revisional powers,^thisCourt need not undertaken in-depth and minutest reexamination^of entire evidence, when there is no error in the findings arrived by the Trial Court as well first Appellate Court”.

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By taking into consideration of testimonies of prosecution witnesses, the trial Court rightly came to conclusion that prosecution proved the guilt of the accused for the offence

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5 (2004) 7 see 659

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under Section 354 of IPC, which was affirmed by the first Appellate Court. 25. It is settled law that in view of the concurrent findings^on facts by the Courts below, this Court being Revisional^Court is not expected to set aside the same without any material of perversity or manifest error in the findings arrived^bytheCourts below. There is no material before this Court to discard the trustworthiness of P.Ws.l to 3 and there is no material to disbelieve the contents of Exs.P. 1 to P.6. 26. All these facts go to show that both the Courts below rightly came to conclusion that the accused outraged the modesty of the victim girl by using criminal force^andthatthere is no apparent failure on the part of the Courts below in appreciating the evidence on record or to arrive at^aconclusion that prosecution proved the guilt of the accused for^the said offence. In these circumstances, this Court is of the^considered opinion that there is no perversity or flaw in the findings recorded by both the Courts below in convicting the^accusedfor the offence under Section 354 of IPC. 27. However, while arguing the matter, learned counsel for the petitioner/accused submits that the incident was^occurred on 18.04.2007 and there are mitigating circumstances^toreduce

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the sentence imposed against the petitioner by the Courts below. He brought to the notice of this Court a judgment^ofthe Hon’ble Supreme Court in Nand Ballabh Pant v. State (Union Territory of Delhi)^, wherein the APEX Court considered the facts and reduced the period of sentence of imprisonment imposed on the appellate from two (2) months to one (1) month rigorous imprisonment. 28. He also brought to the notice of this Court another judgment of Hon’ble Supreme Court in Jagdish Chander v. State of Delhi^, wherein also the APEX Court considered the relevant circumstances and reduced the sentence of imprisonment to that of already undergone, but increased the sentence of fine from Rs.500/- to Rs.700/-. 29. As well in Mohinder Singh v. State of Haryana^, the Hon’ble Supreme Court held at paragraph No.2 that “they are not inclined to interfere on the merits of the case and at the same time, they cannot lose sight of fact that the occurrence took place more than a quarter of century back and^tosendthe accused in prison after 25 years, would be travesty of justice.”

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®AiR 1977 SC 892 7 AIR 1973 SC 2127 ®2019(3) Crimes 89

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No doubt, in the present case also the incident was^said to be happened on 18.04.2007 and by this time sixteen (16) years have already been lapsed.

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Having regard to the above discussion and in view of the above pronouncements of the Hon’ble Supreme Court, this Court is of the considered opinion that the conviction is upheld, however, to meet the ends of justice, the sentence of imprisonment is reduced to three (3) years from five (5) years for the offence under Section 354 of IPC. 32. In the result, the Criminal Revision Case is allowed in part, modifying the sentence of imprisonment imposed against the petitioner/accused to that of three (3) years rigorous imprisonment instead of five (5) years for the offence^under Section 354 of IPC. The rest of the judgment dated^13.03.2008 in S.C.No.237 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Ongole, which was affirmed by the judgment dated 29.07.2009 in Crl.A.No.23 of 2008 on the file of the Court of learned IV Additional Sessions Judge at Ongole, shall stands confirmed. The period of sentence, if any, already undergone by the petitioner/accused, shall be given set off under Section 428 Cr.P.C. The petitioner/accused is directed to surrender before the Court of

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learned Principal Assistant Sessions Judge at Ongole^to serve the remaining sentence, if not, the learned Assistant Sessions Judge concerned shall take steps against the petitioner/accused.

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Interim orders granted earlier if any, stand vacated.

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As a sequel, miscellaneous applications pending, if any,

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shall stand closed.

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Sd/- M RAMESH BABU DEPUTY REGISTRAR

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//TRUE COPY//

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SECTION OFFICER