Bathula Jinka Obulu v. The State of A.P.

The State of A.P., Rep by its Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Respondent/Complainant. The Court made the following: THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1134 OF 2004 ORDER: This Criminal Revision Case is filed under Section 397 and 401 of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) by the Petitioner-Accused against judgment, dated 01-07-2004, rendered in Criminal Appeal No.27 of 2003 by the II Additional District and Sessions Judge (Fast Track Court) Ongole, Prakasam District.

2. The Petitioner-Accused was prosecuted in S.C. No.402 of 2001 for the offences punishable under Sections 376, 420 and 493 of I.P.C. After due trial, the learned Assistant Sessions Judge, Darsi convicted the petitioner for the offence punishable under section 376 of I.P.C. and sentenced him to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- in default of payment of the fine to undergo simple imprisonment for six months and further convicted the petitioner for the offence punishable under Section 506 (II) I.P.C. and sentenced him to undergo Rigorous Imprisonment for six months vide judgment, dated 27-02-2003.

3. As against the said conviction and sentences, the petitioner filed Criminal Appeal No.27 of 2003 on the file of the II Additional District and Sessions Judge (Fast Track Court), Ongole, Prakasam District and the learned Additional Sessions Judge, having gone through both the oral and documentary evidence, dismissed the Criminal Appeal confirming the conviction and sentences imposed by the trial Court vide judgment, dated 01-07-2004. Challenging the same, the petitioner has preferred this Revision.

4. The brief facts that are necessary for the disposal of the present Revision may be stated as follows : The de-facto complainant namely Muchu Narayanamma (PW.1) who is an handicapped un-married girl used to go to their leasehold land at their village along with her father and the accused developed lust against her and invited her for having sexual intercourse, which she refused and thereafter the accused used force and raped her and threatened her not to report about the same either to elders or to the concerned police and the accused promised her that he would marry her and succeeded in getting her consent for continuing sexual intercourse and accordingly they lived together by reason of which, she became pregnant and then she again demanded him to marry her but the accused postponed the issue and in the meanwhile, he married another girl and in fact prior to 02-09-2000 she participated in her last sexual intercourse with the accused and kept her clothes in her house without washing them and later she informed her father about the clandestine relationship and later they gave report to the S.D.P.O. Darsi, which was endorsed to the A.S.I. Donakonda, who, on receiving it registered the case in Crime No.42 of 2000 under Section 420, 376 and 493 of I.P.C. Further, she was sent for medical examination, and then it was revealed that she was carrying 7th month pregnancy. The Inspector of Police, Podili took up and completed the investigation of the case and later filed relevant Charge sheet.

5. Whereas charges under Sections 376, 420 and 493 of I.P.C. were framed against the accused, read over and explained to him, for which, he pleaded not guilty and claimed to be tried to substantiate the charges, the prosecution examined P.Ws.1 to 13 and marked Exs.P-1 to P-16 and Mos. 1 and 2 and on behalf of the accused, DWs. 1 to 4 were examined and Exs.D-1 to D-4 were marked. Further Exs.X-1 to X-5 were also marked.

6. It is the contention of learned counsel for the petitioner that as observed by the trial Court, there was more than 7 months delay after the alleged offence of rape was committed by the accused against the de-facto complainant in giving the corresponding report to the police and the trial Court observed that she gave explanation for not giving report to the police at the outset to the effect that at the first instance, the accused threatened to stab her at the point of knife and later, he assured to marry her by reason of which she had not given any report to the police and further she happened to be illiterate and physically handicapped girl having been affected by Polio of her leg and her mother was not alive and as such she might not have given any report to the police and there is no reason to disbelieve her evidence which observation of the trial Court is quite untenable and further Ex.P-1 report does not speak that the petitioner/accused threatened her with dire consequences not to give any report to the police for which adverse inference is to be drawn.

7. On the other hand, learned Public Prosecutor has contended that the prosecution case mostly rests upon the evidence of P.W.1 victim girl and it is clear from her evidence that at the first instance the accused committed rape on her against her will and thereafter he promised PW.1 to marry her and continued the sexual intercourse with her whereas, PW.1 being an illiterate and physically handicapped woman having believed the words of the accused, submitted herself for intercourse with him, but the accused after enjoying her for sufficiently long time refused to marry her and none of the findings of the trial Court are irrational or incorrect and hence, he prays to dismiss the Criminal Revision Case.

8. Now, it is to be mainly considered as to : 1) Whether the delay caused in giving report to the police is fatal or not? 2) Whether the Courts below properly examined the matter and arrived at correct conclusions? and 3) Whether the corresponding findings given are tenable or not?

9. It is very Significant that there was a delay of 7 months in giving the report to the police and the explanation given by her and the observation of the trial Court that as he induced her for sexual intercourse and as she happened to be illiterate and physically handicapped person and she was motherless woman, she could not have given report to the concerned police are quite untenable being unnatural. It is pertinent to note here that admittedly, on 02-09-2000 she approached her father and informed him as to what happened following which she was taken to the concerned Police station and the report was given and later she was taken for necessary medical test. Even though she has been an illiterate and physically handicapped person nothing prevented her from informing the incident to her father under normal circumstances. No abnormal circumstances are shown to have prevented her from giving the information to her father and giving report to the police at the out set as required. Further, it is also unbelievable that her father had no notice of their relationship for long time they being residents of a village.

10. Therefore, the circumstances enumerated amply prove that she had intercourse with the petitioner/accused voluntarily for one reason or the other throughout. In view of the said long gap in giving necessary report to the concerned police, it is difficult to come to a conclusion that as he promised to marry her she failed to give any report or he cheated her on the guise of marrying her. Therefore, the delay caused in giving the report to the police is fatal which cuts the very roots of the case.

11. The trial Court and also the Appellate Court failed to appreciate the matter properly and arrived at incorrect conclusions and hence the conviction and sentences imposed by the Courts below are liable to be set aside. Accordingly, the Criminal Revision Case is allowed. June 23, 2011. Dsh __________________________ G. KRISHNA MOHAN REDDY, J