Criminal trial = APPRECIATION OF EVIDENCE AND CREDIBILITY OF WITNESS = Any violation in the procedure, by the people concerned, cannot be allowed to operate to the detriment of the victims, who have no role to play in the compliance and non compliance of the prescribed procedure. The sentry book, no doubt, shows that the accused was on sentry duty from 18:00 to 20:00 hours; P.W.13 explains that no entries would be made in the sentry book, if people go out for short time. ; When something which finds place in the report, does not find place in the 161 Cr.P.C. statement, it loses significance as an omission, while appreciating the credibility of the witness.

THE HONBLE SMT JUSTICE T.RAJANI

 

Criminal Appeal No.199 of 2008

 

01.03.2018

 

Punam Satyanarayana Dora….. Appellant

 

State of A.P. ….. Respondent

 

Counsel for Appellant:Mr. G.V.Shivaji

 

Counsel for Respondents:Public Prosecutor (AP)

<GIST :

 

>HEAD NOTE :

 

? Cases referred :

 

SMT. JUSTICE T.RAJANI

 

Criminal Appeal No.199 of 2008

 

JUDGMENT:

 

Impugning the legality of the judgment passed by the Sessions

Judge, Mahila Court, Vijayawada in S.C. No.8 of 2005 on 06.02.2008,

this appeal is preferred by the appellant, who is the accused in Crime

No.72 of 2004 of G.R.P. Rajahmundry Police Station.

 

For the benefit of better understanding of the case, the facts,

in brief, are stated as follows.

 

The accused was working as a Police Constable in Godavari

Outpost Police Station, Rajahmundry. The victim girl is resident of

Poolaa village in West Godavari District. Her marriage was held with one

S.Subrahmanyam of Undi village. Due to disputes with her husband,

she went to her parents house, ten days prior to the incident. When her

parents were making attempts to send her to the house of her husband,

through the elders, she, under the thought that if she is sent to her

husbands house, without meeting his demands, she would be again

harassed, left her parents house on 28.06.2004 and went to Godavari

Railway station, on the same day at about 7 or 7.30 pm., and was sitting

on the platform. Then the accused came to her and enquired about her

family background, disclosing himself as Police constable and enquired

about the reasons for her coming to the Railway station. He, then,

forcibly took her to Godavari Railway bridge on a motorcycle and

indecently behaved with her, from there he took her to a room in

Arunodaya Lodge, near Godavari Bridge and there he attempted to

commit rape on her. Then she escaped from him and came to Godavari

Railway station. The accused again came and beat her with hands,

by abusing her in vulgar language and took her to Godavari Railway

Police station and confined her in that station. Another constable by

name G.David Raju, informed the same to Head Constable and on that

the Head Constable came to the Railway Police Station and kept a

woman Police constable, to look after her safety and telephoned to her

brother. Her brother came to the spot and on the narration of the victim,

report was given by him with regard to the alleged offences.

The accused was sent for medical examination, wherein he was found to

be in a drunken state. The victim girl was also sent for medical

examination, wherein injuries were found on her body. After due

investigation, charge sheet was laid against the accused for the offences

punishable under Sections 323, 342, 376 read with 511 IPC.

 

The learned trial Court, on the side of the prosecution, examined

P.Ws.1 to 13 and marked Exs.P-1 to P-9. On the side of the defence,

none were examined, but Ex.D-1, in the statement of P.W.1, was marked.

After appreciating the evidence on record, the learned trial Court found

the accused not guilty for the offence punishable under Section 376 read

with 511 IPC but found the accused guilty for the offences punishable

under Sections 323 and 342 IPC and sentenced him to undergo simple

imprisonment for a period of three months and to pay a fine of Rs.500/-

and in default to suffer simple imprisonment for a period of one month

for each of the offences. Against the said judgment the present appeal is

preferred on the following grounds:

 

The Court below failed to appreciate the contradictions in the

evidence of P.Ws.1 and 2 to 6; failed to consider the delay in giving the

report; failed to see that the P.W.1 stated in the chief examination that

on the telephone call made by the P.W.5 to P.W.6, asking him to come,

he came to the Police Station and that she narrated the entire incident to

him and that he has taken her to the Rajahmundry Police Station,

but she did not state about the incident of beating her in the presence of

P.W.6., whereas, P.W.6, in order to implicate the appellant gave undue

statement, as if he found the appellant beating the complainant on her

neck, with his hand; it also failed to consider the evidence of P.W.12,

who is a Civil Assistant Surgeon, who examined the complainant and

issued certificate, mentioning that the injuries are simple in nature and

as such Section 323 IPC itself is not attracted.

 

Heard the learned counsel for the appellant and the learned Public

Prosecutor and perused material placed on record.

The learned counsel for the appellant reiterated the grounds taken

in the appeal, while the learned Public Prosecutor contended that the

appreciation of the evidence by the learned trial Court is on proper lines

hence, the impugned judgment needs no interference.

 

The points that arises for consideration before this Court are:

 

1. Whether the evidence of P.W.1 and other witnesses inspires

confidence and whether it is affected by the inconsistencies that

are pointed out in their evidence.

 

2. Whether the impugned judgment is sustainable under law.

 

3. To what result.

 

Point No.1: The learned trial Court, by considering that there was

an element of willingness on the part of the victim, in going along with

the accused, to the Godavari Railway bridge and to the places thereafter,

exonerated the accused from the offence punishable under Section 376

read with 511 IPC. But, however, the learned trial Court believed the

version of P.W.1, which is corroborated by the medical evidence,

to the extent, sufficient for arriving at the guilt of the accused,

for the offences punishable under Sections 323 and 342 IPC. It is the

propriety of the said evaluation done by the learned trial Court,

that is brought to question in the present appeal.

 

The learned counsel for the appellant relies on the inconsistencies

in the evidence of the witnesses, to contend that the entire evidence is

unreliable. Now let us look at the facts. The age of the victim girl is

stated to be 19 years. The evidence of her, as P.W.1, that she came to

the Railway station as she did not want to go to her husbands house is

corroborated by the evidence of P.W.2, who is her brother. From the

above behavior of P.W.1, who is aged 19 years, it can be understood that

she did not develop maturity, to the level, sufficient enough to take care

of herself and to face the situations with which she is confronted in life.

It also appears that she was in a helpless state. A girl, aged 19 years,

sitting at a Railway station, without any direction as to how she should

go about in her life, can be expected to be in state of confusion and

vulnerability. There arises, no doubt, with regard to what she stated.

But, however, a benefit of doubt was extended to the accused, by virtue

of the fact that she did not raise any cries, while she was being taken on

the motorcycle by the accused and thereafter. Whether the said

approach of the learned trial Court was right or wrong is not for this

Court to decide in the instant appeal. But it would suffice to say that the

truth in part of the version of P.W.1 had to be upheld by the learned trial

Court, in spite of it seeing an element of consent on the part of the

P.W.1, as there was sufficient corroboration for that part of her evidence,

which the learned trial Court believed.

 

The inconsistencies, with regard to the injuries, as pointed out by

the appellants counsel, is about the manner in which the injuries were

caused on her body. In the report given by P.W.1, she stated that the

accused came to her, holding a stick and beat her, while the evidence of

P.W.6, which is that of the Head Constable (Retd.,) shows that the

accused beat her with hand. The learned counsel contends that the

injuries as stated by the Doctor, P.W.12, cannot be sustained, when a

person is beaten with hands. The injuries are in the form of a contusion

on left shoulder about 2 x 1 red in colour and a linear abrasion on the

medial aspect of lower 1/3rd of left forearm, about length red in

colour. If the Court sees an element of truth in the version of the victim,

that would suffice to believe her evidence. The mental state of a woman

in a vulnerable state, stands beyond explanation. A hyper technical

approach in evaluating her evidence may not be warranted.

 

The argument that beating with hands would not cause a

contusion and abrasion, cannot be upheld. Whether the beating has

taken place or not has to be understood from the manner in which the

witnesses deposed before the Court. There is no animosity proved

between the appellant and P.W.6, who stated that the accused beat

P.W.1 with hand. The case of P.W.1 has been consistent, both in the

report and in her evidence. She states that accused approached her with

a stick and beat her. There are two instances of beating, stated by

P.W.1. One is when she was sitting on the platform along with two other

passengers and the other instance is, when the accused took her to the

cell. The second instance of beating is not stated to be with a stick and it

can be understood that it is the second beating that was witnessed by

P.W.12. The contusion was found on the shoulder but not on the neck of

P.W.1, which is the place of beating, stated by P.W.6. Hence, it is

possible that the contusion was caused by beating with a stick. So also

the abrasion.

 

The effort made by the appellants counsel to make the evidence of

P.W.13, unreliable, based on the entries made in the sentry book turns

vain. Any violation in the procedure, by the people concerned, cannot be

allowed to operate to the detriment of the victims, who have no role to

play in the compliance and non compliance of the prescribed procedure.

The sentry book, no doubt, shows that the accused was on sentry duty

from 18:00 to 20:00 hours; P.W.13 explains that no entries would be

made in the sentry book, if people go out for short time. The witness

examined as P.W.5, is one G.David Raju. According to him, P.W.1 came

and questioned the accused. But he somehow did not support the whole

version of P.W.1. But, his evidence shows that he was told in the Police

Station, that the accused attempted to commit rape on one lady on the

previous night and then the Sub Inspector of Police handed over the

accused to him, saying that he was arrested. There may be many reasons

for the witnesses not to come out with whole truth. But if the stated facts

get corroboration from the prime witness, it would certainly lend support

to the credulity of the version of the said witness. The presence of P.W.1

at the platform is undoubtedly proved. The presence of the accused is

also proved. The evidence of P.W.5 is almost in the form of Res gestae,

as he was informed about the acts of the accused almost immediate to

the incidents and it becomes admissible, by falling out of the hearsay

category of evidence. The injuries are proved and they are not alleged to

be self inflicted. Omission to state about beating with a stick, does not

affect the testimony of P.W.1, as she stated the same in the report, which

is earlier to the statement and the said omission, then, can, safely,

be attributed to the erroneous recording of the statement.

When something which finds place in the report, does not find place in

the 161 Cr.P.C. statement, it loses significance as an omission,

while appreciating the credibility of the witness.

 

P.W.3 is a constable, speaks about the accused bringing a lady and

making her sit in the station and about his informing the matter to

P.W.6. Though he was declared hostile, the facts stated in his chief

examination, would lend support to the testimony of P.W.1, to the extent

of wrongful confinement by the accused. P.W.4, another constable,

speaks about his taking the accused to hospital, for examination of his

drunkenness. A certificate is stated to have been issued by the doctor.

As regards the delay in giving the report, very cogent explanation comes

from P.W.6, who says that P.W.1 asked him to wait till her brother

comes. It is very probable that she, in the state she was, would wait for

her brother to arrive, for taking any decision on what has happened, as,

it involved a police person and she would, probably, want her brother to

advise her on the consequence of lodging a report. Hence,

a comprehensive appreciation of the evidence, would lend credibility to

the evidence of P.W.1 and would conclusively prove the guilt of the

accused, for the offences punishable under Sections 323 and 342 IPC.

 

POINT No.2: Hence, in view of the discussion, under point No. 1,

this Court does not find any reason to set aside the impugned judgment.

 

POINT No. 3: In the result, this Criminal Appeal is dismissed.

 

Miscellaneous petitions, if any, pending in this appeal shall stand

closed.

_____________________

JUSTICE T.RAJANI

Date: 01.03.2018