(Prayer: Revision filed under Section 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 allow the revision setting aside the judgment of conviction passed in Crl. Appeal No.47/2013 dated 06/07/2015 on the file of Sessions Judge at Ongole confirming the Judgment passed in S.C.No.252 of 2012 dated 13/02/2013 on the file of Assistant Sessions Judge at Chirala and acquit the revision petitioner of the all charges and refund the fine amount paid by the Revision petitioner and to pass necessary

IA NO: 1 OF 2015(CRLRCMP 2708 OF 2015)

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the Revision petitioner/Accused on bail by suspending the judgment passed in Crl. Appeal No. 47 of 2013 dated 06/07/2015 on the file of Sessions Judge at Ongole pending disposal of Criminal Revision Case and to pass necessary)

1. The instant criminal revision case has been preferred against the judgment dated 06.07.2015 passed in Criminal Appeal No.47 of 2013 by the learned Principal Sessions Judge, Ongole, confirming the judgment, dt.13.02.2013, in S.C. No.252 of 2012 passed by the learned Assistant Sessions Judge, Chirala, whereby and whereunder the learned Assistant Sessions Judge has sentenced the present petitioner and directed to undergo five years rigorous imprisonment and to pay fine of Rs.500/-, and in default of fine, sentenced to undergo simple imprisonment for two months, for the offence punishable under Section 354 of the Indian Penal Code (for short ‘I.P.C.’).

2. The learned counsel for the petitioner submits that the impugned order of conviction and sentence perverse and not tenable in law. He further submits that the statements of the prosecution witnesses are false and inconsistent and thereby the prosecution has failed to bring home the charge against the petitioner beyond all reasonable doubt.

3. The brief facts of the prosecution case are that on 27.06.2012 at about 3:30 P.M., P.W.2, a student of an aided elementary school, returned from school and slept on the cot with fever. When P.W.1 (mother) questioned her daughter (P.W.2) as to what had happened, then P.W.2 had informed her that she went to the shop of the petitioner, located nearby the school, for purchasing eatables. The petitioner invited her to come to the house and gave her a guava fruit. At that time, the accused touched her private parts and behaved in an indecent manner. P.W.1, the mother of the victim girl, informed the elders in the vicinity and went to the house of the petitioner and questioned him. Then the accused picked up a quarrel with P.W.1 and abused her in filthy language. Thereafter, P.W.1 lodged a complaint.

4. During trial, prosecution has examined eight witnesses and produced three documents. After recording the evidence of the prosecution witnesses and hearing arguments from both parties, the learned trial court has found the petitioner to be guilty for the offence punishable under Section 354 of I.P.C. and passed the impugned order of conviction and sentence. The said conviction was challenged before the appellate court. The learned appellate court has confirmed the sentence by dismissing the appeal. Hence the instant revision case.

5. The learned counsel for the petitioner submits that there are inconsistency in the evidence of P.W.2. He submits that, it has been stated by P.W.2 that she along with other students went to the shop of the accused for purchase eatables. But the prosecution has failed to produce any witness, who accompanied P.W.2 to the sundry shop of the accused. He further submits that, P.W.2 has stated that accused kept plaster on the mouth of the petitioner at the time of commission of the offence, but such plaster was  not recovered by police. He again submitted that, there are full of exaggerations and improvements in the case of prosecution only to falsely implicate the petitioner in the alleged offence. He further argued the evidence of P.Ws.4 and 6 was not believed by the learned trial court, but the learned appellate court without any reason has believed their statement. The learned counsel for the petitioner further argued that there are no eye witnesses in the alleged incident. Thus the prosecution has miserably failed to bring home the charge against the petitioner. He submits that, there are omissions in the evidence of prosecution witnesses which were not taken into consideration by the learned trial court. He submits that, the evidence of P.W.2 (victim girl) is doubtful and cannot be believed to record the conviction.

6. The learned Assistant Public Prosecutor argued that P.W.2 is a 10 years old girl upon whom the petitioner has committed torture. P.W.2 appeared before the court and from her evidence the entire fact is revealed. P.W.2 is not a tutored witness. No suggestion on behalf of the defence has been made regarding false implication of the petitioner in this case. The learned Assistant Public Prosecutor further submits that the incident cannot be disbelieved as the accused during the course of his examination under section 313 of the Code of Criminal Procedure has admitted the presence of the victim at his sundry shop at the relevant point of time.

7. Having heard the learned counsel for the parties and also considering the entire facts and the observations of the learned trial court and the appellate court, in my view both the courts are in concurrent finding of conviction and sentence against the petitioner.

8. Let me consider being a revisional court, whether concurrent finding of the courts below are illegal or improper. If it appears that procedure adopted by the learned courts below for recording of conviction is not on the basis of evidence on record, if the finding are perverse, or if there is manifest error for which miscarriage of justice has occurred, then only this Court has opportunity under revisional jurisdiction to entertain the petitioner.

9. To examine the correctness, illegality or impropriety of the findings, this Court has to gone through the evidence of P.Ws. produced before learned trial court and to ascertain whether learned courts below has abused power vested on them to record conviction. If it appears that there is a miscarriage of justice and accused has been prejudiced by not giving sufficient opportunity then also this Court can entertain the petitioner through the revisional jurisdiction. Further, if it appears that the judgment of the learned appellate court disclosed accusation and valid reason for believing the evidence of witness through observation of the learned trial court, this Court ordinarily shall not entertain the petitioner in revisional jurisdiction.

10. The charge was framed against the present petitioner is under Section 354 of I.P.C. To prove the charge, the prosecution has produced as many as eight witnesses. Among them, P.W.1 is the mother of the victim girl. P.W.2 is the victim girl herself. P.W.3 is the father of the victim girl. P.Ws.4 and 6 are stated to be ocular witnesses, who alleged to have been present at the time of the alleged incident. P.W.5 is a student of local school. P.Ws.7 and 8 are the police witnesses.

11. P.W.1 stated before the learned trial court that on the alleged date of incident, when her daughter (P.W.2) returned from school. She found that P.W.2 is crying and not playing as she does always. On enquiry, it appears that P.W.2 is suffering from fever. On further enquiry, P.W.2 stated the incident as alleged to have been committed by the petitioner upon her. P.W.2 is the victim girl. Her evidence was recorded by the learned Magistrate after certifying that she is having understanding capacity of the proceeding before the court of law. P.W.3 is the father of P.W.2, who deposed supporting the case of the prosecution. P.Ws.4 and 6 are the persons, who are cited as eye witnesses, who are present at the relevant point of time nearby the accused shop. It is the evidence of P.W.4 that when he went to the shop of the accused, he found none. Thereafter on searching inside the shop, he found accused with the de facto complainant committing the alleged crime. P.W.6 is also another eye witness who has seen the accused while committing such offence upon P.W.2. P.W.5 is another student who deposed one incident at the shop of accused regarding running of television with DVD playing blue films. After closure of the evidence of the prosecution witnesses, petitioner was examined under Section 313 of Cr.P.C. It is disclosed by the accused before the court that after his wife left the house on 27.06.2012, P.W.2 came to the shop and asked for guava fruit, she troubled and as she asking repeatedly, the accused touched her with hands and asked her to go away. After half an hour, great grandmother of the victim girl came to the shop of the accused and questioned about his action and beat him.

12. To understand the point raised by the learned counsel for the petitioner, it appears that the learned trial court has disbelieved the evidence of P.Ws.4 and 6, who are said to be eye witnesses, as their name was not stated by P.W.2 during her examination. However, the learned appellate court has believed the statement of P.Ws.4 and 6 to the effect that though their name was not stated by P.W.2 but their evidence cannot be disbelieved entirely. It appears that, the learned trial court, on the basis of the statement of P.W.2 and on the basis of other circumstantial evidence, is of the view that the present petitioner has committed the offence as alleged. From the defence it has been alleged that the instant case is a counter blast of a case which was started by accused against grandmother of the de facto complainant. The wife of the present petitioner was also deposed as D.W.1. She deposed that on 27.06.2012 at 3.00 PM she went to Kadapa by Krishna express and after crossing Ongole, her husband (accused) telephoned and informed that grandmother of the victim girl and others beat him.

13. The learned counsel for the petitioner tried to impress this Court that the statement of P.W.2 cannot be believed as no other independent girl student were examined by the prosecution who went to the shop of the petitioner along with the de facto complainant at the relevant point of time.

14. In thorough reading of the prosecution case, it is the fact that at the time of the alleged incident, all the other girl students had already left the sundry shop of the petitioner. Thus the non examination of the girl student is not fatal to the prosecution case. To substantiate the fact that whether the offence under section 354 of I.P.C. has committed by the petitioner, the only witness required is victim girl. In this particular case, the appellate court has categorically set out the particular part of evidence of P.W.2 victim girl and perused the statement of P.W.2 victim girl. The statement of the victim girl is properly supported by P.Ws.1 and 3. There are corroboration to each other.

15. The learned counsel for the petitioner has stated that there are omissions in the statement of P.W.2 as regards to the statement of P.Ws.1 and 3. I have carefully scanned the evidence of P.Ws.1 to 3. In the evidence of P.W.2, she has stated that the petitioner has touched all parts of her body by keeping plaster on her mouth. While P.Ws.1 and 3 stated that, they were informed by P.W.2 that the accused person has pressed a particular part of her body by keeping plaster on her mouth. The omission is argued by the learned counsel for the petitioner, has specifically noted down by the learned appellate court in paragraph (g) of the appellate court’s judgment and it has been clarified thereon that touching the entire part of the body of victim includes touching and pressing particular parts of the body. It is the observation of the learned appellate court that such statement is not at all omission and if the statement reads out clearly, they corroborate each other. I also put emphasis upon the statement of P.W.2 who is the girl child aged about 10 years having very little knowledge at that time regarding the intent of the accused. Thus she stated before the Court regarding particular action of the petitioner of touching entire parts of her body including private part. On that score, the point raised by the learned counsel for the petitioner has no legs to stand upon. I find the explanation of the learned appellate court is justified in the present facts and circumstance of the case and there is no perversity in finding.

16. It is further argued by the learned counsel for the petitioner that there are delay in lodging the F.I.R. and the instant case is counter blast of other case filed by the petitioner against the family member of P.W.2. On thorough perusal of the entire facts and circumstances, it appears that the presence of P.W.2, victim girl at the relevant point of time in the sundry shop of the petitioner was admitted by the petitioner during the course of his examination under Section 313 of Cr.P.C. However he did not disclose regarding the commission of the alleged offence. The peculiar facts and attending circumstances regarding the beating of accused by the other family members of the victim girl is a natural course of action which was happened in this particular case. It is not possible for the family member of a girl child to beat a person without any reason.

17. Regarding delay in lodging the F.I.R. in this case, it appears that the incident occurred in the year 2012 in a remote village. After such incident of outraging the modesty of girl child and for lodging of police complaint, the village people always hesitate to do so promptly. The allegation against the petitioner for outraging the modesty of the victim girl itself cause bad reputation of the victim girl and would cause negative impact of her marriage. The prestige of family of the de facto complainant is also a prime factor in village society. The elders of the family had to decide the issue prior to filing the F.I.R. Thereby, in my view, lodging of F.I.R. with some delay would not vitiate the prosecution case. In attending facts and circumstances of the case, the delay in lodging the F.I.R. is justified.

18. Considering the entire facts and circumstances of the case, after going through the impugned judgments, it appears that the learned trial court as well as the appellate court has committed no error in recording the order of conviction and sentence against the present petitioner. The learned appellate court has scanned the evidence properly and passed the reasoned order. There is no perversity. Hence this Court finds no justification to interfere with the order of conviction and sentence passed against the present petitioner.

19. Under the above observation, the instant criminal revision case has got no merit and the same is hereby dismissed. The order of suspension the sentence during the pendency of the criminal revision case stands vacated. The petitioner is directed to appear before the learned trial court within 04 (four) weeks from the date of passing of this order to serve the remaining portion of the sentence. Failing which, learned trial court shall issue a non-bailable warrant against petitioner to comply the order.

20. Miscellaneous applications, if any, pending in this revision shall stand closed.