APHC010447812023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] THURSDAY, THE NINTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 658/2023 Between: PALUCHURI NIKHIL, S/O. BENHAR, AGED ABOUT 25 YEARS, SC MADIGA, R/O. NETHAJI NAGAR, 24TH WARD, REPALLE TOWN, BAPATLA DISTRICT ...APELLANT AND THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, AMARAVATHI. ...RESPODENT Counsel for the Appellant: 1. DAVULURI SAMUEL JOHN Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: JUDGMENT: The instant appeal is filed by the Appellant / Accused No.2 against the judgment of conviction passed against him, dated 09.08.2023 in Sessions Case No.65/S/2022 on the file of the Court of Special Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989-cum-IV Additional District and Sessions Judge, Guntur. 2. The case of the Prosecution, in a nut shell, is as follows: P.Ws.1 and 2 are the husband and wife and are the residents of Venkatadripuram Village, Yarragondapalem Mandal, Prakasam District. They 2 belong to SC-Madiga community. P.W.1 attends coolie works and also masonry works. The coupled blessed with two sons and a daughter and by the date of incident, P.W.2 was 7th month pregnant. (ii) On 30.04.2022 P.Ws.1 and 2 along with their children, in order to go to Nagayalanka of Krishna District to attend masonry work, reached Repalle Railway Station at about 11.40 p.m., and decided to stay on the 1st platform for the night. While so, Accused Nos.1 and the Child in Conflict with Law, having consumed alcohol, were eating fried rice on the platform of Repalle Railway Station. At that time, Accused No.2, who is also the resident of the area where Accused No.1 and the Child in Conflict with Law were residing, asked them money to have some liquor, for which they replied that they had no money. Then, Accused Nos.1 and 2 and Child in Conflict with Law, with a common intention to rob any person available on the platform, found P.Ws.1 and 2 along with their children, reached them. Accused No.2, with an intention to pick up a quarrel with them, in order to rob them, asked P.W.1 about the time, for which, P.W.1 replied that he had no watch. On that, Accused Nos.1 and 2 and the Child in Conflict with Law, picked up quarrel with him and started beating him. Accused No.2 snatched away Rs.750/- from the shirt pocket of P.W.1. The Child in Conflict with Law put his foot on the neck of P.W.1, pressed him on the ground and made an attempt to do away him. (iii) On seeing the same, when P.W.2 prayed them to leave P.W.1, they pushed her aside, due to which she fell on her back and received 3 contusion on her head. Then Accused Nos.1 and the Child in Conflict with Law pulled her towards Tenali side on the platform. P.W.1 slipped away from the clutches of the Child in Conflict with Law and ran towards the station main entrance side to get any help and both the male children of P.Ws.1 and 2 followed P.W.1. The Child in Conflict with Law chased P.W.1 up to some distance and returned. Then P.W.1 rushed to Repalle Police Station, which is situated at 200 meters from the railway station. (iv) Meanwhile, Accused Nos.1 and 2 dragged P.W.2 to the end of the platform by the side of loco engine which was stationed and shutdown. Though P.W.2 prayed them stating that they are down-trodden people belong to Madiga Community, came from long distance for attending coolie works, that she was a pregnant woman and not to do any harm to them, without heeding to her words, made her to lie on her back, Accused No.2 caught her hands, Accused No.1 forcibly committed rape on her. The Child in Conflict with Law also committed rape on her. On coming to know about the incident through P.W.1, the Police Personnel of Repalle Police Station, rushed to the scene of offence. On hearing the police siren, Accused Nos.1 and 2 and the Child in Conflict with Law escaped from the scene. (v) Based on the compliant given by P.W.1, a case in Crime No.123 of 2022 on the file of Repalle Police Station, for the offences under Sections 376-D, 394 and 307 read with 34 IPC was registered against Accused Nos.1 and 2 and the Child in Conflict with Law. Police, after recording the statements of the witnesses, collecting all the physical, material, circumstantial 4 and scientific evidences and completion of investigation, filed charge sheet against Accused Nos.1 and 2 and the Child in Conflict with Law for the offences under Sections 376-D, 376(2)(h), 394 and 307 read with 34 IPC and Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short „SCST Act‟), which was numbered as Sessions Case No.65/S/2022 before the trial Court. (vi) The learned trial Judge, after framing charges, completion of trial and on hearing both sides, passed the judgment convicting Accused No.1 for the offences under Sections 376-D, 376(2)(h) and 307 IPC and Section 3(2)(va) of SCST Act and Accused No.2 for the offences under Sections 376- D, 376(2)(h), 307 and 394 IPC and sentenced him to undergo rigorous imprisonment for 20 years and to pay fine of Rs.1,000/-, in default of payment of fine amount to undergo simple imprisonment for six months for the offence under Section 376-D IPC, to undergo rigorous imprisonment for 10 years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for six months for the offence under Section 307 IPC and also to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 394 IPC. 3. Aggrieved by the said conviction and sentence imposed against him, the Appellant / Accused No.2 filed the present appeal. 4. Heard Sri D.Samuel John and Sri V.Hrudaya Raju, learned counsel for the Appellant / Accused No.2 and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent / State. 5 5. Learned counsel for the Appellant would submit that, the offence under Section 107 IPC does not attract against the Appellant / Accused No.2. Learned counsel would further submit that, P.W.2 identified the Appellant as the person who snatched the cash from the pocket of P.W.1, who is her husband, but not as a person who committed rape on her. The statement of P.W.2 recorded under Section 164 Cr.P.C does not disclose the commission of the offences under Sections 376-D and 307 IPC against the Appellant / Accused No.2. It is further submitted that, since A.2 alleged to have chased P.W.1, the question of common intention on the part of Accused No.2 in the commission of offence under Section 376-D IPC does not arise. Learned counsel would further submit that the CCTV footage collected from the scene of offence does not disclose his presence. Learned counsel would further submit that, in the Test Identification Parada conducted by P.W.23 against the Appellant/ Accused No.2, P.W.2 failed to identify Accused No.2. It is further submitted that the evidence of P.Ws.1 and 2 suffered from contradictions. 6. Per contra, learned Assistant Public Prosecutor would submit that the Prosecution could establish the ingredients of the offences alleged against the Appellant / Accused No.2. It is further submitted that, on hearing the siren of the Police Personnel, Accused No.2 left the place. Learned Assistant Public Prosecutor would further submit that the CCTV footage clearly shows that Accused Nos.1 and 2 and the Child in Conflict with Law consumed alcohol and went into the Railway Station. Learned Assistant Public Prosecutor would submit that the learned trial Judge has rightly convicted and sentenced the 6 Appellant / Accused No.2 for the alleged offences and there is no irregularity or infirmity in the judgment passed by the learned trial Judge. Learned Assistant Public Prosecutor would finally pray for dismissal of the appeal. 7. Now the point that would arise for determination in this appeal is: Whether the impugned judgment of conviction and sentence passed against Accused No.2 for the offences punishable under Sections 376-D, 376(2)(h), 307 and 394 IPC is sustainable on facts and law or any interference is warranted in appeal? POINT: 8. Based on the complaint lodged by P.W.1, who is the husband of P.W.2 about the alleged incident, the present crime has been registered initially against three unknown Accused for the offences under Sections 376-D, 394 and 307 read with 34 IPC vide Ex.P.25. Subsequently, vide Ex.P.29 the Section of Law was altered by adding Sections 376 (2) (h) IPC and Section 3(2)(v) of SCST Act against Accused Nos.1 and 2 and the Child in Conflict with Law. It is alleged against the Appellant / Accused No.2 that he along with Accused No.1 and the Child in Conflict with Law had committed rape on P.W.2, tried to do away with the life of P.W.1 and also committed robbery against P.W.1. 9. At this stage, it is apposite to extract Sections 376-D, 307 and 394 IPC, which read as follows: “376D. Gang rape.—Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean 7 imprisonment for the remainder of that person's natural life, and with fine. 307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. 394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 10. In the case at hand, P.Ws.1 and 2 who are the victims, are the crucial witnesses to the incident occurred. P.W.1 categorically deposed that, on 30.04.2022 at about 00.45 a.m., (mid night), while he along with P.W.2 and their children were sleeping on the platform of Repalle Railway Station, Accused Nos.1 and 2 along with Child in Conflict with Law in a drunken state came to them. Accused No.2 asked him time for which he replied that he had no watch. Then, Accused No.1 slapped P.W.1 by uttering as “Eeraa Lanja Kodaka Anna Time Adigithe Cheppavara” and caught hold of his shirt collar, pushed him down and dragged. Accused No.2 took away cash of Rs.750/- which was in the shirt pocket of P.W.1. P.W.2 also deposed in the same lines to the extent of Accused No.2 taking away cash of Rs.750/- from the shirt pocket of P.W.1. The contents of the report given by P.W.1 to the Police totally corroborated with the oral testimonies of P.Ws.1 and 2 about the 8 robbery committed by Accused No.2. The evidence of P.Ws.1 and 2 would also show about beating of P.W.1 by Accused Nos.1 and 2 and the Child in Conflict with Law, P.W.2 requesting them with folded hands that they belong to SC-Madiga community and also requesting them that she is a pregnant lady. 11. As seen from the evidence of P.W.1, in his chief examination, he clearly deposed that Accused No.1 pushed P.W.2 due to which she fell down and her head hit to the floor. Then Accused No.1 and the Child in Conflict with Law caught hold the tuft of P.W.2, dragged to the end of the platform, where last bogi of the train was there. Then by escaping from the clutches of Accused No.2, P.W.1 came out of the railway station to seek help from others to protect his wife. Accused No.2 followed him and again went back. P.W.2 also deposed on the same lines by corroborating the evidence of P.W.1 about the commission of rape by Accused No.1 and the Child in Conflict with Law against her. The evidence of P.W.2 also shows that Accused No.2 also tried to commit rape on her, but by that time, on hearing the Police Siren, they run away from that place. The oral evidence of P.W.16 the Civil Assistant Surgeon, Community Health Centre, Repalle and P.W.19- Assistant Director, APFSL, Mangalagiri coupled with Exs.P.15 to P.17 and P.20 would clearly establish that Accused No.1 and the Child in Conflict with Law had committed rape on P.W.2. 12. In order to attract the offence of gang rape under Section 376-D IPC against Accused No.2, though he had not committed rape on P.W.2, if 9 common intention on his part is established, it is sufficient to connect him with such an offence. As seen from the contents of the charge sheet as well as the evidence of P.Ws.1 and 2, the acts of Accused No.2 disclose only about robbery alleged to have committed by him by taken away cash of Rs.750/- from the shirt pocket of P.W.1. Further, in the Test Identification Parada conducted by P.W.23 – I Addl.Junior Civil Judge, Tenali, P.Ws.1 and 2 identified Accused No.1, however, P.W.2 failed to identify Accused No.2. But, P.W.2 identified Accused No.2 in the course of evidence. The Hon‟ble Supreme Court in a recent judgment in Nazim and others vs. The State of Uttarakhand1 categorically observed that, dock identification without a prior Test Identification Parade has little evidentiary value where the witness had no prior familiarity with the Accused. 13. In the instant case, as per the evidence of P.W.2, though she stated that Accused Nos.1 and the Child in Conflict with Law had committed rape on her, and Accused No.2 tried to commit rape on her, she failed to identify Accused No.2 during the Test Identification Parade. Such being the case, in view of the judgment referred to supra, identification of Accused No.2 in the course of evidence, has very less evidentiary value. The evidence of P.W.2 also clearly shows that Accused No.1 and the Child in Conflict with Law had committed rape on her and Accused No.2 had taken away cash of Rs.750/- from the pocket of her husband and chased her husband. P.Ws.24 and 25, who are the investigating officers also deposed that the CCTV footage for the relevant period and place does not disclose the movements of Accused No.2. 1 2025 INSC 1184 10 In view of the above circumstances and in the light of the evidence on record, this Court is of the view that the conviction of Accused No.2 under Section 376-D IPC is not established for the following reasons: (1) Woman Constable who said to have recorded the statement of P.W.2 at the earliest point of time is not placed on record. (2) P.W.2 in her Section 164 Cr.P.C statement did not state about the Accused No.2. (3) The evidence of the Investigating Officer is clear to the effect that Accused No.1 and the Child in Conflict with Law entered Railway Station after consuming liquor jointly. The presence of Accused No.2 was not there. While they were taking biryani, Accused No.2 visited them on the platform. (4) Confession before the Police Officer is inadmissible in evidence. Be that as it may, the alleged confession also would show that Accused No.2 met Accused Nos.1 and 3 on the platform, asked some money for liquor and Accused No.1 and the Child in Conflict with Law said that they do not have money. Then, they planned to loot any passenger. In execution of such plan, they have committed the offence of robbery. (5) No iota of evidence to show that Accused No.2 shared the intention of Accused No.1 and the Child in Conflict with Law for committing rape on that woman. (6) There is an improvement in the evidence of P.W.1 regarding his role for committing rape. 11 14. Further, to attract the offence under Section 307 IPC against Accused No.2, the intention to do away with the life of P.W.1 or to cause hurt to him, has not been established by the Prosecution by oral or documentary evidence. Ex.P.18 – Wound Certificate of P.W.1 also disclose that there were no external injuries on the body of P.W.1. As such, the offence under Section 307 IPC also does not attract against Accused No.2. 15. However, as seen from the evidence P.Ws.1 and 2, who are the victims and witnesses in the alleged incident would clearly go to show that, Accused No.2, who was in need of money to consume liquor, joined hands with Accused No.1 and the Child in Conflict with Law, forcibly had taken away cash of Rs.750/- and thereby committed robbery, which attracts the offence under Section 394 IPC. 16. In view of the facts and circumstances stated above, this Court is of the considered view that the Prosecution could establish the case against Accused No.2 for the offence under Section 394 IPC, but failed to prove the case against him for the offences under Sections 376-D and 307 IPC. Therefore, the judgment of the learned trial judge requires modification. 17. In the result, the Criminal Appeal is partly allowed setting aside the conviction and sentence imposed against the Appellant / Accused No.2 in S.C.No.65/S/2022 on the file of the Court of Special Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989-cum-IV Additional District and Sessions Judge, Guntur for the offence 12 under Sections 376-D and 307 IPC. The conviction and sentence imposed against him for the offence under Section 394 IPC is hereby confirmed. Pending miscellaneous petitions, if any, shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:09.10.2025 Dinesh 13 HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.A.No.658 of 2023 Dt.09.10.2025 Dinesh