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In the High Court of Judicature at Hyderabad
G. CHANDRAIAH & M.S.K. JAISWAL, JJ.
Peddi Phani Kumar (A-11) & Others –Appellant
Versus
The State of Andhra Pradesh, Rep. by its Public Prosecutor –Respondent
CRL.A. Nos. 576, 586 & 588 of 2010
Decided on : 08-04-2015
Indecent Representation of Women (Prohibition) Act, 1986 – Section 6 – Information Technology Act, 2000 – Sections 66 and 67 – Indian Penal Code,1860 – Sections 366, 376 (2) (g) r/w 109 – offence of Rape – Appeal against conviction – Case of the prosecution is that the victim girl/de facto complainant (P.W.1) was minor at the time of offence and she was studying intermediate 1st year. She got acquaintance with A-1, as she used to travel in his auto frequently to attend the college. About two years back she left the college at about 11-00 hours as she was not feeling well and boarded the auto of A-1 near her college at Laxmidevipally, to go to her home. A-10 accompanied A-1 by sitting beside him at the driver’s seat – When the auto reached at Temple, A-3 boarded into auto. A-1 drove auto slowly making phone calls to friends. A-8 boarded the auto when the auto reached near bridge. When she tried to get down the auto at her destination at S.C.CL., Head Office, the accused persons gagged her mouth and A-1 drove the auto in high speed and proceeded towards outskirts – A-10 gave his rug (woolen blanket) from the auto to A-1 and went away. After sometime, the friends of A-1, who were A-2, A-4, A-5, A-6, A-7 and A-9 came there on receiving phone calls from A-1 and all of them removed the clothes of victim girl and committed rape on her one after other – While committing rape, the accused had photographed the rape scene with the mobile phone of A-1 and threatened her with dire consequences to commit rape on her again and kill her, if she would reveal the incident to police or her parents and left her there at about 15-00 hours – Held, With regard to charges against A-11 to A-14, except the alleged confession before police officials in the presence of witness, no independent witness was examined to prove the ingredients of Sections 66 and 67 and Information Technology Act and Section 6 Indecent Representation of Women Act, 1986. P.W.18, the Investigating Officer in the cross-examination on behalf of A-11 to A-14 deposed that “It is true that A-11 to A-14 published the CDs and sold in open Market. No witness stated but it is the confession of A-11 to A-14, there is no other material to attract Section 6 of I.R.W. (Prohibition) Act. Because A-11 to A-14 are liable for punishment under Sections 66 and 67 of I.T. Act for the reason that they made CDs and taken copies and circulated the same. Except confession and recovery from there is no evidence of any other witnesses regarding transmitting or selling or purchasing the CDs from A-11 to A-14.” In view of this piece of evidence and as there is no other independent evidence on record, we are of the considered opinion that based on confession before the police authorities, it is not safe to convict them and they cannot be found guilty and accordingly, they are entitled for acquittal of the charges leveled against them – Application is allowed.
G. Chandraiah, J.
1. The accused are A-1 to A-14. A-1 to A-9 were charged for the offence punishable under Sections 366, 376(2) (g), 294(b), 292 IPC and Section 66 of the Information Technology Act, 2000. A-10 was charged for the offence punishable under Sections 366, 376 (2) (g) read with 109 of I.P.C. and A-11 to A-14 were charged for the offence punishable under Sections 66 and 67 of the Information Technology Act, 2000 and Section 6 of Indecent Representation of Women (Prohibition) Act, 1986. The trial court - II Additional Sessions Judge (FTC) Khammam, in S.C.No.483 of 2009, by judgment dated 15.4.2010, found A-1 to A-9 guilty for the offence punishable under Sections 366, 376(2)(g) and 292 IPC and Section 66 of the information Technology Act, 2000. For the offence punishable under Section 366 I.P.C., A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for one month each. For the offence punishable under Section 376(2)(g) IPC, A-1 to A-9 were sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- and in default to suffer imprisonment for a period of two months each. For the offence punishable under Section 292 IPC, A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for one month each. For the offence punishable under Section 66 of the Information Technology Act, A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of three years each. For the offence punishable under Section 366 IPC, A-10 was sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for one month. For the offence punishable under Section 376(2)(g) read with 109 IPC, A-10 was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for two months. For the offence punishable under Section 66 of the Information Technology Act, 2000, A-11 to A-14 were sentenced to suffer rigorous imprisonment for a period of three years each. For the offence punishable under Section 67 of the Information Technology Act, 2000 A-11 to A-14 were sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for a period of five months each. For the offence punishable under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, A-11 to A-14 were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for a period of month. All the sentences imposed on the accused A-1 to A-14 were made to run concurrent and the accused A-11 to A-14 were given the benefit of set off under Section 428 IPC.
2. Aggrieved by the conviction and sentence, A-1 to A-9 filed Crl.A.No.588 of 2010. A-10 filed Crl.A.No.586 of 2010 and A-11 to A-14 filed Crl.A.No.576 of 2010.
3. The gravamen of the charge is that on 17.2.2007 at about 11-00 hours, A-1 to A-10, forcibly taken the de facto complainant in the auto to a forest area, and A-1 to A-9 committed rape on the de facto complainant P.W.1 forcibly, one after the other and behaved in an inhuman manner and A-10, having the knowledge that the other accused are going to commit the offence, abetted them by facilitating the other accused and further accused photographed the offence with the help of sony erric cell phone being used by A-1. The accused threatened the de facto complainant with dire consequences of repeating the offence and killing her, if she informs the incident to any one and out of fear she kept quiet. Subsequently over a period of about two years from the date of incident on 4.1.2009, when the de fact complainant was going to her friends ho
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