The conviction under Section 354 IPC was upheld based on the credible testimony of the victim, while the sentence was reduced from five to three years due to mitigating circumstances.

JUDGMENT :

V.Srinivas, J.

Assailing the judgment dated 29.07.2009 in Crl.A.No.23 of 2008 on the file of the Court of learned IV Additional Sessions Judge at Ongole, confirming the conviction and sentence imposed against the accused by the judgment dated 13.03.2008 in S.C.No.237 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Ongole, for the offence under Section 354 of Indian Penal Code (hereinafter referred to as “ IPC ”), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 .

2. The revision case was admitted on 04.08.2009 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1772 of 2009.

3. The shorn of necessary facts are that:

i). P.W.1, who is the victim minor girl, is the daughter of P.W.3, who is residing at Hyderabad by doing coolie works, and residing in the house of her material aunt P.W.2. On 18.04.2007, when P.W.2 sent the victim to purchase the eggs, the accused came to her and asked her to board his cycle with an evil intention. On believing him, she boarded the cycle to proceed to the village. On the way, when they reached Anganwadi building, the accused stopped his cycle and when she refused to get down from the cycle, he forcibly took her into the Anganwadi building, attempted to commit rape on her.

ii). In the meanwhile, P.W.5 noticed the same and on seeing him (P.W.5), accused absconded by scaling over the wall. Then P.W.1 went to the village, purchased the eggs, returned to house, and informed the same to P.W.2. Since the husband of P.W.2 was away from the village, P.W.2 informed the same to P.W.3 by phone on 20.04.2007 after arrival of her (P.W.2) husband to the village. Then P.W.3 came to P.W.1, both of them went to police station and submitted Ex.P.1 report to P.W.7-Sub- Inspector of Police, Chimakurthy Police Station and the same registered as a case in Cr.No.70 of 2007 under Section 366 and 376 r/w.511 of IPC and investigated into.

4. After completion of investigation, P.W.7 laid charge sheet and the same was taken cognizance vide P.R.C.No.19 of 2007 on the file of Court of the learned III Additional Munsif Magistrate at Ongole and committed to the Court of Sessions and numbered as S.C.No.237 of 2007 on the file of the Court of learned Principal Assistant Sessions Judge at Ongole, after full- fledged trial, found the accused guilty of the offence under Sections 354 of IPC , vide judgment dated 13.03.2008, sentenced him to undergo rigorous imprisonment of five (5) years and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment of one month. However, found him not guilty of the charges under Section 366 and 376 r/w.511 of IPC .

5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.23 of 2008, before the Court of learned IV Additional Sessions Judge at Ongole and the same was dismissed, vide judgment dated 29.07.2009, by confirming the conviction and sentence passed by the trial Court against the accused.

6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

7. Heard Sri N.Ravi Prasad, learned counsel for the petitioner/accused and Miss P.Akhila Naidu, learned counsel appearing for the respondent-State.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?”

9. Sri N.Ravi Prasad, learned counsel for the petitioner/accused submits that the testimony of P.W.1 is not believable; that the alleged independent eyewitness is not supported the prosecution case; that the delay in lodging the F.I.R. is fatal to the prosecution version; when the prosecution is not able to prove the charge under Section 376 r/w.511 of IPC , the offence under Section 354 is not applicable; that the Trial Court as w