APHC010343422009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE TWENTIETH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 1513 OF 2009 Between: 1. The State of A.P., Rep. by the Public Prosecutor High Court of A.P., Hyderabad ...Appellant AND 1. Harijana Gangappa Kothugadu, S/o. Late Yerra Nagappa R/o. S.C. Colony, Near Water Tank, Somandepalli village and Mandal, Ananthapur District. 2. Harijana Mallelolla Pedddanna, S/o. Late Hanumanthappa R/o. S.C. Colony, Near Water Tank, Somandepalli village and Mandal, Ananthapur District. 3. Harijana Musti Kovlla Hanumanthu, S/o. Subbarayudu R/o. S.C. Colony, Near Water Tank, Somandepalli village and Mandal, Ananthapur District. ...Respondents Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Criminal Appeal against the order of the acquittal of the accused/respondent in S.C.No.718 of 2003 on the file of the Hon'ble Additional Sessions Judge, Hindupur, dated 16.06.2008 and prays that this Hon'ble Court may be pleased to set aside the SRK, J Crl.A.No.1513 of 2009 2 order of acquittal and convict the accused/(Respondents) for the offence with which they were charged. Counsel for the Appellant: PUBLIC PROSECUTOR Counsel for the Respondents: N RANGA REDDY SRK, J Crl.A.No.1513 of 2009 3 The Court made the following JUDGMENT: This Criminal Appeal has been preferred by the State against the judgment, dated 16.06.2006, passed in S.C.No.718 of 2003 by the learned Additional Sessions Judge, Hindupur, whereby and whereunder A1 to A3 were found not guilty of the offence under Section 366 IPC; A1 and A2 were found not guilty of the offence under Section 376(2)(g) IPC and A3 was found not guilty of the offence under Section 376(2)(g) read with 34 IPC and, accordingly, they were acquitted of the said charges. 2. Case of the prosecution, briefly, is as follows. i) On 20.12.2002, at about 08.00 pm., the de facto complainant/victim went to the water tank situated in SC Colony, Somandepalle to fetch water. Having found her in loneliness, A1 to A3 informed her that her mother was calling her and she was near the oven of black smith. Believing their words, the de facto complainant followed the accused, and when she reached the oven, A1 gagged her mouth, A2 and A3 lifted her and carried her crossing N.H.7 road and took her to a secret place under Kanuga trees, and after dropping her on ground, while A2 and A3 was holding her firmly, A1 raped her and, while A1 and A3 held her firmly, A2 raped her and when A3 tried to rape her, she managed to get herself released from their clutches and raised cries. On hearing her cries, the passers-by rushed to them, and on seeing them, the accused left her and ran away. She was taken to her house and she narrated the incident to her parents and they took SRK, J Crl.A.No.1513 of 2009 4 her to the Police Station on the same day at 9.30 p.m., where her statement was recorded by the police. ii) On the basis of her complaint, PW.9 – the Sub-Inspector of Police registered a Crime for the offences under Sections 366, 376(2)(g) read with 34 of IPC, and issued copies of FIR Ex.P13 to all concerned. PW.7 is the Medical Officer, who examined the victim and issued wound certificate Ex.P7. PW.8 is the Medical Officer, who examined the accused and issued potency certificates of A.1 to A.3 under Exs.P8 to P10. PW.10 is the Inspector of Police, who filed charge sheet after completion of investigation against the accused for the aforesaid offences. 3. On appearance of the accused, charges under Section 366 IPC against A1 to A3, under Section 376(2)(g) of IPC against A1 and A2 and under Section 376(2)(g) read with 34 IPC against A3 were framed against them, contents of the charges were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P18 and MOs.1 to 6. 5. After closing the evidence of prosecution, the accused were examined under Section 313 Cr.P.C., explaining the incriminating evidence found against them in the evidence of prosecution witnesses, for which they denied. SRK, J Crl.A.No.1513 of 2009 5 6. The learned Additional Sessions Judge, upon appreciation of the evidence on record, found A.1 to A3 not guilty of the charges levelled against them and accordingly acquitted them of the said charges. Challenging the same, the State preferred the present Criminal Appeal. 7. Heard learned Additional Public Prosecutor for the State and Sri N. Ranga Reddy, learned counsel appearing on behalf of Respondents/Accused 1 to 3. 8. Learned Additional Public Prosecutor, appearing on behalf of the State, submits that the trial court has not properly appreciated the evidence available on record and erred in acquitting Accused Nos.1 to 3 by disbelieving the evidence of PWs.1 and 3. 9. On the other hand, learned counsel for the respondents/Accused Nos.1 to 3 contends that the evidence of prosecution witnesses is not corroborating with each other and the crucial witness i.e., victim, who was examined as PW.1 deposed two conflicting versions during her examination and there is no cogent and clinching evidence to prove the guilt of the accused for the alleged offences, and the learned Additional Sessions Judge has rightly found the accused not guilty of the charges levelled against them and accordingly acquitted them of the said charges and there are no reasons to interfere with the same. SRK, J Crl.A.No.1513 of 2009 6 10. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the accused of the charges levelled against them beyond reasonable doubt. 11. This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 12. On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab1, wherein it was held as follows: (para 8) “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the 1 AIR 1962 SC 439 SRK, J Crl.A.No.1513 of 2009 7 earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on „compelling and substantial reasons‟ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, „compelling reasons‟ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words „compelling reasons‟. In later years the Court has often avoided emphasis on „compelling reasons‟ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.” 13. Coming to the case on hand, PW.1, who is the victim, deposed that the accused are known to her, who are also residents of her village. The incident took place about three years back and they were working under PW3 for cutting stones. On the date of the incident, she returned from work at about 05.00 pm and she went to fetch water from the water tap near old Police Station, Somandepalli, at about 7.30 p.m. In order to place water pot under the tap, she bent herself, then three persons came from behind and closed her mouth and took her to an isolated place near Kanuga trees bushes and that A1 and A3 caught hold of her and then A2 committed rape on her. Thereafter, A3 committed SRK, J Crl.A.No.1513 of 2009 8 rape on her and finally A1 committed rape on her. While A1 committing rape on her she raised hue and cry. On hearing the same, PWs.3 and 4 and another came there and on seeing them, accused ran away and that her clothes were thrown to some distance. The said persons brought the clothes and gave it to her and that her parents were called and she was taken to the Police Station. Ex.P1 is the complaint containing her LTI. 14. PW2 is the father of the victim. He deposed that no rape was committed against her daughter and she did not file any complaint against the accused persons. He further deposed that PW.1 did not inform him anything. They went to the Police Station and PW.1 was referred to the hospital. 15. PW3 is the employer of the victim and eye witness to the alleged incident. He deposed that about 3 years back at about 07.30 or 08.00 p.m., he heard the cries of a woman and went to the spot and found PW1 lying on the ground and she was found without clothes and was weeping. Having seen her in that position, they maintained distance for decency and they did not find the accused running away and that PW1 did not inform him anything. He further deposed that PW.1 was sent to her house and he went to the market. 16. PW4, who is said to be another eye witness, turned hostile and stated that he does not know the accused and he did not see any person running on the date of incident and that PW1 did not inform him anything and that he was not examined by police. 17. PW5, who is another eye witness, also turned hostile and he stated that he has not seen PW1 and the accused and that he SRK, J Crl.A.No.1513 of 2009 9 did not see the accused running away and that he does not know anything about the case and that he was not examined by the police. 18. PW6 also deposed to the same effect that he does not know the accused and PW.1 and that he did not see accused running away on the date of incident and that PW.1 did not inform him anything about the incident and that he does not know anything about the case. 19. PW7 is the medical officer who examined the victim and opined that the victim is habituated to regular intercourse and no external injuries were found on her. PW8 is the medical officer who examined the accused and opined that the accused are capable of performing sexual intercourse. 20. PW9 is the S.I. of Police who registered the case and issued F.I.R. PW.10 is the Inspector of Police who filed charge- sheet. 21. A perusal of the evidence of PW.1/victim shows that though in the chief examination she stated about committing rape on her, she resiled from her version later and in the cross examination, she deposed that she does not know anything about the case and at the instance of police, she gave evidence on the previous date and she does not know the contents of Ex.P1, even though she affixed her left hand thumb impression on Ex.P1, and that the accused have nothing to do with the offence. PW.2, who is none other than the father of the victim, categorically stated that no rape was committed on the victim and she did not inform him anything. PWs.3 to 6, who are said to be eye witnesses to the SRK, J Crl.A.No.1513 of 2009 10 alleged incident, did not support the prosecution case and they were treated as hostile by the prosecution. 22. In addition to that, the evidence of PW.7 - the Medical Officer goes to show that there were no external injuries on the victim. If the evidence of PW.1 is accepted that she was held by two persons forcibly and was raped by third person and was raped by three persons one after other when she was held by other two persons, naturally, there would be injuries on her person on the back side and also on her front side of the body as it is her case that her clothes were removed completely and she was laid on hard surface on the ground in the bushes under Kanuga trees. Since no injuries were found, the version of PW.1 that she was raped by the three accused forcibly cannot be taken as truth in view of her categorical statement in the cross- examination that she was not raped by the accused and that the accused have nothing to do with the offence. This is a fit case where her solitary testimony in the chief examination cannot be placed in the category of „wholly reliable‟ and the same cannot be a basis to lay conviction against the accused for the offences charged with, without there being any corroboration. Further, when two views are possible from the same evidence, the view which is favourable to the accused has to be adopted. Since the victim herself turned hostile, it is not safe to rely upon the earlier version made by her in the chief examination to lay conviction against the accused for the offences charged. SRK, J Crl.A.No.1513 of 2009 11 23. In view of the aforesaid facts and circumstances of the case, this Court is of the opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. The impugned judgment passed by the learned Additional Sessions Judge is on correct lines and there are no compelling or substantial reasons to interfere with the Order of acquittal passed by the trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed. 24. Accordingly, the Criminal Appeal is dismissed, confirming the judgment dated 16.06.2006 passed in S.C.No.718 of 2003 by the learned Additional Sessions Judge, Hindupur. As a sequel, pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE K. SREENIVASA REDDY 20.06.2025 PKR/DRK SRK, J Crl.A.No.1513 of 2009 12 THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY 297 CRIMINAL APPEAL No.1513 OF 2009 20.06.2025 PKR/DRK