1 APHC010508172009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3369] TUESDAY,THE TWENTY-THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 1261/2009 Between: 1. THE STATE OF A.P.,, REP.BY THE PUBLIC PROSECUTOR. HIGH COURT OF A.P., HYDERABAD. ...APPELLANT AND 1. ROUTHU SRIHARI, S/O.VENKAIAH R/O.DASARI AGARAHARAM (V), JALADANKI(M), NELLORE DISTRICT. ...RESPONDENT 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 Judgment in S.C.No.374 of 2006 on the file of the Assistant Sessions Judge, Kavali dated 15.04.2008 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused/respondent for the offence with which he was charged. IA NO: 1 OF 2009(CRLAMP 1156 OF 2009 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 condone the delay of '243 days' in presenting the appeal against the judgment of acquittal of the accused/respondent in S.C.No.374/2006 on the file of the Assistant Sessions Judge, Kavali dated 15-4-2008. Counsel for the Appellant: 1. Sri K. SANDEEP, ASST. PUBLIC PROSECUTOR 2 Counsel for the Respondent: 1. T. SREEDHAR The Court made the following: JUDGMENT 1. This appeal, under section 378(1) and (3) of Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) is preferred by the Appellant / State against the judgment of acquittal rendered by the learned Assistant Sessions Judge, Kavali (for short, ‘the Trial Court’) in S.C.No.374 of 2006 by its judgment dated 15.04.2008, acquitted the accused for the offence punishable under section 376 of Indian Penal Code, 1860 (for short, ‘IPC’). 2. Perused the impugned judgment of acquittal rendered by the Trial Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 9 and documents Exs.P.1 to P.8 and Exs.D1 to D3 and M.Os.1 to 3 were marked. 3. The facts in a nutshell, which give rise to the present appeal, are as follows: (a) The Circle Inspector of Police, Kavali, filed a charge sheet against the accused in Crime No.1/2006 under Section 376 IPC. As per the charge sheet, P.W.1 is the complainant and victim. Jayamma (LW.2) and Peda Hazarathaiah (P.W.3) are her parents. P.W.1had been deserted by her husband about ten years ago and has since been residing at her parents’ house along with her son. She has been working as an agricultural labourer to support herself.Accused is having an evil eye upon her and waiting for an opportunity to sexual intercourse with the P.W.1. (b) On 03.01.2006, P.W.1, along with others, went to the field of L.W.5, Narra Subbaiah, located at Annavaram Village, to harvest black gram crop. They travelled in the tractor of Natta Subbaiah, which was driven 3 by Narra Maheswara Rao (L.W.6). After completing the agricultural work, they returned to their village in the same tractor. At around 7:00 p.m., they dispersed at Peddavuru of Dasariagraharam and proceeded to their respective homes. While P.W.1 was retuned back to her house lonely, when she reached to the scene of offence, all of sudden the accused came from her behind and accused inserted his hand into the jacket of P.W.1 and caught hold her tuft and pushed her down to the ground and placed her saree into her mouth and thereby preventing her from cries and lifted her langa and had sexual intercourse forcibly upon her and against her will and later he absconded from the scene of offence by saying that to report the matter whom to ever she likes. (c) P.W.1 sustained injuries congestion over the left knee, Congestion over the chin and three nail pressing marks over the left side of the neck. P.W.1 returned home in tears and informed her parents about the incident. She then lodged a complaint with the police. The Assistant Sub-Inspector (ASI) registered a case in Crime No.1/2006 under Section 376 IPC and issued the FIR on the same day. During the investigation, the Station House Officer (SHO) sent P.W.1 for medical examination. On 04.01.2006, he visited the scene of offence, conducted an inspection, prepared an observation report in the presence of mediators, and drew a rough sketch. He also examined witnesses and recorded their statements.On 10.01.2006, the accused was arrested and sent for medical examination. He was subsequently remanded to judicial custody. The medical officers preserved the clothes and biological samples of both the victim and the accused separately, and sent them to the RFSL, Guntur, for chemical analysis. Upon receipt of the RFSL report, the doctor issued a final medical opinion stating that P.W.1 had been subjected to sexual intercourse. After completing the investigation, a charge sheet was filed against the accused under Section 376 IPC. 4 4. The Trial Court took cognizance of the offence under Section 376 IPC against the accused. Upon his appearance before the Court, copies of the relevant documents were furnished to him as mandated under Section 207 of theCr.P.C. After hearing the submissions made by the Public Prosecutor and the defence counsel on the question of charge, the Trial Court framed charge against the accused for the offence punishable under Section 376 of the IPC. The accused pleaded not guilty and claimed to be tried. 5. The Trial Court examined the accused as required under Section 313 Cr.P.C., to enable him to consider the evidence that had been led on the part of the prosecution and also appeared against him. But the accused denied the truth of the evidence adduced by the prosecution. After conclusion of arguments and upon perusal of the material, the Trial Court found the accused not guilty and acquitted the accused. 6. The learned Assistant Public Prosecutor for the Appellant/State contends that the trial court erred in failing to appreciate that the essential ingredients of offence under Section 376 of IPC was made out. He further contends that the PW.1’s testimony, clearly establishes the charge of rape, and the Trial Court's disregard of prosecution evidence renders the acquittal unsustainable. 7. The learned counsel for the respondent/accused contends that the case has been fabricated against the respondent; the PW.1’s testimony lacks corroboration from other prosecution witnesses, and that the Trial Court rightly disbelieved the prosecution’s version. The learned counsel accordingly supports the findings and conclusions recorded by the Trial Court. 8. I have heard learned counsel on either side and carefully perused the material available on record, including the oral and documentary evidence produced by the prosecution before the Trial Court. 5 9. The point for determination is: Was the Sessions Court justified in acquitting the accused? POINT: 10. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. Shankar V. State of Karnataka 1, at paragraph 26 of the judgment, has held as follows: "26. It is settled legal proposition that in exceptional circumstances the appellate court, under compelling circumstances, should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence." 11. In State of Goa V. Sanjay Thakran &Anr. 2, the Hon’ble Supreme Courtwhile considering the power of appellate court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point has concluded as under: “16.....while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.” 1(2011) 6 SCC 279 2(2007) 3 SCC 755 6 12. With the above principles in mind, this court analyse the reasoning and ultimate conclusion of the Sessions Court in interfering with the order of acquittal. 13. The prosecution examined the de facto complainant/victim as PW.1 and her father as PW.2. PW.1 testified that she was married to Krishnaiah approximately fourteen to fifteen years before giving evidence on 03.10.2007; they have a son named Bhaskar. Regarding the incident in question, PW.1 stated that while she was returning home alone on foot from the residence of Subbanaidu, the accused suddenly emerged from thorny bushes by the roadside when she approached the land belonging to Venkaiah (LW.9), the accused caught hold her by the tuft of her hair, forced her to the ground, covered her mouth with her saree to prevent her from raising an alarm, and thereafter committed forcible sexual intercourse upon her without her consent. Based on the Ex.P.1 report lodged by PW.1, the S.H.O., registered a case in Cr.No.1 of 2006 under section 376 of IPC, issued F.I.R., and sent her to the hospital for medical examination. 14. Regarding the scene of offence, PW.1 testified that it was situated approximately half a kilometre between Chinnavuru and the centre of Peddavuru. She noted the existence of an Anganwadi school located between these two villages, where Ankaiah’s family resided. She further deposed that one can travel from Chinnavuru to Peddavuru via the Anganwadi school. Additionally, she stated that the house of Venkata Atchamma is located on the left side of the road, adjacent to a water channel. Although there were streetlights along the roadside, she clarified that there was no power supply on the day of the incident. PW.9, the investigating officer, testified that he visited the scene of the offence in the presence of mediatorsand prepared the Ex.P6 scene observation report and Ex.P8 rough sketch. The testimony of PW.7, who prepared the Ex.P6 observation report, reveals that there are four or five houses located approximately 20 feet from the scene of the offence. PW.9 testified that the scene of the offence is situated nearer to Venkaiah’s 7 house, and there were street lights near the scene of the offence. As correctly noted by the Trial Court, the scene of offence is located near a public road with houses nearby, providing the prosecutrix ample opportunity to escape or seek assistance from neighbours or passersby. If the prosecutrix had made any resistance or at least raised an alarm, it would have attracted the attention of the people in the locality. Indeed, in such a situation, PW.1 should have raised an alarm if the incident in question had occurred. 15. The defence rightly pointed out that PW.1’s background as agricultural labour suggests she would reasonably be expected to possess the physical strength to resist the alleged assault. Her failure to do so, evidenced by the lack of any meaningful resistance, the absence of significant injuries, and her own admission of physical resilience from years of agricultural work, casts doubt on the plausibility of her version and undermines the prosecution’s case. 16. The Trial Court rightly observed that although it was possible for her to remove the saree from her mouth using her hands, she did not attempt to do so.The complete absence of such a response from PW.1, otherwise physically capable, invites scepticism. PW.1 also stated that the accused dragged her about five feet toward the road; however, she did not sustain any injury on the back of her body. In this context, the Trial Court observed that the physical circumstances surrounding the alleged incident strongly contradict the PW.1's version of events. The Trial Court reasoned that if the woman had indeed been forcibly taken to fields, as she contended, it would be reasonable to expect that she would have sustained some form of physical injury, such as abrasions, scratches, or other visible marks, given the rough and uneven terrain found in such fields. The absence of any such injuries on PW.1’s body is therefore a significant and material fact that cannot be overlooked. This lack of corroborative physical evidence casts substantial doubt on the credibility of her testimony. It suggests that the event did not occur as stated. PW.1 herself admitted to having no injuries on the back of her body, typically associated 8 with physical resistance. While she alleged that the accused slapped her and caused a minor injury to her knee, these injuries appear superficial and do not indicate a prolonged or violent struggle. 17. Although PW.1 claims to have been slapped and injured, she neither resisted, attempted to flee, nor called for help immediately afterwards. The prosecution has offered no compelling explanation for this lack of resistance or immediate reaction.In light of these facts, the Trial Court’s observation that it sees no reason why the prosecutrix, a grown woman, would have silently submitted to intercourse with the accused, who was unarmed, without offering any resistance, can be accepted. 18. PW.5, the doctor who examined PW.1, noticed three injuries: congestion on the left knee, congestion on the chin, and 1 mm nail marks on the left side of PW.1's neck. The medical evidence does not support PW.1’s version, and the injuries are inconsistent with those typically resulting from a violent assault. The RFSL report (Ex.P3) shows that spermatozoa were not detected on items 1 to 11, except for semen found on items 4 and 9. Notably, semen on item 9 was collected from the accused. The doctor did not offer an opinion on whether the semen from items 4 and 9 originated from the same individual. Furthermore, the doctor was unable to determine whether rape had been committed against PW.1. During cross-examination, PW.5 confirmed no semen was found on the pubic hair. There was also a significant time lapse between the alleged assault and the medical examination, and the RFSL did not conduct blood group testing. 19. The medical evidence does not indicate any injuries to the private parts or any significant injuries to PW.1 that would suggest resistance. The medical officer's testimony also confirms that the accused was examined and found to have no injuries. 20. The defence contends that the accused and PW.1 maintained an illicit relationship for approximately six years, which allegedly led to disputes 9 between PW.1 and Smt. Malleswari, the wife of the accused, primarily regarding the accused’s purported improper contact with Malleswari. During cross-examination, PW.1 denied any quarrel with Smt. Malleswari on the date of the alleged incident, as well as the suggestion that Malleswari was engaged in coolie work and that dispute had taken place in the fields. In support of this defence, reliance was placed on the testimony of PW.8, the investigating officer, who stated that the Sub-Inspector of Police had received a court- referred complaint previously filed by the accused's wife against PW.1 and his son under Section 354 of the IPC. Furthermore, PW.1 refuted the allegation that, on the evening of 02.01.2006, she and her son behaved in a manner intended to outrage the modesty of the accused’s wife at the residence of R. Prasad. The defence alleges that, fearing a counter-complaint by Smt. Malleswari, PW.1, has falsely implicated the accused in this case to evade prosecution in any matter that might have been initiated at Malleswari’s instigation. 21. The prosecution’s version contains inconsistencies regarding the scene of the offence, as correctly highlighted by the defence. PW.9 testified that the scene of the offence was a vacant site belonging to M.Venkaiah. During cross- examination, he stated that PW.1 had shown the scene of the offence, which is a field channel within Venkaiah’s land. He further testified that the Ex.P6 scene observation report indicates the scene of offence as Poramboku land situated in the Dasari Agraharam fields. Had the incident occurred as narrated by PW.1, such discrepancies in her testimony about the scene of the offence would unlikely have arisen. 22. The Trial Court, after evaluating the evidence, expressed serious doubts about the credibility of PW.1's testimony. Despite being a physically strong adult accustomed to agricultural labour, she showed no resistance during the alleged incident. The absence of injuries or signs of struggle, while not conclusive, became significant when considered alongside the circumstances and probabilities of the case. Consequently, the Trial Court observed that the 10 prosecution failed to discharge its burden of proof beyond a reasonable doubt. The inconsistencies in PW.1's version, when juxtaposed with her physical capacity and the lack of corroborative medical or circumstantial evidence, rendered the accusation doubtful in law. Therefore, the benefit of the doubt was rightly extended to the accused, consistent with the established principles of criminal jurisprudence that mandate that suspicion, however grave, cannot substitute for proof. 23. It is a settled proposition of law that in a criminal trial, suspicion, however grave, cannot take the place of proof. The prosecution, to succeed, has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. 24. In a criminal case, the degree of proof is the standard that is required in civil proceedings, and if there is the slightest doubt in the mind of the Court regarding the involvement of the accused person, then the Court should not convict the accused person with such a doubt. Instead, it would be proper for the Court to pass a judgment of acquittal in favour of the accused. When Sessions Court after proper appreciation of the evidence of witnesses passed a judgment of the acquittal, it would not be appropriate for the appellate Court to disturb the said judgment, unless the said judgment of acquittal is unreasonable, even if two views are possible, then also, the appellate Court should not disturb the said judgment, instead, the Court should upheld the view favoured the accused. 25. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing the acquittal into a conviction unless the findings of the Sessions Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 11 26. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka3, the Hon'ble Supreme Court has observed the scope of section 378 of the Code as under: “Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C., speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. Consequently, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of the first instance has its advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it. Still, it is duty bound to satisfy itself whether the decision of the trial Court is both a possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty and the advantage of having seen the witnesses. 27. In the instant case, the appellant/State has not been able to point out how the findings recorded by the learned trial court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 28. The trial Court had rightly concluded by assigning sound and justifiable reasons. Therefore, under this appeal, it does not arise for a call for interference as sought by the appellant/State by urging various grounds. Even for revisiting the impugned judgment of the Acquittal rendered by the trial Court and re-appreciating the entire evidence available on record, there is no material to conclude that the trial Court misdirected and misinterpreted the evidence of witnesses. 29. Therefore, on careful re-appreciation of the entire evidence, this Court found that there is no infirmity or irregularity in the findings of fact recorded by the learned trial Judge and under the circumstances, the learned trial Judge has rightly acquitted the respondent/accused of the elaborate reasons stated 3 2021 (15) SCALE Pg. 184 12 in the impugned judgment, and this Court also endorse the view/finding of the learned trial Judge leading to the Acquittal. 30. Considering the aforesaid facts and circumstances of the case andlaw laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, 1973, no case is made out to interfere with the impugned judgment and order of Acquittal. 31. In view of the above and for the reasons stated above, the present Criminal Appeal No.1261 of 2009 fails, and the same deserves to be dismissed and is dismissed, accordingly. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE T. MALLIKARJUNA RAO Date:23.09.2025 SAK 13 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 1261 of 2009 Date:23.09.2025 SAK