THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL APPEAL No.1628 of 2008 JUDGMENT: This Criminal Appeal is preferred by the State against the Judgment dated 21.09.2006 passed in SC No.194 of 2005 by the learned Assistant Sessions Judge, Machilipatnam, whereby and whereunder the respondent/Accused was found not guilty of the offences punishable under Sections 448 and 354 IPC, accordingly, he was acquitted of the said charges. 2. Case of the prosecution, briefly, is as follows. i) The de facto complainant/victim (PW.1) is a minor girl. The accused and the victim are neighbours. On 17.04.2005, at about 08.00 pm, the victim girl, after taking bath, went into her house from bathroom and was wearing clothes. At that time, the accused is alleged to have trespassed into the house of the victim girl, hugged her from back side and tried to commit rape on her forcibly, and thereby outraged the modesty of the victim girl. On hearing the cries of the victim girl, the neighbours rushed to the spot and on seeing them the accused ran away. 2 SRK, J Crl.A.No.1628 of 2008 ii) Based on the report given by the de facto complainant/ victim girl under Ex.P1, a case in Crime No.33 of 2005 of Mandavalli Police Station, for the offences punishable under Sections 448 and 354 IPC, was registered against the accused under Ex.P2- FIR. During the course of investigation, PW.6 - the Sub-Inspector of Police visited the scene of offence and prepared rough sketch of the scene under Ex.P3. PW.5 took up further investigation and after completion of investigation he filed charge sheet against the accused for the aforesaid offences. 3. Learned Judicial Magistrate of First Class, Kaikalur took cognizance of the case against the accused for the offences punishable under Sections 448 and 354 IPC and registered the case in PRC No.14 of 2005. As the offence punishable under Section 354 IPC is exclusively triable by the Court of Session, the learned Magistrate, after complying with the due procedure prescribed under law, committed the said PRC No.14 of 2005 to the Court of Session. The said case was numbered as SC No.194 of 2005 and thereafter the same was made over to the Court of the Assistant Sessions Judge, Machilipatnam, for disposal according to law. 3 SRK, J Crl.A.No.1628 of 2008 4. On appearance of the accused, charges under Sections 448 and 354 IPC were framed, contents of the charges were read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried. 5. On behalf of the prosecution, PWs.1 to 6 were examined and Exs.P1 to P3 were got marked. 6. After closure of the prosecution evidence, accused was examined under Section 313 Cr.P.C., explaining the incriminating material found against him in the evidence of prosecution witnesses, for which he denied and reported no defence evidence on his behalf. 7. The learned Assistant Sessions Judge, on appreciation of entire oral and documentary evidence on record, found the accused not guilty of the offences punishable under Sections 448 and 354 IPC, accordingly, acquitted him of the said charges, vide impugned judgment dated 21.09.2006 on the ground that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Aggrieved by the said judgment passed by the learned Assistant Sessions Judge, the State preferred the present Criminal Appeal. 4 SRK, J Crl.A.No.1628 of 2008 8. Heard. Perused the record. 9. 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. 5 SRK, J Crl.A.No.1628 of 2008 10. 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 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.” 11. Coming to the case on hand, PW.1 is the de facto complainant/victim. PWs.2 and 4 are said to be the eye witnesses to the alleged incident. PW.3 is the mother of PW.1. 1 AIR 1962 SC 439 6 SRK, J Crl.A.No.1628 of 2008 PWs.5 and 6 are the Investigating Officers. PW.1 deposed that she studied up to 7th class and the house of the accused is in front of their house. On 17.04.2005, at about 08.00 pm, while she was wearing clothes after taking bath, the accused trespassed into their hut, caught hold of her from her back with his two hands covering the portion of her chest. When she raised cries, the accused ran away. In the meanwhile, PWs.2, 4 and others gathered and she narrated the incident to them. PW.1 further stated that her mother PW.3 went to Komatilanka village, where sister of PW.3 resides, and she returned from the said village on 18.04.2005 at about 12.00 Noon, and then she informed about the incident to her mother. Later, herself, her mother and their relative PW.2 went to the Police Station and gave Ex.P1 report. 12. PWs.2 and 4 deposed that on the date of the incident, while they were in their huts, they heard the cries of PW.1. Then, they rushed to the hut of PW.1. At that time, they saw accused running away from the hut of PW.1. They further deposed that when they reached the hut of PW.1, the position of PW.1 was not good and she was weeping. On enquiry, PW.1 informed that while she was wearing clothes after taking bath, the accused 7 SRK, J Crl.A.No.1628 of 2008 came and caught hold of her. They also deposed that the mother of PW.1 i.e. PW.3, was not available in the village at that time and on the next day, PW.3 came to the village. 13. PW.3, the mother of PW.1, deposed that on 17.04.2005, she went to the village of her younger sister at Komatilanka and returned on 18.04.2005 at about 12.00 Noon. By the time she reached their house, PW.1 started weeping on seeing her. On enquiry, PW.1 disclosed that on earlier night, at about 08.00 pm, while she was wearing clothes after taking bath, the accused came from her back side into their hut and caught hold of her with his two hands. Then she along with PWs.1 and 2 went to the Police Station, where PW.1 gave Ex.P1 report. 14. A perusal of the evidence of PWs.1 to 4 goes to show that though their evidence is corroborating with each other with regard to the alleged incident, the admissions made by them in their cross-examination throw every doubt with regard to veracity of their evidence. PW.1 deposed in her evidence that PWs.2, 4 and others gathered, whereas PW.2 deposed that herself, LW.2 and PW.4 went to the spot on hearing the cries of PW.1. PW.4 deposed that herself, PW.2 and LW.2 went to the spot. PW.2 in 8 SRK, J Crl.A.No.1628 of 2008 her cross-examination stated that mother of PW.1 is sister of her father and her house is after three houses from the hut of PW.1. PW.3, the mother of PW.1 stated in her cross-examination that PW.4 is her brother‟s son. Thus, PWs.1 to 4 are close relatives. It came in the evidence that the hut of PWs.1 and 3 is surrounded by other residential houses. When an incident like present one takes place and PWs.2, 4 and LW.2 reached the spot on hearing the cries of PW.1, the other persons in the abutting houses to the hut of PW.1 would naturally hear such cries of PW.1. PWs.1, 2 and 4 did not state that some other persons from abutting houses to the hut of PW.1 also came to the spot, which raises some sort of doubt to give importance to the interested testimony of PWs.1 to 4. 15. It is pertinent to mention here that neither P.W.1 nor PWs.2 to 4 deposed that the police came to their village on the next day of incident between 10.00 am and 11.00 am, as deposed by PW.1 before giving Ex.P1 to police. If the said statement of PW.1 is taken to be true, the version of prosecution and PWs.2 to 4 that the matter was reported for the first time to police on 18.04.2005 at 03.00 pm by giving Ex.P1 becomes doubtful. 9 SRK, J Crl.A.No.1628 of 2008 16. PW.1 stated in her cross-examination that she did not inform about the incident to any of their neighbours except the people who gathered. She did not communicate the information about the incident to her mother till she returned from the village. She also did not inform about the incident to any of her neighbours even on the next day. She admitted that the parents of accused reside in the house of accused. She stated that she did not go and question the parents of accused about the incident before they went to police station. PW.2 stated in her cross- examination that she did not raise cries on reaching the house of PW.1 that the accused was running away and he should be caught. PW.4 stated in his cross-examination that himself, his wife, his mother and his children were in their house. On hearing the cries of PW.1, he alone went to the house of PW.1. He did not inform his family members that he heard the cries of PW.1 and he is going to the house of PW.1. He stated that he did not inform about the incident to anybody in their locality on the night of incident. These admissions would certainly raise a doubt to believe the testimony of PWs.1, 2 and 4. It is not a case where some independent witnesses also gathered at the house on hearing the cries of PW.1. 10 SRK, J Crl.A.No.1628 of 2008 17. Another important aspect is that the report- Ex.P1 was received at police station on 18.04.2005 at about 03.00 pm and the FIR - Ex.P2 reached the Court through a special messenger on 19.04.2005 at about 03.20 pm. The Investigating Officer - PW.6, who issued FIR, stated that the distance between Mandavalli Police Station and Gudivada Judicial Magistrate of First Class Court may be 25 KMs and the said Police Station and Gudivada Court are on National Highway and there will be frequency of buses on the route. He admitted that there is delay of 24 hours in dispatching the FIR to the Court. Their CD does not disclose as to why there is delay of 24 hours in dispatching FIR to the Court. Every delay in reaching the FIR to the Court cannot be taken to discard the case of the prosecution. The delay has to be considered in the facts and circumstances of each case. In the instant case, the evidence adduced is only of interested witnesses i.e. PWs.1 to 4, who are closely related as admitted by them. PW.6 stated in his cross-examination that he did not cite immediate neighbours on three sides of the house of the victim – PW.1. He added that the neighbours may not be available at the time of offence, as such they were not cited. PW.1 stated that PWs.2, 4 and others gathered. It means beside 11 SRK, J Crl.A.No.1628 of 2008 one another witness LW.2 as witness to the occurrence, some other persons also came to the spot. It being so, the said version of PW.6 does not appear to have any force. In the circumstances, when PW.1 stated that the police came to their village between 10.00 am and 11.00 am on 18.04.2005 before the time of filing report- Ex.P1 as alleged by the prosecution, the said delay in reaching - FIR Ex.P2 to the Court is fatal to the case of the prosecution. 18. Further, the contention of the accused is that there is boundary dispute between his family and family of PWs.1 and 3, hence the present false case has been foisted against him. When the evidence adduced as discussed above being not convincing to accept the case as alleged, the said contention of the accused assumes importance. 19. 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 Assistant Sessions Judge is on correct lines and there are no compelling or substantial reasons to interfere with the Order of acquittal passed 12 SRK, J Crl.A.No.1628 of 2008 by the trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed. 20. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 21.09.2006 passed in SC No.194 of 2005 by the learned Assistant Sessions Judge, Machilipatnam. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed. _____________________________ JUSTICE K. SREENIVASA REDDY Date: 02.05.2025. Nsr 13 SRK, J Crl.A.No.1628 of 2008 THE HON’BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.1628 of 2008 Date: 02.05.2025 Nsr