THE HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1234 OF 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, in S.C.No.143 of 2003 on 22-06-2004. 2. The appellant herein was prosecuted for an offence under Section 354 IPC alleging that the complainant and his wife are residing in house No.17-3D-492, West Chandranagar, Yakootpura, Hyderabad, and the accused is his neighbour and used to misbehave with his wife Smt.Sujatha and the complainant warned him. On 14-09-2002 at 10.30 p.m., when the complainant’s wife, PW-2 went to the common toilet in front of their house the accused forcibly entered into the toilet and caught hold of his wife’s waist from the backside and on her hue and cry the accused ran away from the spot. Thereafter PW-1 has lodged complaint with the police which was registered as a case in Crime No.110/2002 at Rain Bazar, Hyderabad. After completion of investigation police filed charge sheet against the accused. 3. The learned Sessions Judge has framed the charge under Section 354 IPC against the accused. The accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge examined PWs.1 to 5 and got marked Exs.P-1 and P- 2. On behalf of accused DW-1 was examined Exs.D-1 and D-2 were marked. The learned Sessions Judge by taking into consideration the said oral and documentary evidence found the accused guilty for the offence under Section 354 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for a period of three months. Aggrieved by the said conviction and sentence the present appeal is filed. 4. Now the point that arises for consideration in this appeal is: Whether the prosecution could able to establish the charge under Section 354 of the Indian Penal Code against the accused beyond all reasonable doubt ? 5. P O I N T:- According to the prosecution, on 14-09-2002 at 10.30 p.m. when PW-2 went to the common toilet situated in front of their house the accused forcibly entered into the toilet and caught hold her waist from the backside and on her hue and cry the accused ran away from the spot. PW-1 the husband of PW-2 has stated about his wife going out of his house on 14-09-2002 at 11.30 p.m. to attend the calls of nature and within few minutes he heard hue and cries of his wife, immediately rushed outside his house and the accused was going away from the latrine side. When he questioned his wife as to why she cried, she informed him that the accused caught hold of her waist and hand all of a sudden and as such she raised hue and cry. Then he went to the house of the accused situated by the side of his house and questioned him as to why he outraged the modesty of his wife. The accused began quarreled with him and beat him. On the same day himself and his wife went to Police Station and reported the matter to the police. Ex.P-1 is the complaint given by him. 6. In the cross-examination he admitted that he has not stated to police in his statement that his wife went to Government toilet as in Ex.D-2. He denied that he has not stated before police that in his Section 161 Cr.P.C. statement that the accused caught hold of hand of his wife, by the time he reached the spot the accused was already ran away from that place and he has not seen the accused while the accused caught holding hand and waist of his wife. 7. According to him, he lodged Ex.P-1 complaint on the same day to Police. In Ex.P-1 he has only stated that the accused has mis-behaved with his wife and when he came to know he warned the accused. On 14-09-2002 his wife went to the toilet in the night at about 10.30 p.m. for passing urine the accused forcibly tried to enter his wife ran over. On the next day morning it is reported to the police. Thus, in Ex.P-1 PW-1 has not stated anything about the accused catching hold of his wife waist and also hand by entering into the toilet. 8. The victim PW-2 has stated that at about 11.30 p.m. she went outside to attend the nature calls and she went to the common toilet and she opened the door and on seeing her the accused came behind her and caught hold of her hand and also her waist and she raised hue and cry. Immediately her husband rushed to the spot and saw the accused ran away. On enquiry, she told her husband what has happened. Immediately her husband went to the house of the accused and questioned him and the accused and his family members quarreled with her husband and also beat him. While the quarrel was going on between themselves and the accused, police personnel came to their locality and questioned them as to why they are quarrelling in that night. Thereafter the police took her husband and accused to the Police Station. In the cross-examination she admitted that the accused family was having separate bathroom and toilet and the remaining families were having common bathroom and toilet. There are eight families residing in the said compound during the relevant period. She also admitted that she has not stated to the police when she tried to close the door accused entered into the toilet and trying to outrage her modesty by caught holding of her waist from back side as in Ex.D-1. 9. Therefore, the victim also did not spoke before police in her statement about the accused entering into the toilet and trying to caught hold her waist from back side. PW-3 who is said to be an eyewitness is not an eyewitness to the incident but only came to know the incident immediately through PWs.1 and 2. The Sub- Inspector of Police who registered the case is examined as PW-4 and he has spoken about registering case and issuing F.I.R. 10. PW-5 is the Investigating Officer who examined the witnesses and arrested the accused and subsequently filed the charge sheet and in cross-examination he stated that PW-1 stated to him as in Ex.D-1. PWs.1 and 2 did not state to him in their 161 Cr.P.C. statement about the accused beating PW-1, when he has gone to his house to enquire the matter. PW-2 has stated before him as in Ex.D-1 and PW-2 did not state to him in her statement that her husband saw the accused running away from the toilet. Therefore, the only evidence available on record to speak about the incident is PWs.1 and 2 who are husband and wife. Both of them have spoken that the accused has caught hold of waist of PW-2 and also her hand and tried to outrage her modesty but the said fact was not stated by them in their statement before police and said fact was also not stated by PW-1 in the complaint Ex.P-1. More over, both of them have not spoken about the accused beating PW-1 when PW-1 questioned the accused. According to the appellant’s counsel there are prior disputes between them and due to the disputes the false case is foisted against him. With regard to the said disputes, in the cross- examination of PW-1, it is elicited that one time the parents of the accused quarreled with their family members regarding washing of dirty clothes and cleaning vessels in mori in front of his house. PW-2 also stated about the prior disputes between their family and the family of the accused. Therefore, in view of the enemacity existed between the accused family and victim family prior to the incident there is every possibility of fabricating the false case. More over, as already observed above the prosecution could not establish the specific overt acts attributed to the accused i.e., entering into the toilet and catching hold of the victim from behind. Therefore, the prosecution could not establish the charge under Section 354 IPC against the accused beyond reasonable doubt. 11. In the result, the appeal is allowed and the conviction and sentence passed in S.C.No.143 of 2003 by the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, is hereby set aside and the accused is acquitted for the offence under Section 354 IPC. _______________________ P. DURGA PRASAD, J August 20, 2011 PN THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1234 OF 2004 August 20, 2011