THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1373 of 2009 JUDGMENT: 1. This Criminal Appeal filed under Section 378(1) and (3) Cr.P.C. is directed against the judgment, dated 16.05.2008 passed by the Assistant Sessions Judge, Miryalaguda in S.C.No.429 of 2007, whereunder and whereby, the respondent/sole accused was found not guilty of the offences punishable under Sections 376 and 420 IPC and accordingly, he was acquitted of the charges levelled against him. 2. The brief facts that are necessary for disposal of the appeal may be stated as follows: On 12.03.2007, P.W.1 went to Garidepally Police Station and lodged Ex.P.1 - complaint stating that in the year 2001, the accused developed acquaintance with her, both fell in love with each other, he had sexual intercourse with her and she consented for that, as he promised to marry her. In 2003, she became pregnant and that the accused got forcibly aborted her stating that his parents were not accepting for the marriage, if she was pregnant and thereafter also, the accused continued his intimacy with her. As and when she proposed for marriage, he used to postpone the same and intentionally avoided to marry her and on 18.08.2006, she came to know that the marriage of the accused was fixed with another woman. Then, she questioned about the same, but he threatened her that he was going to marry another woman at the instance of his family members and if she would obstruct his marriage, he would commit suicide, upon which, she also informed that she would commit suicide, if he did not marry her. In spite of the same, the accused married another woman. The police registered a case, investigated into and filed charge sheet. 3. The charges under Sections 376 and 420 IPC were framed against the accused. When they were read over and explained, the accused pleaded not guilty. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.10. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. for incriminating the circumstances appearing in the evidence of the prosecution witnesses. The accused denied the same. No oral or documentary evidence was adduced on behalf of the accused. 6. Upon consideration of the evidence on record, the trial Court acquitted the accused. Challenging the same, the present Criminal Appeal is filed by the State. 7. Now, the point for determination is whether the prosecution has proved the guilt of the accused for the offences punishable under Sections 420 and 376 IPC. 8. The learned counsel appearing for the Public Prosecutor contended that the evidence of P.W.1 is very clear that the accused had sexual intercourse with P.W.1 with a false promise that he would marry her and that on one occasion, she became pregnant; that his deceit of making a false representation that he would marry P.W.1 attracts the offence under Section 420 IPC and that there is no other reason to disbelieve the evidence of P.W.1 and it inspires confidence and therefore, she prays to set aside the order of acquittal. 9. There cannot be any dispute that there is a presumption under the law that the accused presumed to be innocent, unless contrary is proved by the prosecution beyond all reasonable doubt. The presumption of innocence is further strengthened by the order of acquittal. Normally, this Court would not interfere with the order of acquittal. However, this Court has got full power to re-appreciate the evidence to know whether the findings are passed on proper appreciation of evidence on record or any perverse finding was recorded or inadmissible evidence was taken into consideration or admissible evidence has been overlooked. In short, there must be substantial or compelling reasons to interfere with the order of acquittal. 10. Section 376 IPC prescribes punishment for the offence of ‘rape’. The word ‘rape’ as defined under Section 375 IPC reads thus: “A person is said to commit ‘rape’, who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions- 1. Against her will. 2. Without her consent. 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6. With or without her consent, when she is under sixteen years of age. 11. The offence under Section 420 IPC requires the following ingredients: “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 12. The entire case rests upon the solitary evidence of P.W.1. When the case rests upon the witnesses, it must be unimpeachable, true and trustworthy and wholly reliable. In the circumstances, there is no difficulty in accepting the evidence of solitary witness so as to base a conviction. 13. The evidence of P.W.1 would go to show that she had sexual intercourse with the accused from 2001 onwards and her allegation is that the accused made a false promise that he would marry her and on that pretext, she had given consent and she became pregnant and that when she came to know that the accused married another woman, she questioned the same, but the accused stated that if she obstructs the marriage, he would commit suicide. It is not in dispute that P.W.1 was aged 27 years at the time of the alleged incident. It is not in dispute that the first husband of P.W.1 by name, Vishwanadham is still alive. It is also not in dispute that the marriage of P.W.1 with Vishwanadham was subsisting as on the date of giving evidence. 14. The trial Court disbelieved the evidence of P.W.1 on the ground that she had not produced any other document to show that she got aborted, when she became pregnant through the accused; that she had kept quiet for about seven long years and that the false promise allegedly made by the accused to P.W.1 cannot be accepted in view of subsistence of earlier marriage of P.W.1 with Vishwanadham. For about six long years, P.W.1 kept quiet. Even after lodging the complaint, she was not subjected to medical examination to show that she had sexual intercourse with the accused. The documentary evidence to show about the abortion of P.W.1 was not filed into the Court. Except oral testimony of P.W.1, there is absolutely no evidence to show that the accused was having illegal connections with P.W.1 or that he made a false promise that he would marry her and for that reason, P.W.1 gave consent to the accused for sexual intercourse. So, in the circumstances, the trial Court has not placed any reliance on the evidence of P.W.1 in view of the fact that she was a married woman and that the first marriage with Vishwanadham was subsisting even by the date of filing of the complaint. Therefore, in those circumstances, P.W.1 cannot be put in the category of wholly reliable witness, and her evidence requires corroboration. There is absolutely, no other evidence to show that P.W.1 and the accused had sexual intercourse for about seven years prior to the complaint or on one occasion, she became pregnant and at the instance of the accused, abortion took place. That apart, when P.W.1 was a married woman, the question of her re-marriage does not arise in view of the fact that her first marriage was subsisting. 15. P.W.2 is the mother of P.W.1 and she is not an eyewitness to anyone of the instances and she came to know about those aspects through P.W.1. 16. P.W.3, who is an employee in the wine shop of the accused, stated that P.Ws.1 and 2 used to visit the wine shop of the accused for purchase of wine and he does not know about the sexual relationship of P.W.1 and the accused. Therefore, his evidence is not much helpful to the prosecution case. 17. P.Ws.4 and 5 being the witnesses of the scene observation report speak about scene observation. But there is no incriminating material seized during the observation of scene of offence. Therefore, their evidence is not much helpful to the prosecution. 18. P.Ws.6 and 7 were examined to speak about the incriminating circumstances against the accused and P.W.1, but they did not support the prosecution case. Except marking Exs.P.3 and P.4, their statements recorded by the police during the course of investigation, nothing is elicited to connect the accused with the crime. There cannot be any dispute that the statements recorded by the police cannot be used for any other purpose except for contradicting the evidence. 19. P.W.8 is the Police Officer, who registered the case on the report of P.W.1. 20. P.W.9 is the doctor, who examined P.W.1 and gave Ex.P.6 - certificate stating that P.W.1 was accustomed for sexual intercourse. P.W.10 is another doctor, who examined the accused and issued the potency certificate. P.W.11 is the doctor, who treated P.W.1 and conducted abortion to P.W.1. The medical evidence does not indicate that at the instance of the accused, P.W.1 underwent abortion. P.W.12 is the Sub-Inspector of Police, who investigated the case. 21. Therefore, in the absence of any evidence, the trial Court rightly acquitted the accused and there are no compelling or substantial reasons to interfere with the same. 22. The Criminal Appeal is accordingly, dismissed at the stage of admission confirming the judgment, dated 16.05.2008 in Sessions Case No.429 of 2007 on the file of the Assistant Sessions Judge, Miryalaguda. ______________ K.C.BHANU, J 2nd NOVEMBER, 2009. kvni