HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No.996 of 2004 JUDGMENT: This is an appeal arising out of judgment, dated 15.04.2004, passed by the V-Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, in S.C.No.424 of 2002, whereby the accused was convicted and sentenced to undergo Rigorous Imprisonment for a period of two years for the offence under Section 354 of IPC and Rigorous Imprisonment for a period of one year for the offence under Section 452 IPC and also fine of Rs.500/- for the offence under section 354 IPC and Rs.300/- for the offence under Section 452 IPC, in default of fine for the said two counts, Simple Imprisonment for a period of three months on each count. 2. The case of the prosecution is that on 9/10.05.2002, the accused entered into the house of PW.2, who is the wife of PW.3, and switched off the lights and pulled her by catching hold of her left hand, due to which she woke up and raised alaram and her husband and neighbourers came there, and on seeing them, the accused fled away. PW.2 lodged a complaint on 13.05.2002 and the accused was arrested on 14.05.2002. After completion of investigation, charge sheet was filed against the accused for the offence under Section 354 of IPC. 3. Learned Sessions Judge has framed the charges under Sections 452 and 354 of IPC and the accused pleaded not guilty for the said charges. 4. In order to establish the said charges, the prosecution examined six witnesses i.e., PWs.1 to 6 and got marked Exs.P1 to P5. 5. The learned Sessions Judge, by taking into consideration of the said oral and documentary evidence, found the accused guilty for the offences under Sections 354 and 452 of IPC and convicted him as stated supra. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. 6. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Sections 354 and 452 of IPC against the accused beyond reasonable doubt? 7. Learned counsel appearing for the appellant/accused has pleaded that only basing upon the evidence of PWs.2 and 3, who are interested in this case, the Court below has convicted the accused for the charges framed against him even though their evidence was not trustworthy as they are contrary to each other. Learned counsel further pleaded that there is a delay in lodging the F.I.R. and the said delay is not properly explained by the prosecution, and therefore, on these grounds, the appeal is liable to be allowed and the conviction and sentence passed by the Court below is liable to be set aside. 8. On behalf of the Public Prosecutor, it is argued that as the locality people and the caste elders requested PWs.2 and 3 not to lodge any complaint as they would settle the matter, the complaint was not lodged immediately and the delay occurred in lodging the F.I.R. He further pleaded that the evidence of PW.3 is supporting the evidence of PW.2 in all respects and, as such the prosecution could establish the said charges against the accused beyond all reasonable doubt. 9. The prosecution has examined six witnesses. Out of them, PW.2 is the victim, PW.3 is the husband of the victim and PWs.1,4 and 5 are the neighbourers said to have come to the spot on hearing the cries of PW.2, but they turned hostile to the prosecution. PW.6 is the Investigating Officer. Since P.Ws.1,4 and 5 turned hostile to the prosecution, the only evidence available on record with regard to the offence alleged by the prosecution is the evidence of PWs.2 and 3. PWs.2 and 3 have specifically stated that when PW.2 raised cries, the neighbourers came there and saw the accused going out of the house. PW.3 has specifically stated that he caught hold of the accused, but the accused managed to escape from his clutches. Therefore, both the witnesses i.e., PWs.2 and 3 have spoken about the presence of the neighbourers while the accused leaving their house, but as already observed above, the neighbourers examined as PWs.1, 4 and 5 have turned hostile to the prosecution and none of them have spoken about the accused trespassing into the house of PWs.2 and 3 and outraging the modesty of PW.2. 10. According to PW.2-victim, the accused entered into her house at about 12.30 mid night and switched off the lights and caught hold of her left hand. She also stated that the accused dragged her aside and fell upon her, and on hearing her shouting, her husband and some of the neighbourers came to her rescue. She further stated that on seeing her husband and the neighbourers, the accused fled away from the spot. But, PW.3, the husband of PW.2, did not speak about rescuing his wife and the accused running away from the spot on seeing him. According to PW.3, when the accused was coming out of the house, he caught hold of him and that on enquiry, PW.2 informed him that the accused trespassed into their house and switched off the lights and caught hold of her hand, but the factum of PW.2 giving information to PW.3 was not spoken by PW.2. In this regard, the evidence of PW.3 is not corroborated with the evidence of PW.2. It is the case of the prosecution that the neighbourers were present when the accused was going out of the house of PW.2, but as all the neighbourers have turned hostile to the prosecution as stated above, it is not safe to rely upon the sole testimony of PWs.2 and 3, who are the wife and husband, in establishing the offence alleged against the accused. 11. With regard to the delay in lodging the complaint, it is to be noticed that the incident is alleged to have taken place on 09/10.05.2002 at 12.30 p.m., but the complaint was given on 13.05.2002 at 3.00 p.m. According to PWs.2 and 3, as the elders and relations of the accused requested them not to lodge the complaint as they would settle the matter on the next day, they did not lodge the complaint immediately, but since the elders have not settled the matter, they lodged the complaint on 13.05.2002. PW.2 lodged the complaint, wherein she has stated that their caste people and the locality people told her that they would discuss later on, and hence, she did not give her complaint immediately. However, in the evidence, PW.2 stated that they decided to report the matter to the basti elders and also the elders of the accused. PW.2 also stated that the elders of the locality did not come to their help as they were all bent on the side of the accused and, as such, no discussions were held in that regard and that three days thereafter, she went to the police station and reported the matter to the police. Even PW.3, the husband of PW.2, stated that the neighbourers told him that they would discuss the matter in the morning and, in the morning, the relatives of the accused came to them and requested them not to file any case as they would discuss the matter in the presence of elders. He further stated that on 13.05.2002, the relatives of the accused came and said that they did not talk with the accused and his parents and that they could not help in this matter, as such, they went to the police station and lodged the complaint. But the factum of the neighbourers and the locality people asking PWs.2 and 3 not to lodge the complaint and that they will discuss and settle the matter, could not be established by the prosecution. Moreover, the prosecution has not stated the names of the persons who requested PWs.2 and 3 not to lodge the complaint immediately. Therefore, the prosecution could not explain the delay of three days in lodging the complaint. 12. Basing upon the evidence of PWs.2 and 3, the learned Sessions Judge observed that in these type of offences, the locality elders usually interfere and try to pacify the matter amicable and if they fail in their attempt to settle the issue amicably, naturally the victim and her relatives would go to police station to seek justice and, thereby, found that the delay in lodging the complaint was explained by the prosecution. This finding of the Sessions Judge is not correct as the burden is on the prosecution to establish the delay in lodging the complaint, and as the prosecution failed to establish the delay, it is fatal to the case of the prosecution and there is every possibility of fabricating a false complaint due to lapse of time. Moreover, as already observed, the prosecution could not establish that the accused trespassed into the house of PW.2 and caught hold of the hand of PW.2, as alleged by PW.2. Hence, the prosecution has failed to establish the offence under Section 354 and 452 of IPC against the accused beyond all reasonable doubt and, as such, the accused is entitled to benefit of doubt. 13. In the result, the appeal is allowed and the conviction and sentence passed by V-Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, on 15.04.2004 in S.C.No.424 of 2002 is hereby set aside. _______________________ JUSTICE P.DURGA PRASAD 10.06.2011 v v