HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2170 of 2004 Date:24.01.2011 Between: Gundelli Devaiah ….Appellant And: The State of A.P., rep. by its PP., High Court of A.P., Hyderabad .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2170 of 2004 JUDGMENT: This is an appeal arising out of the conviction and sentence passed in S.C.No.540 of 2003 by the Assistant Sessions Judge at Sircilla on 21.9.2004. The appellant herein was prosecuted for an offence under Section 354 IPC by the Station House Officer, Sircilla Police Station. The brief averments made in the charge sheet are that on 25.12.2001 at about 11.00 p.m while the complainant and her children were sleeping, her younger daughter got up the complainant for urination. She took her daughter out of the house for toilet. When she returned into the house the accused who is the neighbour had entered into the house and stood there. On seeing him, the complainant questioned him as to why he came there and asked him to go away. He gaged her mouth and dragged her to the cot and pushed her on cot and tried to molest her. She managed to push him aside and raised cries and on which her father-in-law came there armed with stick. On seeing him the accused left the place asking her not to inform the incident to any body. On 26.12.2001 at 15.00 hours, she lodged a complaint before the Station House Officer, Sircilla Police Station. The said complaint was registered by the Station House Officer as a case in Crime No.200 of 2001 under Section 354 IPC and after completing investigation, the police filed charge sheet. The learned Assistant Sessions Judge has framed a charge under Section 354 IPC against the accused and the accused pleaded not guilty for the said charge and claimed to be tried by the court. The prosecution in order to establish the said charge examined the complainant as P.W.1, her father-in-law as P.W.2 and independent eye witnesses as P.Ws.3 to 5 and daughter of the complainant as P.W.6 and the Sub Inspector of Police, Sircilla Police Station as P.W.7 who has filed the charge sheet, as P.W.8, the Head Constable who has registered a case in Crime No.200 of 2001 against the accused and investigating the crime and got marked Exs.P-1 to P-5. Ex.P-1 is the complaint given by the P.W.1. Exs.P-2 to P-4 are the Section 161 statements of P.Ws.3 to 5 under Section 161 Cr.P.C. Ex.P-5 is the FIR in Crime No.200 of 2001. Basing on both oral and documentary evidence, lower court found the accused guilty for the offence under Section 354 IPC and convicted and sentenced to undergo Rigorous Imprisonment for 7 years and a fine of Rs.5,000/- in default to under go simple imprisonment for two months under Section 235(2) Cr.P.C. Aggrieve by the said conviction and sentences, the accused filed the present appeal. Now the point that arises for consideration is whether the prosecution could be able to establish the charge under Section 354 IPC against the accuse beyond all reasonable doubt? The lower court has observed that P.W.1 is the complainant and victim and her evidence was supported by her father-in-law who is the P.W.2 and daughter P.W.6, an held the charge against the accused as proved. The allegations made against the accused as per the charge sheet are on 25.12.2001 at 11.00 p.m, the defacto-complainant and her children were sleeping, her younger daughter got up the complainant for urination. She took her daughter out of the house for toilet. When she returned into the house the accused who is the neighbour had entered into the house and stood there. On seeing him the complainant questioned him as to why he came there and asked him to go away. He gaged her mouth and dragged her to the cot and pushed her on cot and tried to modest her. She managed to push him aside and raised cries and on which her father-in-law came there armed with stick. On seeing him the accused left the place asking her not to inform the incident to any body. The complainant as P.W.1 has stated in her Chief-examination that about two years ago at about 11.00 p.m, when he came out along with his daughter for her urination and after returning inside the house the accused was inside her house and then she asked him as to why he came to her house in that night and then the accused thrown her on the cot in order to commit rape on her. Her husband is at Dubai and the accused asked her as to how she is staying without her husband. When she raised hue and cries, her father-in-law came there, the accused escaped threatening her with dire consequences. In the cross-examination, she has stated that herself and her two daughters and her father-in-law are in the house. On the day of incident also her father-in-law was in the house. Her house consist only one room and it consist only one door. There are residential houses surrounding her house. Her brother’s-in-law’s house is also nearer to her house. They are residing in their houses. She denied the suggestion that there were disputes between her and wife and mother of the accused near the tap and boring grudge against them, she filed a false case against the accused. P.W.2 is the father-in-law of the complainant has only stated in his chief-examination that the accused came inside of their house and thrown P.W.1 on the cot and then P.W.1 raised cries and he came inside on seeing him and the accused escaped from the scene. In the cross- examination, he has stated that he is having three sons. He stays one month each with his sons. He slept on that day in his first son’s house. P.W.1 is second son’s wife. He has seen the accused and when he came there by opening the door the accused was running. P.W.6 who is stated to be the daughter of P.W.1 has also stated that about 11.00 p.m her mother took her sister for urination and came inside the house, the accused caught hold the hands of her mother P.W.1 and then her mother raised cries and she woke up and she also raised cries and when her grand-father P.W.2 came inside by opening the door, the accused ran away from the house. In the cross- examination, she stated that she witnessed the incident. Herself and her mother were inside the house. Therefore, from the above evidence of P.Ws.1 and 2, it is evident that the P.W.2 was not sleeping in the house of the complainant as on the date of incident, but he came from outside the house and according to him he was slept on that day in his first son’s house. P.W.1 is his second son’s wife. P.W.3 is the daughter of the complainant also is not an eye witness to the incident. Therefore, she cannot say about the accused caught hold of the hands of P.W.1. It is argue on behalf of the learned Public Prosecutor that the evidence of P.W.1 was supported by P.W.2 and P.W.6 is identifying the accused has present at the time of incident. P.W.8 Investigation Officer has not visited the scene of offence and he has not aware where the incident has taken place but he has filed the charge sheet only basing on the statements recorded by him. According to the prosecution, the P.W.1 came out of the house along with her daughter Haritha who is aged about 6 years for passing urine and when she returned to the house, the accused was present in the house. Haritha was not examined to speak about the presence of the accused in the house. As admittedly P.W.6 is only heard the cries of P.W.1. P.W.2 is the father- in-law came to the incident only on hearing the cries of P.W.1 from outside. He has seen only the accused ran away. In order to establish the offence under Section 354 IPC, the prosecution has to establish that the accused outraged the molests P.W.1 by using criminal force and intended to commit the rape on her. With regard to outrage by using criminal force, except the evidence of P.W.1, the other witnesses are not spoken about the same. According to the prosecution, the alleged incident was witnessed by P.Ws.3 to 5 and they have turned hostile to the prosecution. According to the accused, since there are disputes between the P.W.1, her mother and the wife of the accused near tap, she bore grudge against him and filed a false complaint against the accused and the lower court has observed that the accused failed to establish the same. But, P.W.3 who was examined on behalf of the prosecution has stated in his chief-examination that he knows P.W.1 and also the accused and about three years ago there were disputes between the mother and sister of the accused and P.W.1. Therefore, P.W.1 filed a false complaint against the accused. Therefore, the version of the accused was established from the evidence of P.W.3 who is the prosecution witness. Therefore, from the evidence of P.Ws.2 and 6, it cannot be said that the accused has committed the offence under Section 354 IPC against P.W.1. Therefore, he is entitled for benefit of doubt. Thus, the prosecution could not be able establish the charge under Section 354 IPC against the accused beyond all reasonable doubt. In the result, the appeal is allowed and the conviction and sentences passed by the Assistant Sessions Judge, Sircilla in S.C.No.540 of 2003 is set aside. _____________________ P.DURGA PRASADJ. Date:24.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2170 of 2004 Date:24.01.2011 Gk.