IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.2485 OF 2004 Between : Public Prosecutor. … APPELLANT A N D Vatapalli Prabhakara Rao …RESPONDENT THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.2485 OF 2004 JUDGMENT: The accused/respondent was acquitted by the lower Court of the offence punishable under Section 376/511 IPC. The Public Prosecutor filed this appeal questioning acquittal of the accused. 2. The victim girl is aged about 12 years. It is alleged that on 12.06.2000 at about 11:00 AM when the victim girl /P.W.1 was sent to house of the accused for assisting him in preparation of a wooden table, the accused took her into his brother’s house and bolted the room from inside and attempted to commit rape on her. Plea of the accused is one of total denial and one of not guilty. After trial, the lower Court found the accused not guilty of the charge. 3. Out of the witnesses examined, P.Ws.4 to 7 totally turned hostile to the prosecution case. P.Ws.8 and 9 are the Police officers who registered the crime and who investigated into the offence. P.W.2 is mother and P.W.3 is elder sister of P.W.1. P.W.3 speaks only to the extent of sending P.W.1 to the house of the accused to assist him in his work and about P.W.2 going towards house of the accused to verify to what extent the work was completed by the accused with the help of P.W.1. P.W.2’s evidence is also to the same effect; and she further deposed that when she went inside house of brother of the accused, the accused opened door of the room and ran away crossing P.W.2. P.W.2 also saw P.W.1 lying on the cot inside the room. P.W.1 narrated the incident which had happened inside the room to P.W.2. Thus, there is only evidence of P.W.1 as to what happened inside the room, and also evidence of P.W.2 as to what has narrated by P.W.1. Though P.W.1 was sent for medical examination, the prosecution could not examine the Medical Officer, who issued Ex.P.9 Wound Certificate and Ex.P.11 Final Opinion Certificate, on the ground that whereabouts of the Doctor were not known. 4. Though the offence took place on 12.06.2000, Ex.P.1 report was given to the police by P.W.1 on 14.06.2000, with a delay of two days. It is contended by the Additional Public Prosecutor that delay of two days occurred in giving report to the police because mediation was held in the Village and the mediation failed. No mediator relating to the alleged mediation between P.W.1’s family and the accused was examined to prove the mediation. The delay of two days in giving report is left unexplained by leading proper proof. 5. It is evidence of P.W.1 that the accused sent her into his brother’s house for bringing wood pieces for preparation of table and that when she went inside the room where there was a attic, the accused closed door of that room from inside. It is her further evidence that even after she was laid on the cot, she laid herself facing downwards and in spite of the accused making efforts to turn on her back, the accused was not successful. She further says that when sister of the accused called, the accused kept P.W.1 on the attic. It is not P.W.1’s case that she raised any hue and cry. If she raised any cries, then two sisters of the accused who were near the scene of offence would have rushed to the spot. It is evidence of P.W.1 that when the accused laid her on cot, edge of the cot hit on her head causing injury to her head. The said fact is not corroborated by Ex.P.9 Medical Certificate. As per Ex.P.9, there are no external injuries on P.W.1. It is contended by the respondent’s counsel that there were no injuries on P.W.1 indicating any struggle between P.W.1 and the accused. In fact, P.W.1 did not speak to any struggle or any efforts to wriggle out of hands of accused. She did not even raise voice in protest against the accused. On total reading of evidence of P.W.1, I am of the opinion that though an incident happened between P.W.1 and the accused, the said incident cannot be concluded as an attempt on the part of the accused to commit rape on P.W.1. At best, it becomes only a preparation for having sexual intercourse by the accused with P.W.1. The preparation to commit an offence as distinguished from an attempt, is not punishable under law. Though certain parts of the judgment of the lower Court are unsatisfactory, for my own reason given above, I agree with the conclusion of the lower Court that the accused is not guilty of the charge. 6. Accordingly the appeal is dismissed. __________________________ SAMUDRALA GOVINDARAJULU, J AUGUST 19, 2011 YVL THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.2485 OF 2004 19.08.2011 YVL