IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD MONDAY, THE SEVENTH DAY OF SEPTEMBER, TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1324 OF 2001 BETWEEN: Thati Munnaiah S/o. Nagaiah …. Appellant/Accused AND The State of Andhra Pradesh, rep. by Public Prosecutor …. Respondent/Complainant THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1324 OF 2001 JUDGMENT: This Criminal Appeal is filed by the appellant / sole accused, Thati Munnaiah, under Section 408 of The Criminal Procedure Code (old) (for short ‘Cr.P.C.’) against the judgment dated 17-08-2001 in S.C. No. 51 of 1996 passed by the learned Assistant Sessions Judge, Kothagudem, whereunder and whereby the appellant was found guilty of the offence punishable under Section 354 of the Indian Penal Code (for short ‘IPC’) and accordingly convicted and sentenced to suffer rigorous imprisonment for five (5) years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two (2) months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: PW.4 V. Nagamma is a resident of Govindapuram. PW.1 is the victim girl, who is none other than the daughter of PW.4. On 8th October 1994 at about 7-00 AM while PW.1 reached the land of one Katta Suraiah, the accused came from the side, caught hold of her right hand, dragged her into the bushes situated at a distance of 50 yards and pushed her down facing upwards and closed her mouth with his right hand and lifted her petty coat with his left hand and on that PW.1 raised cries and on hearing her cries PW.2 Y. Adaiah and another T. Narasimha Rao came there. On seeing them, the accused ran away, but however, PW.2 and another person chased and caught hold of the accused and produced him before the village elder PW.3 T. Veeraswamy. PW.1 also went to the house of PW.3 and when the Panchayat was held, the family members of the accused did not participate in the panchayat but took away him. ii) On the next day morning PW.1 went to the Police Station and lodged Ex.P-1 complaint with PW.8 Sub-Inspector of Police, Dummugudem. PW.8 registered a case in Crime No.46 of 1994 under Section 376 read with 511 IPC and took up investigation and examined witnesses. He also observed the scene of occurrence and conducted Ex.P-2 panchanama in the presence of mediators and sent PW.1 for medical examination. PW.7 Dr. K.Padmaja examined PW.1 and found nail scratch marks four in number on the left side of the neck of PW.1. After completion of the investigation, PW.8 laid the charge sheet. iii) The following charge was framed against the accused: “That you on or about the 8th day of October, 1994 at about 7-00 AM at Pedda Bandi Revu committed rape on Velakam Bullemma by gagging her mouth and that you thereby committed an offence punishable under Section 376 of Indian Penal Code and within my cognizance.” When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 3. To substantiate its case, prosecution examined PWs.1 to 8 and got marked Exs.P-1 to 4. On behalf of the accused, no oral or documentary evidence was adduced. 4. The trial Court accepting the evidence of PW.1, found the appellant / accused guilty of the offence punishable under Section 354 IPC and accordingly convicted and sentenced him as stated supra. Challenging the same, the present appeal is filed. 5. The learned counsel appearing for the appellant contended that in view of the fact there were civil disputes existing between PW.4 and the accused, a false case is foisted, that no specific charge has been framed against the accused under Section 354 IPC thereby causing prejudice to the accused in conducting his defence, that the earlier report said to have been given by PW.5 was suppressed, that Ex.P-1 was brought into existence during the course of investigation and that the evidence of PW.2 contradicts the evidence of PW.1 on material particulars and therefore, he prays to set aside the conviction and sentence recorded against the accused. 6. On the other hand, the learned counsel representing the learned Public Prosecutor contended that there is no other reason for PW.1 to foist a false case against the accused, that her evidence is consistent from the beginning and leaves no room to doubt that the accused attempted to commit rape on her, that the trial Court after considering the evidence on record, rightly placed reliance on the evidence of PW.1 in convicting the accused and none of the findings is shown to be perverse or contrary to law and therefore she prays to dismiss the appeal. 7. Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offence punishable under Section 376 IPC ? 8. The charge framed against the accused is under Section 376 IPC. The entire case rests upon the solitary testimony of PW.1, who is the victim. When the case rests upon the solitary testimony of PW.1 with regard to offence for which the accused was charged, it must be free from doubt, true and trustworthy and reliable. If the evidence of PW.1 is put in the category of wholly reliable, then there is no need for corroboration. If her evidence is found to be partly reliable or partly unreliable, then in such a case, it requires corroboration on material particulars. 9. Coming to the evidence of PW.1, she deposed that when she reached the land of one K. Suraiah, the accused came from the side and caught hold of her right hand and dragged her into the bushes at a distance of 50 yards, that thereafter he pushed her down facing upwards, and closed her mouth with his right hand and lifted her petty coat with his left hand; that she raised cries and on hearing her cries, PW.2 rushed to the scene of occurrence. 10. PW.7 is the doctor who examined PW.1 on 08-10-1994 found nail scratch marks four in number on the left side of the neck, size 2 x 0.5 CM., and no injuries were found on the breast or vulva. She collected vaginal swab for semen stains, nail clippings and pubic hair and sent the same to the Forensic Science Laboratory for opinion. She could not give any final opinion, as the report from Forensic Science Laboratory was not received. Therefore, she issued Ex.P-3 medical certificate on 08-10-1994. She admitted in the cross-examination that nail scratches could be possible by self-infliction. Therefore, the medical evidence is inconclusive with regard to committing rape on PW.1 by the accused. The prosecution has not given any explanation as to why it was not produced the expert’s opinion of the Regional Forensic Science Laboratory. Therefore, there is no medical evidence to support the case of the prosecution. 11. The earliest version as stated in Ex.P-1 complaint would go to show that the accused caught hold of her right hand, dragged her into the bushes and asked her to sleep with him and fell down on her and tried to commit rape on her. She admitted that PW.5 K. Damodar Rao scribed the contents of the complaint in her village and he also signed on the complaint. Whereas PW.5 stated that he prepared the report on the narration of PW.1 and after obtaining her thumb impression, it was lodged before the police. He further admitted that Ex.P-1 was not in his handwriting and it does not contain his signature. 12. PW.8 Sub-Inspector of Police stated that on 08-10-1994 at about 8-15 PM, PWs.1 and 2 came to the Police Station and lodged Ex.P-1 statement before the Head Constable who registered the case. Therefore, the evidence of PW.8 would go to show that on the date of incident, at about 8-15 PM, PW.1 allegedly lodged Ex.P-1 complaint. But, according to PW.1 on the next day morning she went to the Police Station and lodged the complaint. She has not stated that she lodged the complaint on the date of incident. 13. From the above evidence, it is clear that in the first instance a complaint was drafted in the village itself by PW.5 to the narration of PW.1. Admittedly, the contents of Ex.P-1 were not written by PW.5. Therefore, the prosecution has come forward with two versions with regard to lodging of complaint. For the reasons best known to the prosecution, the complaint scribed by PW.5 was suppressed and to suit the case of the prosecution, Ex.P-1 was brought into existence. When PW.1 did not go to the Police Station on the date of incident, it is not known as to how Ex.P-1 came into existence. Therefore, the very setting of criminal law into motion is doubtful. A structure built on weak foundation is liable to collapse. Therefore, the evidence of PW.1 has to be viewed with suspicion. 14. It is an admitted fact that there were disputes between the family of PW.4 and the family of the accused regarding lands and in that connection, panchayats were also held. In view of the disputes, the possibility of foisting a false case against the accused cannot be ruled out. PW.2 is said to be the circumstantial witness who rushed to the scene of occurrence after hearing the cries of PW.1. It is not in dispute that the land of Suraiah was under his (PW.2) cultivation, therefore, it was probable for this witness to go to the land of Suraiah for attending to the agricultural operations. According to him when he went near to the place of occurrence, he saw the accused and PW.1 fighting with each other. Then he and one Narasimha Rao caught hold of the accused and produced him before the Village elder PW.3. According to PW.3, he was informed by PW.1 that the accused committed rape on her. 15. From the evidence of PW.2, it cannot be said that accused either committed rape on PW.1 or made an attempt to commit rape. On the other hand, his evidence would go to show that both PW.1 and the accused were fighting with each other. Therefore, the evidence of PW.2 completely rules out the possibility of committing rape by the accused on PW.1 or making an attempt to commit rape on her. In such circumstances, it is not safe to place an implicit reliance on the evidence of PW.1 alone to base a conviction as there were civil disputes existing between PW.4, who is none other than the mother of PW.1, and the accused. In such circumstances, the evidence of PW.1 requires corroboration on material particulars. But, there is no such corroboration. The trial Court came to a wrong conclusion that the accused committed an offence punishable under Section 354 IPC but not 376 read with 511 IPC. But, there is no such charge. 16. The offence punishable under Section 354 IPC and the offecne punishable under Section 376 IPC are separate and distinct. The offence punishable under Section 354 IPC cannot be said to be a minor offence. Therefore, not framing the charge under Section 354 IPC against the accused causes prejudice to him, because, the ingredients of Section 354 IPC are entirely different from that of the ingredients of Section 376 IPC. 17. Therefore, under these circumstances, it is not safe to place an implicit reliance on the evidence of PW.1 to base a conviction. The prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubt. Hence, the conviction and sentence recorded against the accused are liable to be set aside. 18. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the Assistant Sessions Judge, Kothagudem against the appellant – accused of the offence punishable under Section 354 IPC in S.C. No.51 of 1996 dated 17-08- 2001. The appellant - accused is found not guilty of the charge under Section 354 IPC and accordingly he is acquitted of the said charge. Bail bonds of the accused shall stand cancelled. Fine amount, if any, paid by the appellant – accused shall be returned to him. _____________ K.C. BHANU, J SEPTEMBER 07, 2009. KTL