THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.156 of 2006 Date:09th December, 2010 State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant v. Kunchala Govinda Reddy …Respondent *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.156 of 2006 JUDGMENT: This Criminal Appeal is directed against the judgment dated 01.04.2004 passed in Criminal Appeal No.289 of 2001 on the file of VI Additional Sessions Judge (Fast Track Court), Guntur, whereby and whereunder the learned Additional Sessions Judge set aside the conviction and sentence of accused Kunchala Govinda Reddy for the offence under Section 354 IPC passed in Sessions Case No.261 of 2000 on the file of the Additional Assistant Sessions Judge, Tenali. 2. Prosecution case in brief is: PW.1 is the daughter of PW.3. Accused Kunchala Govinda Reddy is a retired teacher. He was a teacher of PW.1 while she was studying in elementary school. The house of PW.3 and the accused are in close proximity. The woman folk in the village used to go to the open place to answer calls of nature. On 07.08.1999 at about 8.00 P.M., PW.1 along with his mother-PW.3 was proceeding to open place to answer calls of nature. PW.3 was ahead of PW.1 by 10 yards. The accused caught-hold of PW.1 and requested her to have intercourse. She raised cries, which drew the attention of her mother, who was ahead of her by 10 yards. On hearing the crimes of PW.1, one Siva Nagi Reddy and PW.2 reached the scene. Thereupon, the accused took to heals. PW.1 accompanied by PW.3 went to Cherukupalli Police Station and presented Ex.P1 report. PW.4 Shaik Johny, S.I. of Police, received Ex.P1 report and registered a case in Crime No.57 of 1999 of Cherukupalli Police Station under Section 354 IPC and issued Ex.P2 FIR. He examined PWs.1 to 3 and recorded their statements under Section 161 Cr.P.C. He inspected the scene of offence and prepared Ex.P3 observation report and Ex.P4 rough sketch of scene of offence. He arrested the accused on 10.08.1999 at about 9.30 P.M. After completing the investigation, he laid the charge-sheet before II Additional Munsif Magistrate, Repalle. 3. The learned Magistrate took the charge-sheet on file as P.R.C.No.54 of 1999 and committed the case to the Sessions Division, Guntur, as the offence under Section 354 IPC is exclusively triable by a Court of Session. 4. The learned Sessions Judge took the case on file as Sessions Case Nos.261 of 2000 and made over the same to the Court of the Additional Assistant Sessions Judge, Tenali, for disposal according to Law. 5. The learned Additional Assistant Sessions Judge, on hearing the prosecution and the accused, framed a charge under Section 354 IPC, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. 6. To bring home the guilt of the accused for the offence under Section 354 IPC, prosecution examined 4 witnesses as PWs.1 to 4 and marked 4 documents as Exs.P1 to P4. On behalf of the accused, he examined one witness as DW.1 and marked the Attendance Register of the year 1999 relating to II Additional Munsif Magistrate’s Court, Repalle, as Ex.D1. 7. The learned Additional Assistant Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offence under Section 354 IPC and convicted him accordingly and sentenced him to suffer rigorous imprisonment for five years and fine of Rs.1,000/- , in default, to suffer simple imprisonment for three months, by judgment dated 07.06.2001. The accused filed Criminal Appeal No.289 of 2001 assailing the judgment of conviction and sentence passed against him in Sessions Case No.261 of 2000. 8. The learned VI Additional Sessions Judge, on re- appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the evidence of PW.1 is not trustworthy and the prosecution failed to give proper explanation for the delay in sending the FIR to the Court and that itself indicates of FIR being antedated. With these observations, the lower appellate Court proceeded to set aside the conviction and sentence of the accused for the offence under Section 354 IPC and accordingly, acquitted him, by judgment dated 01.04.2004. Hence, this Criminal Appeal by the State. 9. Heard learned Additional Public Prosecutor appearing for the appellant/State and learned counsel appearing for the respondent/accused. 10. Learned Additional Public Prosecutor appearing for the appellant/State submits that PW.1 is a victim and her statement is consistent and same is corroborated by PW.3, in which case, the judgment of the lower appellate Court in setting aside the conviction of the accused for the offence under Section 354 IPC is liable to be set aside and consequently, the judgment of the trial Court is to be restored. 11. Learned counsel appearing for the respondent/accused submits that PW.1 is not a trustworthy witness and the lower appellate Court has rightly appreciated the evidence of PW.1 and thereby proceeded to disbelieve her testimony, in which case, the judgment of the lower appellate Court does not warrant interference in this appeal. 12. A charge under Section 354 IPC is one which is very easy to make and very difficult to rebut. A careful approach has to be adopted by the Court while dealing with the cases alleging outrage of modesty. The essential ingredients of Section 354 IPC are as follows: 1) that the person assaulted must be a woman; 2) that the accused must have used criminal force on her; and 3) that the criminal force must have been used on the woman intending thereby to outrage her modesty. 13. The entire case rests on solitary testimony of PW.1. It is no doubt true that the conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case, the Court must be satisfied that implicit reliance can be placed on the testimony of such witness and that her testimony is free from blemish that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one which inspires confidence and leaves no doubt in mind of the Court about the truthfulness of the witness. 14. The question is whether PW.1 is speaking the whole truth. The lower appellate Court after considering the evidence of PW.1 came to the conclusion that PW.1 cannot be characterized as a truthful witness. The reasons recorded by the lower appellate Court are stated in para.9 of the Judgment, which reads as hereunder: “Before proceeding with the contention, the substance of the evidence on record is that PW.1 is the victim and daughter of PW.3 and deposed that at 8 P.M. she was going along with her mother and her mother was 10 yards ahead of her at the time accused came behind and pulled her voni and caught hold of her hand and asked her to have sexual intercourse then her mother came and separated them. The accused also kissed her. She further stated that Sivanaggi Reddy and Arjunareddy rushed to the scene. In the cross- examination, she deposed that the accused is her teacher and she studied upto Vth Class the accused kissed and misbehaving her two or three years of the incident while she was student and because he was relative she did not give complaint. Further she stated that she used to go to the house of the accused to witness the T.V. and accused misbehaved with her in the School the accused misbehaved to her during lunch hour while other classmates were absent and she was alone. When she was watching T.V. the other inmates also present in the house. She further stated that accused attended her marriage along with family members and till the date of her marriage she used to visit the house of the accused and accused also held in settling her alliance. She further deposed that there are houses surrounding the scene of offence. The entire incident was over within two minutes and she gave repot and thereafter informed her father. She denied the suggestion she eloped with Ambarao and accused helped her financially.” 15. It is also trite to note para.16 of the judgment of the lower appellate Court, which reads as hereunder: “16. Before proceeding with the appreciation of the contentions it is necessary to note the essential ingredients of Sec.354 IPC which deals with the outraging the modesty of a woman. To constitute an offence U/S.354 IPC it is essential that the accused should have an intention to outraging the modesty of a woman and then in pursuant to that intention he should make attempt by doing some act on the victim. Further since the offence U/S.354 was made stringently punishable the court should see whether the circumstances alleged are natural and probable but not artificial. In the light of this coming to the appreciation of the arguments and evidence. In the present case it is clearly admitted that accused is aged more than 60 years and worked as a Elementary School Teacher. It is also admitted that PW.1 attended the Elementary School in which the accused was a Teacher. By the evidence it is also clear that accused was responsible for arranging the marriage of PW.1 and also attending the marriage along with his family members and he also closely related to PW.1. In these circumstances it is to be seen whether it would be natural or probable that the accused would have any intention to have desire with PW.1. PW.1 was a kid before accused. P.ws.1 and 3 clearly admitted that PW.1 used to go to the house of accused for attending the tuition during her school days and also goes to the house of the accused for watching the T.V. If at all the accused was teasing her and kissing her as claimed by her and if it was made known to PW.3 she would not have sent PW.1 to the house of the accused. Further if it were true the accused would not have been instrumental in arranging the marriage alliance to PW.1 and in performing her marriage and attending the same as a relative. These circumstances clearly creates a doubt and suspicion over the claim of P.W.1 Obviously these allegations were found by the lower court as false to the extent that Pw.1 gave false evidence that accused teased and kissed her. The present incident is nothing but an extension to the earlier incidents according to PW.1. Therefore, her tendency of speaking falsehood extend to the present incident also. The lower court has wrongly considered the present incident in isolation to the conduct of PW.1 which is not proper. Therefore, it would not be safe for the court to rely on the testimony of PW.1 without being supported and corroborated by an independent reliable evidence. The other evidence is that of PW.3 who is the mother and she claimed that the accused was thief and therefore, she ran away which indicates her contempt and grudge on the accused and to speak against him. Therefore it would not be safe even to accept the evidence of PW.3. Regarding PW.2 even the lower court found that it would not be possible for P.w.2 to see the accused. According to P.Ws.1 and 3 the incident was over within three minutes and when PW.2 is alleged to have been sitting in the house he would not have reached the place and would not have seen the accused at all at the scene but whereas PW.2 claimed that he saw the Pw.3 pushing the accused while accused was holding PW.1. This clearly shows that P.W.2 is also interested in speaking against the accused and was not giving truthful evidence. Therefore, the evidence of PWs.1 to 3 apepars artificial and suspicious. Added to this PW.4 who is the Investigating Officer has claimed that the Magistrate was on leave and he met the Head Clerk and who did not told him about the in- charge arrangements and despatch the FIR on 7-8-99 this was proved to be false by the evidence of D.W.1 and Ex.D1. DW.1 is none other than the Head Clerk of the Court. When the S.I. went to the extent of giving false evidence to cover up the serious lapse which is delay in sending the FIR necessarily creates doubt whether the FIR was antedated and the comaplaint was lodged after due deliberations. The perusal of Ex.P1 shows the word “Muddulu Pettukoni” was inserted in the line. Therefore, this supports the claim of defence that the case was falsely foisted because of some disputes which were suppressed. By reading the entire evidence a doubt arises whether the true facts were placed before the court or an artificial story was created to implicate the accused.” 16. PW.1 was married by the date of the offence. She was in visiting terms with the accused. It is admitted by PW.1 that the accused helped the parents of PW.1 in settling her marriage. The accused along with his family attended her marriage. When PW.1 was in visiting terms with the accused and indeed she used to visit the house and watching T.V. at the house of the accused, it is highly improbable to believe that the accused would make a request to PW.1 to satisfy his lust when she was going along with her mother PW.3 to easing ground. The lower appellate Court has taken note of this fact and proceeded to discard the testimony of PW.1. The reasoning given by the lower appellate Court for recording the acquittal of the accused is cogent and convincing. 17. It is well settled that in an appeal against acquittal, the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such, which could not have been possibly arrived at by any Court acting reasonably and judiciously and is therefore, to be characterized as perverse. It is also well settled that where two views are possible and the view taken by the Court below is possible, appellate Court cannot legally interfere with the order of acquittal even if it is of the opinion that the view taken by the trial Court is erroneous. 18. Keeping in view the limitations of the appellate Court in interfering with the judgment of acquittal, I find that the judgment impugned in this appeal does not suffer from any illegality or irregularity warranting interference of this Court. 19. Accordingly, the Criminal Appeal fails and it is hereby dismissed. ________________________ B.SESHASAYANA REDDY, J. Date:09th December, 2010. Cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.156 of 2006 Date:09th December, 2010