IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2539 of 2004 DATE: 09.09.2011 Between: The Public Prosecutor …… Appellant And Gandham Yesu …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2539 of 2004 JUDGMENT: The State filed this appeal against acquittal of the accused recorded by the lower Court of the offence under Section 354 I.P.C by the impugned judgment. 2) It is alleged that on the night of 29/30.04.1999 at about 1.30 hours when P.W-1 along with other family members were sleeping on cots in front of their house in open place, the accused went there and lifted P.W-1 out of cot on his hands with an intention to take away her in order to fulfil his lustful desire and that P.W-1 woke up and raised cries and P.W-1 and others tried to catch the accused and that the accused ran away. Plea of the accused is one of total denial and not guilty. After trial the lower Court found him not guilty of the charge. 3) P.W-4 who is an independent witness turned hostile to the prosecution and did not support the prosecution case. P.Ws 1 to 3 and 5 spoke about the incident. The lower Court disbelieved the prosecution case on the grounds that all the witnesses are interested witnesses and that there are disputes between the two families and that there was no possibility of identification of the accused by the witnesses in that night. It is contended by the Additional Public Prosecutor that the accused is a known person to P.Ws 1 to 3 and 5 and was identified by the prosecution witnesses in the glow of street light and that P.W-1 who is a family lady would not have made false allegation touching her modesty or chastity. 4) There is no dispute about there being disputes between families of the accused and P.Ws 1 to 3. Admittedly there is severe enemity between the two families with regard to flow of drainage water from the house of P.Ws 1 to 3 towards the house of the accused. In the light of the said admitted animosity between the parties, evidence of the prosecution witnesses has to be judged. 5) The lower Court noticed that either in Ex.P-1 First Information Report or in Ex.P-4 rough sketch of the scene of offence there is no mention about existence of any street light near the scene. P.W-1 did not state in Ex.P-1 that there was any street light near the scene and that it was glowing and that she identified the accused in the light of the same. The investigating officer/P.W-6 observed the scene during investigation and prepared Ex.P-4 rough sketch of the scene. In Ex.P-4 also there is no mention about location of any street light near the scene where P.W-1 and others were sleeping. In the absence of any basis in the documentary evidence and also in other investigation record about proper identification of the accused by P.W-1 and other prosecution witnesses, the lower Court rightly disbelieved their evidence regarding identification of the accused. 6) According to P.W-2, she raised shouting as ‘thief’ in that night. If really P.W-2 saw the accused lifting away P.W- 1 from her cot, she would not have raised shouts as ‘thief’ and would have shouted otherwise. It clearly shows that P.W-2 did not identify the alleged culprit as the accused at the time of offence. 7) This is not a case where the accused is stated to have disturbed clothing of P.W-1 when she was sleeping on cot in open space in front of the house along with other family members. This is not also a case where the accused is stated to have touched P.W-1 and called her. According to P.W-1, the accused physically lifted her entire body on his hands to take her away from the midst of sleeping family members. This activity alleged against the accused is highly improbable. When P.W-1 was sleeping in open space in front of her house along with at least four of her family members including men and women, the accused would not have made any attempt to physically lift entire body of P.W-1 on his hands to go away from that place with her. 8) In view of the said infirmities in the prosecution case and in the prosecution evidence, the lower Court rightly came to the conclusion that the prosecution could not prove its case beyond all reasonable doubt. There are no grounds in this appeal to interfere with the order of acquittal recorded by the lower Court. 9) Hence, the appeal is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J September 09, 2011 ksh