THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No. 286 of 2005 (Dated : 03-02-2011) Between: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant A n d Yendrapati Mariya Das and two others ..Accused THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No. 286 of 2005 JUDGMENT: This appeal is directed against the judgment dated 15.6.2001 passed in S.C.No.201 of 2000 on the file of Assistant Sessions Judge, Machilipatnam, whereby and whereunder, the learned Assistant Sessions Judge found A-1- Yaentrapati Mariya Dass, A-2-Bonthu Dasu, A-3-Pilli Samuel @ Sanken and A-4-Talakala Vandana Raju not guilty for the offences under Sections 447, 323 and 324 read with 34 IPC and acquitted them accordingly. 2. The prosecution case, in brief, is Pw-1 K.Koteswaramma is a widow and mother of two children. Her husband died about 14 years prior to the date of incident. She along with her children has been residing in 1st Ward, Sharada Nagar Colony, Machilipatnam. On 25.2.2000, she was to go to hospital for treatment. She telephoned to her relation by name Nagarjuna for conveyance and thereupon, the said Nagarjuna arranged a car. Pw.2-Mohd. Baig was the driver of the car. At about 1.30 P.M on that day, Pw-1 Koteswaramma went to bathroom before proceeding to the hospital. By that time her parents had come and they were very much present in the house. It is alleged that the A-1-Yaentrapati Mariya Dass developed an evil eye on her. When she came out from the bathroom, he managed to enter into the house and tried to outrage her modesty. She pushed him aside, rushed to her parents and informed them of the incident. She along with her mother, who has been examined as Pw.5, boarded the car to go to hospital. A-2 to A-4 allegedly came across the car and questioned the driver Pw.2 as to wherefrom he brought the car. It is also alleged that A-2 and A-4 tried to strangulate Pw.2. Thereupon, Pw-1 intervened and questioned the conduct of A-2 and A-4. She sustained bleeding injury in the hands of A-4. In the meanwhile, people nearby gathered there and subsided the incident. While Pw.1 was on the way to hospital in the car driven by Pw.2, A-1 tried to stop the car. However, Pw.2 managed to avoid A-1 and took Pw.1 to the police station, where Pw.1 presented Ex.P-1 report before the Station House Officer, Inaguduru P.S. Pw.-9 V.Vijaya Rao received Ex.P-1 report and registered a case in Crime No.29 of 2000 under Section 354, 323 read with 34 I.P.C and issued Ex.P-8 F.I.R. He examined Pws.1 and 2 and recorded their statements. He sent Pw.2 to Government Hospital for treatment. He inspected the scene and prepared Ex.P-9 observation report and Ex.P-10 rough sketch. Pw.-8 Dr. A.SeshuKumar medically examined Pws.1 and 2 on 25.2.2000 at 11.30 P.M and 11.40 PM respectively and issued Exs.P-6 and P-7 wound certificates. The injuries noticed by him on Pw.1 is:- A swelling of 2 X 2 cm on upper lip on right side cut on gingival surface of 1 cm long with dark red clot is present He opined that the injury is simple in nature. No external injuries are found on the person of Pw.2. Pw.9 examined the witnesses and recorded their statements under Section 161 Cr.P.C. He arrested the accused on 27.2.2000 and sent them for remand. After completing examination, he laid charge sheet in the Court of II Additional Judicial First Class Magistrate, Machilipatnam. 3. The learned II Additional Judicial First class Magistrate, Machilipatnam took the charge sheet on file as P.R.C.15 of 2000 and committed the case to the Sessions Division, Krishna District at Machilipatnam. 4. The learned Sessions Judge took the case on file as S.C.No.201 of 2000 and made over the same to the Assistant Sessions Judge, Machilipatnam for disposal according to law. 5. On appearance of the accused and on hearing the prosecution, the learned Assistant Sessions Judge framed charge No.1 against A-1 for the offence under Section 447 IPC, charge No.2 against A-1 for the offence under Section 354 IPC, charge No.3 against A-2 to A-4 for the offence under Section 323 IPC, charge No.4 against A-1 for the offence under Section 323 read with 34 IPC. 6. The learned Assistant Sessions Jude read over and explained the charges to the accused, for which they pleaded not guilty and claimed to be tried. 7. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined 9 witnesses as Pws. 1 to 9 and exhibited 10 documents as Exs.P-1 to P-10. 8. The plea of the accused is that Pw-1 developed illicit intimacy with Lw-4-Shaik Subhani and on the date of the incident, Lw-4 Subhani came to the house of Pw.1 and his presence in the house of Pw.1 came to be questioned by the inhabitants of the locality and to avoid the inhabitants of the locality, Pw.1 and Lw.4 managed to escape by a car driven by Pw.2 and in the said process, Pws.1 and 2 sustained superficial injuries. 9. The learned Additional Assistant Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused came to the conclusion that the evidence of Pws.1, 2 and 5 is not trust worthy and thereby, proceeded to record acquittal of the accused for the offence under Sections 447, 323, 353 read with 34 IPC, by judgment dated 15.6.2010. Hence, this Criminal appeal by the State. 10. Heard learned Additional Public Prosecutor appearing for the appellant-State and learned counsel appearing for the respondent- accused. 11. Learned Additional Public Prosecutor submits that Pws.1 and 2 are injured witnesses and their testimony is supported by the medical evidence and therefore, acquittal of the respondents-accused for the offences under Sections 447, 323 and 354 read with 34 IPC is not legal and proper and instead the respondents 1 to 4 are liable to be convicted for the offences with which they stood charged. Learned Additional Public Prosecutor took me to the evidence of Pws.1, 2 and 5 in great detail to convince that their testimony is trust worthy. 12. Learned counsel appearing for the respondents 1 to 4 submits that Pw.1 is highly unreliable witness since she tried to conceal the presence of Lw.4 with whom she has questionable relationship at the time of the incident. A further submission has been made that the three witnesses, namely, Pws.1-K.Koteswaramma, Pw.2-Md. Baig and Pw.5-K.Anjamma have given different versions with regard to the incident and therefore, the trial Court is justified in discarding their testimony and recording acquittal of the accused for the offences with which they stood charged. 13. 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 liable and therefore, to be characterised 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. 14. Pw-1 is the victim. Pw.5 is the mother of Pw.1. On the date of the incident, Pw-5 had come to the house of Pw.1. According to Pw.1, at about 1.30 PM on the date of the incident, she went to the bathroom and by the time she came out from the bath room, she found A-1, who caught hold her hand and tried to outrage her modesty. It is also her version that she got rid of him by force and came to her parents. Indisputably, the parents of Pw.1 were very much present in the house at the time of the alleged incident. It is trite to refer the scene of offence panchanama, which has been exhibited as Ex.P-9. Bathroom is on the rear side of the house. The investigating officer, who has been examined as Pw.9 admits in cross-examination that the house has compound wall on two sides. He expressed his ignorance as to the existence of compound wall on the other side. The scene of offence as depicted in Ex.P-9 indicates that the house is surrounded by a compound wall and two bathrooms inside the compound wall. Had the incident occurred as narrated by Pw.1, the natural reaction of her was to make hue and cry so as to draw the attention of her parents, who were very much present in the house. The unnatural conduct of Pw.1 that she came out from the clutches of the accused and allowed the accused to leave the scene and then chose to inform her parents creates any amount of doubt in the mind of the Court with regard to the very occurrence of the incident. 15. With regard to the incident that occurred while Pw.1 accompanied by Pw.5 was proceeding to hospital; it is the version of Pw.1 that A-2 to A-4 came across the car and questioned the driver. Whereas it is the evidence of Pw.5 that it is A-1, who caught hold of the collar of the driver. There is no consistency in the evidence of Pws.1, 2 and 5 with regard to the incident that occurred while they were on the way to hospital in a car. Pw.1 conveniently avoided to mention the presence of Lw.4-Subhan. It was specifically suggested to Pw.1 that she maintained questionable relationship with Lw.4-Subhani and that the inhabitants of locality raised an objection and indeed, they found Lw.4 Subhan in her house and she and Lw.4 Subhan in the process of escaping from the house sustained injuries. It is pertinent to refer the cross-examination of Pw.1 in her own words and it is thus:- “ It is true that the elders imposed a fine of Rs.500/- against me on the ground that I had illicit connection with said K.Raju. It is true the elders imposed fine are the elders of Saradanagar colony. There is a statute of Ambedkar at Saradanagar Colony. There is also a youth Association by name Baba Saheb Ambedkar Youth Association. I do not know one Dasari Rajendra Prasad is the president of that Association. I do not know whether A-1 is one of the members of the same Association and executive member of Youth Association. I do not know whether A-2 to A-4 are the members of the said Youth Association. It is not true to say that A-1 and other members of the Youth Association exposed my illicit connection with one Raju and thereby the elders imposed fine against me. It is not true to say that I continued my illicit relationship with another person by name Anthony Raju and that the same is also exposed by the members of the Youth Association and that in that connection myself and the said Anthony Raju were asked to pay a fine of Rs.500/- by the elders. It is not true to say that I had illicit connection with the car owner Subhan. It is not true to say that on the alleged date of incident during the day time the car owner Subhan came to my house and that the Youth Association members and some caste elders took objection for the same and that there was galata and that the accused has nothing to do with the incident on that day”. 16. She tried to conceal the presence of Lw.4 Subhani at the time of the incident. But, Pw.2 Md. Begum and Pw.5 K.Anjamma admitted the presence of Lw.4 Subhani at the time of the incident. In this background, can the testimony of Pw.1 deserves any credence? In my considered view, no credence can be given to Pw.1. Though the prosecution examined Pws.3, 6 and 7, they did not support the prosecution version and relevant portions of their 161 Cr.P.C statements came to be marked as Exs.P.2 to P.5 by the prosecution. The accused has probabilized their defence with regard to the circumstances under which Pws.1 and 2 sustained injuries. The injuries sustained by them have been detailed in paragraph 2 supra. They are superficial in nature. The trial Court has considered the material brought on record in right perspective and rejected the testimony of Pws.1, 2 and 5. There is no valid reason to differ that the finding recorded by the trial Court. 17. Accordingly, the Criminal Appeal fails and the same is hereby dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.03-02-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No. 286 of 2005 (Dated : 03-02-2011)