IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD Date:04-03-2011 PRESENT: THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No. 34 OF 1999 Between: The State of Andhra Pradesh represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad. .. Appellant AND Konaganti Manikyam .. Respondent Counsel for the Appellant : Addl. Public Prosecutor Counsel for the Respondent: Sri A.H. Chakravarthy The Court made the following Judgment: THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.34 OF 1999 JUDGMENT: This Criminal Appeal is preferred by the State against the judgment of acquittal of the respondent – accused recorded by the learned Principal Assistant Sessions Judge, Ranga Reddy District, Saroornagar, Hyderabad, in S.C. No.337 of 1996 dated 20-07-1998, inter alia, on the following grounds : i) that the trial Court erred in not accepting the evidence of PW.2 victim; ii) that the trial Court erred in not considering the fact that PWs.1 and 3, who are brother and mother of the victim – PW.2, had corroborated the evidence of PW-2; iii) that the trial Court ought to have seen that the medical evidence supported the case of the prosecution; iv) that the trial Court ought to have seen that the evidence of PW.5 medical witness coupled with Ex.P-2 medical certificate, Ex.P-3 F.S.L. report and Ex.P-5 FIR proved the case of the prosecution; v) that the trial Court ought to have considered the delay in offences of this nature as natural; vi) that non-ascertainment of the accused before preferring the complaint does not adversely affect the case of the prosecution, as the victim had no motive to implicate him falsely. 2. The prosecution in support of its case has got examined PWs.1 to 7 and got marked Exs.P-1 to P-9 and MO-1 on its behalf. Whereas no witnesses were examined and no documents were marked on behalf of the accused. 3. The trial Court taking into consideration of the evidence of the prosecution witnesses and other material on record, found the accused not guilty of the offence under Section 376 of IPC and accordingly acquitted him. 4. The facts, in brief, are that on 10-04-1995 at about 4-00 p.m., PW-2, the victim, who was aged about 12 years, went to the flour mill of PW.4 in Maheshwaram village along with Jawar and while she was returning home at about 7-30 p.m., the accused followed her, closed her mouth, forcibly dragged her into nearby bushes of their village Gangaram and at knife point, he raped her. Her brother PW.1 preferred Ex.P-1 complaint, basing on which, a case in Crime No. 28 of 1995 was registered against the accused for the offence under Section 376 of IPC. The learned Judicial Magistrate of First Class, Ibrahimpatnam committed the case to the Court of Session in P.R.C. No.31 of 1995 and the same was made over to the Court of the learned Principal Assistant Sessions Judge, Ranga Reddy District, Saroornagar, in S.C. No.337 of 1996. On his pleading not guilty to the charge, the accused was tried for the offence under Section 376 of IPC and was found not guilty and he was acquitted as stated hereinabove. 5. The learned Additional Public Prosecutor submits that the evidence of PW.4, owner of the flour mill, discloses that the victim had been to his flour mill on the fateful day and due to power-cut she was asked to come on the next day morning, as such, she returned back to her village. He further submits that on the information furnished by PW.2 victim, on the following day her brother PW.1 had preferred Ex.P-1 complaint. Thereafter the police visited the scene of offence, seized MO-9 bangle pieces therefrom in the presence of a mediator - PW.6 and the same goes to show that the accused committed heinous act on PW.2 victim at that place on the date of incident. Therefore, he submits that the trial Court has erred in acquitting the accused, as such, he prayed that the appeal may be allowed by setting aside the impugned judgment of acquittal of the accused and he may be convicted for the offence under Section 376 of IPC. 6. On the other hand, it is the case of the accused that he has been falsely implicated in the case as the police could not trace out the real culprit and as he is resident of the same village and was residing in the same locality belonging to the community of the victim and for the reasons best known to the victim’s family. The learned counsel for the accused submits that the victim – PW.2 has stated in her evidence that she has informed her family about the incident on the following day morning, whereas PW.3, the mother of PW.2, has stated in her evidence that on the evening of the date of incident itself PW.2 has informed her about the incident and that when the accused was resident of the same village and locality of the victim’s community, she could have very well disclosed his identity to her parents as well as her brother, but it was not done in this case and the same fact coupled with the delay of nearly about 12 hours in preferring Ex.P-1 complaint goes to the root of the prosecution case and vitiates the same. Further, the evidence of PW.1 that the accused was not known to his sister - PW-2, she has no acquaintance with him and she has shown him at 08:00 a.m. on the following day morning near local bus stop is false since the same was not mentioned in Ex.P-1 complaint. The learned counsel further submits that evidence of the victim girl - PW.2 discloses that she went to the hospital without taking bath in the morning on the following day, whereas the evidence of her mother PW.3 is that PW.2 has taken bath in the morning and she assisted her with soap. Therefore, it is contended that the evidence of PW-5 medical officer cannot be believed as to the presence of semen on the private parts of PW.2. He also contends that false implication of the accused is possible as the identity of the real accused could not be established. The incident was alleged to have been taken place after 7-30 p.m. and that there was darkness at the alleged scene of offence at the relevant time. Therefore, he contends that identification of the accused by the victim girl – PW.2 is mistaken identity. 7. It is to be observed that the evidence of PW-5, medical witness that intercourse has taken place may not be linked with the accused since his identity is not established and it may be a case of mistaken identity. Hence, the trial Court was not wrong in holding that the case of the prosecution was not proved as required by law and the impugned judgment of acquittal is not liable to be interfered with. It is further to be observed that the parties are stated to have forgotten the incident as they are settled in life in their own way and leading their life happily. 8. In the circumstances, this Court is of the view that the impugned judgment of acquittal passed by the trial Court does not suffer from any infirmity, irregularity or illegality, as such, the same is not liable to be interfered with or set aside. 9. In the result, the Criminal Appeal is dismissed and the impugned judgment and acquittal of the accused is confirmed. _________________ B.N. RAO NALLA, J Date: 04-03-2011. ISL/PV