IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.815 OF 2007 Between: Chigurupati Ramesh ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.815 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) The accused in S.C.No.274 of 2001 on the file of V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, who was convicted of the offence under Section 376(2)(f) of the Indian Penal Code, 1860 (for short, "I.P.C.") and sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/-, in default to undergo rigorous imprisonment for a period of six months, is the appellant herein. 2. The case of the prosecution is that PW.5 is the daughter of PWs.1 and 2. She is a girl aged about 5 years. On 07.10.2000 at about 04:00 PM, when PWs.1 and 2 went outside and PW.5 was alone in the house, she was taken away by an unknown person on the pretext of giving some chocolates and committed rape on her. Thereafter, she came to the house. While she was weeping, her parents came and made enquiries. After giving a bath, they noticed bleeding from the private organs of PW.5 and taken her to hospital and given some treatment. When the victim - PW.5 was questioned about the cause of the injuries, she explained as to how she has been subjected to assault. She could not give the identity particulars of the accused and she mentioned that he was not known to her. On 08.10.2000, PWs.1 and 2 and the victim - PW.5 went to the scene of offence. There the victim –PW.5 has identified accused as the person, who has committed assault on her and thereafter, the parents of the victim girl, PWs.1 and 2, apprehended the accused and he gave his identity and name as Ramesh. When they attempted to take him to the police station, he escaped. Thereafter, a complaint was lodged by PW.1, which was registered as a case in Crime No. 230 of 2000 under Section 376 (f) I.P.C. and investigated into. During the course of investigation, the victim - PW.5 was sent for medical examination and the incriminating material was preserved and sent for examination to Forensic Science Laboratory. On 11.10.2000 at about 3:30 PM, the accused was arrested at Yousufguda check post and brought to the police station. He was interrogated and his clothes were seized. The accused was sent for medical examination and after completion of the investigation, on the basis of the medical evidence, the accused was charged for the offence under Section 376 (2) (f) I.P.C. The case was taken on file as P.R.C.No.23 of 2001 by III Additional Chief Metropolitan Magistrate, Hyderabad; committed the same to the Court of Sessions and made over to V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad. 3. After the appearance of the accused, when a charge under Section 376 (2) (f) I.P.C. was framed against the accused, read over and explained to him, he pleaded not guilty and claimed to be tried. 4. On behalf of the prosecution, PWs.1 to 11 were examined and Exs.P1 to P11 were got marked besides case properties MOs.1 to 6. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he did not adduce any defence evidence. 6. After considering the evidence on record, the learned Sessions Judge found the accused guilty for the charge framed against him and accordingly, convicted and sentenced him. Aggrieved by the same, the present Criminal Appeal is filed. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor representing the state. 8. The points that arise for consideration are: 1) Whether the prosecution has proved that the victim - PW.5, who is a girl aged about 5 years, is subjected to sexual assault? 2) Whether the said offence has been committed by the accused. 3) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? 9. So far as the first aspect of the prosecution case is concerned, the evidence of PWs.1, 2 and 5 clearly discloses as to how there were injuries to the private parts of the victim – PW.5. PW.3 has examined the victim; taken samples and sent them to Forensic Science Laboratory for analysis. The learned counsel for the appellant did not seriously dispute about the factum of sexual assault on the person of PW.5 and also the fact that the victim is a girl aged about 5 years. 10. The learned counsel for the appellant strenuously contends that the Court below has not properly considered the culpability of the accused, since there is no proper identification of the accused and that the evidence of PWs.1, 2 and 5, about the accused being the person who has committed the offence, is not believable. 11. Evidently, PWs.1, 2 and 5 have no prior acquaintance with the accused. It is the version of the prosecution and also the evidence of PWs.1 and 2 that on the next day morning of the incident, the victim - PW.5 took her parents, PWs.1 and 2, to the scene of offence, which is said to be an open place near their house, and at that time, the accused was present and PW.5 identified him. Thereafter, the accused was apprehended and questioned, and he revealed his name as Ramesh. But, however, when he was about to be taken to police station, he escaped. The learned counsel for the appellant contends that having committed such a grave offence on the previous day, the presence of accused at the scene of incident on the next day morning is highly improbable and cannot be believable. Furthermore, except PW.5, PWs.1 and 2 could not have identified the accused. In this connection, the evidence of PW.5, the victim, has assumed importance. Her evidence as recorded in the chief examination by the Court below, which is relevant for the purpose of our consideration, is as follows: “About several days back my mother and father went to Birla Mandir. At that time my grand mother was present in my house. I was playing outside. At that time one person came to me and told me that he would give chocolates and asked me to come along with him and he took me to some place. Upon taking me to that place he made me to lie on the ground and lifted my frock. Then blood came out of my private parts from the place where I pass urine. When I was crying my grand mother came to me and seen the blood. Later my parents came to the place when they tried to catch the person he fled away.” Therefore, from the above statement of the victim – PW.5 before the Court below, it is quite clear that on the same day the parents of the victim – PW.5 came to the place and when they tried to catch the accused, he fled away from the scene. She did not give any version supporting the evidence of PWs.1 and 2 about taking them to the scene of offence on the next day morning at about 08:00 AM and showing the accused as the person who has committed assault on her. Furthermore, it is also difficult to know the name of the accused when he was interested in leaving the place and if really the accused was apprehended and his name was given, he would not have been allowed to escape from the scene of offence. Furthermore, it is a busy residential locality and if such a grave crime has happened and the accused was apprehended publicly, neighbours would have gathered and known about the case. But, during the course of investigation, no neighbour was examined to prove the alleged presence of the accused near the scene. Therefore, the evidence of PWs.1 and 2, about identifying the accused as the person, who has committed the offence, on the next day, at the instance of PW.5, is not believable. On the other hand, if the evidence of PW.5 is considered, it is a case where reasonable benefit of doubt to the accused has to be given whether he has really committed the offence or not. The version of the prosecution is also against the natural conduct of a person, who has committed such an offence against the victim girl. Apart from it, during the course of investigation, the police have not chosen to conduct any test identification parade to test the memory of PW.5 about the identity of the accused. Furthermore, the accused was identified in the Court below by PWs.1, 2 and 5 after a lapse of three years and when there being no descriptive particulars of the accused at the earlier point of time, their capacity to identify him is also a doubtful circumstance. Furthermore, the evidence of investigating officer is also not clear as to on what basis he could pick up the accused and arrest him, when only the name of the accused was given without any descriptive particulars by PWs.1 and 2 and that at the time of arrest, PWs.1, 2 and 5 were not present. Therefore, for all the above reasons we hold that the conviction of the accused for the offence charged against him is not sustainable and we have no hesitation in holding that the prosecution has utterly failed to prove that the accused is the person who has committed the sexual assault on the victim – PW.5. 12. In the result, Criminal Appeal is allowed setting aside the conviction and sentence recorded by V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, vide Judgment, dated 23.05.2007, in Sessions Case No.274 of 2001, against the appellant/accused for the offence under Section 376(2)(f) I.P.C. and accordingly, he is acquitted of the said charge. The fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other crime. ______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J December 21, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.815 OF 2007 (per Hon'ble Sri Justice N.R.L. Nageswara Rao) December 21, 2010