IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.584 of 2008 Between: Kadiyala Srinivasa Rao .. Appellant AND The State of A.P. rep. by Public Prosecutor .. Respondent JUDGMENT: The criminal appeal is directed against the judgment in S.C. No.226 of 2006 on the file of the Sessions Judge, Mahila Court, Vijayawada, dated 01-05-2008, by which the appellant/accused was convicted of the offences punishable under Sections 448 and 354 read with Section 114 of the Indian Penal Code (for short “IPC”) and sentenced accordingly. 2. The Sub-Inspector of Police, Unguturu filed the charge sheet in crime No.139 of 2004 alleging that Yedlapalli Sridevi and the accused were married with a daughter born out of the wedlock and their relations were strained since two years prior to the incident due to addiction of the accused to vices and physical and mental harassment of the wife. The prosecution alleged that on 17-09-2004 at about 8 P.M., the accused in a drunken state came along with his friend and told Sridevi to enjoy with his friend. The friend put his hands on the shoulders of Sridevi and embraced her while keeping his legs on her chair and used obscene words about his coming to satisfy her at the instance of her husband. He also asked Sridevi to take bath and wear a new saree and in spite of Sridevi pushing him away he followed her and caught hold of her breasts and pressed them. The accused did not intervene in spite of the entire incident happening in his presence and on the report of Sridevi, a crime was registered by H.C.453. The Sub-Inspector examined the scene of offence and also the witnesses, while the accused surrendered before the Court and was released on bail. His friend could not be apprehended and hence, the charge. 3. On the appearance of the accused before V Metropolitan Magistrate, Gannavaram who took cognizance of the offence, copies of documents were furnished to him and the case was committed to the Court of Session. The Court of Session made over the case to the trial Court, which framed charges under Sections 448 and 354 IPC read with Section 114 thereof, to which the accused pleaded not guilty. During trial, P.Ws.1 to 7 were examined and Exs.P.1 to P.5 were marked. The accused denied all the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure and except marking Ex.D.1 compromise memo, the accused did not produce any other defence evidence. 4. The Mahila Court pronounced the impugned judgment firstly referring to the principles laid down in Pandurang Sutaram Bhagwat v. State of Maharashtra[1] to note that each case has to be determined on the touchstone of factual matrix thereof and the principle that ordinarily a lady will not put her character at stake, cannot be applied universally. The trial Court, while noting the need for carefully scrutinizing the evidence for the prosecution, observed that separate living of the husband and wife due to some disputes is admitted. After extracting the statements of P.W.1 in evidence in detail, the trial Court felt that the omission to mention in Ex.P.1 about living together with the maternal grand mother of P.W.1 and about talking to P.Ws.2 to 4 at that time was not a material omission. The trial Court also felt that the other cases between the parties are not relevant and while the disputes between P.W.1 and the accused require some corroboration from other evidence, the evidence of P.Ws.2 and 3 provides such corroboration on some material aspects to some extent. The evidence of P.W.2 was considered to be fully corroborating the evidence of P.W.1 about the accused and another coming to the house of P.W.1 and hearing the cries of P.W.1 after sometime. Similarly, the trial Court found a similar corroboration from the evidence of P.W.3, though the incident proper was not spoken to by them. While noting that P.W.4 turned totally hostile and P.W.5 gives only hearsay evidence about the version of P.W.1, the evidence of P.Ws.6 and 7, the Head Constable and the Investigating Officer, were also referred to. The trial Court felt that the corroboration by P.Ws.2 and 3 to P.W.1 further strengthened by the claims of P.W.5 about the complaint of P.W.1 to him, established that the accused brought his friend to the house of P.W.1, trespassed into the house and outraged her modesty by abetting the friend to do what all was alleged against him. The trial Court, therefore, concluded the guilt of the accused, convicted him and sentenced him after hearing him on the question of sentence. 5. Questioning the imposition of sentences of imprisonment for five years and six months respectively and fine of Rs.2,000/- and Rs.500/- respectively with default sentences for the offences punishable under Section 354 read with Section 114 and Section 448 IPC, the accused contended herein that the artificial and uncorroborated version of P.W.1 should not have been accepted, more so in view of the disputes between the couple and this case being counterblast to the earlier case filed by the accused. P.Ws.2 to 4 were no way helpful to the prosecution and hence, the trial Court should have drawn adverse inference against the prosecution for not identifying or prosecuting the so called friend of the accused. While the sentence is excessive in any view, the accused desired the conviction and sentences to be reversed. 6. While so, the accused and P.W.1 came up with Crl.A.M.P. No.1816 of 2011 along with a copy of the compromise agreement between them requesting for permission to compound the offences and to acquit the accused by allowing the criminal appeal. However, in view of the offence under Section 354 IPC being not compoundable after the amendment by Central Act 5 of 2009 coming into force with effect from 31-12-2009 though the offence under Section 448 IPC is compoundable even without the permission of the Court under sub-section (1) of Section 320 of the Code of Criminal Procedure, 1973, orders on the request of P.W.1 and the accused were directed to be passed while disposing of the main appeal itself. 7. Sri K. Suresh Reddy, learned counsel for the appellant/accused, Sri G. Suvarna Kumari, learned counsel for the de facto complainant/P.W.1 and Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor/respondent are heard. 8. The point for consideration is whether the guilt of the accused for the offences punishable under Section 354 read with Section 114 and Section 448 IPC was proved beyond reasonable doubt ? 9. Point: The earliest version in Ex.P.1 report alleging the incident did not name or identify the person accompanying the accused and also did not state about any other person being a witness to the whole or any part of the incident or P.W.1 informing about the incident to anybody before the report was presented to the police at 10.30 A.M. on 18-09-2004 about what happened at about 8 P.M. on the previous night on 17-09-2004. However, when it came to the evidence, P.W.1 stated that at the time when the accused and his friend came to their house and asked her to enjoy with the friend of the accused, she and P.Ws.2 to 4 were talking in their house. It was specifically alleged that the accused abused P.W.3, threatened P.W.2 and made P.Ws.2 to 4 leave the house. The further claim of P.W.1 is that when she raised cries due to the incident, P.W.2 and P.W.4 came there, on seeing whom the accused and his friend ran away and she claimed to have informed about the incident first to P.Ws.2 and 4 and then to P.W.3 and thereafter by telephone to her parents. During cross-examination, she admitted not specifying about her maternal grand mother residing in that house or her talking with P.Ws.2 and 4 at that time. However, P.W.2 herself while stating about the presence of herself, P.W.3 and P.W.4 in the house of P.W.1 when the accused and another person came and sent them away questioning their presence, specifically stated that she did not go to the house of P.W.1 though she heard her cries and it was only on the next morning that P.W.1 told her that the other person put his legs on her. While even the information from P.W.1 to P.W.2 was not about the other allegations of P.W.1 about the incident, P.W.2 denied stating to police as in Ex.P.2 and her version does not corroborate the allegation of P.W.1 about the accused abusing P.W.3 and threatening P.W.2. The version of P.W.3 was also similar about her presence at that time when the accused and another person came. But her claim that the other person abused her is contrary to P.W.1 claiming that the accused abused P.W.3. Though P.W.3 also stated about the presence of P.Ws.2 and 4, she did not speak about the other details and the information to her by P.W.1 in the next morning was only about the other person putting his leg on P.W.1 and the accused catching hold of the tuft of hair of P.W.1 and pushing her down when she was getting up leading to the other person embracing her according to P.W.3, which was not the manner in which the incident happened according to P.W.1’s evidence. The witness admitted that she did not state to the police about what P.W.1 told her in the next morning and P.W.4 in contrast with P.Ws.2 and 3 claimed total ignorance of the incident and denied sating to the police as in Ex.P.3. P.W.4 was not alleged or shown to be so interested in the accused as to resort to falsehood through her claim and the version of P.Ws.2 to 4 is a positive indication that P.W.1 was not speaking the whole truth. 10. P.W.5 is no other than the father of P.W.1 and his information about the incident was only hearsay on the alleged telephonic message of P.W.1. However, his claim that by the time he went to the house of P.W.1 immediately after receiving the telephonic message at about 8 P.M. or 8.30 P.M. on that night, P.Ws.2 to 4 were present at the house of P.W.1, was not the claim of even P.W.1 or P.Ws.2 to 4. Why P.Ws.1 and 5 did not go to the police station that night was not stated and the delay of about 14 hours between the incident and the report affords amply opportunity for deliberation and concoction. Though delay by itself is not fatal to the credibility of the first information report, it assumes significance coupled with other circumstances. 11. The evidence of P.W.6 about registration of the crime and of the investigating officer as P.W.7 is of no direct relevance and significantly P.W.1 admitted about a police case at the instance of the accused attributing in fidelity to her, pending by the time of the incident, which shows that the relations between the couple were so strained as to make them leave no stone unturned to make the wildest of allegations against each other. Without expressing any opinion on the enmity between the parties by the time of the report being the sole cause for implicating the accused or not and though there are also no positive circumstances to dismiss the entire prosecution version as false, the fact remains that the practically uncorroborated version of P.W.1 under such circumstances, may not be suffice to exclude all reasonable doubts about the complicity of the accused in the alleged offences. The doubts become all the more stronger in view of the alleged friend of the accused not being named or identified even subsequently by the statutory investigating agency and though it is not a piece of evidence, significantly, the charge sheet was so drafted as though the friend of the accused was also being prosecuted under the document as the 2nd accused. As pointed out by the Apex Court in Pandurang Sutaram Bhagwat v. State of Maharashtra (1 supra) referred to in the impugned judgment, where strained relationship between the parties is not in dispute, the admitted animosity between the parties should lead to accepting any statement of witnesses with a pinch of salt. It was in that background that the Apex Court cautioned that the principle that a lady ordinarily would not put her character at stake, cannot be applied universally. By making it clear that the absence of proof of the allegations of the prosecution is not a finding of the falsity of the prosecution case, the conclusions of the trial Court cannot be concurred with in brushing aside the various circumstances elicited above and in faithfully accepting the version of P.W.1 as satisfactorily corroborated by P.Ws.2 and 3 without the actual existence of such corroboration. 12. The accused is, therefore, entitled to be acquitted of the offences on being given the benefit of reasonable doubt, while such an acquittal in respect of the offence punishable under Section 448 IPC is a matter of right on the offence being compounded. 13. Therefore, the judgment, dated 01-05-2008 in S.C. No.226 of 2006 on the file of the Sessions judge, Mahila Court, Vijayawada is set aside and the accused is acquitted of the offence punishable under Section 354 read with Section 114 IPC under Section 235(1) of the Code of Criminal Procedure, 1973 and is also acquitted of the offence punishable under Section 448 IPC under Section 320(1) read with Section 235(1) of the Code of Criminal Procedure and the criminal appeal is allowed accordingly. _____________________ G. BHAVANI PRASAD, J Date: 05-11-2011 Svv [1] 2005 Crl.L.J. 880