IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.: 1085 of 2009 Between: The State of A.P. .... APPELLANT AND Kakani Bhaskar ....RESPONDENT Criminal appeal against the order of the acquittal of the accused / Respondent in SC NO. 173/06 on the fie of the Hon'ble II Addl. Sessions Judge (FTC) Nellore, dt. 10-11-06 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused ( Respondents ) for the offences with which they were charged of the following among others. Counsel for the Appellant : Counsel for the Respondent : . The Court made the following: HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1085 OF 2009 JUDGMENT: This criminal appeal under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973, is directed against the Judgment dated 10.11.2006, passed in S.C.No.173 of 2006 on the file of II Additional Sessions Judge (FTC), Nellore, whereunder and whereby, the sole accused was found not guilty of the offence punishable under Section 354 IPC. 2. The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: 3. On 19.01.2006 at about 09:00 AM, the accused entered into the house of PW.1 by observing her to be alone and found her lying on the cot. He placed his hands on her breast and asked her for sexual intercourse. When she resisted the same, the accused used criminal force on her and tried to have copulation with her. Then she pushed the accused and ran out of her house by crying. On hearing her cries, her son came into the house. On seeing him, the accused ran away. Later, she informed the incident to the elders. On 03.02.2006 she lodged a complaint with the police, who registered a case, observed the scene of occurrence, examined the witnesses and filed the charge sheet after completion of investigation. 4. The charge alleged against the accused was that on 19.01.2006 at about 09:00 AM, the accused tried to outrage the modesty of PW.1 by placing his hands on the breast and tried to commit rape on her. Therefore, he was charged of the offence punishable under Section 354 of IPC. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to P3. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, DW.1 was examined, but no documents were marked. 7. The trial Court after considering the evidence on record and disbelieving the evidence of P.W.1, acquitted the accused holding that when there are family disputes between P.W.1 and the accused, there is every possibility for PW.1 to implicate the accused in an offence of sexual assault. Challenging the order of acquittal the present appeal is filed by the state. 8. Now the point for consideration is whether the prosecution was able to prove its case against the accused beyond all reasonable doubt of the charge under Section 354 IPC? 9. Counsel representing the learned Public Prosecutor contended that the evidence of PW.1 is very clear that the accused outraged the modesty of PW.1 by placing his hands on her breast.1 and tried to commit rape on her and used criminal force, that therefore, the evidence of PW.1 is to be accepted, that the facts would reveal that the accused committed the offence punishable under Section 354 IPC, that there is no other reason for PW.1 to foist a false case of this nature against the accused and hence, she prays to set aside the order of acquittal. 10. One of the golden principles that was passing through the web of criminal justice system is that the accused is presumed to be innocent, unless the contrary is proved. The presumption of innocence is further strengthened by an order of acquittal. In such circumstances, the appellate Court is slow in interfering with the Judgment under challenge. No doubt the appellate Court has got full powers to re- appreciate the evidence and come to a different conclusion, but in doing so, there must be compelling or substantial reasons. Unless the findings of the trial Court is based upon no evidence or inadmissible evidence was taken into consideration or a perverse finding has given normally this Court would not interfere with the same. 11. The entire case rests upon the solitary testimony of PW.1. The law is well settled that if the solitary testimony of a witness is found to be true and trustworthy, such witness has no grouse or enuity to implicate the accused falsely, the same can be accepted and conviction can be maintained even without any corroboration. To place reliance on the evidence of PW.1, her evidence must be put in the category of wholly reliable. When her evidence was put in the category of wholly reliable, the same can be accepted. The evidence of PW.1 would go to show that on 19.01.2006 while she was lying on the cot, the accused, who is no other than the brother-in-law, went inside the house and placed his hands on the breast and asked her to fulfil his desire. She pushed him aside and came out and raised cries. On hearing her cries, PW.2-who is the son of PW.1, saw the accused running away from the house. According to PW.2, ten persons rushed to the scene of occurrence upon hearing the cries of PW.1. But, the prosecution has not examined any one of them. If really the accused entered into the house of PW.1 and tried to outrage her modesty, while coming out from the house, PW.1 would have bolted the house from outside in order to detain the accused in the house and call the neighbours, but that was not done. 12. DW.1 was examined by the accused, who came to know through the accused that PW.1 has illegal connection with one Radha Krishaiah in the lime garden of V.Venkata Ramanaiah. For that reason, PW.1 filed a false report against the accused. Therefore, there were some family disputes existing between PW.1 and the accused. When the accused questioned the fidelity of PW.1, the possibility of filing this case cannot be ruled out. The incident has taken place on 19.01.2006 in the early hours of the day, but she has not reported the incident till 03.02.2006. There was a delay of 17 days in lodging the First Information Report and further there was a delay of 3 days in sending the First Information Report to the Court. The delay has not been properly explained by the prosecution. Therefore, the delay in lodging the complaint and further delay in sending the report to the Court give rise to a suspicion that the prosecution case is not above board. 13. Except the solitary testimony of PW.1, there is no other evidence to show that the accused outraged her modesty. The accused is none other than the brother of husband of PW.1. None of the neighbours, admittedly, rushed to the scene of occurrence was examined to show that the accused was present inside the house, when PW.1 raised cries. No doubt their evidence may not be direct evidence, but it is admissible under Section 5 of the Indian Evidence Act to show the conduct of PW.1 in raising the cries and also to show that an illegal act has taken place in her house and also to know about the presence of accused. 14. The husband of PW.1 is the best person to speak about the incident. For the reasons best known to the prosecution, he was not examined and considering all the aspects, and recording cogent reasons the trail Court rightly had not placed any reliance on the evidence of PW.1 so as to convict the accused. Therefore, the evidence of PW.1 cannot be put in the category of wholly reliable. The reasons assessed by the trail Court cannot be shown to be perverse. There are no compelling or substantial reasons to call for any interference by this Court. Therefore, there are no grounds to interfere with the same and the appeal is devoid of merits and liable to be dismissed. 15. Accordingly, the Criminal Appeal is dismissed at the stage of admission, conforming the Judgment, dated 10.11.2006, in S.C.No.173 of 2006 on the file of II Additional Sessions Judge (FTC), Nellore. _______________ K.C. BHANU, J 18th August, 2009 MD