IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL NO : 224 of 2005 Criminal Appeal under Section _______ against the Judgment dated 16/02/2005 in SC NO : 325 of 2004 on the file of the Court of the Assistant Sessions Judge, Srikalahasti Between: Palagunta Mohan, S/o. P. Munaiah, Mallavari Palem East, Harijanawada, Sathyavedu mandal, Chittoor dist., ..... APPELLANT (Accused) AND The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. through Sub-Inspector of Police, Sathyavedu P.S., Under Cr No. 80/03. .....RESPONDENT Counsel for the Appellant:MR.T.C.KRISHNAN Counsel for the Respondent No.: PUBLIC PROSECUTOR The Court made the following: JUDGMENT:- This Criminal Appeal is directed against the Judgment dated 16-02-2005 in S.C.No.325 of 2004, on the file of the learned Assistant Sessions Judge, Srikalahasthi, wherein the appellant/accused was convicted for the offences under Sections 417, 493 and 312 read with 511 I.P.C. and was sentenced to suffer Rigorous Imprisonment for a period of one year for the offence under Section 417 I.P.C. and rigorous imprisonment for ten years and also pay a fine of Rs.1,000/- (Rupees one thousand only) for the offence under Section 493 I.P.C. and rigorous imprisonment for three years for the offence under Section 312 read with 511 I.P.C. 2. Heard the learned counsel for the appellant/accused and learned Additional Public Prosecutor for the respondent/State. Perused the records. 3. The case of the prosecution, in brief, is as follows:- The accused and the complainant are residents of Mallavaripalem of Sathyavedu mandal. The complainant is a widow. The accused tied thali to the complainant infront of the photos of the God and created an impression to the complainant that he was legally wedded husband. The accused cohabited with the complainant and had sexual intercourse with her, as a result of which, the complainant became pregnant. The accused administered some country medicine to the complainant to cause miscarriage of the pregnancy. On 27-08- 2003, the complainant gave report - Ex.P-1 based on which, the First Information Report – Ex.P-3 was registered in Cr.No.80 of 2003 for the offences under Sections 493 and 313 read with 511 I.P.C. After investigation, charge sheet was filed. 4. On appearance of the accused, charges under Sections 417, 493 and 312 I.P.C. were framed against the accused for which he pleaded not guilty. 5. In support of their case, the prosecution examined P.Ws.1 to 6 and marked Exs.P-1 to P-4. The accused was examined under Section 313 Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence. He examined two witnesses D.Ws.1 and 2 and did not mark any documents on his behalf. 6. P.W.1 is the complainant herself. P.W.2 is the mother of the complainant. P.Ws.3 and 4 are the neighbours of P.W.1. P.W.5 – N.Sekhar is one of the mediators and P.W.6 is the Sub Inspector of Police, who registered the crime and investigated. D.W.1 is an elder of the village who knows both the accused and P.W.1 and in whose house, the accused and P.W.1 are said to have cohabited. D.W.2 is the mother-in-law of P.W.1. 7. The case of the prosecution, as disclosed in the complaint-Ex.P.1 is that P.W.1 was previously married to one Ravi, son of D.W.2 and after his death, P.W.1 developed intimacy with the accused since five years prior to giving the complaint and that they both lived together as husband and wife which resulted in her pregnancy and the accused refused and he got the same aborted against the will of the complainant. It is further alleged in the complaint – Ex.P-1 that whenever P.W.1 was pressing the accused to marry her, he was postponing the same on the promise that he would convince his family members and then marry her. Thus, as per the version in the complaint – Ex.P-1, there was no formal marriage between P.W.1 and the accused in any form. In the evidence also, P.W.1 never stated that the accused married her. What all she deposed is that the accused was promising to tie thali and meanwhile, she became pregnant and when she pressed him to marry her, he administered quack medicine and got the pregnancy aborted. In the charge sheet, however, it is stated that the accused tied thali to the complainant infront of the photos of God and created an impression in the mind of P.W.1 that they were legally wedded wife and husband. There is absolutely no basis either in the complaint or in the evidence for any such inference or for creation of any such impression in the mind of P.W.1. P.W1 further deposed that when the accused did not keep up the promise of marrying her even after the pregnancy was aborted, she raised a dispute before the elders viz., Armugam, Danial and others and in the panchayat also, the accused did not agree and again she approached the accused, but he told her to do whatever she liked. Either in the complaint or in the evidence, P.W.1 has not disclosed as to when she raised the dispute before the elders and when the panchayat took place. In fact, in Ex.P-1, she has nowhere stated that any such dispute was raised by her before the elders and the names of the mediators were also not mentioned in Ex.P-1. P.W.1 also admitted in the cross examination that she did not disclose the names of the elders in the complaint – Ex.P- 1. She denied the suggestion that she did not state before the police also during investigation that Daniel, Armugam and Deva Raj acted as elders. The testimony of P.W.1 that she raised a dispute before the elders namely Daniel and others is clearly an improvement made by her at the time of giving evidence and the same is nowhere stated by her either in the complaint-ExP-1 or subsequently during the course of investigation. 8. Even according to P.W.1, the accused married his sister’s daughter Pushpa about three years prior to giving the complaint. In the complaint – Ex.P-1, P.W.1 stated that when she came to know about the proposed marriage of the accused with Pushpa, she again questioned him and the accused told her that he had to marry his sister’s daughter as otherwise, his sister threatened to commit suicide and thereafter the accused again promised P.W.1 that he would marry P.W.1 also and continued the relationship with her and again she became pregnant and by the date of giving the complaint, she was carrying 8th month pregnancy. The grievance of the complainant, as per Ex.P-1, is that since three months prior to giving the complaint, the accused was not in contact with her and when P.W.1 questioned, the accused is not coming to her, he told her to undergo abortion by taking country medicine and he again promised that he would tie thali and take her as his wife. Thus, even as per the averments in the complaint – Ex.P-1, the relationship between the accused and P.W.1 went on for five years and the said relationship continued even after marriage of accused with his sister’s daughter Pushpa, three years prior to giving the complaint and during that period, the accused has been promising to marry P.W.1 from time to time, but did not keep his promise but still, P.W.1 believed him and continued the relationship as a result of which, she became pregnant, not once, but twice. The said version of P.W.1 does not inspire any confidence to believe, as the same is totally contra to the natural course of human conduct. 9. It is to be noted that except the testimony of P.W.1, there is no other evidence in support of the prosecution case. Even, the learned Assistant Sessions Judge observed that the testimony of P.Ws.2 to 4 is in the nature of hear say. P.W.2 is none else than the mother of P.W.1. She admits that she learnt about the pregnancy of P.W.1 but still she has not chosen to give any complaint to police against the accused through P.W.1. She also admits that the marriage of accused took place in their village and he lived with his wife in the village after marriage. P.W.2 volunteered that even during that period also, the accused continued his illicit affair with P.W.1. P.W.2 categorically admitted that they did not object the marriage of the accused. Thus, according to P.W.2, the marriage of the accused with Pushpa took place in the village to the knowledge of P.W.2 and others and the accused and his wife Pushpa lived in the village and P.W.2 claims that even subsequent to his marriage, the accused continued the relationship with P.W.1. If really the accused made any promise of marriage to P.W.1 and made her pregnant, the natural course of human conduct would demand that P.W.2, P.W.1 and other family members would have opposed the marriage of the accused with Pushpa and P.W.1 would have severed her connection with the accused immediately after his marriage. But according to P.Ws.1 and 2, even after the marriage of accused with Pushpa, the relationship between the accused and P.W.1 continued, which is totally unbelievable. It is not as though P.W.1 is a young or minor girl having no worldly wisdom. Admittedly, she is aged more than twenty five years and a widow, her husband Ravi having died and she has been running a fair price shop and she even contested the Elections as Sarpanch of the village. When that is so, it is hard to believe her version that she continued the relationship with the accused to the extent of becoming pregnant for a second time even after the accused has married his sister’s daughter Pushpa and lived in the same village with her and that P.W.1 continued to believe the alleged promise of the accused that he would still marry her. P.W.3 is a neighbour who turned hostile and did not support the prosecution. The evidence of P.W.4, who is also another neighbour, is also of no use, as the same is in the nature of hear say. P.W.5 is stated to be a common friend of P.W.1 and accused and according to him, during his absence, the accused and P.W.1 used to stay in his house for the purpose of cohabitation. But in the cross examination, P.W.5 admitted that he did not state before the police during investigation that accused was taking the key of his house and was using the same in his absence along with P.W.1. According to him, one M.Krishnaiah, Munirathnam and Pedda Elumalai are the elders for the dispute, whereas P.W.1 stated that it was Armugam and Danial who were the mediators. In fact, Daniel, who is examined as D.W.1 on behalf of the accused testified that P.W.1 was earlier married to one Ravi and he came to know that he committed suicide. He further deposed that P.W.1 never called him to mediate any dispute and P.W.1 never complained to him against the accused either before or after marriage of the accused. Thus, one of the mediators named by P.W.1 did not support the prosecution case and on the other hand, gave evidence on behalf of the accused. The other mediator Armugam is also not cited or examined. P.W.5, who is examined as a mediator, denied to have mediated any dispute and his name is also not referred to in the First Information Report. Thus, except the sole testimony of P.W.1, there is absolutely no evidence on record to show that the accused never made any promise to P.W.1 that he would marry her and that the accused cohabited with P.W.1 creating a false impression in her mind that they are lawfully wedded. In fact, the two prepositions are virtually contradictory in terms as they do not go together in the sense that when the accused was always making a promise to marry P.W.1, on a future date, the question of his creating any impression in the mind of P.W.1 that they are already married and they lived as wife and husband, does not simply arise. There is again nothing on record to show that the accused had sexual intercourse with P.W.1 and as a result of such relationship, P.W.1 became pregnant on two occasions and that on the first occasion, she even suffered abortion against her will by consuming a country medicine at the instance of the accused. No medical evidence is adduced to show that P.W.1 had sexual intercourse and that she became pregnant and suffered abortion. By the date of giving the complaint, P.W.1 is said to have been carrying 8th month of pregnancy, as per the contents of the First Information Report. The Investigating Officer has not taken any steps to get P.W.1 examined medically so as to have evidence on record. No steps were also taken by the Investigating Officer to subject the accused and P.W.1 for DNA testing to establish the paternity of the child in the womb of P.W.1. The testimony of P.W.1, in the absence of any corroboration, is therefore, held not safe to rely upon, as the same does not inspire any confidence and is found to be not trustworthy or truthful for the reasons stated supra. No doubt, it is well settled that the sole testimony of prosecutrix can be relied upon without any corroboration so as to base conviction in a given case provided such sole testimony of the prosecutrix is found to be truthful and reliable. But in the present case, the testimony of P.W.1 is totally unsafe to rely upon in the absence of any corroboration as the same is not found to be truthful or trustworthy. 10. In those circumstances, it must be held that the trial Court has grossly erred in relying upon the sole testimony of P.W.1 to base conviction on the accused for the alleged offences. In fact, the ingredients of none of the offences alleged against the accused are attracted to the facts of the present case and the evidence on record does not at all establish the ingredients of any of the alleged offences. The conviction of accused for the offences under Sections 417, 493 and 312 read with 511 I.P.C and the sentences imposed by the trial court for the said offences are therefore held not sustainable and they are accordingly set aside. 11. In the result, the Criminal Appeal is allowed, setting aside the conviction and sentences recorded by the Trial Court against the appellant/accused. The bail bonds of the accused shall stand cancelled. _____________________ G. V. SEETHAPATHY, J 6th day 2009 AMD/LRKM