THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 796 OF 2003 JUDGMENT: This is an appeal filed by the State against the acquittal order dated 18.02.2002 passed in S.C.No.558 of 99 on the file of the Court of the Principal Assistant Sessions Judge, L.B. Nagar, Ranga Reddy District. 2. Respondents No.1 to 5 herein were charged for the offences under Sections 448, 354 read with Section 109 of the Indian Penal Code, 1860 (for short ‘I.P.C.’), alleging that on 31.05.1999, at 7.00 P.M, when P.Ws.1 and 2 were present in their house, A-1 to A-5 came to their house and A-1 asked P.W.1 to accompany him on the pretext of talking to her personally and caught hold of her hand and attempted to kiss her to outrage her modesty. Immediately P.W.1 raised cries and thereafter P.Ws.3 and 4 came to the spot and by seeing them, the accused A-1 and other accused A-2 to A-5 ran away. 3. The learned Principal Assistant Sessions Judge framed charges under Section 448 of I.P.C against all the accused, charge under Section 354 of I.P.C against A.1 and charge under Section 354 read with Section 109 of I.P.C against A-2 to A-5 and all the accused pleaded not guilty for the said charges. 4. The prosecution in order to establish the said charges, examined P.W.1 to 5 and got marked Exs.P-1 to P-3. On behalf of the accused, no oral evidence was adduced but, Ex.D-1 to D-18 were marked during cross- examination of P.W.1. The learned Principal Assistant Sessions Judge by taking into consideration, the oral and documentary evidence found the accused not guilty for the said charges and thereby acquitted. Hence, the State preferred this appeal. 5. The point that arises for consideration is whether the prosecution could able to establish the charges under Section 448 of I.P.C against all the accused, charge under Section 354 of I.P.C against A.1 and charge under Section 354 read with Section 109 of I.P.C against A-2 to A-5 beyond reasonable doubt?. 6. The learned Public Prosecutor argued that the evidence of P.Ws.1 to 4 established the offence under Sections 448 and 354 of I.P.C against A-1 and the lower Court has committed an error in acquitting him and thereby the acquittal of the judgment is to be set aside. 7. According to the prosecution, on 31.05.1999, at 7.00 PM, all the accused A-1 to A-5 entered into the house of P.W.1 and A-1 called her alone to talk to her personally and when she refused, he caught her hand and dragged her into the veranda and attempted to kiss her. A-2 to A-5 abetted A-1 in that regard. The evidence adduced by the prosecution, do not establish that A- 2 to A-5 have abated A-1 in committing the alleged offence but they accompanied A-1 and they were standing near the house of P.W.1. Therefore the learned Assistant Sessions Judge has rightly acquitted A-2 to A-5 for the offences under Section 354 read with Section 109 of I.P.C. 8. With regard to A-1, the prosecution alleged that he has dragged P.W.1 into the veranda and when she refused to come along with him, he attempted to kiss her and tried to outrage her modesty. But the complainant-P.W.1/the victim has stated in the chief examination that A-1 asked to talk something personally and she refused to talk to him and A-1 caught her right hand and dragged her into the verandah of the house and she fell down and he attempted to commit rape on her. On hearing her hue and cries, P.W.2 came there and little later P.Ws.3 and 4 came to the place of incident. On that account she lodged a complaint against A-1. As per Ex.P-1, it was mentioned that A-1 caught hold of her hand and attempted to kiss her and tried to outrage her modesty. But the said fact was not spoken to by P.W.1 and on the other hand, she has pleaded that A-1 attempted to commit rape on her, which is not the case of the prosecution. The other witness P.W.2, who is said to have come to the spot on hearing cries of P.W.1, stated that when P.W.1 refused to accompany A-1, he dragged her into the big hall and thereafter started kissing P.W.1 inspite of her intervening, he did not leave P.W.1 and when the neighbours came there, he ran away on seeing them. The other witnesses P.Ws.3 and 4 came to the spot only after the occurrence of the incident and they saw A-1 running from the scene of incident. 9. P.W.1, in her cross-examination admitted that six months prior to the incident she knew A-1 to A-5 by faces and by names. A-2 to A-5 are friends of A-1 and A-1 is a driver by profession and studied upto 7th class in English Medium and later pursued his studies in Urdu Medium. She was married to one Himayat Ali on 06.12.1998 and she led her marital life with him for five months only and thereafter he divorced her. It was also proclaimed that A- 1 was having love affair with her and when her husband questioned A-1, he assaulted him with a knife which was the root cause for her husband to divorce her and in further cross- examination, P.W.1 admitted that A-1 visited her frequently when she was living with her husband at Bholapur, except her mother-in- law none were present after her husband left for the work. 10. From the above admissions made by P.W.1, it is evident that P.W.1 got acquaintance with A-1 to A-5 prior to the incident and she also admitted that A-1 proclaims to have a love affair with her and that led her husband to divorce her and she also admitted that A-1 was visiting her house when she was living with her husband and along with her mother-in-law alone. Therefore, on the above said admissions made by P.W.1, the learned Assistant Sessions Judge has come to the conclusion that P.W.1 was having affair with A-1 and also having some soft dealing with him. P.W.1 also admitted Ex.D-1-photograph, which shows that the P.W-1 was standing by the side of A-1, but she did not say when and where the Ex.D-1 was taken. The said photograph also shows that P.W.1 is having close relationship with A-1 and as admitted by her, her parents did not agree her marriage with A-1. P.W.1 was having love affair with A-1 even prior to the incident. A-1 entered into the house of P.W-1 on the alleged date i.e. on 31.05.1999 and it cannot be termed as criminal trespass by A-1. With regard to the offence under Section 354 of I.P.C, P.W.1 has spoken that A-1 tried to rape her and whereas in the charge-sheet and in the complaint it was alleged that the A-1 attempted to kiss P.W.1 when she refused to come along with him. But the said fact was not established by the prosecution as P.W1 has not spoken about the same. Therefore, the prosecution could only establish that A-1 caught hold of the hand and dragged her into the veranda and it cannot be said that the dragging of P.W.1 into the verandah amounts to outraging the modesty of P.W.1. 11. As rightly observed by the lower Court, the prosecution has failed to establish the guilt under Sections 448, 354 read with 109 of I.P.C against the accused beyond reasonable doubt. 12. Hence, in the result, the appeal is dismissed. ______________________ P. DURGA PRASAD, J April 15, 2011 SP THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 796 OF 2003 April 15, 2011 SP