HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2246 of 2004 Date: February 03, 2011 Between: B. Narasimha Chary. … Appellant/Accused And State of A.P., through PP High Court. …Respondent/Complainant * * * HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2246 of 2004 JUDGMENT: This appeal is preferred against the conviction and sentence passed by I Additional Assistant Sessions Judge, R.R. District at L.B. Nagar, Hyderabad in S.C. No.296 of 2003 on 17.10.2003. 2. The appellant herein was prosecuted for the offences under Sections 448 and 354 IPC alleging that on 20.6.2003 the accused entered into the house of P.W.1 at about 5-00 a.m. and fell on her daughter P.W.2. When P.W.2 raised hue and cry, the accused ran away from the said house. 3. P.W.1-A. Nagalakshmi is the complainant and the mother of the victim P.W.2. According to her, about three months back at 4.00 a.m. while she was going to vegetable market, Bharath Nagar, she noticed the accused sitting in front of her house and when she enquired as to why he is sitting there at that odd hour, the accused replied that his mood is not good. She woke up her daughter Anusha (P.W.1) and informed that she was going to vegetable market and asked her to put on lights and close the doors. The accused followed her up to Balanagar compound and there she took an auto to go to vegetable market and went there. After purchase of vegetables she returned back to her house at 11-00 a.m. and her daughter Anusha informed her that the accused entered into the house after she left to market and fell on her. She made hue and cry and on hearing the same P.W.3 came to their house and on seeing him, the accused ran away. On the same day at 4-00 p.m. P.W.1 along with her daughter went to the police station and lodged a complaint and Ex.P-1 is the complaint given by her. 4. In Ex.P-1 P.W.1 has mentioned that on 20.6.2003 at about 4-30 a.m. she woke up and came out to go to Bharathnagar market to get vegetables and saw one unidentified person sitting outside and she asked him why he was setting at that odd hour. He replied that he was not in good mood. Later, when she was going, he followed her up to Balanagar compound and sat at Sobhana bus station. After purchasing vegetables and selling P.W.1 returned back at 11.00 a.m. and her daughter informed her that one person who was at a distance from their house came into the house at about 5-00 a.m. and when she was lying on cot, he fell on her and caught hold of her and when she raised cries, he ran away. Though she chased him, she could not catch him. Thereupon, on enquiry she learnt that his name was Narasimham, son of Brahmaiah. Therefore, P.W.1 who lodged the complaint is not aware of the name of the accused as Narasimha Chary by the time of lodging the complaint. So that she could not identify him when she saw him, as he was unknown person to her. According to her when she returned back to house, P.W.2 informed about the accused entering into the house and falling on her. P.W.1 was not present when the offence took place and she is only identifying the accused at the instance of her daughter P.W.2. 5. P.W.2, the victim girl, has stated in chief-examination that she knows the accused and after her mother had gone to vegetable market, the accused entered into her house and fell on her. When she raised hue and cry, the accused ran away. On hearing her cries, Rangampet Yadagiri came to her house and she informed the same to her. Therefore, according to P.W.2 on raising hue and cry the accused ran away and thereafter P.W.3 came there and P.W.2 informed him about the incident. 6. In the cross-examination she has stated that she woke up while her mother asking the accused as to why he is sitting in front of their house. When the accused entered into her house, she covered her body with a blanket. She denied that she has not seen the accused, as he is started running when she made hue and cry. Therefore, P.W.2 was sleeping in the house by covering her body with a blanket when the accused alleged to have fallen on her. But according to her, on raising hue and cry the accused ran away from the place. 7. Whereas, P.W.3, who is said to be the eyewitness, stated in his chief-examination that while he was sleeping in his house, at 5-00 a.m. he heard the cries of P.W.2 and when he came out of his house and saw P.W.2 in front of her house weeping and the accused running away, he chased the accused, but he could not get him and thereafter he returned back and enquired P.W.2 as to what has happened. P.W.3 in the cross-examination stated that by the time he came out of the house, he saw the accused was away from three houses from his house. But again he says that while the accused running turned towards backside and as such he could able to identify him. But P.W.2 has not stated anything about P.W.3 chasing when the accused running away from her house. Therefore, the identification of the accused by P.Ws.1 and 3 is doubtful. Even with regard to the identification of the accused by P.W.2 is also doubtful because she has not seen the accused prior to the occurrence. When she was sleeping by covering her body with blanket, she may not be able to see the accused as the accused ran away from that place immediately after P.W.2 raised hue and cry. 8. The investigating officer, P.W.4, has only stated about his registering the case on the complaint of P.W.1 and arresting the accused on 21.6.2003. But, he has filed the charge sheet only basing on the evidence of P.Ws.1 to 3. 9. In view of the above discussion, as it is doubtful with regard to identifying the accused by P.Ws.1 to 3, the accused is entitled to the benefit of doubt. Therefore, the findings of the lower court that the accused has committed the offences under Sections 448 and 354 IPC are not based on the evidence available on record. Hence, the conviction and sentence are liable to be set aside. 10. In the result, the criminal appeal is allowed and the conviction and sentence passed by I Additional Assistant Sessions Judge, R.R. District at L.B. Nagar, Hyderabad in S.C. No.296 of 2003 dated 17-10- 2003, is hereby set aside. _______________________ P. DURGA PRASAD, J Date: February 03, 2011. BSB