THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.224 OF 2005 DATED 24th NOVEMBER, 2010. BETWEEN : Syed Mubaraq .. Petitioner-Accused and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.224 OF 2005 ORDER: This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) by the petitioner- accused challenging the judgment dated 28.09.2004 passed in Criminal Appeal No.5 of 2003 by the II Additional Sessions Judge (FTC) at Adilabad. Initially, the petitioner-accused was prosecuted in Sessions Case No.501 of 2001 by the Assistant Sessions Judge, Adilabad, in which he was convicted under Section 235 (2) Cr.P.C. for an offence punishable under Section 354 IPC and sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for six months vide judgment dated 23.12.2002. Aggrieved by the same, accused filed Criminal Appeal No.5 of 2003, which was dismissed by the learned Sessions Judge confirming the conviction and sentence passed by the trial Judge. Challenging the same, present revision is filed. Prosecution case, in brief, is that on 18.07.2001 around 7.00 a.m. when the victim by name Wagmare Chouthrabai, who is the wife of the complainant Sivaram, went to attend calls of nature at the outskirts of Gondipatar (V), accused went to her and when she started running after seeing him, accused by removing his lungi chased her, caught hold of her with an intention to outrage her modesty. When the victim raised cries, LWs 3 to 5 rushed to the scene and on seeing them accused ran away. Thereafter, when accused was questioned about the same, he said to have stated before them that certainly he will commit rape upon the victim and none can touch him. Hence, the husband of the victim lodged a complaint, basing on which Police registered a case in crime No.18 of 2001. After completion of entire investigation, Police filed charge sheet against the accused for the offence punishable under Sections 354 IPC and 3 (i) (xi) of Scheduled Castes and Scheduled Tribes (POA) Act, which was taken cognizance in P.R.C. No.17 of 2001 by the Judicial First Class Magistrate, Utnoor. When examined by the learned trial Judge, the accused denied the allegations levelled against him. When charge under Section 354 IPC was framed against the accused, he pleaded not guilty and claimed for trial. During the trial, the prosecution got examined PWs 1 to 5 and got marked Exs.P.1 and P.2. When examined under Section 313 Cr.P.C. accused denied the incriminating circumstances read over to him, which is available in the evidence of prosecution witnesses. Accused did not choose to adduce any evidence either oral or documentary on his behalf. After evaluating the oral and documentary evidence, the learned trial Judge convicted the accused as stated above and the same was also confirmed by the learned Sessions Judge vide impugned judgment. Heard. P.W.1 is the husband of the victim-P.W.2. P.W.1 deposed that P.W.2 informed him that the accused caught hold of her hands on the date of occurrence, whereas in contrary, it is seen from the record that P.W.2 deposed that the accused caught hold of her hands in the early hours when she went to answer calls of nature and in cross examination also she admitted that she stated the said fact before the investigation officer. The investigation officer, who was examined as P.W.5, stated that while recording the 161 Cr.P.C. statement, P.W.2 has not stated that the accused caught hold of her hands. Such improvement, which amounts to an omission, is material in nature. As far as the other facts are concerned, even assuming for a moment that occurrence took place, leaving the fact that the accused caught hold of the victim lady, nothing is there to suggest that the accused committed an offence to attract the ingredients of section 354 IPC. Further, PWs 1 and 2 changed their version from the complaint and the statements recorded by the investigating officer. One way or the other, either they added something or omitted something. Further, if really the victim or P.W.1 are aggrieved over the attitude of the accused, they should have lodged the complaint immediately after the occurrence. But, they tried to settle the issue by way of calling for a panchayat in that area and only when the accused has taken a defence that he has not committed the offence, they lodged a complaint. The evidence adduced by the prosecution also does not inspire the confidence of this Court. The allegations and evidence are more vague in nature. On the basis of the available evidence on record, this Court is of the view that a person cannot be convicted for an offence under Section 354 IPC. Hence, the conviction and sentence imposed on the accused are liable to be set aside. Therefore, the conviction and sentence imposed by the trial Court and confirmed by the Appellate Court are hereby set aside and the petitioner-accused is acquitted of the charge levelled against him. Fine amount, if any, paid by the accused be returned to him. Accordingly, the Criminal Revision Case is allowed. __________________ RAJA ELANGO, J 24th November, 2010. sur