IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1082 of 2008 Between: The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND Smt. Yerupalli Nookaratnam and another .. Respondents JUDGMENT: The criminal appeal is directed against the acquittal of both the accused in Sessions Case No.75 of 2004 on the ﬁle of the Sessions Judge, Mahila Court, Visakhapatnam by the judgment dated 23-03-2007 for the oﬀences punishable under Sections 506 part II, 354, 323, 379 and 468 of the Indian Penal Code (for short “IPC”). 2. Vanka Renuka Devi ﬁled a private complaint before the III Metropolitan Magistrate, Visakhapatnam against both the accused, who are husband and wife, alleging that she joined Rs.12,000/- chit group run by the accused without a licence and was the successful bidder for a loss of Rs.3,000/-. She had to pay 9 monthly instalments of Rs.500/- each to the accused and the accused obtained the signature of Renuka Devi on a blank stamped pronote at the time of paying the chit amount. The complaint alleged that when the 1st accused was collecting extra pots of water from a municipal public tap against convention on 17-04-2002 at about 9.30 P.M., Renuka Devi protested and the 1st accused abused her and attacked her threatening to remove her clothes, cut her private parts, scratch the face with a knife and cut the breasts. When Renuka Devi was humiliated, the 1st accused further warned to put a stick in her private parts making her permanently unable to sleep with her husband and the 2nd accused also joined the 1st accused stating that he will remove her clothes and rape her on the road. Both the accused were claimed to have beaten Renuka Devi indiscriminately with their hands and to have torn her saree and blouse and snapped her gold ‘mangala sutram’. When both parties went to IV town police station, elders of the area intervened and took them away and out of respect to elders, Renuka Devi submitted to the compromise under a deed. The gold chain piece, which was with the accused, was agreed to be returned within 10 days along with the blank promissory note. But the accused later did not return the chain and the pronote. The accused were stated to have threatened to kill her, burn her children with kerosene and engage a person by paying Rs.20,000/- to get her raped. The private complaint of Renuka Devi claimed the police to have not reacted to her repeated complaints due to the inﬂuence of the Head Constable of IV town law and order police station and hence, she claimed to have approached the criminal Court direct. 3. The private complaint was referred to the police for investigation and report, on which crime No.270 of 2002 was registered and after investigation, the police ﬁled charge sheet reiterating the claims of the private complainant and stating that Mutyala Ramalakshmi and Thutta Srinivasa Rao were the eye witnesses and Bade Ramarao and Chenna Rama Rao were the elders who compromised between the parties. The Sub-Inspector of Police was stated to have prepared a rough sketch of the scene of oﬀence and to have examined the witnesses. 4. On taking cognizance of the oﬀences, copies of documents were furnished to the accused on their appearance and the case was committed to the Court of Session in P.R.C. No.16 of 2002 by the III Metropolitan Magistrate, Visakhapatnam. The Court of Session made it over to the trial Court and on appearance of the accused, the trial Court framed charges under Sections 323, 354 and 379 of IPC against both the accused and under Sections 506 part II and 468 of IPC against the 1st accused, for which the accused pleaded not guilty. P.Ws.1 to 6 were examined and Exs.P.1 to P.3 and D.1 to D.6 were marked during the trial and the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure. They did not produce any other defence evidence. 5. The trial Court rendered its judgment noting that the evidence of P.W.2, the alleged eye witness, referred to two incidents at 4.30 P.M. and at 9 P.M., while the evidence of P.W.1 was only about an incident at 9.30 P.M. While P.W.1 alleged the incident to be while she was returning home and then at their house after return, but P.W.2 deposed as though the oﬀence took place at the house of the accused when P.W.1 went there to question them. While P.W.2 alleged a scuﬄe between P.W.1 and the 1 st accused leading to separation by the 2nd accused, P.W.1 claimed that the 2nd accused abused her, beat her, tore her jacket and pulled her saree. The trial Court also noted that when the crime was registered on 23-07-2002 in respect of the alleged incident on 17-04- 2002, the claim of P.W.2 that she was examined by the police on the next day or after 3 days, was incorrect. P.W.2 was a tenant of P.W.1 and P.W.3, another alleged eye witness, also contradicted P.W.1 when he alleged the incident to have taken place on the road near the house of P.W.1. His claims about the accused abusing P.W.1 in ﬁlthy language and the 2 nd accused pushing down P.W.1 by placing his hands on her chest, were not similar to the claims of P.Ws.1 and 2. The station writer recorded the statement of P.W.3, according to P.W.3, which contradicted the claims of the Investigating Oﬃcer as P.W.6. The trial Court also noted that no independent witness was examined and the claim of P.W.1 is about return of gold chain belonging to the accused in the presence of elders as per Ex.P.2 compromise deed. However, Ex.P.2 or the evidence of P.W.4 did not refer to any beating of P.W.1 by the accused and the compromise appeared to be only regarding return of the pronote and the gold ornament. How the gold ornament of the accused came into the possession of P.W.1 was not explained and P.W.4 did not sound convincing being a resident at 10 kilo metres away from the house of P.W.1. P.W.5 claimed that both the accused and P.W.1 claimed that they lost their gold ornaments and while P.W.1 returned the gold ornament of the accused, the accused promised to return the gold ornament of P.W.1 and the empty pronote with the signature of P.W.1. P.W.5 also did not state how the ornament of the accused came to P.W.1 and Ex.P.2 contained many interpolations. Ex.P.2 did not state about the nature of the incident and the alleged compromise was held unbelievable. The trial Court in view of the material contradictions, more particularly Exs.D.1 to D.6 in the statements of the witnesses to the police, considered no convincing evidence about the incident to be available and hence, concluding that the prosecution failed to prove the guilt of the accused, the trial Court acquitted the accused. 6. The learned public prosecutor representing the State preferred the present appeal claiming all the ingredients of the alleged oﬀences to have been established and the trial Court to have not appreciated the corroboration aﬀorded by P.W.2 to P.W.1 in every material aspect. The involvement of both the accused leading to the accused snatching the gold ‘mangala sutram’ of P.W.1 and half of the gold chain remaining with the accused should have been accepted and hence, he desired that the acquittal be reversed. 7. Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor and Sri C. Praveen Kumar, learned counsel representing the accused are heard. 8. The point for consideration is whether the evidence on record before the trial Court was adequate to conclude the guilt of either accused for the offences with which they were charged ? 9. Point: Ex.P.1 private complaint, dated 19-06-2002 was the earliest version regarding the alleged incident on 17-04-2002 and the allegation in Ex.P.1 that P.W.1 ran to IV town police station immediately after the incident and submitted a report, is not corroborated by the production of any such report. Similarly, the alleged approach by P.W.1 to the police a number of times against the culpable conduct of both the accused as stated in Ex.P.1 was neither corroborated by any document nor by any person connected with the police station. How the Head Constable of IV town law and order police station was able to prevent any action being taken, was not explained and the said allegation in Ex.P.1 was not repeated in evidence. If the earliest report on the date of the incident itself was not forthcoming and if the subsequent approaches by P.W.1 to the police were not even stated by P.W.1, the abnormal gap between the incident and the private complaint makes it necessary to scrutinize the evidence with extra care and circumspection. 10. P.W.1 while reiterating the allegations against both the accused, claimed the 2nd accused to have chased her in the street, which was not the speciﬁc claim in Ex.P.1 and the 2 nd accused alone tearing the blouse and pulling the saree was not the claim in Ex.P.1. The evidence of P.W.1 is as though after the quarrel at the water tap, both the accused came to her house, beat her and took away her gold ‘pustela tadu’, which was not the version in Ex.P.1, which did not allege any incident at the house of P.W.1. The alleged return of the gold chain of the accused by P.W.1 is not evidenced by any acknowledgement and P.W.1 admittedly did not have any receipt for showing her report to the police on the date of the incident. She stated the accused also to have reported to the police, about which the Investigating Oﬃcer did not state and the very admission that P.W.1 did not receive even a notice concerning the alleged blank pronote signed by her till her evidence in 2007, may improbablise the allegations, as the accused would not have kept quiet for so long without conveniently ﬁlling up the pronote to make a civil claim. While Ex.P.2 admittedly did not refer to the beatings or abuses by the accused to P.W.1 as admitted by P.W.1, if P.W.1 had already paid the chit instalments as claimed by her, there was no scope for any dispute at all. Four or ﬁve persons allegedly present at the tap at the time of the incident were neither named nor examined and P.W.1 admitted not ﬁling even a copy of the report given by her to the police. 11. P.W.2 only stated about P.W.1 and the 1 st accused abusing each other and nothing about the violent allegations made by P.W.1 in Ex.P.1. After the first incident at 4.30 P.M. at the tap, there was another incident at about 9 P.M. according to P.W.2, but that was also due to P.W.1 going to the house of the accused leading to mutual abuses and scuﬄe creating a doubt as to who was the aggressor and who was the aggrieved. As rightly stated by the trial Court, the enquiry by the police on the next day and recording of the statement of P.W.2 on that day were plain impossibility when no crime was registered till after Ex.P.1 by the police and P.W.2 claimed that they went to the police station on the next day, which is not what P.W.1 claimed when she stated to have reported to the police on the same day. P.W.2 did not see any chain being snatched by the accused and did not even see the piece of the chain which allegedly remained with P.W.1 herself. Being a tenant of P.W.1, she could not have been considered as a totally independent witness. 12. P.W.3 happened to allegedly notice the quarrel between the accused and P.W.1 when he went to the house of Atchibabu who worked under him and was obviously a witness by chance. His claims about both the accused abusing P.W.1 in ﬁlthy language and the 2nd accused pushing P.W.1 by placing his hands on her chest making her fall down, were not the manner in which P.W.1 described the incident. P.W.3’s claim that only ‘sutrams’ were found in the blouse of P.W.1, is contrary to a portion of the chain remaining with P.W.1 even according to P.W.1. When P.W.3 denied stating to the police as in Ex.D.2 contrary to the claims of the Investigating Oﬃcer and also stated his statement to have been recorded by station writer and not the Investigating Oﬃcer, his version does not inspire much conﬁdence, more so when the incident was alleged to be in front of the house of P.W.1 on the road, which was not the claim of P.W.1. 13. P.W.4 claimed to have gone to the police station at the request of the father of P.W.1 after the alleged incident and he was speaking about the compromise under Ex.P.2, but not the incident proper. He denied stating to the police as in Exs.D.3 and D.4 and he again stated that he only attested Ex.P.2, all the remaining transactions having been over even by the time he went to the police station. 14. P.W.5 was a similar witness to speak about Ex.P.2 and he does not even know who drafted Ex.P.2. He denied stating to the police as in Ex.D.6 and if P.W.1 returned the gold ornament of the accused, there was no reason for the elders or the police agreeing to postpone the return of the gold ornament of P.W.1 by the accused even if the return of the blank pronote with the signature of P.W.1 would have been postponed due to the necessity of the accused having to get it from their residence. If both parties were at police station straight from the scene of oﬀence, the exchange of chains could have happened then and there. 15. P.W.6, the Investigating Oﬃcer, was positive that he did not obtain any report from P.W.1 and his claim that the incident was only at the public water tap, is contrary to the claim of every other witness. He asserted the witnesses to have stated to him as in Exs.D.1 to D.6 respectively. While the evidence of P.Ws.4 to 6 was, thus, not direct, the evidence of P.W.3 was by chance and the evidence of P.Ws.1 and 2 is tainted with interestedness. 16. Given the material discrepancies and inherent contradictions detailed above coupled with the gap of time between the incident and the earliest version in Ex.P.1, which provided scope for deliberation and concoction, the non-acceptance of the prosecution version at its face value by the trial Court, which had the beneﬁt of observing the demeanour of the witnesses in person, cannot be a matter of interference in appeal. Reversing the acquittal on merits is an exception and not the rule and there are no grounds to apply the exception to the present case. The criminal appeal has to fail and is accordingly dismissed. _____________________ G. BHAVANI PRASAD, J Date: 28-11-2011 Svv