HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1096 OF 2006 DATED: 29.08.2011 BETWEEN: The State of A.P. Rep.by Public Prosecutor .. Appellant And Madaraboina Veeraswamy .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1096 OF 2006 JUDGMENT: This criminal appeal is filed by the State against the judgment dated 23.09.2005 passed by the I Additional Assistant Sessions Judge, Warangal in S.C.No.253 of 2005 acquitting the respondent/accused for the offence punishable under Sections 354 and 506 IPC and convicting him for the offence under Section 352 IPC. 2. I have heard the learned Additional Public Prosecutor representing the State and Sri A.Prabhakar Rao, learned counsel appearing for the respondent-accused. 3. The contention of the learned Additional Public Prosecutor appearing for the State is that the conviction basing on the evidence of Pws.1 to 3 ought to have been under Section 354 and 506 IPC, but the learned trial Court found the accused guilty under Section 352 IPC and sentenced him to undergo simple imprisonment for one month and to pay fine of Rs.500/-, even though there is evidence on record for conviction under Sections 354 and 506 IPC. 4. The brief facts necessary for considering the appeal may be stated as follows: PW.2-Kum Dodda Anusha Reddy was aged 12 years on the date of incident. Pw.1 is the father of PW.2. It is said that on 16.05.2005 at about 4.30 PM, PW.1 and Dodda Merilamma were away from the house in connection with attending function at their relatives house, the respondent went to the house of PW.1, caught hold of the hand of PW.2 and forced her to sleep with him. It is also said that the respondent threatened PW.2 not to inform the incident to others. Therefore, PW.2 did not inform her parents. When they returned from the function, on the same day at about 7.00 PM, the respondent was invited to the house of PW.1 to cut the mangoes for the purpose of preparing pickle. The respondent went to the house of PW.1 and cut the mangoes up to 8.00 PM and while returning back, he asked PW.2 for glass of drinking water. When PW.2 gave him drinking water, he again caught hold of her hand and invited her to sleep with him. In the above incident, it was alleged that the respondent outraged modesty of PW.2. On the next day i.e. on 17.05.2005 PW.1 lodged a report with Dharmasagar Police Station. PW.4-Assistant Sub-Inspector of Police basing on the report lodged by PW.1, registered a case in Crime No.60 of 2005 under Sections 354 and 506 IPC. PW.5-Sub-Inspector of Police investigated into the case and after investigation, he filed charge sheet. 5. In the course of trial before the learned Assistant Sessions Judge, the prosecution in order to establish the guilt of the respondent, examined Pws.1 to 5 and marked Exs.P.1 to P.4. On behalf of the respondent, none was examined. The learned trial Court on consideration of entire evidence on record, arrived at the conclusion that the assault on PW.2 by the accused was proved, but it was not with an intention to outrage her modesty and therefore, convicted him as stated above. 6. During the course of arguments, the learned counsel appearing for the respondent submitted that the respondent had served out the entire imprisonment passed by the trial Court and paid the fine amount. According to the learned counsel the trial court rightly recorded conviction against the respondent for the offence under Sections 352 of IPC. 7. One of the circumstances which was considered by the learned trial Court is that if really the respondent caught hold of the hand of PW.2 with an intention in his mind to outrage the modesty, she would have definitely informed the same to her parents after their arrival from attending the function at their relatives’ house. But, admittedly after their arrival, PW.1 did not inform the same to her parents. The trial Court also took into consideration, the fact that the parents of Pw.1 inviting the respondent to their house at 7.00 PM to cut mangoes and in the opinion of the trial Court, if the respondent mis-behaved with PW.2, PW.1 would not have invited him to his house for the purpose of cutting mangoes. The learned trial Court which had the opportunity of observing the demeanor of the witnesses while they were giving evidence in the Court was of the view that the prosecution proved the incident of the respondent catching hold of hand of PW.2, but it was not with any intention to outrage the modesty. The trial Court expressed the opinion that because of closeness, the respondent might have caught hold of hand of PW.2, who was aged 12 years on the date of incident, but there was no intention on his part to outrage her modesty. 8. While rendering its decision, the learned trial Court relied upon the judgment of the Supreme Court in RAMDAS v STATE OF WEST BENGAL[1] and HANUMAN v STATE OF HRYANA[2]. In both the case, the Supreme Court referring to the facts in the respective cases arrived at the conclusion that the version of the prosecution witnesses was exaggerated and altered the conviction to one under Section 352 of IPC and held that the conviction recorded by the Courts below for the offence under Section 354 IPC is not correct. In the instant case also the learned trial Court in view of one day delay in lodging the first information report and another day’s delay in reaching the first information report to the magistrate coupled with the exaggerated version of PWs.1 and 2 held that the offence committed in fact was under Section 352 IPC, but not under Sections 354 and 506 IPC. This Court while dealing with an appeal against an order of acquittal can interfere with the findings recorded by the trial Court only if they are perverse or not based on evidence. Even if other view is possible, this Court will not upset the findings of acquittal recorded by the trial Court. In the instant case, the findings recorded by the trial Court are based on evidence and having regard to the facts and circumstances under which the incident came to be reported by PW.1, this Court therefore, is not supposed to interfere with the said findings of acquittal. 9. For the aforementioned reasons, the appeal filed by the State against acquittal fails. The judgment dated 23.09.2005 passed by the I Additional Assistant Sessions Judge, Warangal in S.C.No.253 of 2005 acquitting the accused is confirmed. The appeal is dismissed. __________________ Date: 29.08.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1096 OF 2006 DATE: 29.08.2011 [1] AIR 1954 SC 711 [2] AIR 1977 SC 1614