IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTYNINETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.604 of 2008 Between: The State represented by the Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND Unnam Ramesh Babu .. Respondents JUDGMENT: This appeal is directed against the acquittal of the accused for offences punishable under Sections 417, 493 and 376 of the Indian Penal Code by the judgment dated 06-09-2006 of the Assistant Sessions Judge, Chirala, in S.C.No.230 of 2004. The Station House Officer, Vetapalem prosecuted the accused alleging that the accused and Tella Sunitha were friends since 8 years with the friendship developing into love and a promise by the accused to Sunitha to marry her. However, the accused was alleged to have an engagement with another girl on 2-3-2004 on which Sunitha questioned him and on 18-03-2004, the accused called Sunitha, gave her Rs.300/- for purchase of Tali and Mettelu and asked her to come to Ongole so that they can marry at Vizag. Sunitha went to Ongole, but the accused took her to Kadavakuduru on some pretext and at a lonely place at Kadavakuduru, he had a sexual intercourse with Sunitha after making her believe about being married on exchange of rings. The accused dropped Sunitha at Vetapalem and she informed the happenings to her mother Emalamma on return to the house. A report was presented to the police on 25-03-2004 registered as Crime No.38 of 2004 and the Medical Officer, Government Hospital, Chirala by examining Sunitha found her to have been sexually assaulted. Hence, the charge. After the Magistrate took the case on file, copies of documents were furnished to the accused on his entering appearance and the case was committed to the Court of Session, Ongole. The Court of Session made over the case to the trial Court, which framed charges under Sections 417, 493 and 376 of the Indian Penal Code, which were denied by the accused. The prosecution examined PWs.1 to 8 and marked Exs.P.1 to P.7 and M.Os.1 to 4 during trial, while the accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure. Exs.D.1 and D.2 were marked on behalf of the accused, which were the portions of the statements of PWs.1 and 3 to the police. The trial Court in the impugned judgment considered the points about cheating by the accused of PW.1 by obtaining her consent for sexual intercourse fraudulently and dishonestly promising to marry her and by making her believe that he is her husband after exchange of rings. The trial Court also considered whether such sexual intercourse would amount to the offence of rape. The trial Court, on analyzing the evidence on record, noted that PW.1, aged 19 years by the time of incident, was capable of giving consent for sexual intercourse and she had a love affair with the accused since long prior to the incident. The trial Court also noted that the engagement of the accused with another girl 15 days earlier to the incident was to the knowledge of PW.1 and PWs.2 and 3 were not direct witnesses to the incident. Their evidence was hearsay, while PWs.4, 6 and 7 turned hostile and did not support the prosecution. The evidence of PW.5, the doctor, was about sexual assault on PW.1, which does not throw any light as to the circumstances under which such sexual intercourse would have taken place. The trial Court considered the circumstances about the absence of any necessity to go to Ongole, if PW.1 and the accused wanted to go to Vizag, the absence of any purchase of Tali and Mettelu with Rs.300/- said to have been given by the accused, the failure of PW.1 and the accused to wait for the train for Vizag to arrive and the unnaturality of PW.1 accompanying the accused to a lonely place with shrubs. The trial Court, hence, considered that the sexual intercourse between the accused and PW.1 was with the consent of PW.1 and further noted the absence of any reference to the accused misleading PW.1 to be her husband after exchange of rings in the earliest version in Ex.P.1. The trial Court further noted that the Sub-Inspector of Police did not seize the ring and PW.1 did not handover any such ring and it also referred to the admission of PW.1 about her knowing and protesting with the accused about the marriage being not completed by mere exchange of rings. A time gap of 7 days between the incident and the report to the police was also taken adverse note of and therefore, the trial Court had concluded that the version of the prosecution cannot be sufficient to conclude the guilt of the accused for the offences and accordingly, the accused was acquitted. The State represented by the learned Public Prosecutor challenges the said acquittal contending that the ingredients of the alleged offences have been proved and the evidence of victim was clear and categorical, which ought not to have been rejected on the ground of mere delay in the First Information Report. Therefore, the acquittal is requested to be reversed. Sri Rudresh Deshpande, learned counsel, representing the learned Public Prosecutor is heard and the accused is represented by Sri T. Venkata Ramana, learned counsel. The point for consideration is whether the committal of the offences punishable under Sections 417, 493 and 376 of the IPC has been proved beyond reasonable doubt? Out of eight witnesses examined on behalf of the prosecution, PWs.4, 6 and 7 examined by the prosecution to probablise the love affair between the accused and PW.1 turned hostile and did not support the prosecution version in any manner. PWs.2 and 3 were examined to depose about hearing about the incident and any such hearsay evidence could not have been considered as proof of any fact. The evidence of PW.5 about PW.1 having had sexual intercourse at about relevant time is not of much significance as it is not the happening of sexual intercourse between the accused and PW.1 that is in issue, but the manner in which such sexual intercourse had taken place that was relied on to attribute criminal liability to the accused. The evidence of the investigating officer as PW.8 is about the manner of investigation conducted by him and what the witnesses stated to him and he did not explain as to why no attempt was made to seize the ring, which the accused should have given to PW.1 at the time of exchange of rings at a lonely place at Kadavakuduru, which alone led to the accused to make PW.1 believe in completion of their marriage according to the prosecution version. If PW.1’s half saree, blouse, langa and petty coat were seized by the police during the investigation and marked as M.Os.1 to 4, the omission to seize the said ring said to have been presented by the accused throws grave doubt on the credibility of the allegations. If the accused and PW.1 were acquainted with each other and friends since about 8 years earlier and if their friendship blossomed into love long before the incident, the accused need not, in the ordinary and natural course of human events, have resorted to such a dubious conduct to make PW.1 agree to have sexual intimacy with him. If the deceit by the accused became known to the victim soon after the incident and if she had reported the same immediately to her mother, the abnormal delay of 7 days in reporting to the police also does not stand satisfactorily explained. Apart from the discrepancies about the statements of the witnesses recorded by the police, the only evidence that can be claimed to corroborate the claims of PW.1 in any manner is the evidence of PW.5 along with Ex.P.3-wound certificate and Ex.P.7- report of the Forensic Science Laboratory concerning MOs.1 to 4. However, as stated by the trial Court, even if there was an act of sexual intercourse involving PW.1, the same cannot be considered to automatically prove the involvement of the accused in such sexual intercourse or the involvement of the accused in such sexual intercourse to be accompanied by his deceitful conduct making PW.1 believe him to be her husband. Under the circumstances, if the trial Court did not place implicit reliance on the claims of PW.1 about conduct of the accused in the whole episode, the same cannot be considered unreasonable or improper and as involvement in any crime has to be proved beyond reasonable doubt, giving of benefit of doubt by the trial Court to the accused under such circumstances cannot be reversed in appeal. In the result, the Criminal Appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 29-10-2011 Ksn