IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.227 of 2008 Between: Pantampalli Prasad Kumar .. Appellant AND The State of Andhra Pradesh .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.227 of 2008 JUDGMENT: The convicted accused in S.C.No.73 of 2006, on the file of the Sessions Judge, Mahila Court, Vijayawada, preferred this appeal against his being found guilty of offences punishable under Sections 354 and 448 of the Indian Penal Code, 1860 (for short, ‘IPC’) and being handed over sentences of imprisonment for five years and six months and fine of Rs.5,000/- and Rs.500/- with default sentences respectively on conviction. 2. The prosecution case, as narrated in the charge sheet filed by the Sub-Inspector of Police, Law and Order, Satyanarayanapuram Police Station, Vijayawada, in Crime No.148 of 2005, is that Velamala Surya Kumari and her husband Velamala Govinda Rao had a computer shop at Governorpet, Vijayawada, where the accused worked earlier. On 15.04.2005 at about 9.30 p.m., the accused was alleged to have criminally trespassed into the bed room of Surya Kumari in H.No.21-17- 19, Madhuranagar, Vijayawada. He was claimed to have caught hold of her hands and to have used criminal force, thereby outraging the modesty of Surya Kumari. He was allegedly caught red handed by the other inmates of the house and neighbours and was brought to the Police Station by the Sub- Inspector of the Police who rushed to the scene of offence on receiving a phone call. On the report of Surya Kumari, the crime was registered and the scene of offence was examined preparing a rough sketch. The accused was arrested and sent to judicial custody and, hence, the charge. 3. On taking cognizance of the offence, the II Additional Chief Metropolitan Magistrate, Vijayawada, furnished copies of the documents to the accused on his appearance and committed the accused to the Metropolitan Sessions Judge, who made it over to the trial Court. To the charges under Sections 354 and 457 IPC framed against him by the trial Court, the accused pleaded not guilty. 4. During trial, P.Ws.1 to 5 were examined and Exs.P-1 to P-3 were marked and N. Rama Krishna-L.W.5, was given up, while the victim Surya Kumari-L.W.1 was reported dead. 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, 1973 (for short, ‘Cr.P.C’), and no defence evidence was produced. 5. The trial Court rendered the impugned judgment referring to the factual background and rival contentions and opining that mere interestedness of P.Ws.1 to 3 cannot be a ground to discredit their testimony. The trial Court also opined that P.W.1 explained the reason for being at the house of the victim at that time, though he was residing with his wife and children separately in Sambamurthy Road, as his wife was out of station since some days. His presence corroborates the claims of the prosecution. The trial Court also opined that the discrepancy about the time of the incident between P.Ws.1 and 3 is not material when the variation is about one hour to 1 ½ hours only and the trial Court further felt that the defence version that a false case was foisted due to the accused insisting on P.W.2 repaying some amount cannot be believed. A person cannot be suspected to be using his wife as a tool to avoid any payment of any loan and the alleged enmity between P.W.2 and the accused, therefore, was refused to be acted upon. The evidence of P.W.4, a neighbour about his rushing to the scene was also accepted as natural and the non- examination of another neighbour N.Rama Krishna-L.W.5 was considered immaterial. The evidence of the witnesses was, therefore, considered to have clearly established the trespass by the accused into the house of the victim and outraging of her modesty. The evidence of the Investigating Officer was also considered to be establishing the presence of the accused at the house of P.W.2 at the relevant time and mere non- examination of the other persons shown in the rough sketch of the scene of offence-Ex.P-3 was not considered significant. The presence of the accused in the house of P.W.2 and the victim at the relevant time probablised the alleged incident and the trial Court considered the lesser offence under Section 448 IPC and not the offence under Section 457 IPC to have been made out on facts. The proof beyond reasonable doubt afforded by the prosecution led the trial Court to convict the accused for the offences under Sections 354 and 448 IPC and after hearing him on the question of sentence and considering his statement about his recent marriage and dependence of an unmarried sister on him, the learned Sessions Judge was of the opinion that the minimum sentence prescribed by Section 354 IPC and appropriate sentence for the other offence under Section 448 IPC will be sufficient to meet the ends of justice. Accordingly, the accused was sentenced and the sentences were directed to run concurrently with any period of detention during enquiry and trial ordered to be set-off against the sentence passed by the Court under Section 428 Cr.P.C. 6. The accused is before this Court with this appeal challenging the acceptance of the interested evidence of P.Ws.1 to 3 when their discrepant version did not establish the ingredients to constitute the offences under Sections 354 and 448 IPC. The hearsay nature of the evidence of P.Ws.1 to 3, the non-examination of N. Rama Krishna-L.W.5 and the unavailability of the victim due to her death should have led to an acquittal and in any view, the sentence imposed is unduly severe. The accused, therefore, desired that the impugned judgment to be reversed. 7. Sri T. Pradyumna Kumar Reddy, learned counsel for the appellant/accused and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/the respondent are heard. 8. The acquittal of the accused for an offence punishable under Section 457 IPC was not challenged by the prosecution in any manner. 9. The point for consideration is whether the prosecution had proved the offences punishable under Sections 354 and 448 IPC against the accused beyond reasonable doubt. 10. The earliest version in Ex.P-1 by Surya Kumari, the victim, was about the accused entering into her house on 15.04.2005 Friday at about 9.30 p.m. and attempting to outrage her modesty by catching her hand and when she shouted, her mother-in-law, her younger brother R.S. Naidu and other neighbours came, caught the accused and got her released from the accused. On her informing her husband by phone, her husband came and informed the police by phone, who took the accused to the Police Station. The report of her was claimed to have been given and registered as Crime No.148 of 2005 within one hour and the First Information Report reached the concerned Magistrate by 10.40 a.m. on the next day. While there is no abnormal delay in lodging of the First Information Report, the earliest version did not state the manner in which the accused had entered the house nor did it specify any reasons or motives for the accused to indulge in the crime. Ex.P-3-Rough Sketch of the scene of offence shows that the scene of offence is in a busy residential locality and it is not shown to have more than one entry into the house. The rough sketch is as though there is an opening from the hall into the bed room and another opening from the hall into the area of the kitchen where the television was kept. If the accused entered the house of the victim at about the time alleged, the same could not have probably escaped the attention of the other residents in the street or at least the other residents of the house apart from the victim. While it is not known whether the main door of the house was open or closed at that time, it is not the claim of P.Ws.1 and 3 that they had noticed the entry of the accused into the house till they were attracted by the shouts of the victim from the bed room to find the accused catching hold of the hand of the victim. 11. While the interestedness of P.Ws.1 to 3 is admitted and referred to by the trial Court in the impugned judgment also, it is an accepted rule of prudence that it will be safe to look for satisfactory corroboration for such interested evidence before acceptance even if every interested evidence is not per se false evidence. P.W.1, the younger brother of the victim, tried to claim in his chief examination that all of them were residing in the house of P.W.2, but he admitted during cross- examination that he was married by that time and was living separately with his wife and children in Sambamurthy Road. He claimed to be staying at the house of P.W.2 since some days due to the absence of his wife which is contrary to the statement to the police about his residing in the same house and working under P.W.2. The admission of P.W.1 that he was residing separately with his family at that time was corroborated even by P.W.2’s mother as P.W.3, who also tried to claim his stay at their house to be due to the absence of his wife who went to her parents’ house. But P.W.2 attempted even to deny the claim that P.W.1 was staying with his wife and children at Sambamurthy Road by that time. The presence of P.W.1 in the house of P.W.2 at the relevant time was, thus, by chance and while the version through out was that the incident occurred at about 9.30 p.m., P.W.1 stated it to be at about 7.30 p.m. or 8.00 p.m. when he and P.W.3 were watching the television. Even the difference of 1 ½ to 2 hours in mentioning the time of the incident assumes relevance, as P.W.1 is no illiterate or innocent witness and as the very nature of the incident could not have left any confusion in the minds of the witnesses about the time at which it happened. 12. P.Ws.1 and 2 admitted that the accused was working under P.W.2 earlier, but stopped such work about one year prior to the incident. While P.W.2 denied being liable to pay any amount to the accused, P.W.1 claimed to be unaware of any such amount being due to the accused or not. Given the relationship between P.Ws.1 and 2 and the fact that P.W.2 was working with P.W.1, such ignorance is unnatural and it is the defence version that the insistence of the accused for repayment of the amount due to him led to foisting a false case. While there was no specification of the period for which the accused worked under P.W.2, it is not even the claim of the prosecution that during such service or till this incident after about one year after the accused quit his job, there was ever any allegation of any questionable conduct by the accused towards the victim as was sought to be projected in the charge sheet. 13. G. Rama Krishna, cited as L.W.5, to speak about catching the accused red handed was given up without any explicable reason. P.W.4 examined to claim having rushed to the scene on hearing the cries was not referred to in the earliest version in Ex.P-1 and while P.W.1 claimed only about P.W.4 coming to their house on hearing their cries, P.W.3 tried to claim that P.W.4 and Rama Krishna rushed there on hearing their cries. If the accused was working under P.W.2 for quite some time, the alleged ignorance of P.W.3 about him is unnatural and her denial of stating the name of the accused to the police is contrary to her statement to the police about the accused working earlier under P.W.2. While her statement the police did not refer to the time of the incident, the same was denied by P.W.3 and her claim that there was another way to the bed room was not stated by P.W.1 or P.W.2. The claims of P.W.2 that the victim told him that the accused used vulgar language against her was not reflected in the statement to the police and he admitted that he did not state to the police about finding the accused being kept in a room or about being caught hold of by all the persons or telephoning to the police. He did not state to the police about P.W.4 or N. Rama Krishna being present by the time of his return to the house on receiving the phone call of his wife and P.Ws.1 to 3 did not state about the accused having any other intentions against the victim earlier as claimed to have been found out during investigation. P.W.1 admitted that he did not state to the police about his wife going to her parents’ house leading to the stay at P.W.2’s house or about keeping the accused in a room or that the victim telephoned to the police. While the case of the prosecution and the claim of P.W.2 is as though the information to the police was through a telephonic message from P.W.2, the claim of P.W.1 is to the contrary and if P.W.1 returned home after work from P.Ws.2’s office by the time of the incident, why P.W.2 did not return to the house was also not stated and P.W.4 did not state to the police about the accused being kept in a room after being caught. 14. The Investigating Officer, as P.W.5, admitted not examining the neighbours shown in the Rough Sketch-Ex.P-3 and also admitted that P.W.4 was not shown as a neighbour in Ex.P-3. N. Rama Krishna, L.W.5, was also admittedly not so shown and the denials about the contents of the statements to the police by P.Ws.1 to 3 were contradicted by P.W.5. The accused claimed, during his examination under Section 313 Cr.P.C., that this case was foisted as he demanded return of the money due to him. 15. When there was no iota of evidence to show any misbehaviour or questionable conduct on the part of the accused towards the victim during his service with P.W.2 or till the incident about one year after he left the service, why he suddenly had chosen to indulge in such outrage is incomprehensible. Either the alleged entry of the accused into the residential house in a busy residential locality at about 7.30 p.m. or 8.00 p.m. or 9.30 p.m. when all the people around will be active and moving and when there will be other inmates in the house or the accused allegedly still holding the hand of the victim in a posture as to suggest an attempt to commit rape till P.Ws.1 and 3 and the neighbours come to the bed room on hearing the shouts of the victim appear quite unnatural and artificial. Even if the accused was found by the police to have been physically detained by the time they reached the house of P.W.2 on receiving a telephonic message that cannot be construed as a guarantee of truth of the allegations of the prosecution and however strong the suspicions that may arise out of the allegations might be, the same could not have been equated to proof of the alleged offences beyond reasonable doubt. Though the mere absence of the version of the victim due to her demise might not have been a valid ground to give any benefit to the accused, the requirement of proof of an offence beyond reasonable doubt could not have been dispensed with. 16. As held in PUBLIC PROSECUTOR VS. VENKATESWARLU[1], interestedness of the witnesses, disputes between the parties, etc., require material corroboration to the circumstances alleged by the prosecution and even non-examination of an alleged independent eye witness can be fatal to the prosecution version. At any rate, even the version of P.Ws.1 to 3 is only hearsay and in view of the various inconsistencies in their version and the inherent unnaturality of the manner in which the incident was alleged to have happened, it is difficult to concur with the conclusions of the trial Court about the acceptability of the interested evidence at its face value. The discrepancies could not have been dismissed as inconsequential, immaterial and insignificant and the other circumstances could not have been ignored as detailed earlier and, therefore, when the trial Court itself has found that there was no lurking house trespass by the accused, it could not have equally found the accused guilty of the other offences and should have extended the benefit of reasonable doubt to the accused. 17. Therefore, the judgment, dated 20.02.2008, in S.C.No.73 of 2006, on the file of the Sessions Judge, Mahila Court, Vijayawada, is set aside and the accused is not found guilty of the offences punishable under Sections 354 and 448 IPC and he is consequently acquitted under Section 235 (1) Cr.P.C. The accused is already on bail on suspension of sentence and the bail bonds shall stand cancelled. The Criminal Appeal is allowed accordingly. ___________________ G. BHAVANI PRASAD, J Date: 4th November, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.227 of 2008 Date: 4th November, 2011 KL [1] 2002 (1) ALD Criminal 500 (AP)