HONOURABLE SRI JUSTICE P.NAVEEN RAO
CRIMINAL APPEAL NO.82 OF 2010
Date: 28.09.2021
Between:
The State of A.P., rep.by the
Public Prosecutor,
High Court of A.P., Hyderabad.
.....Appellant/Petitioner
And
Ekkirala Srinu, s/o. Krishnaiah,
r/o. Kurnavalli village, Thallada Mandal,
Khammam district.
.....Respondent/accused
The Court made the following:
PNR,J
Crl.A.No.82 of 2010
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CRIMINAL APPEAL NO.82 OF 2010
ORDER:
Heard Mr. C.Prathap Reddy, learned Public Prosecutor for the State and Mr. H.Sudhakar Rao, learned counsel for the respondent/accused.
2. This appeal is preferred by the State against the judgment dated 01.05.2008 in Sessions Case No.213 of 2007 passed by learned Assistant Sessions Judge, Sathupally, acquitting the respondent-accused of the offence under Section 354 of Indian Penal Code, 1860 (IPC).
3. The case of the prosecution is that at about 2.00 p.m., on 12.05.2006, when Smt. Ekkirala Mariamma w/o. Ramulu was returning from the rivulet after washing clothes, when she was crossing the sugarcane field of Srinivasa Reddy, the accused went behind her, caught hold of her hands and used criminal force to outrage her modesty and when she cried, the accused ran away. After reaching home, she had narrated the incident to her husband and other family members and thereafter lodged complaint on 15.05.2006. Based on her complaint, Crime No.48 of 2006 was registered under Section 354 of IPC. After completing investigation final report was filed. P.R.C.No.24 of 2006 under Section 354 of IPC was taken on file by the Committal Court and as crime was triable by the Court of Sessions, it was committed to the Principal District Judge at Khammam. The Principal District Judge made over the case to the Court of Assistant Sessions Judge at Sathupally.
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4. On appearance of the accused, charge under Section 354 of IPC was framed against him, read over and explained to him. He pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution has examined PWs.1 to 5 and marked Exs.P1 to P3. After closure of prosecution evidence, accused was examined under Section 313 of Cr.P.C. Accused did not choose to adduce evidence on his behalf.
6. On appreciation of oral and documentary evidence, the trial Court held that the prosecution failed to establish the guilt of the accused beyond reasonable doubt for the offence under Section 354 of IPC and acquitted the accused.
7. P.W.1-Ekkirala Mariyamma is the victim. She deposed about the incident on how accused held her hands and pulling her into the sugarcane field of Srinivasa Reddy, informing the incident to her husband and others and giving Ex.P1-report. P.W.2- Ekkirala Ramulu is the husband of victim, he deposed about his wife informing the incident. P.W.3-Ekkirala Manesh is the brother- in-law of the victim. He also deposed about P.W.1 informing the incident. P.W.4-Ekkirala Venkateswarlu is punch witness for the observation of the scene of offence. He deposed about the presence at the time of observation in Ex.P2-Crime Detailed Form. P.W.5- M.Gopal Rao is the then Assistant Sub-Inspector of Police, Thallada. He deposed about lodging report by P.W.1 and registration of Crime No.48/2006, the visit of scene of offence, observing the same, preparing Ex.P2-C.D.F., and arrest of the accused.
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8. It is seen from the depositions recorded by the trial Court, except P.W.1-complainant, there was no other person who had witnessed occurrence of crime. When there is no independent witness supporting the version of the complainant-P.W.1 about the incident, the testimony of P.W.1 must withstand scrutiny and inspire confidence.
9. In Ashish Batham v. State of M.P.,1 the Hon'ble Supreme Court held as under:
"6. The principles, which should guide and weigh with the courts administering criminal justice in dealing with a case based on circumstantial evidence, have been succinctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this case having regard to the turn of events and the manner of consideration undertaken, in this case by the courts below. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] it has been held as follows: (AIR pp. 345- 46, para 10) "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewin 227 : 168 ER 1136] where he said:
'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.' It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
These principles were needed to be restated even as late as in the decision reported in Sudama Pandey v. State of Bihar [(2002) 1 1 2002 (7) SCC 317 PNR,J Crl.A.No.82 of 2010 5 SCC 679 : 2002 SCC (Cri) 239] and Subhash Chand v. State of Rajasthan [(2002) 1 SCC 702 : 2002 SCC (Cri) 256] . xxxx
8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
10. P.W.1 deposed that after the incident, she went home weeping, narrated the incident to her husband, mother-in-law and caste elders. She deposed that she could not lodge the complaint immediately as her brother-in-law was not in the village and family members wanted to wait till he comes back. During the cross- examination, P.W.1 deposed that though she was shedding tears and crying all the way home, she did not disclose the incident to other villagers on the way, did not inform the incident to the village elders or caste elders.
11. In his deposition, Investigating Officer (P.W.5) also stated that caste elders did not support the version of the prosecution. He could not secure any other information except the version of P.Ws.1 and 2.
12. The conduct of the complainant in waiting to lodge complaint for 3 or four days, giving different versions on reporting of the incident to caste elders and not sure of on which day incident PNR,J Crl.A.No.82 of 2010 6 occurred does not inspire confidence in the evidence of P.W.1 to hold the accused guilty.
13. A crime has to be reported soon after the incident, to have credibility on reporting of crime. However, delay of 3 or 4 days is not fatal to the case of prosecution if it is satisfactorily explained. As assessed by the trial Court, the witness was not sure of when the incident happened. Vaguely stated as 3 or 4 days ago. It is not stated why village elders/caste elders were not informed about the incident. While it was deposed by P.W.1 that the issue was placed before the village elders, but the cross-examination of P.W.1 and the deposition of P.W.5 show that no such information was given to village elders. Prosecution sought to assert that the reason for delay of 3 or 4 days to lodge complaint was that brother- in-law of the complainant was not in the village and the family of complainant waited for him to return. It was not explained why brother-in-law was not in the village, where he had gone, when he returned and when P.W.3 was informed about the incident. These aspects castes shadow on credibility of prosecution case.
14. On due assessment of evidence on record, the trial Court was not persuaded to accept the reason for delay.
15. This very issue of delay in lodging complaint was considered by this Court in Criminal Revision Case No.174 of 2009. Against the judgment of trial Court acquitting the accused, the complainant preferred Criminal Revision Case No.174 of 2009. It was contended that the trial Court erred in acquitting the accused on the ground of delay in lodging the complaint and that there was no unreasonable delay. On thorough analysis of the evidence on PNR,J Crl.A.No.82 of 2010 7 record, this Court did not find error in the decision of trial Court in not believing the version of the prosecution on delay in lodging the complaint.
16. The scope of consideration of appeal against acquittal is within a narrow bandwidth. It is not in every case this court should reverse the decision of Court below granting acquittal. This is all the more so, even when two views are possible. Interference is not warranted even when acquittal is found to be wrong. An order of acquittal can be interfered with only when there are compelling and substantial reasons, such as 'clearly unreasonable', Court below 'ignored the evidence or has ignored material documents', bordering on perversity. (Mrinal Das vs. State of Tripura = (2011) 9 SCC 479; Maloth Somaraju Vs. State of Andhra Pradesh = (2011) 8 SCC 635).
17. In Chandrappa v. State of Karnataka2, the Hon'ble Supreme Court delineated the principles that emerged from plethora of decisions as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance 2 2007 (4) SCC 415 PNR,J Crl.A.No.82 of 2010 8 of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(emphasis supplied)
18. It is a well considered decision of the trial Court. Learned Public Prosecutor is not able to persuade the Court on attracting any of these ingredients and persuade this Court to reverse the decision of acquittal granted by the trial Court.
19. Having anxiously considered the submissions of learned Public Prosecutor, on going through the evidence adduced by the prosecution and judgment rendered by the trial Court carefully, I am of the opinion that there is no illegality or perversity in the findings of trial Court warranting reversing the said decision.
20. The Criminal Appeal is dismissed, confirming the judgment dated 01.05.2008 in Sessions Case No.213 of 2007 passed by learned Assistant Sessions Judge, Sathupally. Pending miscellaneous petitions if any shall stand closed.
___________________________ JUSTICE P.NAVEEN RAO Date: 28.09.2021 Kkm PNR,J Crl.A.No.82 of 2010 9 HONOURABLE SRI JUSTICE P.NAVEEN RAO CRIMINAL APPEAL NO.82 OF 2010 Date: 28.09.2021 kkm