HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL APPEAL No.771 of 2012
JUDGMENT:
1. Heard learned Additional Public Prosecutor who is representing the Appellant. Though Sri V.Venugopala Rao, Advocate, is on record representing the Respondents/Accused Nos.1 & 2, learned counsel failed to make his appearance and submit his contentions.
2. Disputing the validity of the judgment that is rendered by the Court of Assistant Sessions Judge, Miryalaguda, in S.C.No.278 of 2008, dated 30.04.2010, the present Criminal Appeal is preferred by the State.
3. The respondents (hereinafter be referred as the 'accused' for convenience of discussion) were charged with the offences punishable under Sections 366-A, 344, 376 r/w.109 IPC. Having found the accused not guilty of the said charges, the trial Court acquitted the accused and aggrieved by the same, the State preferred appeal.
4. Making his submission, the learned Additional Public Prosecutor contended that though sufficient evidence is produced by the prosecution to connect the accused with 2 Dr.CSL,J Crl.A.No.771 of 2012 the crime, the trial Court acquitted them. Learned Additional Public Prosecutor states that the learned Judge of the trial Court erred in disbelieving the evidence of prosecution witnesses. Learned Additional Public Prosecutor states that the evidence of the prosecution witnesses is cogent and convincing, more particularly, the evidence of PWs 1 & 3. Learned Additional Public Prosecutor also states that the victim girl was examined as PW3 and the evidence of PW3 is sufficient to convict the accused and therefore requested to set-aside the judgment of the trial Court. In the light of the submission thus made, the point that arises for consideration is, Whether the prosecution established beyond all reasonable doubt that the accused committed the offences charged?
5. The case of the prosecution in brief as could be perceived through the contents of charge sheet is that Accused No.1, though not a trained Dance Master, was running a Dance School. Accused No.2 got associated with Accused No.1. PW3, who could not succeed in 10th class examination, started staying at house. She joined Dance School of Accused No.1. Accused No.1 used to take PW3 to 3 Dr.CSL,J Crl.A.No.771 of 2012 the Dance programmes. Accused No.1 developed a desire to satisfy his lust with PW3. Therefore, a plan was hatched with the help of Accused No.2 to kidnap the victim girl. Accordingly, Accused No.2 went to the house of PW3 and by deceiving her, kidnapped her. PW3 was taken to Pallipahad village of Khammam District. There, Accused No.1 and PW3 stayed for ten days. Availing the opportunity, Accused No.1 outraged the modesty of PW3. Subsequently, Accused No.1 shifted PW3 to Tulasi Nagar of Hyderabad and stayed at the house of one Samuel and at that place also, he committed rape. When PW3 started pressurizing Accused No.1 to take her to her parents, Accused No.1 took PW3 to old Bus-station of Huzurnagar, left her there and absconded. From there, PW3 reached her house and narrated the entire episode to her parents.
6. As seen from the record, PWs 1 & 2, who are the parents of PW3, supported the case of the prosecution. Likewise, PW3 also supported the case of the prosecution. However, the circumstantial witnesses i.e. PWs 4, 6 & 8 failed to support the case of the prosecution. Likewise, the alleged panch witness i.e. PW7, for recovery of MO1-Motor 4 Dr.CSL,J Crl.A.No.771 of 2012 cycle, also failed to support the case of the prosecution. As per the version of the prosecution, the house of PW10 was let in to Accused No.1. However, PW10 deposed that he never leased out his house to Accused No.1. Likewise, the version of the prosecution is that MO1-Motor cycle belongs to PW11 and that was given to Accused No.2. However, PW11 stated that he has not used MO1 and did not give the same to Accused No.2. Furthermore, the case of the prosecution is that, there was forcible assault on the victim girl. But, PW12, who examined PW3, i.e. the alleged victim girl, stated that she did not find any symptoms of forcible sexual intercourse. Thus, the evidence left, apart from the evidence of PWs 1 to 3, is that of the Investigating Officers i.e. PWs 15 & 16. Therefore, it has to be seen whether the prosecution succeeded in establishing the charges levelled against the accused through the evidence of PWs 1 to 3, PWs 15 & 16. The crucial testimony is that of PW3. Though PW3 stated that she was forcibly taken by Accused No.2 on his motor cycle and that thereafter, Accused No.1 threatened her through a point of knife and took her in a bus to Pallepadu village of Khammam District and later threatened her, beat her and had sexual intercourse with 5 Dr.CSL,J Crl.A.No.771 of 2012 her, she, during the course of cross-examination, stated that she took four or five pairs of clothes along with her. Her statement is that after informing PW2, she took clothes with an intention to go to her grandmother. But, PW2 gave a different version. Her statement is that on one day, Accused No.2 approached their house and took away PW3 on his motorcycle informing her that Accused No.1 asked to bring PW3 from the house. Neither in Ex.P1-Complant nor in the testimony of PWs 1 & 2, it is narrated that PW3 was proceeding to her grandparents house and at that time, she was taken away by Accused No.2.
7. As rightly observed by the trial Court, the prosecution did not even take steps to establish the exact age of PW3 as on the date of incident. Though the prosecution produced Ex.P2-Date of Birth certificate, the genuineness of the said certificate is not established by examining the author of the said certificate. No reason is assigned for non-examination of the person who issued said certificate. It is not as if the contents mentioned therein are gospel truth. For the Court to attach value to the said certificate, the prosecution is burdened to establish its genuineness. However, the 6 Dr.CSL,J Crl.A.No.771 of 2012 genuineness of the said certificate is not established. Likewise, the Doctor, who examined PW3, did not state anything with regard to her age. No Ossification test was said to have been conducted to ascertain the age of PW3. Therefore, it cannot be held that PW3 was a minor as on the date of the said incident. Furthermore, as earlier discussed, there is no material to believe the version of PW3 that while she was standing outside the house so as to proceed to her grandparent's house, she was kidnapped. The evidence of PWs 1 & 2 is quite contrary to the version of PW3. Having perceived all these aspects, the learned Judge of the trial Court has come to a conclusion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. This Court does not find any grounds, whatsoever, to deviate with the observations and findings of the trial Court. The prosecution totally failed in establishing the guilt of the accused for the charges levelled. Therefore, the trial Court has rightly acquitted the accused. Hence, this Court considers that the Criminal Appeal lacks merits.
8. Resultantly, the Criminal Appeal stands dismissed. 7
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9. Miscellaneous petitions, if any pending, shall stand closed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA Date:14.12.2022 ysk 8 Dr.CSL,J Crl.A.No.771 of 2012 HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA CRIMINAL APPEAL No.771 of 2012 Date:14.12.2022 ysk 9 Dr.CSL,J Crl.A.No.771 of 2012