The State Of A.P. Rep., By Its Pp vs Nookathotti Nageshwar Rao ...
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     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

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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

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

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

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

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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.

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9. Miscellaneous petitions, if any pending, shall stand

closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

Date:14.12.2022 ysk

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

Dr.CSL,J Crl.A.No.771 of 2012