The State Of Telangana vs Gadepaka Shekar
2022 Latest Caselaw 3391 Tel

           HONOURABLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.499 of 2020
JUDGMENT:

1. The State questions the acquittal recorded by the I Additional

District & Sessions Judge, Nalgonda of the respondent for the

offences under Sections 354-A, 506 of IPC and Section 8 of the

Protection of Children from Sexual Offences Act, 2012 vide

judgment dated 05.12.2019 in Sessions Case No.46 of 2016.

2. The case of the prosecution is that on 29.02.2016 in the

evening hours around 6.00 p.m, when the victim girl/P.W.2 was

returning home from Kirana store, the respondent/accused herein

stopped her and told her that he was in love and intends to marry

her. The respondent caught hold of her hand and pulled her aside

with an intention to outrage her modesty. P.W.2 shouted for help

and P.W.3 came to her rescue. On seeing PW3 the respondent fled

away the place. Thereafter P.W.2 went home and narrated the

entire episode to her father/P.W.1. P.W.1 approached P.W.4 to hold

panchayat in the village. However, the respondent did not heed to

the advice of the elders to not follow the victim girl/P.W.2 as such

the complaint Ex.P1 was lodged.

3. Learned Sessions Judge having examined witnesses Exs.P1 to

P8 and marking Exs.P1 to P7 and after consideration of the oral

and documentary evidence, found the respondent not guilty for the

charges under Section 354-A, 506 IPC and Section 8 of the POCSO

Act.

4. Learned Assistant Public Prosecutor appearing for the State

submits that no further evidence is required apart from the

evidence of P.W.2, who is the victim girl. She specifically stated that

it was the respondent herein who had caught hold of her hand

initially and expressed his love and wanted to marry her, when

refused, he threatened her. Ex.P7 bonafide certificate of the victim

girl/P.W.2 would go to show that she was less than 18 years, for

which reason, the offence under Section 8 of the POCSO Act is also

proved as against the respondent. In the said circumstances, when

the presumption under Section 29 of the POCSO Act is available,

the respondent failed to discharge his burden and he is entitled to

be convicted by reversing the order of acquittal.

5. Before going into the facts of the case, it is admitted by the

prosecution witnesses including the Investigating Officer that the

respondent was affected with Polio in his lower limbs and he cannot

run. P.W.1, the father of the victim girl, is not an eye witness,

however on the basis of the information given by P.W.2, his

daughter, approached P.W.4. Since the respondent did not heed to

any advice, the complaint was lodged on 02.03.2013 vide Ex.P1.

6. Learned Judge found that P.W.1 stated that he went to the

police station on 01.03.2016 whereas the complaint was endorsed

by P.W.8 Investigating Officer for having received it on 02.03.2016.

For the said reason of corrections and additions made in the

complaint Ex.P1, it cannot be believed. Further, learned Sessions

Judge found that the alleged eye witness P.W.3 was relative of

P.W.1. P.W.1 did not state before the Investigating Officer that after

he came to know about the incident from his daughter/P.W.2, he

went and met P.W.4. It is the main contradiction for the reason of

the prosecution relying upon the evidence of P.W.4 to state that the

alleged incident was informed to him as a village elder and

subsequently when the respondent did not heed to any advice,

complaint was lodged. The introduction of P.W.4 is for the reason

to explain the delay in lodging complaint. However, prosecution for

the reason of fabricating the evidence and introducing P.W.4 to

explain the delay, cannot be considered.

7. The prosecution also examined the Magistrate, who recorded

Section 164 Cr.P.C statement of the victim girl/P.W.2. However,

the victim did not make any mention about the time of the alleged

incident, which was also found to be one of the circumstances to

disbelieve the evidence of the prosecution by the learned Sessions

Judge.

8. Learned Sessions Judge has given cogent reasons for not

believing the version of the prosecution regarding the alleged acts of

the respondent in catching hold of the hand of P.W.2 and thereafter

running away. Specifically it was admitted by the prosecution

witnesses that the respondent was affected with polio in both the

lower limbs. When such is the case, the question of running away

on seeing other witnesses does not arise. In fact, when both the

lower limbs of the respondent being affected with polio, the

respondent would need help of crutches to walk and even if no such

help is used, admittedly Respondent could not run.

9. The Hon'ble Supreme Court in the case of Radhakrishna

Nagesh v. State of Andhra Pradesh1 and also in the case of Guru

Dutt Pathak v. State of Uttar Pradesh2 held that under the Indian

criminal jurisprudence, the accused has two fundamental

protections available to him in a criminal trial or investigation.

Firstly, he is presumed to be innocent till proved guilty and

secondly that he is entitled to a fair trial and investigation. Both

these facets attain even greater significance where the accused has

a judgment of acquittal in his favour. A judgment of acquittal

enhances the presumption of innocence of the accused and in some

cases, it may even indicate a false implication. But then, this has to

be established on record of the Court.

10. In Guru Dutt Pathak's case (supra), the Hon'ble Supreme Court held as follows:

"15. In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under : (SCC p. 432, para 42) '42. ... (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.

(2013) 11 supreme court Cases 688

(2021) 6 Supreme Court Cases 116

(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 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."

11. The finding of the learned Sessions Judge, on the basis of

omissions and contradictions amongst prosecution witnesses,

which go to the root of the case suggest that the case projected by

the prosecution is not correct. It is apparent that the actual

happening is suppressed by the prosecution and has come up with

a tainted version, for which reason, the finding of the acquittal by

the learned Sessions Judge cannot be interfered with.

12. Accordingly, the Criminal Appeal is dismissed. As a sequel

thereto, miscellaneous applications, if any, shall stand closed.

________________ K.SURENDER, J Date: 05.07.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.499 of 2020

Date:05.07.2022

kvs