Telangana High Court

The State Of Telangana vs Gonela Prashanth on 5 July, 2022

Bench: K.Surender

              HONOURABLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.509 of 2020
JUDGMENT:

1. Questioning the acquittal of the respondent-accused for the

offences under Sections 352, 354-D(i), 324, 506 of IPC and Section

11(iv) r/w 12 of the Protection of Children from Sexual Offences Act,

2012, recorded by the learned Special Judge for the Trial of Cases

under Protection of Children from Sexual Offences Act-Cum-IV

Additional District and Sessions Judge at Warangal, the State filed

the present appeal.

2. The case of the prosecution is that P.W.1/victim girl filed

complaint, Ex.P1 stating that she was 16 years and since three

years prior to complaint, the respondent/accused was constantly

following her and insisting her to love him, failing which, she was

threatened. The conduct of the respondent was informed to her

parents (P.W.2-father and mother-not examined), however, even

after admonition by the parents, the accused started following her

again. On 23.01.2018, after college when she boarded the bus and

got down at Tatikonda and was going towards her house along with

her friends, P.W.3 and Sowjanya, the respondent caught hold of her

hand. Respondent questioned her as to why she was not talking to

him and if she does not love him, he would see that no one else

would marry her and thereafter, the respondent slapped her and

ran away. For the said reason of holding her hand and threatening

and also slapping, complaint was lodged by P.W.1 with the police.

The police, registered a case in Crime No.14 for the offences under

Section 352, 354-D, 327,506 of IPC and Section 11(ia) r/w 12 of the

POCSO Act.

3. Learned Sessions Judge having examined the witnesses

P.Ws.1 to 11 and marking Exs.P1 to P5, after considering both

oral and documentary evidence, has found that the charged

offences were not proved as against the respondent and accordingly

acquitted him.

4. Learned Assistant Public Prosecutor would submit that the

learned Sessions Judge has not considered the evidence in proper

perspective. The sole testimony of P.W.1 and corroborative

testimony of the father was sufficient to prove the guilt of the

respondent herein, as such, the conviction has to be recorded by

setting aside the acquittal against the respondent. Further, it is

apparent from the evidence that the respondent was following her

over a period of three years and on 23.01.2018 slapped her and

threatened her with dire consequences, for which reason, the

respondent has to be convicted for the offences charged.

5. Learned Special Judge, after completion of trial, has found the

respondent not guilty for the offense charged for the following

reasons i) the respondent is brother-in-law of junior paternal uncle

of P.W.1 and they do not have visiting terms between the family

members. Ii) Admittedly, there was no mobile phone for which

reason it cannot be said that the accused had talked to her on

mobile. iii) the submission of PW.1 that the respondent was

following her from 8th standard is an omission in her earlier

statement recorded under Section 161 Cr.P.C statement. iv)

Further, it is also an omission in Section 161 Cr.P.C statement that

the respondent had came from behind and caught hold of her hand

and threatened to kill her. v) P.W.2, father of P.W.1 admitted that

there were family disputes since ten years and both the families

have filed complaints against each other and there are no visiting

terms between them. vi) P.Ws.3 and 4 are projected as eyewitnesses

but they did not state anything about the accused following her at

any point of time and P.W.4 in his cross-examination admitted that

it was P.W.1 who informed about the alleged act of respondent and

he was not an eye witness. vii) the victim/P.W.1 also did not

mention specifically about the time when the act of holding of hand

and threatening took place.

6. From the evidence on record, the respondent/accused is none

other than the brother-in-law of own brother of P.W.2 and it is an

admitted fact that P.W.2 and family of his brother were having

issues and they have filed complaints against each other. The

presence of P.W.4 was not mentioned either in the complaint or the

statement made to the police. Apparently, the help of P.W.4 was

introduced to speak against the respondent. As stated during cross-

examination and also on his own admission he was not an eye

witness to the alleged acts of respondent.

7. The prosecution also failed to place on record any such

panchayaths being held noting down in writing regarding any

settlement or any understanding which was arrived at during

panchayat. Except making allegation of the respondent following

her over a period of time and panchayat being held regarding the

following of respondent, the prosecution has failed to produce any

such witness to convince the Court that earlier panchayat being

held was in fact correct.

8. 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.

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

(2013) 11 supreme court Cases 688

(2021) 6 Supreme Court Cases 116

"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.

(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."

10. In the background of disputes among the family of P.W.2 and

the family of his brother, police implicating the respondent could

not be ruled out especially in the background of the prosecution

failing to prove any prior transactions. Further, mere slapping

would not attract offence under Section 354 of IPC, unless

intention of outraging the modesty of women is established.

P.W.1/victim has not stated rearding any such acts outraging her

modesty as such there cannot be any conviction, which can be

recorded under Section 354-D of IPC. Accordingly, the finding of

the trial Court cannot be interfered with in the present appeal.

11. The Criminal Appeal is dismissed. As a sequel thereto,

miscellaneous applications, if any, shall stand closed.