State Of Telangana vs Iliyas Ahmed
2022 Latest Caselaw 3093 Tel

         HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.382 of 2021
JUDGMENT:

1. The State, aggrieved by the acquittal recorded by the

Special Sessions Judge for Fast Track Court to Atrocities

Against Women-II-cum-XI Additional Metropolitan Sessions

Judge, Hyderabad (for short 'the learned Sessions Judge') in

S.C.No.128 of 2015 by order dated 07.06.2021 finding the

respondents/Accused not guilty for the offences under

Sections 376 r/w 511, 454, 506 r/w 34 of IPC and Section 67

of Information Technology Act, the present appeal is filed.

2. The case of the prosecution is that on 13.01.2013, a

compliant was lodged alleging that the previous night when

P.W.1's husband went to attend his duty, the respondents (A-2

identified for the first time during trial) who are A1 and A2

entered into the house around 1.00 a.m i.e., on early morning

of 13.01.2013. 1st respondent/A-1 by name Illayas, who was

staying in front of their house and another threatened PW.1 to

lay down, failing which her husband and son would be killed.

Though P.W.1 pleaded that she underwent operation, the 2 KS,J

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respondents forced her to remove her clothes and took her

photographs and while leaving, they threatened not to inform

the matter anyone.

3. The said complaint was received and registered under

Sections 354, 452, 506 r/w 34 of IPC. The Police recorded

statement of P.W.1 under 161 CRPC, in which, P.W.1 stated

that both the respondents/accused attempted to rape her by

touching her private parts and also took her nude

photographs. Accordingly, section of law was altered to

Section 376 r/w 511, 454, 506 r/w 34 of IPC and also under

Section 67 of Information Technology Act. During

investigation process, P.W.1/victim was sent for physical

examination to the Medical Doctor/P.W.5 and also collected

her vaginal swabs. P.W.5-Doctor did not find any external

injuries on the private parts of the victim and so also on any

other part of the body of victim-P.W.1. Having visited the

scene of offence, the police conducted scene of panchanama

and seized the wearing apparel of P.W.1. On the very same

day, the police apprehended the respondents/accused and 3 KS,J

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seized their mobile phones and after completion of

investigation, charge sheet was filed.

4. The prosecution in all produced 13 witnesses and

marked Exs.P1 to P17. Further material objects 1 to 8 were

marked, which included the mobile phones of the

respondents/accused, which are MOs.1 and 2.

5. The learned Sessions Judge after examination of all the

witnesses examined the respondents/accused under Section

313 of Cr.P.C. Thereafter, having heard the arguments,

learned Sessions Judge found the respondents not guilty for

the alleged offenses on the grounds; i) during the course of

trial, when P.W.1 stated that when she woke up to answer

nature call around 1.00 a.m, the respondents/A1 and A2

forcibly entered their house and removed her clothes and also

their clothes and also attempted to commit sexual assault on

her. The said version was stated for the first time before the

Court and it varies from the version stated in Ex.P1 compliant

and also her Section 161 Cr.P.C statement; ii) The mobile

phones seized from Respondents did not contain any such 4 KS,J

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photographs or videos as alleged by P.W.1; iii) When compliant

was lodged, she did not know who A2 was and the FIR does

not mention the name of A2; iv) There was no test

identification proceedings and no reasons are given as to how

A2 was identified and arrayed as Accused; v) The person who

had written the complaint in telugu, turned hostile to the

prosecution case. The complaint was lodged in Telugu

language, whereas P.W.1 admitted that she does not know

Telugu and Kannada languages; vi) the witnesses to seizure

effected in the house of P.W.1 was declared hostile and

likewise, the witnesses to seizure from the accused also turned

hostile. vii) P.W.11 investigating officer admitted that A2's

name is not mentioned in Ex.P11 complaint and also admitted

that whatever is stated regarding P.W.1 getting up at 1.00 a.m

and A1 and A2 removing her clothes and removed their clothes

and trying to sexually assault are all omissions from her

earlier complaint.

6. Learned Assistant Public Prosecutor submits that though

there is hostility regarding seizures effected from P.W.1 and 5 KS,J

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also the accused, the evidence of P.W.1 can solely be relied

upon to convict the accused and for the said reason, this

Court has to reverse the finding of the learned Sessions Judge

as the learned Sessions acquitted the respondents though

there was convincing evidence before the Court to convict

them.

7. The entire case of the prosecution, as stated by P.W.1 in

the Court is complete omission in the compliant which was

made at the earliest point of time. The scribe of the compliant-

P.W.1 has turned hostile to the prosecution case and cross-

examined by the Public Prosecutor. How the identity of A-2

was established is not before the Court. In the said

circumstances of the case, the trial Court had no other option

but to acquit the respondents.

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

Nagesh v. State of Andhra Pradesh1 held that under the Indian

criminal jurisprudence, the accused has two fundamental

(2013) 11 supreme court Cases 688 6 KS,J

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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. The Hon'ble Supreme Court has cautioned about

interfering with the orders of acquittal in criminal cases. The

trial Court, would have the benefit of recording the evidence

and also looking into the aspects of demeanor of the witnesses

and has the benefit of ascertaining the facts while adjudicating

the case. The entire version of P.W.1 in her chief examination

before the Court being an omission as admitted by the

Investigating Officer-P.W.11 would go to show that P.W.1 has

given different versions both at the time of lodging complaint, 7 KS,J

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during Section 161 Cr.P.C statement and the statement before

the Court.

10. In the said circumstances, the version of victim P.W.1

gives rise to any amount of suspicion as to whether which

version is correct. There are no grounds made out by the

State to reverse the well-reasoned order of the acquittal.

Accordingly, the Criminal Appeal is dismissed. As a

sequel thereto, miscellaneous applications, if any, shall stand

closed.

                                                ________________

                                               K.SURENDER, J
Date: 28.6.2022
kvs
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                                           Crla_382_2021



      HONOURABLE SRI JUSTICE K.SURENDER




          Criminal Appeal No.382 of 2021




                 Date:28.06.2022




kvs
 9            KS,J

    Crla_382_2021