Sri. P.V. Venu Madhav vs Mr. M. Aravind
2023 Latest Caselaw 4155 Tel

         THE HONOURABLE SRI JUSTICE K.SURENDER


                CRIMINAL APPEAL No.79 OF 2021

JUDGMENT:

1. This Criminal Appeal is filed by the appellant/complainant

aggrieved by the judgment of acquittal in S.C.No.147 of 2017 dated

18.09.2020 passed by the Metropolitan Sessions Judge,

Cyberabad, Ranga Reddy District wherein the 1st

respondent/accused was acquitted for the offences under Section 7

r/w 8 of Protection of Children from Sexual Offences Act, 2012 (for

short 'the Act of 2012').

2. The appellant is the defacto complainant and father of the

victim girl. According to the complainant, on 04.05.2014, when the

victim girl/PW.2 was alone in the house, the accused with sexual

intent, sat by her side, rubbed her thighs with hands, touched her

chest and when she tried to raise her voice, the accused kissed her.

The accused also asked her to touch his private part.

3. The accused is close relative and after the incident when the

victim girl informed the same to her father/complainant, complaint

was lodged on 26.07.2014.

4. Learned Sessions Judge examined P.Ws.1 to 5. P.W.2 is the

victim girl. The accused examined D.W.1 one G.Bala Krishna, who

is a relative of the accused.

5. A specific plea was taken in the trial Court, that on the

alleged date of incident i.e., 04.05.2014, the accused went to attend

funeral of the elder brother of D.W.1. D.W.1 stated before the Court

that the accused was present on the date of death, which is

04.05.2014 and the funeral had taken place on the next day. The

accused and his mother and father had left the place at 1.30 p.m

on the next day. Death certificate was produced during trial.

Learned Sessions Judge found favour with the defence of the

accused.

6. Mainly on two grounds, acquittal was recorded. Firstly, that

there was a delay of nearly 2 months 20 days in lodging the

complaint and secondly, the accused had proved his alibi that he

was not present on 2.5.2014 on which date, the alleged acts were

committed.

7. Learned counsel appearing for the appellant would submit

that the learned Sessions Judge had committed an error in

recording acquittal when the victim girl/PW.2 had specifically

narrated the acts of the accused. During chief examination, she

stated that this accused has inserted his hands and pressed her

breasts and also put hands on her thighs. Forcibly kissed her and

also accused opened his hands and put her hand on his organ.

When there is a clear narration of the incident and no motive is

attributed for false implication, learned Sessions Judge ought to

have relied on the evidence of P.W.2 and convicted the accused. It

is a fit case for reversal of acquittal.

8. On the other hand, learned counsel appearing for the accused

would submit that the accused has taken specific defence and

proved it in the Court by producing D.W.1 and marking Ex.D1. The

delay of 2 months and 20 days was not explained by the

prosecution. Only stating that after some days when she was

watching TV, she came to know about good touch and bad touch

and by recollecting the incident, informed to the parents, would not

be sufficient. If such acts are committed on the girl who was aged

around 14 years, it cannot be said that she would not have

informed what was allegedly done. He relied on the judgment of

Hon'ble Supreme Court in the case of Ganesh Bhavan Patel v.

State of Maharashtra 1, wherein it was held as follows:

"13. The dictum of the Privy Council in Sheo Swarup v. King- Emperor [AIR 1934 PC 227 : 61 IA 398] , and a bead-roll of decisions of this Court have firmly established the position that although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should -- to use the words of Lord Russel of Killowen -- "always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.

47. All the infirmities and flaws pointed out by the trial court assumed importance, when considered in the light of the all- pervading circumstance that there was inordinate delay in recording Ravji's statement (on the basis of which the "FIR" was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the back-ground, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion."

1978 LawSuit (SC) 301

9. In Thulia Kali v. State of Tamil Nadu 2, the Hon'ble Supreme

Court held as follows:

"12. ... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

10. The inordinate delay of 2 ½ months has to be looked into

with suspicion when the parties are related and it was suggested

that there were differences in between them. In the complaint filed

by the father after 2 months and 20 days, no specific details are

given regarding the acts committed. The specific details narrated

during trial were not mentioned in the said complaint. It was stated

in the complaint that the accused made an attempt to kiss her and

1972 LawSuit (SC) 129

forcibly touched her body and subsequently threatened her not to

talk to anyone. Though it is mentioned in the complaint that an

attempt was made, specific details were given subsequently. The

specific case of the accused is that he went to attend the funeral on

the said date and the death certificate and also the evidence of

D.W.1 was adduced during trial.

11. Though there was delay of 2 months and 20 days, the specific

date was not given in the complaint. However, witnesses stated that

the incident happened on 04.05.2014. It is not made clear as to

how the exact date could be recollected after 2 months and 20

days.

12. In Ravi Sharma v. State (Government of NCT of Delhi) and

another 3, the Hon'ble Supreme Court held that while dealing with

an appeal against acquittal, the appellate court has to consider

whether the trial Court's view can be termed as a possible one,

particularly when evidence on record has been analysed. The

reason is that an order of acquittal adds up to the presumption of

innocence in favour of the accused. Thus, the appellate court has

(2022) 8 Supreme Court Cases 536

to be relatively slow in reversing the order of the trial court

rendering acquittal.

13. In Ghurey Lal v. State of Uttar Pradesh 4 the Hon'ble

Supreme Court after referring to several Judgments regarding the

settled principles of law and the powers of appellate Court in

reversing the order of acquittal, held at para 70, as follows:

"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong:

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

(2008) 10 Supreme Court Cases 450

2. The appellate court must always give proper weight and consideration o the findings of the trial court.

3. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."

14. Unless there are compelling reasons to interfere with the

orders of acquittal, the Court in appeal cannot reverse the finding

of acquittal. I do not find any infirmity with the finding of the

learned Sessions Judge as they are reasonable and based on

record.

15. Accordingly, the Criminal Appeal is dismissed. Consequently,

miscellaneous applications, if any, shall stand closed.

_________________ K.SURENDER, J Date: 20.11.2023 kvs