The State Of Telangana vs Shaik Sayeed Bin Abdul Rahaman ...
2023 Latest Caselaw 3425 Tel

                HON'BLE SRI JUSTICE K. SURENDER

                    CRIMINAL APPEAL No.238 OF 2021

JUDGMENT:

1. The State aggrieved by the judgment of acquittal for the

offences under Section 3 r/w 4 of the Protection of Children from

Sexual Offences Act, 2012 (for short 'the Act of 2012') and Sections

377 and 506 of IPC passed by the Special Sessions Judge for Trial

of cases under Protection of Children from Sexual Offences Act,

2012, Hyderabad in Sessions Case PCS No.54 of 2019, dated

29.07.2020, filed this appeal.

2. The case of the prosecution is that the father of the victim,

P.W.1 filed a complaint on 03.07.2018 stating that the

victim/P.W.2 who is his son, was getting pain in his anus. When

questioned, P.W.2 informed that on 18.04.2018, the accused took

him into his room and has shown some porn videos, caught his

son's penis and inserted his penis into anus without his consent.

Again on 17.06.2018, the accused forcibly performed sex, for which

reason, P.W.2 shouted and escaped from the spot. For the third

time on 02.07.2018, the accused asked the victim to get biryani

and when he went to the premises, the accused forcibly removed

the clothes of P.W.2 and also removed his clothes. The accused was

in a drunken condition and threatened P.W.2 not to reveal the

incident to anyone.

3. On the basis of the said complaint, the police registered the

case for the offences under Sections 377, 342, 506 of IPC Sections

5 r/w 6 and Sections 12 and 15 of the Act of 2012. After

investigation, charge sheet was filed.

4. During the course of trial, the learned Sessions Judge

examined P.Ws.1 to 11 and marked Exs.P1 to P9 and found that

the prosecution failed to prove the case against the accused. The

reasoning given by the learned Sessions Judge is as follows:

i) On 18.04.2018, if the victim/P.W.2 had cried for help, it is

not known as to why the neighbours did not gather. Further, none

of the neighbours were examined by the police;

ii) If P.W.2 had received injuries on the dates specified i.e.,

18.04.2018 and 17.06.2018 or 02.07.2018, why the medical

evidence did not support the version;

iii) The Doctor has given an opinion stating that his

examination does not disclose that there was any sexual assault on

the victim/P.W.2.

iv) Nothing incriminating was seized from the scene of offence

and the police failed to explain the same. The admission that there

were beer bottles etc., at the scene, the police failing to seize any

evidence from the scene of offence would go against the

prosecution.

v) According to P.W.2, he was present with his friends when

the accused called him and committed the offence, but the police

did not examine the friends of the victim/P.W.2, who were present

when the accused had called him.

5. Learned Additional Public Prosecutor argued that the

evidence of P.W.2 would be sufficient to draw an inference that the

accused had performed forcible sex on the victim boy/P.W.2 on

three occasions. It is not necessary that the evidence of victim

should be corroborated. The solitary testimony of victim would be

sufficient to convict the accused with the aid of Section 29 of the

Act of 2012. Presumption has to be drawn that the accused had

committed the acts.

6. It is no doubt true that under Section 29 of the Act of 2012,

the Act contemplates drawing of presumption that a person had

committed or attempted to commit such an offence unless contrary

is proved. However, the prosecution has the initial burden of laying

foundation for the Court to draw presumption under Section 29 of

the Act. Unless such foundation is laid to convince the Court that

an offence has been committed, only on the basis of the testimony

of a victim giving rise to several doubts, there being no

corroboration from any quarter, presumption cannot be raised to

convict the accused.

7. No reasons are given as to why the police failed to examine

the friends of the victim/P.W.2 who were allegedly present when

the accused has called P.W.2 and committed sexual acts. Further,

no reasons are given as to why none of the neighbors were

examined when it is the specific case that the victim had shouted

for help and then the accused had let him off.

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

another 1, 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

(2022) 8 Supreme Court Cases 536

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

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

rendering acquittal.

9. In Ghurey Lal v. State of Uttar Pradesh 2 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.

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

(2008) 10 Supreme Court Cases 450

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."

10. I do not find any infirmity with the finding of the learned

Sessions Judge in acquitting the accused when there were no

corroborating circumstances including the medical evidence to

support the version of victim/P.W.2. The trial Court has the

opportunity of examining the witnesses while deposing in the

Court. When there are no compelling reasons, this Court cannot

interfere in the orders of acquittals. I do not find any reason to

reverse the well reasoned judgment of acquittal by the Sessions

Court.

11. Accordingly, the State fails and the Criminal Appeal is

dismissed. Consequently, miscellaneous applications, if any, shall

stand dismissed.

________________ K.SURENDER, J Date: 31.10.2023 kvs