The State Of Telangana vs Kura Vijay , Vijaychander
2023 Latest Caselaw 2432 Tel

                 HON'BLE SRI JUSTICE K.SURENDER

                  CRIMINAL APPEAL No.59 OF 2022
JUDGMENT:

1. The present appeal is preferred by the State questioning the

acquittal recorded by the IV Additional Sessions Judge (FTC)-cum-

Special Judge for POCSO Act Cases, Karimnagar, in Spl.Sessions

Case No.93 of 2018, dated 13.09.2021, acquitting the

respondent/accused for the offences under Section 376(2)(n) and

420 of the Indian Penal Code and Section 6 of the Protection of

Children from Sexual Offences Act, 2012.

2. Heard both sides.

3. The case of the prosecution is that the accused is the relative

of victim's neighbor. The victim completed her tenth class and

staying at Jillella village. On 15.04.2016, accused visited Jillella

village in view of Gangamma Jathara and got acquainted with her

and stated that he was in love with her. In the absence of parents

of the victim, the accused used to commit sexual assault on the

victim. Even two months prior to the complaint, they participated in

sexual intercourse at accused's room in Vemulawada. On

16.05.2017 when the victim's father was hospitalized, the victim

went to the room of the accused at Vemulawada and returned at

8.30 p.m. When questioned, she narrated that she met the accused

and also that there was physical relation with the accused, for

which reason Ex.P1-complaint was lodged.

4. Learned Sessions Judge having examined PWs.1 to PW18 and

marking Exs.P1 to P23 found that no offence was made against the

accused for the offences alleged.

5. Learned Public Prosecutor would submit that the Sessions

Court has committed an error in acquitting the accused though the

evidence of PW1/victim is clear about having sexual intercourse

with the accused. There is nothing to disbelieve the evidence of

PW1-victim. As such, the acquittal has to be reversed and the

accused has to be convicted for the offence under Section 376(2)(n)

and 420 of the Indian Penal Code. Further, the victim girl was less

than 18 years, for which reason, the accused is liable to be

convicted under the provisions of Section 6 of the POCSO Act.

6. Learned Sessions Judge found that the victim girl developed

close intimacy with the accused and the accused sexually abused

her in the absence of her parents according to the prosecution.

However, during the cross-examination, victim deposed that on the

Jathara day, all the villagers, relatives, neighboring villagers

attended the Jathara (festival); that she was with her parents at the

festival and that after the 'Bonalu', she returned home and the

accused left to Vemulawada, next day. Thereafter, the accused never

visited the village. On the basis of the said admission, the learned

Sessions Judge found that even according to the victim the accused

left the village and never returned after the festival. As such, the

evidence that he had sexual intercourse repeatedly in the absence of

parents of the victim cannot be believed. The allegation that two

months prior to lodging the complaint, the victim girl participated in

sexual intercourse with the accused in his room at Vemulawada,

was not stated by her in the statement recorded under Section 164

of the Cr.P.C. i.e. Ex.P2. The victim stated that she went to

Vemulawada when her father fell sick and came back from

Vemulawada in the evening at 8.30 P.M. and on questioning she

informed about her relation with the accused. The said version

could not be believed in the circumstances of the case as the

complaint was filed since the accused refused to marry her.

7. The other allegation that the accused and victim stayed

together in a hotel room was not proved by the prosecution. The

hotel owner-PW.12 did not identify the accused and though the

register was allegedly seized, it was not proved by the prosecution

that the accused had stayed in the said hotel. The very identification

of Shiva Lodge was suspicious according to the learned Sessions

Judge. Neither PW1/victim stated regarding the stay in the hotel

nor the accused had shown the lodge during the course of

investigation. When it is nobody's case, the learned Sessions Judge

expressed suspicion as to how the Investigating Officer had come up

with a version regarding stay in the hotel on two occasions by the

accused. Having stated so, it was not proved by the prosecution that

the accused and PW1 stayed in the hotel.

8. The learned Sessions Judge also relied on the Judgments of

State of Maharashtra v. Chandraprakash Kewalchand jain 1,

State of U.P. v. Pappu 2, State of Punjab v. Gurmit Singh 3,

State of Orissa v. Thakara Besra 4 and State of Himachal

Pradesh v. Raghubir Singh 5.

9. Having discussed the said Judgments, the learned Sessions

Judge found that when the evidence of the victim is filled with

inconsistencies and contradictions, such evidence cannot be made

basis to convict the accused.

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

another 6, the Hon'ble Supreme Court held that while dealing with

(1990) 1 SCC 550

(2005) 3 SCC 594

(1996) 2 SCC 384

(2002) 9 SCC 86

(1993) 2 SCC 622

(2022) 8 Supreme Court Cases 536

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 to

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

acquittal.

11. In Ghurey Lal v. State of Uttar Pradesh 7 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;

(2008) 10 Supreme Court Cases 450

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.

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."

12. The findings of the learned Sessions Judge are based on

record and the contradictions pointed out by the learned Sessions

Judge cannot be said to be minor in nature to disregard the same.

The contradictory nature of evidence of PW1/victim goes to the root

of the case.

13. In view of the above, I do not find any infirmity with the

Judgment of the learned Sessions Judge.

14. Accordingly, the Criminal Appeal is dismissed.

Miscellaneous applications, if any pending, shall stand closed.

_________________ K.SURENDER, J Date: 15 .09.2023 tk

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.59 OF 2022

Date: 15.09.2023.

tk