The State of A.P. Rep by the Public Prosecutor, Vs M. Sekhar

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Criminal Appeal against the judgment of acquittal in SC No. 112 of 2005 on the file of the learned Assistant Sessions Judge, Gudur, Nellore District, dated 29-6-2007 and prays that this Hon'ble Court may be pleased to set aside the judgment of acquittal and convict the accused (Respondents) for the offence with which they were charged.

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IA NO: 1 OF 2008(CRLAMP 1899 OF 2008

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 383 days in presenting the appeal against the order of acquittal of the accused/respondents SC No. 112/05 the file of the Assistant Sessions Judge, Gudur, dated 29-6-2007.

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Counsel for the Appellant:

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1.PUBLIC PROSECUTOR

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Counsel for the Respondent(S):

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1.T G PRASAD REDDY

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The Court made the following:

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JUDGMENT

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1. This appeal is preferred by the Appellant / State against the judgment of acquittal rendered by the Sessions Court in Sessions Case No.112of 2005 on the file of Assistant Sessions Judge, Gudur, Nellore District (for short, ‘the Trial Court’) vide judgment dated 29.06.2007 whereby the learned Assistant Sessions Judge acquitted the Respondents/Accused for the offence punishable under sections 417 and 376 of Indian Penal Code, 1860 (for short, ‘IPC’).

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2. Heard the learned Assistant Public Prosecutor representing the Appellant / State and the learned counsel for the Respondents / Accused.

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3. Perused the impugned judgment of acquittal rendered by the Sessions Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 4 and documents marked as Exs.P.1 to P.5. No oral or documentary evidence was adduced on behalf of the Respondents/Accused.

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4. The brief facts of the prosecution case, are as follows:

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P.W.1, the victim, studied up to Class V before discontinuing her education. Around two years prior to 27.07.2004, A.1 developed a close acquaintance with her under the false promise of marriage, and had

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sexual intercourse with her on several occasions. She repeatedly requested the accused to marry her, fearing she might become pregnant. Instead of marrying her, the accused administered pills to prevent pregnancy. Over time, P.W.1 realized that he had no intention of marrying her. Unable to confide in her parents, she informed Madasu Guravaiah. Subsequently, Madasu Guravaiah, P.W.2 (Vetti Guravaiah), and P.W.3, Subrahmanyam, approached the accused and urged him to marry her, but he refused. As a result, P.W.1 lodged a complaint at the Pellakuru Police Station, which was registered and investigated as Crime No.38 of 2004. The medical officer who examined P.W.1 opined, based on clinical findings, that she was accustomed to sexual intercourse. The accused was subsequently arrested and remanded to judicial custody.

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5. After laying the Charge Sheet by the Investigating Officer, the committal court passed an order under Section 209(a) of Cr.P.C., following the provisions of Sections 207 and 208 Cr.P.C. The case is committed to the Court of Sessions. Subsequently, the case in Sessions Case No.112 of 2005 has been numbered. After hearing the Public Prosecutor and the defence counsel, the Trial Court framed the charges against the accused, punishable under Sections 417 and 376 of the IPC against the A.1 and Charge under Section 417 of IPC has been framed against the A.2 to A.4. The accused did not plead guilty but claimed to be tried.

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6. The learned Sessions Judge examined the accused as required under Section 313 of Cr.P.C., to enable them to consider the evidence that had been led on the part of the prosecution and also appeared against them. The accused denied the entire prosecution evidence and reported that they had no defence witnesses to be examined.

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7. After considering the necessary material available on record, the learned Sessions Judge found the accused not guilty of the offences punishable under Sections 417 and 376 of the IPC and acquitted them.

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8. I have examined the oral and documentary evidence produced on the record by the prosecution before the learned Sessions Judge.

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9. The learned Assistant Public Prosecutor, appearing for the State, contends that the Trial Court failed to properly appreciate the evidence on record. It is argued that the prosecution clearly established the essential ingredients of the offences punishable under Sections 417 and 376 IPC. However, the learned Assistant Sessions Judge erred in acquitting the accused by not evaluating the evidence in its correct perspective. The reasons given for acquittal are, therefore, legally unsustainable.

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10. The point for determination is:

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Was the Sessions Court justified in acquitting the accused?

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POINT:

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11. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. Shankar V. State of Karnataka¹ , at paragraph 26 of the judgment, has held as follows:

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"26. It is settled legal proposition that in exceptional circumstances the appellate court, under compelling circumstances, should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence."

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1(2011) 6 SCC 279

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12. In State of Goa V. Sanjay Thakran & Anr.² , the Hon’ble Supreme Court, while considering the power of the appellate court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point, has concluded as under:

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“16.....while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.”

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13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this court, is not warranted. However, the appeal is heard by an appellate court, which is the final court of fact. In that case, it is fully competent to re-appreciate, reconsider, and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction, or condition on the exercise of such power, and the appellate court is free to arrive at its conclusion, keeping in mind that acquittal provides for a presumption in favour of the accused. The presumption of innocence is available to every person, and in criminal jurisprudence, every person is presumed innocent unless proven guilty by a competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its conclusion. The appellate court can also review the conclusion arrived at by the trial Court concerning both facts and law. While dealing with the appeal against acquittal preferred

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2(2007) 3 SCC 755

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by the State, the appellate court must marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

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14. With the above principles in mind, this court analyses the reasoning and ultimate conclusion of the Sessions Court in interfering with the order of acquittal.

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15. A careful perusal of the Trial Court's judgment reveals that the prosecution's case is not substantiated by the testimonies of P.Ws.1 to 3. P.W.1 is the victim, while P.W.2 (V. Guravaiah) and P.W.3 (V. Subrahmanyam) are her brothers. P.W.1 testified that A.1 is the son of A.2, and that A.2 to A.4 are her aunts. She further stated that, due to ongoing disputes between her family and the accused, certain elders procured her signature (ExP.1) on a document without disclosing its contents to her. Therefore, her testimony does not support the prosecution's case, beyond merely acknowledging her signature on Ex.P1.

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16. P.Ws.2 and 3, who are the brothers of P.W.1, also failed to support the prosecution's case. Consequently, they were declared hostile and were crossexamined by the learned Public Prosecutor. However, both witnesses denied having made the statements recorded as Exs.P3 and P4 before the police. Likewise, P.W.1 denied having given the statement marked as Ex.P1 to the police.

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17. The prosecution, in its attempt to substantiate the case, examined P.W.4, Mr. P. Krishnaiah, who at the relevant time was serving as the SubInspector of Police and had undertaken the investigation of the matter. His testimony was intended to corroborate the procedural steps taken during the course of the investigation and to lend credibility to the prosecution’s narrative. However, it is pertinent to note that the primary witnesses, P.Ws.1 to 3, who

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were expected to provide direct evidence regarding the incident, unequivocally failed to support the prosecution’s version during their deposition. Their testimony did not advance the prosecution's case and, in fact, substantially weakened it.

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18. In this context, it is both surprising and legally questionable that the State chose to appeal the acquittal rendered by the Trial Court. Given the lack of substantive and credible evidence, especially the unsupportive testimony of key witnesses, the appeal appears unjustified. The grounds raised by the State are largely procedural and fail to address or undermine the Trial Court’s core findings and reasoning. There is no compelling legal or factual error in the impugned judgment warranting interference by the Appellate Court. In light of these facts, the appeal lacks a sound evidentiary basis. Accordingly, it is the considered view that the State should not have filed this appeal, given the evident deficiencies in the prosecution’s case.

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19. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka³ , the Hon'ble Supreme Court has observed the scope of section 378 of the Criminal Procedure Code as under:

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“Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C., speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. Consequently, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of the first instance has its advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it. Still, it is duty bound to satisfy itself whether the decision of the trial Court is both a possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty and the advantage of having seen the witnesses.

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20. Considering the aforesaid set of circumstances and in view of the conjoint reading of the conclusion arrived at in co-relation with the evidence on

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3 2021 (15) SCALE Pg. 184

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record, this court is of the considered opinion that the prosecution makes out no case to establish a definite guilt of the respondents / accused.

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21. The Trial Court rightly reached its conclusion, providing sound and justifiable reasons. As there is no incriminating material against the accused persons, the Trial Court rightly acquitted them. Therefore, the appellant’s request for interference lacks merit. Upon careful reconsideration, there is no flaw in the findings of fact by the Trial Court. Therefore, the acquittal of the respondents/accused cannot be interfered with. Accordingly, the appeal against the acquittal is dismissed, and the order of acquittal is confirmed, and there is no reason to interfere with the judgment of the Trial Court. Accordingly, the point is answered.

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22. In view of the above and for the reasons stated above, the present Criminal Appeal No.1155 of 2009 fails and the same deserves to be dismissed and is dismissed , accordingly. The judgment and order of acquittal passed by the learned Assistant Sessions Judge, Gudur, Nellore District, in Sessions Case No.112 of 2005, dated 29.06.2007, stands confirmed.

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Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed.

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_____________________________ JUSTICE T. MALLIKARJUNA RAO

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Date: 21.08.2025 MS

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THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

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CRIMINAL APPEAL NO: 1155 of 2009