The State of a.P., Vs Donampudi Samuel

Appeal under Section 372/374(2)/378(4) of Cr.P.C., praying t h at the High Court may be pleased t o present this Memorandum of Criminal Appeal against the judgment in S .C.No.262 of 2005 on the file of th e Additional Assistant Sessions Judge, Ongole, dated 12^th day of January, 200 6 and prays that this Hon'ble Court ma y be pleased to set aside the order of a c quittal and convict the accused (Respondents) for the offence with which they were charged.

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IA NO: 1 OF 2009 (CRLAMP 1434 OF 2009

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Petition under Sectio n 151 CPC praying that in the circumsta n ces stated in the affidavit filed in supp o rt of the petition, the High Court may b e pleased to condone the delay of (16) days in representing the Crl.A.S.R.No. 1 7786/2007

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presented against the judgment in S.C.No.262 of 2005 on the file of the Additional Assistant Sessions Judge, Ongole, dated 12^th day of January, 2006.

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IA NO: 2 OF 2009 (CRLAMP 1700 OF 2009

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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 (615) days in presenting this Crl.A., against the Order of acquittal of the accused/respondents in S.C.No.262 of 2005 on the file of the Additional Assistant Sessions Judge, Ongole, dated 12^th day of January, 2006.

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Counsel for the Appellant:

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1.Sri K. Sandeep, Assistant Public Prosecutor

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Counsel for the Respondent(S):

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1.-

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2.J U M V PRASAD

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The Court made the following 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.262 of 2005 on the file of Additional Assistant Sessions Judge, Ongole (for short, ‘the Sessions Court’) by its judgment dated 12.01.2006, acquitted the accused for the offences punishable under sections 353, 354 r/w 34 of Indian Penal Code, 1860 (for short, ‘IPC’).

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2. 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 10, documents marked Exs.P.1 to P.10, Exs.D.1 to D.3 and MOs.1 to 3.

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3. The facts in a nutshell, which give rise to the present appeal, are as follows:

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The first informant/victim (LW.1), Shaik Mastan Vali, resident of N.G.Padu and serving as a Home Guard in N.G.Padu Police Station, reported the incident. The second victim is the informant's mother. On 16.06.2005, at approximately 8:15 PM, the accused, in a drunken state, were causing a public nuisance at the bus stand centre in N.G.Padu by obstructing vehicular traffic on the OngoleChirala road. Upon receiving a complaint from Thokala Subba Rao (LW.7), the Station House Officer (S.H.O.,) dispatched LW.1 to disperse the accused and restore traffic. Upon arriving at the scene, LW.1 questioned the accused regarding their disruptive behaviour and instructed them to leave. The accused responded aggressively; one accused forcibly grabbed the shirt collar of LW.1 and dragged him. During the struggle, LW.1's undershirt (banian) was torn while he was performing his lawful duty. The accused assaulted and obstructed the public servant. Nearby residents gathered upon witnessing the commotion. The victim’s mother arrived at the scene and was verbally abused by the accused. A.1 physically outraged her modesty by placing a hand on her breast and tearing her jacket in a public place. Furthermore, A.1 forcibly dragged her by the hand, breaking her bangles. Following the incident, when the police arrived, the accused fled the scene. At around 8:45 PM, based on the informant’s report, the S.H.O., registered a case (Cr.No.45 of 2005) under Sections 353, 354, read with 34 of the IPC and commenced investigation. During the investigation, the S.H.O., seized the torn undershirt of the victim and examined the scene of the offence on 17.06.2005 at 6:00 AM, preparing an observation report and seizing broken bangle pieces in the presence of two independent witnesses. On the same day, A.1 and A.2 were arrested and remanded to judicial custody. After completing the investigation, a charge sheet was filed against the accused.

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4. The III Additional Munsif Magistrate, Ongole, vide orders in P.R.C.No.39 of 2005, has committed the accused to the Court of Sessions, Ongole, to take up the trial for the offences punishable under Sections 353, 354 r/w 34 of the IPC.

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5. The learned Sessions Judge of Ongole Division, has taken up the case on file under Sections 353, 354 r/w 34 of the IPC against the accused and has referred it to the Court of the Additional Assistant Sessions Judge, Ongole, for disposal according to law. Subsequently, the case in Sessions Case No.262 of 2005 has been numbered. After hearing the Public Prosecutor and the defence counsel, the Sessions Court framed a charge against the accused under Sections 353, 354 r/w 34 of the IPC, which were read over and explained to them in Telugu, as required under Section 228 of the Cr.P.C. The accused did not plead guilty and 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 led on the part of the prosecution and also against them. However, the accused denied the evidence adduced by the prosecution and reported no defence witnesses on their behalf.

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7. After considering the available material on record, the learned Sessions Judge found the accused not guilty of the offences punishable under Sections 353, 354 r/w 34 of the IPC and acquitted them.

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8. Sir K. Sandeep, learned Assistant Public Prosecutor appearing for the State, contends that the prosecution has established the necessary ingredients to constitute an offence punishable under Sections 353, 354 r/w 34 of the IPC against the accused; the learned Judge failed to properly appreciate the cogent and reliable evidence adduced by the prosecution witnesses; the other reasons assigned by the learned Judge for the acquittal are also unsustainable.

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9. On the other hand, the learned counsel appearing for the accused supported the findings and conclusions recorded by the Sessions Court.

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10. I have heard learned counsel on either side and perused the material on record, including the oral and documentary evidence produced by the prosecution before the Sessions Court.

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11. The point for determination is:

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Was the Sessions Court justified in acquitting the accused?

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P O I N T:

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12. 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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13. 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

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1 (2011) 6 SCC 279

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2 (2007) 3 SCC 755

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reasonable person and, therefore, the decision is to be characterized 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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14. With the above principles in mind, this Court analyze the reasoning and ultimate conclusion of the Sessions Court in interfering with the order of acquittal.

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15. The record reveals that PW.1, Sk. Masthan Valli was serving as a Home Guard at M.G. Padu Police Station on the date of the offence. PW.2, Sk. Meera Bi is the mother of PW.1. PWs.3 to 8 (Unnam Chimpiraiah, Sk. Moulali, Sk. Hussaih, Tokala Subba Rao, P.Seshagiri and Chunduri Venkateswarlu respectively) were examined in support of the prosecution to substantiate the allegations against the accused; however, they did not support the prosecution's case. The prosecution relied on the testimony of PW.5 to establish that he had promptly informed the police station about the incident; however, PW.5 also failed to support the prosecution's version. PW.5 testified that he did not witness the accused obstructing vehicular traffic at the centre and that he had not made any telephone call to the police station regarding the incident. Furthermore, the prosecution examined PW.3 to establish that the names of the accused were disclosed to PW.1. However, PW.3 did not support the prosecution's case. PW.1 testified that he came to know the names of the accused 3 and 4 through PW.3. Considering this evidence, the Sessions Court observed that even the identity of the accused 3 and 4 remained in dispute.

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16. The Sessions Court noted that, based on telephonic information received regarding four individuals obstructing traffic at N.G.Padu Centre,

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situated approximately 100 to 150 meters from the police station, PW.10, Shaik Allabakshu, A.S.I., directed PW.1, a Home Guard, to clear the location. The Sessions Court further observed that PW.10 failed to make any corresponding entry in the General Diary. The evidence of PW.1 indicates that he personally visited the police station and orally informed PW.10 about the alleged offence committed by the accused; however, this information too was not recorded in the General Diary.

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17. The prosecution examined PW.8 (Chunduri Venkateswarlu) and PW.9 (Ponakala Srinivasa Rao) to establish that they had subscribed their signatures as attesting witnesses to Ex.P10, the observation report. However, PWs.8 and 9 deposed that PW.10 had obtained their signatures on blank white papers and that they were not informed about the contents or purpose of the documents they signed. Consequently, the Sessions Court held that no evidentiary value could be attached to the alleged seizure of MOs.1 to 3, as PWs.8 and 9 did not support the prosecution's case. The prosecution further examined PWs.3 to 7 as alleged eyewitnesses to the occurrence, to establish that they had rescued PWs.1 and 2 from the accused. Nevertheless, these witnesses too turned hostile.

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18. Upon considering the material on record, the Sessions Court observed that PW.10 had failed to conduct an independent investigation to ascertain the actual facts of the case. His evidence appeared to be the result of a routine and perfunctory investigation, primarily based on the statements of PWs.3 to 9, all of whom had turned hostile.

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19. The remaining evidence for consideration is that of PWs.1 and 2. The testimony of PW.2 indicates that she was not acquainted with A.3 and A.4 prior to the incident. However, the prosecution failed to conduct a test identification parade for A.3 and A.4. Consequently, the Sessions Court observed that the identities of A.3 and A.4 also remained in dispute.

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20. According to the testimony of PW.1, upon reaching the centre, he observed that the accused, who were in an intoxicated condition, were obstructing vehicular traffic. When he questioned them about their conduct, the accused abused him. Among them, A.1 allegedly caught hold of his collar and tore his banian; in the meantime, PWs.3 to 7 arrived at the scene, followed shortly by PW.2. When PW.2 attempted to rescue PW.1, A.1 is said to have caught hold of her jacket and torn it; A.1 also allegedly grabbed PW.2’s hand firmly, causing her bangles to break; the accused further threatened PWs.1 and 2, stating that they would have a case registered against them under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. PW.1 then lodged a report, Ex.P1, with the police immediately thereafter. PW.10, after recording his statement, seized M.O.1, the torn banian of PW.1, and M.O.2, the torn jacket of PW.2, after recording her statement.

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21. PW.2 also supported the prosecution’s case by deposing in terms consistent with the testimony of PW.1. Even according to the prosecution’s own version, the accused had allegedly threatened PW.1 and others that they would have a case registered against them under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned defence counsel contended that the present case was foisted against the accused persons out of apprehension that they might otherwise institute proceedings under the said Act against PW.1 and others.

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22. PW.1 deposed that on the following morning, A.2, accompanied by four others, came to the police station and threatened to register a case against him and PW.2 under the SC/ST (Prevention of Atrocities) Act. The Sessions Court observed that if the accused had indeed visited the police station the next morning and had committed the offence the previous day, PW.10 ought to have arrested them and produced them before the Court along with a remand report. The Sessions Court found no plausible reason for the accused to have been allowed to go free when the investigation was already underway and the major portion of it had been completed.

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23. As per the evidence of PW.2, when she attempted to pacify the situation, A.1 allegedly caught hold of her jacket and dragged her, resulting in the jacket being torn. When she tried to grasp his hand to prevent the incident, A.1 is said to have firmly held her right hand, causing the bangles on her right hand to break. Based on these allegations, a case was registered against the accused persons under Section 354 of the IPC.

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24. A bare perusal of Section 354, IPC reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to outrage her modesty ( Raju Pandurang Mahale v. State of Maharashtra³ ).

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25. Criminal force is defined in Section 350 IPC, however, what exactly does modesty means, which is an essential aspect for this Section to apply, has not been defined so as to constitute an offence u/s 354 IPC.

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26. In the judgment of the Hon'ble Supreme Court reported in the case of Rupan Deol Bajaj vs. Kanwar Pal Singh Gill⁴ , in paragraphs 13, 14 and 15, it is discussed about the meaning of the word 'modesty' and what act of a person would amount to outraging such "modesty' of woman. Their Lordships have held that from the dictionary meaning of 'modesty' and the interpretation given by the Hon'ble Supreme Court in State of Punjab vs. Major Singh case⁵ , it appears that the test for ascertaining whether modesty has been outraged is the action of the offender as could be perceived as one which is capable of shocking the sense of decency of a woman.

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27. It is evident that the incident took place over a minor dispute. The incident took place on the spur of the moment, and there is nothing to suggest that anybody sustained any injury. For offence under Section 354 IPC, the intention to outrage the modesty of a woman is the fundamental ingredient. Touch caused otherwise during the course of a fight between two warring

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3 (2004) 4 SCC 371

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(1995) 6 SCC 194

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5 AIR 1967 SC 63

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sections cannot be called an act to outrage the modesty. Neither is there any allegation made by the PW.2 that the accused had an evil eye or had touched her inappropriately. Thus, even if the prosecution case is taken as it stands, the existence of mens rea , a prerequisite to attract section 354, is amiss in the given facts.

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28. This Court is of the view that, in determining whether any assault or use of criminal force under Section 354 of the IPC was committed against the informant with the intent to outrage her modesty, it must be noted that during an altercation, if a woman is accidentally touched or pushed inappropriately, such an act cannot be construed as having the requisite intention to outrage her modesty. Consequently, such conduct would not attract the provisions of Section 354 of the IPC.

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29. Applying the aforementioned test as laid down by the Hon'ble Supreme Court, it cannot be concluded that the alleged acts committed against PW.2 amount to an outrage of her modesty. The Sessions Court disbelieved the evidence of PWs.1 and 2, as it was not corroborated by any independent witnesses and because no General Diary entries were made by the Station House Officer.

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30. It is a settled proposition of law that in a criminal trial, suspicion, however grave, cannot take the place of proof. The prosecution must prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the accused's complicity.

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31. In light of these circumstances, and upon a comprehensive evaluation of the entire evidence, the Sessions Court rightly concluded that the evidence of PWs.1 and 2 is not trustworthy and the prosecution had failed to prove the guilt of the accused for the offence under sections 353, 354 r/w 34 of the IPC beyond a reasonable doubt. Consequently, the Sessions Court acquitted the accused of the said charges.

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32. In a criminal case, the degree of proof is the standard that is required in civil proceedings, and if there is the slightest doubt in the mind of the Court regarding the involvement of the accused person, then the Court should not convict the accused person with such a doubt. Instead, it would be proper for the Court to pass a judgment of acquittal in favour of the accused. When Sessions Court after adequate appreciation of the evidence of witnesses passed a judgment of the acquittal, it would not be appropriate for the appellate Court to disturb the said judgment, unless the said judgment of acquittal is unreasonable, even if two views are possible, then also, the appellate Court should not disturb the said judgment, instead, the Court should upheld the view favoured the accused.

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33. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka⁶ , the Hon'ble Supreme Court has observed the scope of section 378 of the 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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34. So far as the main issue is concerned, that scope of acquittal appeal is well defined by now by series of decisions and the same is not to be repeated time and again, however, one of the recent decision in case of Harbeer Singh V. Sheeshpal⁷ , the Hon’ble Supreme Court laid down that mere fact that another view could also have been possible that cannot be a ground to

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6 2021 (15) SCALE Pg. 184

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(2017) CriLJ 169

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reverse the acquittal. The powers of High Court are wide enough to turtle the acquittal order, however, some parameters are well defined by series of decisions in which this Court is of the considered opinion that State has not made out any case which would permit this Court to exercise such wide powers. Neither any material irregularity is pointed out nor any perversity is reflecting on the contrary it is reflecting that there is an application of mind on the part of learned Judge as the entire material on record has been dealt with specifically and the principle of appreciation of evidence appears to have been rightly undertaken by the Court below and therefore when such eventuality is reflecting sitting in a jurisdiction dealing with an order of acquittal Court is of the opinion not to interfere with such exercise. The relevant observations of the aforesaid decision in paras: 10 and 11 (Cri.L.J.) are reproduced herein after:

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"10. The above principle has been reiterated by this Court in a number of judicial decisions and the position of law that emerges from a comprehensive survey of these cases is that in an appeal under Article 136 of the Constitution of India, this Court will not interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or mainfestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record is not a ground for reversing an order of acquittal.

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11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond a reasonable doubt lies with the prosecution, and it never shifts. Another golden thread that runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view that is favourable to the accused should be adopted.

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35. 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 record, this Court is of the considered opinion that the prosecution makes out no case to establish the guilt of the respondent / accused.

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36. The Sessions Court rightly reached its conclusion, providing sound and justifiable reasons. Therefore, the appellant’s request for interference lacks

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merit. A re-appreciation of the evidence reveals no misdirection or misinterpretation by the Sessions Court. Upon careful reconsideration, there is no flaw in the findings of fact by the Sessions Court. Therefore, the acquittal of the respondents 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 Sessions Court. Accordingly, the point is answered.

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37. In view of the above and for the reasons stated above, the present Criminal Appeal No.1568 of 2009 fails and the same deserves to be dismissed and is dismissed , accordingly. The judgment and order of acquittal passed by the learned Additional Assistant Sessions Judge, Ongole, in Sessions Case No.262 of 2005, dated 12.01.2006, 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: 06.11.2025 SAK

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THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

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CRIMINAL APPEAL NO: 1568/2009