The State of A.P. Vs Boya Narayana & 3 Others

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVAtl?g?l%<^ WEDNESDAY, THE TWELFTH DAY OF MARCH

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TWO THOUSAND AND TWENTY FIVE Q■J i ■vb

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY

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CRIMINAL APPEAL NO: 8 OF 2nn«

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Appeal filed under Section 378(3) and (1) of Cr.P.C against the Judgment, dated 17-10-2005 passed in S.C.No.129 of 2001 on the file of the Assistant Sessions Judge, Adoni, Kurnool District and prays that this Court may be pleased to set-aside the Order of acquittal and convict the accused (Respondents) for the offence with which they were charged. Between:

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The State of A.P. rep. by the Public Prosecutor, High Court of A.P. at Amaravati.

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■..Appellant/Complainant

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AND

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Boya Narayana, S/o.Narsanna, 30 years, R/o.Kotekal Village,

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Yemmiganur Mandal, Kurnool District. (A-2)

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Boya Rogudu S/o.Narsanna, 27 years. R/o.Kotekal Village Yemmiganur Mandal, Kurnool District. (A-3)

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Boya Venkatesh, S/o.Narsanna 25 years, R/o.Kotekal Village

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Yemmiganur Mandal, Kurnool District. (A-4)

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Boya Chelikodu S/o.Kosigi Eranna 27 years, R/o.Kotekal Village

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Yemmiganur Mandal, Kurnool District. (A-5)

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...Accused/Respondents

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Counsel for the Appellant : Assistant Public Prosecutor

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Counsel for the Respondents: Sri Butta Vijaya Bhasker

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The Court made the following:

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APHC010496342008

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?.

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3327]

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WEDNESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 8/2008 Between:

The State Of A.p.

...APELLANT

AND

Boya Narayana 3 Others and Others ...RESPODENT(S) Counsel for the Apellant:

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PUBLIC PROSECUTOR (AP) Counsel for the Respodent(S):

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BUTTA VIJAYA BHASKER The Court made the following Judgment:

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Respondents herein are A.2 to A.5 in Sessions Case No. 129 of 2001 on the file of the Assistant Sessions Judge, Adoni. The learned Assistant Sessions Judge tried -^A.1andthe respondents/A.2 to A.5 for the offences under Sections 147, 366 (b), 343 IPC; A.1 for the offence under Section 376 IPC and the respondents/A.2 to A.5 for the offence under Section 376 read with 149 IPC. Vide the impugned judgment dated 17.10.2005, the learned Assistant Sessions Judge found A.1 guilty of the offence punishable under Section 376 IPC, accordingly^convicted and sentenced him, while acquitting the respondents/A.2^toA.5of

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all the charges levelled against them. Aggrieved by the same, State preferred the present Criminal Appeal.

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Case of the prosecution is that on 07.06.1999, P.W.2 and her mother P.W.3, went to Banavasi Farm to collect the Neem seeds. At about 12.00 noon, A1 to A5 formed themselves into an unlawful assembly with common object of kidnapping PW2 and to commit rape on her. PW1 informed them that marriage of PW2 was fixed to be performed on 18.06.1999. A1 to A5 forcibly^took PW2 in a lorry to Siraladoddi village and took her to the house of Kumma Pagulanna. A1 took PW2 inside the house and A2 to A5 were watching outside the house, A1 had raped PW2 on the night of 07.06.1999 and every night from 08.06.1999 to 16.06.1999. On 15.06.1999, PW1 gave a report before the police and the same was registered as a case in Crime No.36 of 1999 of Yemmiganur rural police station. On 17.06.1999 at about 5 a.m.. PW1 went to the house of Kummar Pogulanna in Siraladoddi Village and found the victim there. A1 to A5 ran away on seeing him. He brought PW2 at 7.00 a.m. to Yemmiganur Rural Police Station on 17.06.1999. Thereafter, police, after completion of investigation, filed charge sheet against A.1 to A.5 for the

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offences punishable under Sections 147, 366, 376, 343^readwith 149 and 109 IPC.

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On appearance of accused Nos.1 to 5, copies of documents were furnished to them as contemplated under Section 207 Cr.P.C. Thereafter, charges under Sections 147, 366(a) and 343 IPC were framed against accused Nos.1 to 5, under Section 376 IPC against A1 and under Section^376read with 149 IPC against A2 to A5 were framed, read over the contents and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

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On behalf of the prosecution, PWs.1 to 17 were examined and Exs.P1 to P23, MOs.1 to 5 and Ex.DI were marked.

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After closure of the prosecution evidence, accused^Nos.1to 5 were examined under Section 313 Cr.P.C., explaining the incriminating material found against them in the evidence of prosecution witnesses, for which they denied and reported no defence.

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The learned Assistant Sessions Judge, upon consideration of the evidence on record, found A.1 guilty of the charge under

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Section 376, accordingly convicted and sentenced him, while acquitting the respondents/A.2 to A.5 of the charges levelled against them. Challenging the same, the present Criminal Appeal is filed.

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Heard. Perused the entire evidence on record.

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The learned Assistant Public Prosecutor contended that the evidence of prosecution witnesses is cogent against the respondents/A.2 to A.5 with regard to the kidnapping^thevictim girl and also sharing common object with A.1 for committing^the offence of rape, but the learned Assistant Sessions Judge did not consider the evidence in proper perspective and erred in acquitting the respondents/A.2 to A.5 of the charges levelled against them, and hence, he prays to allow the Criminal Appeal and convict respondents/A.2 to A.5 of the charges levelled against him.

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On the other hand, the learned counsel for respondents/ A.2 to A.5 contended that there is no cogent evidence^adduced by the prosecution to connect the respondents/A.2 to A.5 to the charges levelled against him, and considering these aspects, the trial Court rightly extended the benefit of doubt to them and

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accordingly acquitted them of the charges levelled against them and there are no grounds to interfere with the impugned judgment.

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Now, the point that arises for consideration is whether^the prosecution is able to establish the guilt of the respondents/A.^2to A.5 for the offences with which they were charged,^andwhether the order of acquittal recorded by the trial Court requires interference by this Court ?

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This is an appeal against an Order of acquittal. There^isa presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with^theorderof acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere^withthe

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order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same.

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On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab\ wherein it was held as follows; (para 8)

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“The question as regards the correct principles to^be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially^the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on ‘compelling and substantial reasons’ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State 1952 SCR 193; (AIR 1952 SC 52); Ajmer Singh v! State of Punjab, 1953 SCR 418; (AIR 1953 SC 459). The use of the words, ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that before interfering in appeal^with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but^must also closely and carefully examine the reasons which

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^ AIR 1962 SC 439

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impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that^the guilt of the person has not been proved is unreasonable.”

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It is the case of prosecution that on 07.06.1999 at about 12.00 noon, when the victim girl P.W.2 and her mother P.W.3 were at Banavasi farm, A.1 to A.5 formed themselves into an unlawful assembly, kidnapped the victim girl P.W.2,^tookherto Siraladoddi village and A.1 committed rape on her from^7.6.1999 to 16.6.1999. PW1 is the father of the victim. It is his evidence that on 7.6.1999, he was informed by his wife P.W.3 that^all the accused forcibly took away the victim towards Siraladoddi village side. He gave Ex.P1-report to police about the incident on 15.6.1999. He went to Siraladoddi village along with his wife, where, he found his daughter in Kottem in the company^ofthe accused. On seeing him, all the accused ran away. PW.3^isthe mother of the victim. She stated that she saw A1 to A5 forcibly taking her daughter in a lorry. Then, she and her husband went to Siraladoddi village in search of her daughter, and^foundherin the house of Kummar Pogulanna.

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The evidence of PW2/victim is that when she and her mother were picking up neem seeds, A1 caught hold of her right hand and said that he would marry her, for which she refused and cried, and her mother came and she said them not to spoil her life, for which, A1 threatened her mother. It is her evidence that A1 forcibly had intercourse wi with her for about 10 days, and after ten days, her mother and father came there and on seeing them the accused ran away. Clothes of the victim M.Os. 1 to 3 were seized under Ex.P2-panchanama in the presence of P.W.4. Clothes of A.1 M.Os.4 and 5 were seized under Ex.P3panchanama. P W.9 is the Assistant Civil Surgeon, who examined the victim girl and gave Ex.P7-final opinion. He found human spermatozoa, and opined that rape was committed on the victim girl.

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On a perusal of the evidence of both PWs.1 and 3 go to show that PW.3 witnessed that all the accused forcibly took away the victim in a lorry towards Siraladoddi village side. Thereafter PWs.l and 3 went to Siraladoddi village in search of her daughter. It seems that PWs. 1 and 3 did not approach the police station, even after P/V3 Witnessed that all the accused forcibly took away her daughter in a lorry.

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The trial Court found A.1 to A.5 not guilty of the charge under Section 366 (a) and 343 IPC. Though the incident^took place on 7.6.1999, no police report was lodged till 15.6.1999. The victim did not raise any hue and cry while she was being kidnapped by the accused. Though PW3, being mother^ofthe victim, witnessed that her daughter was kidnapped by the accused, she did not choose to approach the police^stationonthe very same day. The abnormal delay in lodging the police report is not satisfactorily explained. In such circumstances, there is any amount of ambiguity whether PW3 witnessed the accused while kidnapping the victim or not. In view of the aforesaid circumstances, an adverse inference can be drawn that the abnormal delay in lodging the report was taken to implicate^the accused after due deliberations. Further more, it is the specific case of the prosecution that on 7.6.1999, all the accused kidnapped the victim girl. The trial Court found all^theaccused not guilty of the offence under Section 366 (a) IPC, and the finding of not guilty, recorded by the trial Court in respect of the prime accused A.1 remained unchallenged. In view of the same, benefit of doubt can be extended to the respondents/A.2^toA.5 insofar as the offence under Section 366 (a) and 343^IPC. The

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trial Court, upon appreciation of the evidence on record in right perspective, rightly found the respondents /A.2 to A.5 not guilty of the said charge, and there are no compelling or substantial reasons to interfere with the said finding.

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As regards the charge under Section 376 read with 149 IPC, P.W.2, victim .giri specificaiiy deposed that A.1 alone committed rape on her. There is no evidence against the respondents/A.2 to A.5 so as to make them liable guilty^forthe aforesaid charge. In the absence of any legal evidence, the trial Court rightly found the respondents/A.2 to A.5 not guilty of the aforesaid charge and there are no compelling or substantial reasons to interfere with the said finding.

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In view of the aforesaid reasons, the prosecution failed to prove the guilt of the respondents/A.2 to A.5 beyond all reasonable doubt for the charges levelled against them, The learned Assistant Sessions Judge, on proper appreciation of the entire oral and documentary evidence on record, rightly^foundthe respondents/A.2 to A.5 not guilty of the alleged offences and, accordingly, acquitted them of the charges leveled against them, which calls for no interference by this Court. In view of the

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aforesaid reasons, the Criminal Appeai is devoid of merit and the

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same is liable to be dismissed.

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