CRIMINAL APPEAL 129of 2001 on 17 June 1999

1. BoyaNarayana,S/o.Narsanna,30years,R/o.KotekalVillage,30years,R/o.KotekalVillage,Yemmiganur Mandal, Kurnool District. (A-2)

2. BoyaRoguduS/o.Narsanna,27years.R/o.KotekalVillageYemmiganur Mandal, Kurnool District. (A-3)Yemmiganur Mandal, Kurnool District. (A-3)3. BoyaVenkatesh,S/o.Narsanna25years,R/o.KotekalVillage25years,R/o.KotekalVillageYemmiganur Mandal, Kurnool District. (A-4)

4. Boya ChelikoduS/o.Kosigi Eranna27 years,R/o.Kotekal Village27 years,R/o.Kotekal VillageYemmiganur Mandal, Kurnool District. (A-5)

...Accused/Respondents

Counsel for the Appellant: Assistant Public Prosecutor Counsel for the Respondents: Sri Butta Vijaya Bhasker The Court made the following:

APHC010496342008

IN THE HIGH COURT OF ANDHRA?.PRADESH AT AMARAVATI[3327](Special Original Jurisdiction)

WEDNESDAY, THE TWELFTH DAY OF MARCHTWO THOUSAND AND TWENTY FIVEPRESENTTHE HONOURABLE SRI JUSTICE K SREENIVASA REDDYCRIMINAL APPEAL NO: 8/2008

Between:The State Of A.p.

...APELLANT

AND

Boya Narayana 3 Others and Others...RESPODENT(S)Counsel for the Apellant:1. PUBLIC PROSECUTOR (AP)Counsel for the Respodent(S):1. BUTTA VIJAYA BHASKERCounsel for the Apellant:1. PUBLIC PROSECUTOR (AP)Counsel for the Respodent(S):1. BUTTA VIJAYA BHASKER

The Court made the following Judgment:

RespondentshereinareA.2toA.5inSessions CaseNo. 129of 2001onthefileof the Assistant Sessions Judge,Adoni.The learned Assistant Sessions Judge tried -[A.1][ and][ the]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 therespondents/A.2 to A.5 for the offence under Section 376 readwith 149 IPC.Vide the impugned judgment dated 17.10.2005,the learned Assistant Sessions Judge found A.1guiltyof theoffence punishable under Section 376 IPC, accordingly[convicted]and sentenced him, while acquitting the respondents/A.2[to][ A.5][ of]

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

2.

Case of the prosecution is that on 07.06.1999, P.W.2 and her mother P.W.3, went to BanavasiFarm to collect the Neemseeds. At about 12.00noon, A1 to A5 formed themselves intoanunlawful assembly with common object of kidnappingPW2 and tocommit rape on her. PW1 informed them thatmarriage of PW2was 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 ofKumma Pagulanna. A1 took PW2 inside the houseand A2 to A5were watching outside the house,A1 had raped PW2 on thenightof07.06.1999andeverynightfrom08.06.1999to16.06.1999. On 15.06.1999, PW1gave a report before the policeand the same was registered as a case in Crime No.36 of 1999 ofYemmiganur rural police station. On 17.06.1999 at about 5 a.m..PW1 went to the house of Kummar PogulannainSiraladoddiVillage and found the victim there. A1 to A5ran away on seeinghim. He brought PW2 at 7.00 a.m. to Yemmiganur Rural PoliceStation on 17.06.1999.Thereafter, police, after completion ofinvestigation,filed charge sheet against A.1toA.5forthe offences punishable under Sections 147, 366, 376, 343[read][ with]149 and 109 IPC.

3. OnappearanceofaccusedNos.1to5,copiesofdocumentswerefurnishedto themascontemplatedunderSection 207 Cr.P.C.Thereafter, charges under Sections147,366(a) and 343 IPC were framed against accused Nos.1to5,under Section 376 IPC against A1 and under Section[376][ read]with149 IPC against A2to A5 were framed,read overthecontents and explained to them in Telugu, for which they pleadednot guilty and claimed to be tried.documentswerefurnishedto themascontemplatedunderSection 207 Cr.P.C.Thereafter, charges under Sections147,366(a) and 343 IPC were framed against accused Nos.1to5,under Section 376 IPC against A1 and under Section[376][ read]with149 IPC against A2to A5 were framed,read overthecontents and explained to them in Telugu, for which they pleadednot guilty and claimed to be tried.

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

5. After closure of the prosecution evidence, accused[Nos.1][ to]5 were examined under Section 313Cr.P.C., explainingtheincriminatingmaterial foundagainst themin the evidenceofprosecution witnesses, for which they denied and reportednodefence.5 were examined under Section 313Cr.P.C., explainingtheincriminatingmaterial foundagainst themin the evidenceofprosecution witnesses, for which they denied and reportednodefence.

6. The learned Assistant Sessions Judge, upon considerationof the evidence on record, found A.1 guilty of the charge underof the evidence on record, found A.1 guilty of the charge under Section 376, accordingly convicted and sentenced him,whileacquitting the respondents/A.2 to A.5 of the chargeslevelledagainst them. Challenging the same, the present Criminal Appealis filed.

7. Heard. Perused the entire evidence on record.

8. The learned Assistant Public Prosecutor contended that theevidenceofprosecutionwitnessesiscogentagainsttherespondents/A.2 to A.5 with regard to the kidnapping[the][ victim]girl and also sharing common object with A.1 for committing[the]offence of rape, but the learned Assistant Sessions Judge did notconsidertheevidenceinproperperspectiveanderredinacquitting the respondents/A.2 to A.5 of the chargeslevelledagainst them, and hence, he prays to allow the Criminal Appealandconvict respondents/A.2to A.5of the chargeslevelledagainst him.evidenceofprosecutionwitnessesiscogentagainsttherespondents/A.2 to A.5 with regard to the kidnapping[the][ victim]girl and also sharing common object with A.1 for committing[the]offence of rape, but the learned Assistant Sessions Judge did notconsidertheevidenceinproperperspectiveanderredinacquitting the respondents/A.2 to A.5 of the chargeslevelledagainst them, and hence, he prays to allow the Criminal Appealandconvict respondents/A.2to A.5of the chargeslevelledagainst him.

9. 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 thecharges levelled against him, and considering these aspects, thetrial Courtrightly extended the benefit of doubt to themandA.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 thecharges levelled against him, and considering these aspects, thetrial Courtrightly extended the benefit of doubt to themand accordingly acquitted them of the charges levelled against themandtherearenogroundstointerferewiththeimpugnedjudgment.

10. Now, the point that arises for consideration is whether[the]prosecution is able to establish the guilt of the respondents/A.[2][ to]A.5 for the offences with which they were charged,[and][ whether]theorderofacquittalrecordedbythetrialCourtrequiresinterference by this Court ?prosecution is able to establish the guilt of the respondents/A.[2][ to]A.5 for the offences with which they were charged,[and][ whether]theorderofacquittalrecordedbythetrialCourtrequiresinterference by this Court ?

Conclusion

11. This is an appeal against an Order of acquittal. There[is][ a]presumption available under law that an accused is presumed tobeinnocent unlesscontraryisproved.That presumptionofinnocence is further strengthened by an order of acquittal passedby the trial Court.In dealing with the appeals against acquittal,though this Court has full power to re-appreciate the evidence, atthe same time,it would be slow in interfering with[the][ order][ of]acquittal becausepresumptionavailable under lawisfurtherstrengthenedbytheorderofacquittal.Unlesstherearesubstantial or compelling reasons,this Court will not ordinarilydisturb the findings of the trial Court.If the trial Court has givenany perverse finding, then it can be a ground to interfere[with][ the]presumption available under law that an accused is presumed tobeinnocent unlesscontraryisproved.That presumptionofinnocence is further strengthened by an order of acquittal passedby the trial Court.In dealing with the appeals against acquittal,though this Court has full power to re-appreciate the evidence, atthe same time,it would be slow in interfering with[the][ order][ of]acquittal becausepresumptionavailable under lawisfurtherstrengthenedbytheorderofacquittal.Unlesstherearesubstantial or compelling reasons,this Court will not ordinarilydisturb the findings of the trial Court.If the trial Court has givenany perverse finding, then it can be a ground to interfere[with][ the]

order of acquittal. Similarly, if admissible evidence hasnot beentakenintoconsiderationor inadmissible evidence has beenlooked into for the purpose of arriving at a particular finding, thenalso it can be said to be a compelling reason to interfere with thesame.

12. On this aspect,itis pertinent to refer to a decisioninHarbans Singh & another v. the State of Punjab\ whereinitwasheld as follows; (para 8)“The question as regards the correct principles to[be]applied by a Court hearing an appeal against acquittalof a person has engaged the attention of this Courtfrom the very beginning. In many cases, especially[the]earlierones,theCourthasinlaying downsuchprinciples emphasized the necessity of interferencewithanorderofacquittalbeingbasedonlyon‘compellingandsubstantialreasons’andhasexpressedtheviewthatunlesssuchreasonsarepresent in an Appeal, Court should not interfere with anorder of acquittal (Vide Suraj Pal Singh v. The State1952 SCR 193; (AIR 1952 SC 52); Ajmer Singh v!State of Punjab, 1953 SCR 418; (AIR 1953 SC 459).Theuseofthewords,‘compellingreasons’embarrassed some of the High Courts in exercisingtheir jurisdictioninappealsagainstacquittalsanddifficulties occasionally arose as to what this Court had,meant by the words ‘compelling reasons’. In later yearsthe Court has often avoided emphasis on ‘compellingreasons’butnonethelessadheredtotheviewexpressed earlier that before interfering in appeal[with]an order of acquittal a Court must examine not onlyquestions of law and fact in all their aspects but[must]also closely and carefully examine the reasons whichHarbans Singh & another v. the State of Punjab\ whereinitwasheld as follows; (para 8)“The question as regards the correct principles to[be]applied by a Court hearing an appeal against acquittalof a person has engaged the attention of this Courtfrom the very beginning. In many cases, especially[the]earlierones,theCourthasinlaying downsuchprinciples emphasized the necessity of interferencewithanorderofacquittalbeingbasedonlyon‘compellingandsubstantialreasons’andhasexpressedtheviewthatunlesssuchreasonsarepresent in an Appeal, Court should not interfere with anorder of acquittal (Vide Suraj Pal Singh v. The State1952 SCR 193; (AIR 1952 SC 52); Ajmer Singh v!State of Punjab, 1953 SCR 418; (AIR 1953 SC 459).Theuseofthewords,‘compellingreasons’embarrassed some of the High Courts in exercisingtheir jurisdictioninappealsagainstacquittalsanddifficulties occasionally arose as to what this Court had,meant by the words ‘compelling reasons’. In later yearsthe Court has often avoided emphasis on ‘compellingreasons’butnonethelessadheredtotheviewexpressed earlier that before interfering in appeal[with]an order of acquittal a Court must examine not onlyquestions of law and fact in all their aspects but[must]also closely and carefully examine the reasons which impelled the lower courts to acquit the accused andshould interfere only if satisfied, after such examinationthat the conclusion reached by the lower court that[the]guiltofthepersonhasnotbeenprovedisunreasonable.”

13. Itis the case of prosecution that on 07.06.1999 at about12.00 noon, when the victim girl P.W.2 and her mother P.W.3were at Banavasi farm, A.1to A.5 formed themselvesintoanunlawful assembly, kidnapped the victim girl P.W.2,[took her][ to]Siraladoddi village and A.1 committed rape on her from[7.6.1999]to 16.6.1999.PW1is the father of the victim.It is his evidencethat on 7.6.1999, he was informed by his wife P.W.3 that[ all] theaccused forcibly took away the victim towards Siraladoddi villageside.He gave Ex.P1-report topolice about the incidenton15.6.1999.He went to Siraladoddi village along with his wife,where, he found his daughter in Kottem in the company[of][ the]accused. On seeing him, all the accused ran away.PW.3[is][ the]mother of the victim.She stated that she saw A1 to A5 forciblytaking her daughter in a lorry.Then, she and her husband wentto Siraladoddi village in search of her daughter, and[found][ her][ in]the house of Kummar Pogulanna.

14. The evidence of PW2/victimis that when she andhermother were pickingup neem seeds, A1 caught hold of her righthand and said that hewould marry her, for whichshe refusedand cried, and her mothercame and she said them not to spoilher life, for which, A1 threatenedher mother.It is her evidencethat A1 forcibly had intercourse wiwith her for about 10 days, andafter ten days, her motherand father came there and on seeingthem the accusedran away.Clothes of the victim M.Os. 1 to 3were seized under Ex.P2-panchanama in the presence of P.W.4.Clothesof A.1M.Os.4and5wereseizedunderEx.P3-panchanama.P W.9isthe AssistantCivilSurgeon,whoexamined the victim girl and gave Ex.P7-final opinion. He foundhuman spermatozoa,and opined that rapewas committed on thevictim girl.is that when she andhermother were pickingup neem seeds, A1 caught hold of her righthand and said that hewould marry her, for whichshe refusedand cried, and her mothercame and she said them not to spoilher life, for which, A1 threatenedher mother.It is her evidencethat A1 forcibly had intercourse wiwith her for about 10 days, andafter ten days, her motherand father came there and on seeingthem the accusedran away.Clothes of the victim M.Os. 1 to 3were seized under Ex.P2-panchanama in the presence of P.W.4.Clothesof A.1M.Os.4and5wereseizedunderEx.P3-panchanama.P W.9isthe AssistantCivilSurgeon,whoexamined the victim girl and gave Ex.P7-final opinion. He foundhuman spermatozoa,and opined that rapewas committed on thevictim girl.

15. On a perusal of theevidence of both PWs.1 and 3 go toshow that PW.3 witnessed that allthe accused forcibly tookawaythe victim ina lorry towards Siraladoddi village side. ThereafterPWs.land3went to Siraladoddi villagein search of herdaughter.It seems that PWs.1 and 3 did not approach the policestation, even after P\/V3Witnessed that all the accused forciblytook away her daughter in a lorry.evidence of both PWs.1 and 3 go toshow that PW.3 witnessed that allthe accused forcibly tookawaythe victim ina lorry towards Siraladoddi village side. ThereafterPWs.land3went to Siraladoddi villagein search of herdaughter.It seems that PWs.1 and 3 did not approach the policestation, even after P\/V3Witnessed that all the accused forciblytook away her daughter in a lorry.

16. The trial Court found A.1 to A.5 not guilty of the chargeunder Section 366 (a) and 343 IPC.Though the incident[took]place on 7.6.1999, no police report was lodgedtill15.6.1999.The victim did not raise any hue and cry while she was beingkidnapped by the accused.Though PW3, being mother[of][ the]victim,witnessedthatherdaughter waskidnappedbytheaccused, she did not choose to approach the police[station][ on][ the]very same day.The abnormal delay in lodging the police reportis not satisfactorily explained.In such circumstances, there is anyamount of ambiguity whether PW3 witnessed the accused whilekidnappingthevictimornot.Inviewoftheaforesaidcircumstances,anadverseinferencecanbe drawnthattheabnormal delay in lodging the report was taken to implicate[the]accused after due deliberations.Further more,it is the specificcaseof theprosecutionthaton7.6.1999,alltheaccusedkidnapped the victim girl.The trial Court found all[the][ accused]not guilty of the offence under Section 366(a) IPC,andthefinding of not guilty, recorded by the trial Court in respect of theprime accused A.1 remained unchallenged.In view of the same,benefit of doubt can be extended to the respondents/A.2[to][ A.5]insofar as the offence under Section 366 (a) and 343[IPC.]The ^SRK, JCriminal Appeal No.8 of 2008

trial Court, upon appreciation of the evidenceon record in rightperspective, rightly found the respondents /A.2 to A.5not guilty ofthe saidcharge, and therearenocompellingor substantialreasons to interfere with the said finding.

17. As regards the charge under Section 376read with149IPC,P.W.2, victim .girispecificaiiy deposedthatA.1alonecommitted rape onher.Thereis no evidence against therespondents/A.2 to A.5 so as to make them liable guilty[for][ the]aforesaid charge.In the absence of any legal evidence, the trialCourt rightly found the respondents/A.2 to A.5 not guilty of theaforesaid charge and thereareno compellingor substantialreasons to interfere with the said finding.IPC,P.W.2, victim .girispecificaiiy deposedthatA.1alonecommitted rape onher.Thereis no evidence against therespondents/A.2 to A.5 so as to make them liable guilty[for][ the]aforesaid charge.In the absence of any legal evidence, the trialCourt rightly found the respondents/A.2 to A.5 not guilty of theaforesaid charge and thereareno compellingor substantialreasons to interfere with the said finding.

18. In view of the aforesaid reasons, the prosecution failed toprovetheguiltof therespondents/A.2toA.5beyondallreasonable doubt for the charges levelled against them,Thelearned Assistant Sessions Judge, on proper appreciation of theentire oral and documentary evidence on record, rightly[found][ the]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 theprovetheguiltof therespondents/A.2toA.5beyondallreasonable doubt for the charges levelled against them,Thelearned Assistant Sessions Judge, on proper appreciation of theentire oral and documentary evidence on record, rightly[found][ the]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 aforesaid reasons, the Criminal Appeai is devoid of merit and thesame is liable to be dismissed.

19. Accordingly, the Criminal Appeal is dismissed.

Consequently, miscellaneous petitionsif any, pending in thisCriminal Appeal shall stand closed.

//TRUE COPY//

Sd/- V. DIWAKARDEPUTY REGISTRAR

^“^SECTION OFFICER

To,

1. The Assistant Sessions Judge, Adoni, Kurnool District (Withrecordsif any)if any)

2. The Judicial Magistrate of First ClassYemmiganur, Kurnool District.Yemmiganur, Kurnool District.3. The Station House Officer,Yemmiganur Rural Police Station KurnoolYemmiganur Rural Police Station KurnoolDistrict.

4. One CC to Sri Butta Vijaya BhaskerAdvocate [OPUC]Advocate [OPUC]5. Two CC's to the PublicProsecutor, High Court of Andhra Pradesh atProsecutor, High Court of Andhra Pradesh atAmaravati [OUT]

6. The Section Officer, CriminalSection, High Court of Andhra Pradesh atSection, High Court of Andhra Pradesh atAmaravati

7. Two CD Copies

BSV

RAM

HIGH COURT

DATED:12/03/2025

JUDGMENT

CRLA.No.8 of 2008

DISMISSING THE CRIMINAL APPEAL