THE STATE OF A.P v. DONAMPUDI SAMUEL

Counsel for the Respondent(S):

1. -

2. J U M V PRASAD The Court made the following JUDGMENT:

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’).

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.

3. The facts in a nutshell, which give rise to the present appeal, are as follows: 3 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 Ongole- Chirala 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. 4

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.

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.

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.

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.

8. Sir K. Sandeep, learned Assistant Public Prosecutor appearing for the State, contends 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. 5

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

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.

11. The point for determination is: Was the Sessions Court justified in acquitting the accused? P O I N T:

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 Karnataka 1 , at paragraph 26 of the judgment, has held as follows: "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."

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: "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