Point of Law : Non-examination of children was fatal to the prosecution case also does not appeal to reason. Children cannot be called to the court and cited as witnesses unless it is very much essential and there were no other witnesses to prove said facts. When there were adult witnesses available, victim herself as well as the neighbours and the other persons who can speak about the incident, the non-examination of children to prove incident is considered as not fatal.

ORDER :

This Criminal Appeal is preferred by the State represented by the Public Prosecutor to set aside the judgment dated 26.07.2012 passed in SC No.405 of 2011 by the Principal Assistant Sessions Judge, Warangal, against the respondent – accused acquitting him for the offences under Sections 448, 354 and 506 IPC.

2. The case of the prosecution in brief was that on 07.08.2009 at 2.30 AM, the complainant, a victim woman, aged about 35 years came to Subedari Police Station and lodged a report against the respondent – accused stating that on 06.08.2009 at 11.30 PM the accused criminally trespassed into her house at Banjara Colony, Ramnagar, Hanmakonda, outraged her modesty and threatened her with dire consequences. The complainant stated in the complaint that her husband died five years ago and she had two children and she was eking her livelihood by doing coolie work. On 06.08.2009 as usual she returned home from coolie work at 6.00 PM and after having dinner she along with her children slept at 9.00 PM. The accused who was residing in the same locality, who had an evil eye on her, trespassed into her house when she was in deep sleep at about 11.00 PM, slept on her cot by her side and laid his leg with an intention to fulfil his lust and tried to outrage her modesty. She raised hue and cry and tried to catch the accused. In the tussle her blouse was torn. On her hue and cry, the colony people woke up and tried to catch the accused. The accused threatened her with dire consequences that if she reported the matter to anybody or police, he would see her end and fled away. The colony people tried to catch hold him, but he managed to escape. Basing on the said report, Crime No.368 of 2009 was registered under Sections 448, 354 and 506 IPC. The accused was arrested on 10.08.2009 and after completing the investigation police filed charge sheet against him for the above offences. The case was taken on file by the IV Additional Judicial Magistrate of First Class, Warangal and committed to the Sessions Court, Warangal. The same was made over to the Principal Assistant Sessions Judge, Warangal for disposal in accordance with law. The Principal Assistant Sessions Judge framed charges against the accused for the offences under Sections 448, 354 and 506 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution got examined PWs.1 to 8 and got marked Exs.P1 to P5. No defence evidence was adduced by the respondent – accused. After considering the oral and documentary evidence on record, the Principal Assistant Sessions Judge, acquitted the accused on all the counts.

3. Aggrieved by the said acquittal, the State preferred this appeal contending that the judgment of the learned Principal Assistant Sessions Judge, Warangal was contrary to law, weight of evidence and probabilities of the case. The learned Judge ought to have seen that the ingredients to constitute the offences punishable under Section 448, 354 and 506 IPC were made out by the prosecution against the accused. The learned Judge ought to have seen that the evidence of PWs.1 to 4, 7 and 8 were corroborating with each other, the learned Judge had not considered the evidence of the prosecution witnesses in correct perspective. The reasons assigned in acquitting the accused were unsustainable and prayed to set aside the judgment of the trial Court.

4. Heard the learned Assistant Public Prosecutor. Notice was served on the respondent – accused. But he failed to appear before the Court and contest the matter.

5. Now, the point for consideration is whether the judgment of the trial court is sustainable or whether it needs any interference by this Court?

6. Perused the record and the evidence of the prosecution witnesses. The complainant-victim was examined as PW.1. She stated in her evidence that about 2 years 7 months ago while she was asleep at 11.30 PM she woke up as she found the accused lying beside her and placed his hand and leg on her and tried to outrage her modesty, s