THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.321 OF 2024

J U D G M E N T:

1. The State is questioning the judgment of acquittal of the respondent/accused in S.C.No.240 of 2020 on the file of the learned Special Sessions Judge for Expeditious Trial and Disposal of Rape and POCSO Act Cases, Bhongir, who was tried for the offences under Sections 376(2)(n), 417, 420, 506 of Indian Penal Code and Section 5(L) r/w 6 of POCSO Act.

2. Heard learned Additional Public Prosecutor for the appellant-State and also on behalf of the victim and learned counsel for the respondent/accused. Perused the record.

3. The allegation against the respondent/accused is that he followed the victim girl/PW.1 and promised to marry her. Believing his words, she participated in sexual intercourse several times and she was carrying seventh month pregnancy. When victim asked to marry her, accused refused, as such, the complaint was filed.

4. PW.1 thereafter delivered a baby boy. During the course of investigation, the samples of the boy and accused and that of PW.1 were sent for DNA testing. The expert found that the accused was biological father of the boy and mother was PW.1. On the basis of facts collected during the course of investigation, charge sheet was filed.

5. During the course of trial, the prosecution examined Pws.1 to 18 and marked Exs.P1 to P24.

6. The learned Special Judge found that PW.1/victim stated that the accused never followed her and did not have sexual intercourse with her and she did not get pregnant, as such she was declared hostile. The parents of the victim girl/PWs.2 and 3 have also turned hostile. PW.8, is the person who issued bonafide certificate of the victim girl, PWs.9 to 11 were also examined as circumstantial witnesses who did not support the prosecution case. PW.12/panch witness stated that nothing was seized in his presence at the instance of accused. PWs.13 and 14 are the medical officers who examined victim girl.

7. Learned Additional Public Prosecutor would submit that though all the witnesses including victim have turned hostile to the prosecution case, the medical evidence regarding the paternity of the child was established during the course of investigation. When the said DNA report is considered, it can only being inferred that the accused had physical intimacy with victim/PW.1. Though the victim has turned hostile on the basis of the age certificate/Ex.P10 and the DNA report, the acquittal has to be reversed.

8. On the other hand, learned counsel appearing on behalf of the accused would submit that when there was total hostility in the case, the learned Special Judge had no evidence to convict the accused. The DNA report cannot be made basis to find the appellant guilty when none of the witnesses have supported the case of the prosecution that the accused had physical intercourse with PW.1.

9. In cases of acquittal, the Hon’ble Supreme Court in Ravi Sharma v. State (Government of NCT of Delhi) and another, [(2022) 8 Supreme Court Cases 536], held that while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.

10. In Ghurey Lal v. State of Uttar Pradesh, [(2008) 10 Supreme Court Cases 450] the Hon’ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as follows:

“70. In the light of the above, the High Court and other appellate Courts should follow the well- settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court’s acquittal:

1. The appellate court may only overrule