THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.984 OF 2004 ORDER: This is an appeal filed by accused No.1 through Central Prison, Rajahmundry assailing the conviction and sentence passed in S.C.No.83 of 2001 by the Sessions Judge, Mahila Court, Vijayawada on 05.02.2003. The appellant herein along with two others were prosecuted for the offences under Sections 376 (2) (g), 324 and 366 IPC. According to prosecution accused Nos.1 to 3 are the close friends and associates. Accused No.1 is having bad character and suspected history sheet is being maintained against him by the L & O, Satyanarayanapuram Police Station, Vijayawada. Accused No.2 is also having bad character and Ex-convict in railway offences. The version of the prosecution is that the de facto complainant P.W.1 is resident of Mandapet, East Godavari District and she is unmarried and studied up to 10th class. One week prior to 13.01.2001, she left her house without the knowledge of her parents as she was chastised by her parents when she refused to marry a person proposed by them and went to Bapatla, Guntur District and stayed for 2 days for securing a job, as she could not get any job, she came to Guntur and stayed for 4 days and on 12.01.2001 at about 7.30 P.M., P.W.1 came to Vijayawada railway station and when she was waiting on platform No.1, P.W.3, a railway employee approached her and arranged food for her and later they both went to second show movie in the rickshaw of accused No.2 and at about 1.00 A.M. on the intervening night of 12/13.01.2001 P.Ws.1 and 3 returned to railway platform No.1 and they slept in a railway bogie separately and at about 4.00 A.M. on 13.01.2001, accused No.1 went to P.Ws.1 and 3 and threatened them with dire consequences and caused injuries to P.W.3 and forcibly took away P.W.1 to the premises of Jack and Jill school near railway Court, opposite to D.R.M. Office, Vijayawada. By then accused Nos.2 and 3 were waiting at the spot. In between 5 and 6 blocks of the said school, accused No.1 raped P.W.1 against her will and without her consent. Later, accused Nos.2 and 3 also committed rape on her without her consent one after another. When she raised cries L.W.2 and P.W.2 came there and apprehended accused No.2 and on seeing it accused Nos.1 and 3 ran away and accused No.2 and P.W.1 are being brought to Satyanarayanapuram police station, accused No.2 caused self inflicted injuries on his left hand and neck with a blade, but P.W.2 handed over accused No.2 in Satyanarayanapuram police station on 13.01.2001 at 7.00 A.M. On the report given by P.W.1, P.W.11 has registered a case in Crime No.31 of 2001 under Sections 376 (2) (g) IPC. P.W.13 took up the investigation and visited the scene of offence and prepared the scene of offence observation report and got photographed the scene of offence and sent P.W.1 to the hospital for medical examination. On 13.01.2001 at 1.00 P.M., P.W.13 also seized the clothes of P.W.1 under the cover of mediators report. After completion of investigation police filed the charge sheet. The learned Sessions Judge has framed the charges Under Sections 323 and 366 IPC against accused No.1 and 376 (2) (g) IPC against accused Nos.1 and 2, as accused No.3 is no more by that date, no charge has been framed against him. Accused Nos.1 and 2 pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 14 witnesses i.e. P.Ws.1 to 14 and got marked Exs.P.1 to P.24 and M.Os.1 to 13. On behalf of the accused, D.Ws.1 and 2 were examined. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused No.1 guilty for the offences under Sections 323, 366 and 376 (2) (g) IPC and sentenced to suffer rigorous imprisonment for a period of 3 months for the offence punishable under Section 323 IPC and rigorous imprisonment for a period of 10 years and also to pay Rs.1,000/- in default simple imprisonment for one year for the offence under Section 366 IPC. He was further convicted and sentenced to suffer rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,000/- in default simple imprisonment for one year for the offence under Section 376 (2) (g) IPC. Accused No.2 was convicted for the offence under Section 376 (2) (g) IPC and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,000/-, in default to under simple imprisonment for one year. Aggrieved by the said conviction and sentences accused No.1 has preferred the present appeal. The appeal preferred by accused No.2 in Criminal Appeal No.1358 of 2003 was disposed of by this Court on 11.11.2004. Since the appeal is sent from the jail by accused No.1, one Bathula Raj Kiran, advocate was appointed as legal aid counsel to argue the appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 323, 366 and 376 (2) (g) IPC against the appellant beyond reasonable doubt? P O I N T: Sri Bathula Raj Kiran, learned legal aid counsel appearing for the appellant, has contended that except the evidence of P.W.1, there is no other evidence available on record to establish the charge under Section 376 (2) (g) IPC. He further contended that the medical evidence produced by the prosecution has not clearly establishes the commission of offence of rape. He further pleaded that the medical evidence is not supporting the evidence of P.W.3 with regard to injuries sustained by him. He further contended that P.W.3 has not stated anything about the kidnapping of P.W.1 by accused No.1 from the platform No.1 of Vijayawada Railway Station. Learned Public Prosecutor has pleaded that the evidence adduced by the prosecution would clearly establish the causing of injuries to P.W.3 by accused No.1 and kidnapping the victim P.W.1 from Vijayawada railway station and taken her to Jack and Jill school premises and committing gang rape on her. P.W.1 victim deposed that she is resident of Mandapeta, East Godavari district and she studied up to 10th class. In the month of January, 2001, she came out of her parents’ house as she was chastised by her parents as she refused to marry the person suggested by them and went to Bapatla in Guntur District. On 12.01.2001 she came to Vijayawada and at 7.30 P.M. while she was on the platform No.1 of Vijayawada Railway Station, P.W.3 came to her and introduced himself as railway employee and provided her some food and thereafter both went to movie in a rickshaw. After witnessing the movie, they came back to railway station and slept separately in a stationed bogie. While she was sleeping accused No.1 came there and stated that she will not be happy with old person P.W.3 and insisted her to accompany him and so saying he forcibly took her to Jack and Jill school, and on the instructions of accused No.1, accused Nos.2 and 3 came there. Accused No.1 asked accused Nos.2 and 3 to wait outside and he committed rape on her against her will. Thereafter, accused Nos.2 and 3 also committed rape on her one after another in spite of her resistance. Even though, she raised hue and cry, nobody came to her rescue. Thereafter, when she came out of the school, P.W.2 came there and he caught hold of accused No.2 and took both of them to the Satyanarayanapuram police station, where she lodged a complaint Ex.P.1. Police sent her to Government Hospital for examination and seized M.Os.1 to 3 from her and she has identified the accused in the test identification parade conducted by the Magistrate. P.W.3, who is the person met P.W.1 on the railway platform has also supported the version of P.W.1 about his providing food to her and thereafter going to movie in a rickshaw and return back to the railway station and sleeping in a stationed railway bogie in two separate berths. According to him, at 4.00 A.M., accused Nos.1 to 3 came to the bench of P.W.1 and P.W.1 raised hue and cry and when he questioned accused No.1, he inflicted injury on his dorsum of left forearm. Then accused No.2 pushed him aside and beat him with a wooden plank on his head. As a result of which, he fell down and in the early hours, he learnt that accused Nos.1 to 3 committed rape on P.W.1. Police sent him to the Government hospital for treatment. P.W.2 is the person, who has rescued P.W.1 from the Jack and Jill school and took her to the police station and he also supported the version of P.W.1 with regard to her coming out of the Jack and Jill school on 13.01.2001 in the early hours by raising cries and she asked him about the address of the police station and in the meanwhile accused NO.2 came there; he took P.W.1 to the police station along with accused No.2 and she gave report Ex.P.1 to the police. Even though P.W.2 has not supported the case of the prosecution with regard to P.W.1 disclosing to him about accused committing rape on her. The factum of his accompanying P.W.1 from Jack and Jill school to the police station was established through his evidence. The father of P.W.1 is examined as P.W.4 and he stated about his daughter P.W.1 leaving the house on 03.01.2001 when they chastised her and subsequently on 13.01.2001 police constable of Vijayawada came to their house and took them to Vijayawada, there he learnt through P.W.1 that she was raped by accused Nos.1 to 3 on the previous night. Therefore, with regard to committing the offence of rape on P.W.1, the only evidence available on record is the evidence of P.W.1 and the said evidence is supported by medical evidence of Dr. Rajya Lakshmi, who is examined as P.W.8. P.W.8 examined the victim P.W.1 on 13.01.2001 at 11.00 A.M. and found Hyman not intact, menstrual bleeding present, Vagania Patulous admitting two fingers easily, and she issued Ex.P.8 wound certificate and she sent the swabs and other collections to chemical analysis and she has received the report on 13.03.2001. Semen and Sperm are not present on item Nos. 1 to 17 and she gave opinion that there is possibility of sexual intercourse and Ex.P.9 is the final opinion given by her. Therefore, the Doctor has supported the version of P.W.1 with regard to commission of rape on her prior to her examination even though the Semen and sperm are not found on the item Nos.1 to 17. With regard to Accused No.1 committing the offence on P.W.1, she has identified the accused Nos.1 to 3 in the test identification parade conduced by P.W.10 as per the Ex.P.17 the test identification proceedings. Accused has examined D.Ws.1 and 2 in defence. D.W.1 is the auto driver and he knows accused Nos.1 and 2 and accused No.1 is an auto driver and accused No.2 is rickshaw puller. On 13.01.2001 at 4.00 A.M. police came to their auto stand at Jack and Jill school and took accused Nos.1 and 2 and meanwhile he was engaged by a passenger and went away. Other witness D.W.2, who is also auto driver, on 13.01.2001 night accused Nos.1 and 2 were in Jack and Jill school at Railway station, Vijayawada, at 3.30 A.M he was engaged by a person and by that time he returned to Railway station and he leant about the incident. He further stated that the driver of autos and rickshaws informed him that the accused were involved in the rape case. Therefore, the evidence of D.Ws.1 and 2 is not at all helpful to the accused; on the other hand, the evidence of D.W.2 establishes the involvement of the accused in a rape case. The learned Sessions Judge has recorded the reasons in detail and ultimately came to the conclusion that accused Nos.1 and 2 have committed the offence of rape on P.W.1. There is no material on record to disturb the said finding of the learned Sessions Judge. Moreover, the victim P.W.1 is an un-married girl, who came away from her house on certain reasons and while she was at Vijayawada railway station, taking advantage of her helpless position, accused Nos.1 and 2 committed the offence against her. Therefore, it cannot be said that P.W.1 lodged a false complaint against the accused, who are unknown to her by the time of commission of offence. Therefore, the prosecution could able to establish the offence under Section 376 (2) (g) IPC against the appellant. With regard to kidnapping of P.W.1 from the railway bogie, P.W.1 has also stated about the same, P.W.3, who was along with her has supported her version and the fact that while she was sleeping in the railway bogie, she was taken to Jack and Jill premises itself establishes that she was forcibly taken by accused No.1 to the said school. Therefore, the prosecution could able to establish the offence under Section 366 IPC against the appellant beyond reasonable doubt. With regard to the commission of offence under Section 323 IPC, according to the prosecution when P.W.3 has resisted the accused at the time of taking away P.W.1 from the railway bogie, accused No.1 inflicted injuries on the dorsum of left forearm, then accused No.2 pushed him, accused No.3 beat him with a wooden plank on his head, as a result of which he fell down. In that regard, P.W.3 has stated while himself and P.W.1 were sleeping in the railway bogie in different benches, at 4.00 A.M. accused Nos.1 to 3 came to the bench of P.W.1 and she raised hue and cry. Then P.W.1 called him, when he questioned the accused, accused No.1 inflicted injury on the dorsum of his left forearm and accused No.2 pushed him and accused No.3 beat him with wooden plank on his head and in the early hours at 5.00 A.M, police took him to the Government Hospital and he was informed that P.W.1 was also admitted in the Government Hospital and on enquiry he came to know that accused Nos.1 to 3 raped P.W.1. The said evidence of P.W.3 is supported by the evidence of Dr. T.V.Ramana Murthy, who is examined as P.W.7 and according to him on 13.01.2001, he examined P.W.3 brought by Police constable No.843 of Satyanarayanapuram police station and he found no external injury, tenderness on the left side of the chest and he opined that the injuries are simple in nature and Ex.P.7 is the certificate issued by him. Therefore, from the above evidence of P.Ws.3 and 7, it is evident in the altercation that took place between the accused and P.W.3, he sustained simple injuries. Thus, the prosecution could able to establish the offence under Section 323 IPC against the appellant beyond reasonable doubt. The learned legal aid counsel has pleaded that the appeal filed by accused No.2 was disposed of by this Court by reducing the sentence of rigorous imprisonment from 10 years to 7 years for the offence under Section 376 (2) (g) IPC, as such the same benefit may be given to the present appellant. For the offence under Section 376 (2) (g) IPC, the punishment prescribed is rigorous imprisonment, which shall not be less then 10 years but which may be for life and shall also be liable to fine. As per the Proviso, the Court may, for adequate and special reasons, impose a sentence of imprisonment of either description for a term of less than 10 years. In the present case, the offence established against the accused is committing gang rape, which is punishable under Section 376 (2) (g) IPC and since accused No.1 has committed the offence against the unmarried girl, who aged about 21 years, the learned Sessions Judge considered the circumstances of the case and imposed minimum punishment prescribed under the Act. There are no adequate and special reasons to reduce the above said punishment. Even though the punishment imposed against accused No.2 was reduced by this Court, the same cannot be applied to the case of the present appellant as the present appellant is the main accused in commission of the said offence against the victim girl and accused No.2 only followed accused No.1 and participated in the offence of commission of rape against her. Therefore, I hold that the appellant is not entitled for the reduction of sentence. In the result, the Criminal Appeal is dismissed and the conviction and sentence passed by the Sessions Judge in S.C.No.83 of 2001 is hereby confirmed. _______________________ P.DURGA PRASAD, J 1st July, 2011 KSP