THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No. 278 of 2007 (Dated : 24-08-2009) Between: Vallepu Ramulu S/o Rajaiah, Aged 26 years, R/o Gargul village, Nizamabad District. …Appellant A n d The State of A.P rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No. 278 of 2007 JUDGMENT: This appeal is directed against the judgment dated 05.10.2006 in S.C.No.545 of 2000 on the file of the Assistant Sessions Judge at Kamareddy, wherein the appellant/accused herein was found guilty of the offence under Section 376(2) (f) IPC, convicted for the same and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs.500/- and in default of payment of the fine amount, to undergo simple imprisonment for three months. 2. The Circle Inspector of Police, Kamareddy, filed a charge sheet in Crime No.5 of 2000 against the accused. The case of the prosecution, in brief, is as follows: On 20.01.2000 at 12.00 noon, the complainant-P.W.1 left for Kamareddy and even before him, his wife-P.W.2 also left the house to go to a hospital at Kamareddy and the victim girl-P.W.3, aged 7 years, was at home along with her younger sisters, namely, Bhagya and Swarupa. When P.W.1 returned home at 3.00 p.m. he was informed by P.W.4- his sister-in-law, that at about 1.30 p.m. the accused took the victim girl-P.W.3 into a cattle shed and committed rape on her and after hearing the cries of P.W.3, she rushed there. It is further alleged that on being enquired by P.W.1, his daughter-P.W.3 reiterated stating that the accused took her into a cattle shed on the plea of giving her some eatables and committed rape on her by making her laid on the ground. It is stated that P.W.1 raised a dispute before the caste elders, who advised him to give a complaint to the police. Thereupon, on the same day P.W.1 gave a complaint-Ex.P.1 and the same was registered as a case in Crime No.5 of 2000 by the Sub Inspector of Police-P.W.9 and investigation was taken up by the Circle Inspector of Police-P.W.10. During the course of investigation, P.W.10 observed the scene of offence, prepared panchnama-Ex.P.3 and rough sketch- Ex.P.4 in the presence of P.W.6 and also seized the blood stained petty coat-M.O.1 of the victim girl-P.W.3. The accused was subjected to potency test by P.W.7-Medical Officer, who gave a report-Ex.P.5 opining that the accused was capable of performing the sexual act. The Medical Officer-P.W.8 conducted medical test on the victim girl-P.W.3 and collected vaginal smear, swabs, etc. from her and sent them to the Forensic Science Laboratory, Hyderabad for examination. The Assistant Director, Forensic Science Laboratory, Hyderabad sent a report-Ex.P.7 stating that human semen and spermatozoa are detected on item Nos.1 and 2, but their blood group could not be determined and human blood of “B” group could be determined on item No.4-M.O.1. Ex.P.6 is the certificate issued by the Professor & Head, Department of Forensic Medicine, Gandhi Medical College, Hyderabad, determining the age of the accused at above 16 years and below 18 years. After completion of investigation, P.W.10 filed the charge sheet. 3. The accused pleaded not guilty to the charge framed under Section 376 (2) (f) IPC. 4. In support of its case, the prosecution examined P.Ws. 1 to 10 and marked Exs.P.1 to P.8 and M.O.1. No oral or documentary evidence was adduced on behalf of the accused. 5. On a consideration of the evidence available on record, the learned Assistant Sessions Judge, Kamareddy, found the accused guilty of the offence under Section 376 (2) (f) IPC and convicted him for the same and sentenced him, as stated supra. Aggrieved by the said conviction and sentence, the accused filed the present appeal. 6. Heard the learned counsel for the appellant-accused and the learned Additional Public Prosecutor for the respondent-State and perused the record. 7. The prosecution mainly relies on the testimony of the victim girl-P.W.3 and circumstantial evidence of P.W.4 to whom P.W.3 disclosed the incident immediately after the occurrence and the medical evidence of P.Ws.7 and 8. P.W.1-the complainant and father of the victim girl, was admittedly not present in the village and he came to know of the incident only after he returned home shortly after the occurrence. Similarly, P.W.2-mother of the victim girl was also not at home having gone to Kamareddy. P.W.5 is a circumstantial witness, who also came to know of the incident only after he returned to the village in the afternoon. P.W.6 is a panch witness. P.Ws.7 and 8 are the Medical Officers, who examined the accused and the victim girl-P.W.3 respectively. P.W.9 is the Sub Inspector of Police, who registered the crime and P.W.10 is the Circle Inspector of Police, who investigated into the crime and filed charge sheet. 8. The incident is said to have taken place at about 1.30 p.m. on 20.01.2000 and the FIR-Ex.P.8 was registered at 9.00 p.m. on the same day. It is in the evidence of P.Ws. 1 and 2, parents of the victim girl, and also the victim girl-P.W.3 that at the time of the incident, the parents of the victim girl were not in the village. The case of the prosecution is that taking advantage of the loneliness of P.W.3, who is an young girl aged 7 years, the accused came to the house and took her into a cattle shed on the pretext of giving her some eatables and committed rape on her. It is also in the evidence of P.W.1 that having returned home in the afternoon, he came to know about the incident. P.W.4, who is sister of P.W.2, testified that the accused took P.W.3 into a cattle shed at about 1.00 p.m. and on hearing the weeping of P.W.3, she rushed there and on questioning, P.W.3 disclosed the incident to her and she, in turn, informed to P.W.1 about the same and also to P.W.2 after her return. After giving evidence in chief, P.W.4 died on 08.09.2006 and she could not, therefore, be produced before the court for cross-examination. The testimony of P.W.4 cannot, however, be eschewed as prosecution could not produce her for cross-examination for reasons beyond their control, namely, due to death of P.W.4. Thus, the evidence on record shows that P.W.1-the complainant returned to the village a few hours after the incident and came to know about it and on the same night at about 9 p.m. he gave a complaint. In the complaint-Ex.P.1 also, P.W.1 stated that he returned home at 3.00 p.m. and came to know about the incident and his wife-P.W.2 returned home at 4 pm. and then he informed her about the same. 9. As seen from the FIR-Ex.P.8, the distance between the place of offence at Gargul village and the police station at Kamareddy is 6 kilometers. Having regard to the fact that P.Ws.1 to 3 are rustic villagers and the Police Station at Kamareddy is far away from their village, it cannot be said that there was any delay in giving complaint-Ex.P.1. In view of the offence alleged and also the age of the victim girl, the fact that there is a time lag of about six hours in giving complaint is of no consequence. The occurrence of such time lag in giving a complaint is quite natural in a case like the present one pertaining to an offence under Section 376 IPC. The contention of the learned counsel for the appellant-accused that there is unexplained delay of more than six hours in giving the complaint-Ex.P.1 is, therefore, untenable. In view of the fact that the complaint was given and F.I.R was registered within few hours after the occurrence, the genuineness of the contents thereof cannot at all be doubted. 10. According to the prosecution, PW-3 victim girl, is aged around 10 years and the learned Assistant Sessions Judge recorded in the deposition of Pw-3 that the Court is satisfied that the witness is competent to give evidence in the matter. Pw-3 testified that at about 2 pm, while her parents Pws 1 and 2 went to market at Kamareddy, herself, Pw-4 and her two elder sisters were at home and the accused came and took her to the cattle shed offering to give her some eatables and there, he made her lie on the ground and committed rape on her. It is also in her evidence that after some time, Pw-4 came there and Pw-3 informed her as to what has happened and in the meanwhile, her father and mother returned and she informed them also that the accused committed rape on her. Thereafter, her father PW-1 gave a complaint to the police. 11. Pw-4 corroborated the testimony of Pw-3 on all material aspects. Though PW-3 is an young girl aged around 12 years as on the date of her cross examination on 26.9.2006, her testimony remained un-impeached and there are absolutely no reasons to ignore the same. Though Pw-4 is not a direct witness to the occurrence, her testimony corroborates the version of the prosecution as she reached the scene of offence almost immediately after the occurrence and Pw-3 conveyed her as to what had happened. It is but natural that Pw-4, in turn, waited till return of Pws 1 and 2 and informed them on their arrival. Pw-4 is not cross-examined. Pws 1 and 2, who returned home within few hours after the occurrence, testified to the effect that immediately on their return to the village, they were informed of the incident by Pws 3 and 4. Thereupon, they raised a dispute before the elders. 12. Having regard to the nature of the offence, which is usually resorted to by the accused duly ensuring privacy and secrecy, no direct evidence in the form of eyewitness account would be forthcoming to prove the prosecution case. 13. It is well settled by catena of decisions that the sole testimony of prosecutrix alone can constitute basis for conviction without any corroboration. 14. In STATE OF HIMACHAL PRADESH v. GIAN CHAND [1] the apex Court held that: “it is now well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. “If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations”. 15. In the present case also, when the testimony of Pw-3 is found to be free from any infirmities and there being absolutely no reason for her to falsely implicate the accused and such false implication being inconceivable in view of the tender age of the victim girl and her evidence being cogent and consistent and therefore, reliable and trustworthy, the fact that there was no corroboration of the same is immaterial and conviction can be based on the sole testimony of Pw-3 herself. In fact, in the present case, the testimony of Pw-3 is duly corroborated by the circumstantial evidence put forward through Pw-4 and Pw-1 apart from the medical evidence. 16. Pw-7, the Medical Officer who examined the accused testified that he issued Ex.P-5 to the effect that there is nothing to suggest that the accused is not capable of performing sexual act. Ex.P-6 is the certificate regarding determination of the age of the accused estimating the same at around 18 years. Pw-8-Deputy Civil Surgeon, Gandhi Hospital, Secunderabad examined Pw-3 on 21-1-2000, the next day of the incident and found that Pw-3 complained burning sensation while passing urine. She also found yellowish red, white discharge at the vulva. She also found the following external injuries:- i) Abrasion ½ X1/4 cm on the lower end of hymen red in colour ii) Abrasion plus contusion ½ cm in diameter outside right margin of Hymen, bright red in colour ; and iii) ½ cm diameter abrasion plus contusion out side left margin of Hymen, bright red in colour and there was tenderness. Pw-8 preserved vaginal smear and vaginal swab, nail clippings and sent them to F.S.L for examination and after receiving the F.S.L report Ex.P-7, she gave final opinion to the effect that the victim has been sexually assaulted. She based her opinion on the presence of local injuries on either side of Hymen and presence of semen and spermatozoa being detected on the vaginal swabs and vaginal smears and also blood stains on the skirt of Pw-3. The very fact that Pw-3 has not attained the age of puberty, but still the injuries 1 to 3 mentioned above were found on either side of the hymen coupled with the presence of spermatozoa detected on the vaginal swabs and vaginal smears would clearly support the opinion of Pw-8 that Pw-3 was subjected to sexual assault. 17. In STATE OF HIMACHAL PRADESH v. MANGE RAM[2] the apex Court held that: “In view of the evidence of prosecutrix (P.W.5) which is corroborated by medical evidence and other item of evidence and in the absence of any consent on the part of the prosecutrix, it is clearly established that the accused had committed rape on the prosecutrix and is liable for the offence punishable under Section 376 IPC. The finding given by the learned Sessions Judge is not based on proper appreciation of evidence and, therefore, unreasonable and we are of the view that the Sessions Court dealt the case so lightly. The offence of rape being a serious one, the case should have received careful attention and that the learned Sessions Judge and the learned single Judge should have shown greater sensitivity to these type of cases. The evidence should have been appreciated on broader probabilities and not to be carried away by insignificant contradictions”. 18. Pw-3 testified that at the time of the occurrence, she resisted and the result of the resistance is the injuries sustained on the person of Pw-3. The medical evidence of Pw-8 coupled with the report given by her and also the F.S.L report would clearly corroborate the testimony of Pw-3 regarding the commission of the offence of rape. Having regard to the tender age of Pw-3, it is only but natural that she was overpowered by the accused, who was elder to her, notwithstanding the resistance offered by her. In view of the unimpeachable medical evidence available on record establishing the sexual assault on Pw-3 duly corroborating the testimony of Pw-3 and connecting the accused with the commission of offence, the trial Court has rightly found the accused guilty of the offence under Section 376(2)(f), as the victim girl is aged less than 12 years. Therefore, the conviction of the accused, as recorded by the trial Court, is not liable to be interfered with. 19. Coming to the sentence, the trial Court awarded the minimum prescribed sentence of rigorous imprisonment for ten years, besides imposing a fine of Rs.1000/- with the condition that in default of payment of fine, the accused shall undergo simple imprisonment for three months. 20. Learned counsel for the appellant would submit that the accused is physically handicapped, and suffering from polio. He would further submit that the accused is in jail since 7 years and 10 months and the same was also borne out by the evidence on record and considering the same, a lenient view may be taken by imposing lesser sentence than the minimum prescribed. 21. No doubt, the proviso to Section 376(2)(f) enables the Court to impose a sentence of imprisonment of either description for a term of less than 10 years for adequate and special reasons mentioned in the judgment. In the present case, the accused committed a heinous offence of rape on Pw-3, a girl of tender age by taking her away from her house on the pretext of giving eatables and there are no adequate or special reasons to impose a sentence less than the prescribed minimum sentence for the offence under Section 376(2)(f). The fact that the accused was suffering from polio much prior to the date of commission of the offence is no extenuating circumstance for imposing a lesser punishment, as the accused has not hesitated to commit a heinous offence on a young girl Pw-3, in spite of his being physically handicapped. In the circumstances, it is held that having regard to the gravity of the nature of the offence and there being no special reasons to award any lesser sentence, the sentence imposed by the trial Court is also not liable to be interfered with. 22. In the result, the Criminal Appeal is dismissed. __________________ G. V. SEETHAPATHY, J 24th August, 2009 CBS/RAR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No. 278 of 2007 24th August, 2009 [1] 2001 SCC 2075 [2] AIR 2000 SUPREME COURT 2798