THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 569 OF 2004 JUDGMENT: This is an appeal filed by the State against the acquittal of the accused passed by the Assistant Sessions Judge, Adilabad, dated 21.04.2002 in Sessions Case No.30 of 2002. 2. The respondent-accused was prosecuted for an offence punishable under Section 376 of Indian Penal Code, 1860 (for short ‘I.P.C’) alleging that on 11.04.2001 at 9.00 AM, the victim girl-Ashiya Bee was taken by the accused to his house and committed rape on her. 3. According to the case of the prosecution, the complainant P.W.1 lodged a written complaint before the II town P.S, Adilabad stating that on 11.04.2001, at 09.00 AM, her daughter Ashiya Bee was not found in the house and when she came out of the house and enquired her whereabouts, P.W.3 informed that she went along with accused-Abdul Rasheed to his house. Thereby, P.W.1 went to the house of the accused and she found the accused naked and the victim girl was undressed. At that time, the wife and children of the accused were not present in the house. On enquiry, the victim girl informed that the accused removed her clothes and raped her. The accused came out of the house and ran away. 4. P.W.11 registered the said complaint as a case in Crime No.83 of 2001 for the offence under Section 376 of I.P.C and took up investigation and sent the victim girl to the hospital for examination. The doctor-P.W.8 who examined her, gave a report that there was a positive clinical signs of commission of rape on the victim. On 15.04.2001 at 4.00 PM, the police apprehended that the respondent-accused at his house and he confessed that he has committed rape on the victim girl and he was sent to the government hospital for potency test and the doctor who examined him stated in his report that the accused is potent and capable of performing the act of sexual intercourse. Thereafter, the accused was sent to judicial custody. Investigation revealed that the victim girl-Ashiya Bee was residing in the same locality in Ramnagar area, Adilabad and she was mentally retarded. Taking advantage of the innocence of the victim girl-Ashiya Bee, the accused took her to his house, removed her clothes and also his clothes, laid down on the ground and committed rape on her. At that time none of the family members of the accused were present in the house. In the meanwhile, P.W.1 went to the house of the accused and while calling for her daughter, she opened the doors of the house of the accused. She found her daughter and the accused both naked. Thereafter, on hearing the cries of P.W.1, the other witnesses came there and witnessed the incident. 5. The learned Sessions Judge framed a charge under Section 376 of I.P.C against the accused and the accused pleaded not guilty for the said charge. 6. In order to establish the said charge, the prosecution has examined P.Ws-1 to 11 and got marked Exs.P-1 to P-9 and M.O. No.s 1 to 3. 7. Taking into consideration the oral and documentary evidence, the learned Sessions Judge found that the prosecution has failed to prove the guilty of the accused beyond reasonable doubt and acquitted the accused under Section 235 (1) of Cr.P.C. Aggrieved by the said acquittal, the State preferred the present appeal. 8. Now the point for consideration is whether the prosecution could be able to establish that the accused has committed offence under Section 376 of I.P.C against P.W.2-Ashiya Bee beyond reasonable doubt?. 9. Learned Public Prosecutor argued that the evidence of P.W.1, P.W.2, P.W.4 and P.W.5 is sufficient to establish the charge against the accused and the lower Court has not properly appreciated their evidence. He also argued that in such offences, there will not be any direct eye-witnesses and the circumstantial evidence has to be taken into consideration and the medical evidence, P.W.8 is also supporting the case of the prosecution and thus the prosecution could establish the offence against the accused. Even though the matter is coming up for last two adjournments, none appeared on behalf of the respondent- accused. 10. According to prosecution, on 11.04.2001 at about 9.00 A.M, the accused took the victim girl to his house and committed rape upon her. Admittedly, there are no eye witnesses to the aforesaid incident and even though P.W.2-the victim girl was produced before the Court, the Court found that she was not having understanding capacity and as such her evidence was not recorded. Moreover, according to PW-8-doctor, the victim girl is a mentally retarded girl. 11. The circumstantial evidence available on record is the evidence of P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6. The circumstantial evidence P.W.3-Doulath Bee has stated that she knew P.W-1 and her daughter and also the accused and they are residents of Ramnagar, Adilabad and about one year four months back, when she was going to get water from the bore well, she saw the accused taking Ashiya Bee along with him to his house. The house of the accused is nearby to the bore well. When she found P.W.1 at the bore well, she informed that her daughter Ashiya Bee was taken by the accused to his house. Thus, the said witness P.W-3 has seen the accused taking the victim girl along with him to his house. 12. The next circumstantial witness examined by the prosecution is P.W.1-mother of the victim girl-Ashiya Bee. According to her, she knew the accused who was present in the Court. The house of the accused is nearby to their house at Ramnagar, Adilabad and there are about two or three houses in between their house and the house of the accused. About four months back, around 9.00 A.M, she could not find her daughter Ashiya Bee at her house and also said that her daughter was mentally retarded. As she was searching for the daughter in the neighbouring houses, she learnt from the neighbours that the accused took her daughter to his house and further the wife and children of the accused were not present in the house. She went to the house of the accused and while calling, the victim girl-she opened the door of the accused and found her daughter naked, whereas the accused was only wearing drawer on his body. Thereupon, she dressed up her daughter and raised hue and cry. On hearing her cries, Mobin, Hafees, Shaini and other neighbours gathered to the house of the accused, where he committed rape upon her daughter. From the scene of offence, she took her daughter to the police station and gave a report and thereafter her daughter was sent to the government hospital for medical examination. In the cross-examination, she stated that at the time when she went to the house of the accused, the fencing door of the house of the accused was tied and she opened it. The main doors of the house of the accused were opened at that time. She came to know from Doulath Bee (P.W.3) that accused took her daughter to his house and she got it mentioned in Ex.P-1. Thus, the evidence of PW.1 stood unrebutted with regard to the presence of her daughter in naked condition in the house of the accused. 13. The other material witnesses examined by the prosecution are P.W.4 and P.W.6. P.W.4 is also a resident of Ramnagar, Adilabad and she has spoken about P.W.1 enquiring about her daughter and after hearing hue and cries of P.W.1 from the house of the accused, she herself and her husband went to the house of the accused and found that P.W.1 was dressing up her daughter Ashiya Bee and at that time the accused was wearing drawer and Ashiya Bee has informed that the accused slept over her and cajoled her body and thereafter P.W.1 took Ashiya Bee to the police station. P.W.6 who is the husband of P.W.4 also supported the evidence of P.W.4 with regard to their going to the house of the accused and finding the accused and the victim girl naked in the said house. P.W.5 has only spoken that the incident happened one year and four months back between 9.30 to 10.00 A.M. Therefore the circumstantial evidence of PWs.1,3,4,5 and 6 establishes the presence of the victim girl in the house of the accused and the accused is also found with a drawer in his house and at that time none of the family members of the accused were present in the house. 14. According to the prosecution, the accused committed rape on the victim girl, who is a mentally retarded girl. The doctor- P.W.8 who examined the victim girl also stated that the victim girl Ashiya Bee is aged 14 years and she appears to be mentally retarded. Except tenderness over the right knee no other external injuries are present on victim and on examination, it is also noted that the hymen is ruptured, fresh small tears present with 2 o clock, 6 o clock and 8 o clock position of the hymen of the victim and tender slit of inflammation was present. Hymen orify admits two fingers easily. Vaginal swab taken and examined for G.C. and sperms, result they are not found. As per the doctor observations, there are positive signs of commission of rape upon the victim girl. Therefore, the evidence of the doctor-P.W-8 establishes that the victim girl was raped. 15. Immediately after the incident, P.W.1 has lodged the complaint Ex.P-1 and on the basis of Ex.P.1 complaint, S.I. Narayan Rao registered a case in Crime No.83 of 2001 under Section 376 of I.P.C and issued Ex.P-7 F.I.R. and the victim girl was referred to the hospital for medical examination. The S.I. visited the scene of offence and conducted panchanama Ex.P-4 in the presence of two mediators and during the course of investigation S.I also seized Mos 1 to 3 clothes of the victim girl- P.W-2, under a cover of Ex.P-6-Panchanama. He also recorded the statements of PWs.3 to 6 and 9 and others, thereafter P.W.11 took up the investigation and verified the investigation, arrested the accused and sent him for potency test. 16. Immediately after the incident, PW1 has lodged a complaint against the accused alleging commission of the offence and in Ex.P.1 she specifically stated that about when she entered into the house of the accused, her daughter Ashiya Bee was naked and the accused was also found with a drawer and none of his family members were present in the house and her daughter has disclosed that the accused has raped her. 17. While dealing with an appeal against the order of acquittal the Supreme Court in Prandas v. The State, AIR 1954 SC 36: (1954 Cri LJ 331), held as under: “It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Criminal P.C., in appeal from an order of acquittal has been stated in ‘Sheo Swarup v. Emperor Manu/PR/0043/1934 (AIR 1934 PC 227(2) : 1935 (36) Cri LJ 786), in these words: “Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always given proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will at in accordance with rules and principles well known and recognized in the administration of justice.” 18. Bearing the above principles in mind, it is to be seen whether the impugned judgment needs any interference by this Court. In the present case, the victim girl P.W.2 was not examined as she is unable to give evidence in view of her mental retardedness. The other evidences available on record points out the commission of offence of rape by the accused upon the victim girl. The learned public prosecutor argued that the circumstantial evidences can be taken into consideration and the accused can be convicted and in support of his contention, he relied upon the decision of this Court reported in The Public Prosecutor, High Court of A.P, Hyderabad v. K. Venkateshwarlu[1]. 19. In the above decision also, the victim is a mentally retarded girl and she could not state about the accused committing the offence. But the other circumstantial evidences clearly established the commission of an offence by the accused against the victim girl and therefore this Court has held that the offence under Section 376 of I.P.C was committed by the accused therein. 20. In the present case also as observed above, the prosecution could be able to establish from the circumstantial evidence and the medical evidence that the offence under Section 376 of I.P.C was committed against the victim girl- Ashiya Bee by the accused. 21. The Assistant Sessions Judge merely basing on the evidence of P.Ws.1 and 4 has observed that when the victim could be able to say the commission of the offence to P.W.4, why she has not stated the same to her mother and P.W.1 has not spoken P.W.2 disclosing the commission of offence by the accused. The said finding of the learned Sessions Judge cannot be accepted because even though P.W.1 did not spoke about her daughter informing her about commission of offence of rape by the accused but the said fact was mentioned by her in Ex.P.1-the complaint. The Sessions Judge also found inconsistency in the evidence of P.W.1,3,4,5 and 6, with regard to the presence of her daughter Ashiya Bee naked in the house of the accused. It is the case of the prosecution that when P.W.1 went to the house of the accused, she found the victim P.W.2 naked and the accused had only drawer on his body and the said fact was also stated by the witness who came there after hearing the cries of P.W.1. They also stated that the accused ran away from his house. Thus, there is no inconsistency in the evidence of P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6 in that regard. 22. With regard to medical evidence, the learned Sessions Judge has not appreciated the evidence of the doctor P.W.8 in right perspective. The learned Sessions Judge basing on the cross examination of PW.8, observed that there are no blood clots or sperms or semen strains found on the private parts of the victim girl and she did not have any injuries on the private parts and the vagina admits two fingers easily which indicates that she is habituated to sexual intercourse. The learned Sessions Judge has not taken into consideration the evidence of the doctor- P.W.8 with regard to the ruptured hymen with fresh small tears of 2 o clock, 6 o clock and 8 o clock position of the hymen of the victim and tender slit of inflammation present on the hymen. The doctor has specifically observed that there are positive signs of commission of rape on the victim girl. Thus the finding of the Sessions Judge that the victim was habituated to sexual intercourse is liable to be set aside. 23. Thus the findings recorded by the Sessions Judge Court are perverse and he has not properly appreciated the evidence available on record which leads to miscarriage of Justice. In view of the above discussions the findings recorded in this case is that the prosecution could able to establish the offence under Section 376 of I.P.C against the accused beyond reasonable doubt. 24. Accordingly, the criminal appeal is allowed and the impugned judgment dated 21.04.2003 in S.C.No.30 of 2002 on the file of the Assistant Sessions Judge, Adilabad is hereby set aside and the respondent-accused is found guilty for the offence punishable under Section 376 of I.P.C and accordingly he is convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of one month. The period of remand, if any, undergone by the accused shall be given set off under Section 428 of Cr.P.C. ______________________ P. DURGA PRASAD, J April 15, 2011 SP THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 569 OF 2004 April 15, 2011 SP [1] 2010 CRI.L.J.1568