IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.909 OF 2004 Between: Boini Papaiah ..... Appellant/Accused No.2 AND 1. The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent/Complainant 2. Korampally Laxmaiah ..... Respondent/ Accused No.1 AND CRIMINAL APPEAL No.1529 OF 2004 Between: Korampally Laxmaiah ..... Appellant/Accused No.1 AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent/Complainant The Court made the following: COMMON JUDGMENT: These Criminal Appeals, under Section 374 (2) of the Code of Criminal Procedure Code, 1973 (for short, "Cr.P.C."), are filed challenging the judgment, dated 05.04.2004, in S.C. S.T. Sessions Case No.4 of 2003 on the file of the learned Special Judge for Trial of Offences under SC/ST (POA) Act, Sangareddy. The appellant in Criminal Appeal No.909 of 2004 is A.2, and the appellant in Criminal Appeal No.1529 of 2004 is A.1, in the Sessions Case. 2. The brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: P.W.1 is the victim in this case, who was aged about 13 years on the date of incident. She is a resident of Pythara Village. P.W.2 is the father of the victim girl. The Accused Nos.1 & 2 are residents of the same village. The victim girl, P.W.1, belongs to Scheduled caste community. On 05.10.2002 at about 9.00 a.m., P.W.2 sent P.W.1 to the house of P.W.4, who is the younger brother of P.W.2, to Konapuram Village for money to purchase control rice. P.W.1 started from Pythara Village at about 9.00 a.m. When she reached the outskirts of the Pythara village near the fields of Nimmala Durga Reddy, Accused No.1 came behind her and suddenly dragged her into the redgram field. When she was weeping, Accused No.1 closed her mouth and took her into the fields and committed rape on her. While P.W.1 was proceeding towards Konapuram Village, Accused No.2 came there and caught hold of her hand with an intention to commit rape on her in the outskirts of Konapuram Village. She made cries and escaped from there and proceeded to the house of P.W.4 at Konpauram Village. She informed the incident to her uncle, P.W.4. Then P.Ws.1 & 4 returned to the house of P.W.2 and informed about the same to P.W.2 and others. Thereafter, P.Ws.2 and 4 and others went to the house of Accused No.1 and questioned him, but the father of Accused No.1 stated that they can do whatever they want. P.Ws.2, 4 and others also informed to P.W.3, who is the Sarpanch, asked P.W.1 to give a police complaint. On the next day, they have lodged a complaint. P.W.11-Sub-Inspector of Police registered a case in Crime No.33 of 2002 against the accused for the offences punishable under Section 376 I.P.C. and Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act”). P.W.12-Sub-Divisional Police Officer took up the investigation, examined the witnesses and recorded the statements of P.Ws.1 to 5 and also seized saree, blouse and petti coat of P.W.1 in the presence of P.Ws.6 and 7, who are panchas. P.W.12 also visited the scene of occurrence and conducted scene of offence panchanama along with sketch map in the presence of P.Ws.7 and 9, who are panchas. P.W.1 was referred to the Area Hospital, Medak, for medical examination. P.W.10, who is the Doctor, examined P.W.1 and found no external injuries and found semen and spermatozoa on vaginal smear taken from P.W.1 and were sent to the Forensic Science Laboratory for examination. After receipt of the Forensic Science Laboratory Report, P.W.10 gave a final opinion stating that human semen and spermatozoa were found on the Vaginal smear taken from P.W.1 and hence, the occurrence of rape cannot be ruled out. P.W.12 also referred P.W.1 to the Forensic Science Laboratory, Gandhi Medical College for determination of age. The Assistant Professor, Department of Forensic Medicine examined P.W.1 and issued age certificate of P.W.1, which is marked as Ex.P15, stating that she was aged about 16 years. The accused were arrested on 10.10.2002. Accused No.1 was referred to the Area Hospital, Medak, for Potency test and after completion of investigation, the police laid the charge sheet. 3. The trial Court framed the following charges against the accused: “Firstly: That you on or about 05-10-02 at about 9. a.m. Kum. Battu Lalitha alone left the house for Konapur village to see her cousin and when she reached out-skirts of Paithra village you A-1 carried her forcibly to Bengalgram field belongs to Nimmaanagari Durgareddy and committed rape on her, and thereby committed an offence punishable under Section 376 IPC and within my cognizance. Secondly: That you on or about 05-10-02 at about 9. a.m. while she was proceeding ahead you accused A-2 caught-hold of her hand and attempted to rape her in the out-skirts of Konapur village, intending to outrage her modesty and thereby committed an offence punishable under Sec.354 IPC and within my cognizance. Lastly: That on or about 05-10-02 at about 9. a.m. you A-1 accused persons assault Kum.Battu Lalitha belonging to a Scheduled Caste committed rape, and you A-2 with intent to out rage her modesty and thereby committed an offence punishable under Sec.3(1)(xii) and Sec. 3(1)(xi) of SC/ST. P.A. Act. within my cognizance.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P16. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, upon considering the evidence on record, found the Accused No.1 found guilty of the offence punishable under Section 376 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and Section 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act”) and accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.500/-, in default to suffer Simple Imprisonment for a period of five months for the offence punishable under Section 376 I.P.C.; and to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.200/-, in default to suffer Simple Imprisonment for a period of two months for the offence punishable under Section 3 (1) (xii) of the Act. The trial Court found Accused No.2 was found guilty for the offences punishable under Section 354 I.P.C. and Section 3 (1) (xi) of the Act and accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.200/-, in default to suffer Simple Imprisonment for a period of three months for the offence punishable under Section 354 I.P.C.; to undergo Rigorous Imprisonment for a period of six months and to pay a fine of Rs.100/-, in default to suffer Simple Imprisonment for a period of one month for the offence punishable under Section 3 (1) (xi) of the Act, and both the sentences against the appellants were ordered to run concurrently. Challenging the same, the present Criminal Appeals are filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused for the charges levelled against them and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel appearing for the appellants contended that a false case is foisted against the accused; that there is absolutely no evidence to show that P.W.1, the victim girl, was aged about 13 years; that the Age Determination Test would reveal that P.W.1 was aged about 16 years; that if really, rape was committed on P.W.1, she should have sustained some external or internal injuries, but P.W.10-doctor did not find any external or internal injuries, thereby suggesting that no rape was committed; that if really, rape was committed, the probable conduct of P.W.1 was to rush to the village which is nearer to the place of incident and inform about the incident to her parents instead of going to Konapur Village which is far off from the scene of occurrence; that the semen and spermatozoa present on the Vaginal smear taken from P.W.1 are not shown to be that of the accused, and therefore, it is not safe to place any reliance on the evidence of P.W.1 alone. Hence, he prays to set aside the convictions and sentences recorded by the trial Court. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 is very clear that she was subjected to rape by Accused No.1 and that Accused No.2 tried to outrage her modesty; that there is no enmity for P.Ws.1 and 2 to foist a false case of this nature against the accused; that the evidence of P.W.1 coupled with the medical evidence would clearly establish that rape was committed on an unmarried girl; that there is nothing unusual for P.W.1 to proceed to Konapur Village to get the money to purchase control rice because the parents of P.W.1 left the house for coolie work, and so, there is nothing unnatural or unusual for P.W.1 to go to Konapur Village; that the trial Court, after elaborate consideration of evidence on record, rightly found the accused guilty, and accordingly convicted and sentenced them, and there are no grounds to interfere with the same. 10. The essential ingredients to constitute the offence punishable under Section 376 I.P.C. are as follows: Punishment for rape: (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. 11. Section 354 I.P.C. deals with Assault or criminal force to woman with intent to outrage her modesty. The essential ingredients to constitute the offence punishable under Section 354 I.P.C. are as follows: (a) A person- (i) assaults or, (ii) uses criminal force to a woman. (b) He intends or knows it to be likely that he will thereby outrage her modesty. 12. The entire case rests upon the solitary testimony of P.W.1. The alleged incident took place near the redgram field of Nimmala Durga Reddy. When the police observed the scene of occurrence, they did not find any incriminating material. Considering the place of incident, it is not possible for any witness to see the incident. When a case rests upon the solitary testimony, it must be unimpeachable, true, trustworthy and reliable. If the evidence of P.W.1 is put in the category of wholly reliable, and her evidence is in corroboration with the medical evidence, there is no difficulty in accepting her evidence to base a conviction. 13. According to P.W.1, the victim girl, she was aged about 13 years. Whereas, P.W.12-the Investigating Officer produced Ex.P15-Age Certificate issued by the competent medical officer. P.W.1 was examined by the Assistant Professor, Department of Forensic Science Laboratory and Ex.P15-Age Determination Certificate was issued. According to Ex.P15, P.W.1 was aged about 16 years. Whereas, the specific evidence of P.W.1 is that she was aged about 13 years at the time of incident. The age of P.W.1 was noted as 13 years in Ex.P10-Medical Certificate. 14. When P.W.1 was examined on 07.10.2002 at about 9.30 a.m. by P.W.10-doctor, P.W.10 found no external injuries and found semen and spermatozoa on vaginal smear taken from P.W.1 and were sent to the Forensic Science Laboratory for examination. After receipt of the Forensic Science Laboratory Report, which is marked as Ex.P11, P.W.10 gave a final opinion stating that human semen and spermatozoa were found on the Vaginal smear taken from P.W.1 and hence, the occurrence of rape cannot be ruled out. P.W.10 categorically stated that the age of P.W.1 was 13 years. P.W.10 noted the age basing on secondary sexual characters of the victim and also on the statement of her mother. P.W.10 also stated that P.W.1 might be habituated to sexual intercourse. Therefore, the medical evidence would clearly go to show that P.W.1 was subjected to rape. If P.W.1 is a minor girl less than 16 years of age as on the date of commission of offence, the question of consent may not arise. Even assuming that P.W.1 was aged more than 16 years, if rape was committed against her will, then it is an offence punishable under Section 376 I.P.C. Simply because the doctor who examined P.W.1 did not find any injuries either external or internal, it does not mean that P.W.1 was not subjected to rape. Some times when a rape is committed, the possibility of not sustaining any external or internal injuries cannot be ruled out. Therefore, the medical evidence leaves no room to doubt that the victim-P.W.1 was subjected to rape. 15. Now the question is whether Accused No.1 has committed rape on P.W.1? P.W.1 has categorically stated that at about 9.00 a.m., while she was going to the house of P.W.4, her junior paternal uncle, which is at Konapuram Village, for money to purchase control rice and when she reached near the fields of Durgareddy, Accused No.1 came behind her suddenly and dragged her into the redgram fields, and that when P.W.1 was weeping, Accused No.1 closed her mouth and lifted her into the fields, and thereafter committed rape on her and nobody was present there. P.W.1 appears to be a young girl as she is less than 16 years. In the course of time, her marriage has to be performed by her parents. Though Accused No.1 is resident of the same village of P.W.1, there is no enmity or ill feelings between the family of Accused No.1 and the family of P.W.1. Except giving a suggestion that in order to make a false claim, she deposed falsely, which is denied, nothing is elicited to discredit her testimony. For the sake of Rs.25,000/- that may be given by the Government, P.W.1 would not have gone to the extent of saying that Accused No.1 committed a rape on her. P.W.1 will be looked down in the society and nobody would come forward to marry P.W.1. P.W.1 has to suffer this agony through out her life. So, in such circumstances, false implication of Accused No.1 in the case of this nature may not arise unless there are bitter ill feelings between the parties. There was no prior enmity between Accused No.1 and P.W.1 or between P.W.2 and the father of Accused No.1. There is absolutely no reason for P.W.1 to foist a false case of this nature against accused. 16. It is further case of P.W.1 that after Accused No.1 committed rape on her, while she was proceeding towards Konapuram Village, Accused No.2 caught hold of her hand and tried to spoil her. Similarly, there was no other reason for P.W.1 to speak false against Accused No.2. There was no prior enmity between Accused No.2 and P.W.1. They belong to different castes. Therefore, the contention of the appellants that they were falsely implicated is devoid of merit and untenable. 17. Coming to the behaviour of P.W.1 in not returning back to their village which is near the place of the incident, she might be under the impression that the parents might have gone to coolie work. As a matter of fact, P.W.1 has categorically stated that her parents left to coolie work, and therefore, she proceeded to Konapuram Village where P.W.4, her uncle, was residing. So, immediately after reaching Konapuram Village, P.W.1 informed about the same to her uncle-P.W.4. P.Ws.4 and 1 returned to Pythara village. The parents of P.W.1 and P.W.4 went to the house of Accused No.1 and questioned Accused No.1. Then the father of Accused No.1 stated that they can do whatever they like. Thereafter, they went to the house of P.W.3-Surpanch. P.W.3 expressed her inability and directed P.W.2 to lodge a complaint. By the time as it was sunset, they did not go to the Police Station. On the next day, they went to the Police Station and lodged a report. 18. No doubt, there was a delay of one day in lodging the complaint, but the delay was not taken with a view to implicate the accused falsely. The reason for the delay has been properly explained. Even otherwise in a case of this nature, parents of victim would be hesitant in rushing to the Police Station to lodge a complaint, because it would affect the prestige of the family. Therefore, after thinking over the same, they went to the Police Station and lodged a report. In such view of the matter, it cannot be said that the delay was taken with a veiw to implicate the accused. 19. The learned counsel appearing for the appellants relied upon a decision reported in Tameezuddin alias Tammu v. State of (NCT) of Delhi[1], wherein it is held thus: “In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not co-related to the appellant as his blood samples had not been taken.” In that case the medical evidence does not indicate the commission of rape and persons present near the commission of offence were not examined. Considering the background of the case, the accused therein was acquitted. But, the above decision has no application to the present facts of the case. 20. Similarly, the learned counsel appearing for the appellants relied upon a decision reported in Bibhishan v. State of Maharashtra[2], wherein it is held thus: “We have gone through the judgment of both the courts below and also perused the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial court has not correctly appreciated the evidence and has wrongly convicted the appellant- accused. The accused who has been charged under Section 376 read with Section 511 IPC is entitled to benefit of doubt.” That is a case where there was no sign of semen on the private parts of the body of the victim girl. But in this case, the vaginal swaps sent to the Forensic Science Laboratory contained semen and spermatozoa and P.W.10-doctor opinioned that P.W.1 was subjected to rape. 21. Similarly, the learned counsel appearing for the appellants relied upon a decision reported in Public Prosecutor, High Court of A.P. v. Pamarthi Venkataramana @ Ramana, wherein it is held thus: “It is now well-settled principle of law that the conviction can be based on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The woman or girl subjected to sexual assault is not an accomplice to the crime. But, a victim of another person’s lust and it is improper and undesirable to test her evidence with certain amount of suspicion treating her as if she was an accomplice.” There is no dispute about the proposition of law laid down by this Court. 22. The other contention is that on the way to Konapuram Village, P.W.1 did not inform to anybody though some persons asked her as to why she was weeping. It is not a happy incident where P.W.1 can reveal the same to unknown persons. In all probability, P.W.1 has narrated the incident to P.W.4 who is no other than her junior paternal uncle. Then P.W.4 along with P.W.1 returned to Pythara Village and informed the same to the parents of P.W.1. Therefore, not informing the persons who came into contact on the way to Konapuram Village by P.W.1 about the incident, is not a ground to disbelieve the testimony of P.W.1. 23. P.W.5-Civil Assistant Surgeon, Area Hospital, Medak, examined Accused No.1 to test his potency and issued Ex.P3-Medical Certificate opining that there was nothing to suggest that Accused No.1 was not capable of performing the sexual act. P.W.5 did not find any external injuries on the penis of Accused No.1. 24. After going through the evidence of P.W.1, there is no reason to doubt the veracity of P.W.1. There is absolutely no reason for her to speak false against the accused. It is not the case of the prosecution that there was a love affair between Accused No.1 and P.W.1 prior to the incident. It is not the case of P.W.1 that she voluntarily accepted to have a sexual intercourse with Accused No.1, because Accused No.1 dragged her into redgram fields of Nimmala Durga Reddy and while she was weeping, he closed her mouth and committed rape on her. Therefore, in the absence of enmity, the evidence of P.W.1 is convincing and trustworthy. The evidence of P.W.1 is completely corroborated with the evidence of P.W.10-doctor. The trial Court, upon considering the evidence on record, rightly found the accused guilty and there are absolutely no grounds to interfere with the same. Hence, the Criminal Appeals are devoid of merit and are liable to be dismissed. 25. Accordingly, both the Criminal Appeals are dismissed confirming the judgment, dated 05.04.2004, in SC.ST Sessions Case No.4 of 2003, on the file of the learned Special Judge for Trial of Offences under SC/ST (PoA) Act, Sangareddy. ______________ (K.C.BHANU, J) Dated: 17th November, 2009. KL [1] AIR 2009 SCW 6219 [2] 2008 (3) Supreme Court Cases (Cri) 163