THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH :: HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF TWO THOUSAND AND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.948 of 2005 Between: Desiboina Gangadhara Rao S/o Joshi Rao, aged 22 years, R/o Buddavaram village Gannavaram Mandal, Krishna district. … Appellant/accused And: The State, rep. by Public Prosecutor High Court of Andhra Pradesh, Hyderabad … Respondent. HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.948 of 2005 JUDGMENT: This appeal is directed against the judgment dated 13.05.2005 in SC No.241 of 2003 on the file of the Sessions Judge, Mahila Court, Vijayawada, wherein, the appellant/accused was found guilty of the offence under Sections 354 and 506(2) IPC and convicted and sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs.2,000/-, in default, to suffer simple imprisonment for six months for the offence under Section 354 IPC and sentenced to undergo rigorous imprisonment for a period of six months for the offence under section 506(2) IPC. 2. Heard the learned counsel for the appellant-accused and the learned Additional Public Prosecutor for the respondent-State. Perused the record. 3. The Sub Inspector of Police, Gannavaram PS filed a charge sheet against the accused in Cr.No.321 of 2002 alleging in brief is as follows: The accused is a resident of Buddavaram village of Gannavaram Mandal. The complainant-PW.1 is a resident of Ajjampudi village. On 28.09.2002 at 10.00 a.m. PW.1 was standing near Gandhi statue center, after purchasing vegetables and rice. The accused came in an auto and offered to take the complainant to Ajjampudi village; that on the way, the accused took the complainant t o Allapuram donka road and demanded her to satisfy his lust, for which the complainant refused. The accused beat the complainant, pushed her in the auto and attempted to kill her. Meanwhile, Venkateswara Rao-LW.4 came there and on seeing him, the accused started the auto and took the complainant to her house and left her there, threatening that he would kill her if she discloses the incident to any one. The complainant gave a report Ex.P.1 to Gannavaram PS and the same was registered by PW.4 as FIR Ex.P.3 in Cr.No.321 of 2002. PW.3-Medical Officer of Government Hospital, Gannavaram treated the complainant and issued wound certificate Ex.P.2 opining that PW.1 sustained simple injuries. The accused was arrested by PW.4 on 01.10.2002. After completion of the investigation, PW.4 filed charge sheet against the accused for the offences under Sections 354 and 307 IPC. 4. The learned IV Metropolitan Magistrate, Vijayawada took cognizance of the same in PRC No.24 of 2003 and later committed the accused to the Court of Sessions. The accused appeared before the learned Sessions Judge, Mahila Court, Vijayawada in SC No.241 of 2003 and pleaded not guilty for the charges framed under Sections 354 and 506(2) IPC. 5. In support of their case, the prosecution examined PWs.1 to 4 and marked Exs.P.1 to P.4. No oral evidence was adduced by the accused, but Exs.D.1 and D.2 portion of the statements of PWs.1 and 2 recorded under section 161 Cr.P.C. were marked. 6. On a consideration of the material available on record, the learned Sessions Judge found the accused guilty of the offences under Section 354 and 506(2) IPC and convicted and sentenced the accused as stated above. Aggrieved by the said conviction and sentence, the appellant-accused preferred the present appeal. 7. The case of the prosecution is that on 28.09.2002 while PW.1-victim girl was waiting near Gandhi statute center to go to her village Ajjampudi after purchase of vegetables and rice, the accused came there in an auto and offered to take her in the said auto and on the way he diverted the auto towards Allapuram donka road and demanded the complainant to satisfy his lust and outraged her modesty by pushing her in the back seat of the auto and tried to remove her clothes and that PW.1 resisted the same. Meanwhile, LW.4 Venkateswara Rao came there and on seeing him, the accused started the auto and drove the same in speed and dropped PW.1 at her house and threatened to kill her if she reveals the incident. Prosecution relies on the evidence of PW.1 victim girl and her mother- PW.2. 8. PW.1 testified that on that day after purchasing the sundry articles at Gannavaram, she boarded the auto of the accused and on the way, accused stopped the auto by the side of the bushes near Allapuram donka road and came to the back seat and pushed her aside and beat her on the cheeks and removed her jacket and caught hold of her hands to her back and sat on her and meanwhile, a person going on the way came and enquired as to what was happening and the accused then drove the auto towards the village and threatened her not to divulge the incident to any one, orelse he would kill her. It is also in her evidence that after coming home, she informed the incident to her mother and later she gave a report to the police. 9. PW.2-mother of PW.1 corroborated the evidence of PW.1 by deposing that the accused is a known person and he was an auto driver and on that day, her son returned home at 12.30 noon and told her that PW.1 boarded the auto of the accused along with sundry articles and PW.1 did not reach home. PW.2’s son again went on the cycle in search of PW.1 and found her coming in the auto. She further deposed that PW.1 came home in the auto of the accused and she was weeping and when she enquired, PW.1 continued to weep and after repeated requests in the evening PW.1 revealed that the accused took her to Allapuram donka road and stopped the same by the side of the bushes and came to the back seat and sat on her and removed her blouse and langa and assaulted on her cheeks and in the meanwhile, when a passerby came there, accused left her and brought her to the house. It is also in her evidence that thereafter at about 9.30 p.m. herself and Pw.1 went to the police station and gave report Ex.P.1. 10. PW.4 Sub Inspector of Police testified that on 28.09.2002 at about 9 p.m. PWs.1 and 2 came to the police station and gave Ex.P.1 complaint and he registered it as Ex.P.3 in Cr.No.321 of 2002 and examined and recorded their statements and sent PW.1 to the Government Hospital for medical examination. He visited the scene of offence and prepared rough sketch Ex.P.4. 11. Exs.P.1 and 3 also shows that the complaint was given on 28.09.2002 at 9 p.m. and the same was registered immediately. The learned counsel for the appellant would contend that the incident is said to have occurred at 10 a.m., whereas the complaint was given at 9 p.m. and the delay of about 12 hours is not duly explained. In the complaint itself, PW.1 stated that while dropping her at the house, accused threatened not to divulge the incident to any one or else he would kill her, but, however, she informed the incident to her mother [PW.2) and she brought her to the police station. The testimony of PW.2 would disclose that PW.1 was weeping and was not revealing the cause and it was only after repeated efforts, in the evening PW.1 disclosed the incident and immediately thereafter PWs.1 and 2 went to the police station, which is about 4 KMs away from their house, as can be seen from the evidence of PW.4. It is to be noted that PW.1 is a young and unmarried girl, aged 16 years and the trauma and mental agony she suffered on account of the incident coupled with the threats given by the accused would certainly restrain PW.1 from rushing to the police station immediately after the incident. It is only after repeated efforts made by PW.2 to know the cause of her weeping that PW.1 came out in the evening and disclosed as to what had happened. 12. Having regard to the nature of the offences alleged and the negative impact which would have left on the mind of PW.1, a young and unmarried girl, it cannot be said that there was any delay, that too inordinate or unexplained delay in the matter of giving complaint. If really, PWs.1 and 2 wanted to foist a false case against the accused, it does not stand to reason as to why they should mention the occurrence as 10 a.m., leaving a gap of 12 hours between the time of occurrence and giving the complaint. In fact, there is absolutely no reason or motive suggested or elicited in the cross-examination of PWs.1 and 2 as to why they should give a false complaint against the accused, that too alleging an offence of this nature, involving the self-esteem and honour of PW.1, a young and unmarried girl and persist to give false evidence against accused. There is absolutely no reason as to why PW.1 should make false allegation to the extent of alleging that accused forcibly removed her jacket and langa and demanded her to satisfy his lust and thereby outraged her modesty, if really the incident is not true. 13. Learned counsel for the appellant-accused would contend that there is no direct evidence to prove the incident and Venkateswara Rao, a passerby cited as LW.4 is not examined. It is in the evidence of PW.4-Sub Inspector of Police that the said Venkateswara Rao could not be examined, as he was not traceable. The accused resorted to commit offence only after ensuring that there was no one around. It is in the evidence of PW.1 that the accused took the auto by the side of bushes and there he stopped the auto, came to the back seat and committed the offence. When an offence of this nature is committed after duly ensuring privacy and secrecy, and taking advantage of the loneliness of the victim, no direct evidence to prove such incident in the form of eyewitness can be expected. No doubt, prosecution alleges that the said P.Venkateswara Rao, a passerby, came there and on seeing him, accused again started the auto and drove it off. Simply because the said Venkateswara Rao is not examined, the testimony of PW.1, which is un-discredited and reliable cannot be ignored. 14. It is well-established proposition that the sole testimony of the prosecutrix in an offence like the present one, can form basis for conviction, if such testimony is found to be truthful and reliable. 15. In ‘State of H.P., vs. Gian Chand[1]’, the Apex Court held as follows: “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 may be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 16. In ‘State of H.P., vs. Mange Ram[2]’ the Apex Court held as follows: “In view of the evidence of prosecutrix (PW.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.” 17. In the present case also, the testimony of PW.1 does not suffer from any infirmities. No material contradictions or omissions are elicited in her evidence. The contradictions in the statement of PWs.1 and 2, marked as Exs.D.1 and D.2, are minor in nature, which do not go to the root of the prosecution case. It is again well established that such minor contradictions, which do not affect the core of the prosecution case, and which are minor in nature and which are bound to occur when the witness is giving evidence years after the occurrence, they cannot be given undue importance or much weight so as to throw away the prosecution case, when the same is otherwise substantiated by the other evidence available on record. As rightly observed by the learned Sessions Judge, discrepancies projected through Exs.D.1 and 2 as to who brought rice and vegetables to home are not material so as to affect the veracity of PWs.1 and 2. The testimony of PW.1 which is free from any infirmities or material contradictions and which is consistent with her earliest version in Ex.P.1 complaint was, therefore, rightly held to be reliable and truthful by the trial Court. In fact, the testimony of PW.1 is corroborated by the circumstantial evidence of PW.2, who also testified as to what PW.1 has disclosed to her regarding the incident. 18. That apart, the medical evidence of PW.3-Deputy Civil Surgeon, Government Hospital, Gannavaram, who examined PW.1 on the same night of the incident found two abrasions on the left scapula region, which are red and fresh and one abrasion on the back of the neck, which is red and fresh, besides pain and tenderness on the right fore-arm, and the injuries are below 12 hours. The testimony of PW.3 coupled with Ex.P.2 wound certificate also corroborates the testimony of PW.1 and supports the prosecution case as to the time of the offence and also cause of injuries and their location on the person of PW.1. The evidence of PW.1 that the accused used criminal force against her in the course of commission of the offence is duly corroborated by the medical evidence on record. As the accused was a known person, there was no dispute regarding the identity of the offender. The evidence on record clearly establishes the offences under Sections 354 and 506(2) IPC for which the accused was found guilty and convicted by the trial Court. The conviction of the accused for the above said offences does not, therefore, call for any interference by this Court. 19. Regarding the sentence, having regard to the gravity of the nature of the offences alleged, rigorous imprisonment for five years and fine of Rs.2,000/- imposed for the offence under Section 354 IPC and rigorous imprisonment for six months imposed for the offence under section 506(2) IPC cannot be considered as either excessive or unreasonable. On the other hand, offences of this nature once held proved call for a deterrent sentence. In the circumstances, the conviction of the accused for the offences under Sections 354 and 506(2) IPC and imprisonment and fine as recorded by the trial Court, are confirmed. The learned Sessions Judge, Mahila Court, Vijawayada shall issue necessary warrant against the appellant- accused for his apprehension to serve the remaining portion of sentence. 20. In the result, the criminal appeal is dismissed. _______________________ G.V.SEETHAPATHY, J Date: 17.09.2009 BSS [1] 2001 SCC 2075 [2] AIR 2000 SC 2798