IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL NO.585 OF 2007. Between:- Gandikota Veeraiah .. Appellant/Accused And The State of A.P., rep.by S.D.P.O., Bapatla Town P.S., Guntur District, through Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent/Complainant. JUDGMENT: This appeal is directed against the Judgment, dated 18.01.2007, in Sessions Case No.32/S/2006 on the file of the learned Special Sessions Judge-cum–IV Additional Sessions Judge, Guntur, wherein the appellant herein/accused was found guilty of the offences under Sections 376 and 304 Part-II IPC and was sentenced to undergo Rigorous Imprisonment for a period of seven years and pay fine of Rs.500/- (Rupees five hundred only) for the former and Rigorous Imprisonment for a period of five years for the latter offence. 2. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent-State. Perused the record. 3. The S.D.P.O., Bapatla filed a charge sheet against the accused before the learned II Additional Munsif Magistrate, Bapatla in Crime No.54 of 2005 of Bapatla Town Police Station alleging in brief as follows: The complainant – P.W.1 and the accused are residents of Saradapuri Colony, Bapatla and P.W.1 and her daughters-P.Ws.2 and 3 belong to Hindu Mala Community. The deceased-S.Bijetha was the daughter of P.W.1 and sister of P.Ws.2 and 3. P.W.1 was eking out livelihood by selling flowers at Old Bus Stand, Bapatla. The deceased was suffering from nervous weakness. On 12.06.2005, P.W.1 went to the Bus Stand for selling flowers as usual leaving her three daughters–P.Ws.2 and 3 at home. At about 6 p.m., P.W.3 informed P.W.1 that the accused committed rape on the deceased and gave Rs.10/- and went away. P.W.1 immediately rushed to home and enquired with the deceased Bijetha, who narrated the incident to P.W.1. At that time, P.W.4–a neighbour was also present. P.Ws.1 to 4 went to the house of accused and found him absconding. On 13.06.2005, the deceased died at 10 p.m. On 14.06.2005, P.W.1 gave a complaint – Ex.P-1 to the police and the same was registered as First Information Report–Ex.P-12 in Crime No.54 of 2005. After completion of investigation and after receiving the Post Mortem certificate and R.F.S.L. report, charge sheet was filed for the offences under sections 376, 302 I.P.C. and 3(1)(x) of S.Cs., and S.Ts., (Prevention of Atrocities) Act (for short, ‘The Act’). 4. The accused denied the offence and pleaded not guilty for the charges framed against him. In support of their case, the prosecution examined P.Ws.1 to 11 and marked Exs.P-1 to P-15 and M.Os.1 to 3. No oral or documentary evidence is adduced on behalf of the accused. 5. On a consideration of the evidence available on record, the learned Special Sessions Judge found the accused not guilty of the offences under Section 3(2)(v) of the Act and Section 302 I.P.C. The accused was however found guilty of the offences under Sections 376 and 304 Part-II I.P.C. and was convicted for the same and sentenced as stated above. Aggrieved by the said conviction and sentence, the present appeal is filed. 6. The learned counsel for the appellant/accused would mainly contend that there is no legally acceptable evidence on record to convict the accused inasmuch as no complaint was lodged during the lifetime of the deceased and no dying declaration was also recorded from her and the evidence of P.Ws.1 to 4 is hearsay. 7. The learned Additional Public Prosecutor, on the other hand, would submit that the testimony of P.Ws.1 to 4 would amply establish the various circumstances that took place immediately before and after the occurrence duly connecting the accused with the alleged offence and the testimony coupled with the unimpeachable medical evidence on record, would establish the guilt of the accused. 8. According to the prosecution, on 12.06.2005, when P.W.1 was away from home having gone to the Bus Stand to sell flowers as usual leaving her three daughters–the deceased, P.Ws.2 and 3 at home, the deceased, on account of earlier acquaintance with the accused, who was also a resident of the same locality, went to his house again in the usual course to play with the children and the accused has committed the offence of rape against her. 9. The testimony of P.W.2, who is the sister of the deceased, would go to show that on that day, she was present in the house and the deceased went to the house of the accused to play with the children and the deceased returned at 5.00 p.m. weeping and informed P.W.2 that the accused committed rape on her forcibly. It is also in her evidence that while the deceased was narrating the incident, P.W.4 and P.W.3 were also present and she sent Mariyamma-P.W.3 to the Bus Stand to inform her mother–P.W.1. P.W.1 testified that on coming to know of the incident through her third daughter–Mariyamma–P.W.3, she rushed to home and enquired with the deceased, who revealed that the accused took her to the vacant house, opposite to his house, and committed rape on her and gave Rs.10/-. 10. P.W.3 corroborated the testimony of P.Ws.1 and 2. No doubt, P.W.1 is the mother and P.Ws.2 and 3 are the sisters of the deceased, but when their evidence is not discredited in any manner, the same cannot be rejected on the sole ground that they are closely related to the deceased. There is absolutely no reason as to why P.Ws.1 to 3 would depose falsely against the accused and that too, making an allegation which would have adverse impact on the honour and esteem of the deceased, who is none else than the daughter of P.W.1. That apart, the testimony of P.Ws.1 to 3 is duly corroborated by the evidence of P.W.4, who is an independent witness and a neighbour in the locality as she also deposed that in her presence, the deceased narrated the incident to P.Ws.1 to 3 and herself. 11. Having regard to the very nature of the offence alleged, no direct evidence to prove the occurrence can be accepted as the offence of this nature would normally be committed by the accused after ensuring secrecy and privacy. The conduct of the deceased and the accused, immediately after the occurrence is therefore a relevant circumstance to be taken into consideration. The testimony of P.Ws.2 and 3 would go to show that on that evening, the deceased has gone to the house of the accused which is situated nearby. Their evidence also shows that at about 5 p.m., the deceased returned home weeping and narrated the incident not only to them but also to mother–P.W.1 and neighbour– P.W.4. No doubt, P.W.1 has not given any complaint to the police immediately after the occurrence. It is in the evidence of P.Ws.1 to 4 that immediately after the narration of the incident by the deceased, they all went to the house of the accused and found him absconding. Thereafter, the matter was reported to P.Ws.6 and 7–the elders in the colony. It is in the evidence of P.Ws.6 and 7 that they advised P.W.1 not to give any police report as P.W.1 was having two daughters and the prestige of the family is also involved and as such, P.W.1 did not give any report to the police as they promised to enquire with the accused. It is also in their evidence that the accused was absconding and their efforts did not make a headway. In the meanwhile, the deceased died on the next day i.e., on 13.06.2005 at about 10 p.m. Thereafter, P.W.1 gave complaint–Ex.P-1 on the morning of 14.06.2005. The reason for not giving the complaint immediately after the occurrence was stated in the complaint–Ex.P-1. The intervention of P.Ws.6 and 7, who prevailed upon P.W.1 not to give a complaint immediately is also referred to in Ex.P-1. Thus, the delay in giving the complaint – Ex.P-1 is explained even at the earliest point of time. It is not as though it was sought to be explained for the first time at the time of giving evidence. 12. In view of the evidence of P.Ws.6 and 7, duly corroborating the testimony of P.W.1 explaining the delay in giving the complaint, it cannot be said that there was any deliberate or purposeful delay in giving the complaint. The question of recording the statement or dying declaration from the deceased did not simply arise as no complaint was in fact given till after the death of the deceased. The evidence on record sufficiently established the relevant circumstances, namely that the deceased went to the house of the accused on that evening and returned home shortly thereafter weeping and disclosed the incident to P.Ws.1 to 4 and immediately thereafter P.Ws.1 to 4 went to the house of the accused and found him absconding and reported the matter to P.Ws.6 and 7 on the same day. The above evidence is certainly relevant and admissible coming within the purview of Section 6 of the Indian Evidence Act, as the same is so closely associated with the offence in time, place, circumstance and spontaneity so as to form part of the same transaction. 13. Further, the testimony of P.Ws.1 to 4 regarding the occurrence is duly corroborated by the medical evidence on record. P.W.5, the then Civil Assistant Surgeon, Area Hospital, Bapatla, who conducted Post Mortem over the body of the deceased and issued Post Mortem Certificate–Ex.P-3, found that hymen was not in tact, tear of the vagina was present on the posterior wall, some loops of intestine are traced, congestion and pus formation was present. She also found external injuries. She has preserved the vaginal swabs, vaginal smears and other items for examination by R.F.S.L and after receiving the reports–Exs.P-5 and P-6 from the RFSL, she gave final opinion that the deceased would have died due to haemorrhagic and septicaemid shock due to perforated injury of posterior fornix of the vagina. 14. Admittedly, the deceased was unmarried girl aged about seventeen years. The medical examination of the deceased as revealed from the post mortem report–Ex.P-3 and the testimony of P.W.5 would certainly support the case of the prosecution that the deceased was subjected to forcible sexual intercourse by the accused. The existence of perforated injury on the posterior fornix of the vagina, coupled with the fact that the hymen was not in tact, would clearly establish the commission of rape on the deceased. In fact, P.W.5 also testified that the perforated injury is possible by forcible rape. The accused was also subjected to potency test and the report–Ex.P-7 would show that there is no evidence to suggest that the accused is impotent. The fact that semen and spermatozoa were not detected on M.Os.1 to 3, seized from the body of the deceased, is of no consequence as the seizure of M.Os.1 to 3 by P.W.11 was long after the occurrence and they were in fact not seized from the deceased but they were produced by P.W.1 as per the evidence of P.W.1. The inquest report – Ex.P-11 regarding the cause of death also supports the case of the prosecution that the deceased died on account of hemorrhage due to the forcible rape committed on her by the accused. 15. Under those circumstances, the learned Special Sessions Judge has, on proper appreciation of the evidence available on record, rightly held that the accused, who is a neighbour of the deceased, taking advantage of the fact that the deceased was suffering from nervous weakness enticed her when she came to his house, unsuspecting, to play with the children in the usual course, and took her to a secluded place opposite to his house and committed the heinous offence of rape on her taking advantage of her helpless and hapless condition. The evidence on record is held sufficient to establish the guilt of the accused in respect of both the offences under Sections 376 and 304 Part II IPC. As the accused did not intend to cause the death of the deceased nor had any motive to cause death, the trial Court rightly convicted him for the offence under Section 304 Part II I.P.C. as the act committed by him amounts to culpable homicide not amounting to murder. In the circumstances, the conviction of the accused for the offences under Sections 376 and 304 Part-II I.P.C. is held not liable to be interfered with. 16. Having regard to the nature of the offences alleged and the manner in which the heinous offence is committed, it cannot be said that the sentence of Rigorous Imprisonment for seven years and fine of Rs.500/- in default sentence of Simple Imprisonment for fifteen days imposed for the offence under Section 376 I.P.C. and sentence of Rigorous Imprisonment for five years imposed for the offence under Section 304 Part-II I.P.C., is excessive or unreasonable. 17. In these circumstances, the conviction and sentence as recorded by the trial Court against the appellant/accused for the above offences are confirmed. 18. In the result, the Criminal Appeal is dismissed. _______________________ G.V.SEETHAPATHY, J 11th September, 2009 AMD/TSY