IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.2006 OF 2004 Between: Naini Bhoom Reddy ..... Appellant/Accused AND The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent The Court made the following: JUDGMENT: The Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 26.03.2004, in Sessions Case No.664 of 2002, on the file of the learned Assistant Sessions Judge, Sircilla, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Section 376 (f) of the Indian Penal Code, 1860 (for short, “I.P.C.”), and accordingly convicted and sentenced him to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for a period of six months. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: On 05.08.2001 at about 10.00 a.m., P.W.5, who is the father of P.W.1-the victim girl, along with P.W.2, who is his wife, went to field for work, leaving P.W.1, aged about six years. According to P.W.1-the victim girl, the accused called her and her younger sister on the pretext of giving guava fruit. The accused gave a guava fruit to the younger sister of P.W.1 and asked her to go away. When P.W.1 left the house of the accused, the accused with a pretext to give guava fruit, took P.W.1 inside his house and closed the doors. The accused removed his lungi and also underwear. The accused lifted the langa of P.W.1 and laid her on the cot and committed rape on her. Thereafter, she came to her house by weeping and informed to her mother. There was a bleeding from her private parts. Her parents took her to the hospital. Her father lodged Ex.P6-complaint with the police. The police registered a case. The girl was examined by P.W.4-the doctor and found injuries on the private parts. The police observed the scene of occurrence and seized the clothes of the accused and the material objects were sent to the Forensic Science Laboratory. After receipt of report from the Forensic Science Laboratory, P.W.9-the Investigating Officer, filed the charge sheet for the offence punishable under Section 376 (f) I.P.C. against the accused. 3. The learned Assistant Sessions Judge, Sircilla, framed the following charge against the accused: “That LW.1 by name Gurjala Thirupathireddy s/o.Chandra Reddy R/o.Cheerlavancha stated that he alongwith his wife LW.3 went to their fields by leaving their daughters victim by name Padma aged about 6 years, and another daughter Lavanya aged about 3 years at home. They returned home by 6 P.M. and found his elder daughter was weeping and blood was coming form her private parts. On enquiry it has come out that you accused had sexual intercourse with victim when she cried, you left her there and escaped and thereby you committed an offence punishable Us 376 (F) I.P.C. within my cognizance.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P11 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, accepting the evidence of P.W.1 coupled with the medical evidence, found the accused guilty of the offence punishable under Section 376 (f) I.P.C. and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offence with which he was charged and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellant contended that there was no semen and spermatozoa present on the clothes of the accused or the victim; that at best, it would amount to an attempt to commit rape and therefore, he prays to set aside the conviction and sentence recorded by the trial Court against the accused. 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 the accused committed rape on her; that mere penetration is sufficient to constitute an offence of rape; that in view of the injuries on the private parts of the body of P.W.1, it can be said that she was subjected to rape, and hence, she prays to dismiss the Criminal Appeal. 10. Section 376 I.P.C. reads thus: “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 also 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. P.W.1 is the victim girl who is aged about 6 years. The evidence of P.W.1 would go to show that the accused called her and her younger sister on the pretext of giving guava fruit. The accused gave a guava fruit to the younger sister of P.W.1 and asked her to go away. When the younger sister of P.W.1 left the house of the accused, the accused with a pretext to give guava fruit, took P.W.1 inside his house and closed the doors. The accused removed his lungi and also underwear. Thereafter, the accused lifted the langa of P.W.1 and laid her on the cot and committed rape on her. Thereafter, she came to her house by weeping and informed the same to her mother who took her to the Hospital at Sircilla. Except giving a suggestion that she is deposing falsehood, nothing has been elicited to discredit the testimony of P.W.1. Practically, the evidence of P.W.1 remained unchallenged. She was aged about 6 years and there was absolutely no reason for her to speak false against the accused. Similarly, there were no disputes between the accused and P.W.5 (father of P.W.1) so as to implicate him falsely in a case of this nature. 12. The evidence of P.W.2 would go to show that she returned to the house after attending to the work at about 5.00 p.m. and found P.W.1 in a pool of blood and when P.W.1 informed that the accused committed rape on her, P.W.5 lodged a complaint with the police. P.W.4 is the doctor who examined P.W.1, found abrasion on the left thigh 4 x ½ inches, the valva was congested, hymen was congested with a small tier of ¼ x ¼ c.m. in size. Basing on Ex.P4-Forensic Science Laboratory Report, dated 12.12.2001, P.W.4 opined that the accused committed rape on P.W.1. Ex.P4 does not show the finding of semen and spermatozoa on the clothes of the victim or the accused. Because there was no mention of semen or spermatozoa in Ex.P4, P.W.4 gave an opinion that there was an attempt. Admittedly, P.W.4 is not the eye witness to the incident. In view of the fact that there was a small tear of hymen and valva was congested, it can be safely said that there must be a penetration. 13. There cannot be any dispute that mere penetration is sufficient to constitute the offence of rape. Therefore, the trial Court, after considering the evidence on record, rightly found the accused guilty of the offence punishable under Section 376 (f) I.P.C. 14. The learned counsel appearing for the appellant relied upon a decision reported in State of Chattisgarh v. Derha[1], wherein it is held thus: “The question then arises, what should be the sentence that should be imposed on the accused? The trial court, as stated above, has sentenced the respondent for an offence under Section 376(2)(f) to 10 years’ RI. We are told by learned counsel for the respondent that he was hardly 18 years of age at the time of the incident in question and has already served about 6-1/2 years’ imprisonment consequent to the sentence imposed on him by the trial court. It is also submitted that he has since married and has a family. In such circumstances, we think a sentence of 7 years’ RI would be appropriate in the facts and circumstances of the case. Hence while allowing the appeal of the State, setting aside the judgment of the High Court and restoring the conviction recorded by the trial court, we reduce the sentence to 7 years’ RI. We further direct that if the respondent has undergone any part of the sentence as submitted by learned counsel, set-off shall be given for the said part of the sentence and he will also be entitled to any legal remission permissible in law for having served 6-1/2 years’ imprisonment.” In this case also, the facts are almost similar to the facts in the above mentioned case. Therefore, a lenient view can be taken with regard to the sentence. Hence, the sentence of Rigorous Imprisonment for a period of ten (10) years can be reduced to eight (8) years. 15. In the result, the conviction recorded by the learned Assistant Sessions Judge, Sircilla, in Sessions Case No.664 of 2002, dated 26.03.2004, against the appellant/accused of the offence punishable under Section 376 (f) I.P.C. is confirmed, but the sentence is reduced from Rigorous Imprisonment of ten (10) years to Rigorous Imprisonment for eight (8) years, while maintaining the fine amount with default clause. Period of remand, if any, undergone by the accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 16. With the above modification, the Criminal Appeal is dismissed. _______________ (K.C. BHANU, J) Date: 8th December, 2009 KL [1] (2004) 9 Supreme Court Cases 699