THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1355 of 2004 29th July, 2011 Between: K.Chengal Pandu @ Pandabba (THROUGH JAIL) … Appellant / Accused And State of A.P., rep by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1355 of 2004 JUDGMENT: This appeal is filed by the accused from Jail while undergoing sentence questioning the conviction and sentence passed in S.C.No.59 of 2001 by the Additional Assistant Sessions Judge, Tirupati on 25.07.2001. The appellant herein has committed a heinous offence of rape on a six-year old girl by inviting her to his house on the promise of giving some snacks to her. According to the prosecution, on 06.04.2002 at about 1.00 P.M., the accused called the victim girl-Hemalatha to his house with an intention to commit rape on her by promising her that he will give “Appachulu” to eat and believing the said words, the victim girl has gone to the accused house and the accused asked her to sweep the house and the accused closed the doors while the girl was sweeping the house, and thereafter he threw her down and lifted her petty coat and laid down on her and inserted her penis into her secret part. Due to pain, the victim girl cried by weeping and blood was coming out of her secret part. After noticing bleeding, accused got up and allowed her to go away with the warning not to inform to anybody. Later she informed to PW2 on persistent enquiries and thereafter PW2 has lodged complaint against the accused and the same was registered as Crime No.52 of 2000 under Section 376 IPC and during the course of investigation, PW6 has seized the clothes of the victim girl and referred her to Government Maternity Hospital, Tirupati for treatment and opinion. The doctor on examining the victim girl opined that she was subjected to rape and intercourse has taken place. On 08.04.2000, the accused was arrested at 4.00 P.M. at Nadimipalle bus stop and seized the clothes in the presence of PW3 from his residence. Thereafter, the accused was sent to judicial custody and the police sent a requisition to Government Hospital, Tirupati to examine the accused semen, blood and saliva as samples. The material seized was sent to RFSL Ananthapur, and human blood was detected on item Nos.1, 2 and 6, but their blood group could not be determined. Human saliva was detected on item No.5. Human semen and spermatozoa was detected on item Nos.1, 2, 3 and 4, but their blood group could not be determined. The learned Sessions Judge framed charge under Section 376 IPC against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge examined PWs.1 to 6 and got marked Exs.P1 to P11 and MOs.1 and 2. No oral and documentary evidence was adduced on behalf of the accused. Taking into consideration the said oral and documentary evidence, the learned Sessions Judge found the accused guilty for the said offence under Section 376(2)(f) of IPC and convicted and sentenced to undergo Rigorous Imprisonment for a period of ten years and pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for six months and ordered to pay compensation of half of the fine amount i.e. Rs.2,500/- to the victim girl Hemalatha by way of fixed deposit in any nationalized bank till she attains majority. Aggrieved by the said conviction and sentence, the accused has preferred the present appeal through Superintendent of Jails, Central Prison, Cuddapah. As the accused is undergoing sentence and prayed that he is poor and does not have the financial capacity to engage an advocate, the State Legal Services Authority has appointed Sri. Rana Kamalasan as legal aid counsel to argue the appeal on behalf of the accused. The legal aid counsel has contended that a false case has been foisted against the accused-appellant due to political rivalry. He further pleaded that the investigating officer has not sent the accused for conducting potency test and the blood samples were not compared with the semen detected on his clothes and also the clothes of the victim girl. As such the benefit of doubt has to be given to the accused. The learned Public Prosecutor on the other hand pleaded that the victim girl who is aged six years categorically stated about commission of the offence by the accused and the medical evidence also supported the evidence of the victim girl with regard to commission of offence and the Forensic Science Laboratory report also discloses that the sperm was found on the clothes of the victim girl and therefore, the learned Sessions Judge has rightly convicted and sentenced the accused under Section 376(2)(f) of IPC and the said conviction and sentence does not warrant any interference by this Court. The victim girl Hemalatha-PW1 has stated that she knows the accused present in the dock and his name is Chengal Pandu and he is resident of Kongavaripalli village and on one day during the afternoon time the accused called her to come to his house saying that he will give “appachi” and after going to his house he asked her to sweep his house and then he removed his dhoti and fell on her and she felt pain on her secret place and she cried of pain and the accused threatened that he will kill her and throw in the fields if she informs this to any other person. In the evening when her mother came to the house she informed her about what had happened in the afternoon. Her Peddamma i.e. wife of Hari Krishna came to her house in the evening and she told her as to what happened in the afternoon. The girl again stated that she stated to her while coming from the house of the accused. There was bleeding over her secret part while coming from the house of the accused. Her mother took her to the police station and then to the hospital on the same day. Her mother Rajeswaramma died and she is staying with her Peddamma. In the cross-examination also she stated that she is studying in elementary school in Kongavaripalli and she specifically denied that she is deposing as tutored by the police and nothing was elicited in the cross examination which is not alleged act of rape committed by the accused. PW2 who is the aunt of the victim girl also supported about her enquiring PW1 on the same day evening and in the beginning she has stated that there is nothing but subsequently disclosed about the accused committing rape on her and she found blood is coming from the vagina of PW1 and after her husband came to the house, she told him and that herself and her husband took PW1 to the police station. Nothing was elicited in the cross-examination with regard to the alleged incident occurred on PW1. Ex.P5 is the complaint given by PW2 to the police wherein also she has narrated the same facts as stated by her in her chief examination. The victim girl was examined by Dr.S.Nagamani (PW4) in Government Maternity Hospital, Tirupati, on 08.04.2000 and she found no injuries or abrasions on the body of the victim girl. On external genital examination they were infrontile. No pubic hair was present. Abrasion was seen on both libea majora all round. There was vaginal discharge present from the posterior fourchette. The hymen was intact. She has taken swab from the posterior fourchette. Vaginal smear for spermatozoa was collected and she reserved her opinion for want of forensic science report and she issued Ex.P2- certificate. Subsequently after receiving of forensic science report gave her final opinion as in Ex.P11 and stated that intercourse has occurred against the victim girl Hemalatha. In her cross examination she has stated that there may be partial penetration because there was spermatozoa in the vagina of victim girl and she did not find any blood in the vagina and penetration was not done since hymen was intact. She admitted that there is no possibility of developing depth in private parts of a girl in the age of six years. The investigating officer-PW6 has arrested the accused on 08.04.2000 at 4.00 P.M. at Nadimipalle bus stop in the presence of mediators PW3 and another. In pursuance of his confession, accused took him to his house and produced one torn cotton dhoti and on verification of the dhoti, it is four feet dhoti having gold border and other side red border, and noticed blood and semen stains on the dhoti, and he seized under a cover of mahazar on 08.04.2000 from the accused. Ex.P7 is the mahazar and MO2 is the white cotton dhoti. PW3 who is the mediator for seizure of MOs has also supported the version of the investigating officer. He attested Ex.P7 and denied the suggestion that he was stock witness of the police. Nothing adverse to the prosecution was elicited in the cross examination. PW5 is the CMO of SVRR Hospital, Tirupati, who examined the victim for ascertaining the age and according to him, the age of the girl is six or seven years. According to the investigating officer, he has sent all the material seized to the Regional Forensic Science Laboratory (RFSL) for examination and after receiving the final report, he filed charge sheet. Ex.P10 is the report of RFSL, Ananthapur which shows that hymen blood is detected on item Nos.1, 2 and 6, but their blood grouping could not be determined; and human semen and spermatozoa on item Nos.1, 2, 3 and 4 but their blood group could not be determined. Item No.1 is torn blue color petty coat of the victim girl with dark brown stains; item No.2 is cotton dhoti with red and blue colour borders with dark brown stains seized from the house of the accused at his instance; item No.3 is one glass slide with dried smear on it and item No.4 is cotton swab and they contain spermatozoa collected by the doctor (PW4) from the vagina of the victim girl; item No.5 is turbid liquid and item No.6 is reddish turbid liquid. Therefore, the said RFSL report clearly shows that human blood and spermatozoa were detected on the clothes of both the victim and the accused. It is not the case of the accused that he is impotent and is not capable of committing the said offence. Therefore, non-conducting of potency test for the accused is not fatal to the case of prosecution. Further, nothing was elicited in the cross examination with regard to the defence taken for the accused that a false case has been foisted against the accused due to political rivalry. Thus, from above observation, the prosecution could able to establish the commission of offence of rape on the six-year old victim girl. Therefore, the learned Sessions Judge has rightly come to the conclusion that the prosecution could able to establish the charge under Section 376(2)(f) IPC and the said finding of the Sessions Judge does not warrant any interference by this Court. With regard to the quantum of sentence, the learned Sessions Judge has sentenced the accused to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.5,000/-, in default to undergo Rigorous Imprisonment of Six months, and also ordered to pay compensation of half of the fine amount i.e. Rs.2,500/- to the victim girl. The learned legal aid counsel appearing for the accused has pleaded for reduction of the sentence as the accused is already undergoing the sentence. Since the learned Sessions Judge imposed the minimum punishment of ten years under Section 376(2)(f) IPC, the same cannot be reduced as there are no specific grounds for reduction of sentence in this case. However, since the accused is already undergoing sentence, and as Rs.2,500/- is awarded as compensation to the victim girl, the fine amount can be reduced to Rs.2,500/- in default to undergo Simple Imprisonment for 15 days. In the result the conviction of the accused for offence under Section 376(2)(f) IPC and the sentence of Rigorous Imprisonment for ten years is confirmed, but the payment of fine amount of Rs.5,000/- in default to undergo Rigorous imprisonment of six months is modified as payment of fine amount of Rs.2,500/- in default to undergo Simple Imprisonment for 15 days. Accordingly, the Criminal Appeal is partly allowed. _____________________________ JUSTICE P. DURGA PRASAD 29th July, 2011 KSM