THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1183 OF 2004 ORDER: This is an appeal directed against the conviction of the appellants in S.C.No.344 of 2003 by the IV Additional District and Sessions Judge, East Godavari District, Kakinada on 07.06.2004. The appellants herein, who are accused Nos.1 and 2 were prosecuted for the offence under Section 376 read with 34 IPC alleging that on 08.06.2003 while P.W.1 was sleeping in the house of her grandparents, at about 10.00 P.M., accused No.3 Boddapati Parvathi came to P.W.1 and asked to accompany her to attend calls of nature. At the first instance, she objected saying that it is too late, but on insisting by accused No.3, she accompanied her and accused No.3 took P.W.1 to cashewnut tope situated near the Burial ground of Kummaripeta, where accused Nos.1 and 2 were present and accused No.3 told them that she brought P.W.1 as per their desire. Then accused Nos.1 and 2 dragged P.W.1 into cashewnut tope, when she raised cries, accused No.1 closed her mouth and laid her down on the ground and caught hold of her neck, threatened her and had forcible sexual intercourse without her consent and against her will. Accused No.2 went inside the casheweut tope and by his presence supported and facilitated the accused No.1 to have sexual intercourse with P.W.1. Later, they left the place and P.W.1 came to her house and slept without informing anybody. On the next day morning, when P.W.1 was weeping, her mother P.W.2 consoled P.W.1 and enquired her as to what had happened. Then P.W.1 disclosed the entire incident to P.W.2. As P.W.3, who is the father of the victim, went to coolie work and returned late in the evening, P.Ws.1 and 2 informed him about the incident and the matter was proposed to be placed before the elders. On 10.06.2003 morning when the elders called accused No.1, he did not turn up for the panchayat. Accused Nos.2 and 3 attended before the panchayat and denied about their involvement in the alleged incident. On the advise of village elders, P.W.1 lodged complaint in the police station on 10.06.2003. P.W.11 Sub-Inspector of police, Thondangi Police Station has registered the case in Crime No.53 of 2003 under Section 376 read with 34 IPC and took up investigation. Thereafter, P.W.12 took up the investigation and after completion of investigation filed the charge sheet against the present accused Nos.1 and 2 and the charge sheet was laid against accused No.3 before Juvenile Court. The learned Sessions Judge has framed the charge under Section 376 IPC against accused No.1 and under Section 376 read with 34 IPC against accused No.2 and both of them pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 12 witnesses i.e. P.Ws.1 to 12 and got marked Exs.P.1 to P.12 and M.Os.1 and 2. No oral evidence was produced on behalf of the accused, but Exs.D.1 and D.2 were marked. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused No.1 guilty for the offence under Section 376 IPC and sentenced to undergo Rigorous imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for 6 months. Accused No.2 was found guilty for the offence under Section 376 read with 34 IPC and sentenced to undergo Rigorous imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for 6 months. Aggrieved by the said conviction and sentence, the present appeal is filed by accused Nos.1 and 2. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charge under Section 376 IPC against accused No.1 and Section 376 read with 34 IPC against accused No.2 beyond reasonable doubt? P O I N T: Learned counsel appearing for the appellants has pleaded that except the evidence of P.W.1 there is no other evidence on record to establish the offence committed by accused No.1 and there is no material on record to show that accused No.2 assisted A.1 or having any common intention with accused No.1 for commission of offence as P.W.1 herself has stated only about the presence of accused No.1 at the time of commission of rape by accused No.1. Learned counsel for appellants has further pleaded that even though P.W.1 is aware of the names of accused Nos.1 and 2 with their father names, but she has not disclosed the names of accused before the Doctor, who examined her and she disclosed that some unknown persons were committed rape on her. Learned counsel for appellants has further pleaded that even though P.W.1 has stated that the matter was placed before the elders and as per their advice, they lodged a complaint before the police, but they have taken the advice of the advocate by name Suri Babu and mediators before lodging the complaint with the police. Therefore, Ex.P.1 is lodged after due consultations and taking legal advice only to implicate the accused in this case. Learned counsel for appellants further pleaded that the medical evidence does not disclose the commission of any offence of rape prior to her examination. On behalf of the Public Prosecutor, it is argued that the evidence of victim P.W.1 is sufficient to convict the accused No.1 and accused No.2 by his presence along with accused No.1 has supported him in the commission of offence of rape on the victim girl (P.W.1) and the Doctor has also specifically stated that she cannot rule out the possibility of having sexual intercourse by the victim girl P.W.1 on the date of her examination. Therefore, the prosecution could able to establish that the victim had subjected to sexual intercourse and the evidence of P.W.1 clearly establishes that accused No.1 is the person, who committed rape on her. Therefore, the prosecution could able to establish the offences against accused Nos.1 and 2 as alleged by the prosecution. According to the prosecution while the victim P.W.1 was sleeping in the house of her grand parents (P.W.4 and L.W.5) on the night of 08.06.2003, at about 10.00 P.M. accused No.3 came to P.W.1 and asked to accompany her to attend calls of nature. Even though she resisted the same, but followed her and the said accused No.3 took her to the cashewnut tope situated near the Burial ground of Kummaripeta, where accused Nos.1 and 2 were present, accused No.1 dragged her into the cashewnut tope and closed her mouth and had sexual intercourse with her against her will and consent. Accused No.2 was also present near the cashewnut tope in support of accused No.1. With regard to the accused No.3 coming and calling P.W.1, she stated about the same in her evidence and the same was supported by her grandmother P.W.4., but P.W.4 was not aware of the commission of rape on P.W.1 on that night. Even according to P.W.1 after commission of rape by the accused, she returned back to her home and slept in the house without informing about the incident to anybody. Only on the next day morning when her mother found her weeping and enquired her, she disclosed about the commission of offence. Thereafter, they waited for her father P.W.3 till evening and after arrival of her father, they placed the matter before the elders. According to P.W.1, elders called accused No.1 and directed to marry her, but he refused and accused Nos.2 and 3 have denied about their involvement in the commission of offence. As per the advice of elders, she has gone to the police station and at the instance of police, she lodged Ex.P.1 complaint. According to P.W.1, she scribed the Ex.P.1 report and presented the same to the Sub-Inspector of Police. In Ex.P.1 complaint, P.W.1 narrated the entire story as alleged by her and also placing the matter before the elders by name Draksharapu Abbai, Kummari Amorayya, etc., but the dispute could not be settled and when the elders asked accused No.1 to marry her, accused No.1 refused to marry her. As the dispute was not settled P.W.1 gave a report for taking necessary action. According to P.W.1, in the Panchayat, elders called accused No.1 and asked him to marry her, but he refused. Whereas her mother P.W.2, in her chief-examination, has stated that when elders summoned accused No.1, he did not attend. P.W.3 father of P.W.1 also stated that accused No.1 did not attend the panchayat. According to P.Ws.2 and 3 Abbai, Ammorayya and Satyanarayana are the elders, who held panchayat on the next day of the incident. The said Ammorayya is examined as P.W.5 and he admitted about the holding of panchayat about 8 months back in the village i.e. after four days of the incident. Satyanarayana, Suribabu, Latchababu and others came along with P.Ws.1 to 3, accused No.3 (Parvathi) and her parents, each blamed the other stating that P.W.1 taking accused No.3 to some places and accused No.3 taking P.W.1 to some places, and he is not enquired to which places they went and they directed the parties to go to the elder by name Yenamala Krishna of Tuni. They attended before the said Y.Krishna and he enquired both the accused and when they denied about the offence, he directed them to go to the police station. P.Ws.1 to 4 went to consult their advocate. The other mediator Satyanarayana, who was examined as P.W.6 even though admitted about the holding of Panchayat, he has not spoken anything about the calling of accused No.1 and directed him to marry the victim girl. According to him, P.Ws.1 to 4 have gone to the Krishna, elder of Tuni, and thereafter gone to the advocate, as per his advice and on his directions, P.W.1 scribed the report and presented the same before the police. They all went to the police station along with P.W.1. Therefore, the mediators have not supported the version of P.W.1 with regard to committing of rape by accused No.1 on her. With regard to lodging of complaint by P.W.1, she has stated that she has lodged the complaint by drafting the same in the police station as asked by the police, but the Investigating Officer P.W.11 has stated that P.W.1 came to the police station along with complaint. Learned defence counsel pleaded that P.W.1 lodged the complaint with the assistance of advocate Suri Babu. The said factum of taking advice of Suri Babu was denied by P.W.1, but admitted by P.W.2 mother and mediators P.Ws.5 and 6. Therefore, Ex.P.1 complaint was lodged after due consultations and taking legal advice. With regard to the medical evidence, P.W.8 Doctor, who examined the victim has stated that no external injuries are found on the face, neck, breast and inner thighs. Vertical abrasions of size 3 cm X 0.25 cm over middle of the back of 4 cms away from mid line, Scab formed black in colour, Pareral multiple vertical abrasions of size 1 cm X 0.25 cm over left lower limb region, scab formed black in colour. Therefore, as the scab was found on the said injuries, it cannot be said that the injuries are of recent origin. With regard to the examination of the gentle organs, she found bleeding from vizena present, Hymen is not intact. On vizinal examination, introtus admits 2 fingers loosely, neuters antiverted normal size mobile fornices free and bleeding was present. She opined that there is nothing to suggest that the intercourse has not taken place. Therefore, the Doctor has not given any specific opinion that P.W.1 was subjected to sexual intercourse prior to her examination. Moreover, as admitted by her in her cross-examination that the victim has washed her clothes and taken bath and the date LMP was mentioned by the victim, bleeding was present due to menses period. But she could not able to say whether the victim was habituated to sexual intercourse. Therefore, the evidence of P.W.8 is not helpful to establish that the victim was subjected to sexual intercourse prior to her examination. The other Doctors, who examined the accused are P.Ws.9 and 10, they have spoken only about the potentiality of accused Nos.1 and 2. Thus, the oral evidence of P.W.1 is not supported by any medical evidence. Even the evidence of P.W.1 is not reliable as there are number of contradictions with regard to elders calling accused No.1 at the time of holding panchayat and also her lodging of complaint Ex.P.1 and drafting of Ex.P.1 at the request of police in the police station and not disclosing the names of accused to the doctor, who examined her. Therefore, the above said contradictions creates a doubt with regard to the occurrence of the incident as alleged by her. Therefore, accused No.1 is entitled for benefit of doubt. With regard to accused No.2, P.W.1 herself has stated that accused No.2 went inside the cashewnut tope while accused No.1 committing rape on her and after the incident accused Nos.1 and 2 together left the place. Therefore, no specific overt acts have been attributed against accused No.2. Therefore, accused No.2 was only present along with accused No.1 and there is no material on record to show that accused No.2 assisted or aided accused No.1 in committing rape on victim. Mere presence of accused No.2 at the time of incident cannot be said that he has common intention in commission of offence. Therefore, the prosecution could not able to establish the offence as alleged against accused No.2. Hence, the prosecution has failed to establish the charge under Section 376 IPC against accused No.1 and Section 376 read with 34 IPC against accused No.2. In the result, the appeal is allowed. The conviction and sentence passed by the IV Additional District and Sessions Judge, East Godavari District, Kakinada in S.C.No.344 of 2003 dated 07.06.2004 is hereby set aside. Accordingly, both the accused are acquitted for the offences under Sections 376 IPC and Section 376 read with 34 IPC respectively. _______________________ P.DURGA PRASAD, J 26th July, 2011 KSP