THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.1021 OF 2004 JUDGMENT: A-1 and A-2 in S.C. No.53 of 2003 on the file of the learned I Additional Sessions Judge, Karimnagar, were found guilty for the offence under Section 376(2) (g) IPC, however they were not found guilty for the offences under Sections 3(ii)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short “SC & ST Act”) and 506 (ii) IPC, and both of them were convicted and sentenced for the same to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.2,000/- each, in default of payment of fine to undergo simple imprisonment for two months by the said Court by its judgment dated 29-04-2004. Aggrieved by the said impugned judgment of conviction and sentence, A-1 and A-2 preferred this appeal, inter alia, on the following grounds: a) that the trial Court failed to appreciate the evidence and other material on record in proper perspective; b) that the trial Court erred in relying on the evidence of PWs.1 and 2, who are highly interested witnesses; c) that trial Court should have seen that the medical evidence did not support the case of the prosecution; d) that the trial Court ought not to have considered Ex.P-9, DNA report, as the same is inadmissible in evidence; e) that the trial Court ought to have seen that the doctor, who examined PW.2, could not give any opinion immediately in the absence of injuries on her person of both internal and external; f) that the trial Court ought to have seen that in Ex.P.3, it was not mentioned as to presence of mucus on the petty coat and saree; g) that the trial Court should have seen that there was no evidence that the seminal is that of the accused and the trial court has erred in convicting the appellants -accused on the basis of seminal stains on the clothes of PW2- victim; and h) that the trial Court ought to have seen that compelling the accused to undergo DNA test is against one’s fundamental right. 2. The brief facts of the case of the prosecution are as under: (i) Both the accused and the de facto complainant are the residents of Sirikonda village of Dharmapuri Mandal. A-1 belongs to Munnuru Kapu, A-2 belongs to Gowda and the de facto complainant belongs to Mala communities. (ii) On 07-06-2001 at about 7-30 p.m., while the daughter of the de facto complainant was returning home at about 8-00 p.m. after answering calls of nature at Sirikonda Gutta, A-1 and A-2 caught hold of her, forcibly took her into nearby cattle shed and putting her down at the foot of haystack, both of them committed the heinous act of rape on her one after the other against her will; A-1 first and A-2 second. She resisted and failed and that they left the place after threatening her not to disclose the fact to anybody. On hearing her cries, her mother went to the cattle shed and brought her home. She informed the neighbours, who gathered there, about the incident. Since it was night time, on the next day the de facto complainant along with some villagers took the victim to Dharmapuri Police Station, where the victim’s mother reported the matter to the police under Ex.P-1 complaint, basing on which, a case in Crime No.105 of 2001 was registered against A-1 and A-2 for the offences under Sections 376 (2) (g) & 506(ii) IPC and 3(2)(v) of the SC and ST Act and that the victim was referred to Government Area Hospital, Jagtiyal, for medical examination. PW.5, a woman medical officer, examined the victim girl, preserved her vaginal swabs and clothes and sent them to the Forensic Science Laboratory, Hyderabad by the investigating officer for chemical analysis and report. Thereafter, the victim was referred to Kakatiya Medical College, Warangal for age determination, where her age was determined to be between 17 and 19 years old; Ex.P-7 is the age certificate issued by the Kakatiya Medical College, Warangal. Later, Ex.P.2 - FSL report was received and the same was to the effect that the victim girl might have been sexually assaulted. (iii) On 10-06-2001 at 11-15 a.m., A-1 and A-2 were arrested and sent for remand with a prayer to the Court for subjecting them to potential test before being remanded to judicial custody; that accordingly, they were sent to Government Medical Officer - PW.6, Area Hospital, Jagtiyal, who, after examination, opined that there is nothing to suggest that they were incapable of doing sexual intercourse; that thereafter after obtaining permission from the learned Judicial Magistrate of First Class, Jagtiyal, A-1 and A-2 were sent to the Centre for DNA Finger Printing and Diagnostic, D.B.T, Ministry of Science & Technology, Government of India, Hyderabad. The Medical Officer, after conducting the DNA test, concluded that the sources of exhibits ‘A’ and ‘B’ (A-1 and A-2) respectively were responsible for biological fluid present on the source of exhibit ‘C’ - (cotton swab); that after completion of the investigation, charge sheet was laid into the Court of the learned Judicial Magistrate of First Class, Jagtiyal against A-1 and A-2 for the offences under Section 376(2)(g) & 506(ii) IPC and under Section 3 (ii) (v) of the SC and ST Act and the same was committed to the Court of the Sessions in P.R.C. No.133 of 2002. The Sessions Court after registering the case as S.C. No.53 of 2003 made over it to the Court of the learned Special Sessions Judge for trial of cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act – cum - I Additional Sessions Judge, Karimnagar for trial and disposal according to law. 3. On their pleading not guilty to the charges, A-1 and A-2 were tried for the charges referred supra. 4. The prosecution, in support of its case, has got examined PWs.1 to 9 and got marked Exs.P-1 to P-9 and MOs.1 and 2, on its behalf, whereas the neighbour of the victim girl in whose house the victim along with her mother slept during the night of the incident out of fear of the accused, was examined as DW.1 on behalf of the accused, however, no documents marked on behalf of the accused. 5. The trial Court taking the evidence of the prosecution case in general and PWs.1 to 4 in particular into consideration and also considering the other material on record came to the conclusion that the prosecution had established that the accused were involved in raping the victim girl one after the other and accordingly convicted and sentenced them as has already been stated in paragraph No.1, supra. 6. It is the case of the accused that the trial Court has committed an error in considering the evidence of PWs.1 to 4 and basing its finding thereon, came to a wrong conclusion in holding A-1 and A-2 guilty of the offence under Section 376(2)(g) IPC and that the trial Court has failed to make note of the inconsistencies in the evidence of PWs.1 to 4. PW.1 is none other than the mother of the victim girl, PW.2 is the victim girl, PW.3 is the paternal uncle of the victim and PW.4 is a neighbour of PWs.1 and 2. Though it is the case of the prosecution that during the night of the alleged offence, due to fear that the accused might attack them, PWs.1 and 2, mother and daughter, went to the house of DW.1 and slept there for that night, however it is found in the evidence of DW.1 that PWs.1 and 2 did not come to her house and they did not sleep there during the night of the incident due to fear of attack by A-1 and A-2 and that they did not discuss about the alleged offence having committed by A-1 and A-2 on the victim girl. 7. It is further the case of the accused that PW.1, mother of the victim girl, has conveniently foisted a false case against A-1 and A-2 since her husband failed to repay the amount of Rs.10,000/- borrowed from A-1 while he was going to Mumbai and the amount was not repaid to A-1 in spite of his pestering for the same. PW.1 used to give evasive replies that her husband would send the amount through somebody and A-1, who was waiting for quite a long time for the amount, started forcing PW.1 for the said loan amount. She had, in fact, threatened him of false implication and ultimately implicated him into this case. However, it is contended that the trial Court failed to take note of the same and thereby misdirected itself in coming to a wrong conclusion in convicting the accused. It is pertinent to note that PW.4, who is a neighbour of the victim girl, has deposed that he along with PWs.2, 3, DW.1 and another caught hold of the accused when they were found on the road at about 8-00 or 8-30 PM. He deposed that at about 8-00 PM on the date of incident, on hearing the cries emanating from the house of PW.1, he along with his wife and DW.1 went there and on enquiry PW.1 replied that the accused had committed heinous crime on the victim girl. Thereafter, he went to Maddunur and informed PW.3, who is a paternal uncle of the victim girl, about the incident. He also deposed that he along with other persons found both A-1 and A-2 on the road, caught hold of them and handed over them to the Village Sarpanch and later the Village Sarpanch handed over the accused to the police. In this regard, it is contended that if the accused were caught hold by PWs.4, 2, 3 and DW.1 and handed over them to the Village Sarpanch between 8-00 and 8-30 PM on the date of incident, the question of PWs.1 and 2 going to the house of DW.1 and sleeping there for that night does not arise. Moreover, it is in the evidence of DW.1 that PWs.1 and 2 never went to her house during the night of the incident and slept there due to fear of attack by the accused. 8. It is in the evidence of PW.1 that when the neighbours visited them after the incident on hearing the cries of her daughter, they informed them about the incident; that around the same time, the accused came to their house and threatened them with dire consequences if they prefer to give any police complaint; that on the next day morning, she along with the victim girl and some villagers went to Dharmapuri Police Station, where she preferred Ex.P-1 complaint. However, it appears from the cross-examination of PW.4 that he along with PWs.2, 3 and DW.1 caught hold of the accused on the road between 8-00 and 8-30 PM on the date of incident itself and handed over them to the Village Sarpanch and on the following day morning, he along with five other persons handed over the accused to the police and they gave a written complaint to the police about the case. Therefore, it is contended that there is variation in the evidence of PWs.1 and 4 and they, in fact, contradicted with each other. It is PW.1, who testified that she preferred Ex.P-1 complaint, whereas PW.4 admitted in his cross-examination having preferred written report to the police about the incident along with 5 other persons. Therefore, it is contended that who had put the law in motion first in point of time, whether it was PW.1, who is the mother of the victim girl, or PW.4 along with 5 other persons. 9. Now coming to the evidence of the victim girl as PW.2, she has stated in her cross-examination that in the incident, she had received injuries to her right and left upper arms, back, chest and A-1 had bite on her right cheek; that in the process, her bangles were also broken causing injuries to her. However, as per Ex.P-3 medical certificate, no evidence of external injuries was found on the person of the victim girl having suffered rape. In this context, it is contended that the evidence of the victim girl as to her sustaining external injuries in the melee stands falsified by Ex.P-3 medical certificate. However, the evidence of PW.5 reveals that though there were no external and internal injuries on the person of the victim girl, dry mucus stains were found on her clothes and the same were sent to F.S.L., Hyderabad for medical examination and report and that F.S.L. report revealed that human semen and spermatozoa were detected on the clothes and basing on that she gave her final opinion that the victim girl might have been sexually assaulted. However, PW.5 medical witness has admitted in her cross-examination that in Ex.P-3 medical certificate it is not mentioned that mucus was found on the petticoat and saree of the victim girl. However, it is to be remembered that Ex.P-3 medical certificate is different from Ex.P-2 F.S.L. report. Basing on Ex.P-2 F.S.L. report, PW.5 medical witness has testified that basing on Ex.P-2 she gave her final opinion that the victim girl might have been sexually assaulted and human semen and spermatozoa were detected on her clothes. 10. The learned counsel for the accused referring to the cross- examination of PW.8, who is the investigating officer, submits that PW.1 did not state before him that the accused had came to her house and threatened them with dire consequences if the matter is reported to the police and he further stated that the victim girl did not state before him that the accused had gagged her mouth with a cloth and they were in a drunken condition at the time of incident and that the accused came to her house and threatened her with dire consequences if police complaint is given. Therefore, he contends that the evidence of PWs.1 and 2 suffers from material omissions and they are fatal to the case of the prosecution and that the trial Court failed to take note of the same and further that evidence of PWs.1 and 2 is untrustworthy and that a false case was foisted against the accused. 11. It is lastly contended on behalf of the accused that though it is in the evidence of PW.1 that the victim girl was 15 years old at the time of incident, whereas as per Ex.P-7 age certificate, she was aged between 17 and 19 years, as such, it is contended that PW.2 was more than 16 years as on the date of incident and the trial Court ought to have treated her as a consenting party in the absence of external or internal injuries as per the medical certificate. 12. The learned counsel for the accused also submitted that the alleged offence has taken place long ago i.e., almost a decade or so and that the parties are settled in life and living happily, moreover they are residents of the same village, and therefore, in the changed circumstances, the sentence of the accused may be reduced in case the conviction is not set aside. 13. Per contra, the learned Public Prosecutor submitted that in the case of rape, age of the victim is immaterial. Even if the victim is aged more than 16 years, when the heinous act is committed much against her will and without her consent, the gravity of the offence would not come down. A-1 and A-2 were alleged to have forcibly raped the victim girl, how could she be said to have consented for the heinous act to be committed by two persons, as no women in general is expected to give consent for such an act to be committed by two persons one after the other. Generally, in such cases, it is settled law that if the evidence of the victim girl itself is cogent and trustworthy, it can be accepted and acted upon and conviction can safely be based thereon. In this case, the evidence of PW.2 victim stands corroborated in all material particulars with the evidence of PWs.1, 3 and 4 and more over the medical evidence also supports her case. As per the medical evidence, though the victim was aged between 17 and 19 years at the time of incident, it is clear that she was not accustomed to having frequent sex. So far as the injuries whether internal or external are concerned there is no hard and fast rule that in every case of rape, the victim is bound to suffer such injuries as it depends on physical structure of the victim some times and in many cases. Therefore, it is contended that the trial Court has rightly found A-1 and A-2 guilty of the offence under Section 376(2)(g) IPC and convicted and sentenced therefor after considering the entire gamut of evidence of prosecution witnesses and other material on record, as such, the impugned judgment and order of conviction and sentence cannot be said to be either perverse or erroneous and as such the same is not liable to be interfered with by this Court. 14. This Court gave its earnest consideration to the respective submissions made by the learned counsel on either side, perused the impugned judgment and other material on record. 15. Now the point for consideration is whether there are any grounds for allowing this appeal ? 16. The first question raised by the learned counsel for the accused is that PWs.1 to 4 are highly interested witnesses as PW.2 is the victim girl, PW.1 is mother of PW.2, PW.3 is paternal uncle of PW.2 and PW.4 is a neighbour of PWs.1 and 2 and that there are inconsistencies in the evidence of PWs.1 to 4 with regard to PWs.1 and 2 going to the house of DW.1 on the night of the incident due to fear that accused might attack them again and slept there for that night, whereas the evidence of DW.1 is that PWs.1 and 2 did not come to her house and did not sleep there during the night of the incident. Firstly, it is settled law that there is no bar to accept the evidence of the interested witnesses in a case of this nature particularly when the same is cogent and unrebuttable. Further, referring to the date of incident, DW.1 has stated in her evidence that “in my presence there was no discussion about the accused raping PW.2 on the relevant day.” This part of the evidence of DW.1 shows that PWs.1 and 2 were in her company on the date of incident, in all probability after the incident, and she has not explained the same as to when they all were together on the relevant day and for what purpose and the same create doubt about the truthfulness of her evidence. Hence, the evidence of DW.1 cannot be believed and the same does not falsify the case of the prosecution nor it demolishes the same in toto. 17. The next defence taken by the learned counsel for the accused is that husband of PW.1 has borrowed an amount of Rs.10,000/- from A-1 while he was going to Mumbai and when A-1 was demanding PW.1 to repay the same, she had been stating that her husband would send that amount and in fact she threatened him to implicate him in a false case if he demands for payment of that amount and accordingly she implicated A-1 along with A-2, who is friend of A-1 and supporting him. To this effect, DW.1 also deposed in favour of the accused. However, no material is placed before the Court to show that the husband of PW.1 borrowed the amount from A-1 and that DW.1 has agreed in her cross-examination that she was not a witness for borrowal of that amount by the husband of PW.1 from A-1. Further, if at all there was any transaction like that, PW.1 would implicate A-1 alone but not A-2, who is a stranger to her, and that too by putting the honour of her daughter, who was an unmarried girl, and their family’s reputation at stake. Apart from that, as found above, the evidence of DW.1 is unbelievable. Thus, there is no force in the contention of the learned counsel for the accused that the accused are falsely implicated in this case to avoid payment of Rs.10,000/- to A-1 and the same cannot be accepted, even if it is considered to be a fact. 18. The next discrepancy raised by the learned counsel for the accused is that the evidence of PW.1 shows that she along with the victim girl and one Linga Rao, Bhumanna, Sunkari Bollam Rajaih (PW.4), Lachanna and some others gave police report on the next day of the incident, whereas the evidence of PW.4 in his cross examination shows that on the next day himself and five other persons gave a written report to the police about the incident and it creates doubt as to who gave complaint to the police. This contention of the learned counsel for the accused also does not stand since the evidence of PW.1 shows that while giving report to the police, PW.4 was also present along with her, and when PW.4 was examined by the trial Court, he too stated that PW.1 was present along with him while giving the report to the police and thus there is no discrepancy in the evidence of PWs.1 and 4 with regard to giving police report on the next day of the incident. 19. The next contention of the learned counsel for the accused is that the victim girl, PW.2, has stated in her evidence that she had sustained injuries on her left and right upper arms, back, chest and A-1 bite on her cheek during the course of rape on her by A-1 and A-2 but the medical evidence does not show the same as Ex.P-3 medical certificate shows that there is no evidence of external injuries and the medical witness - PW.5, who examined the victim girl, also did not speak about her finding any of the above injuries, as such, it is false that the victim girl was subjected to rape by the accused and if at all there was any intercourse by them with the victim girl it was with her consent only it is also contended that as per the evidence of PW.1 the victim girl was 15 years old as on the date of incident whereas the Ex.P-7 age certificate issued by the Kakatiya Medical College shows that she was between 17 and 19 years and it shows that he victim girl was a consenting part to the heinous act . Firstly, though the victim is 15 years or between 17 and 19 years old is immaterial to decide the question of her being a consenting party to the victim. Further, it is settled law that absence of injury marks on the person of the victim girl does not always lead to the conclusion that sexual intercourse was committed with her consent and absence of marks of violence is not a relevant consideration and does not rule out the theory of rape nor shows that the victim is a consenting party. Furthermore, except contending that PW.2 is a consenting party, no material is brought to the notice of the Court to show the same and it cannot be said that a woman would give consent for such an act to be committed by two persons one after the other. Apart from the above, the evidence of PW.5, medical witness, is that admission of only one finger means that the victim girl was not accustomed to sexual intercourse earlier. In cases of consent, generally the girl would be accustomed to intercourse. These circumstances establish that the victim girl is not a consenting party to the heinous act committed by the accused. Coming to the question