THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1673 of 2005 Date: 09.11.2011 Between: Chirmani Sreenivas … Petitioner AND State of A.P., through State Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1673 of 2005 ORDER: The conviction for the offence under Section 376 of the Indian Penal Code (IPC, for short) recorded at trial by the learned Assistant Sessions Judge, Siddipet against the sole accused was unsuccessful challenged before the IV Additional Sessions Judge, Siddipet. Assailing the judgment of the learned IV Additional Sessions Judge, Siddipet, the accused preferred the present revision. 2. The victim, PW.2 was said to be about 13 years old at the time of the commission of offence. PW.1 is her father. PW.4 is her mother. PW.6 is the mother of PW.1, and the paternal grandmother of PW.2. PW.5 is the younger sister of PW.6. PW.7 is the younger brother of PW.1. 3. It is alleged by the prosecution: a) PW.1 underwent surgery. For medical check up of PW.1, PWs.1 and 4 went to Hyderabad on 28.01.2004. At about 4 p.m. on the same day, PW.1 went out to the water tank to fetch water. b) While PW.2 was passing by from the front side of the house of the accused, the accused called PW.2 inside. He induced PW.2 offering flowers to her. PW.2 went into the house of the accused. As soon as PW.2 entered into the house of the accused, the accused bolted the main door of the house from inside, gagged the mouth of PW.2 and committed rape upon her. c) PW.2 went on crying and became unconscious. After she regained consciousness, she came to the house weeping. In the meanwhile, PWs.5 and 6 started searching for the whereabouts of PW.2. A few workers, who were thrashing red gram in front of the house of the accused, informed PWs.5 and 6 that PW.2 went into the house of the accused. PWs.5 and 6 went into the house of the accused and moved to outside the house again, as they could not see anything in the house owing to darkness. In the meanwhile, PW.2 came out from the house weeping. When PWs.5 and 6 enquired PW.2, PW.2 narrated to them what happened. d) At about 8 p.m., PWs.1 and 4 returned from Hyderabad. PWs.2, 5 and 6 informed PW.1 about the incident. PWs.1 and 4 swallowed the insult and kept quiet keeping the reputation of PW.2 in mind. However, PW.7 expressed on the next day that a complaint deserves to be lodged. Accordingly, report under Ex.P.1 was lodged with the police. e) Subsequently, police arrested the accused. 4. As many as 12 witnesses were examined by the prosecution. The accused on the other hand examined DW.1 to establish rivalry between PW.1 and the accused. On the overall examination of the evidence, the learned trial Judge concluded that the prosecution established the guilt of the accused beyond reasonable doubt for the offence u/s.376 IPC. As the appellate Court confirmed the conviction, the accused preferred the present revision. 5. Sri Challa Pratap Reddy, learned counsel for the accused/revision petitioner inter alia contended that the very rape has not been made out and that the claim of the prosecution that the accused committed rape upon PW.2 has not been proved beyond reasonable doubt. He contended that the age of the prosecutrix had not been established to be below 16 years. He submitted that the evidence was not natural and deserves to be rejected, more so, as there were inconsistencies in the evidence of PWs.5 and 6 primarily. Smt. Zareena Afsar, representing the learned Additional Public Prosecutor submitted that the evidence of PW.2 per se was sufficient to bring home the guilt of the accused and that the prosecution, however, established the guilt of the accused by other circumstances as well. She inter alia contended that the offence of rape was committed by the accused upon a minor girl and that the accused deserves to be dealt with severely. 6. The learned counsel for the accused contended that the case revolves round the sole evidence of the prosecutrix and the evidence of PW.2 deserves to be rejected, as the same is not trustworthy and is not inspiring. 7. In Dilip and another v. State of M.P.[1] the prosecutrix was allegedly raped by two persons. The evidence of the prosecutrix was found to be not reliable, when the same was considered in the context of the evidence of other witnesses. The Supreme Court considered that it would not be appropriate to convict the accused on the testimony of such evidence of the prosecutrix. It is the contention of the learned counsel for the accused that the evidence of PW.2 did not agree with the evidence of PWs.5 and 6 and that the accused consequently would be entitled to the benefit of doubt. 8. The learned counsel for the accused also placed reliance upon Public Prosecutor, High Court of A.P. v. Pamarthi Venkatarmana @ Ramana[2]. In that case, a single Judge of this High Court held that the absence of injuries on the prosecutrix falsified her case that the accused felled her down and committed rape upon her. It is also the contention of the learned counsel for the accused that PW.2 did not suffer from any injuries as can be seen from Ex.P.2 and that the prosecution, therefore, should be considered to have failed to establish the very rape let alone proving that the accused raped her. It is the case of the learned counsel for the accused that the medical report did not show any injuries upon the prosecutrix and that the case of the prosecution that the accused committed rape upon the prosecutrix (PW.2), therefore, deserves to be rejected. 9. In Radhu v. State of Madhya Pradesh[3] the Supreme Court observed that the absence of injuries on the private parts of the victim by itself would not falsify the case of the rape, nor could it be construed as evidence of consent. The Supreme Court, however, cautioned that false charges of rape were not uncommon and that whether there was rape or not would ultimately depend upon the facts and circumstances of the entire case. 10. In Tameezuddin alias Tammu v. State of (NCT) of Delhi[4] where the story of the prosecutrix was found to be improbable, the Supreme Court refused to rely upon her evidence, more so, where the medical opinion did not support the prosecution story. It is the contention of the learned counsel for the accused that the medical evidence is not in support of the prosecution version and that the evidence of PW.2 is not inspiring as to record a conviction against the accused. 11. It is the case of PW.2 that the accused invited her into the house, inducing her with flowers and that as soon as PW.2 entered the house, the accused bolted the door from inside and that he committed rape upon PW.2 subsequently. PW.5 on the other hand deposed that she along with PW.6 went into the house of the accused and did not find anything owing to darkness. PW.5 could not have entered the house of the accused, if the door was bolted from inside. PW.5 clearly deposed that the house was not bolted from inside. PW.6 on the other hand also deposed that on hearing from persons who were thrashing red gram near the house of the accused that PW.2 was inside the house, she went into the house of the accused along with PW.5. She concurred with PW.5 that nothing could be found on account of darkness and that she and PW.5 waited outside the house and later found PW.2 emerging from the house weeping. In the cross-examination, PW.6 deposed that the house of the accused was bolted from inside, so much so, PWs.5 and 6 could not enter the house and that there was no response from inside the house when they knocked the door of the house. This inconsistency between the evidence of PWs.2, 5 and 6 was projected by the learned counsel for the accused claiming that the evidence of PWs.2, 5 and 6 cannot be accepted and that in the absence of their evidence, the accused would be entitled to the benefit of doubt. 12. The inconsistency in the evidence of PWs.2, 5 and 6 is primarily regarding the bolting of the main door of the house from inside. PW.2 claimed that the accused bolted the door from inside once PW.2 entered the house. PW.5 claimed that the door was open so that they could enter the house. PW.6 deposed at the outset as if the door was not bolted from inside since she deposed that she went into the house and did not find anything, as it was dark. Later, she deposed that the door was bolted from inside. Thus, PW.6 partly agreed with PW.2 and partly agreed with PW.5. To put it other way, PW.6 did not agree with PW.2 partly and did not agree with PW.5 in part. It is the case of the learned counsel for the accused that the evidence of PWs.2, 5 and 6 attracts a presumption in favour of the accused that the accused was not guilty. I am afraid that the inconsistency in the evidence of PWs.2, 5 and 6 cannot be considered to be a contradiction. It is a minor discrepancy. Every discrepancy cannot be a contradiction. Bolting and not bolting of the door, I am afraid is not a material discrepancy. 13. It is not as though PWs.5 and 6 did not support the case of PW.2. They claimed that they saw PW.2 emerging from the house of the accused and they noticed that PW.2 was weeping at that time. This is what PW.2 also deposed. Merely because PWs.5 and 6 did not depose regarding the bolting of the door from inside the house, adverse inference cannot be drawn that PWs.5 and 6 have not corroborated PW.2 and that PW.2’s evidence, therefore, cannot be accepted. 14. The learned counsel for the accused further submitted that there was unexplained delay in lodging the complaint. The incident occurred on 28.01.2004. Ex.P.1 was lodged on 30.01.2004. It was registered at 9 p.m. on 30.01.2004. The learned counsel for the accused contended that the delay in lodging the complaint was not explained and that it, therefore, should be considered that the very complaint was not spontaneous and should be viewed with suspicious. 15. It may be noticed that the offence alleged involved the very pride of a female. In an offence of this nature, it is more common for the parents and relatives of the victim to hush up the incident rather than trying to secure legal justice for the victim. There would be any amount of deliberations before a complaint is lodged in a rape case. The delay of a couple of days cannot be considered to be material delay in such circumstances. Added to it, PW.1 has explained the delay. His claim is that after he and PW.4 returned home from Hyderabad, they came to know about the unfortunate episode, through PWs.5 and 6 and later through PW.2 herself. It is the further case of PW.1 that he swallowed the pride and refrained from lodging a complaint keeping the reputation of PW.2 in mind. It is only PW.7, brother of PW.1 either induced or forced PW.1 ultimately to lodge a complaint. Consequently, considerable time elapsed from the time of the offence till the lodging of Ex.P.1 complaint. The delay thus was successfully explained by PW.1 and the prosecution. No adverse inference can be drawn against the prosecution for the delayed First Information Report. The contention of the learned counsel for the accused that there was abnormal unexplained delay in lodging the complaint and that it should operate as a circumstance of benefit of doubt in favour of the accused is not sustainable and is rejected. 16. The learned counsel for the accused pointed out that the medical evidence did not even prove that PW.2 was subjected to rape. PW.3 is the medical officer, who examined PW.2. He examined PW.2 about three days after the incident. PW.3 pointed out that definite opinion could not be given as PW.2 was produced before him three days after the alleged rape. He, however, certified that the incidence of rape was not ruled out. It is contended by the learned counsel for the accused that PW.3 did not certify that PW.2 was subjected to rape. His claim is that the very offence u/s.376 IPC thus was not made out. I am not able to agree with the contention of the learned counsel for the accused for the reason that PW.3 could not definitely state that PW.2 was not subjected to rape. 17. Admittedly, the F.S.L. report under Exs.P.3 and 4 do not show the presence of semen and spermatozoa. The learned counsel for the accused again considered this aspect as a point in favour of the accused. PW.4 deposed that she washed the clothes that PW.2 wore at the time of the commission of the offence. As the clothes were washed away, it is quite explainable that the clothes did not contain semen and spermatozoa. Once again, the absence of semen and spermatozoa on the clothes of PW.2 were successfully explained by PW.4 and the prosecution, so much so, the absence of semen and spermatozoa cannot be a ground to hold that the accused was not guilty. As rightly submitted by the learned counsel representing the prosecution, the entire case rests upon the evidence of PW.2. First, PW.2 has no enmity with the accused. Secondly, her post conduct after the incident was certified by PWs.5 and 6, which corroborates the claim of PW.2. 18. The learned counsel for the accused submitted that where workers were operating in the red gram fields near the house of the accused, they would have heard the cries of PW.2, had PW.2 been subjected to rape by the accused. His submission is that as such evidence is not produced, the case of the accused should be rejected. He also contended that the non-examination of the workers in the red gram field also operates as a benefit of doubt in favour of the accused. PW.2 was taken inside the house. The door of the house was closed whether bolted or not bolted. I am afraid that it is quite possible that the workers in the red gram field could not have heard the alarm and protest of PW.2 when the accused was forcing himself upon PW.2. More or less, the workers were not examined by the prosecution, I am afraid that no inference in favour of the accused could be drawn. The examination of the workers would have become imperative had it been the case of the prosecution that the workers heard the alarm of PW.2. It is not the case of the prosecution that the workers in the red gram field heard the protest of PW.2. The non-examination of the workers is, therefore, of no consequence. 19. The learned counsel for the accused advanced submissions with reference to the age of PW.2. The accused was charged for the offence u/s.376 IPC. Section 376 (6) IPC speaks about rape of a girl below 16 years of age. However, where the charge sheet is for the offence u/s.376 IPC, the age of PW.2 is irrelevant. At any rate, PW.2 would appear to be a minor girl. Even otherwise, it is not the case of the accused that PW.2 was a consenting party to the carnal acquaintance. The age of PW.2, therefore, is irrelevant. Viewed in any angle, the prosecution has established the guilt of the accused for the offence u/s.376 IPC beyond reasonable doubt. The revision is liable to be dismissed regarding the question of conviction. 20. The learned counsel for the accused inter alia submitted that the quantum of punishment of seven years of rigorous imprisonment and fine of ` 1,000/-, as imposed by the trial Court and confirmed by the appellate Court, is excessive. The learned trial Judge consciously referred to the minimum sentence provided u/s.376 IPC and imposed the minimum sentence of seven years of rigorous imprisonment. At the same time, it would appear that the learned trial Judge lost sight of the proviso of Section 376 (1) IPC. The proviso reads: “Provided that the Court, may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years.” 21. The trial Judge may impose sentence less than the minimum sentence for special reasons to be recorded. The accused was 22 years old at the time of trial. He was a poor labourer by himself. Taking these two factors into consideration, I deem it appropriate to reduce the sentence of imprisonment of rigorous imprisonment to a period of three years retaining the fine imposed by the trial Court. 22. Accordingly, the Criminal Revision Case is dismissed, so far as the conviction of the accused, as recorded by the trial Court and confirmed by the appellate Court, is concerned. The fine, as imposed by the trial Court and confirmed by the appellate Court, is maintained. The rigorous imprisonment at seven years, as recorded by the trial Court and confirmed by the appellate Court, is modified to rigorous imprisonment for a period of three years. The petitioner indeed is entitled to the benefit of Section 428 Cr.P.C. The accused, if he is on bail, shall surrender forthwith before the trial Court to undergo the balance of sentence. ________________ K.G. SHANKAR, J Date: 09.11.2011 Isn [1] 2001 (2) ALD (Crl.) 706 (SC) [2] 2006 (2) ALD (Crl.) 744 (AP) [3] (2007) 12 SCC 57 [4] AIR 2009 SC (Supp) 2519