HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2189 of 2004 Date:04.02.2011 Between: D. Kanakaiah ….Appellant And: State of A.P.., rep. by its PP .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2189 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Hyderabad in S.C.No.181 of 2004 on 29.9.2004. The appellant herein was prosecuted for the offence under Section 376 IPC alleging that on 27.8.2003, the victim P.W.1 got down at Secunderabad Railway Station and waiting at the bus stop to go to Golkonda cross roads to go over to her sister’s house. At about 6.00 p.m, the accused who was selling ground nuts approached the victim, her by stating that there would not be any bus to her sister’s house at that hour to accompany him to his house wherein his parents were residing with him. Then he took her to Sanjeevaiah park Railway station compound wall and committed rape on her forcibly by threatening her with dire consequences. After the incident, she narrated the same to the nearby security guards who took her to the police station and the police recorded the statement and registered a crime and investigated into. The police sent the victim to the hospital, examined the scene of offence, arrested the accused and recorded the confessional statement, seized his clothes in pursuance of the said confession and sent him to the hospital for potency test and after completion of the investigation filed the charge sheet. The learned Metropolitan Sessions Judge has framed a charge under Section 376 IPC against the accused and the accused pleaded not guilty for the said charge. In order to establish the charge against the accused, the prosecution has examined P.Ws.1 to 8 and got marked Exs.P.1 to P.8 and M.Os.1 to 5. After taking into consideration of both oral and documentary evidence, the lower court found the accused guilty for offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment for a period of 7 years and to fine of Rs.100/- in default to undergo simple imprisonment for a period of 15 days. Aggrieved by the said conviction and sentence , the present appeal is filed. According to the prosecution, the P.W.1 victim came to Secunderabad from her native village Devarakonda and got down the train at Secunderabad railway station at 5.00 a.m on 27.8.2003 and went to Secunderabad Railway station bus stop to go to Golkonda cross roads to her sister’s house and while she was waiting at the bus station, the accused met her and informed her that there would not be any bus to go to Golkonda cross roads and asked her to accompany him to his house and that his parents and sisters are living in his house and that she could go to her sister’s house on the next day morning and then she followed him and then the accused took her along with him and got down the bus at Rani Gunj and then took her to near Sanjeevaiah Park and then took her to the side of compound wall of the said park, the accused undressed her and committed rape on her. The P.W.1 victim has also specifically stated about her getting down at Secunderabad Railway station on 27.8.2003 by boarding the train at 11.00 a.m at Devara Kadara and waiting in the Secunderabad bus stop to go to her sister’s house. Then the accused who was selling ground nuts came there and asked her where she was going. She informed him that she was going to her sister’s house. The accused was the said person who approached her. The accused intimated her that there would not be any bus at that time, to go over to Golkonda Chowrasta (cross road) and intimated her that he was having sisters and parents and that he could stay in their house for the said night. By making the said representation, accused took her along with him. He got down along with her in Ranigunj. There from he took her to Sanjeevaiah Park compound wall of the railway station and made her undressed and committed rape on her and when she raised cries, the accused threatened to beat her and to stab her. After she escaped from the clutches of the accused and came on the road, a security person met her and she informed about the occurrence and he took her to Ramgopalpet Police Station, the police recorded her statement. They obtained her thumb mark on the said report. Ex.P.1 is the said statement. In order to establish the version of the prosecution, the prosecution has examined P.W.6 Dr. J. Rajeswari who has stated that on 28.8.2003 on the requisition of Station House Officer, P.S. Ramgopalpet in Crime No.232 of 2003 under Section 376 IPC, she examined M. Anjamma, aged 12 years when brought by police. P.W.1 who is present before her is the same person whom she examined as seen from her identification marks. On examination, she did not find any injury on her and on her genetelia, pubic hair/matted. There was fresh tear in the hymen. There was white discharge in vagina present, smears from cervix and posterior fornix were collected to be sent to FSL. The smears collected were sent to DFSL. The FSL in its opinion dated 24.10.2003 stated that semen and spermatozoa were present on the items 1 and 4 which are the smears collected from the victim and the dark brown petty coat of the victim. Ex.P-5 is the FSL report. She opined that there was evidence of recent sexual intercourse and that there was fresh tear in the hymen and there was white discharge from vagina and that there was difficulty in passing urine and that there were no external injuries. Ex.P-6 is the certificate issued by her. Therefore, the version of P.W.1 was supported by the medical evidence of P.W.6. The learned counsel for the appellant has pleaded that the accused is major and in the circumstances of the case of accompanying an unknown person appears that she has given consent for having sexual intercourse with him and as such the accused is not liable for the offence under Section 376 IPC. He further pleaded that the scene of offence was not correctly located by the prosecution and even though P.W.2 is identifying the person as the accused and accompanied P.W.1 to the police station, the FIR does not reflect his name. Therefore, the accused was subsequently involved in this false case. With regard to the age of the victim girl she has stated that she is aged about 14 years as on the date of her evidence before the court on 29.7.2004. In the Doctor certificate Ex.P-6, the Doctor who has examined the victim has mentioned in the certificate Ex.P-6 she is aged about 12 years. Admittedly, the prosecution did not get determined the correct age of the victim by the medical evidence. The learned counsel for the appellant has relied upon cross-examination of P.W.1 wherein she has stated that her father was an agriculturist. He is no more now. Her father died about 20 years ago. Her mother had one elder brother and one younger brother. But, she does not know their residential villages. They attended to the funeral of her father. She was aged about 26 years by the time of death of her father. On the above said admission made by P.W.1 in the cross- examination, the learned counsel for the appellant has pleaded that she was aged 6 years as on the date of death of her father and her father died 20 years ago she might have aged 6 years as on the date of incident and as such she is major by that date of incident. But, the lower court has come to the conclusion that the victim girl might have wrongly mentioned that her father died about 20 years ago. In the FIR she has also mentioned her aged as 12 years and even if there is difference in the age it may be vary from 2 to 3 years but there will not be any such huge gap and come to the conclusion that the victim is minor as on the date of incident. The next contention of the learned counsel for the appellant is that the offence took place with the consent of the victim girl. Admitted by P.W.1 she got down from the train at Secunderabad Railway station at 5.00 p.m on 27.8.2003 and gone to the Secunderabad bus station and waiting for the bus to go to Golkonda cross roads to go to her sister’s house, but the accused met her and informed that there would not be any buses to go to Golkonda Cross roads at 5.00 p.m to 8.00 p.m and as such she followed the accused. In the cross-examination, she has stated that she used to visit her sister’s house at Golkonda Chowrasta from Devarakadara now and then even prior to the date of occurrence. Always she used to come by a train from Devarakadara to Secunderabad. She used to go by bus route No.5 to reach Golkonda Chowrasta to go to her sister’s house. She visited her sister’s house from 20 to 30 times previously by coming from Devarakadara, prior to this incident. By the time the accused approached her at Secudnerabad bus stop it was 8.00 p.m. The bus stop and railway stationare adjoining. From 5.00 p.m to 8.00 p.m, no bus going to Golkonda Chowrasta came to the bus stop. The bus number 5 did not come to bus stop from 5.00 p.m to 8.00 p.m. The Investigating Officer has admitted in the cross-examination that the bus No.5 will not go to Golkonda cross road and it will go to Mehidipatnam and therefore, the version of P.W.1 that she has to go to Golkonda cross road by Bus No.5 is not correct. Admittedly, the accused is unknown person to her. Even then believing the words of the accused and she followed him. She further stated in the cross- examination that she is having a sight problem during dark times. Her left eye is blind one. She cannot see the object at a distance of 10 to 15 feet clearly. The lower court has got an opportunity to see the victim girl while examining her in the Court and observed that “she is an innocent girl and believing the words of the accused she might have followed the accused”. Even if the contention of the learned counsel for the appellant is accepted that she has knowingly followed the accused at that late hours in the night shows that she has given consent for having sexual intercourse with the accused. Since the victim P.W.1 is a minor it cannot not be a ground for the accused to absolve from the offence under Section 376 IPC. The next contention of the learned counsel for the appellant is that the scene of offence was mentioned as near the compound wall of railway station and in the scene of offence Panchanama Ex.P-2, the scene of offence is mentioned as the open site adjacent to the North East corner of compound wall of the Sanjeevaiah Park railway station. Therefore, there is discrepancy with regard to the scene of offence. The next contention of the learned counsel for the appellant is that P.W.2 who has met P.W.1 immediately after the incident has stated that he identified the person who has committed rape against the P.W.1 as Kannaiah and he knows him prior to the incident. Even then the name of the accused is not reflected in F.IR Ex.P-1, even though P.W.2 is also accompanied P.W.1 to the police station and signed on Ex.P.1. P.W.1 did not spoke any thing about P.W.2 disclosing her, the name of the accused or P.W.2 seeing the accused when she informed about the incident to him. But she only stated that when she came on the road she met that security guard and informed about the incident and he took her to police station. Where P.W.2 has stated that when he was on patrolling duty by a cycle near the said Hanuman temple Sanjeevaiah Park railway station is situate. P.W.1 is coming from the said railway station side by raising cries to save her. Near the said temple, he asked her as to what had happened. Then he intimated him that a person raped her and torn her underwear. Then he took her to the police station by way of walki taki and the police came and took him and the victim girl to the police station and in the cross- examination he stated that prior to the occurrence. Accused he sued to reside at Pattigadda and sell ground nuts and knew his name also. The victim intimated him the name of assailant as Kanaiah. Then he though he must be the resident of Patigadda. He also subscribed his signature on Ex.P.1. He does not know reading English. Ex.P.1 was scribed by Circle Inspector. Therefore, simply because P.W.2 has stated about his identifying the accused prior to the incident cannot be a ground to disbelieve the evidence and his evidence is only to the extent of the fact that he met P.W.1 who is coming on the road by raising cries and taking her to the police station and as per the statement given by her, the S.I of Police recorded the statement and issued FIR. With regard to the competency of the accused to commit the offence, he was got examined by Dr. M.Ravinder Reddy who has examined P.W.7 and he has categorically stated that the accused is capable of performing sexual intercourse and Ex.P.7 is potency certificate. Thus, the lower court by taking consideration of the evince available on record rightly come to the conclusion that the accused has committed the offence under Section 376 IPC beyond reasonable doubt. Thus, the said finding of the lower court does not warrant any interference by this court. Hence, I hold that the lower court has rightly convicted the accused for offence under Section 376 IPC and imposed the sentence by taking consideration of the circumstances of the case. Thus, imposing of the sentence on the accused does not warrant any interference by this Court. Hence, the appeal is dismissed by confirming the conviction and sentence passed by the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Hyderabad in S.C.No.181 of 2004 on 29.9.2004. _____________________ P.DURGA PRASADJ. Date:04.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2189 of 2004 Date:04.02.2011 Gk.