THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2562 of 2004 BETWEEEN: Bathike Lalappa, S/o.Kankappa. … Appellant AND State of A.P. through The S.D.P.O., Narayanpet. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2562 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court of the offence under Section 376 I.P.C. and was sentenced to rigorous imprisonment for seven years and fine of Rs.100/-. Questioning the same, the accused filed this appeal. 2. It is the prosecution case that on 12.08.1996 at about 5:00 P.M. at Vathugundla Village, when PW1 Rathod Chandramma, aged 19 years, was returning from the fields with bundle of green grass on her head through the fields belonging to family of the accused, the accused caught hold of her from behind, had thrown green grass bundle on ground from her head and pulled her into the field, laid her on ground and committed rape on her by force and without her consent. The prosecutrix belongs to Scheduled Tribe. The lower Court framed charge against the accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 376 I.P.C. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty under Section 376 I.P.C. only. 3. In this appeal, it is contended by the appellant’s counsel that there are no signs of rape on PW1 and that nothing incriminating could be found at the scene of offence by the Investigating Officer and that even if there is medical evidence of sexual intercourse after examining PW1, it was not by force, but with consent. Placing reliance on Pratap Misra Vs. State of Orissa[1] of the Supreme Court, it is contended by the appellant’s counsel that even in the absence of specific plea by the accused during trial before the trial Court, in the appeal for the first time, the appellant is entitled to take up a defence which can be culled out from the prosecution evidence itself. On the other hand, placing reliance on State of Maharashtra Vs. Chandra P.K.Jain[2] of the supreme Court, it is contended by the Additional Public Prosecutor that evidence of the prosecutrix alone is sufficient to find the accused guilty of the offence under Section 376 I.P.C. and that there are no circumstances to discard PW1’s evidence in this case and that on totality of reading of evidence of PW1, it proved beyond all reasonable doubt that the accused is guilty of committing rape on PW1. 4. PW1 deposed that she was returning home from the fields at 5:00 P.M. carrying green grass bundle on her head through footpath and that when she reached near mango tree, the accused came and pulled her by catching her hands, had thrown grass bundle on ground, laid her on ground and committed rape on her forcibly by gagging her mouth with cloth. She further says that her bangles were broken and that her blouse was torn and that her nose pin was lost. She says that the accused did not set her free though she raised cries. On reaching home after the offence, PW1 is stated to have informed the offence to her brother- PW2. PW3 is father of PWs 1 and 2. PW4 is son of PW1’s paternal uncle. It is their evidence that on that night, they went and searched for the accused but could not be traced and so PW1, along with others went to Damargidda Police Station and gave Ex.P1 report to PW7, who is the then Sub-Inspector of Police. After recording statement of PW1 as per Ex.P1 and obtaining her thumb impression therein, PW7 registered Ex.P1 as case and issued Ex.P5-FIR. PW7 took up investigation into the case, examined witnesses and arrested the accused on 15.08.1996. 5. On the next day of registration of the case, PW7 sent PW1 to Government Head Quarters Hospital, Mahabubnagar for examination. PW8 is the then Civil Assistant Surgeon in that hospital who examined PW1 on 13.08.1996 and issued Ex.P6- medical certificate. During examination, she prepared slides of Vaginal Smears and sent the same to Forensic Science Laboratory (FSL) for opinion. After receiving Ex.P7-FSL report, PW8 gave Ex.P8 final report. 6. PW9 is the Inspector of Police, Narayanpet Circle who took up further investigation in this case. On 13.08.1996, he seized Mo.3 broken bangles from the scene under the cover of Ex.P3-scene of offence and observation report. But, PW1 in cross-examination denied Mo.3 as her broken bangle pieces. PW9 also seized Mos.1 and 2, torn blouse and petticoat of PW1 under the cover of Ex.P4- Panchanama in the presence of PW6. It is contended by the appellant’s counsel that the said clothes were not sent to Forensic Science Laboratory for examination to find out whether seminal stains or spermatozoa are found on undergarments of PW1. But in Ex.P7- FSL report, it was found that vaginal smears sent on glass slides contained Human Spermatozoa. It is contended by the appellant’s counsel that as per cross-examination of PW8, the medical officer deposed that spermatozoa will not survive beyond two or three days and that semen will be there for week days. PW8 was speaking to the said survival of spermatozoa and semen by the date of collection of vaginal smears. It cannot be extended to examination by the Forensic Science Laboratory. 7. As per Ex.P6- Medial Report issued by PW8 after examining PW1 on 13.08.1996, there were no injuries on breasts or on genital organs of PW1. Since semen and spermatozoa were found on Vaginal Smears as per FSL report, PW8 ultimately gave Ex.P8 final opinion to the effect that PW1 was sexually assaulted. In cross-examination, PW8 deposed that if rape is committed by force on a vargin woman, there will be oozing of blood naturally and that there will be rupture of hymen membrane and that if vagina is tight, there is possibility of bleeding on intercourse. She admits that there were no injures on PW1 as per Ex.P6. PW1 in cross-examination deposed that she was unmarried by the time of offence. Though she was unmarried, PW1 did not claim that she was a spinster. Further, Ex.P6 report on PW8 shows that one finger is penetrating into her vagina. It shows that PW1 was not new to sexual intercourse. Finally, PW8 deposed in cross-examination that in her opinion, the sexual intercourse did not occur by force. From this opinion of PW8, the appellant’s counsel contended that there is every possibility of the sexual intercourse being with consent of PW1 or otherwise, there would have been violent marks of injury on PW1’s body. Absence of any scratches on PW1’s body or on her private parts and absence of any injuries on her genetalia throws any amount of doubt whether the sexual intercourse was by force and against her will and without her consent. In view of the doubt arising out of the medical examination and medical opinion, I am of the opinion that it would be unsafe for the Court to find the accused guilty under Section 376 I.P.C. Therefore, I am unable to agree with the finding of guilt recorded by the lower Court. 8. In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. __________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dated:20.09.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2562 of 2004 Dated: 20.09.2011 [1] AIR 1977 SUPREME COURT 1307 [2] 1990 Crl.L.J.889