IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1519 OF 2001. Date:13-10-2009. Between:- K.Narsing Rao and another .. Appellant/Accused Nos.1 and 2. And The State of A.P. rep.by its Public Prosecutor .. Respondent/Complainant. JUDGMENT: The appeal by the appellants-A-1 and A-2 under Section 374(2) of Cr.P.C. is directed against the Judgment, dated 28.09.2001, in Sessions Case No.43 of 1999 on the file of the Special Judge for the trial of offences under SCs and STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, where under and whereby, both the appellants were found guilty of the offence punishable under Section 376(2) (g) I.P.C. and sentenced to undergo Rigorous Imprisonment for a period of seven years each and to pay a fine of Rs.5,000/- each, in default, to suffer Simple Imprisonment for three months each. 2. The brief facts that are necessary for the disposal of the prosecution case, may be stated as follows:- P.W.1 is the victim in this case. She is the resident of Sangareddy. About four years prior to her examination, she brought her daughter to Gandhi Hospital, Secunderabad as she sustained fracture on right hand for treatment. She used to attend on her. While sleeping on the steps, on the mid night of 19.10.1997, two persons came and took her to the upstairs near water tank under threat and committed rape on her and threatened her not to reveal the incident to anybody. Two days thereafter, she lodged Ex.P-1-complaint with P.W.7, who is the Sub Inspector of Police, P.S.Market, Secunderabad, who recorded the statement of P.W.1 and registered the case. P.W.8-Inspector of Police took up investigation, visited the scene of offence i.e., Gandhi Hospital, Secunderabad and observed it in the presence of P.W.2 and another. He examined P.W.1 and recorded her statement. Thereafter, he sent P.W.1 for medical examination. He requested the Magistrate to record the statement of P.W.1 under Section 164 Cr.P.C. P.W.8 arrested the accused on 21.10.1997 and seized the clothes of the accused. Thereafter, he sent them for potency examination. He also sent the material objects to Forensic Science Laboratory. After receipt of the report from F.S.L, the Doctor who examined P.W.1, gave opinion stating that the possibility of sexual intercourse cannot be ruled out. After completion of investigation, successor of P.W.8 filed the charge sheet. 3. The charge leveled against A-1 and A-2 are as follows: “ That you A-1 and A-2, working as Security Guard and Security Supervisor respectively in Gandhi Hospital, Secunderabad, on the 19th day of October, 1997 at about mid-night, committed rape on Smt Swarnalatha, wife of Sudarshan, aged 25 years, r/o.near cross-roads, Sangareddy, Medak District, near the Water Tank, behind the main building (MRD) of Gandhi Hospital, Secunderabad, and that you thereby committed an offence punishable under Section 376(2)(g) of the Indian Penal Code and within my cognizance.” When the said charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 8 and got marked Exs.P-1 to P-10 besides case property M.Os.1 to 5. 5. The trial Court accepting the evidence of P.W.1, convicted and sentenced the accused as stated above. Challenging the same, the present appeal is filed. 6. Now the point for determination is: “ Whether the prosecution proved its case against the accused beyond all reasonable doubt for the offence punishable under Section 376(2)(g) I.P.C?” 7. The learned counsel appearing for the appellants contended that the identity of the accused is not established as admittedly, accused were strangers to P.W.1, that P.W.1 has not stated as to how she could be in a position to identify the accused after a lapse of four years, as her assailants, that the names of the accused have been mentioned in the earlier report – Ex.P-1 whereas in the witness box, she did not tell the names of the assailants, that the scene of offence has not been established, that when so many persons were present at the place where P.W.1 was taken, P.W.1 would have raised cries drawing the attention of persons who were present in the hospital, that there is no evidence to show that the daughter of P.W.1 was admitted in Gandhi Hospital, Secunderabad and hence, he prays to set aside the conviction and sentence recorded against the accused. 8. On the other hand, counsel representing the learned Public Prosecutor contended that there is absolutely no motive for P.W.1 to implicate the accused, who were strangers to her in a case of this nature, that as P.W.1 was a rustic woman, some discrepancies or inconsistencies are bound to occur and on that ground, the prosecution case cannot be disbelieved, that the main fabric of the prosecution case as testified by P.W.1 would clearly go to show that the accused committed rape on her and there is no enmity or grouse for P.W.1 to foist a false case, that she was totally a stranger to the accused, that the evidence of P.W.1 is completely in corroboration with the medical evidence, that the trial Court after elaborate consideration of evidence on record rightly found them guilty and there are no grounds to interfere with the same. 9. Under section 376(2)(g) I.P.C., whoever commits gang rape, are liable for punishment. A man is said to have commit ‘rape’ who except the case herein after excepted, has sexual intercourse with a woman under circumstances falling under any of the six descriptions in Section 375 of I.P.C. The entire case rests upon the solitary testimony of P.W.1 with regard to accused committing rape on her. When the evidence rests upon the solitary testimony of a witness, it must be unimpeachable in character and must be true and wholly reliable. Once the evidence of P.W.1 is put in the category of wholly reliable, then there is no difficulty in accepting her evidence. 10. P.W.1 is a resident of Sangareddy. Her husband deserted her prior to her shifting to Sangareddy. One month prior to the incident, she shifted to Sangareddy. While she was staying at Sangareddy, her daughter sustained fracture to her right hand. Therefore, she took her to Gandhi Hospital, Secunderabad. Her daughter was admitted in Gandhi Hospital as inpatient. As there was nobody to look after her daughter, she was staying at hospital and during night times, she used to sleep near the steps of the hospital. It is also in the evidence that 15 to 20 other persons were also sleeping near the steps. While she was sleeping near the steps on the date of incident, both the accused, in the mid night, took her to the upstairs near the water tank under threat and committed rape on her. She identified the accused as assailants. Two days thereafter, she narrated the incident to P.W.7, who scribed Ex.P-1. Ex.P-2 is the statement recorded by the Magistrate under Section 164 Cr.P.C. As seen from her evidence, she is an illiterate woman and she did not give the descriptive particulars of the accused as stated in Ex.P-1 or in Ex.P-2 or at the time when she was examined by the police under Section 161(3) Cr.P.C. The accused are totally strangers to P.W.1. She did not inform about the incident to anybody prior to lodging Ex.P-1 complaint. It is not in dispute that both the accused were employees working in Gandhi hospital, Secunderabad at the relevant point of time of incident. She did not raise cries as her mouth was gagged with a cloth. Similarly, she did not resist while both the accused were taking her from the steps because of fear. Except giving a suggestion that the accused were no way concerned with the incident and as the police offered huge amounts, she foisted a false case against the accused, nothing has been elicited to discredit her testimony. The accused also gave a suggestion that P.W.1 was not having a good character and that she was roaming by leaving her daughter frequently and as the security guards warned her, she foisted a false case against the accused. It is also suggested that no incident had taken place as stated by her, but all the suggestions were denied. It is not the case of the accused that P.W.1 did not come to Gandhi Hospital, Secunderabad and join her daughter as an inpatient in view of the fracture sustained on her daughter. As seen from her evidence, she appears to have visited Secunderabad for the first time, that too, for joining her daughter in the hospital. When the said aspect is not denied or disputed, the evidence of P.W.1 can be accepted with regard to coming to the hospital prior to the incident in question for joining her daughter. In these circumstances, the non examination of the Doctor, who gave treatment to the daughter of P.W.1 and non seizure of medical reports relating to the daughter of P.W.1, may not be fatal to the case of the prosecution. In view of the fact that the accused are totally strangers or admittedly strangers to P.W.1, false implication of the accused may not be possible. There must be some strong grouse or enmity or ill will for P.W.1 to implicate the accused in a case of this nature. Even after lengthy cross examination by the accused, nothing has been elicited to show that P.W.1 has bitter enmity against the accused and for that reason, a false case is foisted. Therefore, in the absence of any ill will or grouse, the evidence of P.W.1 can be accepted provided her evidence lends corroboration to the medical report. 11. P.W.4 is the Doctor, who examined P.W.1 on 22.10.1997 at 9.50 a.m. and found no external injuries on the body. She has taken two slides from the vagina and sent the same to Forensic Science Laboratory (F.S.L.) along with the clothes seized by the police. After receipt of Ex.P-7-F.S.L report, she opined that the possibility of sexual intercourse on P.W.1 cannot be ruled out. Except suggesting that her opinion is unscientific and bias, nothing has been elicited to discredit the testimony of P.W.4. Nodoubt, in the evidence of P.W.4, she admitted that as per the brief history mentioned in Ex.P-6, the incident took place behind the kitchen but whereas the evidence is otherwise and that she has not mentioned the names of the two persons who allegedly to have committed rape on her. As seen from Ex.P-6, it is clear that two persons committed rape on her by closing her mouth in Gandhi Hospital on 19.10.1997 at 12 p.m. P.W.1 was examined on 22.10.1997. So the earliest version would clearly go to show that she was subjected to rape by two persons in Gandhi Hospital. No doubt, there was a delay of three days in lodging the complaint. She has no male assistance and her daughter was admitted in the hospital for treatment. In such circumstances, it is not expected from her to go to the police station to lodge a complaint. It appears that after discharge from the hospital, she went to the police station and narrated the incident to P.W.7, who reduced the same into writing. The recitals in Ex.P-1 also would go to show that both the accused committed rape on her and threatened her that if she revealed the incident to anybody, they would kill her. The names of the accused have been mentioned in the First Information Report (F.I.R). Perhaps, on enquiry, she might have secured the names of the accused and the same were incorporated in the F.I.R. The probable ages of these two persons have been mentioned. She also stated that she could identify if these two persons were shown to her. Therefore, the recitals in Ex.P-1, except the names of the assailants, are completely in corroboration with the evidence of P.W.1. The recitals in Ex.P-1 are not shown to be fabricated or foisted or brought into existence to suit the case of the prosecution. Similarly, the recitals in Ex.P- 2 are completely in corroboration with the evidence of P.W.1. The evidence of P.W.1 is very clear that these two accused persons committed rape on her. Her evidence is also clear that they threatened her not to reveal the incident to anybody. She also stated that she could identify the assailants if they were shown to her. She admitted that after the incident, she did not see the accused again. She also admitted that the police have shown the accused in the police station on the date of giving the complaint. Basing on the said admission, the learned counsel for the appellants contended that it is totally a false case foisted against the accused. But this Court is unable to accept the said contention because it is stated in the cross examination and the same cannot be said to be a sole circumstance so as to doubt the case of the prosecution. Now the question arises for determination is how P.W.1 could identify the assailants. The incident has taken place in the Gandhi Hospital. While P.W.1 was sleeping near the steps, the accused took her forcibly to the upstairs and committed rape on her. At that time, there would be illumination of lights in the Gandhi Hospital. Therefore, she could be in a position to identify these persons because the physical features of the accused must have been imprinted in her mind so that she can recollect the same even after a lapse of some years and identify the assailants. Because the incident is an unmemorable one and blur on the conduct of P.W.1, she could be in a position to identify the assailants even after a lapse of long time. No doubt, the prosecution ought to have conducted a test identification parade so as to test the memory of P.W.1 immediately after the arrest of the accused, but it is a part of investigation by the investigating officer. Even some irregularities committed by the police in not conducting test identification parade, would not in any manner, affect the main fabric of the prosecution case if otherwise, found to be true and trustworthy. Generally, the identification parade would be conducted by the Magistrate on the requisition by the police when the assailants are not known to the witnesses prior to the incident. Admittedly, no such test identification parade was conducted after the arrest of the accused. But, however, from the beginning, it is the case of P.W.1 that she could be in a position to identify the assailants if they were shown to her. Therefore, it is for P.W.1 to give an explanation as to how she could be in a position to identify the assailants because P.W.1 spent considerable time with them. The physical features of the accused must have been imprinted in the mind of P.W.1. Nothing unusual for her to identify the assailants as elicited in the cross examination so as to doubt the testimony of P.W.1. 12. The accused were also examined by P.W.6 and issued Ex.P-8-potency certificate in respect of A-2 and Ex.P-9-potency certificate in respect of A-1 and opined that there was nothing to suggest that both were not capable of doing any sexual act. At the time of arrest of accused, their clothes have been seized and they were sent to the F.S.L. The clothes were seized by the Investigating Officer in the presence of P.W.3. As seen from F.S.L. report, the saree of the victim and the olive green colour trouser of A-2 contain semen and spermatozoa. Basing on the F.S.L.report, the Doctor gave opinion to the effect that P.W.1 was subjected to sexual intercourse. It cannot be said that P.W.1 was a consenting party. No doubt, no injuries were found on the body of victim. Similarly, she has not raised any cries nor resisted at the time of committing rape. But at the same time, there is no possibility for P.W.1 to raise the cries in view of the fact that her mouth was gagged with cloth. There was no possibility for raising cries at the scene of offence as no other persons were present and further more, she was threatened. While taking P.W.1 also, she did not raise cries because of fear. If she was consenting party, there is no need at all for her to go to the police station to lodge a complaint. While she was sleeping at the steps, she was taken forcibly by both the assailants and committed rape on her. After going through the evidence of P.W.1 coupled with the medical evidence, there is absolutely, no reason for her to foist a false case of this nature against both the accused, who were totally strangers. She had no enmity or grouse against the accused. She is not a resident of Secunderabad and on the other hand, at the time of incident, she was residing at Sangareddy, which is far away from Secunderabad. The trial Court placing reliance on the evidence of P.W.1, convicted and sentenced the accused. There are no grounds to interfere with the same. 13. It is brought to the notice of this Court by the learned counsel for the appellants that A-1 died during pendency of the appeal. Therefore, the appeal against him stands abated. 14. Accordingly, the Criminal Appeal is dismissed confirming the Judgment against A-2, dated 28.09.2001, in Sessions Case No.43 of 1998 on the file of the Special Judge for the trial of offences under SCs and STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad. ___________ K.C.BHANU, J 13th October, 2009 AMD