*THE HON’BLE MR JUSTICE R. KANTHA RAO + Crl.A. No.90 of 2001 % Dated 08.11.2010 # Savara Bennadu …Appellant Vs. The State of A.P. represented by Public Prosecutor, APHC, Hyderabad. …Respondent ! Counsel for the Appellant: Mr. P.Veera Reddy ^ Counsel for the Respondent: Public Prosecutor <GIST: > HEAD NOTE: ? Cases referred THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.90 of 2001 Date:08.11.2010 Between: Savara Bennadu …Appellant And The State of A.P. rep. By Public Prosecutor ….Respondent THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.90 of 2001 JUDGMENT: This appeal is directed against the judgment passed by the Additional Assistant Sessions Judge, Srikakulam on 08.01.2001 in S.C.No.94 of 1999. The first accused is the appellant. In all, five accused were put up for trial before the learned Additional Assistant Sessions Judge. Among the accused, the appellant/A-1 was tried for the charges under Sections 376(2(c)(e) and 506(ii) of IPC and the accused 2 to 5 were tried for the charges under Sections 201 and 176 of IPC. The learned Additional Assistant Sessions Judge acquitted A-2 to A-5 for the charges under Sections 201 and 176 of IPC, but convicted the appellant/A-1 for the offence under Section 376(2)( c ) of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for three months. Challenging the said order of conviction and sentence, A-1 preferred the present appeal. Briefly stated, the prosecution case is like this: The appellant/A-1 was working as Deputy Warden in Tribal Welfare Ashram, Upper Primary School Hostel, Haddubangi. PW- 1, the victim girl was studying class-IV and staying in the Ashram School Hostel at relevant time and she was aged about 12 years. Ten days prior to Dasara festival in the year 1998 while PW-1 was sleeping in the hostel, the appellant approached her at about 9 p.m., asked her to come along with him to clean the hostel room and while PW-1 was searching for broomstick, the appellant behaved with her in an indecent manner by inviting her to participate in sexual intercourse with him. He also caught hold of the hand of PW-1 but she got herself released from his clutches and returned to her room. She did not inform the incident to anybody. Subsequently, on 05.10.1998 at about 9 p.m. while PW-1 was sleeping on the verandah of the school along with PW-3 (B.Swathi), the appellant came there, woke her up twice, as PW-1 did not wake up, he took her forcibly to the store room by catching hold of her arm and closing her mouth, threw her on the ground and committed rape on her in the store room. Thereafter, he threatened her that she would be killed by naxalites if she informed the incident to anybody and he sent her away. PW-1 informed PW-3 about the incident. After the incident, PW-1 attended the classes for 2 or 3 days. Having decided to commit suicide, she jumped into the well. Some people who witnessed the same raised cries, then LW-9 (H.Krishna Rao) got into the well and rescued PW-1 from the well. PW-2, the Headmaster of the school after knowing about the attempt to commit suicide by PW-1, sent her along with the appellant and LW-11 (T.Suramma) to her parents’ house. After reaching her parents’ house, PW-1 informed her parents’, A.Bhasker Rao (LW-2) and PW-2 and all the three on 16.10.1998 went to Haddubangi, approached the Head Master of the School and thereafter informed A-2 to A-5 about the rape committed by A-1 on PW-1. When PW-2 chastised him for the offence committed by A-1, he tendered a letter of apology to A- 2 and A-3 in writing of admitting the commission of the offence and thereafter PW-2 sent away the parents of PW-1 to their village. Two days thereafter when A-5, a reporter of Vartha daily newspaper asked PW-1 as to what happened, she narrated the incident to him and also gave it to him in writing. A-5 assured PW- 1 that he would hand over the same to the police, but he did not give it to the police. On 02.11.1998 PW-1 and her parents approached the Project Officer, I.T.D.A. and informed about the offence. The Project Officer in turn instructed PW-4 (N.Bhadraiah), Superintendent in his office to take them to the Police Station, Seethampeta. Accordingly, PW-4 took them to the police station, Seethampeta where PW-1 gave statement to the Sub-Inspector of Police and he reduced the same into writing. Basing on the said statement, the Sub-Inspector of Police registered a case in Crime No.43 of 1998 under Section 376(2)(c) (e) of IPC and commenced investigation. Subsequently, the Inspector of Police, Kotturu circle took up investigation and after completing investigation, he filed the charge sheet. The prosecution in order to establish the guilt of the appellant/A1 and other accused, examined PWs.1 to 14, marked Exs.P-1 to P-13 and M.Os.1 to 3. The appellant did not propose to examine any witnesses. Exs.D-1 to D-3 were marked on behalf of the appellant. The learned trial Court upon considering the entire evidence on record, convicted the appellant for the offence under Section 376(2)(c) of IPC and sentenced him to punishment as mentioned above. I have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor representing the State. The following points/contentions have been urged on behalf of the appellant: i) PW-1, the victim girl was aged 16 years on the date of incident, it can be understood from the evidence on record that she consented for the intercourse with the appellant and therefore, no offence under Section 376(2)( c ) of IPC is made out; ii) The incident was allegedly occurred on 05.10.1998 and the F.I.R. was lodged with the police on 02.11.1998 i.e. 28 days after the incident and therefore, the said inordinate delay is fatal to the case of the prosecution and the learned trial Court ought not to have placed any reliance on the testimony of the witnesses; iii) From the testimony of PW-12, the doctor, there is evidence of sexual intercourse but it is contrary to the findings in the F.S.L. report which states that there was no recent evidence of sexual intercourse. POINT No.1: Before proceeding to discuss as to whether PW-1, the victim girl was aged 16 years on the date of the incident, it is necessary to find out as to whether she did actually consent to the sexual intercourse. Her evidence before the trial Court reveals that on 05.10.1998 at about 9.00 p.m. while she was sleeping along with PW-3 in the verandah of the hostel, the appellant came there, woke her up, when she did not respond, he forcibly took her away into the store room by catching hold of her hand and also closing her mouth with the other hand, threw her on the ground and committed rape on her in spite of her offering resistance. It has to be kept in mind that the appellant is the warden of the hostel and PW-1 is a student of IV class staying in the hostel attached to the Ashram School. PW-1 being under the control of the appellant cannot be expected to offer much resistance for each and every act committed by the appellant. The appellant was in a dominating possession by virtue of his employment and age. However, the evidence of PW-3, a co-student who was sleeping near PW-1 also indicates that the appellant came to the place where PW-1 was sleeping and took her away. The evidence of PW-3 thus lends assurance to the version of PW-1 that the appellant forcibly took her away into the store room. PW-1 specifically deposed to the fact of the appellant throwing her on to the ground and committing sexual intercourse forcibly in spite of her offering resistance. This apart, PW-1 stated in her deposition that few days before Dasara festival, the appellant called her to sweep the store room at about 7.00 p.m. and while she was searching for broomstick, the appellant caught hold of her and expressed his desire to have sexual intercourse with her and she refused and escaped from the clutches of the appellant. This part of the evidence of PW-1 clearly indicates that she refused to have sexual intercourse with the appellant when he made a proposal for that. Therefore, it is not possible to accept the version that PW-1 was a consenting party to the sexual intercourse. Her evidence also further discloses that on the third day of the incident, she became vexed with the life and attempted to commit suicide by jumping into the well and was rescued. If really she was a consenting party, she would not have resorted to commit suicide. Coming to the age of PW-1, the prosecution version is that she was studying IV class in the Ashram School and was aged about 12 years. PW-1 also stated in her chief-examination that she was studying IV class on the date of the incident. In the cross-examination she stated that she was born in the year 1981 in Chinnabaddangi village where she studied up to IV standard and thereafter she studied in Manumukonda for some years and from there she joined in Ashram School, Haddubangi in V standard. Thus, apparently there was some break in the studies of PW-1 and it is likely that her age might be more than that of a student who normally reaches IV standard without any breaks. But, there is positive evidence of PW-4, the doctor who conducted ossification test and stated that PW-1 is aged about 14 to 15 years which is furnished by him under Ex.P-12 opinion. Since the error may be two years on either side, the contention urged by the defence that PW-1 was aged 16 years on the date of the incident cannot be rejected outright. However, the crucial question is whether PW-1 is a consenting party to the sexual intercourse. The evidence above referred does not indicate that the appellant did commit sexual intercourse with the consent of PW-1. Obviously the evidence on record discloses that the appellant had sexual intercourse with PW-1 forcibly much against her will and in spite of her offering resistance. Therefore, the age of PW-1 at relevant time is inconsequential. POINT NO.2: Indisputably the incident took place on 05.10.1998 and the F.I.R. was registered basing on the statement of PW-1 on 02.11.1998 and thus there occurred delay of 28 days in lodging the F.I.R. It is to be remembered that delay by itself how long it might be, cannot be said to be fatal to the prosecution. It becomes fatal only when there are circumstances showing that the delay resulted in introducing a false or distorted version. Prompt reporting of offences of rape normally cannot be expected because reporting such incident involves the honour and reputation of the victim girl as well as family members. The victim as well as her family members certainly would examine the consequences of lodging the report of the incident of rape from various angles before making a decision as to whether they have to lodge a report with the police. There are number of rape cases which remain unreported. Therefore, unless there are some circumstances indicating false implication of the accused in a charge of rape on account of any motive or enmity, it is not proper to conclude that the veracity of the prosecution version has to be doubted on account of delay. In the instant case, PW-1 is a girl studying in IV class and she was under the control of the appellant who is the Deputy Warden of the Hostel attached to the Ashram School. In normal course, it can not be expected of her to react immediately to the atrocious acts committed by the appellant. The very fact that PW-1 attempted to commit suicide indicates that she was subjected to lot of desperation and anguish due to the atrocious act committed against her. PW-6, a watchman of the hostel at the relevant time stated in his deposition that he saw A-2, the Headmaster, A-3, the Sarpanch of the village and A-4, the V.A.O. questioning the appellant (A-1) about his committing rape on PW-1 and asking him to tender apology. He also further deposed that A- 1 gave apology in writing and handed over the same to the headmaster and the headmaster retained it and that the headmaster warned the appellant to be careful in future. Though the prosecution could not be able to produce the said apology letter may be in view of the fact that A-2 the headmaster was also made an accused in this case, there is nothing to disbelieve the evidence of PW-6 on this point and even in the absence of such written apology, the evidence of PW-6 can be safely relied upon regarding the issue that in fact, on being questioned, the appellant tendered apology in writing admitting his guilt. Not even a single circumstance was brought on record by the defence to enable the court at least to suspect that the appellant was fixed in this case falsely due to some motive or enmity on the part of either PW-1 or her parents or the staff of the school. For all these reasons, though there is delay of 28 days in lodging the F.I.R., it is not possible for the Court to reject the testimony of PWs.1, 2, 3 and 6 as untrustworthy. There is any amount of truth in their version and absolutely there is no sufficient reason for anybody to give false evidence against the appellant to fix him in a grave charge of rape. The delay therefore, cannot be said to be fatal to the case of the prosecution since it is inconsequential and also has been properly explained. POINT NO. 3: The incident allegedly took place on 05.10.1998. PW-1 was examined by PW-12, Dr.Padmavathi on 02.11.1998. The result of the analysis was noted in the F.S.L. report on 09.01.1999. PW-1 stated in her evidence that she washed petty- coat M.O.1 number of times before it was handed over to the police. Therefore, absolutely there was no possibility for presence of seminal stains on M.O.1. Similarly, M.Os.2 and 3 lungi and underwear of the appellant were also seized by the police long after the incident under seizure report Ex.P-6. Therefore, there is no possibility of taking any seminal stains on M.Os.2 and 3 also. The F.S.L. report based on the analysis of above mentioned articles and the said material objects which were sent for analysis might not have afforded any evidence indicating commission of the offence. PW-12, the doctor who clinically examined PW-1 categorically stated in her evidence that there is old hymeneal tear and there is evidence of sexual intercourse. The observation as to the old hymeneal tear might be due to the long delay between the incident and examination of PW-1 by the doctor. According to clinical examination by PW-12 there was evidence of sexual intercourse, the findings of analysis in the F.S.L. report in view of the reasons stated hereinbefore are not of much consequence. Further, the conclusion as to whether the rape was in fact committed or not is a legal conclusion and not a medical conclusion. When the evidence of PW-1 inspires confidence and it contains the positive statement of PW-1 that the appellant forcibly committed rape on her, the court can come to a legal conclusion irrespective of the medical opinion forthcoming in this case. Thus, the medical evidence in this case is not of much importance and a finding can be recorded basing on the oral evidence available on record to the effect that PW-1 was raped by the appellant. The learned trial court therefore rightly apprised the evidence available on record and the conclusions reached by the trial court that the appellant committed rape on PW-1 and the conviction recorded inconsequence thereof against the appellant need no interference and are liable to be confirmed. This is a case where the Deputy Warden of hostel attached to the Ashram School committed rape on a girl who was studying in Class IV. The sentence awarded by the trial court is not severe, having regard to the nature and circumstances of the case, it also needs no interference and the same is liable to be confirmed. On the aforesaid analysis and reasoning, the conviction and sentence passed by the trial Court against the appellant are confirmed. The appeal is dismissed. _______________ R. KANTHA RAO, J Date:08.11.2010 Note: L.R. Copy to be marked. B/O CCM THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.90 of 2001 Date:08.11.2010