THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2471 OF 2004 BETWEEEN: Naika Venkati … Appellant AND The State of A.P. rep by its Public Prosecutor, High Court of AP, Hyderabd … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2471 OF 2004 JUDGMENT: The appellant/accused was convicted of the offence under Section 376 (2) (f) IPC by the Assistant Sessions Judge, Kamareddy, by judgment dated 13-08-2004 in Sessions Case No.246 of 2001 and was sentenced to rigorous imprisonment for ten years and fine of Rs.5,000/- out of which Rs.4,000/- was ordered to be paid to the victim (PW-3) as compensation. Questioning the same, the accused filed this appeal. 2. It is alleged that on 26-08-2000 at 4.00 p.m. the accused committed rape on minor girl PW-3 aged seven years at Anthampally village. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of the charge. 3. PWs.1 and 2 are parents of the victim girl PW-3. Prior to the offence, PW-3 was playing with PWs.5 and 6. It is alleged that the accused went there at about 4.00 p.m., gave Rs.2/- to PW-5 and asked him to go and bring chocolates and that PW-5 went to PW-4’s shop and purchased 4 chocolates and returned and that accused distributed the chocolates to PWs.3, 5, 6 and another boy Venkati and kept PWs.5, 6 and Venkati in a room and bolted it outside and thereafter committed rape on PW-3 by laying her on a wooden cot. The said version was spoken to by PWs.3, 4 and 5. Since PWs.4 and 5 were kept in a room and which was bolted from outside, they were not eyewitnesses to the occurrence. After the offence, when PW-3 was weeping, the children questioned her and PW-3 is stated to have narrated the incident to them. The house where the offence took place is by the side of house of PW-3 separate by a road. Parents of the victim namely PWs.1 and 2 were not in the house at the time of offence. PW-1 was working as Village Servant. PW-2 went to agricultural fields on coolie work. When PW-2 returned to the house and enquired PW-3 as to why she was weeping, PW-3 narrated the incident to her and it was again reported by both of them to PW-1 after he returned to house on the same night. 4. It is contended by the appellant’s counsel that there is delay of two days in giving Ex.P-1 report by PW-1 to the police. The report was given on 28-08-2000. It is contended that the delay of two days in this case was not at all explained. No doubt, it was not elicited from PWs.1 and 2 as to why the delay occurred. Column No.8 of Ex.P-9 printed F.I.R. reads that the delay occurred because PW-1 was searching for the accused. PWs.1 to 3 belong to lower strata in the society. PW-1 is stated to have been searching for the accused to find out his version on the information furnished to him by PWs.3 and 2. PW-1 is a marksman. In view of illiteracy and ignorance of consequences of the delay and because of searching for accused, the delay of two days in giving Ex.P-1 report occurred in this case. Delay in giving report to the police is not fatal in every case. It has to be judged with reference to the facts and circumstances in each case. When the circumstances are weighed in this case, I am of the opinion that the scales are tilting in favour of the de-facto complainant/PW-1 and in favour of the prosecution. 5. Though PWs.1, 2, 5 and 6 deposed in the lower Court narrating the incident of rape, their evidence in this regard may not be relevant as eyewitnesses to the occurrence; but their evidence is only relevant to the extent of what the victim/PW-3 furnished information to them. Evidence of PWs.5 and 6 is relevant to the extent that the accused kept them in a separate room and bolted the door from outside and the accused and PW-3 were in another room during that time. 6. It is contended by the appellant’s counsel that there are discrepancies relating to timing in the prosecution evidence. All the witnesses PWs.3 to 6 gave the events being happened at 4.00 p.m. It is contended that purchasing of chocolates in PW-4’s shop preceded the alleged commission of rape on PW-3 and in spite of it, the timing of both the events is stated as 4.00 p.m. In a case of this nature when young/child witnesses were giving evidence, meticulous timing in minutes and seconds cannot be expected. 7. It is the evidence of PW-3 that at about 4.00 p.m. the accused took her to the house of Baikadi Siddaiah, offered a chocolate and made her to lay on a wooden cot and sexually assaulted her. It was recorded by the lower Court in Telugu to the effect that accused laid on her. PW-3 further says that the accused also pressed clothes into her mouth and committed rape for a long time after closing the doors. It is pointed out by the appellant’s counsel that in cross-examination PW-3 stated that her parents asked her to state in the same manner in which she stated in her examination in chief and that she was stating in Court as stated to her by the police. Therefore, it is contended that parents and the police tutored PW-3. When trial of the case was taken up after three years of the offence, there was nothing wrong in parents and the police reminding the events to PW- 3 before giving evidence in Court. At any rate, PW-3 did not state in the cross-examination that she was tutored to give false evidence in Court. She totally denied the suggestions of the defence counsel in her cross-examination. At the time of offence, PW-3 was aged about 7 years. 8. PW-10 is the Civil Assistant Surgeon in Area Hospital, Kamareddy, who examined PW-3 and gave Ex.P-5 medical certificate and Ex.P-8 final opinion certificate. As per Ex.P-5, PW-10 examined PW-3 on 28-08-2000 when PW-3 was sent for medical examination by the police. PW-10 in her evidence repeated the contents of Ex.P-5 and Ex.P-8. PW-10 deposed that there were no marks of violence on both breasts, face, front and back of chest, abdomen, buttocks, inner side of thighs and lower limbs. PW-10 noted that PW-3 was having ill-developed vulva. She noticed bruising of 1/2 cm x 1/4 cm on right side of right para-clitorial area; and another bruise of 1/4 x 1/2 cm below the first one. She says that both the bruises are tender to touch and that slight bleeding was present from vagina. After seeing Ex.P-7 F.S.L. report, PW-10 gave Ex.P-8 final opinion to the effect that there was painful micturation and tenderness of vulva and that there were injuries on vulva. PW-10 finally concluded by giving opinion to the effect that rape cannot be ruled out. The lower Court taking into consideration of evidence of PW-3 and medical evidence of PW-10 and circumstantial evidence of PWs.5 and 6 found that the accused committed rape on PW-3. 9. It is contended by the appellant’s counsel that when there was commission of rape for long time as per evidence of PW-3, semen or spermatozoa should have been found in vaginal swab and vaginal smear and also from wearing apparel of the victim. Ex.P-7 F.S.L. report shows that no blood or semen or spermatozoa was deducted on either of them. On the other hand, it is contended by the Additional Public Prosecutor as per explanation to Section 375 IPC, mere penetration constitutes the offence of rape. It has to be seen whether there was any possibility of penetration in this case. 10. The accused was aged 20 years as per Ex.P-6 medical certificate issued by PW-9 who is another Civil Assistant Surgeon in Area Hospital, Kamareddy. He was a grown up person with fully developed genitalia. Whereas the victim PW-3 was a child aged six or seven years as per Ex.P-5 medical certificate. PW-3’s vulva was not fully developed. In case of penetration, PW-3 would have sustained more ruptures on her genitalia. In the absence of violent injuries on genitalia of PW-3, I am of the opinion that there was no possibility of any penetration into PW-3’s vagina. PW-10 did not state whether PW-3’s vagina admits even a finger. She did not examine PW-3 on that aspect. If really there was any penetration, PW-3 would not have sustained two simple bruises on her vulva at para-clitorial area. In the event of any penetration, there would have been profuse bleeding from PW-3’s vagina. In the absence of the said violent injuries on PW-3, this Court has to necessarily conclude that there was no penetration as such in this case. At the same time, there was attempt on the part of the accused to commit rape on PW-3 by falling on PW-3 and by making attempts for penetration, which attempts caused bruises on vulva of PW-3. In my opinion, the lower Court did not examine medical evidence of PW-10 and Exs.P-5 and P-8 thoroughly and based its conclusion on superficial findings of the Medical Officer. PW-10 who appears to be ignorant of the definition of rape in Section 375 IPC. The medical officer is not expected to give a finding whether there was rape or not; but the medical officer has to give opinion whether there was sexual intercourse or whether there was possibility of sexual intercourse. Ultimately it is for the Court to give a finding whether there was any ‘rape’ as defined under Section 375 IPC, after considering oral, circumstantial and medical evidence on record. 11. In view of the above discussion, I am in agreement with the contention of the appellant’s counsel that there was no accomplished rape and that at best it can be a case of attempt to commit rape. Therefore, I find that the accused/appellant though not guilty of the offence under Section 376 (2) (f) IPC, is guilty of the offence punishable under Section 376 (2) (f)/511 IPC, which is proved beyond all shadow of doubt. 12. In the result, the appeal is partly allowed altering conviction of the accused/appellant from Section 376 (2) (f) IPC to Section 376 (2) (f)/511 IPC; and altering the sentence of imprisonment from ten (10) years to five (5) years. The fine amount and the compensation amount are confirmed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 19.08.2011 PN Note: L.R. copy to be marked. B/o.Pn THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2471 OF 2004 DATED: 19.08.2011 PN