The Hon’ble Sri Justice G.Bhavani Prasad Criminal Appeal No.590 of 2006 Order: Conviction of the accused for the offence punishable under Section 376 (2) (f) of the Indian Penal Code, 1860 (for short ‘the IPC’) and consequential sentence imposed on him by the learned Special Judge for the Trial of Offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, vide S.C.No.105 of 2005, dated 02-01-2006, is the subject matter of the present appeal preferred by the accused. The accused was prosecuted alleging that the victim –G.Latha (hereinafter referred as ‘victim’), aged about six years, was watching television in New Simla Hair Dressing Saloon, Bapuji Nagar, Bowenpalli, Secunderabad, on 02-07-2004 after 2.00 p.m., and the accused, who is a barber in the said saloon, tonsured the head of the victim, made her lay down in the chair and rubbed her private parts with his male organ. The victim’s mother went to Grammar School to bring books for her elder daughter and on her return, she found the victim to be weeping. When she enquired, the victim told about the incident and she also found presence of blood in the private parts of the victim. Then she sent word to her husband and when the accused tried to escape from his shop, the local people chased and caught him. After return of the father of the victim, a complaint was given to the Police, who registered the same as Crime No.220 of 2003 of Bowenpally Police Station and investigated into. The victim was sent to hospital and the scene of offence was examined in the presence of mediators under an observation report. The underwear and frock of the victim were seized and a rough sketch of the scene was prepared. The accused was produced before the Police at about 8.00 p.m., by G.Durgaiah and Kalyan Ajith Kumar and as he alleged that he was beaten up by the locality people, he was sent to Hospital. The clothes of the accused were also seized before the mediators under a seizure report and the accused was subjected to potency test. The accused was remanded to judicial custody and after receipt of medical and chemical reports, a charge sheet was filed. After taking cognizance of the offences and after copies of the documents were furnished to the accused on his appearance, the Magistrate committed the case to the Court of Session and the Court of Session framed charges under Section 376 (2) (f) of the IPC and Sections 3 (1) (x) and 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the accused. The accused pleaded not guilty and claimed to be tried. During the trial, on behalf of the prosecution, P.Ws.1 to 12 were examined and Exs.P.1 to P.10 and M.Os.1 to 6 were marked and on behalf of the defence, Ex.D.1 was marked. The accused denied the incriminating circumstances appearing in the evidence against him, when he was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) and he had no defence evidence. The trial Court rendered the impugned judgment referring to the evidence of P.W.1, the mother of the victim, about her being informed by the victim of the offence and the subsequent events. The trial Court noted the suggestion made to P.W.1 that the accused was a drunkard and it also referred to the evidence of P.W.2, the child, about the overt act of the accused resulting in bleeding and pain. The answers of P.W.2 for the suggestions by the Counsel for the accused were explained with reference to her age and the trial Court also noted that the accused admitted, in his examination under Section 313 Cr.P.C., about himself tonsuring the victim. The trial Court also referred to P.W.3 stating about his finding the local people beating the accused for committing rape on P.W.2 and his handing over the accused to the Police. The evidence of P.W.4 -the mediator for observation of the scene of offence & seizure of M.Os.1 and 2 under Ex.P.2, the evidence of P.W.5 -the mediator for the seizure of Mos.3 to 6 under Ex.P.3, and the evidence of P.Ws.8 and 12 -the Investigating Officers, was referred to and it was noted by the trial Court that the clothes seized from the accused and the victim, of course, did not disclose any incriminating evidence. The trial Court further noted that P.Ws.6 and 7 turned hostile and denied their statements to the Police as in Exs.P.4 and P.5 respectively. P.W.11 was noted to be referring to the accused working in his saloon and the victim being a neighbour and a visitor to his saloon to watch the television. P.W.11 was also noted to have corroborated the accused being beaten by the public alleging rape of P.W.2, when he went to his house for lunch. The information to P.W.11 at the earliest point of time was considered to be a corroborating circumstance coupled with the admission of the accused about the visit of the victim to the saloon and his tonsuring her head. The trial Court also noted the admission of the accused about the seizure of his clothes and also the clothes of the victim and it was observed that the suggestions made to the witnesses on behalf of the accused about the victim getting tonsured in Tirumala Hair Dressers and the accused being beaten in some toddy compound were controverted by the accused himself with his statements during Section 313 Cr.P.C., examination. The trial Court also observed that Ex.P.1-First Information Report was registered very promptly and was sent to the Magistrate without any delay. The trial Court also noted that P.W.10 and Ex.P.10 disclosed that the medical officer was intimated about the alleged sexual assault by the accused on the victim even by 2.00 p.m., on the same day and the medical officer found bleeding near the external genitalia of the vagina. While there is positive evidence of P.W.10 based on the report of the Forensic Science Laboratory in Ex.P.9 that there was evidence of sexual assault, the medical evidence was, thus, found to be corroborating the version of P.W.2 and the result of the potency test conducted on the accused by P.W.9 was also referred to as confirming the capability of the accused to commit the offence. The identity of the accused since inception, the absence of any dispute about the age of the victim, the allegations since inception about the undergarments of the accused and P.W.2 being removed before the offence, thus, explaining the absence of any physical evidence on the clothes of the victim and the accused and all other circumstances arising out of the evidence were referred to in detail to conclude that the offence was clinchingly established. The trial Court also found the decisions relied on by the defence Counsel to be not applicable on facts. The trial Court, while noting that the evidence of a child witness needs to be approached with care and caution, observed that the possible ignorance of the victim about ‘what rape is’ should be kept in view while the other evidence clinchingly established the alleged offence corroborating the claims of P.W.2. However, in so far as the alleged offences under the Scheduled Castes and the Scheduled Tribes (POA) Act, 1989, are concerned, the trial Court found that the Investigating Officer was not appointed, as such, in compliance with Rule 7 of the statutory Rules under the special statute and as the same was mandatory, the prosecution of the accused based on such investigation has to fail. The trial Court also noted that the tonsuring of the victim and rape on her were also not alleged to have been committed on the ground that the victim belonged to the scheduled caste. Therefore, the trial Court found the accused to be entitled to acquittal under the special statute while liable to be convicted under Section 376 (2) (f) of the IPC. The trial Court examined the accused regarding the question of sentence and recorded his plea about his having two daughters and sentenced him to undergo Rigorous Imprisonment for ten years and to pay fine of Rs.100/- with default sentence for one month. The period of remand from 05-07-2004 to 30-03-2005 was directed to be set off. The accused approached this Court in this Appeal through the learned Counsel engaged by the Andhra Pradesh High Court Legal Services Committee, contending that the identity of the culprit was not established in view of the admission of P.W.2 and the Investigating Officer not seizing the blood stains found at the scene, according to the observation report, should have been noted. P.Ws.3 to 5 are stock witnesses and their evidence is of no help to the prosecution and hence, the accused desires his conviction to be reversed. Heard Sri K.Sitharam, learned Counsel for the appellant, and Sri K.Venkateswara Rao, learned Counsel representing the learned Public Prosecutor for the respondent. The point for consideration is, whether the prosecution proved the guilt of the accused for the offence punishable under Section 376 (2) (f) of the Indian Penal Code beyond all reasonable doubt ?, and if so, what would be the reasonable punishment to be imposed ? The parents of the victim were not alleged to be having any reason or motive to falsely implicate the accused and at any rate, the victim herself, then aged six years, cannot be accused of having any cause for making a false accusation against the accused. The victim and her parents being neighbouring residents to the New Simla Hair Dressing Saloon, in which the accused was then working, was not in dispute and from the evidence of the owner of the saloon as P.W.11, the presence of the accused at the saloon at the relevant time is clear. In fact, the absolute variance between the suggestions made on behalf of the accused to the witnesses and the accused’s own version in his examination under Section 313 of the Cr.P.C., make the claims of the accused not open to acceptance, while his admissions during his examination under Section 313 Cr.P.C., about the victim visiting the saloon and his tonsuring the victim at about the time of the alleged offence provide independent corroboration to the interested claims of the victim and her mother. Even if the evidence of P.Ws.1 and 2 is tainted with interestedness, it is not as though every interested evidence is false evidence. The only rule of prudence will be to look for satisfactory corroboration to such evidence from the other material on record and the claims of the witnesses were analyzed in detail by the trial Court. The dependable consistency in the version of P.W.2, the allegation against the accused being made by the locality people since soon after the incident, as stated by P.Ws.1 and 3, the prompt report to the Police, the admitted seizure of the clothes of the victim and accused, the medical evidence about bleeding being found near the external genitalia of the victim soon after the incident and the confirmation of evidence of sexual assault on receiving the final report of the Forensic Science Laboratory, the capability of the accused to indulge in the offence and the absence of any serious discrepancies or improbabilities in the version of the prosecution and its witnesses should be leading to agreeing with the conclusions of the trial Court, which also had the benefit of observing the witnesses in flesh and blood. Therefore, the conclusion of the trial Court about the guilt of the accused for the offence punishable under Section 376 (2) (f) of the IPC has to be upheld. However, coming to the question of sentence, the accused was stated to be aged about 30 years by the time of the offence. He was a barber by profession and he was not accused of having any past criminal record or convictions. Though the denial of the offences by him was found to be not acceptable, his claim that he had two daughters being not in dispute, the liability to maintain his spouse and two daughters is also a relevant circumstance. Since about 5 ½ years, the accused was subjected to the stress and agony of a criminal prosecution and he was in judicial custody from 05-07- 2004 to 30-03-2005 before his conviction and again from the date of his conviction on 02-01-2006 till date. While it is true that the offence under Section 376 (2) (f) is punishable with imprisonment, which shall not be less than 10 years and fine, the proviso to Section 376 (2) IPC enables the Court to impose a sentence of imprisonment of either description for a term of less than ten years, for adequate and special reasons to be mentioned in the judgment. The offence of rape under Section 376 (1) of the IPC is punishable with imprisonment for a term, which shall not be less than 7 years, again subject to a lesser sentence for adequate and special reasons to be mentioned in the judgment. It should also be noted that though the accused committed a heinous crime against a child of six years, his physical violation did not result in any significant injuries to the victim except bleeding near external genitalia of the victim. Taking an overall view of all the facts and circumstances, reducing the sentence to imprisonment of six years will meet the ends of justice and will be sufficient to deter against repetition of such conduct by the accused and in all hope, he would have been reformed with this experience. Therefore, the conviction of the accused for the offence punishable under Section 376 (2) (f) of the Indian Penal Code vide judgment, dated 02-01-2006, in SC.No.105 of 2005 on the file of the Special Judge for the Trial of Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, is confirmed. But, the sentence imposed by the said judgment for the said offence is modified into Rigorous Imprisonment for six years and a fine of Rs.100/-, with a default sentence of simple imprisonment for one month, and set off for the period of remand under Section 428 of the Cr.P.C. The Criminal Appeal is ordered accordingly. ___________________ (G.Bhavani Prasad, J) 24th December, 2009 lur