HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2222 of 2004 Date:03.02.2011 Between: Sadineni Srinivasa Rao ….Appellant And: The State of A.P., rep. by PP .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2222 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Sessions Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1980, Guntur in S.C.No.14 of 2004 on 6.10.2004. The appellant herein was prosecuted for an offence under Section 3(1)(x), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (for short, the Act) and under Section 376 IPC. The brief case of the prosecution is that on 2.10.2003, the husband of the victim Pathangani Papa went to others filed for cooly work. The victim Pathangani Papa approached Ch. Pedda Seshagirirao for arranging wet ploughing of the land for transplanting paddy in the fields which was leased out by him to her and he arranged the Tractor of the accused. On that day evening, her son P. Kishore, the driver of the tractor Bajja Nageswara Rao and the accused who is the owner of the tractor went to the filed along with the tractor for ploughing the land taken on lease by the victim Pathangani Papa and the victim has also gone to the said land at about 7.00 p.m. After completion of the ploughing the driver of the tractor Bajja Nagswara Rao has requested the son of the victim P. Kishore to accompany him as he has not aware the way back to the village. Thereupon, the son of the victim accompanied the driver of the tractor to the village and the victim Pathangani Papa and the accused returning back by walk and when they reached the filed bund, the accused assaulted her and committed rape on her. According to the prosecution, the victim belongs to ‘Mala’ community and the accused belongs to ‘Khamma’ community. After the incident, while she was returning to the village met her son Kishore on the way and narrated the incident to him and both of them came to the village and informed the same to her husband and also to the village elders and on the advise of the village elders, she lodged a complaint before the police. The lower court has framed a charge under Section 3(2)(v) of the Act and under Section 376 IPC against the accused and the accused pleaded not guilty for the said charges. The prosecution in order to establish the charges examined P.Ws.1 to 9 and got marked Exs.P.1 to P.11 and M.Os. 1 to 6. The accused in his Section 313 examination has stated that the evidence of the prosecution is false and he was falsely implicated in the case as he caught hold of P.W.2 i.e., the son of the victim red- handed while he was committing theft in his filed. Now the point that arises for consideration is whether the prosecution could able to establish the charges under Section 376 IPC and Section 3(2)(v) of the Act. The learned counsel for the appellant has pleaded that the accused falsely implicated in this case as he belongs to higher caste and the circumstances show that if any incident happened it might be with the consent of the victim P.W.1 as the P.W.1 victim instead of going on the tractor along with her son which was going to the village, accompanied the accused at 7.00 p.m to go by walk to her village. The learned counsel for the appellant further pleaded that except the evidence of P.W.1, there is no other evidence to substantiate the allegations made against the accused and that the witnesses examined by the prosecution belongs to the same community of the victim and as such the accused is entitled to benefit of doubt. According to the prosecution, when the incident has taken place on 2.10.2003 at about 7.00 p.m on the tank bund, except P.W.1 and the accused no others are present at that place. Therefore, it has to be examined whether the evidence of P.W.1 is sufficient to establish the charges framed against the accused. P.W.1 who is the victim Pathangani Papa has stated that she is an agricultural labour and do not possess any lands. They take Ac.1.00 of land on lease pertaining to Chukkapalli Peda Seshagiri Rao and cultivated during the incident period. On 2.10.2003, they engaged the tractor of accused which was driven by Bajja Nageswara Rao and that her son Kishore, the accused and Bajja Nageswara Rao all went to their leased land. On the same day, he reached the said land around 6.00 p.m., and after completion of ploughing while returning back, Bajja Nageswara Rao the driver by saying that he do not know the way to the village took her son Kishore on the tractor. Then herself and the accused were alone present in the land. While returning to the village by walk herself, and accused crossed the irrigation canal and walking on the bund. Then the accused caught hold her hand and pulled her back and laid her on the ground and then she pleaded with folded hands not to spoil her and even then the accused did not heed her request and made her fell on the down on the ground and she sustained injury to her waist and the accused committed rape on her and threatened her to kill if she makes any cries. After committing rape, the accused left from that place and thereafter she was returning to home by weeping and on hearing her cries, her son Kishore came opposite to her. She narrated the incident to him. After she returned to home, her husband reached home and she narrated the incident to him. Then both of them informed the incident to their caste elders viz., Sikha Seshayya, Seshagiri Rao, K. David and others. They went to Vemuru Police station on the same day night to give a report. Sikha Seshayya scribed the report. She signed on the said report. The contents of the report are read over to the victim and she admitted the knowledge of the said contents to be true. Ex.P-1 is the report. Then she handed over her wearing apparels to the police. M.O.1 is brick coloured cotton petti coat. M.O.2 is the ratnavli coloured Terri cotton blouse. M.O.3 is the green coloured polyester saree with blue and Merune coloured edges and having green flowered design and with a fall. Thereafter, the police sent her to the hospital for examination and report. In the cross-examination, she has stated that she knows the accused since the date of her marriage. She knows the accused as they belong to the same village. The accused is aged about 25 years. She is aged in between 40 to 50 years. She has having a son of the accused age group. Therefore, according to P.W.1 they have taken Ac.1.00 of land on lease from Chukkapalli Peda Seshagiri Rao and on that day they engaged the tractor belongs to the accused and after completing the ploughing, the driver and her son returned back to the village on the tractor and herself and the accused started returning village by walk and when they were on the filed bund, the accused committed rape on her. With regard to the taking of land on lease, the prosecution has examined the said Chukkapalli Peda Seshagiri Rao as P.W.5 but he did not support the version of P.W.1 with regard to giving of his land to P.W.1’s husband on lease. He has denied about his giving of land of Ac.1.00 to the husband of P.W.1. He also stated that he never gave his land of Ac.1.00 on lease to the husband of P.W.1 Vasantha Rao at any point of time. He never engaged the tractor of accused for puddling of his land. With regard to engaging the accused tractor for ploughing the land taken on lease by the husband of the P.W.1, the driver of the tractor was examined as P.W.4 and he also not supported the version of the prosecution and even though admitted that the accused is the owner of the tractor but he never worked under him as driver of the tractor and he did not know any thing about this case. Therefore, the prosecution could not able to establish that the husband of the P.W.1 taking the land of Ac.1.00 on lease from P.W.5 and they engaged the tractor of the accused for ploughing the land and the said tractor was driven by P.W.4 Bajja Nageswara Rao. In order to establish rape committed by the accused on P.W.1, she has stated that immediately after the incident she gone to the police station and lodged Ex.P.1 complaint P.W.6 Peda Seshaiah who has drafted the said complaint has admitted about his going along with P.W.1 to the police station and he prepared Ex.P-1 complaint as per the information furnished by P.W.1. After read over the contents of the complaint, P.W.1 signed on the complaint and later it was presented in the police station. The P.W.7 the Head Constable has received the complaint from P.W.1 and registered the case in Crime No.53 of 2002 under Section 376 IPC and sent the P.W.1 to the Area Hospital, Tenali. The Doctor who has examined P.W.1 immediately after lodging the complaint was examined as P.W.3. P.W.3 Dr.G. Madhavi Latha, Civil Assistant Surgeon of District Hospital, Tenali has stated that on 3.10.2003 at 3.00 p.m she has examined a female person by name Pathangani Papa and noted the following injuries: Patient conscious, coherent, and answering to questions. P.W.1 underwent hysterectomy about 5 years back. On external examination, she found the five nailed abrasions of 0.2 x 0.1 cms., present at middle of fore arm. She did not find any abnormal features. The following specimens were preserved for chemical examination: 1. Vagina swab 2. vault Swab 3. Vaginal smear 4. Vault smear 5. Pubic hair 6. Nail clippings Her opinion was reserved pending report from R.F.S.L. Ex.P-2 is the wound certificate issued by her. Subsequently she received the copy of the R.F.S.L report which is marked as Ex.P-3 and basing on the said report, she gave her final opinion stating that there is an evidence of recent sexual intercourse. Ex.P.4 is her final opinion. In the cross- examination she stated that there is no local injuries and she cannot say the approximate time of sexual intercourse. Therefore, the evidence of the doctor supports that the P.W.1 had recent sexual intercourse. According to the Investigation Officer P.W.8 Sri N.B.G. Tilak that he has forwarded the cloths of the P.W.1 and the accused for analysis to the R.F.S.L, Guntur. According to P.W.3, she has received a report Ex.P-3 from R.F.S.L, Guntur. As per Ex.P-3 R.F.S.L has received from P.W.8 two cardboard. The cardboard box-I labelled as “Pantagani Papa” containing, the bottles with Vaginal Swab, vaginal vault, public hail, nail clippings and glass slides and vaginal smear, vaginal vault smear. Another cardboard box-II containing the paper packet containing one faded brick red coloured inner langa with dirty stains and one rani red coloured blouse with mud stains and one green coloured with boarder designed saree with mud stains. The Assistant Director, R.F.S.L has given his report stating that Blood is detected on item Nos.1,2,5,6,7 and 8 but not on item Nos.3,4,9, 10 and 11. Semen is detected on item Nos.1,5,6,7 and 8, but not on item Nos.2,3,4,9, 10 and 11. Spermatozoa are detected only on item Nos.5,6,7 and 8. Blood on item Nos.1,2,5,6,7,8, semen on item Nos.1,5,6,8,8 and spermatozoa on item Nos.5,6,7 and 8 is of Human origin, but the blood group could not be detected. Therefore, as per the report, blood was found on vaginal vault vaginal, smear and semen and spermatozoa was detected on vaginal smear, vaginal vault smear. Therefore, semen and spermatozoa was found in the vaginal of the P.W.1 but the prosecution could not able to produce any evidence to show that the semen and spermatozoa detected on the said items belongs to the accused. According P.W.8, he surrendered before the court on 13.10.2003 and the accused was taken into police custody on 21.10.2003 and at his instance recovered the cloths from his house which are marked as M.Os.4 to 6 and M.Os. 4 to 6 were also sent to the R.F.S.L for analysis. But, the report received from R.F.S.L is not marked by the prosecution. Therefore, there is no evidence except the evidence of P.W.1 to show that the accused has committed rape on her. With regard to the other circumstantial evidence, according to the prosecution P.W.8 has visited the scene of offence and conducted the Panchanama. P.W.8 is the investigating officer has started the investigation on 3.10.2003 and he examined the scene of offence and prepared rough sketch of the scene of offence. According to him, P.W.2 has shown the scene of offence. According to P.W.1 when she was returning back to her village by weeping her son P.W.2 came in the opposite direction and met her and she narrated the incident to him. P.W.2 has also stated that as the driver asked him to show the way to their village, both of them proceeded on the tractor upto burial ground and then the tractor driver asked him to go away and bring her mother as he can go. While he was proceeding towards her, his mother came opposite to him weeping near the corner of the bund and when he enquired, his mother narrated that the accused committed rape on her. Therefore, even P.W.2 has not spoken about his going to the scene of offence or P.W.1 showing him the scene of offence to him. Therefore, when P.W.2 is not aware of the place where the offence has taken place, showing of the scene of offence to the Investigating Officer by the P.W.2 is also doubtful. Immediately after the incident, P.W.1 gone to the village and informed her husband and also to the village elders and on their advise she lodged a complaint with the police. But, none of the village elders were examined except P.W.6 P. Seshaiah. Pedda Seshaiah who is P.W.6 is the scribe of the complaint and he is also scribe of the mediatornama for the seizure of cloths M.Os.1 to 3 produced by the P.W.1 in the police station and he is also drafted the scene of observation report Ex.P-8 and he is also the attestor of the recovery of M.Os.4 to 6 the cloths belongs to the accused at his instance under Ex.P-10. Admittedly, P.W.6 belongs to the same community of P.W.1 and he is their supporter. Therefore, the investigating agency has only taken the assistance of P.W.6 for conducting the observation reports and seizure Panchanama. P.W.6 belongs to the caste of P.W.1 and she accompanied him to the police station and drafted the complaint. So he is not an independent witness and he is interested witness to P.W.1. Therefore, it is not safe to rely upon the evidence of P.W.6. More over according to P.W.1 she was accompanied by 50 villagers to the police station for lodging a complaint. If really such an incident was taken place as alleged by the P.W.1, she would not have propagated the same in the village and took about 50 persons to the police station for lodging the complaint. As admitted by P.W.1, she is aged in between 40 to 50 years and the accused is aged about 25 years and she is having a son of his age group. P.W.1 knows the accused from the date of her marriage and he has not made any attempt earlier against her. Therefore, in the above circumstances, it is not safe to rely upon the evidence of P.W.1 to establish the offence against the accused. Hence, the prosecution could not able to establish the offence alleged against the accused beyond reasonable doubt. Therefore, the finding of the lower court that the prosecution has established the guilt of the accused under Section 376 IPC is not substantive and the same is liable to be set aside. In the result, the appeal is allowed and the conviction and sentence passed by the Special Sessions Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Guntur in S.C.No.14 of 2004 dated 6.10.2004 is hereby set aside and the accused is acquitted. _____________________ P.DURGA PRASADJ. Date:03.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2222 of 2004 Date:03.02.2011 Gk.