IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.839 OF 2004 Between: Mekala Ashok & another ..... Appellants/Accused Nos. & 2 AND The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent The Court made the following: JUDGMENT: The Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 04.03.2004, in Sessions Case No.38 of 2002, on the file of the Special Court for S.C./S.T. Cases cum I Additional District and Sessions Court, Warangal, whereunder and whereby both the accused were found guilty of the offences punishable under Sections 376 (f) (g) read with 511 of the Indian Penal Code, 1860 (for short, “I.P.C.”), and sentenced to undergo Rigorous Imprisonment for a period of five years each and also to pay a fine of Rs.5,000/- each, in default to undergo Simple Imprisonment for a period of six months each. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: P.W.2, who is the victim girl in this case, was aged about 10 years by the time of the alleged incident and was studying IV class. On 10.09.2001 at about 7.00 a.m., P.W.2’s mother asked her to bring Vada for breakfast from I-Incline Canteen. P.W.2 went there and purchased Vada and while she was returning to the home from the I-Incline Canteen, Accused Nos.1 and 2 asked her to accompany them to Guava tree, situated on the back side of the Canteen at Filter bed on the pretext that they would pluck the guava fruits and give them to her. Believing their words, she followed them. After reaching the said place, both the accused stated to her “Bujji Bujji Ninnu Oka Sari Denganistava”, which means whether she can permit them to cohabitate with her once. P.W.2 stated to the accused that she would complain to her mother. Then, Accused No.1 covered her mouth with his kerchief. Accused No.2 spread a towel underneath the guava tree. Thereafter, Accused No.1 threw P.W.2 down on the said towel and removed her Paizama. While P.W.2 was struggling, Accused No.2 caught hold of her legs. P.W.2 could not raise cries as Accused No.2 put his hand on her mouth. After laying down P.W.2 on the ground, Accused No.1 laid on her and removed his pant and put his penis into her private part. Thereafter, Accused No.2 laid on her and committed the same act as committed by Accused No.1. P.W.2 could not wriggle out from their clutches as Accused No.2 was holding her while Accused No.1 was committing rape on her and similarly, Accused No.1 was holding her while Accused No.2 was committing rape on her. After committing rape, both the accused left the place. P.W.2 returned home holding her paizama and underwear by weeping. Blood oozed out from her private parts. Her kurta was stained with blood. After reaching home, P.W.1, who is the mother of P.W.2, enquired her. P.W.2 narrated the entire incident to P.W.1. Then P.W.1 raised hue and cry. Then P.W.1 took P.W.2 to the scene of occurrence and P.W.2 showed the scene of occurrence to P.W.1. P.W.2 also showed the accused to P.W.1 while they were sitting at a hotel situated near the I-Incline Canteen. Thereafter, they returned to home. As the husband of P.W.1 was not in the village, as he went to Manuguru, they waited for his arrival till 5.00 p.m., but did not turn up. Thereafter, P.W.1, along with other women, took the victim to the Police Station and lodged Ex.P1-complaint. On 10.09.2001, at about 9.00 p.m., P.W.10 registered the case and informed about the registration of the case to the Deputy Superintendent of Police. P.W.11 took up investigation. He examined P.Ws.1 to 3 and recorded their statements. He seized the clothes of P.W.2 in the presence of P.W.9 and others. He observed the scene of occurrence under Ex.P4. P.W.2 was sent to Maternity Hospital, Hanamkonda, for medical examination. The Medical Officer examined P.W.2 and gave opinion as in Ex.P3-Final Opinion. After arrest of the accused, they were sent to medical examination with regard to the potency test. After the completion of investigation, the police filed the charge sheet for the offences punishable under Sections 376 (f) (g) I.P.C. and 3 (1) (xii)of SC/ST (PoA) Act. 3. The learned Special Sessions Judge for SC/ST Cases cum I Additional Sessions Judge, Warangal, framed the following charges against the accused: “FIRSTLY: That you the accused 1 and 2 on 10.09.2001 at about 7.30 a.m. near 1 Incline Filter bed, Beddalapally (V), H/o Kasimpally, committed rape of a minor girl by name Teetla Nagamani, aged 10 years and that you thereby committed an offence punishable under Sec. 376 (f) (g) IPC, and within my cognizance. SECONDLY: That you A1 & A2 on the aforesaid date, time and place not being a member of a Scheduled Caste or Scheduled Tribe, committed rape of a minor girl by name Teetla Nagamani, age 10 years, belonging to Scheduled Caste, and that you thereby committed an offence punishable under Sec. 3 (1) (xii) of S.C. & S.T. (Prevention of Atrocities) Act, 1989 and within my cognizance.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P13 besides case properties M.Os.1 to 3. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Ex.D1. 6. The trial Court, accepting the evidence of P.W.2 coupled with the medical evidence, found the accused guilty of the offence punishable under Sections 376 (f) (g) read with 511 I.P.C. and accordingly, convicted and sentenced them as stated above. However, they were acquitted of the offence punishable under Section 3 (1) (xii) of SC/ST (PoA) Act. Challenging the same, the present Criminal Appeal is filed by the accused. 7. Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offence punishable under Section 376 (f) (g) I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellants contended that the evidence of P.W.1 contradicts the medical evidence as there were no injuries on the private parts of the body of P.W.2; that the alleged incident has taken place in a busy locality and therefore, committing of rape is highly improbable; that the accused were not known to P.Ws.1 and 2; that therefore, the identification of the accused in the Court for the first time is valueless; that there was inordinate delay in lodging the complaint to the police; that sufficient time was taken to lodge a complaint with a view to fabricate a false case against the accused; that therefore, he prays to set aside the conviction and sentence recorded by the trial Court against the accused. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.2 is very clear that both the accused made an attempt to commit rape on P.W.2; that P.W.2 does not know what is rape and what is not; that the evidence of the doctor would clearly go to show that there was an attempt on the part of the accused; that there is no other reason for P.W.2 to foist a false case of this nature against the accused; that the delay has been properly explained as the father of P.W.2 was not in the village; and therefore, the report was not lodged immediately; that the accused are known persons to P.W.2, and therefore, it is not that difficult to identify them in the Court, and therefore, the trial Court, after elaborate consideration of evidence on record, rightly found the accused guilty, and hence, she prays to dismiss the Criminal Appeal. 10. Though P.W.11 inspected the scene of occurrence, he did not find any incriminating material at the scene. The scene of occurrence is near the I-Incline Canteen Filter Bed, Beddalapally Village. P.W.2 is the sole eye witness to the incident. She was the victim of rape. She was aged about 10 or 11 years by the date of incident. According to P.W.2, on 10.09.2001 at about 7.00 a.m., she went to the I-Incline Canteen to bring Vada for breakfast for P.W.1. While she was returning to home, both the accused made her believe that they would pluck the guava fruits from the guava tree and took her to the nearby guava tree, situated on the back side of the Canteen at Filter bed and committed rape on her. It is her specific case that while Accused No.1 was committing the rape, Accused No.2 caught hold of her legs and closed her mouth. While Accused No.2 was committing the rape, Accused No.1 caught hold of her legs and closed her mouth. Immediately after the incident, P.W.2 went to the house and informed the same to P.W.1. P.W.1 along with the other women went to the scene of occurrence. At that time, both the accused were sitting at the hotel near the I-Incline Canteen. When P.W.1 questioned them about the incident, they behaved high handedly. One of the suggestions given to P.W.2 is that a quarrel ensued between the father of P.W.2 and Accused No.2 and therefore, she bore grudge against them. Another suggestion is that in order to get compensation, P.W.2 was speaking false. But there is no evidence to show that P.W.2 got some compensation from the Government. Therefore, there will be absolutely no reason for P.W.1 to foist a false case of this nature against the accused making use of her daughter-P.W.2. P.W.2 is a young girl aged about 10 or 11 years by the date of incident. She is likely to be married in the course time. If a false case is foisted, nobody would come forward to marry P.W.2. In such circumstances, it cannot be believed that a false case is foisted against both the accused. Except suggesting that there was a prior enmity between the father of P.W.2 and Accused No.2, nothing has been elicited to discredit the testimony of P.W.2. Though P.W.2 stated that both the accused committed rape on her one after another, the medical evidence is contra because there were no injuries found on the private parts of the body of P.W.2. 11. P.W.5 is the doctor who examined P.W.2 on 11.09.2001 at about 10.00 a.m. She did not find any visible external injuries on the person of P.W.2 and hymen of P.W.2 was intact. P.W.5 has taken vaginal smears from the private parts of P.W.2 to send the same for chemical examination. Similarly, the clothes of P.W.2 were sent to the examination for analysis. The chemical examiner’s report would go to show that semen and spermatozoa were detected only on item No.4, i.e., cream colour cut drawer of P.W.2. Admittedly, that cut drawer was seized by P.W.11 in the presence of P.W.9. Practically, the evidence of P.W.9 coupled with the evidence of P.W.11 relating to the seizure of cut drawer of P.W.2 remained unchallenged. The incident is alleged to have taken place on 10.09.2001 at 7.00 p.m. Therefore, there is no possibility for finding spermatozoa and semen on the cut drawer of P.W.2. Unless the incident of attempt of rape is true, semen and spermatozoa would not have found on cut drawer of P.W.2. P.W.5 gave a final opinion as in Ex.P3. P.W.5 opined that there was an attempt of rape. The opinion of P.W.5 and the recitals in Ex.P3, appear to be correct because if really, P.W.2 was subjected to rape by two persons, there would be some injuries on the private parts of the body of P.W.2 and also in view of the fact that P.W.2 was aged about 10 or 11 years, the hymen would have ruptured. But, there was no rapture of hymen. Therefore, the evidence of P.W.2 coupled with the evidence of P.W.5 would clearly go to show that there must have been an attempt to commit rape on P.W.2 by both the accused. Perhaps that may be the reason the semen and spermatozoa were detected on M.O.1 i.e., the cut drawer of P.W.2. There was no scope or possibility for containing semen and spermatozoa on M.O.1. 12. No doubt, P.W.1 appear to have given exaggerated version that both the accused committed rape on P.W.2 by putting their respective penis in her vagina one after another. P.W.1 must have exaggerated her version or improved her version stating that both the accused committed rape. At that age, P.W.2 may not be knowing what is rape and what is not. Therefore, much importance can be given to the statement of P.W.2 that both the accused committed rape on her. There is no animosity for P.W.2 to foist a false case of this nature against both the accused. 13. No doubt, there was a delay in lodging the complaint. Ex.P1-complaint was lodged on 10.09.2001 at about 9.00 p.m. Whereas, the incident has taken place on the same day at about 7.30 a.m. The Police Station is situated at a distance of 3 or 4 kilometers from the scene of occurrence. P.W.1 alone cannot go to the Police Station. She has to necessarily take assistance from her husband. As the husband of P.W.1 went to Manuguru Village and did not turn up, P.W.1 along with other women went to the Police Station and lodged a complaint in the evening. In a case of this nature, it cannot be expected from the mother of victim to rush to the Police Station to lodge a complaint. The honour of the family would be at stake. The marriage prospects of P.W.2 would get affected. Therefore, the delay of 14 hours in lodging the complaint cannot be shown to be taken with a view to foist a false case against the accused. In the absence of any evidence to doubt the prosecution case, the false implication against the accused in this case can be ruled out. 14. The evidence of P.Ws.2 and 3 would go to show that P.W.2 went to I-Incline Canteen at about 7.00 a.m. or 7.30 a.m. to bring Vada for breakfast for P.W.1. As she did not come home, P.W.3, who is the elder brother of P.W.2, was going towards the canteen to find out P.W.2 and met her on the way. On enquiry, P.W.2 did not inform anything to P.W.3. After returning to the house, P.W.2 informed about the incident to P.W.1. 15. P.W.4, who is the neighbour of P.W.2, found swelling on the private part of P.W.2. She heard the cries at about 8.00 a.m. from the house of P.W.1 and therefore, the neighbourers rushed there. When P.W.1 enquired P.W.2, she informed them about the commission of rape on her on the filter bed by the accused. 16. Similarly, P.W.6, who is working as the coal filler, Singareni Colleries, Bhupalpalli, saw Accused Nos.1 and 2 on 10.09.2001 at about 7.00 a.m. or 7.15 a.m. along with P.W.2 near the filter bed. Therefore, from the evidence adduced by the prosecution, it is clear that the accused made an attempt to commit rape on P.W.2. Therefore, the trial Court, after elaborate consideration of evidence on record, rightly found the accused guilty of the offence punishable under Section 376 (f) (g) I.P.C. Therefore, there are absolutely no grounds to interfere with the conviction recorded by the trial Court against the accused. 17. With regard to the sentence, the sentence shall not be less than ten years in a case of this nature considering the age of the victim, but Proviso 2 to Section 376 (g) says that by recording adequate and special reasons, the Court may impose the said sentence. P.W.2 was aged about 10 or 11 years at the time of the alleged incident. Both the accused were aged about 20 years at the time of the incident. Admittedly, both the accused are poor persons. They are eking out their livelihood by doing work as cleaners for lorry. After the incident, both the accused were married and they got children and parents who completely depend upon the earnings of the accused. It is not in dispute that P.W.2 was also married. Considering these circumstances, the proper and appropriate sentence would be four years for the offence punishable under Section 376 (f) (g) I.P.C., but in the case of an attempt, the punishment can be awarded half of that sentence. Hence, the sentence of Rigorous Imprisonment for a period of five (5) years can be reduced to two (2) years each. 18. In the result, the conviction recorded by the Special Court for S.C./S.T. Cases cum I Additional District and Sessions Court, Warangal, in Sessions Case No. 38 of 2002, dated 04.03.2004, against the appellant/accused of the offence punishable under Section 376 (f) (g) I.P.C. is confirmed, but the sentence is reduced from Rigorous Imprisonment for five (5) years to Rigorous Imprisonment for two (2) years each, while maintaining the fine amount with default sentence. Period of remand, if any, undergone by the accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 19. With the above modification, the Criminal Appeal is dismissed. _______________ (K.C. BHANU, J) Date: 15th December, 2009 KL