THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.350 OF 2006 Dated:15.11.2011 Between: Jajjaila Anjaiah .. Appellant And State of Andhra Pradesh, Represented by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.350 OF 2006 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 376 IPC and was sentenced to Rigorous Imprisonment of ten years and fine of Rs.200/. Questioning the same, the accused filed this appeal. 2. The accused is a person aged 49 years. His son was former Sarpanch of the Gram Panchayat. The victim girl/PW.2 was aged 16 years as per Ex.P13 - Age Determination Certificate issued by PW.14. The victim girl is a physically handicapped girl with limp in right leg. It is alleged that the accused on 01.11.2001 took the victim girl from the Village to Tandoor on the pretext of securing Physically Handicapped Certificate for her and committed rape on her in the house of PW.3. After the incident and after returning to the Village, PW.2 informed the offence to her father PW.1 who reported the offence to Tandoor Police on the same day. After registering the case, PW.12/Sub Inspector of Police, Tandoor Police Station sent PW.2 to PW.8/Civil Assistant Surgeon in Niloufer Hospital, Hyderabad for examination of PW.2. After examining PW.2 on 02.11.2001, PW.8 gave Ex.P8 – report opining that sexual sexual intercourse had occurred. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of the above charge. 3. The entire decision in this matter rests on appreciation of evidence of the victim/PW.2 and medical evidence of PW.8. PW.3 in whose house the offence is said to have been committed, turned hostile to the prosecution. Her husband/PW.4 and her land-lord/PW.5 also turned hostile to the prosecution. PW.1 came to know about the offence only after PW.2 informed the same to him on return from Tandoor. It is evidence of P.W.2 that on the day of incident the accused took her to Tandoor for getting Physically Handicapped Certificate to her and that the accused told PW.1 that he may not accompany them. She says that they started from the Village at about 7.00 A.M. and reached Tandoor by 8.30 A.M. and that after meeting a person there, the accused took her to Basheerabad by train where they went to a shop for purchase of Lungi, towel, soap and bag by the accused and that the accused took her to outskirts of Basheerabad on the pretext of getting her application drafted with a lady there and that the accused finding no stream in the outskirts for bath, took her to Basheerabad Thanda by walk. She says that the accused purchased a liquor bottle at Tandoor and consumed the same. It is further evidence of PW.2 that from Basheerabad, the accused took her to a rice mill at Tandoor where the accused had bath in a stream located at that place and thereafter took her to red gram field and that when she was weeping due to pain in leg, the passers by enquired and the accused informed them as if she was his niece and that from there the accused took her to Old Tandoor in auto rickshaw to the house of PW.3. It is PW.2’s evidence that they reached PW.3’s house at Old Tandoor by 4.00 P.M. where she had food and that after the accused and PW.3 talked to each other, PW.3 left the house and that the accused came inside the house and closed door of the house. She says that the accused without hearing her pleas, pushed her down on the ground in spite of her cries and fell on her and removed her clothes and committed rape on her. According to PW.2, she sustained injuries on her chest and on back and she was resisting attack and was rolling on the ground. She says that the accused hit on her head with a stone. After the offence, it is PW.2’s evidence that the accused brought and left her at her house at about 6.00 P.M. Ex.P1 – report was given to the Police by 8.00 P.M. on the same day. 4. After examining PW.2, PW.8 gave Ex.P8 - report to the effect that there were bruises on face and back and nail marks on chest of PW.2. Examination of external genetalia revealed rupture of Hymen apart from superficial injuries over vestibule, vulva and vaginal oedematus and inflamed. No doubt, as per Ex.P7 – Forensic Science Laboratory report, no semen and spermatozoa were detected on vaginal smears collected by P.W.8, but petticoat of PW.2 contained traces of semen. PW.8 in her cross-examination deposed that rupture of Hymen is an old tear. PW.8 opines that bruises and nail marks are not self- inflected injuries. She ruled out absence of evidence of sexual intercourse because of lack of traces of semen or spermatozoa in vaginal smears. Absence of semen and spermatozoa in vaginal smears may indicate absence of ejaculation for the accused at the time of rape. Simply because rupture of Hymen was an old tear, it cannot be said that there was no rape in this case. Physical examination of external genetalia showed injuries on vestibule, vulva and vaginal oedematus apart from inflamed. That apart, there are external bruises on face and back and nail marks on chest of PW.2. All these observations of PW.8 undoubtedly support the conclusion of PW.8 to the effect that there was sexual assault on PW.2 by way of sexual intercourse. The medical evidence totally corroborates evidence of the prosecutrix/PW.2 in this case. 5. It is contended that even though PW.2 is stated to have been hit the accused on head with a stone, there was no head injury to the accused. The impact of stone hit might not be enough to cause external injury on head of the accused. That cannot rule out sexual assault by the accused on PW.2. 6. It is contended by the appellant’s counsel that the accused had several opportunities to commit rape on PW.2 before going to PW.3’s house. But, all the places where PW.2 and the accused went prior to they going to PW.3’s house are all public places and open places where some of the public are stated to have enquired the accused as to why PW.2 was weeping, when PW.2 was weeping due to leg pain because of continuous walk. Therefore, the accused had no opportunity to commit the offence elsewhere and he finally took PW.2 to the house of PW.3 for accomplishing his desire. 7. It is contended by the appellant’s counsel placing reliance on Section 53-A of Cr.P.C., that the prosecution should have collected material from PW.2 and the accused for D.N.A. profiling. Section 53-A came to be introduced by way of Code of Criminal Procedure (Amendment) Act, 2005, dated 23.06.2005 and it came into force with effect from 23.06.2006. In my considered opinion, no argument can be entertained on the basis of 53-A of Cr.P.C. in a case of this nature where the offence took place in the year 2001. 8. On appreciation of evidence of PW.2/victim and medical evidence of PW.8, I am of the opinion that the lower Court rightly came to the conclusion that the prosecution proved the offence under Section 376 IPC against the accused beyond all reasonable doubt. 9. The contention of the accused/appellant based on Ex.D2 – First Information Report that there are disputes between two factions in the Village, cannot be entertained as Ex.D2 relates to a subsequent event and not a previous event to the present offence. 10. It is contended by the appellant’s counsel that imprisonment of ten years in a case of this nature is on higher side. 11. In the result, the appeal is dismissed, but in the circumstances of the case, altering period of imprisonment from ten years to seven years. _______________________________________ SAMUDRALA GOVINDARAJULU, J 15.11.2010 KH