IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.953 of 2005 Between: Alasyam Narasaiah and another .. Appellants/Accused AND State of Andhra Pradesh represented by Public Prosecutor, Andhra Pradesh, Hyderabad .. Respondent Appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction and sentence in S.C. No.90 of 2000, dated 06-06-2005 on the file of the Special Judge for Trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (I Additional Sessions Judge), Khammam. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of Sri M.V. Durga Prasad, Advocate for the appellants and of the Public Prosecutor for the respondent, the Court made the following: JUDGMENT: The conviction of both the accused in Sessions Case No.90 of 2000 on the file of the Special Judge for Trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (I Additional Sessions Judge), Khammam by judgment dated 06-06-2005 for an offence punishable under Section 376 (2) (g) of the Indian Penal Code, led them to file the present appeal. The factual background for the appeal is that the Circle Inspector of Police, Yellandu prosecuted both the accused alleging that on 06-10-1995, Bhanoth Bhadramma and her husband Bhanoth Lakshma went to their cotton fields to spray pesticide and Bhadramma returned home to prepare food for herself and her husband and returned back to the land at about 6.30 P.M. when her husband did not return till then. Both the accused came across her near teak plantation in the outskirts of the village, forcibly lifted her, gagged her month and committed rape on her one after the other by threatening to kill her. They had bitten on her both cheeks and after the rape, both the accused escaped. Bhadramma returned to her house and she did not show her face to her husband and did not disclose the incident to anybody. After about a week, she secured and consumed pesticide intending to commit suicide, but Lakshma and other relatives immediately took her to Mankina Rama Rao, a Registered Medical Practitioner at Madaram, who conducted stomach wash. He enquired about the injuries found on the cheeks of Bhadramma, on which Bhadramma disclosed the incident to the doctor and her relatives. Bhadramma and her relatives approached Poluri Narasimha Rao, a village elder, under whom the 1st accused was working as farm servant, but after postponing conducting a panchayat for about a week, Narasimha Rao advised Bhadramma to go to police. On her report on 05-11-1995 at 2 P.M., the crime was registered in No.99 of 1995 and during investigation, scene of offence panchanama was conducted and a rough sketch was prepared, at which time, broken bangles were seized from the scene. The accused were arrested on 08-11-1995 and in pursuance of the confession of the 1st accused, a towel was recovered from his shoulder. Both the accused were remanded to judicial custody and the victim and the accused were medically examined. As both the accused committed offences punishable under Sections 376 (2) (g) and 506 read with Section 34 of the Indian Penal Code and also Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, they were accordingly charge- sheeted. The accused were furnished with copies of the documents on their appearance before the Magistrate after he took cognizance of the offences and the Magistrate committed the case to the Special Court of Session. To identical charges framed against them, both the accused pleaded not guilty and P.Ws.1 to 10 were examined and Exs.P.1 to P.11 and D.1 were marked during trial. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 342 of the Code of Criminal Procedure, 1898 and they produced no defence evidence. The trial Court rendered the impugned judgment holding that the alleged offence under Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was not established against the accused for the reasons stated in the impugned judgment. The said conclusion remained unchallenged and had become final and is, therefore, not part of consideration in the present appeal. In so far as the charge under Section 376 (2) (g) of the Indian Penal Code is concerned (no charges were framed under Section 506 or Section 34 of the Indian Penal Code), the trial Court considered that the delay caused in filing of a report by P.W.1, was explained by the prosecution through the evidence of P.Ws.1 to 4. The trial Court also, after extracting the oral evidence at length, found that the medical evidence revealed that the cervix was slit open with irregular edges with slight bleeding from vagina and that the uneven tears adhering to vaginal vault resulted in bleeding on touch and therefore, though the doctor stated that there were no positive findings of rape, the trial Court presumed forcible intercourse, further strengthened by the finding of healed bite marks on the cheeks by P.W.8, the doctor. The trial Court also observed that though the scene of offence panchanama was conducted after about one month, still broken bangles were found at the scene probablising the offence and the trial Court further observed that P.Ws.1 to 4 had absolutely no necessity or animosity or motive to depose against both the accused. Rejecting the contention that there were no eye witnesses to the gang rape, the trial Court considered the evidence of the witnesses to be unshaken by the cross-examination and consequently, concluded that the offence was proved beyond reasonable doubt against both the accused. After examination of both the accused on the question of sentence and considering the request of the accused to take a lenient view, the trial Court imposed a sentence of rigorous imprisonment of ten years each and a fine of Rs.500/- each on both the accused for the said offence. The convicted accused contended herein that the self- serving testimony of P.Ws.1 and 2, the alleged victim and her husband, uncorroborated by any medical evidence and not explaining the delay of about a month in lodging the first information report, could not have been acted upon, more so in view of the non-examination of the alleged village elder, the approach to whom caused the delay. The accused also contended that the healed injuries on the cheeks of P.W.1 could not have been connected with the accused on surmises and conjectures and the material discrepancies between P.Ws.1 to 4 were ignored by the trial Court and therefore, they desired that their conviction and sentences be reversed. Sri M.V. Durga Prasad, learned counsel for the accused/appellants and Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor are heard at length. The point for consideration is whether the prosecution proved the guilt of either accused for the offence punishable under Section 376 (2) (g) of the Indian Penal Code beyond reasonable doubt ? Point: P.W.1, the victim, tried to explain the delay between the alleged incident and her report to the police with reference to her feeling shy due to swelling in the face, due to which she did not come out of the house for about 5 or 6 days and then only purchasing an insecticide after about 10 days of the offence by pledging her ear-studs and consuming the same, only on which she had to come out with the truth. The pledging of ear-studs of P.W.1 is unsupported by any evidence and any purchase of insecticide by P.W.1 or her possession of such insecticide at about the alleged time were also uncorroborated by any other evidence. Dr. Mankina Rama Rao, a Registered Medical Practitioner, who allegedly treated the victim, was not examined, as he was no more and even after the alleged offence was disclosed to her husband and other relatives on the night of P.W.1 allegedly consuming the pesticide, no further action was taken for a significant length of time before Ex.P.1 report allegedly due to approaching Poluri Narasimha Rao, a village elder, under whom the 1st accused was working, with a request to hold a panchanama. Poluri Narasimha Rao or any other elder were also not examined to corroborate such a claim in spite of P.W.1 and her relatives allegedly going to him thrice before Ex.P.1 report to the police. P.W.1 claimed that about 15 persons went to the house of Narasimha Rao, who was also Village Sarpanch, each time, but no such members in the Thanda were examined to corroborate the claims of P.W.1. The cross-examination of P.W.1 disclosed that she saw the 1st accused only on the date of the offence and his identity became known to P.W.1 only through one Nagaiah on her enquiry. The said Nagaiah was also not examined or even cited and P.W.1 was not sure as to whether it was Purnaiah or Mohana Rao who was the scribe of Ex.P.1. Why they did not go to the other elders though there were other village elders, was not stated by P.W.1 and why they went to the elder Poluri Narasimha Rao only after 15 days from returning from the hospital and why they did not inform about the commission of rape to anybody in the meanwhile, was also not explained by P.W.1 and when once she came out with the story when being treated by Dr. Rama Rao, the subsequent silence for such a length of time is unnatural. P.W.1 does not even know the name of Marwadi with whom she pledged her ear-studs and Nageswara Rao, who was said to have sold the pesticide to P.W.1, was also not cited or examined and for three days P.W.1 claimed to have kept the pesticide with her unnoticed by other members of the family. The broken bangles (Matti gajulu) remaining intact at the scene which was open to public movement, also does not sound natural. Even without reference to the evidence of other witnesses, this evidence of P.W.1 does not appear to satisfactorily explain the abnormal delay between the occurrence and the report to the police, which gave an obvious scope for deliberation and fabrication. Though it is true that the sole evidence of the prosecutrix in such cases may be suffice to conclude the guilt of the accused, the other circumstances, thus, make it necessary as a rule of prudence to look for very strong corroboration from the other evidence to the interested claims of P.W.1. P.W.2 is no other than the husband of P.W.1 and P.W.3 is his sister. The version of P.Ws.1 to 3 in the evidence about P.W.1 sleeping in the house of P.W.3 on the night of the incident and therefore, becoming unavailable to be traced by P.W.2, was an introduction for the first time in the evidence and P.W.2 did not observe any injury on the person of P.W.1 on the next day and if both the cheeks of P.W.1 were so swollen as claimed by P.W.1, it would be unnatural to presume that the husband would not have been in a position to observe the same for a number of days. P.W.2’s claim that Narasimha Rao refused to negotiate and they went to one Pitchaiah of Karepalli, who also did not show any interest, was not the claim of P.W.1 and P.W.2 claimed to have gone to the police station on the very next day after going to Pitchaiah, while P.W.1 was claiming that they went to Narasimha Rao himself thrice. P.W.3 stated about P.W.1 informing her that she was dragged on the hard surface by the accused before committing rape on her, which was not the claim of P.W.1 and the medical evidence did not disclose any corresponding injuries to P.W.1 being so dragged on the hard surface. Her evidence referred to the presence of Government hospital (primary health center) at Madaram apart from one at Karepalli and if so, their going to only a Registered Medical Practitioner when P.W.1 consumed pesticide, may not appear natural. P.W.3, who stated about knowing about the alleged rape within 15 days and being examined by police after a month, threw no light on the silence of the parties in between and her positive statement that P.W.1 did not sleep in her house on any day prior to consuming insecticide, runs counter to the claims of P.Ws.1 and 2 about P.W.1 so doing on the night of the incident. P.W.3’s claim that the disclosure of rape by P.W.1 was on the second day after admission into hospital, is not quite the same as the claim of P.W.1 about disclosing about the offence on being enquired by the doctor. This being the evidence of P.Ws.2 and 3, whose evidence is also tainted with interestedness and subject to acceptance only on satisfactory independent corroboration, cannot be considered to have provided circumstantial support to the claims of P.W.1. P.W.4 is also a circumstantial witness, who was claimed to have been taken by P.Ws.1 and 2 to the house of Narasimha Rao and he could not give the date or day of going to the house of Narasimha Rao and he is also related to P.Ws.1 and 2 and is not an independent witness. The evidence of P.W.5 about the recovery of a slipper and broken bangles under Ex.P.2 panchanama at the scene in his presence and the scene appearing to him to be pressed, does not appear very natural and he admitted that when grass and small bushes are pressed while walking, they come back to their original shape within 10 to 15 minutes. The evidence of P.W.6 about the potency of both the accused is not of much relevance in considering the guilt of the accused in the present case and so was the evidence of P.W.7 about the teeth of both the accused. The evidence of P.W.8, the medical officer, who examined P.W.1 after her report to the police, was clear that the examination did not reveal any positive finding of evidence of rape. P.W.8 positively noted that there were healed bite marks on both the cheeks, that bleeding was present on touch at the ulcerating tear in the cervix of vaginal vault and was definite that there was no positive evidence of rape. The linking of these physical features with the proof of rape by the trial Court, thus, does not accord with the medical evidence and more significant was the claim of P.W.8 that P.W.1 informed her that a single person alone committed rape on her at 6 P.M., which she specified in Ex.P.9 certificate, which destroys the credibility of the version of gang rape by both the accused and to explain which, no attempt was made by the prosecution. If there were no injuries except on the cheeks and other healed injuries specified in Ex.P.9 as stated by P.W.8 on the person of P.W.1, either P.W.1 being pierced with one or two stones on the back at the scene with small stones or she being dragged on the hard surface by both the accused before the rape, do not appear corroborated by the medical evidence. The medical evidence, thus, does not, in any manner, provide strength to the interested claims of P.W.1 and the claim in the earliest version in Ex.P.1 that the non-disclosure of the incident was due to fear, was not exactly the claim in the evidence. The signs of stampede being still found at the scene at the time of panchanama by the police, make even the version of the investigating officers, P.Ws.9 and 10, artificial and P.W.9, the Sub-Inspector, admitted that at the relevant time, there will be greenery in the locality of the scene, which is not reflected in his panchanama. The evidence of the Circle Inspector as P.W.10 showed that his investigation did not reveal any prior acquaintance between the victim and the accused, due to which the circumstances under which either accused cast their evil eyes on P.W.1 also becomes suspect. On such oral and documentary evidence and in the background of such circumstances, concluding proof of the alleged offence of rape against either accused beyond reasonable doubt will not be in tune with the accepted principles of appreciation of evidence and the benefit of reasonable doubt ought to be extended to both the accused concerning this offence also. Consequently, both the accused/appellants are found not guilty of the offence punishable under Section 376 (2) (g) of the Indian Penal Code and they are acquitted of the said offence. The judgment of conviction and sentence against them in respect of the said offence in Sessions Case No.90 of 2000 on the file of the Special Judge for Trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (I Additional Sessions Judge), Khammam, dated 06-06-2005 is accordingly set aside and the appeal is allowed. The bail bonds of both the accused shall stand cancelled. ____________________ G. BHAVANI PRASAD, J Date: 01-12-2009 Svv