HON’BLE SRI JUSTICE B.N.RAO NALLA Crl.R.C. No. 105 of 2005 DATED: 02.07.2010 Between: Kaivada Chinnayya .. Petitioner/ Accused And The State of A.P. And five others .. Respondent JUDGMENT:- This Criminal Revision Case is directed against the judgment dated 24.11.2004 delivered in Crl.A. No. 33 of 2000 whereby the learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam, having considered the evidence both oral and documentary, found the accused guilty of the offence punishable under Section 354 IPC and sentenced him to undergo Rigorous Imprisonment for a period of two years and pay fine of Rs.200/-, in default, to suffer Simple Imprisonment for one month. The trial Court, vide its judgement dated 18.02.2000 in S.C. No.103 of 1999, found the accused guilty of the offence punishable under Section 376(1) IPC and sentenced him to undergo Rigorous Imprisonment for seven years and pay a fine of Rs.200/-, in default, to suffer further sentence of one month. The case of the prosecution in brief is that on 19.03.1998, when PW1- the victim girl, who was aged about 12 years and willing to proceed to Konapeta to attend Puberty function in the house of one Labba Ramayya, went to PW8 – Rajulu to accompany her to the function, and thereafter, the accused also came there and stated that he was also proceeding to Konapeta. As PW8 was not invited to the function, he requested the accused to escort the victim girl to the function, and the accused, having agreed to accompany her, took her towards sandy land covered by shrubs, laid her on the ground, gagged her mouth by inserting towel so as to prevent her from raising cries, fell on her and committed rape. Meanwhile, PWs.3 to 5 happened to pass that way, and the accused, on seeing them, left the girl. On 20.03.1998 at about 6.00 P.M., the victim girl, her father and her aunt went to the police station and lodged a compliant, based on which, the Sub- Inspector of Police concerned registered a case against the accused and filed charge sheet after completing investigation. To substantiate the case of the prosecution, it examined PWs.1 to 14 and got marked Exs.P1 to P13 besides case property M.Os.1 to 6. Nobody was examined on behalf of the defence, but Exs.D1 to D3 were marked. The trial Court, after considering the evidence of the prosecution witnesses, found the accused guilty of the offence punishable under Sections 376(1) IPC, and sentenced him as stated supra. Challenging the same, the accused preferred Crl.A. No.33 of 2000 and the learned II Additional District and Sessions Judge (Fast Track Court), Srikakulum convicted the accused of the offence punishable under Section 354 IPC and modified the sentence imposed by the trial Court as mentioned supra. Challenging the same, the accused preferred the present Criminal Revision Case. Heard the learned counsel for the appellant-accused, the learned Assistant Public Prosecutor appearing for the State and perused the material placed on record. From a perusal of the findings recorded by both the trial Court and the lower appellate Court, it appears that PWs. 3 to 5 happened to pass the way near which the offence took place and they saw the victim girl weeping at the temple after the alleged commission of offence and her body was with full of dust and at the same time, the accused also came to them. Therefore, this Court feels it necessary that their evidence has to be scrutinized to arrive at a conclusion as to the nature of commission of offence. PW3, who is the relative of PW1, deposed that himself and PWs.4 and 5 were invited to the puberty function in the house of L.Ramayya. While he along with PWs.4, 5, V.Appanna and V.Nagaraju were proceeding to Konampeta through the nearest way, and when they reached the temple area, they saw PW1 weeping at the temple and her body was covered with dust. She told them that the accused took her into nearby Donka (bushes) area and committed rape on her and when the accused came to them, Lakshmana (PW5) slapped him for his misdeed. She further deposed that she is the sister-in-law of the accused. PW4 deposed that while he was proceeding to Konapeta along with other invitees to the function, he saw PW1 weeping near Donka area and her body was with full of dust. He further deposed that she told them that the accused forcibly took her into Donka and committed rape on her, and when the accused also came from Donka side, all of them questioned the accused and PW5-Lakshmana slapped him. PW5, deposed that while he was proceeding to Konapeta along with PWs.3, 4, Appaiah and some others through a cross-road to attend the function, they saw PW1 – victim girl weeping, who told them that the accused committed rape on her, and when the accused came there, PW5, out of anger, slapped him. PW8 – Rajulu, deposed that PW1 came to his house to go to Konapeta, but he was not invited for that function, and at that time the accused came to his house and stated that he was also to attend lunch in the village. Then, PW8 asked him to accompany PW1, who is willing to attend the function at Konapeta as she is alone. Then the accused and PW1 left his house for Konapeta. PW13 – Civil Surgeon deposed that on 21.3.1998, she conducted internal examination on the victim girl and stated that hymen of the victim girl remained intact, and determined her age as 12 years, and opined that simply because hymen was intact, it cannot be said that no rape was committed on her. From a careful analysis of the evidence on record, it is obvious that admittedly, according to the case of the prosecution, nobody saw the accused committing heinous act. In case of any sexual offence, there is no chance for the third person to witness the incident because the accused naturally selects lonely place and takes all precautions that his acts will not be witnessed by anybody. So, necessarily such cases have to be dealt with on the basis of circumstantial evidence. In the instant case, the first circumstance is that the accused took PW1 to Konapeta village and they were going lonely and this circumstance is further supported by the evidence of PWs.3 to 5 that on the date of the incident, while they were proceeding to Konapeta village along with others through the nearest way and when they reached the temple, they saw PW1 weeping and her body was covered with dust, and also her statement that the accused raped her is also fortified. Further, the evidence of PW13 is supported by the Medical Jurisprudence. It is true that the absence of rupture of hymen cannot lead to an implication that there was no rape on the victim. This Court, therefore, has no hesitation to hold that from the evidence produced by the prosecution, the accused committed sexual act on PW1 amounting to rape. Even a penetration is sufficient to constitute the offence of rape as provided in the explanation to Section 375 IPC. The degree of penetration is not the criteria. In my considered opinion, as could be seen from the evidence on record, there may not be deep penetration in order to rupture the hymen, but there might be slight penetration because PW1 deposed unequivocally that the accused laid on her for about five minutes. From this kind of scene, probably, the accused might have ejaculated her even to make an attempt of penetration. Hence, I find no room to disbelieve the version of PW1 which was corroborated by the evidence of PWs.3 to 5 and 13 that she was subjected to rape. For the foregoing reasons, this revisional Court does not find any infirmity in the impugned judgment warranting interference from this Court. Hence, the Criminal Revision Case fails, and the same is accordingly dismissed confirming the conviction imposed by the lower appellate Court for the offence punishable under Section 354 IPC. Insofar as the sentence is concerned, the same is also confirmed having regard to the fact that the lower appellate Court has already modified the quantum of sentence by reducing it to a minimum. ________________ B.N. RAO NALLA, J. 2nd July, 2010 bcj