THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL Nos.763 & 985 OF 2004 AND 1170 OF 2008 COMMON JUDGMENT: Accused Nos.1 to 3 in S.C. No.195 of 2002 on the file of the Court of the learned Sessions Judge, Mahila Court, Vijayawada, were found guilty for the offences as under: (i) A-1 for the offence under Section 323 IPC instead of Section 324 IPC and was convicted and sentenced to suffer rigorous imprisonment for six (6) months for the said offence; (ii) A-1 to A-3 for the offence under Section 341 IPC and each of them were convicted and sentenced to suffer rigorous imprisonment for one (1) month; (iii) A-1 to A-3 for the offence under Section 366 IPC and each of them were convicted and sentenced to suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for (3) three months each; and (iv) A-1 to A-3 for the offence under Section 376(2)(g) IPC and each of them were convicted and sentenced to suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for (3) three months each; and all the above sentences were ordered to run concurrently against all the accused. 2. Aggrieved by the above impugned judgment and conviction and sentence, A-1 preferred Criminal Appeal No.985 of 2004, A-2 and A-3 preferred Criminal Appeal No.763 of 2004 through jail and A-2 preferred Criminal Appeal No.1170 of 2008 through legal aid. 3. The case of the prosecution, in brief, is as follows: (a) The appellants (A-1 to A-3) are close associates. They are addicted to all vices. They used to waylay and induce women during night at bus stands, railway stations and other public places and assault them and for that purpose they were committing all illegal activities. PW.1 victim is a resident of Lakshmipuram of Tuni Mandal in East Godavari District. She was aged about 18 years and on being left by her husband, she developed illicit intimacy with PW.2 and subsequently she married him. (b) On 09-05-2002 at about 07-30 p.m. PWs.1 and 2 reached Vijayawada station and they were sleeping in front of a foot path near Jack and Jill School. At about 6-00 a.m., A-1 to A-3 approached them and enquired their relationship with each other. A-1 at the point of knife directed PW.1 to follow them and when PW.2 objected for the same, A-1 to A-3 assaulted him causing bleeding injury. Thereafter, they took away PW.1 victim in a cycle-rickshaw to Quarter No.542, where A-1 sexually assaulted her against her will. Thereafter, they took her to a dust bin, opposite to South Central Railway Women’s Welfare Organization Building Quarters, where A-2 and A-3 also sexually assaulted her against her will. PW.2 managed to reach Railway Police and with their help PW.1 victim was traced out and at her instance A-1 to A-3 were arrested. All of them were brought to Satynarayanapuram Police Station. The statement of PW.1 victim was recorded, basing on which a case in Crime No.474 of 2002 was registered for the offences under Sections 376(2)(g), 324, 366 and 341 IPC against A-1 to A-3. PW-1 victim and PW.2 were referred to Government Civil Hospital, Vijayawada for medical examination. A-1 to A-3 were referred to Department of Forensic Medicine for obtaining test. Subsequently, charge sheet was laid into the Court of the learned IV Munsif Magistrate, Vijayawada against A-1 to A-3 under Section 376(2)(g) of IPC, 366 & 341 IPC and under Section 324 IPC against A-1. The said Court had committed the case to the Court of the learned Metropolitan Sessions Judge, Vijayawada in P.R.C. No.135 of 2002 by its order dated 21-08-2002. The case was numbered as S.C. No.195 of 2002 by the Court of the learned Metropolitan Sessions Judge, Vijayawada and the same was made over to the Court of the learned Sessions Judge, Mahila Court, Vijayawada for disposal according to law. 4. On A-1 to A-3 not pleading guilty to the charges, they were tried for the said offences i.e. under Section 324 IPC against A-1, under Section 366 IPC against A-2 and A-3 and under Sections 366(A) IPC, 341 & 376(2)(g) against A-1 to A-3. 5. The prosecution in order to prove its case had got examined PWs.1 to 10 and got marked Exs.P-1 to P-17 and MOs.1 to 6 on its behalf, whereas no witnesses were examined and no documents were marked on behalf of the accused. 6. The learned trial Court, taking the prosecution evidence and other material available on record into consideration had found A-1 to A-3 guilty for the charges framed against them i.e. A-1 under Section 323 IPC instead of 324 IPC, A-1 to A-3 under Sections 366, 341 and 376(2)(g) IPC while not finding A-1 to A-3 guilty for the offence under Section 366(A) of IPC and accordingly they were convicted and sentenced for the same as referred supra. 7. Aggrieved by the impugned judgment and orders of conviction and sentences as passed by the learned Sessions Judge, Mahila Court, Vijayawada, by its judgments dated 11-07-2003 in S.C. No.195 of 2002, A-1, A-2 and A-3 preferred these three appeals as has already been stated supra on the following grounds in the said appeals: a) that the trial Court had erred in appreciating the evidence of prosecution witnesses as well as other material on record and thereby misdirected itself in coming to the conclusion in finding A-1 to A-3 guilty of the offences under Sections 366, 376(2)(g), 323 and 341 of IPC; b) that the trial Court erred in not considering the fact that the prosecution has relied on the evidence of PWs.1 and 2 and that there is no independent evidence on record; c) that the trial Court ought to have seen that PW.1 victim was a consenting party, as such, the trial Court had erred in convicting the accused for the alleged offences; d) that the trial Court ought to have seen that wound certificate of PW.1 did not show any injuries on her person and the same goes to show that she was not subjected to sexual assault; and e) that the trial Court ought not to have relied on the evidence of interested witnesses viz. PWs.1 to 3 and PW.9. 8. With reference to the letter of the Inspector of Police, S.N. Puram Police Station, Vijayawada City, dated 05-3-2011, A-2 (C.T. No.3834) Tulasri Simhachalam, son of Prathap Reddy, was transferred to Central Prison, Visakhapatnam on 17-02-2006, A-1 (C.T. No.3109) Nutala Johan, son of Premaiah, is still confined in Central Prison, Rajahmundry in S.C. No.83 of 2001 on 5-12-2003 and A-3 (C.T. No.3835) Shaik Hussain, son of Masthan, was released on 01-6-2010 as per Remission Rules of the Central Prison, Rajahmundry. 9. The learned counsel on record in Criminal Appeal No.763 of 2004 has not been present in the Court and as such there was no representation on behalf of A-3 in the said appeal. Criminal Appeal No.985 of 2004 is filed through jail and none was appearing in this appeal and there was no representation on behalf of A-1. Therefore, the learned counsel on record in Criminal Appeal No.1170 of 2008 has been requested to represent the accused - appellants in Criminal Appeal Nos.763 and 985 of 2004 and he gracefully obliged for the same. 10. The learned counsel representing all these appeals raised the self-same grounds as has been raised in the grounds of appeals and in addition to that he submits that since the evidence of PW.1 discloses that it was A-1, who took her away in a rickshaw at the point of knife and had committed heinous crime on her at the staircase and that thereafter he took her to near a dust bin, where A-2 and A-3 committed the heinous crime on her, therefore, he contends that the charge under Section 366 IPC may stand in the case of A-1 alone and not against A-2 and A-3 and that the trial Court failed to consider the same and thereby came to an erroneous conclusion that the provisions under Section 336 IPC also attracted in the case of A-2 and A-3. 11. Per contra, learned Public Prosecutor supported the impugned judgment and order of conviction and sentence as passed by the trial Court and contended that there are no grounds to interfere with the same by this Court. 12. This Court gave its earnest consideration to the submissions made by the learned counsel on either side, perused the material on record and the impugned judgment. 13. Now the point for consideration is whether there are any grounds for allowing this appeal ? 14. Firstly, the charge sheet shows that A-1 to A-3 are close associates, addicted to move during mid-nights at the bus stands, railway stations and other busy public places to secure women folk to quench their sexual thirst conjointly and they are prepared to commit any sort of violent acts in the process of their quenching sexual thirst. 15. The evidence of the victim as PW.1 is very clear that while she along with PW.2 was sleeping on a footpath near Jack & Jill School Compound, A-1 to A-3 came there at about 1-30 AM, enquired about her relationship with PW.2, A-1 took her in a cycle-rickshaw at the point of knife to nearby railway quarters by closing her mouth and at a staircase, A-1 raped her against her will and thereafter A-1 forcibly took her on foot to nearby dust bins and there A-2 and A-3 raped her against her will. Her evidence further discloses that when PW.2 objected A-1 to A-3 in taking her away from him in a cycle-rickshaw at the point of knife, A-1 beat him with a stick. The evidence of PW.2 is also similar to PW.1 16. Further, the evidence of PWs.1 and 2 is in corroboration with the evidence of PW.3 – G.R.P. Constable, who on report of PW.2 rushed to the scene of offences along with two other constables and found PW.1 in the company of A-1 to A-3, PW.4 – woman police constable who took PW.1 for medical examination, PW.5 mediator, PW.7 – Assistant Sub-Inspector of Police who registered the case, and PW.9, the Inspector of Police, who filed charge sheet after completion of the investigation, in all respects. The medical evidence also establishes that the victim PW.1 was sexually assaulted. 17. It is also found in the impugned judgment that A-1 was previously convicted in a gang rape case of the same trial Court in S.C. No.83 of 2001 and was sentenced for 10 years and fine. 18. It is also a settled law that in a case of this nature when the evidence of the victim woman is cogent, trustworthy and unrebuttable, her evidence alone is sufficient to base conviction of the accused. However, in this case, the evidence of PW.1 victim woman is supported by the evidence of PWs.2 to 10 coupled with Exs.P-1 to P- 17 and MOs.1 to 6. 19. Relying on the evidence of PW.2 that the husband of the victim - PW.1 left her suspecting her illicit intimacy with him - PW.2, her mother is a vagabond and the victim is a prostitute and that there were no internal or external injuries on her person, the learned counsel for the accused contended that the victim is a consenting party to the heinous act. Firstly, it is a settled law that absence of injury marks on the person of the victim does not always lead to the conclusion that sexual intercourse was committed with her consent and absence of marks of violence is not a relevant consideration and does not rule out the theory of rape nor shows that the victim is a consenting party. Further, the evidence of PW.2 also shows that after the victim - PW.1 was left by her husband, he loved and married her without the knowledge of her parents. The evidence of the victim PW.1 and her companion PW.2 shows that A-1 to A-3 took her away from PW.2 at the point of knife and even when PW.2 objected them, A-1 beat him and in that situation it can be safely presumed that A-1 to A-3 committed rape on her by threatening her and naturally, the victim, who was alone, could not have resisted them due to fear and that being so, there is no possibility of any external and injuries on her person. Furthermore, there is also no material on record to show that she was a consenting party to the heinous crime. The background of A-1 to A-3 also supports the case of the prosecution. In the circumstances, neither could it be inferred from her evidence nor from that of PW.2, who, of course, has stated something about her character, which cannot be taken on its face value, to come to the conclusion that she was a consenting party for the heinous act being committed on her by A-1 to A-3. 20. In the above circumstances, the trial Court has rightly found A-1 guilty of the offence under Section 323 IPC and A-1 to A-3 of the offences under Sections 341, 366 and 376(2)(g) IPC. 21. For the aforesaid reasons, this Court is of the view that the trial Court has not committed any illegality or infirmity in finding A-1 to A-3 guilty of the offences referred supra and keeping the nature of offence and the criminal background of A-1 to A-3, there is no need to reduce the sentence of A-1 to A-3, and therefore, all these appeal are liable to be dismissed. 22. In the result, all these three Criminal Appeals are dismissed confirming the impugned judgment and conviction and sentence of A-1 to A-3 passed by the trial Court. 23. However, it is brought to the notice of this Court that A-3 was released from jail on 01-06-2010, as per Remission Rules of the Central Prison, Rajhmundry where he was undergoing sentence in this case. _________________ B.N. RAO NALLA, J Date:15-04-2011. PV