THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL Nos.204 & 701 OF 2008 COMMON JUDGMENT: These two appeals arise out of a judgment, dated 28-06-2008, in S.C.No.920 of 2006 on the file of the learned Special Sessions Judge for Trial of offences under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (for brevity, ‘the Act’), Karimnagar, wherein A1-appellant in Crl.A.No.204 of 2008 was found guilty of the offence under Section 376 IPC and was convicted and sentenced to undergo rigorous imprisonment for seven years and also pay fine of Rs.2000/- and A2-appellant in Crl.A.No.701 of 2008 was found guilty of the offence under Section 376 r/w 109 IPC and sentenced to undergo rigorous imprisonment for seven years and pay fine of Rs.2000/- and in default of payment of fine each of them was sentenced to undergo simple imprisonment for a period of six months. 2. Since both the appeals arise out of the common judgment and involve similar questions of fact and law, they are heard together and are being disposed of by this common judgment. 3. Heard both sides. Perused the records. 4. The case of the prosecution is that the de facto complainant- Pallkonda Rajitha-P.W.1, the victim girl was a labourer working under A1, who was a maistry, and that on 12-01-2005 at about 4.00 p.m., A2 took P.W.1 to the Maize field on the pretext that A1 was calling her in connection with the work of digging the agricultural well for Gellu Chandraiah-P.W.4 and that after reaching the field A1 and A2 pushed P.W.1 on to the ground and while A2 caught hold of her, A1 committed rape on her. It is further alleged that A1 caught hold of the thread from her neck and when she pulled it from his hands and threw the same, some beads have also fallen. It is further alleged that P.W.1 some how escaped from the scene, reached home and informed P.W.2, who is the owner of the house, about the incident and also to her people and on the next day i.e., on 13-01-2005 at about 11.30 a.m. a complaint-Ex.P1 was given by P.W.1 which was registered as First Information Report-Ex.P8 by the Assistant Sub Inspector of police-P.W.11 in Cr.No.4 of 2005. P.W.11 inspected the scene of offence and seized the black beads and red beads-M.O.3 from the scene of offence under panchamana-Ex.P9 in the presence of P.W.12. 5. P.W.13-S.D.P.O., who was the Investigating Officer, took up investigation and in pursuance of the proceedings under Ex.P10, recorded the statements of the witnesses and seized M.O.4-Dovathi of A1 and M.O.5-cut drawer of A1. P.W.14-Medical Officer examined the victim girl on the next day on 14-01-2005 and gave report-Ex.P12 and also final opinion-Ex.P13 to the effect that P.W.1 was subjected to a recent sexual intercourse. The vaginal smears collected by P.W.14 from P.W.1 along with M.O.2-petty coat of P.W.1 were sent to the Forensic Science Laboratory and report-Ex.P11 was received from the Forensic Science Laboratory to the effect that semen and spermatozoa were detected on M.O.2. After completion of investigation, P.W.13 filed charge sheet. 6. Both the accused appeared before the Court and pleaded not guilty to the charges framed under Section 376 IPC against A1 and Section 376 r/w 109 IPC against A2 and also under Section 3 (2) (v) of the Act. 7. In support of its case, prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P13 and M.Os.1 to 5. 8. Thereafter, the accused were examined under Section 313 Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence. They did not adduce any defence evidence. 9. On a consideration of the evidence available on record, the learned Special Sessions Judge found A1 guilty of the offence under Section 376 IPC and also found A2 guilty of the offence under Section 376 r/w 109 CPC and convicted them for the same and sentenced each of them to suffer rigorous imprisonment for seven years and also pay fine of Rs.2000/-. Both the accused were however found not guilty of the offence under Section 3(2) (v) of the Act and were acquitted thereof. Aggrieved by the conviction and sentence, A1 and A2 preferred the present appeals. 10. The trial Court mainly relied upon the testimony of the victim girl-P.W.1 and found the same to be trustworthy and free from any inconsistencies. Admittedly, there was no eye witness to the incident. Except the testimony of P.W.1-victim girl, there is no direct evidence in support of the prosecution case. The testimony of P.W.2, the owner of the house in which A2 was residing as a tenant, is to the effect that P.W.1 and A2 were working in the well of Chandraiah under A1 and the motor came to repair and the work was stopped and on that day P.W.1 remained at home and A2 came and took P.W.1 on the pretext of work at 3.00 p.m. and P.W.1 returned home by 5.30 p.m., weeping and informed P.W.2 that A2 took her to the fields, and held her, and A1 committed rape on her. The testimony of P.W.2 therefore establishes the fact that while P.W.1 remained at home on that day because there was no work as the motor came to repair, A2 came to the house and took P.W.1 and on return, a couple of hours later, P.W.1 narrated the incident to P.W.2 and others. 11. P.W.3-grand mother of P.W.1 also corroborated by deposing that P.W.1 returned home at 5.00 p.m. and fell weeping and on enquiry P.W.1 revealed that A2 took her to the Maize field, held her tight and A1 committed rape on her. It is also in the evidence of P.W.3 that her sons were in a drunken condition on that evening and therefore a report was given on the next day. P.W.1 also testified that because her people were in drunken condition on that evening, she could not inform them and therefore she gave a report on the next day stating the fact that the incident took place in the evening of 12-01-2005 and the police station is situated 2½ kms away. 12. Lodging of the complaint-Ex.P1 on the next day i.e., 13-01-2005 cannot be said to have been unduly delayed in view of the explanation of P.Ws.1 and 3 that on that evening their men folk were all in drunken state and therefore the complaint could not be given on the same day. Thus the testimony of P.Ws.2 and 3 would support and corroborate the testimony of P.W.1 to the effect that immediately after the occurrence P.W.1 reported the matter to both of them. P.W.4 in whose agricultural fields the work was going on also testified stating that A1, A2 and P.W.2 were working as labourers and he entrusted the work of digging the well to A1 and P.W.1 worked for five days and he stopped the work and on the next day the police called him. Thus, the fact that the work had to be stopped abruptly and on the date of the incident there was no work for the accused and P.W.1 is borne out by the evidence of P.W.4 also. The fact that A1 was engaged by P.W.4 for digging agricultural well and A2 and P.W.1 were working as labourers under A1, is thus established by the evidence of P.W.4. 13. Regarding the incident, P.W.1-victim girl has categorically testified that on that day when she was at home for want of work A2 came at about 3.00 p.m. and took her to the fields of P.W.4 and near the well, Maize crop was there and A1 and A2 pushed her on the ground, A2 caught hold of her and A1 closed her mouth and committed rape on her. She further deposed that the beads thread has fallen off from her neck and A1 caught hold of the thread which P.W.1 pulled and the beads have fallen. 14. In the cross examination of P.W.1 nothing is elicited so as to discredit her testimony in any manner. It is suggested to P.W.1 that on that day she went to A1 demanding payment of the money due to her and A1 did not pay the amount and therefore she filed a false case against the accused. P.W.1 denied the suggestion. It cannot for a moment be believed that P.W.1 would resort to giving a false complaint of rape against A1 simply because A1 failed to pay the arrears of wages due to her for three days. There is absolutely no reason as to why P.W.1 should implicate A2 also if the amount is due from A1 alone. The testimony of P.W.1 clearly establishes the factum of A2 coming to her house and taking her to the fields of P.W.4, A2 throwing her down, holding her against the ground and A1 committing rape on her. 15. It is well settled that conviction can be based on the sole testimony of the prosecutrix without any corroboration, provided such testimony is found to be truthful and free from any material infirmity. 16. I n STATE OF PUNJAB v. GURMIT SINGH[1] the apex Court held that: “the trial Court overlooked that a girl, in a tradition –bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society”. 17. In STATE OF HIMACHAL PRADESH v. GIAN CHAND [2] the apex Court held that: “it is now well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. “If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations”. 18. In STATE OF HIMACHAL PRADESH v. MANGE RAM[3] the apex Court held that: “In view of the evidence of prosecutrix (P.W.5) which is corroborated by medical evidence and other item of evidence and in the absence of any consent on the part of the prosecutrix, it is clearly established that the accused had committed rape on the prosecutrix and is liable for the offence punishable under Section 376 IPC. The finding given by the learned Sessions Judge is not based on proper appreciation of evidence and, therefore, unreasonable and we are of the view that the Sessions Court dealt the case so lightly. The offence of rape being a serious one, the case should have received careful attention and that the learned Sessions Judge and the learned single Judge should have shown greater sensitivity to these type of cases. The evidence should have been appreciated on broader probabilities and not to be carried away by insignificant contradictions”. 19. In view of the principles laid down in the above decisions, the contention of the learned counsel for the appellants that the sole testimony of P.W.1 in the absence of corroboration is unsafe to rely upon, is untenable. In fact, it is not as though the testimony of P.W.1 is totally devoid of any corroboration. More so, as stated supra, P.Ws.2 to 4 have deposed in corroboration to the testimony of P.W.1 regarding the aspects which immediately preceded and also succeeded the incident proper, probablizing the version of P.W.1 that she was taken to the fields on that afternoon by A2 and that A1 committed rape on her while A2 abetted A1 in the commission of the offence. 20. Apart from the testimony of P.Ws.1 to 4, the medical evidence on record also corroborates the version of P.W.1. P.W.5- Medical Officer in the District Head quarters hospital, Karimnagar conducted potency test on A1 and issued a certificate-Ex.P2 wherein he stated that there is nothing to suggest that A1 cannot perform sexual intercourse. P.W.14-Medical Officer, who examined P.W.1 on 14-01-2005 itself found that P.W.1 had undergone recent sexual intercourse and after receiving the Forensic Science Laboratory report-Ex.P11, she also issued Ex.P12-examination report of P.W.1, wherein the vaginal swabs and smears of P.W.1 were preserved. In Ex.P11 it is stated that the semen and spermatozoa are detected on M.O.2- petticoat of P.W.1. 21. The medical examination of P.W.1, which was conducted shortly after the occurrence, and the findings of the Forensic Science Laboratory contained in Ex.P11 also go to show that P.W.1 was subjected to sexual intercourse in the recent past, prior to the medical examination. The fact that no physical injuries were found on the private parts or other parts on the person of P.W.1 does not rule out the commission of rape, especially in view of the evidence of P.W.1 that she could not resist on account of her being over-powered by A1 and also A2, who assisted and abetted A1 in the commission of the offence. 22. In STATE OF RAJASTHAN, v. N.K.(ACCUSED)[4] the apex Court held that: “absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix and it will all depend on the facts and circumstances of each case”. 23. In BALWANT SINGH v. STATE OF PUNJAB[5] the apex Court held that absence of any marks of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse. It was further observed that the prosecutrix on account of age of infirmity or overpowered by fear or force may have been incapable of offering any resistance. 24. In these circumstances, the Medical evidence having supported the prosecution case and the testimony of P.Ws.2 to 4 also supporting the prosecution version, the testimony of P.W.1 being free from any legal infirmities and no material contradictions or omissions having been elicited in the testimony of P.W.1, the trial Court has rightly relied upon the testimony of P.W.1 to base the conviction. The identity of the accused as the offenders is also not in dispute inasmuch as both A1 and A2 were persons known to P.W.1 as P.W.1 was working along with A2 under the control of A1 in the digging the agricultural well in the fields of P.W.4. There is absolutely no motive suggested or elicited in the evidence of P.W.1 as to why she gave any false complaint against A1 and A2. It is highly improbable and hard to believe that P.W.1, a young woman aged around 20 years, should falsely implicate A1 leaving the real culprit. In fact, it is equally improbable that P.W.1 should resort to give a complaint of rape against A1 affecting adversely her self-respect, self-esteem and honour unless the incident be true. Probabilities apart, the evidence available on record, direct, circumstantial and medical, clearly establish the prosecution version that A1 has committed rape on P.W.1 in the afternoon of 12-01-2005. The evidence on record also establishes that A2 notwithstanding the fact that she is also a woman and co-worker along with P.W.1, has abetted the commission of heinous offence by A1 by enticing P.W.1 and taking her to the fields on a false pretext of having work and even assisted A1 in the course of commission of the offence by holding P.W.1 tight and thereby preventing her from offering any resistance or escaping from the clutches of A1. The overt act alleged and proved against A2 is equally heinous deserving all condemnation and is no less punishable than the main offence itself. 25. Learned Sessions Judge has on proper appreciation of the evidence available on record, found A1 guilty of the offence under Section 376 IPC and found A2 guilty of the offence under Section 376 r/w 109 IPC. The conviction of the accused for the above said offences is therefore held not liable to be interfered with. Regarding the sentence also having regard to the gravity of the nature of the offence alleged and the heinous manner in which it is perpetrated by A1 and A2 on a helpless young widow-P.W.1 who was eking out her livelihood doing physical labour, the sentence of rigorous imprisonment for seven years and fine of Rs.2000/- imposed against each of them cannot be considered unreasonable and hence, the said sentence is confirmed. 26. In the result, Criminal Appeals are dismissed. _______________________ G.V.SEETHAPATHY, J 07th August, 2009 Tsy [1] 1996(2) SCC 384 [2] 2001 SCC. 2075 [3] AIR 2000 SUPREME COURT 2798 [4] AIR 2000 SUPREME COURT 1812 [5] AIR 1987 SC 1080