IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1291 OF 2004 Between: Dakey Bhugangadharara Rao .....PETITIONER AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1291 OF 2004 ORDER: This Criminal Revision Case, filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 25.06.2004, in Criminal Appeal No.7 of 2003, on the file of IV Additional District and Sessions Judge (Fast Track Court), Tanuku, whereunder and whereby, the conviction of the petitioner/accused of the offence punishable under Section 376 I.P.C. and sentence to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for six months, recorded in the judgment, dated 22.01.2003, in Sessions Case No.11 of 2002, on the file of the Assistant Sessions Judge, Tanuku, were confirmed. 2. The brief facts that are necessary for disposal of the present Criminal Revision case may be stated as follows: PW.1, the victim girl, was resident of Bobbarajupalem Village, aged about 14 years and studying VI class. On 02.06.2001 at about 04:00 P.M., when PW.1 lonely went to the fields of Kalligottala Yellarao at the outskirts of Bobbarajupalem Village to fetch grass to her cattle, the accused along with PW.4, followed her. At about 05:15 P.M., while PW.1 was collecting grass in the field of said Yellarao, the accused caught hold of her hands, forcibly took her to the haymow in the field of said Yellarao, used criminal force and committed rape on her against her will and consent. PW.1 struggled in the hands of the accused and raised cries for help. On that, PWs.2, 4, 5 and 6 rushed to the scene of occurrence and on seeing them, the accused fled away from the scene of occurrence. On the same day, at about 07:00 P.M., PWs.1 to 3 approached the elders and requested them to convene a panchayat. In the panchayat, the accused admitted his guilt, but refused to marry PW.1. On the next day, PW.1 lodged a complaint with PW.13, who registered a case. He examined the witnesses and visited the scene of occurrence. PW.1 was sent to Government Hospital, Tanuku, for age determination and also for medical examination. The material objects namely the clothes of the victim girl were sent to the Forensic Science Laboratory. After the accused was arrested, he was also sent to the Government Hospital, Tanuku, for potency test. After completion of investigation, police filed charge sheet. 3. When the charge under Section 376 I.P.C. was framed against the accused, read over and explained to him, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined PWs.1 to 15 and got marked Exs.P-1 to P-15, besides case properties MOs.1 to 4. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the defence, DW.1 was examined and Exs.D-1 to D-4 were got marked. 6. The trial Court accepting the evidence of PWs.1 to 3 coupled with medical evidence, found the accused guilty of the offence punishable under Section 376 I.P.C. and accordingly, convicted and sentenced him as stated above. On appeal, the said conviction and sentence were confirmed by the appellate Court. Challenging the same, the present Criminal Revision Case is filed by the accused. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. Learned counsel for the petitioner contended that if really the rape was committed against the will of PW.1, she would have sustained some injuries when admittedly she was struggling with the accused when the rape was committed; that the medical evidence does not support the evidence of PW.1 with regard to committing of rape; that when the medical evidence is inconsistent with the ocular testimony, it is not safe to place reliance on the evidence of PW.1 to base a conviction on the petitioner; and that due to political reasons the accused was falsely implicated in this case and hence, he prays to set aside the conviction and sentence recorded against the petitioner. 9. On the other hand, learned counsel representing the learned Public Prosecutor contended that the evidence of PW.1 is very clear that she was subjected to rape; that while she was collecting grass, she was forcibly taken to the fields of one Kalligottala Yellarao by the accused and committed rape on her; that there was rupture on the hymen of PW.1, which indicates that there must be penetration of penis into the vagina of PW.1; that the evidence of PW.1 coupled with Ex.P-11 – wound certificate, indicates that PW.1 was subjected to rape; that the trial Court and the appellate Court after elaborate consideration of evidence, rightly found the accused guilty; and there are no grounds to interfere with the judgments passed by both the Courts below and hence, he prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse if it is not based upon proper appreciation of the evidence on record. 11. The specific case of the prosecution is that on 02.06.2001 at about 05:15 P.M., PW.1 went to the land of one Tataiah babu for collecting grass, and while she was cutting grass, the petitioner came there and invited her to cut the grass in the field of one Yellarao, where the petitioner and other person were cutting the grass. When PW.1 refused, the petitioner caught hold of her hand, and forcibly took her to the field of one Yellarao, made her to lie on the haymow, removed her skirt, put his penis into her vagina and spoiled her. In the meantime, father of PW.1 came there and on seeing him, the petitioner left the place. Then the matter was reported to the elders and in the panchayat, the petitioner confessed his offence before the elders. The elders advised the petitioner to marry PW.1. But the petitioner refused to marry her. On the next day morning at about 10:00 A.M., PW.1 lodged Ex.P-1 - report. A case is registered. Thereafter, PW.1 was referred to the Government Hospital, Tanuku. PW.11 - doctor examined PW.1 on 03.06.2001 and issued Ex.P-8 - final opinion. Ex.P-9 is the Regional Forensic Science Laboratory Report. PW.11 opined that there was evidence of intercourse. The reason for giving such an opinion is that there was rupture of hymen of PW.1. PW.11 did not find any external injury on the body of PW.1. It is the case of the prosecution that the rape was committed on the haymow in the field of one Yellarao. Therefore, the possibility of sustaining injuries by PW.1 may not arise. For that reason, it cannot be said that no rape was committed on PW.1. There must be a strong dislike or enmity for PW.2 to falsely foist a case of this nature against the petitioner. In the evidence of PWs.2 and 3, who are the parents of PW.1, nothing has been elicited to discredit their testimony, except suggesting that there were some political rivalries between the petitioner and PWs.2 and 3. The victim girl was studying VI class and aged about 14 years. The offence of rape involves the prestige of victim as well as prestige of her family. Rape is no merely a physical assault. It is often destructive of the whole personality of victim. Victim will be looked down in the Society. In such circumstances, PWs.2 and 3 would not have dared to project their own daughter saying that she was subjected to rape by the petitioner, in which event, they will be put down in the village and nobody will come forward to marry the victim girl - PW.1. So in such circumstances, it cannot be believed that the prosecution has foisted a false case against the petitioner. 12. The evidence of PW.2 would go to show that on 02.06.2001, when PW.1 did not return even by 05:15 P.M., he went to the field in search of his daughter, then he heard the cries of his daughter and rushed to the scene, and after seeing him, the petitioner ran away; that PW.1 was weeping at that time and then PW.1 informed PW.2 about the petitioner committing rape on her. 13. The evidence of PW.3, who is no other than the mother of the victim girl - PW.1, would go to show that the petitioner admitted the offence before the elders and when the elders advised the petitioner to marry PW.1, he refused, and therefore, they lodged a report - Ex.P-1 on the next day. 14. The evidence of PWs.4 to 6 is not of much importance. PWs.7 to 9 are the mediators present at the time of conducting panchayat and when the petitioner admitting the offence committed by him before the panchayat. PW.10 is the mediator, who was present at the time when the police observed the scene of occurrence and found the heap of grass in pelmel condition, and drafted mediators report. 15. PW.14 is the doctor who examined the petitioner and given Ex.P-12 - final report stating that the petitioner was not incapable of doing intercourse. So, the contention that the medical evidence is inconsistent with the ocular testimony cannot be accepted, in view of the fact that PW.1 as victim has categorically stated that the petitioner committed rape on her against her will and she raised cries. The hymen of the victim girl was ruptured. It is not the case of the petitioner that the rupture of hymen of PW.1 has taken place in some other manner at some other place. Rupture of hymen indicates that there was penetration of penis into the vagina of PW.1. Mere penetration is an offence punishable under Section 376 I.P.C. The medical evidence also supports the case of PW.1 that PW.1 was subjected to sexual intercourse. 16. Learned counsel for the petitioner placed reliance on a decision of Madhya Pradesh High Court in Sakariya v. State of M.P.[1], wherein it is held thus: “Lady Dr.Gavali P.W.6 has categorically stated that seeing the chemical examiner’s report Ex.P.8, she could say that no intercourse had taken place with the prosecutrix. She is very clear and emphatic in her statement. The findings recorded by her in her report Ex.P.3 do not support the prosecution. Similarly the Chemical Examiner’s report Ex.P.8 which is also negative so far as seminal stains and presence of spermatozoa are concerned, nothing of the sort, was detected on chemical examination.” This is a decision where the doctor categorically stated that no sexual intercourse had taken place. Therefore, the above decision has no application to the present facts of the case. 17. Similarly, the learned counsel also placed reliance on a decision of Madhya Pradesh High Court in Bahadursingh @ Bahadursingh v. State of M.P.[2], wherein it is held thus: “Kaweribai (P.W.1) has stated that she and the accused were grazing cattle in the field for some time. The accused then requested her to allow him to do work meaning to have sexual intercourse. She declined and told him not to make such a request but he did not heed to the protest caught hold of her, fell her down and took her ‘Ijjat’, but she did not explain or say that accused had sexual intercourse with her or that there was penetration. Dr. Shanta Saraf (P.W.5) as per her report (Ex.P/3) opined that from her examination inference of rape could not be drawn. In this state of evidence of the prosecutrix and Dr. Saraf, the contention of Shri Amarsingh that offence of rape punishable u/S. 376 I.P.C. is not made out against the appellant must be accepted.” Similarly, this is a case where the medical evidence rules out the sexual intercourse on the victim. 18. The learned counsel also placed reliance on a decision of Honourable Supreme Court in Ram Nivas v. State of Karnataka[3], wherein it is held thus: “The case mainly rested on the evidence of prosecutrix, PW.1. The way she narrated the whole occurrence appears to be highly doubtful and looks as no such rape has taken place. She says that she cried and tried to wriggle out but neither on her nor on the accused any injuries were found. She further gave so many details as to how the accused is said to have committed rape and she categorically stated that the accused had intercourse fully with her against her will. The doctor who examined her did not find any spermatozoa. The fact that no spermatozoa was found would go to show that no such occurrence had taken place. The doctor, further admitted that he could not give exact opinion whether rape had taken place or not because of the absence of spermatozoa in the smear and since she was married woman for five years her hymen will not be intact. The accused was also examined by a doctor on the next day and doctor did not find any injury suggesting a forcible rape. We need not go into the fact whether it was a case of rape or consent. But we are not prepared to place any reliance on her evidence itself. It is true, that the courts below have accepted her evidence. But to satisfy ourselves we have examined her evidence minutely and the same is highly untrustworthy. In these circumstances we give benefit of doubt to the appellant. The appeal is allowed accordingly and the accused shall be released.” This is also a case where the doctor did not give any opinion with regard to committing of rape or not. 19. The learned counsel also placed reliance on a decision of Honourable Supreme Court in Yerumalla Latchaiah v. State of A.P.[4], wherein it is held thus: “In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (P.W.7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.” This is a case where the hymen was found intact and the doctor had specifically stated that there was no sign of rape at all. 20. In all the above decisions the medical evidence is clear that there was no evidence of rape. In those circumstances, the accused therein were not found guilty. But, here is a case where the ocular testimony is completely in corroboration with the medical evidence. The trial Court as well as the appellate Court after elaborate consideration of evidence on record, rightly found the petitioner guilty of the offence punishable under Section 376 I.P.C. None of the findings of both the Courts below are contrary to law. The findings are based upon the evidence on record. In the absence of any incorrect or improper finding, the judgments under challenge need no interference by this Court. 21. Accordingly, the Criminal Revision Case is dismissed confirming the judgment, dated 25.06.2004, in Criminal Appeal No.7 of 2003, on the file of IV Additional District and Sessions Judge (Fast Tract Court), Tanuku. Period of detention, if any, underwent by the petitioner during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. _______________ K.C. BHANU, J July 16, 2010 MD THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1291 OF 2004 July 16, 2010 [1] 1991 CRI.L.J. 1925 [2] 1991 CRI.L.J. 753 [3] 1994 SCC (Cri) 503 [4] (2006) 9 SCC 713