*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL APPEAL No.2572 of 2004 % 21-09-2011 #Narra Peddi Raju ….Appellant Vs. $ The State of A.P, rep. by Public Prosecutor …. Respondent !Counsel for the Appellant: Sri I.V.Ramesh Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. (2010)8 Supreme Court Cases 191 2. AIR 1996 SC 2766 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2572 of 2004 DATE: 21.09.2011 Between: Narra Peddi Raju …… Appellant And: The State of A.P, rep. by its Public Prosecutor, High Court of A.P, …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2572 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court of the offence under Section 376 I.P.C and was sentenced to rigorous imprisonment of 10 years and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. 2) It is the prosecution case that on 04.12.2000 at 17.30 hours when P.W-1 was returning to her house after attending coolie work and when she reached Samanakuntla Vorrey, the accused committed rape on her in spite she raising cries. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found him guilty of the charge. 3) During trial in the lower Court, the prosecutrix/victim woman was examined as P.W-1. There are no eye witnesses to the occurrence. Immediately after the offence, P.W-1 is stated to have returned to the house and informed the same to her husband P.W-2. P.Ws 1 and 2 went to Siricilla police station on the same day at 9.00 P.M and gave Ex.P-1 report to P.W-10 who was the then Sub Inspector of Police in that police station. P.W-10 received Ex.P-1 and registered the same and issued Ex.P-8 F.I.R. P.W-9 is the then Inspector of Police, Siricilla Circle who took up investigation in the case. He sent P.W-1 to Government Hospital, Karimnagar for examination and report. P.W-7 is the Civil Assistant Surgeon, Government Head Quarters Hospital, Karimnagar who examined P.W-1 on 05.12.2000 at 7.00 P.M and issued Ex.P- 5 certificate. After receiving Ex.P-4 F.S.L report, she gave Ex.P-6 final opinion certificate. P.W-9 arrested the accused on 08.12.2000 at 4.00 P.M. On the same day the accused was sent to Government Hospital, Siricilla where P.W-8 who is the civil assistant surgeon examined the accused for potency test and gave Ex.P-7 certificate opining that the accused is capable of performing sexual intercourse. During investigation, P.W-9 observed the scene of offence in the presence of mediators P.Ws-3 and 4 under the cover of Ex.P- 3 scene of offence observation report. 4) It is contended by the appellant’s counsel that all the material witnesses in this case turned hostile to the prosecution and that there is no incriminating material against the accused to warrant his conviction. It is further contended that though the prosecutrix/P.W-1 spoke to the offence in her examination-in-chief, had given gobye to her version in her cross-examination and denied the offence and that therefore, no reliance should have been placed on examination-in-chief of P.W-1. On the other hand, the Additional Public Prosecutor placing reliance on Vijay Alias Chinee V. State of Madhya Pradesh[1] of the Supreme Court contended that evidence of P.W-1 itself is sufficient to find the accused guilty under Section 376 I.P.C and that the Court need not expect any corroboration for P.W-1’s evidence in cases of this nature. 5) It is P.W-1’s evidence that about 2 years ago at about 6.00 P.M when she was returning from her work, the accused came behind her, caught hold of her hand and committed rape on her and that she went to her house and informed the same to her husband and that both of them went to police station on the same day and presented Ex.P-1 report. When the Additional Public Prosecutor in the lower Court read over contents of Ex.P-1, P.W-1 admitted the same to be true and correct. P.W-1 further deposed that she does not remember who drafted the report and that she affixed her thumb impression on Ex.P-1. It is contended by the appellant’s counsel that in Ex.P-1, P.W-1 did not state that contents of Ex.P-1 were read over to her. Since Ex.P-1 is written report presented by P.W-1 to the police, there was no legal obligation for the police to read over contents of the same to P.W-1 before registering the same. Section 154 Cr.P.C contemplates the exercise of reading over contents of the report by the police officer to the informant, in case the informant gives oral report and it was reduced by the police officer into writing. It is only in the case of oral report the police are obliged to read over contents of the report which was reduced into writing to the informant and to receive acknowledgement of the informant about correctness of the contents of the report. In this case, there is no obligation under Section 154 Cr.P.C for the police to read over the contents of Ex.P-1 to P.W-1. In any event, P.W-10 who registered the crime, recorded her oral statement under Section 161 Cr.P.C immediately after registration of the crime. Even during trial, the Additional Public Prosecutor who conducted prosecution in the lower Court read over contents of Ex.P-1 to the witness/P.W-1 and she accepted the same to be true and correct. Evidence of P.W-1 in her examination-in-chief is corroborated by contents of Ex.P-1 F.I.R. 6) It is pointed out that in cross-examination, P.W-1 deposed that she did not know the accused and that she was returning from her work at 9.00 P.M and that it was dark and that there was no current in the village and that she cannot identify the person in that dark night and that it was a winter season and that the accused did not commit rape on her and that she does not know contents of Ex.P-1 and that the police did not examine her. It is contended by the Additional Public Prosecutor that though P.W-1 was examined-in-chief on 25.03.2004, she was cross-examined on 24.06.2004 and that in the meanwhile P.W-1 was gained over by the accused. On the other hand, it is contended by the appellant’s counsel that simply because P.W-1’s cross-examination was conducted after three months, the cross-examination cannot be brushed aside. When the cross-examination is tainted by crude manoeuvring of the witness, then the cross-examination loses its weight. It is a case of crude manoeuvring of the witness during the period of three months after P.W-1’s examination. When P.W-1 was examined in chief on 25.03.2004, cross- examination by the defence counsel was reported as Nil. Subsequently after manoeuvring the witness, the defence counsel filed Crl.M.P.No.1576 of 2004 in the lower Court to recall P.W-1 for further cross-examination and it was allowed by the lower Court and thereafter P.W-1 tendered herself for further cross-examination. In the said further cross- examination, she gave a gobye to the previous version given in her examination-in-chief and deposed in the above manner. Since it is a case of winning over the witness after her first examination in Court, as pointed out earlier, the cross- examination of P.W-1 loses its weight and it cannot be relied upon at all for any purpose as it is tainted one. Evidence of P.W-1 in her first examination in Court cannot be brushed aside on the basis of tampered evidence in second cross- examination which took place after three months. The maxim falsus in uno falsus in omnibus is not applicable in Indian legal scenario. It is primary duty of the Court to separate grain from chaff. I n State of U.P V. Ramesh Prasad Misra[2], the Supreme Court in evaluating the hostile witness ruled: "The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted." It is most unfortunate that even after collection of evidence on oath in open Court during trial, some unscrupulous sections in the society attempt to tamper such evidence also. This practice shall be deprecated and cannot be supported. In such a case, it would be a legal and reasonable ground to cancel bail to the accused and key him in Jail during rest of the trial. 7) P.W-2 who is husband of P.W-1 deposed that his wife did not inform him anything and that he and his wife went to the police station and that the police did not examine him. He was treated as hostile by the trial Court prosecutor and in the cross-examination by the prosecution, he denied the suggestion that he stated to the police as in Ex.P-2. It is not known for what purpose P.W-2 along with P.W-1 went to the police station if P.W-1 did not inform him anything. It is contended by the appellant’s counsel that though there is three months gap for second cross-examination of P.W-1, there was no such gap for examination of P.W-2 and that P.W- 2 was examined on the same day when P.W-1 was originally examined in the trial Court and that P.W-2 did not support the prosecution even in his first and only examination in Court. Even though P.W-2 was gained over by the accused by 25.03.2004, P.W-1 did not support P.W-2 on that day. It shows that in spite of the accused managing P.W-2 to depose in his favour, P.W-1 could not be managed to depose in favour of the accused by 25.03.2004. The fact that P.W-1 gave evidence in support of the prosecution case in spite of her husband P.W-2 turning hostile to the prosecution on 25.03.2004, reinforces truth in P.W-1’s evidence and in P.W- 1’s version. Evidence of P.W-1 in second cross-examination that she was returning to her house at 9.00 P.M in dark, cannot be believed even for a moment because by 9.00 P.M on the date of offence P.Ws 1 and 2 went to the police station and presented Ex.P-1 report to P.W-10 who registered the same at 9.00 P.M. 8) It is evidence of P.Ws 3 and 4 that the investigation officer took them to Bhavanigutta Vorrey where Ex.P-3 scene of offence observation report was prepared. As per Ex.P-1 report which was asserted by P.W-1 to be true, the scene of offence is in Bhamankunatal Vorrey. It is contended by the appellant’s counsel that the prosecution has to prove the scene of offence and that there is contradiction in evidence of P.W-1 and evidence of P.Ws 3 and 4 with regard to location of the scene. On the other hand, it is contended by the Additional Public Prosecutor that except spelling difference, there is no change or shift in the scene of offence between P.W-1 and the mediators P.Ws 3 and 4. Since P.W-1 happens to be illiterate woman and a marks-woman, her pronunciation of the scene differed in Ex.P-1. I am of the opinion that such spelling differences cannot defeat the prosecution case. The appellant’s counsel intended to make a mountain out of a mole. 9) Apart from P.W-1’s evidence and Ex.P-1 which has got corroborative value, there is also medical corroboration in this case. It is evidence of P.W-7 and it is noted in Exs.P-5 and P- 6 that there is evidence of intercourse. It is contended by the appellant’s counsel that since P.W-1 is a married woman, her intercourse with her husband cannot be ruled out. Though P.W-1 was not a spinster and was a married woman and though medical evidence of sexual intercourse for P.W-1 is established, her oral evidence as P.W-1 assumes much importance in this case. The lower Court also placed heavy reliance on oral evidence of P.W-1 only in finding the accused guilty of the offence under Section 376 I.P.C. Except her tampered and tainted cross-examination, no circumstance could be pointed out as to why P.W-1’s evidence should not be believed. No reason is put forward as to why P.W-1 launched the prosecution of the accused if there was no rape. The lower Court who had the opportunity to observe demeanour of the witness P.W-1 came to the conclusion that P.W-1’s evidence is entitled to weight and is believable. I do not find any circumstances to disbelieve P.W-1’s evidence in this case. 10) Therefore, for all the above reasons, I find that the conclusion arrived at by the lower Court is proper and just. There are no grounds to interfere with finding of guilt recorded by the lower Court, in this appeal. 11) In the result, the appeal is dismissed, but in the circumstances of the case, altering sentence of imprisonment from ten years to seven years. Fine amount is maintained. _______________________________ SAMUDRALA GOVINDARAJULU, J September 21, 2011 Note: L.R.Copy to be marked (b/o) KSH [1] (2010)8 Supreme Court Cases 191 [2] AIR 1976 SC 2766