IN THE HIGH COURT OF JUDICATATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE TWENTYFOURTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1125 OF 2002 Between: M. Musalaiah … Appellant-Accused V/s. The State of Andhra Pradesh Represented by its Public Prosecutor, High Court of A.P. Hyderabad … Respondent-Complainant Counsel for the Appellant : Sri Pachwa Srinivas Rao Counsel for the Respondent : Addl.Public Prosecutor The Court made the following judgment : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1125 OF 2002 JUDGMENT : This Criminal Appeal is directed against the judgment dated 20-9-2002 passed in SC.No. 455 of 1999 by the Assistant Sessions Judge, Vikarabad, Ranga Reddy district, whereby and whereunder the appellant-accused was convicted under section 235 (2) Cr.P.C. for the offence under section 376 of IPC and was sentenced to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for six months. 2. The facts leading to the filing of this Criminal Appeal can be summarized as follows : SC.No. 455 of 1999 was committed to the Court of Session, Sessions Division, Ranga Reddy district by the Judicial Magistrate of First Class, Pargi, vide committal order dated 14-7-1999 in PRC.No. 24 of 1998 against the accused for the offence under section 376 of IPC. 3. The Inspector of Police, Pargi filed charge sheet against the accused Maala Musalaiah son of Chandraiah for the offence under section 376 IPC. On 20-12-1997, PW-1 Ganga Ramulamma went to the agricultural field of Gantala Mallaiah @ Telugu Mallaiah in Jaffarpalli village along with PW-4 Narsamma and Ananthamma, Anjamma, Lakshmi and Pochamma and others for cooli work for transplantation of paddy seedlings and in the noon hours PW-1 Ramulamma went to her house in Jaffar palli village to give breast feeding to her son and at about 2:30 p.m. she was returning to the agricultural field of Telugu Mallaiah from her house and when she reached a vagu which is called as Votti Vadka which is at the outskirts of the village, the accused Musalaiah all of a sudden caught hold PW-1 and closed her mouth with one hand and caught hold her tuft of hair with another hand, dragged, pulled her towards the vagu and forcibly laid her on the ground and gagged her mouth with his towel and threatened to kill her by throttling her neck if she shout and committed rape on PW- 1. When PW-1 raised hues and cries, the accused caught hold the hair of PW-1 while committing rape and snatched her pusthe from her neck and thrown it on the ground and he slapped on her mouth and in that process, her right hand bangles were broken and in that process, PW-1 torned the shirt of the accused. After committing rape, the accused left PW-1. Thereafter, PW-1 straight away went to her husband G. Ramchandraiah, who is PW-1 who was present at his agricultural field and she informed her husband about the rape committed by the accused and out of anger PW-2 asked PW-1 to go and lead conjugal life with the accused as she was raped saying that she would commit suicide by jumping into a well, PW-1 left her husband and went to PW-3 Parvathamma, who is the wife of the elder brother of PW-2 and PW-1 informed PW-4 about the rape and PW-3 took PW-1 to the Police Station at Pargi and on the way they met Jangaiah, husband of PW-3 and they all went to the police station and there at about 08:30 p.m. PW-1 gave Ex.P1 report to PW- 8, the Sub-Inspector of Police and PW-8 registered a case in cr.No.90 of 1997 under section 376 of IPC and issued Ex.P4 FIR, recorded the statements of PWs-1 to 3 and Jangaiah and sent PW-1 to PW-10 Dr.M.Geetanjali at Pargi Hospital for examination and PW-10 examined PW-1 and collected the vaginal swab and PW-1 came back to the police station and by that time, PW-9 who was the Inspector of Police took up investigation and he conducted a panchanama in the presence of mediators PW-6 and PW-7 and seized JO-1 langa and MO-2 saree from P?W-1, which PW-1 was wearing at the time of offence under Ex.P3 seizure panchanama. On 21-12-1997 at about 07:30 p.m. PW-9 conducted Ex.P2 scene of offence panchanama at that place in the presence of P?W-5 and one Kankari Venkataiah and seized MO-3-8 broken pieces of bangles and MO-4 20 black beeds from the scene of offence in the presence of PW-1 and others. PW-9 recorded the statements of PW-4, Anthamma, Anjammaa, Lakshmi, Pochamma and Telugu Mallaiah. On 25-12-1997 the accused was apprehended in Jaffer palli village and he was sent to Court on 26-12-1997 for judicial custody. PW-9 sent MO-1 langa and the vaginal swab of PW-1 to the FSL at Hyderabad for examination and the FSL gave Ex.P5 report stating that semen was present on the langa and vaginal swab. PW-10 gave Ex.P6 report about the examination of PW-1. After completion of investigation, PW-11 filed charge sheet. 4. On receipt of the case records from the Sessions Judge, Division Ranga Reddy and on appearance of the accused and upon hearing the counsel for the accused and Additional Public Prosecutor, charge under section 376 of IPC has been framed, read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To substantiate the case of prosecution, the prosecution examined PWs.1 to 11 and marked Exs.P1 to P6 and MOs-1 to 4. Accused did not adduce any evidence in support of his defence but marked Exs.D1 and D2 admissible portion in the statements of PWs.2 and 3. 6. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C. alleging the incriminating evidence appearing against him. Accused denied the same. 7. After hearing both sides, on appreciation of the oral and documentary evidence placed on record, the learned trial Judge found the accused guilty under section 376 of IPC and the accused is convicted under section 235 (2) Cr.P.C., and he was sentenced to undergo Rigorous Imprisonment for 8 years and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for six months. Aggrieved by the same, the present Criminal Appeal is preferred by the accused. 8. Heard the learned counsel for the appellant-accused and the learned Additional Public Prosecutor representing the State, this Court is of the view that the evidence of prosecutirix and other witnesses which are more relevant to establish the case of the prosecution. PW-1 categorically informed the Court during her chief examination as well as in the cross-examination that the appellant herein waylaid her and committed rape on PW-1 and also the injuries sustained by her at the time of commission of rape. PW-2 is the husband of PW-1 victim lady also corroborates the fact that immediately PW-1 informed about the offence committed by the appellant herein and also further deposed that he has stated that PW- 1 tried to commit suicide. PW-3 is also related to PWs-1 and 2. PW-3 deposed that he know the victim and she saw while she attempted to commit rape. PW-1 informed her regarding the commission of rape by the appellant. PW-10 the doctor who certified that she was subjected to sexual intercourse 12 hours prior to her examination and also examined her petty coat. The Investigation Officer also visited the place of occurrence and seized bangles damaged during the commission of offence. The learned Assistant Sessions Judge after evaluating the evidence convicted the accused as stated hereinabove. 9. The learned counsel for the appellant submitted that to prove the charge under section 376 of IPC it is the duty of the prosecution to prove that the appellant herein alleged to have committed rape should have been subjected to doctor’s examination to prove his potency and capable of committing rape. On perusal of the record, there is no such document to substantiate the fact that the appellant was potent, no doctor was examined and the Investigation Officer also not explained the same. The learned counsel for the appellant further submitted that there is a delay in lodging the complaint. This Court is of the view that in cases like rape the delay is immaterial and further this Court is of the view that there is no delay at all in this case, since the occurrence took place at 02:30 p.m. the complaint was lodged at 08:30 p.m. The learned counsel for the appellant also submitted that there is no eyewitness to the scene of occurrence. In the case of rape, there will not be any eyewitness, which is highly improbable and there is possibility for the prosecution to adduce any such evidence. Even if such evidence is adduced though is unnatural. Considering the fact that in the case of the prosecution, the prosecution failed to prove that the appellant is potent enough to commit offence. This Court is of the view that the appellant cannot be convicted for the offence under section 376 of IPC but the entire reading of the evidence of PWs-1, 2 and 3 more particularly the victim establishes the offence under section 354 IPC. Hence, the appellant is convicted under section 354 of IPC and the conviction inflicted by the trial Court under section 376 of IPC is set aside. Having taken into consideration the occurrence that took place in the year 1997 and that the victim is also leading life separately without any interference, this Court is of the view that the appellant can be sentenced to undergo Rigorous Imprisonment for a period of two years. The period of pre-detention is set off under section 428 Cr.P.C. However, the fine amount shall remain unaltered. 10. With the above modification in the sentence, the Criminal Appeal is dismissed. The appellant-accused is directed to surrender before the trial Court on or before 20-1-2010. On failure to surrender, the trial Court is directed to issue NBW to secure the presence of the appellant-accused to incarcerate him to serve the remaining sentence imposed by this Court. ________________________ JUSTICE RAJA ELANGO 24-11-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1125 OF 2002 Circulation No. 133 Date:24-11-2010 Computer No. 43 Court Master : I s L