HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.381 & 930 OF 2007 DATE:16.08.2010 CRIMINAL APPEAL NOs.381 OF 2007 Between: Gajula Raju …… Petitioner. And: The State of AP., rep. by its PP, High Court of AP., Hyderabad. …..Respondent CRIMINAL APPEAL NOs.930 OF 2007 Between: Ramacha Ramesh …… Petitioner. And: The State of AP., rep. by its PP, High Court of AP., Hyderabad. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.381 & 930 OF 2007 COMMON JUDGMENT: 1. These two appeals are filed by A-1 and A-2 separately against Judgment dated 17.07.2006 passed by the I Additional Sessions Judge, Karimnagar in Sessions Case No. 1050 of 2005 convicting A-1 and A-2 for offence under Section 376(2)(g) IPC and sentencing them to Rigorous Imprisonment for ten years and fine of Rs.1,000/- each. 2. P.W.2 is the unfortunate victim of gang rape. On 17.01.2005 at about 10.00 p.m P.W.2 left her house to attend calls of nature. It is alleged that A-1 and A-2 were in the house of Kummari Sambaiah located adjacent to the victim’s house and that A-1 and A-2 followed her, caught hold of her and forcibly took her to cotton field of Kummari Sambaiah and committed rape on her one after another by pushing her to the ground and that again the accused brought the victim to the backyard of her house and had thrown her in the hay stack, covered grass on her and went away. In the lower court, A-1 and A-2 pleaded not guilty of the charge under Section 376(2)(g) IPC. Though P.Ws.1 to 15 were examined and Exs.P.1 to P.22 and M.Os.1 to 11 were marked during trial in the lower court, this Court is of the opinion that evidence of P.W.2/victim and evidence of P.W.12/Medical Officer who examined the victim, are most relevant. P.W.1 is father of the victim girl. On the next day of the offence, P.W.1 along with P.W.2 went to Kamalapur police station and gave P.1 report to the police. P.W.14 is the Assistant Sub Inspector of Police in Kamalapur police station. P.W.14 received Ex.P-1 from P.W.1, registered the same as case in Crime No.9 of 2005 under Section 376(2)(g) IPC and issued Ex.P-21 FIR. He sent P.W.2 to the Government Hospital for examination and report. He also conducted investigation into the case. P.W.15 is the Inspector of Police, Jammikunta Circle. He verified investigation made by P.W.14, arrested A-1 and A-2 and after receiving reports from the doctors and Forensic Science Laboratory filed charge sheet before the Committal Magistrate. 3. It is evidence of P.W.2 that on 17.01.2005 at about 10.00 p.m, he went to attend calls of nature towards canal and that house of Kummari Sambaiah is by the side of her house and that while she was going to canal, both the accused came out of Kummari Sambaiah’s house and both of them took her to Margosa tree in the field of Kummari Sambaiah and forcibly laid her on ground and both the accused committed rape on her one after the other. She says that A-1 committed rape in the first instance and thereafter A-2 committed rape on her and that thereafter they shifted her near Mothuga tree in the same field and both of them beat her with hands and again committed rape on her and that even on the second occasion, A-1 committed rape in the first instance and A-2 committed rape thereafter. She says that she was unable to walk and so the accused carried her to the hayrick in the backyard of her house and left her there and went away by concealing her with hay. She further says that while she was moving with pain, her grand-father P.W.7 heard the voice and came to her and removed hay and that thereafter P.Ws.5 to 7 shifted her to her house and that she informed them about the offence committed by the accused. It is her further evidence that her entire Punjabi Dress and woollen sweater were stained with blood and that bleeding was coming from her private part also. M.Os.1 to 3 are her wearing apparel at the time of offence. It is her evidence that her by the date of offence she was aged 17 years. In cross-examination, she deposed that she passed S.C.C examination and that date of birth in that certificate is 03.06.1987. In cross-examination, she further deposed that canal is at distance of 50 yards from her house and that there were houses on either side upto the canal. The offence was not committed on canal bund but it is stated to have been committed in fields. She says that the accused closed her mouth and thereby she did not raise any voice. She further says that A-2 is her brother by courtesy. In spite of it A-2 is alleged to have committed this heinous offence against P.W.2. She denied the suggestion that blood stains on her cloths were due to menstrual discharge. She says that she was conscious at the time of offence and that even for the second time rape, her mouth was closed with cloth and therefore, she could not raise any voice. She says that both the accused carried her one after the other from the first place of offence to the second place of offence and thereafter upto the hayrick. Because mouth of the victim was closed by the accused, she was not able to raise voice at the time of commission of rape. Since there are two persons out of the accused, there is every possibility of one person committing rape and the other person closing her mouth. The said explanation was offered by P.W.2 in her cross- examination when the defence counsel in the lower court elicited those facts relating to closure of her mouth by the accused at the time of commission of rape. 4. It is contended by the appellant’s counsel that since the offence took place during night time, there is no possibility of P.W.2 identifying A-1 and A-2 as the culprits who committed rape on her. As pointed out earlier, A-2 is a relation of P.W.2. A-1 and A-2 came out of Sambaiah’s house when P.W.2 was going in front of that house. There is long period during which the activity of both the accused catching hold of P.W.2, taking her to field of Sambaiah, laying her on the field, committing rape on P.W.2 one after the other, and then lifting P.W.2 from that place and changing her to another place and again committing rape on P.W.2 for the second time one after the other and then bringing P.W.2 from field of Sambaiah to the hayrick in the backyard of P.W.2’s house, occurred, there is every possibility of identifying known persons even if it is a night. Even in Ex.P-1 First Information Report given by P.W.1 to the police, names of A-1 and A-2 are given with their full description. There are no prior disputes between P.Ws’ family and families of A-1 and A-2 in order to name A-1 and A-2 in the place of any other persons. Thus, the investigation in this case started with full identification of A-1 and A-2. 5. Evidence of P.W.2 has to be crosschecked with medical evidence of P.W.12. P.W.12 is the then Civil Assistant Surgeon in Government Hospital, Huzurabad. She says that P.W.2 was admitted as inpatient in the hospital on 18.01.2005 and she was discharged on 21.01.2005. It is her evidence that on examination she found P.W.2’s general condition as poor, weak and pale and that there were multiple tiny lacerations which are bite marks over both cheeks and that blood stains were present over her inner thighs and that she found external genitalia stained with blood, labia majora exposing labia minora. She says that vaginal cavity of P.W.2 was admitting two fingers with difficulty and that vaginal mucosa was congested. She categorically says hymen was torn in 3 & 9 O’ clock positions with fresh torn edges and that there was aperineal found left side of 5x4x3 cm exposing the underlaying muscles and vaginal mucosa was also torn and that the tear was sutured in three layers. After going through Forensic Science Laboratory report, P.W.2 gave final opinion to the effect that there was sexual assault on P.W.2. In cross-examination, she says that there were no symptoms of prior experience of sexual intercourse. She further says that M.Os. 1 to 3 wearing apparel of P.W.2 were preserved during her examination. As per Ex. P-18, F.S.L report, M.Os.1 to 3 were stained with human blood. Medical evidence of P.W.12 undoubtedly disclosed ghastly and barbaric sexual assault on P.W.2. P.W.2 underwent the sexual assault in the hands of A-1 and A-2. As pointed out earlier, there was no axe for P.W.2 or P.W.1 to grind against A-1 and A-2. Simply because P.Ws.5 to 7 turned hostile to the prosecution, evidence of P.W.2 cannot be disbelieved. The lower court after going through the entire evidence on record, rightly concluded that evidence of P.W.2 is believable. I also do not find any valid reasons to discard testimony of P.W.2 in this case, particularly when her testimony is totally supported by medical evidence of P.W.12. I have no hesitation to find that A-1 and A-2 are guilty of offence punishable under Section 376(2)(g) IPC. 6. It is contended by the appellant’s counsel that proviso to Section 376(2) (g) IPC gives leverage to the court to pass lesser sentence than minimum sentence of imprisonment of ten years for reasons to be recorded. It is contended that A-2 was hardly aged 21 years by the date of charge sheet. It cannot be said to be a mitigating circumstances in favour of A-2. A-1 and A-2 jointly committed rape on P.W.2 who was hardly aged 17 years by the date of offence, one after the other. I do not find any circumstances to be lenient in this case. 7. In the result, both the appeals are dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:16.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NOs.381 & 930 OF 2007 Date:16.08.2010 Gk.