HIGH COURT OF ANDHRA PRADESH :: HYDERABAD THURSDAY, THE TENTH DAY OF SEPTEMBER, TWO THOUSAND NINE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.882 of 2007 Between: Chinta Durgaiah @ Rajaramulu S/o late Chinta Muttaiah, Aged 45 years, Mali in NIMH School, Hyderabad R/o H.No.7-42, Korremula village, Ghatkesar Mandal R R District … Appellant/Accused And: State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.882 of 2007 JUDGEMENT: This criminal appeal is directed against the judgment dated 26.006.2007 in SC No.27 of 2005 on the file of the Additional Metropolitan Sessions Judge cum III Additional Sessions Judge (FTC), Ranga Reddy district, wherein, the appellant herein/accused was found guilty of the offence under section 376 IPC and was convicted and sentenced to undergo rigorous imprisonment for seven years and also to pay fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months. 2. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent-State. Perused the record. 3. The case of the prosecution in brief is as follows: The victim girl PW.2 is the daughter of the de-facto complainant-PW.1. After the death of her husband, PW.1 developed intimacy with the accused, who was also working as a gardener in National Institute for Mentally Handicapped (for short ‘NIMH’], Hyderabad, wherein PW.1 was working as a contract labourer. Subsequently, PW.1 married the accused about 18 years ago and was staying with him along with her daughter-PW.2, who was also working in the same institute. On the date of complaint, PW.2 complained of severe pain in the stomach and PW.1 took PW.2 to NIMH, wherein PW.2 was examined and referred to Nilofer Hospital and from there, she was referred to Government Maternity Hospital, Nayapool, Hyderabad. The doctors informed that PW.2 was pregnant by twenty weeks. On enquiry, PW.2 informed PW.1 that the accused committed rape on PW.2 several times in the absence of PW.1 and caused pregnancy. Thereupon, PW.1 gave complaint Ex.P.1 on 30.04.2004, which was registered as FIR Ex.P.6 in Cr.No.115 of 2004 and investigated into. The accused was arrested on 18.05.2004. On the requisition, PW.3-Professor of Forensic Medicine gave potency certificate Ex.P.2. On requisition, blood sample of the victim, accused and the child were collected for DNA test. The Assistant Director, FSL, who conducted DNA test, gave a report Ex.P.8 stating that the accused was the biological father of the child of PW.2. PW.2 was mentally retarded with IQ of 54 but she could read and write and attend to simple domestic work as per Ex.P.3 certificate of Clinical Psychologist- PW.4. 4. The accused denied the offence and pleaded not guilty to the charge framed against him under Section 376 IPC. In support of their case, the prosecution examined PWs.1 to 9 and marked Exs.P.1 to P.8. No oral or documentary evidence was adduced on behalf of the accused. 5. On a consideration of the evidence on record, the learned Sessions Judge, held that the evidence on record particularly, DNA test report Ex.P.8 established that the accused committed offence of rape on the victim girl-PW.2 taking advantage of her innocence and caused pregnancy. Accordingly, the accused was found guilty of the offence under Section 376 IPC and was convicted and sentenced as stated above. Aggrieved by the said conviction and sentence, the present appeal is filed. 6. Learned counsel for the appellant would submit that the victim girl-PW.2 is admittedly major, aged 24 years and even if DNA test report Ex.P.8 is taken into consideration, which goes against the appellant and PW.2 being a consenting party cannot be ruled out. 7. It is not the case of the accused that PW.2 was a consenting party to sexual intercourse. His defence has been one of total denial of the offence. The suggestion made to PW.2 in the cross-examination is that the accused never committed sexual assault or intercourse with her at any point of time. PW.2 denied the suggestion. PW.2 categorically deposed that the accused performed sexual intercourse with her against her will for the first time about two years back, when PW.1 went to attend the duty and PW.2 was alone in the house and subsequently when ever she was alone in the house, accused had sexual intercourse with her two or three times. She further deposed that whenever she intended to inform the same to her mother, accused threatened her with dire consequences. It is only when she developed pain in the stomach, PW.2 was taken to the doctor by PW.1 where the doctor after examination, informed that PW.2 was pregnant. It is in the evidence of PWs.1 and 2 that the accused is not a stranger and he was residing with them in the same house. PW.2 deposed that the accused was living in their house since her childhood. It is in the evidence of PW.1 that she was married to one Vishnumurthy about 30 years back and gave birth to PW.2 through him about 25 years back and her husband left the house about 22 years back and his whereabouts are not known and subsequently, she developed acquaintance with the accused, who was also employee along with her in NIMH and about 20 years back she married the accused at Yedupayala jathara in Medak district and ever since, herself and PW.2 were living along with the accused under the same roof. It is also in her evidence that PW.2 also got employment in NIMH school since five years and PW.2 used to stay at home on Saturday and Sunday and PW.1 was having duty on Saturday and that on one Sunday when PW.2 complained of pain, PW.1 took PW.2 to Government Maternity Hospital, Nayapool, where the doctors informed that PW.2 was carrying 20 weeks old pregnancy. She further deposed that on her enquiry, PW.2 informed that during PW.1’s absence, accused performed sexual intercourse forcibly with her several times. The same version is stated in the complaint Ex.P.1 also. The testimony of PWs.1 and 2 is not discredited in any manner in the cross- examination. Nothing is elicited as to why PWs.1 and 2 should depose falsely against accused or make such allegations against him. 8. Learned counsel for the appellant would submit that PW.2 admittedly being mentally retarded, her testimony is not entitled for any weight or credence. No doubt, the prosecution case is that PW.2 was some what mentally retarded and her IQ has not developed on par with her age and in fact, the very case of the prosecution is that taking advantage of the innocence of PW.2 and her mental deficiency, the accused resorted to the commission of heinous offence against her and repeated the same several times in the course of period of two years. It is not as though PW.2 was a lunatic or totally deranged. Admittedly, she was doing job in the school attached to NIMH. She was examined by PW.4, who was working as Lecturer in Special Education, NIMH. She testified that she is acquainted with PWs.1 and 2, who are all working in the same institute and on clinical psychology examination PW.2 was found to be mildly mentally retarded with IQ of 54. PW.2 attended pre-vocational classes from 1992-95 and she underwent vocational training from 1996-2000 and thereafter, she was appointed as office assistant in the school. In the cross-examination PW.4 reiterated that PW.2 had adequate motor and necessary skills. The evidence on record therefore establishes that PW.2 was having a mild mental retardation and her IQ was not commensurate with her age. The same does not, however, render her testimony unreliable or untrustworthy. It is a case where the mildness of PW.2 and her mental deficiency was taken undue advantage by the accused in the commission of the offence and repetition of the same against PW.2 at will. 9. Having regard to very nature of the offence and the circumstances under which it perpetrated and perpetuated by the accused, no direct evidence can be expected to establish the same. The conviction can be based on the sole testimony of prosecutrix without any corroboration, provided the said testimony is found to be reliable and truthful. 10. In ‘State of H.P., vs. Gian Chand[1]’, the Apex Court held as follows: “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 may be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 11. In ‘State of H.P., vs. Mange Ram[2]’ the Apex Court held as follows: “In view of the evidence of prosecutrix (PW.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.” 12. In the present case also the testimony of PW.2-victim is cogent and consistent and there is absolutely no reason to disbelieve the same. No motive is suggested by the accused as to why she should give false complaint of this nature against the accused, whom she knew since her childhood and treating him as father, as they were all living under the same roof. The testimony of PW.1 is also not discredited and it cannot for a moment be believed that she would resort to giving such a complaint making such allegation against the accused under Ex.P.1 unless it be true, in view of the fact that the accused was none-else than her husband. The moment she came to know from the doctor, who examined PW.2, that PW.2 was pregnant, PW.1 questioned PW.2 and PW.2 revealed that the accused had committed the offence against her and immediately, thereafter she gave a report to the police under Ex.P.1. The conduct of PW.1 is perfectly natural in the circumstances of the case. The testimony of PWs.1 and 2, which is mutually corroborative, is further corroborated by the contents of Ex.P.1 thereby vouching safe the genuineness thereof. As the testimony of PWs.1 and 2 was found to be reliable and truthful, the trial Court had rightly placed reliance on the same, observing no further corroboration is required. The fact that PW.5 who is a neighbour in the locality, turned hostile is of no consequence, as she is not a direct witness to the occurrence. The testimony of PW.6 another neighbour in the locality is also of no consequence, as she came to know of the incident only through PW.1. 13. It is not as though the testimony of PW.2 is totally uncorroborated. The medical evidence on record supported the testimony of PW.2. PW.3 Medical Officer, who examined the accused, gave certificate Ex.P.2 to the effect that the accused was capable of performing sexual act. It is also in the evidence of PW.7 that he filed requisition before the learned Magistrate under Ex.P.5 for subjecting the accused to DNA test. He also sent the victim girl to FSL for collection of sample for DNA test. Ex.P.8 is the report of DNA test, which revealed that the accused is the biological father of the male child delivered by PW.2. Ex.P.8 therefore conclusively establishes that the accused had sexual intercourse with PW.2. The testimony of PW.2, which was found to be reliable and truthful, establishes that the accused had sexual intercourse with her against her will and without her consent on several occasions. The contention of the learned counsel for the appellant that the victim girl might have been consenting party, is totally untenable. Under those circumstances, it must be held that the trial Court has on proper appreciation of the evidence on record rightly held the accused guilty of the offence under Section 376 IPC and convicted him for the same. 14. In view of the gravity of the nature of the offence and heinous way in which it was committed by the accused on innocent and hapless girl PW.2, who was living under the same roof and acquainted with him since her childhood treating him as her father, the sentence of imprisonment of seven years and fine of Rs.1,000/- imposed by the learned Sessions Judge, cannot be considered unreasonable or excessive. On the other hand, the trial Court has imposed a lenient sentence for no valid reason. Under those circumstances, the conviction and sentence recorded against the accused by the trial Court do not call for any interference. There are no merits in the appeal. 15. In the result, the criminal appeal is dismissed. ______________________ G.V.SEETHAPATHY, J Date: 10.09.2009 BSS [1] 2001 SCC 2075 [2] AIR 2000 SC 2798