THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2257 of 2004 DATE: 18-02-2011 Between: Yerra Srinu .. Appellant And State of A.P., rep. by P.P. .. Respondent THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2257 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for Trial of Cases under S.Cs. & S.Ts. (POA) Act, 1989 (I Additional Sessions Judge), Khammam in Sessions Case No.110 of 2000 on 01.10.2004. 2. The appellant herein was prosecute for the offence under Section 376 (1) of Indian Penal Code, 1860 (for short “IPC”) and under Section 3(2)(v) of S.Cs. & S.Ts. (Prevention of Atrocities) Act, 1989 (for short “the Act”), alleging that on 18.01.1998 at about 11.00 a.m., P.W.1 went to her mother (P.W.2) at Grain Market, Khammam and informed that there was no curry in the house. P.W.2 asked to wait for some time. In the mean time, the accused came there and gave Rs.10/- to P.W.1 to bring one cigarette packet and accordingly, P.W.1 brought the cigarette packet. Then the accused asked P.W.1 to go to her house and promised to get ground-nut seeds. P.W.1 scaled over the compound wall of the market and went into the State Warehousing Corporation godown. The accused also entered into the godown, caught hold P.W.1, who was about 13 years old at the time of the alleged offence, lifted her, took her to the bushes, threatened her to kill with a knife and committed rape on P.W.1 forcibly. Thereafter, on receipt of the report from P.W.1, M.Srinivas Rao, Sub-Inspector of Police has registered a case in Crime No.6 of 1998 under Section 376 (1) of IPC and under Section 3(xi) of the Act and the P.W.8, V.Veera Reddy, Circle Inspector of Police, Khammam took up investigation and seized the under garment of the victim under a cover of panchanama in the presence of P.W.4 and Potla Venkanna and visited the scene of offence and prepared the crime details form and rough sketch and sent the victim to the Government Hospital, Khammam for examination. P.W.8 also examined and recorded the statements of witnesses and on 19.08.1998 at 13.00 hours, P.W.8 arrested the accused and seized his cut-drawer under a cover of panchanama in the presence of P.W.5 and Sreerangam Ranga Rao and sent him to the Court for judicial custody. P.W.6 Dr.K.Ananda Vani examined the victim and gave a preliminary report and sent the material object collected from her to Forensic Science Laboratory (for short “FSL”), Hyderabad. P.W.7 Dr.B.Jaya Rao examined the accused and gave a certificate opining that there were no signs to suggest that the accused was incapable of doing sexual intercourse. The Radiologist Sri G.Krishna Rao, who examined P.W.1, issued a certificate about her age. Basing on the investigation done by P.W.8, a charge sheet was filed against the accused for the above said offences. 3. The learned Special Judge, Khammam has framed charges under Section 376 (1) of IPC and under Section 3(2)(v) of the Act against the accused and he pleaded not guilty for the said charges. 4. The prosecution in order to establish the said charges, examined P.Ws.1 to 8, and got marked Exs.P-1 to P-12 and M.Os.1 to 4. D.W.1 was examined and no documentary evidence was produced on behalf of the accused in defence. 5. The learned Special Judge, Khammam by taking into consideration of the said oral and documentary evidence, found the accused guilty for the offence under Section 376 (1) of IPC and convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.500/-, in default undergo simple imprisonment for a period of three months; and further held that the offence under Section 3(2)(v) of the Act was not proved and the accused was acquitted. 6. Aggrieved by the said conviction and sentence, the present appeal is filed. 7. The point that arises for consideration is whether the prosecution could able to establish the offence under Section 376(1) of IPC beyond reasonable doubt? 8. The learned appellant’s counsel contended that the medical evidence is not supporting the version of the prosecution with regard to the commission of the offence as the doctor did not find any external injuries and basing on the FSL report she gave the report and the alleged incident has taken place in bushes near the State Warehousing Corporation godown in Khammam, in that circumstances, there is every possibility of having external injuries on the body of victim girl and in the absence of external injuries as observed by the doctor, it can be safely concluded that no offence has taken place. 9. The learned appellant’s counsel has further pleaded that simply basing on the FSL report, it cannot be concluded that the offence of rape has taken place when the hymen intact and no external injuries were found on the victim. 10. The learned Public Prosecutor, on the other hand, argued that the evidence of P.W.1, who is the victim girl, supports the version of the prosecution and circumstantial evidence of P.W.3 also corroborate the evidence of P.W.1 and the Investigating Officer, who has seized the cut-drawer of the accused and also the victim and both of them were sent to the FSL and the FSL report clearly shows that both the cut-drawers contained stains of semen and the FSL report with regard to smear sent by the doctor clearly establishes the presence of semen on the item Nos.1 and 2 and, therefore, the prosecution has established the offence under Section 376 (1) of IPC beyond reasonable doubt. 11. The case of the prosecution is that on 18.01.1998 at about 11.00 a.m., P.W.1 victim girl went to her mother, who is working in the Grain Market, Khammam and informed her that there was no curry in the house and she informed her that she will get ground-nut and that can be cooked and asked her to wait for some time. In the grain market yard the accused used to drive the bullock cart and he gave Rs.10/- note to the victim girl to get a cigarette packet and the victim purchased and given him the cigarette packet along with change of Rs.7.50 ps. to the accused and the accused advised her to go to her house and promised to get ground nut seeds. Accordingly, she scaled over the compound wall of market and got down into the State Warehousing Corporation godown and thereafter the accused also scaled over the wall and got into the godown, there the accused caught hold of the victim and lifted her and took her into the bushes by the side of godown and threatened to kill her with a knife and committed rape on her forcibly. Thereafter she went to the market yard and informer to her mother by weeping. Thereafter, both P.Ws.1 and 2 went to the Police Station and lodged the complaint. 12. With regard to the commission of rape by the accused on victim, P.W.1, who is the victim girl, has categorically stated in chief examination that she knows the accused present in the Court. Six years back she was studying 7th class, at that time she was aged 13 years old. She was also residing in Grain Market area in Khammam. At that time her father was working as hamali and her mother was working as labourer in Grain Market, Khammam. Six years ago she was at her home along with her brother. Her mother went to coolie work at Grain Market, Khammam. She went to her mother to know what curry she has to prepare for the evening and her mother did not give money to purchase vegetable and returned to home by weeping. The accused was also walking on the same road told that he will give ground nut seeds and she refused to oblige the same, then he caught hold of her hand, took her to the bushes in the godown of Grain Market, Khammam. He forcibly took her into the bushes, threatened that he would kill her if she raises hue and cry and at about 3.15 p.m. he made her fell on the ground and removed her cut-drawer and also his cut- drawer and committed rape on her. P.W.1 has categorically stated that the accused has inserted his penis into her vagina. Thereafter, he was on her for about 4 or 5 minutes, thereafter she got separated from the accused and after wearing cut-drawer she went to her mother weeping, at that time her mother was working at Grain Market and she informed the same to her mother and at that time the accused came and sat on plot-form at Grain Market. She also informed to her father, at about 4.00 p.m. they went to III Town Police Station, Khammam and submitted a written report, scribed by P.W.1. In the evening she was sent to the Government Hospital, Khammam, where she was examined by a lady doctor and other doctors in Government Hospital, Khammam. The police took her cut-drawer (wheat colour) when she was in the police station. In the cross-examination she has stated that she scribed Ex.P-1 and accused is not friend of her father, Uppalaiah, Sailaja, Swamy also saw when the accused took her near the godown. She cried when the accused misbehaved with her, but Sailaja and Pullaiah did not hear her cries as it was at a distance place. As on the date of incident she did not attain sexual puberty. There were white marks on the drawer, white semen also fell on her body. 13. P.W.2, the mother of the victim, also supported her daughter coming to her and informing her and asking her about the curry that to be prepared in the evening and she also identified the accused present in the Court and thereafter her daughter came back and informed her that the accused committed rape on her. 14. P.W.3, M.Sudhakar, who is working as a Gumastha in the Grain Market in the shop of K.Ranga Rao, has also specifically stated that P.W.1 coming to P.W.2 by weeping and informing that the accused committed rape on her. Therefore, the evidence of P.Ws.2 and 3 supported the version of P.W.1 with regard to weeping, coming to her mother and informing about the rape committed by the accused. 15. With regard to the medical evidence, P.W.1 was examined by P.W.6, Dr.K.Ananda Vani and she has stated that she examined the victim girl Kavitha on 19.01.1998 at 9.00 a.m. and found no external injuries on the body and on examination of external genitalia she did not find any injury thereon, Hymen was intact. She has collected veginal smears, swab and slides from P.W.1 and sent them to FSL, Hyderabad for examination and report. Ex.P-5 is the report given by her relating to examination of P.W.1 on 19.01.1998. She referred Kavitha to Dr.G.Krishna Rao with regard to her age. The said Dr.G.Krishna Rao (Radiologist) gave report stating that she was aged about 13 years to 15 years at that time. She has received the FSL report in the month of April, 1998 and the FSL report shows that human semen was found on four slides and cotton swab. Ex.P-7 is the FSL report received in this case. Basing on the FSL report she gave opinion that ‘positive finding of sexual intercourse’. Ex.P-8 is the final report given by her. Therefore, the doctor, basing on the FSL report, gave opinion that the positive finding of sexual intercourse. 16. Learned counsel for the appellant has pleaded that basing on the FSL report, it cannot be presumed that sexual intercourse has taken place between the accused and the victim when there are no external injuries and the hymen was found intact by the doctor P.W.6 and in support of her contention relied upon a decision rendered in TAMEEZUDDIN ALIAS TAMMU v. STATE OF (NCT) OF DELHI[1] wherein the Apex Court observed that “in order to support its case the prosecution examined P.W.1 the prosecutrix; P.W.2, Dinesh Chand Mishra, her husband; P.W.9 Dr.Charu Lata who had examined the prosecutrix but had found no evidence of rape or any injury on her person and P.W.10 Dr.R.Dayal, who had medically examined the appellant and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. Dr.Charu Lata also took the vaginal swabs of the prosecutrix and removed the salwar that she was wearing at that time and sent both these articles for examination to the FSL. The report of the Laboratory revealed the presence of semen on the vaginal swabs as well as on the salwar.” It is further observed that, “when the evidence of P.W.9 Dr.Charu Lata shows that there is no evidence to suggest the commission of rape, merely because the vaginal swabs and the salwar had semen stains thereon, would, at best, be evidence of the commission of sexual intercourse but not of rape. 17. Therefore, as per the above said decision, mere finding of semen stains on the vaginal swabs and the salwar shows the commission of sexual intercourse. Even basing on the said decision, in the present case, also semen and spermatozoa was found on the glass slides with dried smears and cotton swabs, as per the report of the FSL Ex.P-7 and the said report clearly shows that human semen and spermatozoa are detected only on item Nos.1 and 2 i.e. four glass slides and cotton swabs. Apart from the said medical evidence, the Investigating Officer P.W.8 has also seized the under-garment under cover of panchanama under Ex.P-2 in the presence of P.W.4 and also after the arrest of the accused on 19.01.1998 seized his underwear in the presence of P.W.5 under Ex.P-4. 18. P.W.4 Nakka Venkanna has specifically stated that the police have seized the cut-drawer of victim girl P.W.1 in his presence and the said cut-drawer is of wheat colour and Ex.P-2 is the seizure panchanama prepared in his presence and in the cross-examination also he was stated that the cut-drawer was seized in his presence and there were semen marks on cut-drawer. 19. With regard to the seizure of the cut-drawer from the possession of the accused, P.W.5 Thalluri Srinivasa Rao has also stated that in the year 1998 police called him and S.Ranga Rao near Bose statue of Khammam, which is called as Jaheerpura locality and the accused was present in judicial custody and he stated that he committed rape on girl by name Kavitha and gave his cut-drawer, which was in blue colour and police seized the same under cover of panchanama Ex.P.4. In the cross-examination he denied that nothing was seized from the possession of the accused. According to Ex.P-8 both the cut-drawers were seized from the victim and the accused were sent to FSL for examination and report through the S.D.P.O., Khammam and the FSL report is marked as Ex.P-11 and it shows that human semen and spermatozoa are detected on both the cut-drawers of P.W.1 and accused and according to him the said both cut-drawers were destroyed as per the report of the FSL, which is marked as Ex.P-12. As per Ex.P-12, the Director of FSL has informed the Sub-Divisional Police Officer, Wyra stating that the property involved in the case was received by them vide letter Nos.C.No.22/98 dated 24.7.2004 were destroyed as it is more than five years. Thus, even as per the report Ex.P-11, both the cut-drawers seized from the possession of victim and accused shows the human semen and spermatozoa. Therefore, from the evidence of P.W.6 and the reports Ex.P-7 and P-11, it clearly establishes that sexual intercourse was taken place on the victim girl. Therefore, even as per the decision relied upon by the learned appellant’s counsel, the evidence clearly shows that there is sexual intercourse. Even in the above said decision it is held that in the circumstances it is sexual intercourse but not of rape. In the present case, as per the evidence of P.W.1, she was aged about 13 years and the doctor P.W.6 also stated that she was examined by doctor Krishna Rao, who gave report Ex.P-6 showing the age of victim between 13 years and 15 years. Therefore, the age of the victim as on the date of commission of the offence is between 13 years and 15 years, even if it is taken two years either side, she is only a minor as on the date of offence. Therefore, the accused was having sexual intercourse with the minor girl amounts to rape. Thus, the learned Special Judge has rightly convicted the accused for the commission of offence of rape under Section 376(1) of IPC beyond reasonable doubt. 20. With regard to quantum of sentence, the learned Special Judge has rightly considered the nature of offence and imposed sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of three months for the offence under Section 376(1) of IPC. Therefore, the said imposition of sentence does not warrant any interference by this Court. 21. In the result, the appeal is dismissed. The conviction and sentence passed by the learned Special Judge for trial of cases under S.Cs. & S.Ts. (POA) Act, 1989 (I Additional Sessions Judge), Guntur in S.C.No.110 of 2000 dated 01.10.2004, is hereby confirmed. ___________________ P.DURGA PRASAD, J 18-02-2011 MR THE HON’BLE SRI JUSTICE P.DURGA PRASAD Crl.A.No. 2257 of 2004 DATE: 18-02-2011 MR [1] 2009 AIR SCW 6219