* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Criminal Appeal Nos.388, 390, 427 and 441 of 2003 %23-02-2010 # D.Durgesh @ Durgi (A-1) (Appellant in Crl.A.Nos.427 and 441 of 2003) C.Ranga (A-2) (Appellant in Crl.A.Nos.427 and 441 of 2003) ….Appellants Vs. $ State of A.P rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …. Respondent !Counsel for the Appellant: Smt.B.Vasantha Lakshmi Sri Y.Subhash for A-2 Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: AIR 1970 SUPREME COURT 1029 AIR 1973 SUPREME COURT 343 AIR 2001 SUPREME COURT 3049 1990 CRL.L.J 511 AIR 2000 SUPREME COURT 3555 2001(2) ALD (Crl.)246(SC) 1999(1) ALD (Crl.) 519(AP) 2003(1) ALD (Crl.) 314 (SC) AIR 2003 SUPREME COURT 777 AIR 2003 SUPREME COURT 2136 AIR 2000 SUPREME COURT 858 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal Nos.388, 390, 427 and 441 of 2003 (Dated 23-02-2010) Criminal Appeal Nos.388 and 390 of 2003 Between: C.Ranga (A-2) …Appellant/ Accused A n d State of A.P., rep. by its Public Prosecutor …Respondent Criminal Appeal Nos.427 and 441 of 2003 Between: D.Durgesh @ Durgi (A-1) …Appellant/ Accused A n d State of A.P., rep. by its Public Prosecutor …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal Nos.388, 390, 427 and 441 of 2003 COMMON JUDGMENT: These four criminal appeals arise out of the common judgment dated 04.04.2003 passed in Sessions Case Nos.320 of 2002 and 344 of 2002 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, whereby and whereunder, the learned Additional Metropolitan Sessions Judge found A-1-D.Durgesh @ Durgi and A-2-C.Ranga guilty for the offence under Section 376(2)(f) of IPC in each of the Sessions cases, convicted them accordingly and sentenced each of them to suffer rigorous imprisonment for 10 years and pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months in each of the Sessions Cases. The sentence of imprisonment imposed on the accused in S.C.No.320 of 2002 is ordered to run concurrently along with the sentence of imprisonment imposed in S.C.No.344 of 2002. 2. The prosecution case, in brief, is Pw-1 and Pw-3 are aged about 11 years as on the date of their filing respective reports before the police. They are victims of rape. Pw-4 Krishnavni is the junior paternal aunt of Pw-1. Pw-5 M.Venkatesh is the father of Pw-1. Pw-6 G.Balamani is neighbour to A-1. Pws. 1 to 4 and A-1 and A-2 are residents of Mohan Nagar and it is a slum area. The house of Pw-1 and the house of A-1 are intercepted by a lane. Renuka, the sister of A-1 is residing as a tenant in a portion of the house owned by A-2. Pw-3 along with his widowed mother, brothers and elder sister was residing in portion of the house owned by A-1’s father as tenant. A-1, his parents, brothers and sister-in-law were residing together. A-1 is an auto driver. Pw-1 and Pw-3 were moving with A-1 intimately. On one day, sister-in- law of A-1 asked Pws 1 and 3 to take coffee to A-1, who was in the house of his sister Renuka. While they were returning after giving coffee to A-1, A-2 took them to the terrace of the house of Renuka and ravished them. Earlier, A-1 took Pws.1 and Pw-3 to Friends’ Colony on the premise of making them to learn cycling. He took them in the garden and committed rape on both of them. A-1 committed rape on Pw-1 spotting the places whichever was accessible. The places spotted by him are:- (i) On the terrace of house of Renuka, who is no other than his sister, (ii) community hall, (iii) Friends Colony and (iv) his house. A-2 committed rape on them twice once on the terrace of the house of Renuka and once in his house. The sexual assaults on Pws.1 and 3 went on over a period commencing from November 2001 to January 2002. In the month of January 2002, Pw-1 attained puberty. She had been to her grandmother’s house and after few days of her stay there, she returned to her parents’ house. On the next day of her reaching her parents’ house, A-1 hurled stones on her signaling her to come to him. Pw-1 got frightened and informed her junior paternal aunt-Pw-4 Krishnaveni, who in turn, informed the same to Pw-5 Venkatesh, the father of Pw-1, and Venkatamma, the mother of Pw-3. All of them went to Saifabad P.S to complain against the accused. Pws. 1 and 3 narrated the incidents to Pw-7 A.Madhavilatha, Sub Inspector of Police, who recorded the statements of Pws.1 and 3, read over the statements and thereupon, Pw-1 and Pw-3 admitted the contents of the statements to be true and correct and signed thereon. Ex.P-6 is the statement of Pw-1 and Ex.P-5 is the statement of Pw-3. Basing on Ex.P-6 statement of Pw-1, Pw-7 registered a case in Crime No.46 of 2002 and issued Ex.P-9 F.I.R. Basing on Ex.P-5 statement of Pw-3, Pw-7 registered a case in Crime No.47 of 2002 and issued Ex.P- 10 F.I.R. Pw-7 sent Ex.P-6 and Ex.P-7 F.I.Rs to the concerned Court while marking copies of the same to all the officials concerned. Pw-8 P.Rameshaiah, Inspector of Police, Musheerabad P.S received the copies of the F.I.R and took up investigation. He examined Pws.1, 3, 4 and 5 and recorded the statement under Section 161 Cr.P.C. On 13.2.2002, he sent Pw-1 and Pw-3 to Gandhi Hospital for clinical examination. Pw-2 Dr.K.Sunanda clinically Pws-1 and 3 and issued Ex.P-1 and P-3 clinical examination reports. Ex.P-1 clinical examination report relates to Pw-1 and Ex.P-3 clinical examination report relates to Pw-2. She collected vaginal smears and swabs and sent them to F.S.L. Exs.P-2 and P-4 are the F.S.L reports. The F.S.L reports do not indicate the presence of semen or spermatozoma in the vaginal swabs and smears. Basing on the clinical examination and F.S.L reports, she opined that the possibility of sexual assault on Pws.1 and 3 cannot be excluded. Pw-8 arrested A-1 and A-2 near community hall of Mohan Nagar on 15.2.2002 at about 8 pm. He sent them to Gandhi Hospital for medical examination with regard to potency test. He sent the sealed covers received from Pw-2, who medically examined Pw.1 and Pw.3 to F.S.L with a letter of advice. After completing investigation, he laid charge sheets before the XVII Metropolitan Magistrate, Hyderabad. The learned Metropolitan Magistrate took the charge sheets on file as P.R.C.Nos.11 and 12 of 2002 and committed the cases to the Metropolitan Sessions Judge, Hyderabad. The learned Metropolitan Sessions Judge took the cases on file as Sessions Case Nos.320 of 2002 and 344 of 2002 and on hearing the prosecution and the accused, framed charges under Sections 376(2)(f) and 506 IPC, read over and explained the same to the accused, for which they pleaded not guilty and claimed to be tried. 3. The accused filed petition under Section 219 Cr.P.C being Crl.M.P.No.651 of 2002 to conduct joint trial in both the Sessions Cases on the ground that the victims as well as the witnesses in both the Sessions Cases are common and one victim is a witness in the case relating to other victim and vice versa. The said Crl.M.P came to be allowed on 01.11.2002 and Sessions Case No.344 of 2002 came to be clubbed with Sessions Case No.320 of 2002. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined eight witnesses as Pws.1 to 8 and marked 10 documents as Exs.P-1 to P-10. The accused marked three documents Exs.D-1 to D-3 on their behalf. Requisition issued by Pw-2 for examination of victim girls (Pw.1 and Pw.3) has been exhibited as Ex.X-1. The learned Additional Metropolitan Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences under Section 376(2)(f) and 506 IPC and convicted them accordingly and sentenced each of them to suffer imprisonment for 10 years and pay a fine of Rs.1,000/- for the offence under Section 376(2)(f) IPC in each of the Sessions Cases. No separate sentence has been imposed on the accused for the offence under Section 506 IPC. The sentence imposed on the accused for the offence under Section 376(2)(f) IPC in S.C.No.320 of 2002 is ordered to run concurrently with the sentence of imprisonment imposed for the offence under Section 376(2)(f) IPC in S.C.No.344 of 2002. 4. The appellants-accused have filed these appeals assailing the judgments of conviction and sentence passed in S.C.No.320 of 2002 and S.C.No.344 of 2002. More precisely, Criminal Appeal No.388 of 2003 is filed by C.Ranga-A-2 assailing his conviction in S.C.No.320 of 2002, dated 4.4.2003, Criminal Appeal No.390 of 2003 is filed by the same accused assailing his conviction in S.C.No.344 of 2002 dated 4.4.2003, Criminal Appeal No.427 of 2003 is filed by D.Durgesh @ Durgi-accused No.1 assailing his conviction in S.C.No.320 of 2002 and Criminal Appeal No.441 of 2003 is filed by the same accused assailing his conviction in S.C.No.344 of 2002. 5. Since all these appeals arise out of common judgment passed in S.C.Nos.320 of 2002 and 344 of 2002, they are heard together and are being disposed of by this common judgment. 6. Heard Sri Y.Subhash, learned counsel appearing for A-2- C.Ranga and Smt. B.Vasantha Lakshmi, Legal Aid counsel appearing for A-1-Durgesh @ Durgi and learned Additional Public Prosecutor appearing for the respondent-State. 7. Sri Subhash, learned counsel appearing for A-2 contends that the story projected by Pws.1 and 3 is highly improbable and unbelievable, and therefore, the testimony of Pws.1 and 3 is liable to be rejected. In elaborating his argument, learned counsel contends that the houses of A-1 and A-2 and Pws.1 and 3 are situated in such a thicky populated area and any indecent activities of A-1 and A-2 with Pws.1 and 3 should not have missed the notice of inhabitants of the locality and since none of the inhabitants came forward to speak the indecent acts of A-1 and A- 2 with Pws.1 and 3 indicates the falsity of the story oven by Pws.1 and 3. He would also submit that there exists a serious enmity between Pws.1 ‘s family and A-1’s family since A-1 is staunch supporter of Congress party and whereas parents of Pw-1 and her uncle are supporters of Telugu Desham Party and that there exists disputes between A-1 and father of Pw-1 with regard to opening of door to the lane in front of the house of Pw-1’s father. He would further contend that A-2 is a married man and he has been residing with his wife and there are about 20 persons residing in the house as admitted by Pw-3 in cross-examination, and such is the location of the house of A-2, it is highly improbably for any one to commit rape on Pws. 1 and 3 at the house of A-2; that there is no consistency in the evidence of Pws.1 and 3 with regard to the places where A-2 allegedly ravished them. Pw-1 states that A-2 committed rape on them twice, once on the terrace of house of Renuka and once in his house and whereas Pw-3 states that A-2 committed rape on her and Pw-1 in his house. In a way, Pw-3 speaks the scene of offence as the house of A-2 and whereas Pw- 1 speaks the scene of offence as the terrace of house of Renuka. 8. Learned counsel strenuously contended that there is no positive medical evidence to suggest that Pws. 1 and 3 are the victims of rape and therefore, the whole version of the prosecution that Pws.1 and 3 are victims of rape falls to the ground. Learned counsel refers the evidence of Pw-2, who clinically examined Pws. 1 and 3 and laid much emphasis on the opinion expressed by her. The opinion of Pw-2 is that vagina of the victims is admitting one finger and it is an indication of possibility of sexual intercourse. According to the learned counsel, mere admission of one finger in the vagina of the respective victims does not give a positive indication that the victims are subjected to sexual assault. He would further contend that Pws.1 and 3 are child witnesses and they are prone to tutoring and in view of the hostility between the parents of Pws.1 and 3 with the accused, there is every possibility for the parents of Pws.1 and 3 tutoring them to speak false against the accused. A further contention has been advanced that A-1 and A-2 are well grown up and whereas Pws.1 and 3 are of tender age and if at all A-1 and A-2 committed rape on Pws. 1 and 3, who did not have even attained puberty on the date of alleged incident, they must have sustained some injuries on their private parts and as neither Pw-1 nor Pw-3 speaks of receiving any injuries on their private parts because of the sexual act against their wishes. The very absence of injuries on the private parts of Pws.1 and 3 suggest that either they are speaking false or that they are magnifying a trivial incident. In support of his submissions, learned counsel placed reliance on the following judgments:- 1. Ram Murti v. State of Haryana[1] 2. Rahim Beg and Mahadeo v. The state of U.P[2] 3. Dilip and another v. State of M.P[3] 4. Ram Swarup and others v. State of U.P[4] 5. State of A.P. v. Lankapalli Venkateswarlu[5] 6. Mohindro v. State of Punjab and others[6] 7. Kota Peda Nagesh v. State of A.P[7] 8. Vimal Suresh Kamble v. Chaluverapinake Apal S.P and another[8] 9. Ashok Kumar v. State of Haryana[9] 10.Sudhansu Sekhar Sahoo v. State of Orissa[10]; and 11.Rajoo and Ors. v. State of M.P[11] 9. In Ram Murthy’s case (1 supra), the Supreme Court held that since prosecutrix was found to be used to sexual intercourse, her statement that she was threatened and induced to go with the accused should be corroborated in material particulars from independent source to base conviction of the accused. In Rahim Beg and Mahadeo’s case (2nd supra), the Supreme Court was dealing with a case wherein a fully developed man committed sexual assault on a girl of 10 or 12 years who was virgin and whose hymen was intact. Basing on the facts of the case, the Supreme Court held that absence of injuries on the male organ of accused would point to his innocence. Paragraphs 26 and 27 of the cited judgment needs to be noted and they are thus:- “26. According to Dr.Katiyar, Medical Officer of District Jail, Rae Bareli, if a girl of 10 of 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence. The examination of the two accused by Dr.Katiyar was on August 5, 1969. The two accused, however, had been arrested, according to the prosecution, on the morning of August 4, 1969. No cogent explanation has been furnished as to why they were not soon thereafter got medically examined by the police. 27. Rahim Beg accused is a batchelor, while Mahadeo accused, as mentioned earlier, is a married man with wife and children. It does not seem very likely that the two accused would join together at a morning hour to commit rape on the minor daughter of one of their co- villagers and thereafter strangulating her to death. It also does not appear likely that they would take the ornaments of the deceased, which would have furnished proof of their guilt to their houses. The greater likelihood appears to be that this depraved crime was the act of one individual. 10. I n Dilip’s case (3rd supra), the Supreme Court, having taken note of contradictory version of the incident narrated by victim to her aunt, doubted the truthfulness of version of victim, and thereby, recorded acquittal of the accused. Paragraphs 14 and 15 of the judgment need to be noted and they are thus:- “14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist. The fact remains that the `probabilities factor’ operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix as given in the court. The learned counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2) (g) of IPC on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons, which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed. 15. For the foregoing reasons the appeals are allowed. The conviction of accused appellants as recorded by the trial Court and upheld by the High Court is set aside. The accused appellants are acquitted of the charges framed against them. They shall be set at liberty forthwith if not required to be detained in connection with any other offence.” 11. In Ram Swarup’s case (4 supra), the Allahabad High Court refused to accept the evidence of witnesses since the witnesses gave two inconsistent statements with regard to material fact and circumstance. I n State of A.P vs. Lankapalli Venkateswarlu (5 supra), the Supreme Court refused to interfere with the judgment of acquittal since the prosecutrix had given a go-bye to the version, in material particulars, as recorded in the FIR in her evidence and even the medical evidence also did not support the version of the prosecutrix. I n Mohndro’s case (6 supra), the Supreme Court held that the action of police enquiring into the offence without registering a complaint of cognizable offence is illegal. 12. In Kota Peda Nagesh’s case (7 supra), a Division Bench of our High Court held that non-furnishing of the entire statements recorded from direct witness under Section 161 Cr.P.C has occasioned great prejudice to the accused, and thereby, the accused are entitled to be acquitted. 13. In Vimal Suresh Kamble’s case (8 supra), the Supreme Court held that he conviction cannot be based on the mere testimony of the prosecutrix whose evidence does not inspire confidence. In Ashok Kumar v. State of Haryana (9 supra), the Supreme Court held that in order to establish an offence under Section 376(2)(g) IPC read with Explanation 1 thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing making out a certain measure of jointness in the commission of offence. Therefore, when there was no evidence regarding prior concert or common intention between accused and co-accused and co-accused never committed rape, he cannot be convicted under S.376(2)(g) merely because he was present in the house when accused committed rape and that victim girl allegedly stated before committing suicide that both of them raped her. 14. I n Sudhansu Sekhar Sahoo’s case (10 supra), the Supreme Court was dealing with the case where the prosecutrix was an unmarried educated woman traveling along with accused at night in a jeep for long distance allegedly for meeting her superior officer. She asserted that she was virgin till the alleged incident. However, the Medical Officer opined that she was habituated to sex. Taking note of various inconsistencies in the version of the prosecutrix, the Supreme Court held that conviction based on sole testimony of prosecutrix cannot be sustained. Paragraphs 17 and 18 of the cited judgment needs to be noted and they read as hereunder:- “17. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim provided such evidence inspires confidence in the mind to the Court. The victim is not treated as accomplice, but could only be characterized as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. 18. Unfortunately, the broad probabilities of the case were not considered by the Sessions Court or the High Court in the instant case. Ms.X, though asserted that she had sustained scratch injuries by nails and biting, her medical examination did not reveal any such injuries. It is true that in view of social conditions prevalent in India, there may be delay in giving the first information of such an offence to the police. A rape victim may think seriously before giving the information to the police about rape as the onslaught of a social stigma may haunt her for life. Though the delay as such is not serious, but while considering broad probabilities of the case, the delay