IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.492 of 2009 Between: The State represented by the Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND Perumalla Chennaiah Babu .. Respondent JUDGMENT: The Criminal Appeal is directed against the judgment in S.C.No.458 of 2006 on the ﬁle of Assistant Sessions Judge, Atmakur, dated 20-08-2007, by which the accused was acquitted. The Inspector of Police, Atmakur, ﬁled the charge sheet against the accused in Crime No.27 of 2005 of Kothapalli Police Station alleging that Chandamala Prafulla was studying 10th class and went to Church on 05-04-2005 at about 7.30 P.M. When she came out to answer calls of nature, the accused came in a drunken state and took her on his scooter on the pretext of leaving at her home, but forcibly took her to his house at Atmakur. On that night, the accused was alleged to have committed rape on Prafulla and the accused, who was married and whose wife was pregnant, tried to convince Prafulla that he will marry her. The father of Prafulla, Chandamala Sudhakar, her uncle John Silas and aunt Chandamala Bala Chennamma searched for Prafulla as she did not return to the house and found the house of the accused to be closed where they went on coming to know about taking Prafulla by the accused on a motorcycle. On 06-04-2005, John Silas received a phone call from Bharathi, elder sister of the accused, to take Prafulla back to their house and the accused again went to the house of the parents of Prafulla on 06-04-2005 at about 8.00 P.M. and demanded Rs.1,00,000/- and also asked to give Prafulla in marriage to him. Prafulla along with his father and others went to the police station on 12-11-2005 and gave a complaint to the Station House Oﬃcer, who registered the crime. The victim was sent for medical examination and the accused was arrested on 05-12- 2005 and sent for remand. He was also sent for potency test as per the orders of the Judicial First Class Magistrate, Atmakur at the request of the prosecution. Therefore, the incident involving Prafulla below the age of 18 years constituted committal of oﬀences punishable under Sections 363, 366, 376 and 506 of the Indian Penal Code. The oﬀences were taken cognizance by the Judicial Magistrate of First Class, Atmakur in PRC.No.18 of 2006 and the case was committed to the Court of Session after furnishing the copies of documents to the accused on his appearance. The Court of Session made over the case to the trial Court, which on the appearance of the accused, framed charges under Sections 366, 376 and 506 of the Indian Penal Code. The accused pleaded not guilty to the charges and during trial, PWs.1 to 11 were examined and Exs.P.1 to P.9 were marked. The accused denied the incriminating circumstances appearing against him in the evidence when he was examined under Section 313 of the Code of Criminal Procedure and he examined DW.1 on his behalf and marked an attested copy of admission register of M.P.P. Special School, Dudyala as Ex.D.1. The trial Court rendered the impugned judgment observing that the incident was alleged to have happened on 05-04-2005 and Ex.D.1-entries in the register and the evidence of DW.1 proved that by the date of the incident Prafulla born on 2-10-1986 was aged 18½ years and was, hence, a major. The trial Court also noted that as Ex.P.9 concerning the incident was already lodged by PW.2 on 07-04-2005, the contents of Ex.P.1-First Information Report are hit by the provisions of Section 161 of the Code of Criminal Procedure. Ex.P.9 was observed to be alleging the accused and PW.1 roaming about creating an aﬀair between them and the contents of Ex.P.9 were interpreted as not indicating any use of any force by the accused in taking PW.1 on his bike on 05-04- 2005 at 8.00 P.M. The claim of PW.1 that althrough on the way she raising cries and ﬁsting on his back while sitting on the motorcycle was disbelieved as the villagers of Dudyal and Atmakur must have witnessed such an incident, if the claims of PW.1 were true. The conduct of PW.3, the uncle of PW.1, in coolly attending his oﬃce even after receiving the information about PW.1 being subjected to rape was also considered as unnatural and while PW.3 is the maternal uncle and PW.4 is the wife of PW.3, the trial Court discredited their version due to their not taking PW.1 to the police station in spite of PW.3 being a Superintendent in RTC and PW.4 being Ex-Sarpanch. PW.2 also was noted to be unreliable as he did not ask PW.1 about what happened on the earlier night and PW.2 not mentioning about sexual assault on PW.1 in Ex.P.9 made trial Court draw an adverse inference that no such rape was committed on PW.1 on the night of 05- 04-2005 and the medical evidence of PW.8 was opined by the trial Court to be suggestive that PW.1 was habituated to sex as her hymen was not in tact and vagina was admitting two ﬁngers easily. The claims of PW.1 that rape was committed within 15 minutes after reaching the house of the accused and that she lost consciousness and that the rape was committed on her for second time were noted to have not been stated in Ex.P.1 or the statement recorded by the police and the residence of the accused was noted to be surrounded by various people residing in that building and no neighbour being attracted towards the incident including the mother and sister of the accused was also considered unnatural. The trial Court further observed that even the evidence about the accused demanding Rs.1,00,000/- was discrepant and apart from there being no independent direct or circumstantial evidence, the abnormal delay of seven months in registering the case was also considered fatal. Therefore, the prosecution case was observed to be not inspiring conﬁdence and the trial Court, hence, acquitted the accused. The State challenged the said judgment in this appeal through the learned Public Prosecutor contending that necessary ingredients to constitute the oﬀences punishable under Sections 366 and 376 of the Indian Penal Code have been made out by the evidence for the prosecution consistently and cogently and without appreciating the evidence in proper perspective, the trial Court acquitted the accused as if the victim was an accomplice. In the case of prosecution for the oﬀence of rape, the sole testimony of the prosecutrix is suﬃcient to convict the accused and hence, the appellant desired the acquittal to be reversed. Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/appellant is heard. The respondent is represented by K. Rathangapani Reddy, learned counsel. The point for consideration is whether the acquittal of the accused is liable to be reversed? Ex.P.9 is the earliest version about the incident from the father of the victim and it only alleged about the accused moving round PW.1 making false representations though he was married and his wife was pregnant. It further alleged about the accused taking away PW.1 on a motorcycle on 05-04-2005 at 8.00 P.M. and it no way alleged about the involvement of any element of deceit or force and it was speciﬁcally stated that when they went to the accused’s house that night on knowing about his taking away PW.1, the accused and PW.1 were not there at the house. The request in Ex.P.9 was only to give protection to PW.1 from the accused who was attempting to have second marriage with her and Ex.P.9 no way alleged any rape or even sexual intimacy between the accused and PW.1. However, when it came to Ex.P.1 report from PW.1 to the police, the allegation was about the accused taking her by force on the scooter and not leaving her in spite of her protesting and hitting him on the back. The claim that she was raped at the house of the accused and that when his father and others came at about 11.00 P.M., to the house of the accused and asked for PW.1, her mouth was closed was not the speciﬁc claim in the evidence of PW.1 and in Ex.P.9, which was given by the father of PW.1, only after return of PW.1 to the house on information from Bharathi. Bharathi, the sister of the accused, was not examined during investigation or trial and Ex.P.1 no way explains as to why nothing has been done since 06-04-2005 till 12-11-2005 in spite of Ex.P.9 being given on 07-04-2005 itself and no action being taken by the police. PW.1, the alleged victim, claimed that she went to the police and reported the matter to the police on the very next day after the accused coming to their house and threatening them and her claim that Ex.P.1 was the second report to the police was not corroborated by the investigating agency. The evidence of PW.1 shows that at the time of prayer, 15 to 20 persons were present in the church, but still nobody else was claimed to have noticed PW.1 coming out and being taken away and nobody witnessed PW.1 sitting on the back seat of the two wheeler travelling a distance of 3 Kms from Atmakur to the house of the accused when the accused was driving the motorcycle. The same could not have been possible, if the victim was really protesting against being taken by force and was ﬁsting the accused on the back. As observed by the trial Court, no villager of either village was claimed even to have watched such an occurrence and if the girl being taken forcibly on motorcycle was raising cries throughout the journey, the villagers could not have kept quiet without intervening. The sister of the accused and her children were admitted to be staying with the accused even by PW.1 and in such a residential house in a busy residential locality, the happening of rape twice against the wishes of PW.1 also appears unnatural and the claim of PW.1 that she had no prior acquaintance with the accused prior to the incident is plainly contradicted by the contents of Ex.P.9 itself. PW.1 admitted that Ex.P.1 did not mention about her becoming unconscious and she admitted that the accused informed her that he would marry her before attempting sexual intercourse with her. The events thus do not suggest an element of force in the entire incident as opined by the trial Court. The evidence of PW.2, the father of the victim, shows the presence of the mother of the accused also in the house of the accused when they went there that night and PW.2 did not even ask PW.1 as to what happened when the accused took her to his house. The alleged claim that before going to Dudyala, they went to the police station and informed the police that his daughter was taken by the accused is not evidenced by any material on record and the person, who allegedly informed PW.2 about the accused taking away PW.1 was neither cited nor examined. PW.3, the paternal uncle of PW.1, gave a similar version and the evidence of his wife as PW.4 also is to the same eﬀect. However, the evidence of PWs.1 to 4 is tainted with interestedness and it will be an acceptable rule of prudence to look for satisfactory independent corroboration for such interested evidence before acceptance. PW.5 also is the brother of PW.4, who was examined to speak about the incident of the accused visiting the house of PW.1 on the next day and PW.6 another relative of the family was also examined for the same purpose. The evidence of the police personnel about the investigation does not throw much light on the issue, while the evidence of the medical oﬃcer as PW.8 was that he did not ﬁnd any symptoms of rape. It was natural as the alleged rape was on 05-04-2005 and the medical examination was on 13-11-2005. The possibility of having sexual intercourse about six or seven months earlier to the medical examination as stated by PW.8 was on the information of PW.1 herself and does not lead the prosecution anywhere. The version of the accused is that this case was foisted as the attempts by PW.1 to marry to him were not accepted by him. On such material on record, the trial Court cannot be considered to have gone wrong in concluding that the alleged oﬀences have not been proved beyond reasonable doubt. The abnormal and unexplained delay in registering the First Information Report and the material discrepancies and patent unnaturalities in the evidence for the prosecution make the guilt of the accused for any alleged oﬀences not possibly proved beyond reasonable doubt. The Criminal Appeal has to fail and it is accordingly dismissed. _____________________ G. BHAVANI PRASAD, J Date: 18-11-2011 Ksn