HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2247 OF 2004 Dated 04-03-2011 Between: Malle Kotaiah and another ……..Appellants And: The State of A.P., rep. by its PP ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2247 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act), Prakasam District, Ongole in S.C.No.110 of 2000 dated 01.10.2004. The accused No.1 was prosecuted for an offence under Section 376 IPC and under Section 3(2)(v) of the Act and accused No.2 was prosecuted for an offence under Section 376 read with Section 114 IPC and under Section 235(2) Cr.P.C. The brief averments of the prosecution are that A-1 is the mason by profession. A.2 is the resident of Maddalakatta village. A.2 is a ‘Madiga’ by caste and A.1 is a ‘Waddera’ by caste. About 2 months prior to occurrence, P.W.1 along with P.W.2 came down to Maddalakatta village to construct the colony building at Maddalakatta village. A.1 also came down to Maddalakatta village to work for the construction of colony buildings at Maddalakatta village. P.Ws.1 and 2 and A.1 constructed some buildings in the colony in the two months. On the date of offence the building of A.2 was under construction. The deceased Kumari used to come to the boring pipe, which is situated at the colony for taking water. A.1 who is attending to the construction work saw the deceased Kumari and on seeing her, he developed an evil idea on her and thereby sought A.1’s help in securing the deceased Kumari to him so that he could enjoy with the deceased Kumari. Both of them hatched out a plan to commit the offence. On 16.4.1995 at about 7.00 p.m, deceased Kumari was alone in the house. In pursuance of their plan, A.2 went to the house of the deceased and called her to accompany her on the pretext of attending calls of nature. The deceased Kumari believing the words of A.2, followed A.2 to the outskirts of the village. A.2 after taking the deceased Kumari to the outskirts of the village took her to the house of one Danam which was under construction in the colony and pushed her into a room asking her to get a mug and closed the door. A.1 who was present in the room waiting for the deceased Kumari caught hold of the deceased Kumari and pulled her down bolted the door of the room, when the deceased tried to raise hue and cry, A.1 gripped her mouth and forcibly committed rape on her against her will and without her consent. When the deceased Kumari became unconscious, A.1 out of fear ran away from the room leaving the deceased Kumari there. P.W.1 and P.W.2 who came in search of the deceased Kumari found the deceased lying unconscious in the room of Danam and took her to her house. After regaining consciousness, the deceased Kumari narrated about the offence to P.Ws.4 and 5 and others. P.W.2 and P.W.3 witnessed the deceased was going into the room of Danam and thereafter A.1 came to P.W.2 and P.W.3 and confessed about the offence. On 17.4.1995 at about 1.30 p.m a Panchayat was held and A.2 was called for and in the course of Panchayat when A.2 offered to pay an amount of Rs.5,000/- by way of compensation, P.W.4 and P.W.5 who are the parents of the deceased refused to accept the offer of A.1. While the talks were going on some of the persons gathered there talked bad about her virginity and thereby the deceased Kumari felt insulted about their comments and went inside the house, poured kerosene on her body and set fire to herself to commit suicide. P.Ws.1 to 3 on seeing the deceased on flames rushed inside and put off the flames. P.Ws.1 to 7 took the injured deceased Kumari to private hospital, Dornala and on their advise admitted in Government Hospital, Kurnool. On receipt of the information from the hospital, P.W.13 visited the hospital and recorded the statement of the deceased and sent the same to Peddaraveedu Police station. On requisition sent from Government Hospital, Kurnool, P.W.14 visited the hospital and recorded the dying declaration of the injured Kumari on 18.4.1995. On the report given by P.W.1 a case in Crime No.18 of 1995 under Section 376, 114 and 34 IPC of Peddaraveedu police station was registered and took up the investigation. On 20.4.1995 at about 2.00 p.m while under going treatment the injured Kumari succumbed to the burn injuries and on receipt of death intimation from P.W.12 the Section of Law was altered into Section 376 read with 114 IPC and Section 3(2)(v) of the Act. On 18.4.1995 at about 10.00 a.m P.W.16 visited the house of Danam and seized the broken bangle pieces of the deceased in the presence of P.W.8 and P.W.9. P.W.13 conducted autopsy over the dead body of the deceased and issued P.M certificate opining that the deceased would appeared to have died due to burn injuries. On 30.04.1995 at 5.30 p.m P.W.16 arrested A.2 at her house in the presence of P.W.8 and P.W.9 and they were sent to judicial custody. Hence, the charge against the accused. The learned Special Judge has framed the charges under Section 376 IPC alternatively under Section 3(2) (v) of the Act and Section 306 IPC against A.1 and under Sections 306 and 376 read with Section 114 IPC against A.2. Both the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges examined P.Ws.1 to 15 and got marked Exs.P.1 to P.13 and M.O.1. No oral evidence was produced on behalf of the accused. But Exs.D.1 to D.4 were marked on behalf of the accused in the cross-examination of P.Ws.1 to 5. The learned Special Sessions Judge after taking into consideration of both oral and documentary evidence, found the A.1 guilty for the offence under Section 376 IPC and convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of 6 months. A.2 was found guilty for the offence under Section 376 IPC read with Section 114 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs.500/- in default to undergo simple imprisonment for 6 months. A.1 was found not guilty of the alternative offence under Section 3(2)(v) of the Act and also for the offence under Section 306 IPC and A.2 was found not guilty for the offence under Section 306 IPC and both of them were acquitted for the said offences. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 376 IPC against A.1 and under Section 376 read with 114 IPC against A.2 beyond reasonable doubt? The learned counsel for the appellants pleaded that the prosecution failed to establish the identity of the accused as the deceased in her statement given to the Head Constable and also in the dying declaration given to the Magistrate did not state about the identity of the accused and the FIR also does not disclose the name of A.1 and as per the said statement, A.2 only took her to the outskirts of the village for attending to the calls of nature and therefore, the offence alleged against the accused was not established and the lower court has mainly relied upon the evidence of P.Ws.2 to 5 who are interested witnesses and they are not the eye witnesses and that they have come to know only through the deceased. But they have stated that the A.1 has committed the offence of rape on the deceased, but the same was not spoken by the deceased herself. More over the evidence of P.Ws.2 to 5 is only her hearsay evidence and as such the same cannot be relied upon and as such there is no material on record to establish the identity of A.1 in committing the offence and A.2 assisting A.1 in committing the said offence. Hence, both the accused are entitled to benefit of doubt. The learned Public Prosecutor, on the other hand, has pleaded that P.Ws.2 to 5 even though they are interested witnesses, they have categorically stated about A.1 committing offence and A.2 taking the deceased along with her on the ground of attending calls of nature and handed over the deceased to A.1 for committing the offence and identification of the accused was established from the evidence of P.Ws.2 to 5 and from the mediatornama which was recorded by the Investigating Officer at the time of arrest of A.2. As such the prosecution could able to establish the charges against the accused beyond reasonable doubt and the lower court has rightly come to the conclusion about the commission of the offence by the accused. The case of the prosecution is that A.1 who is attending to the construction work saw the deceased Kumari and on seeing her, he developed an evil eye on her and thereby sought A.2’s help in securing the deceased Kumari to him so that he could enjoy the deceased Kumari. Both of them hatched out a plan to commit the offence. On 16.4.1995 at about 7.00 p.m, deceased Kumari was alone in the house. In pursuance of their plan, A.2 went to the house of the deceased and called her to accompany her on the pretext of attending calls of nature. The deceased Kumari believing the words of A.2, followed A.2 to the outskirts of the village. A.2 after taking the deceased Kumari to the outskirts of the village took her to the house of one Danam which was under construction in the colony and pushed her into a room asking her to get a mug and close the door. A.1 who was present in the room waiting for the deceased Kumari caught hold of the deceased Kumari and pulled her down bolted the door of the room, when the deceased tried to raise hue and cry, A.1 gripped her mouth and forcibly committed rape on her against her will and without her consent. When the deceased Kumari became unconscious, A.1 out of fear ran away from the room leaving the deceased Kumari there. P.W.1 and P.W.2 who came on search of the deceased Kumari found the deceased lying unconscious in the room of Danam and took her to her house. After regaining consciousness, the deceased Kumari narrated about the offence to P.Ws.4 and 5 and others. P.W.1 and Manyam Ankulu (L.W.2) witnessed the deceased was going into the room of Danam and thereafter A.1 came to P.W.1 and Ankulu (L.W.1) and confessed about the offence. In the Panchayat held by the elders of the village, some persons talked bad about her virginity and thereby the deceased Kumari felt insulted about their comments and went inside the house, poured kerosene on her body and set fire to herself to commit suicide and thereafter she was taken to the hospital at Dornala where she succumbed to injuries. According to prosecution Maniyam Ankullu and , P.W.1 seen the deceased going to the room of Danam. According to the prosecution after one hour, A.1 came to them and confessed about the commission of offence. But the prosecution has not examined M. Ankullu stating that whereabouts are not known and P.W.1 Gunji Yohan has turned hostile to the prosecution and expressed about his ignorance about the deceased and also A.2 and he only identified A.1 and himself and A.1 and one Ankulu never went to construct the house of A.2 at S.C colony of Maddalakatta village and he denied that he himself and Ankulu went to the house of A.2 for construction of her house. P.Ws.2 and 3 are the parents of the deceased and they have stated about A.2 taking the deceased along with her on 16.4.1995 at 7.00 p.m to accompany her to attending the calls of nature and when she did not turn up till 9.00 p.m, they started searching for their daughter upto 11.00 p.m and then they found their daughter in the room of Danamaiah in unconscious state. On the next day the deceased regained conscious at 7.30 or 8.00 a.m and when they questioned their daughter about the incident, she told them that A.2 took her to the room of Danamaiah and asked her to go into the room to bring a tin and she entered into the room and found Ankalu and A.1 in the room and committed rape on her and consequently she became unconscious. P.W.4 is the brother of the deceased also supported the version of P.Ws.1 and 2 with regard to the deceased disclosing about the commission of offence by A.1 and A.2. P.W.5 is another brother of the deceased also supported the version of the P.Ws.1 and 2. Therefore, according to the P.Ws.2 to 4 they came to know about the incident only through the deceased and according to them when a Panchyat was held in the village with regard to the said incident, the deceased has committed suicide by pouring kerosene and set herself to fire by going inside the house. According to the P.W.1 his elder brother Thirumalaiah gone to the police station and lodged a complaint and he took the deceased to Dornala hospital and from there to Government Hospital, Kurnool. Therefore, the complaint was lodged by Thirumalaiah only after the deceased attempted to commit suicide and the said Thirumalaiah was not examined before the lower court stating that he was no more. According to P.W.9 who is the Head Constable working in the III Town Police Station of Kurnool District has stated that on 18.4.1995 at about 6.30 a.m while he was in-charge of the Station, he received intimation from the General Hospital, Kurnool. He has recordd the statement of Zadda Kumari in Government Hospital at 8.00 a.m on 18.4.1995. She is mentally sound and was in a fit state of condition. She gave the statement voluntarily. Ex.P.7 is her statement. The duty doctor was not present by that time. He made G.D entry after he went to Police station and on point of jurisdiction, he forwarded the statement along with Ex.P.6 to Pedaraveedu Police station. Thereafter the Dying Declaration of the deceased was recorded by P.W.6 R. Gopala Krishna Murty who was working as Munisiff Magistrate at Kurnool from 1992 to 1995 and according to him on 18.4.1995 at 5.30 a.m he received a requisition from the Government Hospital, Kurnool to record the Dying Declaration of Zadda Kumari. He reached the hospital at 5.45 a.m. He put some simple questions to the declarant before recording her statement to find out her state of mind. As per the answers given by the declarant, he was satisfied that the injured is in a sound state of mind for making a statement. After recording her statement he obtained her right hand thumb impression. The duty doctor also certified that the injured is conscious throughout the recording of statement. Ex.P.3 is the dying declaration dated 18.4.1995. Ex.P.2 is Hospital Intimation. Therefore, from the above, the dying declaration was recorded by P.W.6 prior to the recording the statement by P.W.9. Subsequently, she died on 20.4.1995. In Ex.P.3 Dying Declaration she has stated that on 16.4.199 at about 7.00 p.m she along with Visranthamma wife of village Sarpanch went to easing ground with tumbler (Chembu). After 10 minutes Visrantamma left her in the outskirts and went away. At that time one person came and forcibly committed rape upon her. When she was questioned whether she can disclose the name of the said person and identification marks she has stated that she did not know the name of the said person and he does not belong to her village, he is aged about 20 years, red in complexion he is a height person. With regard to the burn injuries she stated that after returning from easing ground, she informed her father that Visrantamma left her on the way and one person committed rape upon her. Her father called her and asked about the same. She pleaded ignorance about the occurrence. Yesterday her father convened a panchayat by calling village elders. All of them spoke against her and she felt insulted and went inside the house and pour kerosene on her and set fire to herself and as a result of which her body was burnt. Therefore, as per the said Dying Declaration, one person has committed rape at the easing ground when Visrantamma left her there and she does not know the name of the said person. In the statement given to the Head Constable (P.W.9) subsequently on the same day which is marked as Ex.P.7 also she has stated that while she was alone in her house A-2 came to her house, called her for answering calls of nature. She went along with Vishranthamma to answer calls of nature. She took her to the newly constructed colony by the Government. She took her to the newly constructed house of her mother-in-law Madduru Rajamma in the colony and pushed her into the room. When she fell into the room, one male person who was in the room caught hold of her forcibly, dogged her mouth, fell her on ground and lifted her langa and opened his secret part and pushed into her secrete part and committed rape upon her against her will. The person who committed rape on her is the person who came to work as baildar for construction of newly government colony. She can identify him if saw him. She do not know the name and address of the said person. She fell unconscious and the person went away from that place after commission of rape. In the statement given to the Head Constable (P.W.9) by the deceased subsequent to Ex.P.3 dying declaration she has changed her version with regard to the place of offence but in both Dying Declaration and Ex.P.7 she has not disclosed the name of the accused and she has stated that she can identify him if she sees the person who has committed rape on her. But there was no occasion for the prosecution to show the accused for his identification. More over as alleged Thirumalaiah has lodged the complaint about the occurrence of the incident and the same was registered in Crime No.18 of 1995 under Section 376 read with Section 114 IPC by the Sub Inspector of Police. But the said Sub Inspector of Police was not examined as he is reported to be no more. According to the P.W.14, the Investigating Officer has stated that on 17.4.1995 at 11.00 p.m, the S.I Satish Anantharaj received complaint from Jadda Thirumalaiah and registered the same as Crime No.18 of 1995 under Sections 376, 411, read with 34 IPC and he submitted the FIR to the concerned. As the said Satish Anantharaj is no more, he can identify his signature. Ex.P.12 is the signature of the S.I of Police and the FIR is marked as Ex.P.13. Therefore, the said Crime was registered prior to recording the Dying Declaration and the statement by P.W.9 and FIR also does not disclose the names of the accused and therein it was only stated that Visranthamma took the deceased to easing ground for attending the calls of nature and subsequently one person has committed rape on her and in the Panchayat held some person talked about her bad, she attempted to commit suicide. Therefore, in the First Information Report also the name of the accused does not find place. According to P.Ws.2 to 4 is they came to know about the incident only through the deceased after she regained conscious on the next day morning at 7.30 and 8.00 a.m. But in the Dying Declaration was recorded on the next day of the incident, she has not disclosed the name of the accused either in Ex.P.3 or Ex.P.7 statement. Therefore, the question of disclosing of name of A.1 to P.Ws.2 to 4 is doubtful. Apart from the oral evidence of P.Ws.2 to 4, there is no other evidence to establish the identity of A.1 in commission of the offence and all the witnesses have stated that A.2 has come to the house of the deceased on 16.4.199 at about 7.30 and 8.00 a.m and took the deceased along with her for attending the calls of nature but according to the charge sheet, A.2 came to the house of the deceased at 7.00 p.m on 16.4.1995 when she was alone in the house. But P.Ws.2 to 4 have stated that A.2 took the deceased along with her in their presence. More over P.Ws.2 to 4 are interested witnesses and they are the parents and brothers of the deceased. Therefore they are interesting in prosecuting the accused in view of the death of the deceased. The learned Public Prosecutor has relied upon the Mediatornama which is marked as Ex.P.5. The said Mediatornama was prepared at the time of arrest of A.2 on 30.4.1995 in the presence of P.Ws.7 and 12. P.W.7 has stated about the conducting of the scene of Panchanama by the S.I of Police on 18.4.1995 at 10.00 a.m in the house of M. Danamaiah and he has seized the pieces of bangles and he also stated that he was present at the time of arrest of A.2 on 30.4.1995 and S.I of police examined her in their presence. A mediators’ report was also drafted at the time of arrest. P.W.12 Yesupogu Ananda Rao who is another Mediator for the said Ex.P.5 has also stated that he was not present at the time of arrest of A.2 and the police never examined him. But he admitted that he did not know what was written in Ex.P.5. Thus, the said witness P.W.12 has also turned hostile to the prosecution with regard to Ex.P.5. Even as per the contents of Ex.P.5 it was recorded at the time of arrest of the A.2, it only shows about the confession made by the accused No.2. The said confession made to the police was inadmissible in evidence but the lower court wrongly marked the same as Ex.P.5 even though it is inadmissible evidence. Therefore, the same cannot be relied upon to establish the involvement of A.1 in committing the offence and A.2 in assisting the A.1. Apart from the evidence P.Ws.2 to 4 as already observed above, the only evidence available on record to establish the offence is the Dying Declaration Ex.P.3 and the statement Ex.P.7 given by the deceased to P.W.9. As already discussed above in both the statements, the deceased has not disclosed about the name of the accused No.1. With regard to A.2 she only stated that she called for attending the calls of nature and left her at the easing ground and thereafter one person came and committed rape on her. Therefore, in view of the said statement given by the deceased in her Dying Declaration, it cannot be said that the A.2 has assisted A.1 in committing the offence of rape on the deceased. More over the prosecution could not establish that A.1 who is the person committed rape on the deceased. More over apart from the evidence of P.Ws.1 to 4, there is no medical evidence to establish the commission of rape on the deceased as the deceased was not examined by any doctor immediately after commission of rape and the only medical evidence available is the evidence of Doctor. P.W.10 who conducted the postmortem and he has stated that on examination of external genitals, no external injuries of bruises and abrasions on the external genital and around the genitals. No injuries on the thighs. Both the labia majora