* HON’BLE SRI JUSTICE D.S.R.VARMA AND *HON’BLE SRI JUSTICE R.KANTHA RAO + CRIMINAL APPEAL NO. 923 of 2007 AND +CRIMINAL APPEAL NO. 285 2007 % Date: 17-12-2009 Crl.A.No.923 of 2007: Between: # Kallukunta Deva and three others .. Appellants and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellants: Sri T.G.S. Srivatsava ^ Counsel for respondent: Public Prosecutor Crl.A.No.285 of 2007: Between: # Vannepogula Erranna .. Appellant and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Smt.A.Gayatri Reddy ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: [1] AIR 1979 SC 135 2 2005(2) ALT (Crl.) 240 (DB) (AP) 3. 2007(1) ALT (Crl) 231 (DB) (A.P.) HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 923 of 2007 AND CRIMINAL APPEAL NO. 285 2007 COMMON JUDGMENT: (Per RKR,J) Crl.A.No.923 of 2007 is filed by A-1 to A-3 and A-5, whereas Crl.A.No.285 of 2007 is filed by A-4 in S.C.No.370 of 2002 on the file of the Court of the Additional Sessions Judge, Kurnool at Adoni. A-1 to A-3 were convicted by the trial Court for the offence under Section 376(2) of IPC and Section 302 of IPC and were sentenced to undergo imprisonment for a period of ten years for the offence under Section 376(2) of IPC and they were also sentenced to undergo imprisonment for life for the offence under Section 302 IPC. A-4 was convicted for the offence punishable under Section 376(2) r/w 109 IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and A-4 was also convicted for the offence under Section 302 r/w 109 IPC and was sentenced to undergo imprisonment for life. A-5 was convicted for the offence punishable under Section 376(2) r/w 114 of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and he is also convicted for the offence punishable under Section 302 r/w 114 of IPC and was sentenced to undergo imprisonment for life. 2. Challenging the said order of conviction and sentence, the appellants preferred the above two appeals. 3. Since both the appeals arise out of the judgment in S.C.No. 370 of 2002 on the file of the Court of the Additional Sessions Judge, at Adoni, they are disposed of by the following common judgment. 4. Briefly stated, the prosecution case is as follows: Yerukala Sanjamma hereinafter referred to as ‘the deceased’ is the daughter of PW-1 (Yerukala Naganna). PW-4 (Laxmi @ Gunnamma) is the brother’s daughter of PW-1. The family of PW-1 resides near Hindu graveyard by the side of Indian Gas Godown, near Kodageri, Adoni, a town in Kurnool District. The family of PW-1 lives by preparing brooms and selling them in the town. A-4 is a watchman of the said graveyard and A- 5 is his associate. A-1 and A-3 are doing the job of digging pits in the graveyard and A-2 is a municipal employee. All the accused are close associates and friends. They were in the habit of consuming liquor in the premises of the graveyard. A-4 who is the watchman of the graveyard used to give food to PW-4, which was offered by the relatives of the dead persons whose bodies were brought to the graveyard. Thus, A-4 developed intimacy with PW-4. 5. While so, on 15.12.2005 all the accused consumed liquor from 6 p.m. onwards in the graveyard. At about 9.30 p.m. A-4 asked his associate A-5 to get PW-4 on the pretext of providing food and he also instructed A-5 to get the deceased who is the cousin of A-4 along with her. A-5 went to the house of PW-4 and conveyed the information to PW-4 and thereafter PW-4 followed him along with the deceased. After their arrival, A-4 took PW-4 along with him to the nearby gas godown, whereas A-1 to A- 3 took the deceased to the choultry room situated in graveyard while A-5 was keeping a watch. A-1 to A-3 committed rape on the deceased in spite of her offering resistance and raising cries one after another on account of which there was profuse bleeding from the vagina of deceased and ultimately, inconsequence thereof, she died. 6. PW-4 who was with A-4 came out of the gas godown and as the deceased was not to be seen, she questioned A-4 about the deceased and A-4 told her that the deceased was crying out of fear. PW-4 returned home and slept till the morning. After sending PW-4, A-4 came to the chowltry room where it was informed by A-1 to A-3 about their committing sexual assault on the deceased and thereafter, all the five accused went and saw the deceased inside the room and they found her dead. Then, all of them came out of the graveyard. 7. In the morning the deceased was absent in the house which fact came to the knowledge of PW-1 and other family members, PW-4 went to the graveyard and enquired A-4, and A-4 told her that the deceased was already sent in the night itself. 8. Subsequently, PW-1 the father of the deceased and other relatives made searches for the deceased and ultimately came to know that the dead body of the deceased was in the graveyard. Then they went and saw the deadbody lying naked with bleeding injuries from private parts. From the appearance of the deadbody, they realized that the deceased was subjected to rape and was murdered. PW-1 went to III Town police station and lodged Ex.P-1 report with the police. PW-12 (N.Konda Reddy) who was Inspector in-charge of II Town Police Station took up investigation, held the inquest and thereafter dispatched the body for post mortem examination. PWs.8 and 9, Women Assistant Surgeons conducted postmortem examination over the body of the deceased and they issued post mortem report Ex.P-6 to the effect that the deceased died due to shock and haemorrhage on account of forcible sexual intercourse. 9. Subsequently the investigation was taken over by PW-13 (Rama Krishna), the regular Inspector of Police who again examined all the witnesses and after completing investigation, he filed charge sheet. 10. Before the learned trial Court, the prosecution in order to establish the guilt of the accused, examined PWs.1 to 13 and marked Exs.P-1 to P-21 besides marking M.Os.1 to 9. DWs.1 to 3 were examined and Exs.D-1 to D-4(a) were marked on behalf of the accused. The trial Court, upon considering the entire evidence on record, convicted the appellants for the above mentioned offences and sentenced them to punishment as stated above. 11. We have heard the learned counsel appearing for the appellants (A-1 to A-3 and A-5) in Crl.A.No.923 of 2007 and the learned counsel appearing for the appellant (A-4) in Crl.A.No.285 of 2007. 12. Both the learned counsel appearing for the appellants would submit that the incident attracted the attention of the general public as it was highlighted in the print and electronic media, the police who were unable to trace out the real culprits, falsely implicated the accused in this case under threat and that there is no satisfactory evidence warranting conviction against any of the accused and the order of conviction and sentence passed, is liable to be set aside in these two appeals. 13. On the other hand, the learned Public Prosecutor would submit that despite the fact that PW-4 who saw the incident did not disclose the incident to anybody immediately and she deposed true facts to the investigating agency at subsequent point of time, her evidence coupled with the other evidence on record justifies the conviction and sentence passed against the accused who are the appellants in both the appeals and the same has to be affirmed in these appeals. 14. We have perused the judgment of the learned trial Court, depositions of the witnesses and other material papers and have given our thoughtful consideration to the submissions made by the learned counsel. 15. The point that arises for determination in these two appeals is, therefore, whether the order of conviction and sentence passed by the trial Court against each of the appellants can be sustained? 16. The findings of the doctors PWs.8 and 9 who conducted post mortem examination and issued Ex.P-4 preliminary post mortem report and thereafter the final report Ex.P-6 after receiving the report of chemical analysis are as follows: External injuries: 1) Both upper and lower lips swollen and abraded, reddish brown in colour, 2) Small abrasions and bite marks present over left cheek; 3) Small bruises over throat over front and lateral aspect present. 4) Abrasion over left shoulder 1” x ½” x ½”. 5) Abrasion over middle of back 1” x 1/2” 6) Abrasion over left thigh 2” x ½” 7) Abrasion over right thigh 1” x 1/2” 8) Bleeding from vaginal orifice. Findings: Vulval area swollen. Secondary sexual character not developed well. No pubic hair. No axillary hair. Breast nodular not developed well. Hymen ruptured. Tissues are swollen extensive laceration of posterior vaginal wall. Lateral vaginal wall lacerated. Bleeding from the edges of the laceration present. Vaginal mucosa congested. 17. From the findings of the post mortem report, therefore, there is no dispute about the fact that the deceased was raped and died inconsequence thereof. 18. The evidence of PW-4 who is the main witness in this case before the learned trial Court is as follows: “At 10 p.m. on the date of the incident while PW-4 and the deceased along with some others were sleeping out side their house, A-5 approached her and asked her and the deceased to follow him to the graveyard, accordingly they followed him and after they reached the graveyard, they saw A- 1 to A-4 present there, among them, A-4 took her to gas godown, whereas A-1 to A-3 took the deceased to the choultry room. After some time, PW-4 heard the cries of the deceased and asked A-4 as to why she was crying, A-4 told her that she might be crying due to fear. One hour thereafter, she came out and enquired A-4 about the deceased, he replied that she would be sent in the morning. PW-4 straightaway went to their house and slept to that night. In the morning, as the deceased was not found in the house, she went to PW-4 and enquired about the deceased, A-4 told her that the deceased was sent to the house in the night itself. Subsequently, PW-4 came to know about the rape committed on the deceased and her death. When she questioned A-4 about the incident, he threatened her that if she speaks about the matters to anybody, she would also be killed. Due to fear, she did not disclose the incident to anybody. However, subsequently she disclosed the details of the incident to the police and also gave statement before the Magistrate.” 19. Apart from the above mentioned evidence of PW-4, there is evidence of PW-2, a resident of the same locality who stated that at about 10 p.m. on 15.12.2005 when he came out of his house to answer calls of nature, he saw A-5 taking PW-4 and the deceased along with him towards graveyard and that he did not enquire A-5 since A-5 usually takes PW-4 to the graveyard for providing food and that on the next day in the early hours, he went to Bellary in connection with his business in brooms and returned four days after the incident. Further, there is also evidence of PW-3, a resident of the same locality who stated that on the night of the incident while he was returning by walk at about 1 a.m. after watching second show movie ‘Chatrapathi’, he found all the accused coming out of the graveyard and conversing among themselves that Yerukala girl died in their hands. According to this witness, all the accused were in a drunken state and therefore, he did not speak to them. He further stated that, he got up at 8 a.m. on the next day and left for Raichur in connection with his brooms business and returned to Adoni ten days thereafter. 20. The learned counsel appearing for the appellants would contend that there is inordinate delay in lodging the F.I.R. and the statement of PW-4 recorded under Section 161 Cr.P.C. and the statement of PW-4 recorded under Section 164 Cr.P.C. has not been furnished to the accused and therefore, on account of the said lapses, the entire trial is vitiated. In support of their contention, they relied upon the following decisions: 1) GANESH BHAVAN PATEL AND ANOTHER v. STATE OF MAHARASHTRA[1] wherein the Apex Court held that delay of few hours simpliciter in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case, but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. 2) SIVAKOTI DAVEEDU AND ANOTHER v. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF A.P. HYDERABAD[2] AND 3) SINGAM NARSA GOUD v. STATE OF A.P.[3] wherein it was held that when the statements of the prosecution witnesses recorded by the Magistrate under Section 164 Cr.P.C. have not been produced and have not been furnished to the accused, an adverse inference can be drawn against the prosecution case and the accused are entitled for acquittal. 21. It is true that when the statements of the witnesses recorded by the Magistrate under Section 164 Cr.P.C. are not furnished to the accused, it causes some hardship because the accused will be denied the opportunity of pointing out of any discrepancies in the evidence of the witnesses before the Court visa-vis the statements recorded under Section 164 Cr.P.C. But, whether such failure will vitiate the entire case of the prosecution or not, is a question of fact and cannot be considered as an absolute legal proposition. In order to contend that the entire prosecution case is vitiated, it is incumbent on the part of the accused to demonstrate that such an omission on the part of the prosecuting agency caused prejudice to the accused. 22. In the instant case, it is true that there is no dispute about the fact that PW-4 did not disclose the facts spoken to her before the Court to PW-12, investigating officer who took up the investigation in the first instance who examined her on 16.12.2005. She could testify the above said facts on 26.12.2005 to PW-13, investigating officer who took over investigation subsequently. Only after PW-4 disclosed the true facts to PW-13, the accused were arrested on 07.01.2006. Similarly, PWs.2 and 3 also did not inform the facts within their knowledge soon after they came to know about the said facts. Their explanation is that they left the village in connection with their professional work and returned to their village some time thereafter. It also appears that since the deceased is a poor girl, PWs.2 and 3 did not come forward immediately to speak against the accused persons. PW-4 being the person who took the deceased to the graveyard on the night of the incident must have been in the grip of fear to reveal the incident to others and it is only after thorough investigation, she could come forward with the true facts within her knowledge before the investigating agency as well as the Magistrate and also before the learned trial Judge. 23. Before appreciating the evidence of witnesses, the Court has to take into consideration the background of the witnesses and the circumstances in which the offence was committed. PW-4 is a girl who lost her father at tender age and her mother’s whereabouts are not known and she was brought up by PW-1. It is but natural for PW-4 having taken the deceased along with her to the graveyard hesitate to disclose the incident even to PW-1 or the other close relatives. Therefore, the delay in lodging the F.I.R. and in recording the statement of PW-4 under Section 161 Cr.P.C. by the investigating officer is properly explained by the prosecution and the same is not fatal to the prosecution case. 24. As regards the non-furnishing of statement of PW-4 recorded by the Magistrate under Section 164 Cr.P.C. it may be stated that the said fact assumes importance only when it is shown that prejudice has occasioned to the accused. In the instant case, the learned trial Judge had recorded a categorical finding that the facts stated by PW-4 before him when she was examined at the trial and the facts which she spoke before the Magistrate while she was examined by him under Section 164 Cr.P.C. are the same and there is no variation at all. If that is so, the decisions relied upon by the learned counsel for the accused referred above cannot come to the rescue of the accused. 25. However, before arriving at a final decision in this case, we wish to state that since the entire evidence rested on the testimony of PW-4 who is no other than the cousin of the deceased girl, her testimony has to be subjected to thorough scrutiny and on a careful analysis, a decision has to be reached as to the part played by each of the accused. As revealed from the evidence of PW-2, A-5 taking PW-4 to the graveyard during night- time, may be, according to him to provide food is a regular feature. That is why, he did not reveal the same to anybody. It is not appropriate for the Court to accept or reject the entire version of PW-4. After subjecting the testimony of PW-4 to thorough scrutiny, we have to make our endeavour to separate the truth from falsehood. Since it was nothing new for PW-4 to go to the graveyard during night-time to meet A-4, it is quite unconvincing to view that actually A-4 conveyed the information through A-5 to PW-4 to bring the deceased also along with her. It is highly difficult to believe that either A-4 or A-5 secured the presence of the deceased girl who was only aged 9 years on the date of the incident for satisfying the lust of A-1 to A-3. The medical evidence clearly shows that the deceased had no pubic hair and her secondary sexual characters have not been developed properly. We are not convinced with the prosecution version that A-4 and A- 5 procured the deceased girl for the purpose of satisfying the lust of A-1 to A-3 who were in a drunken state. While bringing the deceased, PW-4 also might not have thought that any sexual assault would be committed against the deceased. This is so, because of the tender age of the deceased girl. PW-4 might be under the impression that the deceased would be of some assistance to her while proceeding to the place of occurrence and returning home from there. We have to visualize the actual situation because we are duty bound to punish the culprits and give benefit of doubt to those accused who appear to be innocent. In any criminal case, highly convincing and reliable evidence on each and every aspect will not be available. Basing on the facts and circumstances of the case and the evidence available on record, the Court must make it’s endeavour to separate the truth from falsehood. 26. It is not at all the case of the prosecution that either A-4 or A-5 committed any sexual assault on the deceased. PW-4 did not state that either A-4 or A-5 handed over the deceased to A- 1 to A-3. The prosecution is specific on the aspect that A-1 to A-3 gang raped the deceased, which act ultimately, resulted in her death. A-4 and A-5 have been shown as abettors. In our perception on the arrival of the deceased girl at the venue of the offence, A-4 and A-5 might not have thought that A-1 to A-3 will resort to commit rape on the deceased even though it might be a fact that the deceased went along with them towards choultry room. We have to think so because of the age of the deceased girl at the relevant point of time. As per the evidence of PW-4, she followed A-4 to the gas godown while leaving the deceased in the company of A-1 to A-3. Her conduct clearly reveals that she had no apprehension at all that A-1 to A-3 would resort to commit sexual assault on the deceased. That being the situation, A-4 and A-5 must also be thinking on the same lines having regard to the tender age of the deceased. All the accused pleaded alibi before the learned trial Court, but A-4 alone adduced evidence in proof of his alibi. However, we have to arrive at the finding of guilt or innocence of the accused not withstanding their proof of alibi though it is one of the relevant factors to be considered. 27. In the light of the findings narrated hereinabove, we are of the definite opinion that from the evidence of PW-4 it is obvious that A-1 to A-3 who took her to the choultry room did commit gang rape on her and were also responsible for her death because commission of gang rape on a girl aged about 9 years is very likely to result in her death and A-1 to A-3 cannot plead that they could not visualize the end result since it is the most probable consequence of their heinous act. The fact being well within the knowledge of A-1 to A-3, they are liable for punishment for gang rape as well as murder of the girl of tender age. Whereas A-4 and A-5 cannot be attributed with instigating A-1 to A-3 or conspiring with them or intentionally aiding them to commit the offence and therefore, they cannot be said to have abetted the offence. As such, in our view, A-4 and A-5 are entitled for benefit of doubt. We have no manner of doubt, whatsoever, to affirm the finding of the learned trial Court that A-1 to A-3 are guilty of the offences punishable under Sections 376(2) and 302 of IPC. 28. Accordingly, the conviction and sentence passed by the trial Court against A-1 to A-3 (the appellants 1 to 3 in Crl.A.No.923 of 2007) are confirmed. The conviction and sentences passed by the trial Court against A-4 (the appellant in Crl.A.No.285 of 2007) and A-5 (the 4th appellant in Crl.A.No.923 of 2007) are set aside and they are set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by A-4 and A-5 shall be refunded to them. 29. In the result, Crl.A.No.285 of 2007 is allowed. Crl.A.No. 923 of 2007 is partly allowed. _____________ R. KANTHA RAO, J ______________ D.S.R. VARMA, J Date:17.12.2009. Note: L.R. Copy to be marked. B/O ccm HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 923 of 2007 AND CRIMINAL APPEAL NO. 285 2007 ( Per RKR,J ) Date:17.12.2009 [1] AIR 1979 SC 135 [2] 2005(2) ALT (Crl.) 240 (DB) (AP) [3] 2007(1) ALT (Crl) 231 (DB) (A.P.)