THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.349 of 2001 Date:08.11.2010 Between: Peddinti Venkata Ramana Murthy …Appellant And The State of A.P. rep. By Public Prosecutor ….Respondent THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.349 of 2001 JUDGMENT: This appeal is directed against the judgment of the Principal Assistant Sessions Judge, Srikakulam, dated 13.03.2001 passed in S.C.No.113 of 2000 whereby and whereunder the appellant-sole accused was convicted for the offence under Section 376(2)(c) of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and also to pay fine of Rs.5,000/- and out of the fine amount collected, a sum of Rs.4,000/- was ordered to be paid to the parents/guardian of the minor victim girl (PW-1). The appellant (P.Venkataramana Murthy) was Head Master of District Tribal Welfare Ashram School, Poothikavalasa on the alleged date of offence. The gravamen of the charge against the appellant was that on 03.12.1999 at about 11 p.m. he having secured the presence of the victim girl aged 14 years studying in Class-V through PW-2 and another student of the same school, took her to the office room of the District Tribal Welfare Ashram School, Poothikavalasa and did commit rape on PW-1, the victim girl and thereby committed an offence punishable under Section 376(2)(c) of IPC. Briefly stated, the prosecution case is like this: PW-1 was a student of Class-V in Poothikavalasa District Tribal Welfare Ashram School. Due to the non-availability of the accommodation to the girl students during night time, went to sleep at the house of her uncle which is situate nearby the school as usual at 9.30 p.m. PW-2 (B.Shanker Rao) who was her classs- mate came to her and informed that the Head Master (the appellant) called her to come to the school. PW-1 followed PW-2 to the school where the appellant was present. The appellant took PW-1into the office room where he sleeps, closed the doors and committed rape on her. PW-2 who slept in the office room, witnessed the incident. Whereas, PWs.3 and 4 who are also students saw the appellant taking away PW-1 from the verandah of the school into the office room, thereafter they witnessed the incident by peeping through the window split of the office room. After some time, the appellant woke up PW-2 who was pretending as if he slept and told him to drop PW-1 at her uncle’s house. The appellant was said to have threatened PWs.2 to 4 that he would destroy their certificates if they reveal the incident to anybody. Being the children of the Ashram School under the control of the appellant, PWs.2 to 4 did not disclose the incident immediately to anybody. On 07.12.1999 when the appellant was found to be absent, PW-5, the Deputy Warden came to know about the incident through PWs.1 to 3. Thereafter, he enquired PWs.1 to 3 about the details of the incident. Immediately, he informed the incident to PW-6, the Project Agricultural Officer who was in full additional charge of post of District Tribal Welfare Officer. PW-6 visited the school on 08.12.1999 at about 9 or 10 a.m., he enquired PWs.1 to 3 about the details of the incident and recorded their statements, thereafter PW-6 took PWs.1 to 3 and 5 to the office of I.T.D.A. at about 3 a.m., sent word to the father of PW-1 and after his arrival, directed all of them to go to the police station with his letter and report addressed to the Station House Officer, Seethampeta Police Station. Basing on the report, the Inspector of Police registered a case in Crime No.60 of 1999, sent PW-1 for medical examination, investigated into the offence and after completing investigation, he filed charge sheet. Before the trial Court, the prosecution in order to prove the guilt of the appellant examined PWs.1 to 12, marked Exs.P-1 to P- 10 and M.Os.1 to 4. The appellant did not propose to examine any defence witnesses and marked four contradictions as Exs.D-1 to D-4 in the statements of PWs.2, 3 and 5 recorded by the police. The leaned trial Court on a consideration of the entire evidence on record convicted the appellant for the offence under Section 376(2) (c) of IPC and sentenced him to punishment as mentioned above. I have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor representing the State. The point for determination in this appeal is whether the conviction and sentence passed by the learned trial Court against the appellant can be sustained? It seems from the facts of the case as well as from the evidence of PWs.1 to 4, PW-1 the victim did not offer any resistance against the sexual assault committed by the appellant. The trial Court convicted the appellant considering the victim girl to be aged 13 years on the date of the incident in which event whether the victim girl consented for the sexual intercourse or not becomes immaterial. The victim girl was examined by PW-10 (NVSL Narasimham) a Professor in King George Hospital, Visakhapatnam who conducted ossification test and gave his opinion that she was aged about 14 years. PW-10 did not accede to the suggestion put to him in the cross-examination that there will be error of three years on either side about the opinion of the forensic expert in regard to the determination of the age. However, the fact remains that PW-1 (victim girl) was studying V class in the Ashram Scholl on the date of the incident. The learned trial Court rightly rejected the defence version that the victim girl was aged 16 years on the date of the offence considering the evidence of PW-10 as well as the fact that PW-1 was studying V class on the date of the incident. Moreover, when PW-1 stated in her evidence that she was aged 13 years on the date of incident, absolutely there was no cross-examination by the defence suggesting to the witness that she was aged more than 16 years of age. The next contention urged on behalf of the appellant that the medical evidence in this case does not support the theory of commission of rape on PW-1 and that the trial Court ought not to have convicted the appellant for the charge of rape. On the requisition issued by the police, Dr. Padmavathi, Civil Assistant Surgeon, Government Hospital, Srikakulam examined PW-1 and issued a certificate Ex.P-10. However, at the time of trial, she was on maternity leave and Dr.K.Krishna Rao, Regional Medical Officer was examined as PW- 11 to prove the contents of certificate Ex.P-10 issued by Dr. Padmavathi and Ex.P-11 final report issued by the medical officer. As per Ex.P-10 wound certificate issued by Dr.Padmavathi, there were no external injuries found on the person of PW-1 and the hymen was intact. According to the report of the Forensic Science Laboratoty there is no evidence of sexual intercourse on the victim. Referring to the above medical evidence, the learned counsel appearing for the appellant would contend that the learned trial Court had fallen into error in convicting the appellant for the charge of rape even though the medical evidence does not indicate commission of any rape on PW-1 and he submits that the conviction and sentence passed against the appellant have to be set aside. As to the contention put-forth by the learned counsel for the appellant, it may be stated that even it is not the case of the prosecution that PW-1 struggled at the time of sexual assault committed by the appellant on her. When she did not offer resistance, there is no possibility for any external injuries on her person. Further PW-1 was examined about six days after the alleged occurrence. Even if there are any small injuries, those injuries will not be noticed by the doctor who examined her because of lapse of time. Insofar as the other contention, there was no penetration because the hymen was intact, it is not always necessary that there will be rupture of hymen whenever the offence of rape has been committed. Even slightest penetration is enough to constitute the offence of rape. Absence of external injuries, hymen being intact, absence of spermatozoa will not able the court to arrive at a decision that rape was not committed. The act of rape can be committed even without any injuries on the private part of the victim. The learned Assistant Sessions Judge extracted the following sentences from the Modi’s Medical Jurisprudence and Toxicology: “The hymen is situated more deeply in children than in nubile girls and so if more often escapes injury in an attempted rape on children.” The author also expressed his view that even prostitutes have been known to possess an intact hymen. In the present case, PW-1 had categorically deposed before the trial Court that after she was brought by PW-2, the appellant took her to the office room, closed the doors, placed chairs across the door planks and spread the Botha, on the floor, laid her down, undressed her and he also undressed himself. She further deposed that the appellant inserted his penis in her private part, though she tried to raise cries and escape from him, he caught hold of her and prevented her from running away. The evidence of PW-2 discloses that he was pretending as if he was sleeping in the office room where the alleged incident took place, he saw the appellant lying on PW-1 and put out the candle, some time later, the appellant woke him up and told him to drop PW-1 at her uncle’s house. PWs.3 and 4 who were aged 9 years and 12 years respectively studying in Classes III & IV had categorically stated in their evidence before the trial Court that they saw the appellant carrying away PW-1 from the verandah into the office room, thereafter they woke up their friends, viz. Simhachalam, Ramamurthy and PW-4, all of them went to the rear side of the office room, they found PW-2 sleeping in the same office room. It is also their evidence that they had noticed the appellant undressing PW-1 and also undressing himself, laying down PW-1 by putting out the candle and that PW-3 particularly deposed that he heard the screams of PW-1 and after some time, PWs.1 and 2 came out of the room. The contention on behalf of the appellant is that because PWs.1 to 4 are kids and there is every possibility of they being influenced and tutored by PW-5 or any other persons who were not in good terms with the appellant and therefore, it is not safe to rely on their testimony. The version of the appellant as could be seen from his statement made during the course of his examination under Section 313 Cr.P.C. is that prior to him PW-5 was working as Head Master and when the appellant was posted as Head Master, PW-5 refused to hand over the charge and the relations between the both had become strained on the date of the alleged incident and PW-5 with a view to implicate him in this case, influenced the mind of PWs.1 to 4 and the father of PW-1 and made them to give a report against him. The contention is not convincing. Even if there existed some differences between the appellant and PW-5 during the relevant time, being a Deputy Warden he will not resort to implicate the appellant in a grave charge of rape by making PW-1 an innocent girl instrumental and it is not possible to accept that the parents of the victim girl would place the reputation of their family at stake at the instance of PW- 5. Absolutely no such circumstances were pointed out by the appellant except his mere statement made during the course of his examination under Section 313 Cr.P.C. which is to the effect that he and PW-5 were not in good terms. Further it is his version that when PW-5 refused to hand over the charge, he reported the matter to PW-6, the Project Officer, but when PW-6 was cross- examined, it was not suggested to him that PW-5 did not hand over the charge to the appellant immediately after his posting in the Ashram School on 16.06.1999. The defence theory that the appellant was falsely implicated at the instance of PW-5 is quite unconvincing. Any circumstances which might have prompted PW-5 to implicate the appellant in a grave charge of rape have not at all been brought on record and not even pointed out. Therefore, it is highly difficult to reject the testimony of PWs.1 to 4 as tutored witnesses or child witnesses. Their evidence is consistent on all material particulars and is highly reliable. The learned trial Court in my view did not commit any error in recording the conviction against the appellant and it needs no interference in this appeal. The sentence imposed being the minimum prescribed by the statute for the alleged offence and absolutely there being no reasonable grounds to impose lesser punishment than the minimum prescribed by the statute, the sentence passed by the trial Court also needs no interference in this appeal. For the reasons aforementioned, the conviction and sentence passed by the trial Court against the appellant are confirmed and the appeal is dismissed. _______________ R. KANTHA RAO, J Date:08.11.2010 CCM THE HON’BLE MR JUSTICE R. KANTHA RAO Crl.A.No.349 of 2001 Date:.08.11.2010