Radhakrishna Nagesh vs State Of A.P

3. There was no sexual intercourse between the appellant and the victim. The prosecution has not been able to establish any link between the commission of the alleged offence and the appellant.

4. The case of the prosecution is based upon the sole testimony of the victim. All these circumstances, examined cumulatively, entitle the accused for an order of acquittal.

2. These contentions have been raised with reference to the case brought on record by the prosecution. The factual matrix of the case as per the prosecution is:

3. The accused/appellant was working as a ball picker in S.V. University tennis court, Tirupati, and in that capacity he was having the custody of the key to the storeroom situated on the south-east of the tennis court. The tennis net and other articles were stored in this place. On 7th September, 1997 at about 7.00 p.m., the accused saw a girl named A. Haritha, who was standing alone outside the red building. It may be noticed, that the mother of the victim girl, namely Sampuramma, PW5, was working as a maid-servant in the red building attached to the University.

4. A. Haritha, the victim belonged to the Scheduled Caste category and was about 11 years of age at the time of the incident. The accused asked her to come along with him. At first she refused but the accused enticed her on the pretext of purchasing gold colour plastic bangles. When she agreed to accompany him, he bought her the bangles and then took her to the store room near the tennis court, the key to which he was possessing. He opened the lock and took the victim inside the room and committed rape on her against her will. In fact, he even threatened to assault her. One Narayanaswamy, PW3, a rickshaw puller, who was waiting by the side of Gate No. 3 of the S.V. University noticed the accused taking the victim into the store room and thus, became suspicious. He went to the store room and tapped the door several times. However, the accused did not open the door at first, but upon further insistence of PW3, he did so. PW3 saw the victim girl weeping. The accused slammed the door. Suspecting that the accused might have done some wrong to the minor girl, Narayanswami, PW3 bolted the door from outside and ran to inform the authorities and/or the police. On his way he met Sub-Inspector of Police, Traffic P.S., Tirupati, Sh. S.M. Ramesh, PW1, who was standing near the NCC Office traffic point and informed him of the incident. Immediately, PW1 along with another Traffic R.S.I, R. Sivanandakishore, PW4, accompanied by PW3 went to the said storeroom, opened the door from outside and found the victim girl A. Haritha. She complained of pain in her vaginal region. PW1 took the victim girl as well as the accused to the SVU Campus Police Station and made a complaint, Ex. P.1, based upon which FIR, Ex. P.7 was registered under Sections 363 and 376 (2)(f) of the Indian Penal Code 1860 (for short ‘IPC’) and Section 3(2)(v) of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989.

5. Upon this report, Sub-Inspector of Police, B. Katamaraju, PW10 undertook the investigation. The accused was sent to the SV RR GG Hospital, Tirupati for medical examination. The victim girl was sent to the Government Maternity Hospital, Tirupati, for the same purpose and also for the assessment of her age. Certain articles, including the cut drawer of accused containing seminal stains, skirt of the victim girl etc. were seized and were sent to the laboratory. The Assistant Director, RFSL Anantpur, after analysing the material objects, detected semen on the clothes and on the vaginal swabs of the victim, collected and preserved by the Medical Officer, and also on the underwear of the accused. The Investigating Officer recorded the statement of various witnesses and completed the investigation. Upon completion of the investigation, the Inspector of Police, PW11 presented a report under Section 173(2) of the Code of Criminal Procedure 1973 (for short ‘the CrPC) for offences under Sections 363 and 376 (2)(f) of IPC. As the alleged offences were triable exclusively by the Court of Sessions, the accused was committed to the Court of Sessions, where he faced the trial. The prosecution examined 12 witnesses being PW1 to PW12 and exhibited documents P1 to P9 and material objects (M.Os.) 1 to 3 in its effort to bring home the guilt of the accused. As already noticed the Trial Court vide its judgment dated 11th February, 1999 held the accused not guilty of any offence and acquitted him. While recording the finding of acquittal, the Trial Court found certain material improbabilities and contradictions in the statements of the witnesses. Since we have to deal with the judgment of reversal of an order of acquittal, it will be useful for us to notice some relevant extracts of the judgment which would indicate as to what really weighed with the Trial Court while granting acquittal to the accused.

35) When coming to the evidence of P.W.2, though she narrated the incident and stated in her chief – examination that the accused removed his pant and underwear and laid her on the floor and passed liquid like urine in her private part, her admission in the cross-examination that Narayanswamy P.W.3 tutored her to depose in this case and also at the request of P.W.1, she deposed about purchasing of bangles by the accused and taken her to the room, makes her entire evidence lack of credibility and inadmissible.

39) The evidence of P.W.5, the mother of victim girl goes to show that she came to know the incident after the victim girl and the accused were brought to Police Station. Hence, she is also not a direct eye-witness.

43) Hence, it is manifest that for sustaining tenderness on the private parts of the victim girl, there could be some other reasons and those reasons are not ruled out by P.W.9. Admittedly, in the wound certificate furnished by her under Ex.P.5, she has not mentioned that there was an attempt on the person of P.W.2 victim girl. Further, there is no record to show that she obtained acknowledgment from the police for handing over the material objects collected by her at the time of examination. She collected vaginal swab and also vaginal washings. Further, on her examination, she found the hymen of the victim girl was intact and there was no laceration or congestion on fourchette.

59) But, in this case on hand, the evidence of P.W.2 the prosecutrix is of no avail in view of her admission that she was tutored by P.W.3 before her giving evidence. Hence, the above said citation also cannot be made applicable to the present facts of the case.

71) Further as seen from the record, though P.Ws. 1 to 5 were examined by P.W.11 on the date of incident itself, all the said statements were sent to the court only on 28.1.1998. The alleged occurrence is on 7.9.1997. Hence, the sending statements to the court at a belated stage, has the effect of losing the spontaneity of the statements and further, admittedly the statement of P.W.2 recorded by P.W.1 was also not read over to her. Hence, in these circumstances, the benefit of doubt should be given to the accused. Hence, this point is answered against the prosecution.”

6. Besides the above, the Trial Court had also expressed its doubt in relation to the authenticity of Ex.P.9, the wound certificate of accused, issued by the Chief Medical Officer, SV RR GG Hospital, Dr. V.V. Pandurana Vittal, PW12. There were certain corrections as referred to in paragraph 52 of the judgment in this regard. The High Court disturbed the above judgment of the Trial Court and found the accused guilty under Sections 363 and 376(2)(f) of IPC and convicted him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default of payment, to undergo simple imprisonment for three months under Section 363 of IPC. Accused was sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.2000/-, and in default of payment, to undergo simple imprisonment for six months for the offence under Section 376 (2)(f) of IPC. The substantive sentences were directed to run concurrently.

10. PW2 was 11 years old at the time of occurrence, while she was 12 years old, when her statement was recorded in the Court. After the Court was convinced of the fact that she is competent to make the statement, the same was recorded. In her statement, she stated that she was working as a maid in the staff quarters of S.V. University, known as the red building. According to her, she knew the accused and he was in the habit of escorting children to the school. The accused had taken her to the tennis court, promised her that he would buy bangles for her and after purchasing the bangles the accused took her to a room in the tennis court. The accused closed the door of the room, lifted her langa, removed his own pant and underwear, put her on the floor of the room and passed liquid like urine into her private parts. In the meanwhile, she stated that she felt the starch in her private parts. At that time, one rickshaw puller, PW3 came and knocked at the door. The accused abused him in a filthy language and later the police came to the room. She further narrated that it was PW1 who had taken her and the accused to the police station, where she was examined by the Police.

11. Her langa was seized by the police and was sent to hospital for examination. She stated that her mother was also working as a maid in the red building itself. We must notice that despite a lengthy cross- examination, she stood to her statement and did not cast any doubt on the statement made by her in her examination-in-chief. When she was taken to the hospital, she was examined by Dr. G. Veeranagi Reddy, PW8, who stated that he was working as a Professor of Forensic Medicine in the S.V. Medical College, Tirupati and that on 13th September, 1997, he had examined a girl A. Haritha for the purposes of finding out her age. He stated as follows:-

12. She was also examined by Smt. Dr. P. Vijayalakshmi, Assistant Professor in Maternity Hospital, Tirupati, PW9 on 7th September, 1997. According to PW9, the girl had washed herself after the incident. PW9 made the following remarks:- “There are no marks of violence nape of neck, front and back of the body. The abdomen was soft. Liver and spleen not palpable. The breasts are not developed. There was no axilliary pubic hair. The hymen was intact. No laceration or congestion in fourchette, the parts were tender to touch, which according to the doctor was an indication of attempt to rape with the girl.” The doctor, PW9 also stated that considering the age of the victim and on seeing that the parts were tender to touch, she could say that there was an attempt to rape the victim girl A. Haritha. Since, according to PW9, the girl had washed herself after the incident, the doctor had to reserve her final opinion till the Chemical Analyst’s Report (FSL Report). The vaginal swab and washing were preserved for chemical analysis. The FSL Report was Ext. P.6, while the Wound Certificate of victim girl was Ext. P.5. According to the FSL Report, semen was detected on Items 1, 2, 4, 5 and 6 and the same was of human origin. Saliva of human origin was detected on Item No. 3. The Chemical Analyst also detected semen and spermatozoa on Item Nos. 1, 2, 4, 5 and 6 and on Item No. 3 saliva was found.

13. Item No. 1 was torn brown colour polyester langa with dirty stains which the girl was wearing. Item No. 2 was a torn grey colour mill made cut drawer with dirty stains which the accused was wearing. Item No. 3 and Item No. 4 were the turbid liquid which was present on the cloth and in a bottle respectively. Item No. 5 was a cotton swab and Item No. 6 were two glass slides which were sent for opinion and via FSL Report, Ext. P.6, the opinion was received.

24. According to the medical evidence and statements of PW8 and PW9, the victim was 11 years old at the time of occurrence and her private parts were tender to touch. The doctor, PW9 had reserved her final opinion awaiting the FSL Report. According to the FSL Report, the langa of the girl as well as the drawer of the accused were containing semen of human origin. The slides which contained the swab taken from the vagina of the girl also showed presence of semen of human origin. It may be noticed that these reports, in relation to Items 1, 2, 4, 5 and 6 came despite the fact that the girl had washed herself after the occurrence.

37. The statement of a witness must be read in its entirety. Reading a line out of context is not an accepted canon of appreciation of evidence.

38. Another aspect of the statement of PW3 which the Trial Court had a doubt with, was, as to how PW3 had noticed the accused taking away the minor girl along with him to the tennis store room and how he suspected some foul play.

43. We find no merit in the present appeal and the same is dismissed.