THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.414 OF 2009
JUDGMENT:
1. This Criminal Appeal is filed by the appellants/A1 and A2 aggrieved by the conviction recorded by the Additional Sessions Judge, Siricilla, in S.C.No.784 of 2007 dated 7.04.2009 for the offences punishable under Sections 451 and 376(2)(g) r/w.34 of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of one year and ten years respectively.
2. The case of the prosecution is that PW1 who is the mother of two children was raped by the appellants. On 12.03.2007, around 7 P.M. the appellants went to the house of PW1 and asked her to open the door. Both went inside and ordered PW1 to cook food and serve them, failing which they would kill her. The 2nd appellant/A2 took PW1's daughter outside the house and Accused No.1 committed rape on her though she requested that she was not well. Thereafter Accused No.1 threatened that she should not reveal the incident to anyone and went away. The said incident took place in between 7 p.m. and 9 p.m. 2
3. PW1 informed the incident to PW3 the next day, who took her to the village centre and informed to villagers. Thereafter, a complaint was filed on the next day i.e. on 13.3.2007 and the victim was examined by the doctor after two days i.e. on 15.03.2007.
4. The prosecution examined PW1 who is the victim and her daughter PW2, PW3 is the woman who has taken the victim to the village centre and informed the villages and PW4 is the daughter of PW1's elder brother who about the presence of A1 and A2 at PW1's house.
5. Learned Counsel for the appellants would submit that it is a case of false implication. There are several discrepancies in the case of prosecution which go to root of the case and the narration regarding rape is highly doubtful.
6. The said discrepancies are as follows;
a) PW1 stated in the complaint that A1 and A2 had committed rape on her. However, during the course of her examination before the Court she stated that it was only Accused No.1 who 3 committed rape on her and the second accused/Appellant No.2 took her daughter outside.
b) The daughter of PW2 stated that it was her mother and the police who instructed her to depose before the Court, for which reason no reliance can be placed on the deposition of PW2 to seek corroboration.
c) Contrary to the evidence of PW1, her daughter PW2 stated that A2 also entered into their house when A1 came outside. For the reason of A1 raping her mother both were weeping which again is contrary to the evidence on record.
d) Though, there is no mention of PW4 in complaint, however PW4 was introduced to say that she went to the house of PW1 and there she saw A1 and A2. In her cross-examination she stated that the accused and PW1 were talking in cordial manner.
e) According to PW6, one person was caught and handed over to the police for the reason of committing rape which is contrary to the evidence on record. The Police Officer (PW18) stated that the accused was arrested on 13.03.2007 at Thangallapalli bus stand and remanded them.
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f) Though a complaint was lodged on 13.03.2007, the victim was examined on 15.03.2007 and it is highly improbable that semen and spermatozoa are found on the wearing apparel and vaginal swabs of PW1.
7. Further the aforesaid discrepancies in the prosecution case make the case of the prosecution highly doubtful and the appellants have to be acquitted of the charge of gang rape.
8. Learned Public Prosecutor submits that the evidence of the solitary testimony of the victim would be sufficient to record conviction in the offence of rape. There is no reason for false implication of the accused. When the evidence of the victim inspires confidence without any further corroboration the accused is liable to be convicted. Accordingly, learned Sessions Judge has recorded conviction by overlooking minor discrepancies which crept in to the evidence. For the said reason of minor contradictions or discrepancies, the Judgment of the trial Court cannot be interfered with.
9. As seen from the record, the defense of accused is twofold. Firstly, it was suggested that sexual intercourse took place with 5 the consent of PW1. Secondly it was suggested that the husband of PW1 and A1 are friends when they were in Janashakti Party and PW1 developed illegal contacts with Kothinti Raju and Challarapu Rami Reddy, for which reason A1 asked PW1 to mend her ways, failing which he would inform the husband. Aggrieved that her illegal contacts would be revealed by A1 she filed false case against A1.
10. The discrepancies as pointed out by the learned Counsel for appellant do not in any manner affect the case of the prosecution. In the normal course of events when an incident as the present one occurs in a village, more so with a rustic villager minor contradictions and discrepancies are bound to occur. People are afraid of Naxalites, the appellants allegedly posed themselves as Naxalites and trespassed into her house. The narration given by the children PWs.2 and 4 cannot be said to affect the prosecution case in any manner and they have spoken regarding the presence of A1 and A2. For the reason of PW1 and PW2 not informing anyone on the night on which day incident occurred would not make any dent in the prosecution case. 6
11. Though the medical test was conducted on 15.03.2007 that is three days after the alleged incident, it cannot be said that finding of semen stains on the wearing apparel is of any consequence. It is not improbable as argued by the counsel for the appellants.
12. However, PW1 has not stated anything about 2nd appellant/A2 that he had committed rape on her and the 2nd appellant had taken her daughter outside while A1 committed rape. It is not her evidence that A-1 asked A-2 to keep guard outside or that A-2 acted in any manner suggesting sexual assault or rape.
13. In the said circumstances and for the said reason of PW1 stating that A2 did not commit rape on her, benefit of doubt can be extended to Accused No.2.
14. Accordingly, the conviction recorded by the trial Court against Accused No.2 is set aside and Accused No.2 is acquitted. However, the conviction recorded was under Section 376 (2)(g) for gang rape, since Accused No.2 is found not guilty for the offence of rape, conviction is recorded against A1 under Section 7 376 (2) of IPC and sentenced to undergo imprisonment for a period of seven years. The imprisonment if any during investigation and during proceedings before Courts shall be set off.
15. Accordingly, Criminal Appeal is partly allowed.
_________________ K.SURENDER, J Date:03.08.2022 tk 8 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.414 of 2009 Dated:03.08.2022 tk