THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.59 OF 2009
JUDGMENT:
1. The accused is convicted and sentenced to undergo rigorous imprisonment for a period of one year under Section 448 IPC and rigorous imprisonment for 10 years for the offence under Section 376 IPC and also rigorous imprisonment of six months for the offence under Section 506 IPC vide judgment in SC No.145 of 2008, dated 20.01.2009 passed by the Assistant Sessions Judge at Khammam. Aggrieved by the same, the present appeal is filed.
2. The case of the prosecution is that PW.1 is the victim and wife of P.W.4. On 24.08.2007, the appellant/accused knocked the door of P.W.1 and when she opened, he entered into the house and closed P.W.1's mouth with his hand and pushed her on cot and committed rape. The appellant threatened to kill if the same was informed to anyone. At that juncture, P.W.4 husband and P.W.5, his friend came on the motor cycle and when P.W.4 came near the door, then the appellant opened the door and ran away. P.W.4 questioned P.W.1 as to what happened. When P.W.1 2 stated that she was raped, P.W.4 beat her. It is further the case that P.W.4 called the parents of P.W.1, who are P.Ws.2 and 3. P.W.4 then complained to P.Ws.2 and 3 stating that he was not willing to stay with his wife P.W.1. Thereafter, P.W.1 filed a written complaint with the police on 29.08.2007 after five days.
3. Learned counsel for the appellant submits that the entire case of the prosecution is highly doubtful and the very narration of the events appears to be a case of consensual sex in between P.W.1 and the appellant and when they were caught, PW1 filed a false complaint. There are several discrepancies in evidence which go the root of the prosecution case. P.W.1 states that when her husband P.W.4 came to the house, appellant opened the door and ran away. However, P.W.4 states that he found the appellant coming out of the house and at that time and his wife P.W.1 was inside the house. P.W.5 stated that both P.Ws.4 and 5 came on the motor cycle and found the appellant coming of the house of P.W.4 and ran away. P.W.5 further states that P.W.4 beat P.w.1 and also on the next day morning of the incident, P.W.4 again confronted P.W.1 and beat her. P.W.4 thereafter called the parents. The entire conduct of P.W.4 is highly 3 suspicious and the witnesses are suppressing the actual happening as seen from the contradictions amongst each of the witnesses. In the said circumstances, the appellant is liable to be acquitted. In support of his contentions, he relied on the judgments; i) Santosh Prasad v. State of Bihar1, and argued that solitary version of prosecutrix, cannot be taken as gospel truth at face value. In the absence of any supporting evidence, conviction cannot be sustained and that the evidence of prosecutrix should inspire confidence and appear to be absolutely trustworthy, unblemished and sterling quality; ii) Lalliram v. State of Madhya Pradesh2, and argued that if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial; iii) Narayan v. State of Rajasthan3, and argued that the evidence of the prosecutrix is full of material contradictions and there is no corroboration from any of the 1 (2020)3 SCC 443 2 (2008) 10 SCC 69 3 (2007) 6 SCC 465 4 witnesses; iv) State of Karnataka v. F.Nataraj4; v) State of Rajasthan v. Babu Meena5; vi) Kommu Venkataratnam v. State of A.P6 and argued that the testimony of prosecutrix is inconsistent, uncorroborated by the medical evidence which is vague and fails to establish clearly that the sexual intercourse took place and hence not reliable; vii) Rajesh Patel v. State of Jharkhand7, and argued that inordinate delay of 5 days in lodging the FIR is fatal to the prosecution case.
4. On the other hand, learned Public Prosecutor submits that the solitary testimony of victim is sufficient to convict the appellant. As seen from the evidence of P.Ws.1, 4 and 5, the appellant was found in the house when P.W.4 returned from Vijayawada. P.W.1 narrated the facts that it was the appellant who had committed rape on her. In the said circumstances, the delay in lodging the FIR is of no consequence and conviction of the appellant has to be sustained.
4 (2015) 16 SCC 752 5 (2013) 4 SCC 206 6 (1996) 2 ALT (Cri) 51 7 (2013) 3 SCC 791 5
5. The delay of five days in lodging the FIR is explained by P.W.1 to 4 stating that they wanted to initially have a word with the appellant and thereafter take the matter before the elders. Since the appellant did not turn up to settle the issue, the complaint was lodged. The said explanation given for the delay in lodging the FIR cannot be accepted for the reason its improbability. Any woman, who is subjected to rape will not under normal circumstances try to have a word with the perpetrator. It is amusing to find that initially the appellant was seen in the house of P.W.1, the husband P.W.4 beat P.W.1. He again entered into altercation with P.W.1 on the next day morning and beat her again. PW4 complained to the parents about PW1 and wanted to send her away. He called the parents P.Ws.2 and 3, holds a panchayat regarding the conduct and character of P.W.1. The very narration of events that transpired at the time of incident and subsequently, gives rise to any amount of doubt regarding the rape being committed by the appellant.
6. The following facts as narrated by the prosecution witnesses give rise to such suspicion;
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i) The appellant entering the house of P.W.1 when P.W.4 goes to Vijayawada;
ii) P.W.1 when informs her husband P.W.4 that the appellant raped her, P.W.4 instead of showing sympathy or taking any action against the appellant, beats PW.1 and calls her parents for a panchayat complaining about the character of P.W.1;
iii) Even on the next day morning of the incident, P.W.4 again entered into the fight with the P.W.1 and beats her;
iv) Even before filing of complaint, which is after five days, the efforts were made to call the parents PW2 and PW3 and settle the issue in their presence after speaking to appellant.
7. The said circumstances would in fact create a doubt regarding the version as stated by the witness P.W.1 to be correct. Admittedly, there is no medical evidence to suggest any kind of rape for the reason of P.W.1 victim being sent to Doctor after six days. The evidence of P.W1 does not qualify to be a 'sterling witness'. Her evidence lacks consistency and during the course of cross-examination prevaricates about the alleged 7 incident that happened. The versions of P.W.1, PW4 and PW5 regarding the happenings on the day of incident are different.
8. In the said circumstances, the allegation that P.W.1 was raped cannot be believed in the back ground of several inconsistent statements made and the reasons given for the delay are found to be unacceptable and not probable in the normal circumstances of a rape case.
9. For the aforementioned reasons, the conviction recorded by the trial Court in SC No.145 of 2008 dated 20.01.2009 is set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand cancelled.
10. Accordingly, Criminal Appeal is allowed.
_________________ K.SURENDER, J Date:17.08.2022 kvs 8 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.59 of 2009 Dated:17.08.2022 kvs