HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.902 & 955 OF 2009
COMMON JUDGMENT:
1.
Since both the appeals arising out of S.C.No.49 of 2009, dated 20.07.2009, they are being heard together and disposed off by way of this Common Judgment.
2. Criminal Appeal No.902 of 2009 is preferred by A2, and Criminal Appeal No.955 of 2009 is preferred by A1. A1 was convicted and sentenced to undergo seven years rigorous imprisonment under Section 376 of IPC, further convicted and sentenced to undergo rigorous imprisonment for a period of six months under Sections 342 and 506 of IPC under each counts. A2 was convicted for the offence under Section 376 r/w 109 IPC and also under Section 342 IPC and sentenced to undergo rigorous imprisonment for a period of six months under each count.
3. The case of the prosecution is that the victim P.W.1 took an amount of Rs.22,000/- which was saved by her mother and also Rs.3,000/- which was saved by her by doing labour work and came down to Hyderabad on 21.06.2008. No one was 2 informed in the house at the village about her visit to Hyderabad. After she got down at Hyderabad, she stayed for three days in the house of P.W.3 and when P.W.3 asked P.W.1 to return to her village, she started from the house of P.W.3. While going, A1 and A2 met her. A1 took P.W.1 to the house of A2 and after A1 gave food to P.W.1, A2 went away by bolting the door from outside. After A1 and P.W.1 had dinner, A1 asked PW.1 to undress and committed rape. A1 took an amount of Rs.22,000/- from her purse and went out and when A2 entered the room, P.W.1 escaped. From there she boarded the bus to her village at Kalwakurthy and informed her parents about the rape committed by A1 and also the theft of Rs.22,000/-. On 28.06.2008, P.W.2 and his brother brought P.W.1 to Hyderabad and lodged a complaint at Chadharghat Police Station. The said complaint Ex.P1 was written by one police constable.
4. Learned counsel for the 1st appellant submits that a false case is made up against him and such incident never occurred. The Doctor, P.W.9, who examined P.W.1 victim did 3 not find any injuries. The medical examination did not reveal that there is semen or spermatozoa nor foreign hair. Doctor further concluded that no recent sexual intercourse is evident. In the said circumstances, the very basis for the case against A1 is falsified.
5. Learned counsel for A2 submits that the trial Court has committed grave error in convicting A2 for the offence under Section 376 r/w 109 of IPC when there is no allegation that A2 had in any manner instigated or abetted A1. Even assuming that A2 bolted the door from outside, the same would not amount to abetting an offence of rape.
6. On the other hand, learned Assistant Public Prosecutor submits that not finding any semen or spermatozoa is for the reason of medical test of PW1 was conducted after the complaint being lodged, which was after four days of incident. However, when the evidence of victim girl-P.W.1 inspires confidence of the Court, the solitary testimony of PW1 would suffice to convict the appellants.
4
7. The case of the appellants is one of total denial and false implication. The police not recovering any amount from A1 will not have any adverse impact on the case of P.W.1.
8. There is nothing on record to suggest that where the incident had taken place, the premises belonged to A2. The owner of the house P.W.4 was examined, but he did not identify either A1 or A2. In the said circumstances, it cannot be said that for the reason of house owner not identifying either A1 or A2, the argument of the learned counsel for the appellants that very scene of offence has been fabricated, cannot be accepted.
9. From the facts of the case, it is A1 who had taken P.W.1 into the room. However, the evidence of Doctor, P.W.8 suggests that there is no recent sexual activity and no injuries were found on the body of P.W.1 and noting was seized from the scene of offence to suggest that offence of rape had been committed. However, from the evidence of P.W.1, A1 had removed his clothes in front of PW1 in the room and made 5 physical contact. For the said reason, A1 is punishable for the offence under Section 354 of IPC.
10. The prosecution examined the Doctor, P.W.9, who stated, on examination that he is of the opinion that the girl might be 15 to 16 years of age. The said opinion of P.W.9 is on the basis of dental examination and also radiological examination. The said opinion cannot be considered as final for the reason of there being no ossification test, which was conducted to determine the age. Even in the case of ossification test, the Hon'ble Supreme Court held that after ossification test, the age of the victim has to be considered by adding or subtracting 2 years. The ossification test cannot conclusively determine the age. In the present case, except general, physical, dental and radiological examination of P.W.1, there are no scientific tests which were conducted to determine the age. In the said circumstances, the opinion of P.W.9 that the victim was aged around 16 years cannot be taken into consideration.
11. As already discussed above, this Court finds that A1 is guilty of the offence under Section 354 of IPC and sentenced to 6 undergo rigorous imprisonment for a period of one year. Since there is no evidence to suggest that A2 had in any manner abetted the commission of offence by A1, A2 is liable to be acquitted and accordingly acquitted. The judicial custody of A1 shall set off under Section 428 of Cr.P.C.
12. In the result, Criminal Appeal No.955 of 2009 is partly allowed and Criminal Appeal No.902 of 2009 is allowed.
__________________ K.SURENDER, J Date: 26.08.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL Nos.902 and 955 OF 2009 Date: 26.08.2022.
kvs 8