HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.606 OF 2009
JUDGMENT:
1. The appellant was found guilty of raping P.W.1/victim, aged around 13 years and sentenced to undergo rigorous imprisonment for a period of seven years vide judgment S.C No.11 of 2009 dated 03.06.2009 passed by the II Additional Metropolitan Sessions Judge, Hyderabad. Aggrieved by the same, present is filed.
2. The case of the prosecution is that P.W.1/victim girl did not go to school on 28.02.2008 due to fever and was sitting in front of her house. The appellant forcibly took her into the bathroom of one Raju, which is at a distance of 50 feet and undressed her. The appellant also opened his pant zip and forcibly put his penis into her vagina. Due to the forcible penetration, blood came out from her private part. After PW1 came out, she informed her parents, as such, complaint Ex.P1 was filed. The said complaint was filed at 6.00 p.m on 28.02.2008. P.W.1 was sent for medical examination. P.W.3, the Doctor examined the victim/P.W.1 and stated that 2 external injuries were not present. Doctor found hymen was torn, fresh tear, mild oozing present. However, sutures were not required. After receiving of FSL report, P.W.1 gage opinion that sexual intercourse could not be ruled out.
3. None appeared for the appellant for several adjournments.
4. Suspension of sentence was cancelled and it was directed to issue Non Bailable Warrant. The warrants were returned unserved as appellant was not found and a report was filed by the concerned police. Since the counsel on record did not appear continuously, legal aid counsel was appointed.
5. Learned legal aid counsel submits that P.W.1's version cannot be believed for the reason of P.W.1 being taken to a room, which was at a distance of 50 feet and there are no independent witnesses. Further, the medical certificate Ex.P4 shows that there were no injuries. The semen and spermatozoa were not detected for which reason, it cannot be held that P.W.1 was raped. Accordingly, prayed that the appellant be acquitted of the charge.
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6. Heard learned Assistant Public Prosecutor and perused the record.
7. As seen from the evidence on record, P.W.1 was sitting in front of her house when she was dragged to the nearby room where the appellant committed rape on the victim/P.W.1. Though the other witnesses P.Ws.4 and 5 turned hostile to the prosecution case, the said hostility has no bearing on the evidence of P.w.1. P.W.1 specifically narrated as to how the incident occurred. The said forcible penetration act of the appellant resulted in P.W.1 receiving injuries on hymen and fresh tear was found. Further, P.W.3, the Doctor also noticed mild oozing. In the said circumstances, when P.W.1 victim girl was examined by P.W.3 immediately after the complaint was lodged, having found the injuries which were received by P.W.1, P.W.3 gave opinion that sexual assault could not be ruled out.
8. The clothes of the appellant were seized. Not finding semen and spermatozoa on the clothes of the appellant will not have any bearing on the prosecution case being incorrect. 4 The evidence of P.W.1 cannot be doubted only for the reason of suggestion being made she had complained for the reason of the appellant scolding P.W.1 and others when they were playing in front of her house.
9. As already discussed, not finding any semen and spermatozoa on the wearing apparel of the victim, P.W.1 and the appellant, have no bearing when the evidence of P.W.1 is totally reliable. However, blood was found on the wearing apparel of P.W.1.
10. In the said circumstances, no grounds are made out to interfere with the order of conviction recorded by the trial Court in SC No.11 of 2009
11. Accordingly, Criminal Appeal is dismissed. The concerned Magistrate Court shall take steps to secure presence of appellant and send him to prison to serve out the remaining part of the sentence.
__________________ K.SURENDER, J Date: 13.09.2022 5 kvs HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.606 OF 2009 Date: 13.09.2022.
6kvs