THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.343 OF 2019
JUDGMENT:
This criminal appeal under Section 374(2) Cr.P.C., is directed against the judgment dated 16.04.2019 in S.C.No.354 of 2013, on the file of the Special Sessions Judge for Fast Tracking Cases relating to Women-I-cum-X-Additional Metropolitan Sessions Judge, Hyderabad, whereby and whereunder the appellant-accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 376(2) (i) IPC and was also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 363 IPC. The accused was found not guilty for the offence punishable under Section 341 IPC and was acquitted.
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2. Heard the learned counsel for the appellant-accused and learned counsel for the respondent-State. Perused the material on record.
3. The case of the prosecution, in brief, is as follows:-
On 29.08.2012, P.W.1 lodged a complaint stating that on 28.08.2012 at about 09:00 pm., his daughter P.W.2, aged about 7 years, left the house to kirana shop to buy chocolate and did not return. After half an hour, the wife of P.W.1 started searching for her daughter and when she could not trace her, she informed the same to P.W.1 and he started searching for P.W.2 till midnight and about 01:00 pm., when P.W.2 came back to the house, P.W.1 and his wife enquired with the victim girl, who stated that when she was going to kirana shop, two persons came on bike and took her somewhere and attempted to commit rape on her. Later, P.W.1 went to police station and lodged a complaint-Ex.P-1.
4. Based on the said complaint, P.W.9, Sub-Inspector of Police, registered a case in Cr.No.204 of 2012 under Section 363, 376 read with 511 IPC and took up investigation. During the course of investigation, he examined P.Ws.1 to 4 and two others and 3 recorded their statements and later sent the victim girl to the hospital for medical examination. P.W.9 visited the scene of offence and there he examined and recorded the statements of circumstantial witnesses i.e., P.Ws.3, 4 and another. P.W.2 was examined by the doctor P.W.7 and she collected the material objects and forwarded the same to FSL for scientific analysis and basing on FSL report-Ex.P-4, P.W.7 gave opinion Ex.P-5 stating that sexual assault on the victim girl cannot be ruled out. P.W.9 along with his staff apprehended the accused on 05.09.2012 and produced him before P.W.10.
5. Later, P.W.10, the then Inspector of Police, examined and recorded the statements of P.W.5 and another and also the confessional statement of accused and pursuant thereto, he seized one motor cycle-M.O.5. Thereafter, the accused led them to scene of offence and there he seized beer bottle-M.O.1, voter identity card-M.O.3 and Grass-M.O.4 and also seized one glass-M.O.2 under seizure report-Ex.P-8 in the presence of P.W.5 and effected arrest of the accused and sent him to Osmania General Hospital for potency test. L.W.13, Dr.K.V.Ramesh examined the accused 4 and issued potency certificate-Ex.P-9. Later, the accused was remanded to judicial custody. P.W.8, the I-Additional Chief Metropolitan Magistrate, conducted test identification parade and recorded the statement of the victim giril-P.W.2 under Section 164 Cr.P.C. After completion of investigation and after collecting all the relevant documents, P.W.10 filed charge sheet against the accused for the offences punishable under Section 363, 341 and 376 IPC. The jurisdictional Magistrate has committed the case to the court of sessions.
6. The accused appeared before the trial court and pleaded not guilty to the charges framed under Sections 363, 341 and 376(2) (f) IPC and claimed to be tried.
7. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 10 and marked Exs.P-1 to P-9. None was examined on behalf of the defence, but Ex.D-1 was marked.
8. On a consideration of the evidence available on record, the learned Sessions Judge found the accused guilty of the above offences and convicted him for the same and imposed sentences as 5 stated supra. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused.
9. The learned counsel for the appellant submits that the victim girl P.W.2 did not identify the accused and she stated that she identified the accused at the request of police and she also stated that one person took per on a motorcycle and another person dropped her and when the victim girl stated two versions and identifying the accused for the first time, her evidence cannot be believed. The evidence of P.W.1 also involves improvements and contradictions and his evidence also cannot be believed. The prosecution failed to connect the accused with the alleged offence and the conviction and sentence imposed by the trial court is not sustainable in law and prayed to set aside the judgment of the trial court and acquit the accused.
10. Learned Assistant Public Prosecutor submits that the evidence of the victim girl-P.W.2 is cogent and convincing and she identified the accused who committed sexual assault on her and her evidence is corroborated by the medical evidence of P.W.7 and 6 the prosecution has proved the guilt of the accused for the offences charged and the trial court has rightly convicted the accused.
11. Having regard to the respective submissions of the learned counsel for the parties, the point that arises for consideration is - whether the judgment of the trial court is sustainable?
12. It is the evidence of the victim girl P.W.2 that on the day of incident, her mother gave her money to purchase chocolates and she went to kirana shop around 08:00 pm. The accused came near to her and offered her chocolates and took her on his motorcycle to a place which was like forest, there the accused removed her clothes and laid down on her. Thereafter, he took her on motorcycle and left her at her house and went away. She informed the same to her parents. On the next date morning, her parents lodged a complaint to the police and she was referred to hospital for medical examination. Interestingly, in the cross-examination, she stated that one person took her on motorcycle and another person took her on motorcycle and another person dropped her on motorcycle. She identified the accused in the presence of the learned Magistrate and her statement was also recorded 7 by police. She also stated that she could not identify him in the police station, but she identified him at the jail, and after six years she again identified the accused.
13. P.W.1 is the father of the victim girl and he deposed that on the day of incident, his daughter went to kirana shop to purchase chocolate at 07:30 pm and did not return and when he along with his wife were sitting in front of the house, one person dropped their daughter on a motorbike in their street and went away. His daughter disclosed about the sexual assault on her body and the injuries were bleeding. Ex.P-1 is the complaint given by him to police. The evidence of P.W.1 is relevant only to the extent of what the victim girl has furnished information. It appears from the evidence of P.Ws.1 and 2 that she was aged between 6 to 7 years at the time of incident.
14. P.W.7 is the doctor who examined the victim girl P.W.2 and she gave preliminary examination certificate- Ex.P-3 and final opinion-ExP-5. She deposed about the contents of Ex.P-5 stating that she examined P.W.2 and found abrasions all over back, waist, shoulder and wrist. On her local examination, she found 8 that hymen was not in tact and her introitus was congested, raw and inflamed. There was no evidence of tears and bleeding. She collected smears and swabs of the victim girl and handed over them to police for the purpose of chemical analysis. After receiving the FSL report, she issued final opinion stating that sexual assault on P.W.2 cannot be ruled out.
15. P.Ws.3 and 4 are the circumstantial witnesses and according to P.W.3 on 28.08.2012, around 08:30 pm, he went to kirana shop and noticed the accused giving one rose flower and Rs.20/- to his granddaughter and took her close to him and she came to him crying and the accused had disclosed his identity and stated that he is staying in the same basti and he asked him to leave the place. On the next day, he came to know that the accused kidnapped the victim girl. Similarly, P.W.4 also deposed that he saw the accused giving chocolates, flowers and money to small children who were present in the baraath at about 09:00 pm on the day of incident. Then he along with L.W.6 enquired with the accused, who showed his identity proof and informed them that he lives in the same basti and on the next day morning, they came to know that the accused 9 kidnapped P.W.2 and committed rape on her. The evidence of P.Ws.3 and 4 do not specifically show that the accused kidnapped P.W.2 at the time when they interacted with the accused. It only shows the presence of the accused near kirana shop, offering chocolates to the children.
16. The prosecution case is that the accused called P.W.5 on the date of incident around 02:30 pm and both of them went to Madhura Bar and had beer and P.W.5 also called his friend Naresh. Around 07:10 pm, they came out from the bar and dropped the accused at Kishnbagh and he and Naresh went to their house. The evidence of P.W.5 shows that he has got acquaintance with the accused, but nothing material is stated about the alleged incident.
17. The crucial point to be considered is regarding the identity of the accused by the victim girl. It appears from the evidence of P.W.2 that she identified the accused in the jail, but in the police station, she did not identify him. It is not in dispute that the prosecution has got conducted the test identification parade through the I-Additional Chief Metropolitan Magistrate-P.W.8. The TI parade proceedings and the evidence of P.W.8 prove the 10 fact that P.W.2 identified the accused in the presence of the learned Magistrate. Though P.W.2 in her cross examination stated that one person took her on motorcycle and another person dropped her on motorcycle, but her evidence is to the effect that she identified the accused only in the jail and she specifically stated that after six years again she identified the accused. Keeping in view the fact that the victim girl was aged 7 years at the time of offence and her identifying the accused in the presence of the learned Magistrate in the TI parade and the subsequent identification in the court is sufficient to believe that the accused is the person who had committed sexual assault on her.
18. The trial court, after taking into consideration the evidence of P.W.2 and the medical evidence of P.W.7, found that the accused had committed sexual assault on P.W.2. The learned counsel for the appellant-accused submits that the accused has not committed any offence, as alleged by the prosecution and the evidence of the medical officer, who examined the victim girl in cross-examination, stated that rupture of hymen will not always happen by sexual intercourse, however, from the opinion of 11 P.W.7, based on FSL report, concluded that the accused did commit rape on the victim girl-P.W.2.
19. Coming to the evidence of the victim girl (P.W.2), she deposed that when she went to kirana shop, there the accused offered her chocolates and took her on his motorcycle to a place which was like forest. There, the accused removed her clothes and laid down on her. When she started crying, he beat and threatened her and later dropped in her street on a motorcycle. However, the evidence of P.W.7 shows that she found abrasions all over back, waist, shoulder and wrist of the victim girl and she found that her hymen was not in tact and her introitus was congested, raw and inflamed. In cross-examination, P.W.7 stated that the rupture of hymen will not always happened by sexual intercourse.
20. Ex.P-4-FSL report shows that semen and spermatozoa are not detected. As per the explanation to Section 375 IPC, mere penetration constitutes the offence of rape. The crucial point to be considered is whether there is cogent evidence to believe the possibility of penetration in this case. The accused was referred to 12 doctor for examination and Ex.P-9 is the medical certificate issued by Dr.K.V.Ramesh, Assistant Professor, Department of Forensic Medicine, Osmania Medical College, Hyderabad. The age of the accused is shown as 31 years and the doctor gave opinion that there is nothing to suggest that the individual examined is not capable of performing the act of sexual intercourse, whereas the victim girl- P.W.2 was a child aged 6 to 7 years as per the evidence of her father, P.W.1.
21. P.W.7, the doctor who examined the victim girl-P.W.2, stated that there was no evidence of tears and bleeding and she admitted that rupture of hymen will not happen always by sexual intercourse. In case of penetration, P.W.2 would have sustained more ruptures on her genitalia. In the absence of violent injuries on the genitalia of P.W.2, I am of the opinion that no penetration had taken place. P.W.7 was not examined on the aspect whether P.W.2's vagina admits even a finger. If really there was any penetration, there would have been profused bleeding from P.W.2's introitus. P.W.7 stated that she found abrasions all over back, waist, shoulder and wrist of the victim girl and the same 13 shows that an attempt was made by the accused, but penetration did not take place and as a result there were no violent injuries on P.W.2's genitalia and in the absence of the same, this court has to necessarily conclude that there was only an attempt on the part of the accused to commit rape on P.W.2 by lying on her and made attempts for penetration and as such there were abrasions on the body of P.W.2.
22. The trial court did not examine the medical evidence Exs.P-3 to P-5 thoroughly and based on its findings on the superficial evidence of P.W.7, medical officer. The medical officer is not expected to give a finding whether there was rape or not; but the medical officer has to give opinion whether there was sexual intercourse or whether there was possibility of sexual intercourse. Ultimately, basing on such evidence of the medical officer, it is for the court to give a finding whether there was any 'rape' as defined in Section 375 IPC, after considering the oral, circumstantial and medical evidence on record.
23. In view of the above discussion, I am of the opinion that there was no accomplished rape and the evidence of the 14 prosecution can be safely accepted that it is a clear case of attempt to commit rape on P.W.2 by the accused. Therefore, I find the appellant-accused though not guilty of the offence under Section 376 (2)(i) IPC, but he is found guilty of the offence under Section 376(2)(i) read with Section 511 IPC, which is proved beyond reasonable doubt.
24. Coming to the offence under Section 366 IPC, the evidence of P.W.2 is cogent and trustworthy that the accused had taken P.W.2 on his motorcycle to an isolated place and committed the alleged offence and the ingredients of offence of kidnapping are also proved by the prosecution beyond all reasonable doubt. The offence under Section 376(2) (i) IPC is punishment with rigorous imprisonment which shall not be less than for a term of 10 years, but which may also extend for life and shall also be liable to fine. The proviso to Section 376 IPC indicates that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of rigorous imprisonment of either description for a term which shall not be less than 10 years. 15
25. Section 511 IPC reads as follows:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
According to the above section, half of the punishment prescribed for the offence under Section 376 IPC can be imposed.
26. On a careful scrutiny of prosecution evidence, as discussed above, I am of the opinion that the ends of justice would be met if the accused is sentenced to undergo rigorous imprisonment for a period of five years in addition to payment of fine of Rs.2,000/- imposed by the trial court. Apart from that, the conviction of the accused for the offence under Section 366 IPC and sentence of rigorous imprisonment for a period of seven years is modified to that of five years in addition to the fine already imposed. 16
27. In the result, the appeal is allowed-in-part. The conviction of the appellant-accused for the offence under Section 376 (2) (i) IPC and sentence of rigorous imprisonment for a period of ten years is set aside. However, the appellant-accused is convicted for the offence punishable under Section 376(2)(i) read with Section 511 IPC for attempting to commit rape on the victim girl (P.W.2) and is sentenced to undergo rigorous imprisonment for a period of five years. Further, the conviction and sentence of rigorous imprisonment for seven years imposed for the offence punishable under Section 366 IPC is modified to that of rigorous imprisonment for five years. The fine amounts are confirmed. Both the sentences shall run concurrently.
28. Miscellaneous petitions, if any, pending shall stand closed.
_______________________ A.SANTHOSH REDDY, J 20.09.2022 Lrkm