HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.81 of 2022
JUDGMENT:
1. The appellant was convicted for the offence under Sections 376 & 323 of IPC and sentenced to undergo rigorous imprisonment for a period of seven years and six months, respectively vide judgment in Special Sessions Case No.5 of 2016, dated 21.02.2022 passed by the Special Sessions Judge for Fast Tracking the cases relating to Atrocities against Women-cum-VI Additional District and Sessions Judge, at Adilabad. Aggrieved by the same, present appeal is filed.
2. Briefly, the case of the victim/P.W.1 is that on 19.04.2011, she went to the cotton fields in the morning for plucking cotton. At about 4.00 p.m, while she was returning to her house, the appellant came in the opposite direction, caught hold of her and dragged into the cotton field of others. He kissed and bit all over her body. He also beat her indiscriminately. She fell on the ground and received injuries on the waist and other parts of her body. Appellant forcibly committed rape and left the place. She got up and after walking some distance, she fell on the road. Her condition was informed to her in-laws by other villagers. Thereafter, 2 she was taken to the hospital in an unconscious state. The acts of the accused were informed to the relatives and also the police. Ex.P29 complaint was lodged on the same day in the evening at 9.00 PM. The victim was sent to the Doctor/P.W.14, who examined her. Vaginal smears were taken and sent for analysis. Ex.P25 is the analysis report. In the said analysis, no semen or spermatozoa were detected on petty coat, saree or vaginal smears which were collected from P.W.1/victim. However, human semen and spermatozoa were detected on the undergarments of the accused.
3. Learned counsel appearing for the appellant would submit that false case was filed against the appellant since there were disputes regarding the path way. The narration of the victim is highly improbable since several villagers would be going by walk in the route and none of them noticed anything. Further, the medical evidence is also not supporting the case projected by the victim.
4. On the other hand, learned Public Prosecutor would submit that the evidence of P.W.1 is convincing and the evidence would be sufficient to record conviction. Accordingly, the version of the appellant that he has not committed rape cannot be believed.
5. Admittedly, the victim fell unconscious after the incident and she was taken to the hospital where she regained consciousness. 3 Victim did not take bath after the alleged incident. All the independent witnesses, P.Ws.3, 4, 5 and 6 turned hostile to the prosecution case. The independent panchas for seizure of clothes of victim, accused and scene of offence, who are P.Ws.8, 9, 10, 11, 12 and 13 all turned hostile to the prosecution case.
6. Admittedly, there are no injuries on private parts of the victim. No semen or foreign hairs were found. However, there are multiple abrasions on the body, bite marks on the breasts and contusion on the breasts. Bite marks were found on the right shoulder and multiple scratches on the cheek. It appears that there was physical assault and attempt was made to rape. However, no rape was committed. As seen from the injuries received, it is apparent that there was a struggle in between the appellant and the victim/P.W.1.
7. In the peculiar facts and circumstances of the present case, this Court deems it appropriate to set aside the conviction for the offence under Section 376 of IPC. However, the appellant is convicted under attempt to rape punishable under Section 376 r/w 511 of IPC and sentenced to undergo rigorous imprisonment for a period of three years. The conviction under Section 323 of IPC remains unaltered. Since the appellant is on bail, the trial Court 4 shall cause appearance of the accused and send him to prison to serve out remaining part of sentence.
8. Accordingly, the Criminal Appeal is partly allowed. Consequently, miscellaneous applications, if any pending, shall stand closed.
__________________ K.SURENDER, J Date: 22.09.2023.
kvs 5 HONOURABLE SRI JUSTICE K.SURENDER Criminal Appeal No.81 of 2022 Date: 22.09.2023 kvs