Nadimimiti Srinivasa Rao Srinu vs The State Of A.P.
2021 Latest Caselaw 4744 AP

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR


            CRIMINAL APPEAL No.657 of 2009


JUDGMENT :

The Criminal Appeal is filed, against the conviction and

sentence imposed in Sessions Case No.86 of 2007, on the file

of Sessions Judge, Mahila Court, Vijayawada, wherein, the

sole accused was tried and convicted for the offence

punishable under Section 376 of Indian Penal Code, 1860

[for short, "I.P.C."] and sentenced to suffer Rigorous

Imprisonment for a period of seven (7) years and to pay fine

of Rs.1000/- and in default, to suffer Simple Imprisonment

for a period of three (3) months.

2. The substance of the charge against the accused is that

on 16.10.2005 at about 11.00 hours at M.R. Lakshmana Rao

Street, Bhimanavaripeta, Vijayawada, the accused said to

have committed rape on a minor girl, aged about 13 years

while she was moving in the compound.

3. The facts, as culled out from the prosecution

witnesses, are as under:

i) P.W.1 is the grandfather of the alleged victim, while

one Anasuyamma is his wife. The house, in which P.W.1 was

living consists of three portions. In one portion P.W.1 along

with P.W.2 and others live while one Achari resides in second

portion and the accused used to reside in the rear portion of

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the said house. P.W.2 the victim was affected with brain

tumour while she was six months of age, and since then she

has been staying in the house. When the alleged victim was

aged about 13 years, the incident in question is said to have

been taken place. On the said date i.e., on 16.10.2005 at

about 11.00 A.M., in the morning P.W.2 was not found in the

house. It is said that at about 7.00 A.M., when P.W.2 went

out to pass urine, the accused gave money to her and asked

her to give the same to her grandmother. At the same time,

the accused took her into his portion, closed her mouth,

removed her cloths and committed rape on her.

ii) P.W.1 along with his wife searched for her, but in

vain. At about 11.00 A.M., when they came near to the

portion of the house of the accused, noticed the accused

coming out of his house while P.W.2 came behind him

weeping. When asked as to what happened, P.W.2 is said to

have been informed that the accused took her into his

portion, closed her mouth and then committed rape on her.

The wife of P.W.1 took his granddaughter to the portion of

the house of P.W.5 and on examination, found bleeding from

her private parts which was informed to P.W.1. Thereafter,

P.W.1 along with his wife took their granddaughter to the

Police Station, where a report was lodged with P.W.8-Sub-

Inspector of Police. Ex.P1 is the said report. Basing on

which a case in Crime No.260 of 2005 came to be registered

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under Section 376 I.P.C. Ex.P9 is the F.I.R. Further

investigation in this case was taken up by P.W.9-Inspector of

Police, who on receipt of Ex.P9, secured P.Ws.1 and 2 and

recorded their statements. P.W.9 instructed P.W.8 to take

the injured to Government General Hospital, Vijayawada, for

medical examination. P.W.9 visited the scene of offence and

prepared an observation report of the offence which is

marked as Ex.P10. P.W.9 also prepared a rough sketch of

the scene, which is marked as Ex.P11. He examined P.Ws.5,

6 and others and recorded their statements.

iii) P.W.3-Assistant Professor, Siddardha Medical

College, examined P.W.2 on 16.10.2005 at 10.10 P.M., and

found no injuries on her body. On examination of private

parts, she found on the lower part of vaginal and on lower

part of L. Majora and left minora coated with white material.

Linear abrasion of about 0.4 cms was also noted. The Vagina

was admitting one finger with difficulty. Ex.P2 is the wound

certificate of P.W.2 issued by P.W.3.

iv) P.W.9 who continued with the investigation, arrested

the accused at Milk factory centre in Bhimanavaripeta,

Vijayawada on 17.10.2005 in the presence of P.W.7. On

interrogation, he confessed about the commission of offence.

Pursuant thereto lungi worn by him, at the time of

commission of the offence, was recovered, which is placed on

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record as M.O.4. Ex.P12 is the panchanama for the said

seizure.

4. After collecting all the necessary documents, PW.9 filed

a charge sheet, which was taken on file as P.R.C.No.42 of

2006 on the file of learned II Additional Chief Metropolitan

Magistrate Court, Vijayawada, for the offence punishable

under Section 376 of I.P.C.

5. On appearance of the accused, copies of the

documents, as required under Section 207 Cr.P.C., were

supplied to him. As the offence is triable by a Court of

Sessions, the case was committed to the Court of the

Sessions under Section 209 Cr.P.C., where charge, as

referred to earlier, came to be framed, read over and

explained to the accused in Telugu to which, he pleaded not

guilty and claimed to be tried.

6. To substantiate its case, the prosecution examined

P.Ws.1 to 10 and got marked Exs.P1 to P13 and M.Os.1 to 4.

Out of ten witnesses examined by the prosecution, P.W.7 did

not support the prosecution case and he was treated hostile

by the prosecution. After the closure of the Prosecution

evidence, the accused was examined under Section 313

Cr.P.C., with reference to the incriminating circumstances

appearing against him in the evidence of the prosecution

witnesses to which he denied. But, however, he did not

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adduce any oral or documentary evidence in support of his

case. Relying upon the evidence of P.Ws.1, 2 and 5 coupled

with the medical evidence of the doctor, who examined the

injured, the learned Sessions Judge convicted the accused.

Challenging the same, the present appeal came to be filed.

7. Sri V. Venugopala Rao, learned counsel appearing for

the appellant, mainly submits that there is absolutely no

evidence on record to connect the accused with the crime.

According to him, the admissions elicited in the cross-

examination of P.W.2 are sufficient to throw out the

prosecution case as unreliable.

8. On the other hand, learned Public Prosecutor submits

that when the evidence in chief-examination of P.W.2 inspires

confidence, the same can be acted upon to base a conviction.

In other words, his arguments appears to be that the

answers elicited in the cross-examination do not go to the

root of the matter and as such the conviction and sentence

imposed by the trial Court requires no interference.

9. As seen from the record, the entire case rests on the

evidence of P.W.2, who was aged about 18 years at the time

of giving evidence before the Court. It is no doubt true that

she was a minor on the date of incident, but the question is

whether there was any incident at all and if so, whether there

is any evidence to connect the accused with the crime.

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10. The evidence of P.W.1, who is the grandfather of P.W.2,

would disclose that at about 7.00 A.M., P.W.2 the victim went

out and thereafter at about 11.00 A.M., while he along with

his wife were searching for P.W.2, noticed P.W.2 coming out

of the house of the accused. When examined, she stated that

the accused has committed rape on her. Immediately, she

was taken to that portion of the house where P.W.5 was

residing. Though, the case of the prosecution is to the effect

that they noticed bleeding from the private parts of the

victim, but the evidence of P.W.5 does not indicate the same.

As such, P.W.5 was declared hostile. Similar is the evidence

of P.W.6.

11. At this stage, it would be appropriate to extract the

evidence of P.W.9, who took up investigation from P.W.8 the

Police Officer, who registered the crime and investigate into

the matter. In the cross-examination, he admits that P.W.1

did not disclose the basic information before him when he

was examined during the course of investigation. It will be

useful to extract the same, which is as under:

"It is true that P.W.1 did not specifically state to me that the accused came out first from his portion and later P.W.2 was coming out by weeping and that his wife took P.W.2 to the house of Kamala Kumari, where P.W.2 was examined".

Similarly, P.W.6 also did not state in his earlier statements

about P.W.2 informing them the incident in question. It is

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useful to extract the same in the evidence of P.W.9, which is

as under:

"It is true that P.W.6 did not state to me that about making galata and the accused came out from his room and P.W.2 told him that the accused committed rape on her".

So also the evidence of P.W.10. It would be useful to extract

the same in the evidence of P.W.9, which is as under:

"It is true that P.W.10 did not state to me that P.W.2 went out from their house, saying that she was going to pass urine and P.W.2 stated to her that while she was returning after passing urine, the accused had shown money to her and that herself and P.W.5 Kamala Kumari took her to their house and found blood on her private part".

12. From the above, it is clear that none of them stated in

their earlier statements the material facts going to the root of

the matter. Further, the grandmother of P.W.2, who took her

to the house of P.W.5 for examination of her body and

injuries, if any on the private parts was not examined. When

once the evidence of P.Ws.5 and 6 does not disclose any

bleeding from the private parts and in the absence of any

other evidence on record, more particularly, the persons who

were present when she was examined in the house of P.W.5,

a doubt arise as to whether there was any bleeding, more so,

in the absence of any injuries on the body of the victim.

Infact, P.W.3 the doctor in her cross-examination

categorically admits that in view of psychiatric problem, the

victim cannot narrate properly. She further admits that

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there was no elasticity of vagina. Though, the grandmother of

the victim is said to have accompanied to the doctor, for the

reasons best known that she was also not examined.

13. At this stage, it would be appropriate to refer to the

evidence of P.W.2, who is the victim in this case. As seen

from the record, initially, the accused did not choose to

cross-examine the witness, and hence, it was recorded as

'nil'. Subsequently, an application for recall of P.W.2 was

allowed on 30.11.2007. In the cross-examination, P.W.2

states as under:

"From my mother's house, I went to P.S. As stated by my grandfather, I stated to the Police. What my grandfather stated to me, I stated the same before the Court. It is true to suggest that what I stated in my chief examination, is false and that the accused did not commit anything against me and did not commit rape on me, and being tutored by my grandfather and my mother, I am deposing false".

14. From the answers elicited in the cross-examination of

P.W.2, it is clear that she has stated before the Court what

her grandfather asked her to state and she further states that

what she stated in her chief-examination is false and that the

accused did not commit any rape on her and being tutored

by her grandfather and her grandmother, she is deposing

false. Strangely, the learned Public Prosecutor did not

declare the witness hostile at that stage but allowed the

answers elicited to remain on record without rebutting the

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same. These admissions elicited from the evidence of P.W.2

throw any amount of doubt as to the version of prosecution,

more particularly, the act of the accused is committing rape

on P.W.2. Though, the learned Public Prosecutor tried to

contend that the evidence of chief-examination of P.W.2 can

be accepted, but, as observed earlier, P.W.2 the victim in her

cross-examination categorically stated that at the instance of

her grandfather and her grandmother she gave a false

version. Apart from that, if really there was a rape on

P.W.2/victim as narrated by prosecution there would have

been some injuries on her body, which are not found.

15. It is true that the evidence of P.W.2, if found reliable

can be made the basis to convict the accused even without

any corroboration from any quarters. But, the admissions in

the evidence of P.W.2, totally destroys her version in chief.

The Public Prosecutor ought to have been more vigilant at

that point of time. He allowed these admissions to remain on

record without cross-examined her on these aspects. One of

the circumstances which requires to be noted is that P.W.2

said to have left the house at 7.00 A.M. in the morning and

P.W.1 claims to have noticed her coming out from the house

of the accused at 11.00 A.M. i.e., nearly four hours later. If

really, she was raped as alleged by the prosecution which

was at 11.00 A.M., as per the Charge Sheet, the same would

again falsify the prosecution case. Since one does not know

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as to what happened from 7.00 A.M. to 11.00 A.M. When

once the evidence of P.W.2 throws suspicion on the

prosecution case and in the absence of any other evidence

connecting the accused with the crime, this Court is of the

opinion that benefit of doubt can be extended to the accused.

16. Accordingly, the appeal is allowed. The conviction and

sentence recorded against the appellant/accused in the

Judgment dated 03.10.2008, in Sessions Case No.86 of 2007

on the file learned Sessions Judge, Mahila Court, Vijayawada

for the offence punishable under Section 376 of I.P.C. is set

aside and he is acquitted for the said offence. Consequently,

the appellant/accused shall be set at liberty forthwith, if he

is not required in any other case or crime. The fine amount,

if any, paid by the appellant/accused shall be refunded to

him.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

Date:22.11.2021

MS

CPK, J Crl.A.No.657 of 2009

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

CRIMINAL APPEAL NO.657 OF 2009

DATE:22.11.2021

MS