Shaik Mahaboob Basha, vs The State Of A.P.,
2022 Latest Caselaw 9806 AP

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     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

            CRIMINAL APPEAL NO.457 OF 2007

JUDGMENT:-

     This is a Criminal Appeal filed by the appellant under

Section 374(1) of the Code of Criminal Procedure ("Cr.P.C." for

short), who was the accused in SC ST Sessions Case No.39 of

2006, on the file of Special Judge for SC & ST (POA) Act-cum-VI

Additional District and Sessions Judge, Kurnool (hereinafter will

be referred as "the learned Special Judge"), challenging the

judgment, dated 10.04.2007, whereunder the learned Special

Judge found the accused guilty of the offence under Section 376

of the Indian Penal Code ("I.P.C. for short) and convicted him

under Section 235(2) of Cr.P.C. and after questioning him about

the quantum of sentence, sentenced him to suffer rigorous

imprisonment for seven years and to pay fine of Rs.2,000/- in

default to suffer simple imprisonment for three months.      The

learned Special Judge further acquitted the accused under

Section 235(1) of Cr.P.C. insofar as the charge under Section

3(1)(xii) of SC ST (POA) Act.
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      2)    The parties to this Criminal Appeal will hereinafter

be referred to as described before the trial Court for the sake of

the convenience.

      3)    The said SC ST Sessions Case No.39 of 2006 arose

out of the committal order in P.R.C.No.29 of 2005, on the file of

Judicial First Class Magistrate, Nandyal.

      4)    The case of the prosecution, in nutshell, according to

the contents of the charge sheet before the Court below is as

follows:

      (i) The prosecutrix i.e., the victim girl is a Scheduled Tribe

woman and she used to reside at Sugalimetta village along with

her husband. The victim and her husband used to live by selling

milk to Nandi Milk Dairy farm in Panyam. Daily the victim lady

used to go to Panyam from her village for supplying the milk to

Milk Dairy farm.   As usually, on 14.01.2002 at 6-00 P.M., the

victim lady left for Panyam by walk. After supplying the milk to

the Nandi Dairy at 7-30 P.M., she came back to the check post.

So that she can meet her co-villagers to go along with them by

walk to her village. As no villagers moved in that direction, the

prosecutrix started going by walk to her village. At about 8-30

P.M., after the victim lady crossed the canal bridge, the accused

came on his motorcycle and requested her to stop for a while.
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The accused parked the motorcycle by the side of the N.H. road

and got down from the vehicle. Thereafter, the accused caught

hold the hand of the victim and forcibly dragged her into the

nearby cotton and red gram fields of Godugunethi Eeramma and

there the accused made her lay down and committed rape on

her twice.     Being afraid that the accused may kill her, the

prosecutrix did not utter any word and later at 10-00 P.M., she

requested the accused to leave her on his motorcycle at

Sugalimetta Bus stop. The accused brought the victim lady on

his motorcycle to Sugalimetta bus stop where the husband and

mother of the victim lady were waiting for her. Soon after she

got down from the motorcycle, the victim lady cried out to her

husband and mother to catch the accused, as he committed

rape on her.    The accused escaped on his motorcycle towards

Panyam. Thereafter, she narrated the incident to her husband

and mother.      As it was late in the night, on the next day

morning, the victim lady accompanied by her husband and

mother, went to Panyam Police Station and where P.W.1 gave a

statement to the Sub-Inspector of Police, who registered a case

in Crime No.9 of 2002 under Section 376 of I.P.C. and under

Section 3(1)(xii) of SC ST (POA) Act, 1989.
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        (ii)   The   Sub-Divisional       Police   Officer    took    up    the

investigation on 15.01.2002. The investigating officer seized the

clothes of the victim under cover of panchanama.                             On

16.01.2002

at 11-00 A.M., the investigating officer led by the

victim and her husband, visited the scene of offence in the

presence of mediators. They observed the scene of offence and

seized broken bangle pieces and silver leg chain of the victim

lady. On 29.01.2002 at 1-00 P.M., the police arrested the

accused. The Medical Officer, who examined the prosecutrix, on

the basis of the report received from RFSL, has opined that

P.W.1 was subjected to sexual intercourse. Therefore, the

charge sheet was laid against the accused under Section 376 of

I.P.C. for committing the rape on the victim lady and also under

Section 3(1)(xii) of SC ST (POA) Act, 1989 for having sexually

exploited the victim lady.

5) The learned Judicial Magistrate of First Class,

Nandyal, took cognizance under Section 376 of I.P.C. and

Section 3(1)(xii) of SC ST (POA) Act, 1989 and after complying

the necessary formalities and after appearance of the accused,

committed the case to the Special Judge for the purpose of trial.

6) After appearance of the accused before the trial

Court, the learned Special Judge framed charge under Section

376 of I.P.C. and another charge under Section 3(1)(xii) of SC

ST (POA) Act, 1989 and explained the same to the accused in

Telugu, for which he pleaded not guilty and claimed to be tried.

7) In order to establish the guilt of the accused before

the learned Special Judge, on behalf of the prosecution, P.Ws.1

to 11 were examined and Exs.P.1 to P.12 were marked and

further M.Os.1 to 6 were marked. After closure of the evidence

of the prosecution, accused was examined under Section 313 of

Cr.P.C. with reference to incriminating circumstances appearing

in the evidence let in by the prosecution, for which he denied

the incriminating circumstances and stated that he did not

commit any offence and he has defence witnesses. But,

accused did not examine any defence witnesses.

8) The learned Special Judge on hearing both sides and

on considering the evidence on record found the accused guilty

of the charge under Section 376 of I.P.C. and convicted him

under Section 235(2) of Cr.P.C. and after questioning him about

the quantum of sentence, sentenced him as mentioned above.

At the same time, the learned Special Judge, found the accused

not guilty of the charge under Section 3(1)(xii) of SC ST (POA)

Act, 1989 and acquitted him under Section 235(1) of Cr.P.C.

Aggrieved by the said conviction, the unsuccessful accused filed

the present Criminal Appeal questioning the judgment of the

learned Special Judge.

9) Now, in deciding the present Criminal Appeal, the

point that arises for consideration is whether the prosecution

has proved beyond reasonable doubt before the Court below

that the accused committed rape of the victim girl on

14.01.2002?

Point:-

10) Before going to appreciate the contentions, first this

Court would like to place on record certain facts.

11) The accused having filed the appeal against the

sentence imposed by the learned Special Judge, got suspension

of sentence suspended vide order, dated 23.04.2007 before the

High Court of Andhra Pradesh at Hyderabad. Later, as the

accused was not pursuing the appeal, the High Court of Andhra

Pradesh at Hyderabad on 19.09.2016 cancelled the suspension

of sentence passed by the Court on 23.04.2007 and issued Non-

Bailable Warrant against the appellant. The said Non-Bailable

Warrant was pending since long. Ultimately, this Court

persuaded the police to execute Non-Bailable Warrant. On

21.11.2022, the Superintendent of Police, Nandyal, caused

production of the appellant in execution of Non-Bailable Warrant

and having regard to the overall facts and circumstances, this

Court directed the Registrar (Judicial) to entrust the conviction

warrant prepared by the trial Court along with the appellant

pending disposal of the appeal and later, it was brought to the

notice of this Court that the conviction warrant was not available

in the bundle, as such, the appellant was directed to be

produced before the learned Special Judge to issue the

conviction warrant and accordingly, he was produced before the

learned Special Judge, who entrusted the conviction warrant.

So, these are all the circumstances, in which now the appellant

is in prison during the pendency of this appeal.

12) Sri T.S. Rayalu, learned counsel, is appointed under

the State Brief to pursue this appeal.

13) Sri T.S. Rayalu, learned State Brief counsel

appearing for the appellant, would contend that the learned

Special Judge convicted the accused basing on the solitary

evidence of P.W.1 and her evidence was not corroborated by

any source. P.Ws.2 and 3 were not the direct witnesses to the

occurrence. The evidence on record would reveal that though

the accused was alleged to have committed rape on the victim,

but, there was no resistance from her part. There were no

marks of violence on the person of P.W.1, the victim. Her

evidence is that after the commission of the offence, she

requested the accused to drop her at her village on his

motorcycle and accused did so. If really the allegations of rape

are true, victim would not have requested the accused to drop

her at her village and accused would not have brought P.W.1 on

his motorcycle. The learned Special Judge convicted the

accused basing on assumptions and presumptions, as such, it is

a fit case to allow the appeal by setting aside the conviction and

sentence imposed against the appellant.

14) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

there is no need for corroboration of the evidence of P.W.1 as

she was the victim of rape and her evidence before the Court

below is convincing and she had no reason to depose false

against the accused. P.W.1 explained the reasons as to why she

requested the accused to drop her at her village. The

prosecution adduced cogent evidence before the Court below in

terms of oral as well as medical evidence and the learned

Special Judge rightly considered the evidence on record and

gave sound reasons to convict the accused, as such, appeal is

liable to be dismissed.

15) The sum and substance of the case of the

prosecution is that on the fateful day i.e., on 14.01.2002 from

8-30 P.M. to 10-00 P.M., the accused committed rape on P.W.1

in the fields of Gudugunethi Veeramma which was located by the

side of N.H.8 between Panyam village and Sugalimetta village.

P.W.1 is no other than the victim. P.W.2 is the husband of the

victim. P.W.3 is the mother of the victim. P.W.4 is the so-called

mediator for the seizure of M.Os.1 and 2 from the possession of

the victim under the cover of Ex.P.3 panchanama. P.W.5 is the

mahazar witness for the observation of the scene of offence

shown by the victim and for recover of certain material objects

i.e., M.Os.3 and 4. P.Ws.6 and 7 are the so-called mahazar

witnesses for the recovery of M.Os.5 and 6 i.e., clothes of the

accused by the police. P.W.8 is the person, who examined the

accused and issued potency certificate. P.W.9 is the then Sub-

Divisional Police Officer to speak about the investigation

conducted by him. P.W.10 is the then Sub-Inspector of Police to

speak to the fact that victim gave Ex.P.1 statement, as such, he

registered it as a crime and to speak about the part of the

investigation done by him till Sub-Divisional Police Officer

intervened into picture. P.W.11 is the then Civil Assistant

Surgeon at District Hospital, Nandyal, who examined the victim

and gave the opinion.

16) Before going to appreciate the evidence of the

prosecution witnesses, it is pertinent to look into the substance

of the statement of P.W.1 i.e., Ex.P.1. So, Ex.P.1 is the

statement of the victim recorded by the concerned Sub-

Inspector of Police on 15.01.2002. It reads in substance that

she is resident of Sugalimetta. Her marriage was performed

about 7 years back with one Sankara Naik, S/o Govindu Naik.

They used to stay at Sugalimetta. They used to live by doing

coolie work and by selling milk. She had two male children. On

14.01.2002 at 6-00 P.M., she took milk to Nandi Dairy at

Panyam from her village by walk and while returning at 7-30

P.M., she waited at check-post to see whether anybody would

come to the village. As none were available, she started and

after passing the canal bridge, accused, who was tractor driver,

came on his motorcycle and stopped there and asked the victim

to stop, caught hold of her hand and dragged her into cotton

crop field and committed rape on her. Though she raised

protests, he committed rape on second time. She feared that

she would be killed, as such, she kept quite. After that, she

requested the accused, as she was alone, to drop her at

Sugalimetta. Hence, the accused took her on his motorcycle till

the bus stop of Sugalimetta and she found that her husband was

waiting for her. After seeing her husband, she asked her

husband to catch hold of the accused on the ground that he

committed rape on her and then the accused absconded. As it

was night, they could not come to the station immediately and

after discussing with the caste elders, they came to the police

station. This is the substance of the contents of Ex.P.1.

17) Now, it is pertinent to refer here the testimony of

P.W.1, who is the prosecutrix. Her evidence as regards the

offence in question in substance is that on one day in January,

2002 at 6-00 P.M. she went to Nandi Dairy farm at Panyam for

selling milk by walk from her village. The distance is three

kilometers. At 7-00 P.M. after supplying milk at Dairy farm, she

came to check-post at Panyam to go to Sugalimetta. She

wanted to go to village along with other villagers, but, nobody

was coming. Hence, she alone started by walk. After passing

one kilometer and after passing the canal bridge, accused came

behind her on his motorcycle and asked her to stop while. Then

the accused caught hold of her, forcibly dragged her into cotton

field by the side of road. Accused made her to lay down in the

field and committed rape by caught hold of her legs. Twice he

committed rape on her. When she tried to run away after the

first sexual intercourse, accused chased her, caught hold of her

and committed rape on her on second time. He pressed her

hands and legs tightly to the ground while committing rape after

lifting her clothes. At her request, accused took her on his

motorcycle to her Thanda where her husband and mother were

waiting on the road. On seeing them, she got down from the

motorcycle of the accused and informed about the incident to

them. Then the accused escaped on his motorcycle. By then,

time was 10-00 P.M. Accused committed rape at about 8-00

P.M. Due to fear and as it was night, they did not go to the

police station. On the next day, after consulting their caste

elders, she and her husband went to Panyam Police Station and

she gave a statement, which is Ex.P.1. Police seized her wearing

apparels which she was wearing at the time of the incident.

M.O.1 is the polyester flower designed saree in red colour.

M.O.2 is the inner langa. Police seized M.Os.1 and 2 from her at

the police station. M.O.3 is her silver anklet chain which she was

lost at the place of incident. She identified M.O.3 when it was

shown to her. She shown the place of incident to the police and

then police seized M.O.3 and pieces of her bangles which are

M.O.4. She was referred to the Doctor by the police. She knows

the accused as a tractor driver even prior to the incident.

Accused was wearing pant and shirt at the time of offence.

18) As seen from the evidence of P.W.1, it has

corroboration from the contents of Ex.P.1. She fairly admitted

in cross examination that in Ex.P.1 statement, she omitted to

state that the accused pressed her hands and legs to the ground

and committed rape on her twice and when she was running

away after first sexual intercourse, he chased her and again

committed rape. It is to be noticed that by improving the

version that accused pressed her hands and legs to the ground

while committing rape on her twice she did not change the

substratum of the case of the prosecution. Ex.P.1 contained a

whisper that accused committed rape on P.W.1 twice. So, she

spoken to the said fact. What she deposed additionally is that

while committing rape, accused pressed her hands and legs

tightly to the ground. It cannot be taken as a material omission

which affects the case of the prosecution in any way.

19) Now, I would like to further discuss about the

veracity of the evidence of P.W.1 by looking into the answers

spoken in the cross examination. She deposed in cross

examination that she might have stayed at Check Post waiting

for other villagers for about five minutes. Though she waited

five minutes, none of their villagers meet her on the way. By

then, there were no men at the check post when she waited

there. She got feared when the accused asked her to stop.

There were no lights at the place of incident and it was dark.

She did not talk with the accused or the accused did not talk

with her prior to the incident, but, she knows him while he was

driving his tractor in their village locality. During further cross

examination she denied that the accused did not catch hold of

her and did not drag her into the cotton field and did not commit

rape on her. P.W.1 denied that accused did not take her on his

motorcycle to the village and she filed false case. She denied a

suggestion that their villagers were in the habit of file rape cases

against the innocent people for the purpose of claiming

compensation from the Government. She does not know

whether the Government gave any compensation and house site

to the victims particularly with regard to the rape of tribal

women.

20) The defence theory that the villagers of P.W.1 used

to file false cases against innocent people for claiming

compensation is nothing but a baseless suggestion. Accused

wanted to blame the all villagers in wholesale and it is nothing

but a baseless defence on the part of the accused. If the

defence of the accused is true, he would have agitated about the

names of so-called villagers before P.W.1, who were falsely

booked under rape cases by the villagers and he would have

agitated about the names of the villagers, who filed the false

cases against the innocent villagers. So, it is not a case where

P.W.1 had any questionable antecedents. The answers in the

cross examination goes to prove that as being the woman and

as it was a night, she waited at check post to see as to whether

any other villagers were going to and as none were present, she

ventured to start to reach her village. So, the answers that are

elicited from P.W.1 goes to prove that she decided to go to the

village alone as nobody were there to accompany her. It is

rather common like P.W.1, who was a rustic woman that after

returning to home from a town, naturally they would wait for

some other villagers especially when it was night and the

distance was about three kilometers. I do not find any un-

naturality in the evidence of P.W.1 in this regard. Accused had

prior acquaintance with P.W.1 which is not denied. So, in such

circumstances, it is quite natural that P.W.1 is aware of the

name of the accused, as such, she mentioned the name of the

accused in her Ex.P.1 complaint.

21) As seen from the evidence of P.W.2, he is no other

than the husband of P.W.1, who testified to the fact that the

incident was happened on 14.01.2002. P.W.1 went to Panyam

for selling the milk to Dairy. She started at the house at 6-00

P.M. As she did not return back till 10-00 P.M., he and his

mother-in-law were waiting for P.W.1 at the bus stop on the

Highway at 10-00 P.M. She came on the motorcycle of the

accused. Soon after got down from the motorcycle, she cried

and asked him to catch hold of the accused as he committed

rape on her. Then, the accused escaped on his motorcycle.

When he enquired P.W.1 as to what happened, she informed

him that while she was coming from Panyam after passing Canal

Bridge, accused came on his motorcycle, took her into the

cotton field and committed rape. As it was night, they went to

their house and informed the incident to their caste elders and

on the next day morning at about 9-00 A.M., they took P.W.1 to

the Panyam Police Station. Police recorded the statement from

P.W.1 and referred her to the hospital.

22) Coming to the evidence of P.W.3, the mother of

P.W.1, she corroborated the evidence of P.W.2. So, her

evidence is that in the month of January, 2002 on one day,

P.W.1 went to Panyam to sell the milk at 7-00 P.M. As she did

not return to the village within time, she and P.W.2 were waiting

for P.W.1. At late hours P.W.1 came on the motorcycle of the

accused. On seeing them, she got down from the motorcycle

and told them that the accused committed rape on her.

Accused escaped on his motorcycle. P.W.1 informed to them

that while she was coming by walk on the way, the accused took

her into the cotton field and committed rape. On the next day,

they took P.W.1 to the hospital.

23) So, the evidence of P.W.1 that after reaching to the

village and on seeing her husband and mother, she revealed to

them that the accused committed rape on her is corroborated by

the evidence of P.Ws.2 and 3. The presence of the accused on

his motorcycle along with P.W.1 after the commission of offence

of rape as spoken by P.W.1 is supported by the evidence of

P.Ws.2 and 3. According to the evidence of P.Ws.1 to 3 after

dropping P.W.1 at the road in the village and when she cried to

catch hold of the accused, he absconded. As seen from the

cross examination part of P.W.2, he explained the reasons as to

why they were waiting at the bus stop. Similarly, P.W.3 also

explained categorically as to why they were waiting at the bus

stop.

24) It is to be noticed that the main contention raised by

the accused in the grounds of appeal as well as in the

arguments canvassed by the learned counsel for the appellant is

that if really the offence was committed by the accused, P.W.1

would not have traveled on the motorcycle of the accused up to

the village and accused would not have brought her to the

village on his motorcycle. This Court has carefully looked into

the above fact. If the evidence of P.Ws.1 to 3 is analysed with

care and caution, it would clarify the things in proper

perspective. It is a case where the offence in question was

happened around 8-00 P.M. to 9-30 P.M. It was alleged to be

happened in a cotton field, which was said to be located at a

distance of 30 feet or 70 feet from the road, as the case may

be. Accused elicited during the cross examination that there

were no lights at the place of incident and it was dark. He also

elicited from cross examination of P.W.1 that she got feared

when the accused asked her to stop. He elicited from the mouth

of P.W.1 that the accused committed rape on her twice within a

span of half an hour. He got elicited from P.W.1 during the cross

examination that as the accused already committed rape on her,

she did not fear about him and then she requested him to drop

her at her village on his motorcycle.

25) It is to be noticed that though P.W.1 got fear at the

moment when she was stopped by the accused on the road,

later, the accused dragged her into fields and committed rape

against her by tightly holding her hand and legs to the ground.

It is not the evidence of P.W.1 that accused caused any bodily

injury to her. So, when the act of the commission of offence

was completed by the accused, the time was odd hours and it

was a dark night without any lights at the place of incident.

Even according to the evidence of P.W.1 during the course of

cross examination she never returned to her house in late hours.

So, there was no occasion for the family members prior to the

incident to wait for arrival of P.W.1 in late hours. On the other

hand, she used to return to the village early after completion of

milk selling. She clarified that only on the date of incident, she

went to her house in late hours, as such, her husband and her

mother were waiting for her on the Highway. Daily she used to

come back at 7-00 P.M. or 7-30 P.M. It is spoken to by P.Ws.2

and 3 that as P.W.1 did not return back in time, they were

waiting at the road at about 10-00 P.M. P.W.2 during the

course of cross examination deposed that only on the date of

incident, P.W.1 came late. Even they enquired other villagers

whether they saw P.W.1 at Panyam. According to the P.W.3 in

cross examination, for several hours they were waiting for P.W.1

at the bus stop. All these goes to show that as it was a dark

night without having any lights at the scene of offence and still

P.W.1 had to travel furthermore two kilometers and when she

suffered with onslaught from the accused i.e., raped twice and

as the accused did not cause any bodily harm to her, it is quite

natural for a woman like P.W.1 to request the culprit who was

having a motorcycle to allow her travel up to the village. In the

light of the peculiar facts and circumstances, this Court do not

see any un-naturality on the part of P.W.1 in making a request

to the accused after commission of offence to drop her at her

village.

26) Absolutely, it is not a case whether the accused

agitated by putting-forth any suggestion that P.W.1 was a

consenting party for the act of coitus. On the other hand, the

defence of the accused was denial simplicitor. Even he denied

that he brought P.W.1 on his motorcycle to the village. So,

accused denied everything. So, in the absence of raising a

probability on the part of the accused that the prosecutrix was a

consenting party, this Court cannot suspect the conduct of

P.W.1 in making a request to accused to drop her at her village

on the motorcycle. Hence, this Court do not see any

un-naturality on the conduct of P.W.1 in this regard. Having

scrutinized the evidence of P.Ws.1 to 3, this Court is of the

considered view that their evidence is convincing. Though

P.Ws.2 and 3 were not the direct witnesses to the act of rape,

but they were the witnesses when the accused brought the

victim on his motorcycle. Apart from this, the evidence of

P.Ws.2 and 3 can be brought under the purview of res gestae

under Section 6 of the Indian Evidence Act.

27) Now, this Court has to see as to whether the

evidence of P.W.1 has corroboration from the medical evidence.

P.W.11 is the Medical Officer, who examined the victim and she

deposed that on 15.01.2002 at 2-30 P.M., at request of police,

she examined P.W.1 and found no external injuries. She found

no signs of struggle. Vagina easily admitted two fingers. She

collected smears and swabs from introitus post-fornix of vagina

and sent to Forensic Laboratory. According to the report,

human semen and spermatozoa are detected in smears and

swabs. She opined that there is evidence of penile penetration

into vagina. Ex.P.11 is the certificate. Ex.P.12 is the report

received from RFSL. As seen from Ex.P.11, P.W.11 opined that

there is evidence of sexual intercourse.

28) As seen from Ex.P.12, the RFSL report, semen and

spermatozoa are detected on Item Nos.1 to 3, 7 to 10 and 13.

Item Nos.1 and 2 are no other than the saree and petticoat wore

by victim at the time of offence. So, the medical evidence

corroborated the evidence of P.W.1. As P.W.1 was a married

woman, the mere presence of spermatozoa on M.Os.1 and 2

would not prove that it is the accused, who committed the

offence. But, here there is evidence of P.W.1 clinchingly proves

the act of the accused against P.W.1. Her evidence has

corroboration from Ex.P.1. Her evidence with regard to the

presence of accused on his motorcycle along with P.W.1 and

that accused dropped her at her village and that accused

escaped from there, is corroborated by the evidence of P.Ws.2

and 3.

29) Apart from this, the case of the prosecution is that

police arrested the accused and recovered his pant and

underwear and sent to the chemical examination. As seen from

Ex.P.12, Item No.13 is the full underwear (drayer) with dirty

stains and Item No.4 is the teri-cotton pant of the accused.

According to the opinion, Item No.3 i.e., full underwear is found

with semen and spermatozoa.

30) Prosecution examined P.W.4 to speak to the fact

that police recovered M.Os.1 and 2 from the possession of

P.W.1, but P.W.4 did not support the case of the prosecution.

Here there is evidence of P.W.10, the Sub-Inspector of Police to

speak to the factum of seizure of M.Os.1 and 2 from P.W.1.

P.W.10 has no reason to depose false about the recovery of

M.Os.1 and 2 i.e., saree and petticoat after she changed clothes

for further investigation. So, it is clear, for the reasons best

known to P.W.4, the mediator, having got knowledge about the

contents of Ex.P.3, did not support the case of the prosecution.

But, however, the evidence of P.W.10, the Sub-Inspector of

Police, with regard to the seizure of M.Os.1 and 2, is convincing.

31) Similarly, when there is evidence of P.W.9, the Sub-

Divisional Police Officer, about the arrest of the accused and

seizure of M.Os.5 and 6 i.e., pant and innerwear of the accused.

P.Ws.6 and 7, for the reasons best known to them, did not

support the case of the prosecution, though admitted that they

signed the panchanama. Virtually, there is no reason to sign the

panchanama in the police station without witnessing the seizure

of clothes of the accused. Prosecution sufficiently cross

examined P.Ws.6 and 7 and impeached their testimony that

they are deposing false to help the accused. When P.W.9

categorically deposed about the arrest of the accused and

recovery of M.Os.5 and 6, no contraversion is suggested to him.

So, in my considered view, the prosecution was able to prove

about the recovery of the clothes of P.W.1 i.e., M.Os.1 and 2

and further the recovery of clothes of accused i.e., M.Os.3 and 4

and RFSL report under Ex.P.12 reveals that the underwear of

the accused contained traces of semen and spermatozoa. So,

the oral testimony of P.W.1 has corroboration fully from the

medical evidence.

32) P.W.10 is the Sub-Inspector of Police, who testified

that on 15.01.2002 at 12-00 noon, while he was present in the

police station, P.W.1 came to the station along with her husband

and he recorded the statement of P.W.1 under Ex.P.1 and

thereafter registered it as crime and Ex.P.10 is the F.I.R. He

spoken about the examination of P.W.1 and seizure of M.Os.1

and 2 and further seizure of the same under Ex.P.3 and his

forwarding the victim to the hospital. He categorically deposed

in cross examination that P.W.1 stated before him that by walk

she went from Sugalimetta to Panyam. She further stated to

him in Ex.P.1 that after committing rape, she requested the

accused to drop her at Sugalimetta on his motorcycle. There

remains nothing in the cross examination of P.W.10 to doubt the

investigation conducted by him. P.W.9, the Sub-Divisional Police

Officer, deposed that on 16.01.2002 he took up investigation

from Sub-Inspector of Police and re-examined P.W.1 and also he

examined P.Ws.2 and 3. He spoken to the fact that along with

P.W.1, he proceeded to the scene of offence and he recovered

M.Os.3 and 4 from the scene of offence. He further spoken

about the arrest of the accused and recovery of M.Os.5 and 6.

33) It is to be noticed that before the Court below, the

accused raised a theory that the police planted the silver anklet

of P.W.1 at the scene of offence to create the scene of offence

as if P.W.1 lost it at the time of commission of rape against her.

Admittedly, as seen from Ex.P.1, P.W.1 did not disclose her

silver anklet was missing. Further it was not suggested to her

during the course of cross examination, questioning her as to

what happened to the silver anklet. Accused got knowledge

about the case of the prosecution with regard to the recovery of

M.O.3, silver anklet chain. He did not question P.W.1 anything

about M.O.3 recovered from the scene of offence. But, a stray

answer was obtained from P.W.2, the husband of P.W.1 that

after they came back from the hospital police took a saree,

langa and silver anklet chain of P.W.1. It is basing on this,

accused agitated before the Court below that M.O.3 was planted

by the police to create the scene of offence.

34) It is to be noticed that P.W.9, the Sub-Divisional

Police Officer, during the cross examination denied that they did

not find M.Os.3 and 4 at the scene of offence and they were

planted by him. It is to be noticed that P.W.1 was not

questioned by the accused that her silver anklet was not missing

at the scene of offence. The defence theory is nothing but

denial of everything. It is a case where P.W.1 during the chief

examination categorically deposed that police seized M.O.3,

silver anklet chain, which she had lost at the place of incident

and she identified M.O.3 when it was shown to her. She also

testified that when she shown the place of incident to the

Inspector of Police, police seized M.O.3 and pieces of her

bangles, which are M.O.4. Absolutely, with regard to M.Os.3 and

4, the testimony of P.W.1 is not at all challenged. So, without

challenging her evidence in this regard basing on a stray answer

got from P.W.2, who was also a rustic villager belong to a Tribal

community, accused cannot contend that M.O.3 was planted in

the case. Hence, this Court is of the considered view that the

defence of the accused before the Court below that M.O.3 was

planted is not acceptable.

35) Coming to the delay in lodging Ex.P.1 by P.W.1, the

offence in question was happened in night and P.W.1 went to

the village around 10-00 P.M. and there is evidence that as it

was a late night and due to fear, P.W.1 and her husband could

not go to the police station immediately and after consulting the

caste elders, on the next day they decided to lodge a report.

Time and again, the Hon'ble Supreme Court held repeatedly that

in a case of this nature, there is bound to be delay in lodging the

report. So, the prosecution has explained properly about the

delay in lodging the report before the police.

36) As seen from the judgment of the learned Special

Judge, he rightly looked into the facts and circumstances

elaborately and he recorded sound reasons in accepting the

evidence adduced by the prosecution. He furnished sound

reasons in negativing the defence theory. Learned Special

Judge rightly relied upon the judgments of the Hon'ble Supreme

Court in Sudhansu Sekhar Sahoo vs. State of Orissa 1 and

State of Tamilnadu vs. Ravi @ Nehru2 and further in Dildar

Singh vs. State of Punjab3 as to how the evidence is to be

appreciated in cases like rape.

2003 (1) ALD (Crl.) 360 (SC)

2006 (2) ALD (Crl.) 618 (SC)

2006 (2) ALD (Crl.) 583 (SC)

37) In my considered view, the evidence of P.W.1 is

inspiring confidence in the mind of the Court. She had no

questionable antecedents whatsoever. She was a rustic villager

belong to the Tribal community, who has no reason to depose

false against the accused. On the other hand, the contention of

the accused that the villagers of Thanda used to file false rape

cases to invite compensation from the Government is nothing

but a baseless. Accused wanted to blame the entire villagers

without any basis. He has no probable defence at all before the

Court below. In my considered view, the prosecution before the

Court below was able to prove that the accused committed rape

of P.W.1 on 14.01.2002, as such, the prosecution proved the

offence of rape alleged against the accused before the Court

below beyond reasonable doubt. The learned Special Judge

rightly appreciated the evidence on record and convicted and

sentenced the accused. The sentence imposed against the

accused in the light of facts and circumstances cannot be said to

be harsh.

38) Hence, I see no reason to interfere with the

judgment of the Court below.

39) In the result, the Criminal Appeal is dismissed.

40) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the judgment of this Court

to the trial Court and on such certification, the trial Court shall

take necessary steps to carry out the sentence imposed against

the petitioner/appellant in SC ST Sessions Case No.39 of 2006,

dated 10.04.2007 and to report compliance to this Court.

41) Registry is further directed to forward another copy

of judgment to the Court below for the purpose of serving the

same on the accused, who is lodged in the prison. Another copy

of the judgment shall also be sent to the A.P. State Legal

Services Authority by the Registry for information and necessary

action.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 22.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.457 OF 2007

Date: 22.12.2022

PGR