The Circumstances From Which An ... vs "Rape And Murder"
2022 Latest Caselaw 52 AP

                                       1




      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                     AND

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                 Criminal Appeal No. 641 of 2014

JUDGMENT:       (Per Hon'ble Sri Justice C.Praveen Kumar)


1)   The sole accused in Sessions Case No. 635 of 2012 on the

file of II Additional Sessions Judge, Kurnool at Adoni, is the

appellant herein. He was tried for the offences punishable under

Sections 302 and 376 of Indian Penal Code ['I.P.C.']. By its

Judgment, dated 22.11.2012, the learned Sessions Judge

convicted   the      accused       and      sentenced       him   to   suffer

imprisonment for life for the offence punishable under Section

302 I.P.C. and also to suffer rigorous imprisonment for a period

of ten years for the offence punishable under Section 376 I.P.C.

He was also directed to pay a fine of Rs. 500/- under each

count, in default to undergo simple imprisonment for three

months. The substantive sentences were directed to run

concurrently.


2)   The gravamen of the charges against the accused is that,

on 09.01.2009 at about 2.00 p.m., in the redgram field of one

Kuruva Kurakula Dasthagiri, participated in sexual intercourse

with one Rajeswari @ Rajamma ['Deceased'], by putting his arm

around her neck and killed her by throttling.


3)   The facts, as culled out from the evidence of the

prosecution witnesses, are as under:
                                    2




i)     PW1 is the father, PW2 is the mother, PW7 is the elder

       brother, and PW8 is younger brother of the deceased. PW3

       is the husband of PW4, who are neighbours and belong to

       the same community of the deceased. The accused,

       deceased and material witnesses are residents of Chinna

       Hulthy Village of Pathikonda Mandal. It is said that the

       accused is a Madiga by caste, whereas, the deceased

       belong to higher community.


ii)    About three years prior to 07.02.2012 [date of evidence],

       PW1 along with his wife [PW2] went to Pathikonda in order

       to take treatment from a doctor. While leaving the house,

       PW1 told Rajeswari [Deceased] and his younger son Boya

       Chigilli Dharma Raju [PW8] to stay at home and do not go

       for coolie work even if there is a request from others.


iii)   At about 2.00 p.m., on the said date i.e., 09.01.2009, PW1

       along with his wife [PW2] returned home and found their

       son [PW8] in the house, but, the deceased was not present.

       When enquired, PW8 informed PW1 that one Boya

       Dastagiri [PW3] took the deceased for coolie work [for

       cutting tomatoes]. Then, PW1 asked PW8 to go and bring

       back the deceased, as he has already told her not to go for

       work. PW8 claims to have gone to the field of PW3 where

       he found PW3 and PW4. His enquiries revealed that the

       deceased left the field stating that she is going to the fields

       of Kesava Reddy for attending calls of nature but did not
                                  3




      return back. PW8 is said to have gone to the fields of

      Kesava Reddy and found the deceased lying dead in the

      field. He immediately returned back to the house and

      informed his parents about the same. Then all of them

      rushed to the scene of offence and noticed injuries on

      throat of the deceased. Suspecting some foul play, PW1

      lodged a report with PW16 - the Sub-Inspector of Police.

      Ex.P1 is the said report. Basing on the same, a case in

      Crime No. 5 of 2009 of Pathikonda Police Station, came to

      be registered under Section 174 Cr.P.C. After recording the

      statement of PW1, PW16 sent a requisition for dog squad

      and, thereafter, he visited the scene of offence, but, as it

      was dark, did not take up investigation on that day. He

      posted a guard at the scene. He claims to have stayed in

      the same village and caused enquiries about the death of

      Rajeswari [deceased].


iv)   On the following day at about 7.00 a.m., PW16 went to the

      scene of offence along with clues team and dog squad. The

      dog squad made the dog smell the dead body and the

      scene of offence. After smelling, the dog searched the entire

      field and proceeded towards the house of the deceased.

      Later the dog went to the house of one suspect, by name,

      Harijana Jaggali Devaraju [accused]. From the house of

      suspect [accused], the dog came back to the scene of

      offence.
                                   4




v)    PW16 secured the blood relatives of the deceased and

      recorded   their   statements.     Thereafter,   he   conducted

      inquest over the dead body in the presence of PW12. Ex.P5

      is the inquest report. He also got prepared a panchanama

      of the scene and also a rough sketch of the scene, which is

      placed on record as Ex.P15. He then sent the dead body

      for post-mortem examination.


vi)   PW14 - Assistant Profession in the Department of Forensic

      Medicine, Medical College, Kurnool, conducted autopsy

      over the dead body and noticed 17 external injuries on the

      body. According to him, the cause of death was due to

      asphyxia resulting from pressure over the neck associated

      with recent sexual intercourse. Ex.P9 is the post-mortem

      certificate and Ex.P10 is the final opinion.


vii) PW15 who took up investigation from PW16, verified the

      investigation done and recorded the statements of PW1 to

      PW4, PW8 and PW9. It is said that, accused was arrested

      while PW15 was on his way to Pathikonda. On enquiry, the

      accused    revealed   his   name    and   address.    At about

      5.30 p.m., he sent a requisition to Tahsildar, Pathikonda,

      for recording the statement of the accused. On the same

      day, at about 7.00 p.m., the accused was sent back by the

      Tahsildar along with the statement recorded by him. PW15

      again recorded the statement of the accused in the

      presence of PW12 under a panchanama and seized the
                                5




      wearing apparels of the accused, which are M.O.1 to

      M.O.3. He arrested the accused on 17.01.2009 at 8.00

      p.m. and, thereafter, produced him before the court on

      next day. After completing the investigation, PW17 filed a

      charge-sheet, which was taken on file as P.R.C. No. 45 of

      2009 on the file of Judicial Magistrate of First Class,

      Pathikonda.


4)    On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished. Since

the case is triable by Court of Sessions, the matter was

committed to the Sessions Court under Section 209 Cr.P.C.

Basing on the material available on record, charges as referred

to above came to be framed, read over and explained to the

accused, to which, the accused pleaded not guilty and claimed

to be tried.


5)    In support of its case, the prosecution examined PW1 to

PW18 and got marked Ex.P1 to Ex.P23, beside marking M.Os. 1

to M.O.3. Out of 18 witnesses examined by the prosecution,

PW5, PW6, PW9, PW10, PW12 and PW18 did not support the

prosecution and were treated hostile. After completion of

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 prosecution witnesses,

to which he denied, however, no evidence was adduced in

support of his plea.
                                  6




6)   Relying upon the evidence of PW1 to PW4, the learned

Sessions Judge convicted the accused. Challenging the same,

the present appeal came to be filed.


7)   (i)    Sri. Vidya Saradhi, learned Counsel for the Appellant

mainly submits that, there are no eye witnesses to the incident

and the circumstances relied upon by the prosecution are not

proved beyond doubt. He further submits that, in their earlier

statements, the witnesses never disclosed about the 'last seen'

theory and the accused leaving the scene of offence surfaced at a

later stage. He further submits that the First Information Report

and the evidence of PW1 would show that they were present

when the police arrived at the scene, but, never disclosed the

information received from PW8, with regard the accused being

'last seen' with the deceased. He further submits that, the extra-

judicial confession alleged to have been made before PW13 is hit

by Section 25 and 26 and, as such, it cannot be treated as

extra-judicial confession to base conviction.


     (ii)   Insofar as the evidence of rape is concerned, he

would submit that there is any amount of doubt with regard to

the age of the victim, more so, when the parents of the deceased

do not speak about her age. It is only PW8, who states that the

age of the victim [deceased] was about 17 years of age. That

being so, it cannot be said that there was any rape on the

deceased, as according to him, both of them were in love with

each other and as it was a consensual act.
                                      7




      (iii)    The learned counsel for the appellant further contend

that, no reliance can be placed on the dog tracking evidence,

since, the handler/trainer of the dog is not examined and no

panchanama is prepared with regard to the movements of the

dog. Having regard to the above circumstances, he would submit

that the prosecution failed to prove the case beyond reasonable

doubt. In other words, his arguments appears to be that, before

lodging       the   First   Information   Report,   all   the   witnesses

assembled and, thereafter, set the law into motion, but, the

theory of 'last seen' is not spoken to at that time and, as such,

the entire story is a make to believe one invented for the purpose

of this case.


8)    On the other hand, the learned Public Prosecutor opposed

the same contending that the evidence of PW3 and PW4 coupled

with the evidence of PW8 amply establish the involvement of the

accused in the crime. According to him, the evidence of the

prosecution witnesses would show that the accused was seen

going away from the scene of offence, for which there is no

explanation from the accused. He further submits that the time

of death as mentioned in the post-mortem report tallies with the

time given by PW3 and PW4 with regard to they noticing the

accused at the scene. Having regard to the above circumstances,

he would contend that the prosecution has proved its case

beyond reasonable doubt. Viewed from any angle, he would

submit that the order of conviction requires no interference.
                                            8




9)         The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond doubt?


10)        It is no doubt true that there are no eye witnesses to the

incident and the case rests on circumstantial evidence. In a case

arising out of circumstantial evidence, the prosecution has to

prove each of the circumstance relied upon by them and the

circumstances so proved should form a chain of events, which

should lead to an irresistible conclusion establishing the guilt of

the accused.


11)        In R.Damodaran v. The State Rep. By The Inspector Of

Police1, the Apex Court after referring to the judgment of a three

Judge Bench in Padala Veera Reddy Vs. State of Andhra

Pradesh and Ors2, held that, in a case which rests on

circumstantial evidence such evidence must satisfy the following

tests:


             1.

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

AIR (2021) SC 1173

1989 Supp (2) SCC 706

4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharastra3)

12) Keeping in view the law laid down by the Apex Court, we

shall now proceed to see as to whether the circumstances relied

upon are proved and if proved, whether they are sufficient to

connect the accused with the crime.

13) As stated earlier, there are no eye witnesses to the incident

and the case rests on circumstantial evidence. The prosecution

mainly relied upon the following circumstances to connect the

accused with the crime.

           I.       "Extra-Judicial Confession".

           II.      "Motive".

           III.        "Identification of Accused - Last Seen".

           IV.      "Dog Tracking Evidence".

           V.       "Rape and murder".

14)        "Extra-Judicial Confession".

(i)        It is well established principles of law that extra-judicial

confession is a weak type of evidence and the same cannot be

acted upon without sufficient corroboration. It is also to be

noted here that whenever extra-judicial confession is made, the

same should be reduced into writing in the same words and,

(1982) 2 SCC 351

thereafter, the person who recorded the statement should take

the accused to the police station.

(ii) In Baldev Singh Vs. State of Punjab4, the Apex Court

held as under:-

"Extra-judicial confession is a weak type of evidence and that by itself is not sufficient to record the judgment of conviction against accused, unless the same is corroborated and in the absence of any disclosure before a particular person, a conviction cannot be recorded."

(iii) In order to prove the first circumstance, namely, 'Extra-

Judicial Confession', the prosecution mainly relied upon the

evidence of PW13, who was working as Deputy Tahsildar of

Pathikonda, at the relevant point of time. According to him, on

17.01.2009 at about 5.30 p.m., Sub-Inspector of Police and

Circle Inspector, came to his Office along with accused and

informed him that they have arrested the accused on the same

day and requested him to record the statement of the accused.

PW13 claims to have taken the accused into a separate room.

The evidence shows that the Police gave the statement of the

accused, which was recorded by them to PW13. The same was

read over to the accused and asked him whether he has to say

anything more than what he has already stated. Then the

accused is said to have stated that he has nothing to say from

what he has stated before the police and requested PW13 to

record the statement in the same manner. Hence, the statement

was recorded.

2009(3) S.C.C. (Crl.) 66

(iv) It is to be noted here that the procedure followed in getting

the statement of accused recorded is unheard of in criminal law.

When the police have already recorded the statement of the

accused, the question of they again requesting PW13 [Tahsildar]

to record the statement of the accused would be of no use, as

the material on record would reveal that the accused was

already in custody of police by then. Further, when the police

have already furnished a copy of the statement recorded by

them, it is very difficult to believe that, even if a different version

is given by the accused, PW13 [Tahsildar] would record a

statement contrary to the contents of the statement recorded by

the police. Even, otherwise, it is very strange as to how the

police could furnish the statement recorded by them to PW13

[Tahsildar] and ask him to record the statement of the accused

once again. One cannot understand the evidentiary value of

such statement. Definitely, it cannot be treated as an extra-

judicial confession made by the accused voluntrily. Accordingly,

this evidence of PW13, which is sought to be relied upon cannot

be accepted and the same cannot be made use to link the

accused with the crime.

15)    "Motive".

i)     PW8 is none other than the younger brother of the

deceased. He in his evidence deposed that, he suspected the

accused because he saw him fleeing away from the field of PW3.

He also suspected the accused because on one or two occasions,

prior to her death, his sister [deceased] informed him that the

accused threatened to satisfy his lust otherwise he will kill her.

According to him, as on the date of death of his sister

[deceased], she was 17 years old. But in the cross-examination,

PW8 admits that he did not inform the police during the

investigation that on two occasions his sister [deceased]

informed him about the threat given by the accused, if she fails

to satisfy his lust. It would be appropriate to extract the same,

which is as under:

"It is true that I did not state to the police that on two occasions my sister Rajamma informed me that the accused threatened her to satisfy his lust, else he would kill her."

ii) However, PW7 who is elder brother of the deceased

categorically deposed about the affair of the deceased with the

accused. According to him, the people in the village used to talk

that the accused and the deceased were in love. He scolded the

deceased two or three times in respect of her love affair with the

accused. Even, in the cross-examination, it has been elicited

that, about two months prior to the date of incident, he scolded

the deceased two or three times in respect of the love affair with

the accused. But, the deceased did not stop her affair with the

accused. He further admits that, he beat his deceased sister

about 15 to 20 days prior to the incident as she did not stop her

affair with the accused. According to him, even after beating, she

did not stop moving with the accused. It was further elicited that

the deceased never informed him about her intention to marry

the accused. To a suggestion that they felt defamed because of

the attitude of his sister, was denied by him. The evidence of

PW7, in our view, does not establish accused having any motive

to do away with the deceased. It only refers to deceased having

illicit relationship with the accused.

iii) PW11 in his evidence deposed that, on 07.01.2009 at

about 8.00 or 8.30 p.m. there was a festival called 'Peeria

Panduga'. He and one Battina Chandra participated in the said

festival, which was at a place called Dasthagiraiah Swamy

Temple area. At that time, the accused came to them and

questioned them as to why they are calling the deceased with

whom he is in love. PW11 replied stating that they did not call

her, at any time, and were ignorant of any other fact. The

accused threatened that he will kill the deceased within two

days. According to him, on 09.01.2009 at about 3.00 or 3.30

p.m. he along with others went to the agricultural field of

Kurakula Dasthagiri and found the dead body of Rajamma

[deceased]. He noticed scratches on her left cheek and throttling

marks on the neck. To a suggestion that he has close

acquaintance with PW1 was denied him, but, admits that he got

facial acquaintance. He further admits that he was examined by

police a week after the incident. According to him, Police came to

his house and asked him to come to police station and then the

Sub-Inspector of Police examined him.

iv) It is to be noted here that the evidence of PW11 nowhere

speaks about he moving closely with the deceased. The evidence

of the witnesses clearly shows that there was a love affair

between the accused and the deceased and they were moving

closely, which was not to the liking of the family of the deceased,

which can be inferred from the evidence of PW7 and PW8. In

fact, the motive suggested by the prosecution, through the

evidence of PW8, that because the deceased failed to satisfy the

lust of the accused, he killed her, cannot be believed, for the

reason that said version never figured in the earlier statement of

PW8. Therefore, the 'motive' as projected by the prosecution, in

our view, is not proved beyond doubt.

16) "Identification of Accused" - "Last Seen".

(i) PW3 in his evidence deposed that, he is cultivating five

acres of land belonging to Gurunatha Reddy. About three years,

prior to the incident, at about 2.00 p.m., he and his wife [PW4]

went to the house of PW1 and took the deceased for coolie work

in their land for cutting tomatoes. The accused followed them

from back side. The accused and the deceased were having love

affair. About 15 minutes thereafter, the deceased went to attend

calls of nature. Then PW8 came to him and enquired about his

sister [deceased]. He informed PW8 that his sister [deceased]

went into the fields of Kurakula Dastagiri to attend calls of

nature. PW8 went in search of his sister [deceased] and found

her dead body in the fields of Kurakula Dastagiri. The answers

elicited with regard to last seen, are as under:

"I saw first time the Accused following me when I reached a distance of 50 feet from the hayrick yard of Sri Kesava Reddy. The accused also crossed the hayrick yard of Sri Kesava Reddy to a distance of 20 feet from the hayrick yard when I first saw him. The distance between hayrick yard of Sri Kesava Reddy and my land is about 200 meters."

(ii) Though, the evidence-in-chief of PW4 is silent on many

aspects with regard to the accused being present at the scene,

but, in the cross-examination many answers came to be elicited,

which shows the presence of the accused at the scene. It would

be appropriate to extract the same, which reads as under:

"We crossed the houses of Madiga Caste people while going from our house and before reaching the hayrick yard of Basheer. I have seen the accused first time when we reached half of the Joharapuram Rastha, but I cannot say whose lands are situated nearby to that place. Myself and PW3 has seen the accused at one time. There is red bell gram crop field by the side of Joharapuram Rastha. The accused followed me, PW3 for some distance and after sometime he went into red bell gram crop field from the rastha. We have seen the accused first time when he was at a distance of 100 feet from us. After the accused went into the red bell gram crop field, I, PW3 and deceased proceeded in that rastha further and after sometime even before our reaching the lands of us and when our lands was at a distance of about 150 feet from that place the deceased handed over the basket to me and left to attend calls of nature i.e., Doddiki in Telugu, into the red bell gram fields situated nearby to the Rashta."

(iii) PW8, who is none other that the brother of the deceased in

his evidence deposed that, about three years at about 2.30 p.m.,

prior to the incident, PW4 came to their house and requested his

sister to come along with her for plucking tomatoes from her

field. Though, the deceased refused to go along with her, but, on

seeing the accused standing in front of their house, making

signs asking her to come out, she went along with PW4. At

about 2.45 p.m., his parents returned home and enquired him

about the deceased. He informed them that she has gone with

PW4. His parents asked him to get back the deceased and, as

such, he went to PW3 and PW4 and enquired about his sister

[deceased]. Then PW4 informed him that the deceased went to

attend calls of nature. He went in search of his sister [deceased]

and when reached near Kesava Reddy's field, he saw the

accused fleeing away. Suspecting something wrong, he searched

for his sister [deceased] and found her dead in the fields.

Though, PW8 was cross-examined, we do not find any

incriminating material being elicited to discard his evidence. On

the other hand, the suggestion given that PW8 did not state to

police that he saw the accused running away from the fields of

Kesava Reddy was denied by him.

(iv) From the above, it is very much clear that, on the fateful

day, the accused followed PW3, PW4 and the deceased and went

to the fields of Kesava Reddy and later the deceased also went to

the said field. It is an undisputed fact that, the dead body of the

deceased was found in the field of Kurakula Dasthagiri. The

accused and deceased were last seen by PW3 and PW4. In fact,

there is no whisper in the evidence of the prosecution witnesses

that apart from the accused and deceased, any other person was

seen going into the field of Dastagiri. So, when no other person

went along with the deceased except the accused, there is no

possibility for any other person other than the accused being the

author of the crime. Therefore, prima facie, a conclusion can be

arrived at that the accused was 'last seen' with the deceased and

he was with the deceased in the field.

17) "Dog Tracking Evidence".

(i) It would be necessary for us to refer to the evidence of PW1

and PW2, who are parents of the deceased. Their evidence would

only show that on the fateful day PW1 along with his wife went

to Pathikonda for treatment and while leaving the house, he

claims to have told his daughter [deceased] not to leave the

house and, thereafter, in the afternoon when he came back

found her missing, though, his younger son was present in the

house. Immediately, he asked his younger son [PW8] to go and

bring back the deceased. According to PW1, when PW8 enquired

PW3 and PW4, he was informed that his sister [deceased] went

to the fields of Kurakula Dasthagiri to answer calls of nature.

PW8 claims to have gone there and noticed the dead body of his

sister [deceased] lying there. He immediately came back and

informed the same to his parents. PW1 also speaks about the

arrival of sniffer dog and the said dog going to the house of the

accused and then to the place where the body of the deceased

was lying.

(ii) In the cross-examination, it is elicited that, the house of

PW3 is opposite to his house and a road separates their house.

According to him, the police came to the village after 4.00 p.m.

and till then he stood with the dead body of his daughter

[deceased]. PW3 and the younger son of PW1 were in the village

when police came to his village after 4.00 p.m. According to him,

PW8 was with him when police recorded the statement. He

further admits that, PW3 was in the village and came to the

place where the dead body was lying, on coming to know about

the arrival of the police. According to him, police examined PW3

and PW8 at that time. He further admits that, the police were

there at the dead body till 6.00 p.m. It was suggested that PW1

used to approach Kesava Reddy for all works and that he took

the help of Kesava Reddy in giving Ex.P1 complaint, but the

same was denied. He admits that he does not know that Kesava

Reddy is the follower of S.V. Mohan Reddy of YSR Congress

Party. He also denies the suggestion that through Kesava Reddy,

he influenced S.V. Mohan Reddy and got foisted this false case.

However, he admits that government gave Rs.1,00,000/-

compensation for the death of the deceased.

(iii) PW2 is the wife of PW1, whose evidence toes in line with

the evidence of PW1 in all respects.

(iv) It is no doubt true that sniffer dog was pressed into service

and it reached the scene of offence on the next day morning.

Initially, the dog after smelling the body is said to have

proceeded to the house of the deceased and then to the house of

the accused and, thereafter, returned to the scene of offence. In

fact, the evidence of PW1 show that he got suspicion over the

accused only because of the sniffer dog going to the house of the

accused.

(v) In Sugali Dungavath Lakshma Naik and Ors.

V. State of Andhra Pradesh5 a Division Bench of this court, to

which one of us is a party dealt with the evidentiary value of dog

tracking. It will be appropriate to extract the relevant paragraph

of the judgment, wherein it was held that tracker dog's evidence

must pass the test of scrutiny and reliability as in the case of

any other evidence. The following guidelines were laid down:

"(a) There must be a reliable and complete record of the exact manner in which the tracking was done and a panchnama in respect of the dog tracking evidence will have to be clear and complete. It will have to be properly proved and will have to be supported by the evidence of the handler.

(b) There must be no discrepancies between the version as recorded in the panchnama and the evidence of the handler as deposed before the Court.

2020 (1) ALD (Crl.) 172 (AP)

(c) The evidence of the handler will have to pass the test of cross-examination independently.

(d) Some material will have to be placed before the court by the handler, such as the type of training imparted to the dog, its past performance, achievements, reliability, etc. supported, if possible, by documents."

(vi) In-fact, the Division Bench of this court disbelieved the dog

tracking evidence as there was also no iota of evidence as to the

objects, which were smelled by the dog near the dead body of the

deceased so as to find out the culprits and lead the police to the

house of the accused.

(vii) In the instant case, the prosecution failed to examine the

trainer/master of the dog depriving a right to cross-examine

him. Though the investigating Officer in his evidence deposed

about the dog squad leading them to the house of Accused, but

no panchanama of the movements of the dog were prepared.

Apart from that, the evidence of the Investigating Officer would

show that no articles or finger prints belonging to the accused

were found at the scene of offence. There was also no iota of

evidence as to the objects smelt by the dog near the dead body of

the deceased so as to find out the culprits and lead the police to

the house of Accused. Further, number of persons move around

the body before the arrival of the dog squad. Therefore, it will be

most unsafe to attach any weight to dog quad going to the house

of the accused.

18)     "Rape".


(i)     As seen from the record, except the evidence of PW8, none

of the witnesses deposed about the age of the deceased. Even

the post-mortem certificate, which is placed on record as Ex.P9

describes the age of the deceased as "17 years". Further, there is

no evidence on record to show that the deceased was, at any

point of time, prior to the date of incident, was subjected to

sexual intercourse. As stated earlier, the evidence of PW8 and

the post-mortem certificate [Ex.P9] show the age of the deceased

as 17 years at the time of death.

(ii) A 'Rape' is said to have been committed by a man if he has

sexual intercourse with or without the consent of the girl when

she is under sixteen years of age. In the instant case, the

incident in question took place on 09.01.2009, by then the age

limit prescribed to declare a person as an offender of rape with

or without consent is, if the victim is under 16 years. Since, the

evidence on record shows that the victim was aged about 17

years and in the absence of any evidence of intercourse, the

argument of the learned Counsel for the Appellant that it may

not amount to 'rape' if the victim has consented for the same,

cannot be brushed aside.

(iii) The evidence of PW8 - the brother of the deceased, in his

evidence categorically deposed that, on the fateful day his

parents left to Pathikonda for treatment and, thereafter, PW4

came to their house and requested the deceased to come along

with her for plucking tomatoes from the field. His sister

[deceased] refused to go along with her. According to him, the

accused was standing in front of their house and was asking his

sister [deceased] to come out. Being in love with him, his sister

[deceased] went along with PW4. According to him, by the time

his sister [deceased] reached the field of Kesava Reddy, the

accused called her and on the pretext of attending calls of

nature, she went to the fields of Kurakula Dasthagiri from the

fields of Kesava Reddy. It is no doubt true that PW8 was not an

eye witness to all these transactions and he admits to have been

present in the house at that time. But, the learned Public

Prosecutor did not cross-examine the witness on this aspect and

allowed the answers given to remain on record. In fact, the

observation of PW8 was also relied upon by the learned Sessions

Judge, who held that the accused and deceased were last seen

together. His evidence on record shows that, both of them were

in love with each other, which is evident not only from the

evidence of PW8 but also from the evidence of PW7 and others.

Even on that day, the deceased went along with PW4 after

receiving some signal from the accused and, thereafter, both

went to the fields of one Kesava Reddy. If really, it was against

her will or if the accused had forceful intercourse against her,

assuming it to be by the accused, the deceased would have

raised hue and cry, which would have definitely attracted the

attention of PW3 and PW4, who were admittedly present in their

field, which is close by. Though, at first blush the argument of

the learned Public Prosecutor appeared to be persuasive to hold

the accused guilty of rape, but, a reading of the evidence of PW7

and PW8 and the evidence of other witnesses show that, it could

not have been a forceful sexual intercourse.

(iv) It is no doubt true that, PW11 in his evidence-in-chief

speaks about the accused threatening to kill the deceased in two

days, but, the said fact was not informed to PW1 and other

family members, though, he knew them and was present right

from the time the body was recovered. For a period of one week,

he never disclosed this information to others. Therefore, a doubt

arises as to whether really the accused threatened to kill the

deceased, more so, when there is no evidence available on record

to show existence of animosity between the accused and the

deceased. On the other hand, there is enough evidence on

record through PW7 and PW8 that in spite of the deceased being

beaten and asked her not to continue her relationship with

accused, she continued to maintain her friendship / relationship

with the accused. On the other hand, the plea of the accused

that, when the deceased consented for the act, no offence of rape

is made out. When such is the argument, it can be safely said

that the deceased was with the accused on the alleged date of

incident.

19)     "Murder".


(i)     When once the presence of the accused is established at

the scene and in view of the finding that sexual intercourse was

not by force or against the will of the deceased, the question

would be, whether the accused can be held responsible for the

murder.

(ii) The Doctor who conducted post-mortem examination on

the body of the deceased was examined as PW14 and Ex.P9 is

the post-mortem certificate issued by him. According to Ex.P9,

there were teeth bite marks on several parts of the body of the

deceased like, cheeks, breast, neck and other vulnerable parts.

According to him, he found two contusions over the neck, which

are as under:

a) Contusion over the front of neck at its middle part 11 cm., below centre of chin in the mid line and 6 cm., above the supra-sternal notch 4 x 2 c.m., size;

b) Pressure abrasion present over the front of the neck at its mid line extended 2 cm., lateral to mid line on the left side of the neck at its middle part at an area of 3 x 3 cm., semi circular in shape.

(iii) On dissection of the neck, noticed skin and platysma

diffusely contused on both sides of neck. Both sides

sternocleidomastoid, omohyoid muscles were diffusely contused.

Having felt that considerable pressure was applied over the

neck, the doctor opined that death of the deceased was due to

'asphyxia resulting from pressure over the neck associated with

evidence of recent sexual intercourse".

20) Considering the injuries, as stated above, had there been

any forceful intercourse against the wishes of the deceased, the

deceased would have definitely raised hue and cry. But that is

not the case of PW3 and PW4. It appears to be a case of

consensual sexual intercourse and in the process the accused

might have used force leading to the death of the deceased. The

opinion of the doctor [PW14] also suggests the cause of death

was due to asphyxia resulting from pressure over the neck

associated with evidence of recent sexual intercourse.

Admittedly, there was no enmity or earlier disputes between the

accused and deceased. On the other hand, the evidence show

that the deceased was in love with the accused and she was

chastised/beaten by her family members not to meet the

accused.

21) Taking into consideration the circumstances under which

the incident took place and in the absence of any intention or

motive to the accused to cause the death of the deceased and it

appears that the incident happened in a spur of moment and

not a pre-meditated, it can be safely held that the accused may

be only having knowledge that such injury would lead to death.

22) Having regard to the manner in which the incident in

question took place, we are of the opinion that the case of the

appellant/accused falls squarely under Section 304 Part-II of

IPC. Hence, the conviction under Section 302 IPC is set aside

and the appellant is convicted under Section 304 Part-II IPC and

sentenced him to undergo rigorous imprisonment for a period of

seven years. The period undergone by the accused as remand

prisoner shall be given set off under Section 428 Cr.P.C.

Consequently, the appellant/accused shall be set at liberty

forthwith on completion of seven years imprisonment, if not

required in connection with any other case or crime.

23) Accordingly, the appeal is allowed partly. Consequently,

miscellaneous petitions, if any, pending shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

_______________________________ JUSTICE RAVI NATH TILHARI Date: 06.01.2022 S.M./

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

Criminal Appeal No. 641 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 06.01.2022

S.M.