Andhra Pradesh High Court - Amravati
Kuruva Sreenivasulu, Kurnool ... vs Sho, Ullindakonda P.S., Kurnool ... on 4 January, 2023
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B V L N CHAKRAVARTHI
Criminal Appeal No. 621 Of 2015
And
Criminal Appeal No. 1101 Of 2015
COMMON JUDGMENT: (Per the Hon'ble Sri Justice C. Praveen Kumar)
1) Heard Sri. G. Vijaya Saradhi, learned Counsel appearing
for the Appellant No.1 in Criminal Appeal No. 1101 of 2015;
Sri. Shaik Meeravali, learned Counsel appearing for the
Appellant No.2 in Criminal Appeal No. 621 of 2015 and
Sri. S. Dushyanth Reddy, learned Additional Public
Prosecutor, appearing for the State.
2) Criminal Appeal No. 621 of 2015 is filed by Accused
No.2, while Criminal Appeal No. 1101 of 2015 is filed by
Accused No.1. Both these Appeals were filed against the
Judgment, dated 01.04.2015, passed in SC/ST Sessions Case
No. 6 of 2015 on the file of the Special Judge for Trial of Cases
under SCs and STs (POA) Act-cum-VI Additional Sessions
Judge, Kurnool.
2
3) Originally, Accused Nos. 1 and 2 were tried for the
offences punishable under Sections 366, 376(2)(m) and 376(d)
I.P.C. Accused No. 1 alone was tried for the offence
punishable under Section 394 I.P.C., while Accused No.2 was
tried for the offences punishable under Section 394 r/w. 34
I.P.C. and Section 3(2)(V) of SC and ST (POA) Act. By its
judgment, dated 01.04.2015, the learned Sessions Judge
convicted both the Accused and sentenced them to (i) suffer
rigorous imprisonment for a period of ten years and to pay a
fine of Rs.10,000/- each, in default to suffer simple
imprisonment for two years for the offence punishable under
Section 366 I.P.C.; (ii) the Accused were further convicted and
sentenced to life imprisonment for the remainder of their
natural life for the offence punishable under Section 376(2)(m)
I.P.C. and to pay a fine of Rs.10,000/- each, in default to
suffer simple imprisonment for five years; (iii) the Accused
were further convicted and sentenced to suffer imprisonment
for life for the offence punishable under Section 376(D) I.P.C.,
which shall be for the remainder of their natural life and
directed to pay a fine of Rs.5,00,000/- each, which shall be
used for medical expenses and rehabilitation of the victim in
default to suffer simple imprisonment for five years; (iv)
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Accused No.1 was further sentenced to imprisonment for life
for the offence punishable under Section 394 I.P.C. and to
pay a fine of Rs.10,000/- each, in default to suffer simple
imprisonment for five years and similar imprisonment and
fine was passed against Accused No. 2 for the offences
punishable under Section 394 read with 34 I.P.C. The
substantive sentences were directed to run concurrently.
4) The facts, as culled out from the evidence of the
prosecution witnesses, are as under :
i. PW1 is the Victim. PW2 is the Mother of PW1, while
PW3 is the Cousin of PW1.
ii. In the year 2011 to 2013, PW1 and PW3 studied
Nursing Course in Concor Vocational College. As PW1
could not complete the course, she proceeded towards
Kurnool on 16.07.2013 for payment of examination fee
along with PW3. Both of them reached Kurnool at about
3.00 A.M. on 17.07.2013. Both of them stayed in the
Railway Station and thereafter engaged an auto and
proceeded towards their hostel. On that day PW1 paid
the examination fee by afternoon and in the evening
came out to purchase necessary articles to the sister of
4
PW1 i.e. PW3 and thereafter returned back to the hostel
by 8.30 P.M. As there was an express train to go to
Bangalore at 10.30 P.M., PW1 boarded a auto outside
her hostel to go to railway station. PW1 was alone when
she boarded the auto and when the auto reached near
C-Camp Centre; Accused No. 2 boarded the auto like a
passenger. Thereafter, Accused No.1 proceeded towards
a road by the side of Masjid. When PW1 questioned as
to why he is taking the auto through the said road,
deviating from the General Hospital Road, he replied
that there is a shortcut to reach railway station. As the
auto was driven in high speed and when it reached a
petrol bunk on Gooty Road, PW1 entertained suspicion
and tried to come out of the auto. But, Accused No. 2,
who was sitting in the back seat along with Accused
No.1 threatened her with dire consequences.
iii. Accused No. 1 took the auto towards Thadikanapalli
cross road and stopped the auto near cross road. It is
said that, both the Accused forcibly dragged PW1 to
nearby fields and demanded to give chain. When she
resisted, Accused No. 1 is alleged to have beat her with
iron road on the back side of the head. Both of them
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forcibly snatched away gold chain [M.O.2] and bronze
ring [M.O.3] from the possession of PW1. It is said that,
Accused No. 1 forcibly removed the clothes of PW1 with
the assistance of Accused No. 2 and, thereafter, both of
them committed rape on her. PW1 became unconscious
and she claims to have regained consciousness on
03.08.2013.
iv. On 18.07.2013 in the early hours, some unknown
person called PW3 stating that the body of a woman is
lying in an unconscious state in the vicinity of BITS
College. On coming to know about the same, PW3
rushed to the said place and noticed PW1 in an
unconscious state. As the clothes of PW1 were not in
order, she dressed her and shifted her to hospital for
treatment. Intimation about the same was given to PW2,
who along with one Dayanandam rushed to Government
Hospital, Kurnool, and found the deceased unconscious.
v. On 18.07.2013 at about 9.00 A.M., PW16 - Sub-
Inspector of Police received M.L.C. intimation on
telephone from Outpost Police Station, Government
General Hospital, Kurnool. He informed the same to
6
Circle Inspector of Police, Kurnool Taluk Police Station,
and visited Government General Hospital, Kurnool. He
visited maternity ward and found the victim semi-
conscious. The statement of PW3, who was present, was
recorded and her signature was obtained. The said
statement is Ex.P2. PW16 returned to Police Station by
11.00 A.M. and registered a case in Crime No.64 of 2013
of Ulindakonda Police Station. Ex.P21 is the First
Information Report.
vi. On the same day at about 11.30 A.M. PW17 [Circle
Inspector of Police] visited Government General Hospital
and found the victim still in a semi-conscious state and
unable to speak. He examined PW3 once again and
made a written requisition to the doctor for examination
of victim and collection of material things, which is
placed on record as Ex.P22. At about 12.00 Noon, PW17
seized M.O.4 to M.O.6 from the possession of PW3
[clothes of the victim]. Thereafter, PW17 along with his
staff proceeded to the scene of offence and prepared a
rough sketch of the same and seized M.O.7 to M.O.10 in
the presence of PW8 and others. He then visited the
7
College, enquired with the Warden and Watchman
about the incident.
vii. On 20.07.2013, PW17 sent M.O.4 to M.O.6 and other
material collected from the victim to RFSL vide Letter Of
Advises, which is placed on record as Ex.P23 and
Ex.P24. On 03.08.2013 at about 4.30 P.M. he examined
and recorded the statement of victim girl in the presence
of PW7, who certified that the victim was conscious,
sound and in disposing state of mind to give statement.
Basing on the said statement, a memo vide Ex.P25 was
filed for addition of Sections 366, 376(d), 394 r/w. 34
I.P.C.
viii. On 04.08.2013 at about 12.30 hours, on receiving
credible information about the movements of the
Accused, PW17 along with PW11, his staff and others
went to Ulindakonda Railway Gate cross road and
arrested them. On 05.08.2013 itself, PW17 submitted a
requisition to the Magistrate for sending Accused No.1
and 2 for potency test. Ex.P10 and Ex.P11 are the
potency reports of Accused No. 1 and 2, respectively.
Further investigation was taken up by PW18, who on
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06.08.2013 visited Government General Hospital,
Kurnool, and recorded the statements of PW1 to PW5.
He then visited the scene of offence, which is situated in
Thadikanapalli cross road on National Highway-44 and
prepared a rough sketch of the scene of offence, under
Ex.P29. On 08.08.2013, he sent M.O.11 to M.O.14 to
F.S.L. through a Magistrate Court, Kurnool, vide Letter
of Advice [Ex.P30].
ix. After verifying the investigation done by PW18, his
successor who is examined as PW19, filed the charge-
sheet, which was taken on file as P.R.C. No. 149 of 2014
on the file of Judicial Magistrate of First Class, Kurnool.
5) On appearance of the Accused, copies of the documents
as required under Section 207 Cr.P.C., were furnished and
since the case is triable by a Sessions Court, the same was
committed to the Court of sessions under Section 209 Cr.P.C.
On appearance of the Accused, charges, as referred to above,
came to be framed, read over and explained to the Accused, to
which they pleaded not guilty and claimed to be tried.
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6) In support of its case, the prosecution examined PW1 to
PW19 and got marked Exs.P1 to P32, besides marking M.O.1
to M.O.15. After completing the prosecution evidence, the
Accused were examined under Section 313 Cr.P.C. with
reference to the incriminating circumstances appearing
against them in the evidence of prosecution witnesses, to
which they denied, but, however, no defence evidence was
adduced.
7) Believing the evidence of PW1, PW2 and PW3 coupled
with the conduct of the Accused, the learned Sessions Judge
convicted the Accused. It is against this conviction and
sentence, the present appeals came to be filed.
8) (i) Sri. G. Vijaya Saradhi, learned Counsel appearing for
the Appellant No.1 submits that, there is absolutely no legal
material on record to base a conviction. According to him, the
incident is alleged to have taken place on 17.07.2013 and the
Test Identification Parade was held on 31.08.2013 i.e., nearly
one and half month of the incident. In view of the delay, no
importance can be given to the identification made by PW1
either in the Test Identification Parade or in the Court.
10
(ii) He further submits that, since Accused No. 2 was not
identified in the Test Identification Parade and as he is
identified first time in the Court that too after two years of the
incident, no importance cane be given to the same.
(iii) Sri. G. Vijaya Saradhi, learned Counsel, further submits
that the conviction recorded by the trial Court for abduction
and robbery are ill-founded. There is absolutely no material to
show that Accused No. 1 has committed any theft of articles
belonging to the deceased by putting her under pressure or
threat. According to him, it is difficult to believe that Accused
No. 1 would be carrying M.O.2 and M.O.3 along with him one
and half month after the commission of the offence. In view of
the above, he would contend that there is absolutely no legal
evidence to convict the Accused.
9) Sri. S. Dushyanth Reddy, learned Additional Public
Prosecutor, opposed the same contending that, Test
Identification Parade conducted under Section 9 of the Act is
only meant for investigation purpose, namely, (i) to enable the
witnesses to satisfy themselves that the prisoner whom they
suspect is really the one who was seen by them in connection
with the commission of the crime, and (ii) secondly is to
11
satisfy the investigating authorities that the suspect is the
real person whom the witness had seen in connection with
the said occurrence. In other words, his argument appears to
be that, Test Identification Parade cannot be used beyond the
stage of investigation. Since, identification in the Court is a
substantive piece of evidence, there is nothing wrong in
relying upon the same to convict the Accused.
10) The point that arises for consideration is, whether the
prosecution was able to bring home the guilt of the accused
beyond reasonable doubt for the offence punishable under
Sections 366, 376(2)(m), 376(d), 394 and 394 r/w. 34 of I.P.C.?
11) Insofar as the delay in holding the Test Identification
Parade is concerned, it is stated that, for a period of 20 days,
after the incident, the injured was unconscious in the
hospital and after she was discharged on 16.08.2013, Test
Identification Parade was held on 31.08.2013. Therefore, it
cannot be said that there was any abnormal delay in holding
Test Identification Parade.
12) The argument of the learned Counsel for Accused No. 1
that, if any benefit is given to Accused No.2, Accused No. 1
cannot be convicted for an offence of gang rape, is ill-founded.
12
Merely because one of the accused is acquitted due to lack of
proper evidence, it does not mean that the incident in
question was committed only by one person. It is to be read
as if it was committed by a known and one unknown person.
13) Coming to the offence of rape, the fact that there was a
rape on the victim girl cannot be disputed. PW13, who was
working as a Causality Medical Officer in Government General
Hospital, Kurnool, states that, on 18.07.2013, he examined
the injured person and noticed a lacerated wound over scalp
internal bleed; pain on chest, right shoulder and pelvis.
Ex.P16 is the Wound Certificate issued by him.
14) The evidence of PW7, who was working as Assistant
Professor of Medicine, Kurnool Medical College, Kurnool, also
shows that, on 18.07.2013, PW1 was admitted in Acute
Medical Care Ward of Government General Hospital, Kurnool,
and he was present when the Inspector of Police recorded the
statement of PW1, when she was conscious.
15) PW9, is the doctor, who examined the injured on
18.07.2013
at 3.30 P.M. and noted the injuries and issued
Ex.P5, which is the Sexual Offence Certificate. After receiving
Ex.P6 [F.S.L. Report], he opined under Ex.P7 [Final Opinion]
that an act of sexual intercourse cannot be ruled out. His
final report also shows that, there were no external on
perineum. However, hymen was not intact and admitted two
fingers easily. Having regard to the evidence of PW9 and the
F.S.L. report, it can be said that the victim was subjected to
sexual abuse.
16) The next question that would fall for consideration is
whether both the Accused are responsible for the said incident?
17) It is not in dispute that, the alleged act of 'rape' as
spoken to by PW1 took place on 17.07.2013. Immediately, she
was taken to hospital by which time she was unconscious.
She regained consciousness on 03.08.2013. Her statement is
alleged to have been recorded on 03.08.2013 also and,
thereafter, she was discharged from the Hospital on
16.08.2013. The Test Identification Parade was conducted on
31.08.2013.
18) PW1, who is the victim, in this case, deposed that, she
studied Nursing Course in Concor Vocational College situated
behind Shakunthala Kalyana Mandapam. PW3 also joined in
that College for pursuing Nursing Course. As PW1 failed in
one subject, she came over to Kurnool from Bangalore, for
payment of examination fee. It is said that, on 16.07.2013,
she along with PW3 came to Kurnool from Kolar by train and
reached Kurnool at 3.00 A.M. on 17.07.2013. Both of them
waited in the Railway Station till 6.00 A.M. and, thereafter,
proceeded towards campus of the College and to their hostel.
She paid the examination fee by afternoon and in the evening,
came out to do some purchases and, thereafter, returned
back to the hostel by 8.30 P.M. As the train to Kolar was at
10.30 P.M., PW1 came out of the hostel at 9.30 P.M., took an
auto to go to the Railway Station. On the way, near C-Camp
Center, Accused No. 2 boarded the auto and, thereafter,
Accused No. 1 deviated the route to the station and ultimately
near Thadikanapalli cross road the Accused are alleged to
have committed rape on her, one after the other. It is also
said that, Accused No. 1 beat her with an iron rod on the
back side of the head and snatched away M.O.2 and M.O.3
from her. Initially, it was Accused No. 1, who forcibly removed
her clothes and committed rape and, thereafter, Accused No.
2 pounced and also committed rape.
19) PW1 in her evidence categorically speaks about
becoming unconscious at the time of offence itself and
regaining consciousness on 03.08.2013. Her statement was
recorded on 03.08.2013 by Circle Inspector of Police [PW17]
and by Deputy Superintendent of Police [PW18] on
06.08.2013. She also speaks about her discharge from the
hospital on 16.08.2013 and the Test Identification Parade
being conducted on 31.08.2013. She was cross-examined at
length, but nothing useful came to be elicited to discredit or
discard her testimony. The suggestions given that, she could
not have identified the Accused due to darkness, was denied.
However, she says that due to fear of the Accused, she could
not call her sister on phone, while the Accused were forcibly
taking her in the auto.
20) The evidence of PW1 gets corroboration with regard to
going to Kurnool; payment of fees; and then leaving the hostel
at 9.30 P.M., from the evidence of PW3. PW3 was also
subjected to lengthy cross-examination, but nothing useful
came to be elicited to discard her testimony. Her evidence
shows that, on 18.07.2013 itself at about 10.30 A.M. while
she was in Hospital, Police came and recorded her statement,
and at about 12.00 Noon they seized M.O. 4 to M.O.6 from
her possession, as she kept the clothes of PW1. She also
speaks about going to the scene of offence, which is near BITS
College and police seized M.O.7 to M.O.10 in her presence.
Identification of Accused by PW1
21) The learned Counsel for the Appellants, mainly submits
that, there was abnormal delay in holding Test Identification
Parade. We are not in agreement with the same. As stated by
us earlier, though the incident in question took place on
17.07.2013, the injured was unconscious till 03.08.2013 and
after she regained consciousness, she was in the hospital for
a period of 16 days and, thereafter, on 16.08.2013 she was
discharged from the hospital. Therefore, holding of
identification parade on 31.08.2013, cannot be said to be with
a delay, in the facts and circumstances of the case.
22) Question now is, whether it is possible for PW1 to
identify the assailants?
23) In Anil Kumar V. State of U.P.1 the Apex Court was
dealing with a situation where test identification parade was
held 47 days after the arrest of the Accused. After considering
several decision by the Hon'ble Apex Court including the Brij
Mohan V. State of Rajasthan2, Daya Singh V. State of
(2003) 3 SCC 569
(1994) 1 SCC 413
Haryana3 and State of Maharashtra V. Suresh4, the Court
held that:
"20. It is neither possible nor prudent to lay down any
invariable rule as to the period within which a test
identification parade must be held, or the number of
witnesses who must correctly identify the accused, to
sustain his conviction. These matters must be left to the
courts of fact to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a period
within which the test identification parade must be held,
it would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear
clue about their identity, they being persons unknown to
the victims. They, therefore, have only to avoid their
arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as
rape. The offender may be unknown to the victim and the
case depends solely on the identification by the victim,
who is otherwise found to be truthful and reliable. What
justification can be pleaded to contend that such cases
must necessarily result in acquittal because of there
being only one identifying witness? Prudence therefore
demands that these matters must be left to the wisdom of
the courts of fact which must consider all aspects of the
matter in the light of the evidence on record before
pronouncing upon the acceptability or rejection of such
identification."
24) In view of the law laid down, we hold that conducting
Test Identification Parade on 31.08.2013 cannot be treated as
(2001) 3 SCC 468
(2000) 1 SCC 471
fatal to the prosecution case or that it was held with an
abnormal delay.
25) Coming to the Test Identification Parade itself, the fact
that it was conducted in the manner prescribed under law is
not in dispute. PW12, who was working as Judicial Magistrate
of First Class, Kurnool, during the relevant time, conducted
the Test Identification Parade on 31.08.2013, pursuant to a
requisition received from Sub-Divisional Police Officer,
Kurnool, on 22.08.2013. The said parade was conducted in
Sub-Jail, Kurnool. In the said proceeding, PW1 identified
Accused No. 1 alone and doubtfully identified an unknown
suspect as Accused No.2. But, while giving evidence in the
Court, the victim [PW1] identified Accused No. 1 and 2. This
identification in Court was nearly two years after the incident.
26) While dealing with the identification of the Accused in
the Test Identification Parade, in Malkhansingh V. State of
M.P5 the Hon'ble Supreme Court after considering various
decisions observed as under:
"7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
(2003) 5 SCC 746
law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness
is the statement made in court. The evidence of mere
identification of the accused person at the trial for the
first time is from its very nature inherently of a weak
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the
court is impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon the
accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of
identification even without insisting on corroboration."
27) Keeping in view the law laid down by the Hon'ble Apex
Court in the judgments referred to above, we shall now
proceed to examine as to whether identification of accused by
PW1 in Court can be accepted, to convict both the Accused.
28) The reasoning given by the learned Sessions Judge for
believing the participation of both the Accused is as under:
"It is needless to say that it is difficult for anybody to
identify the accused in such a barbaric incident. As PW1
could not identify A2 out of the five non-suspects, the
evidence of PW1 needs corroboration for identification of
A2. PW1 testified that the persons who are present in the
court, they only committed rape on her. The evidence of
PW1 was corroborated by the statement of A2 in the
Sec.313 Cr.P.C. examination that on the date of the
incident, in the auto, MO.15, A1 dropped him at his house
in Sharif Nagar from Bangarpet. So also, the evidence of
PW1 in respect of identification of A2 was corroborated
by the evidence of PW11 in respect of seizure of clothes of
A2 by PW17. So also, the evidence of PW1 was
corroborated by the FSL Report. Ex.P8 and it also
corroborates with the evidence of PW10 who issued
Ex.P11 stating that A2 has capacity to do sexual act. This
court observed that the evidence of PW1 does not suffer
from any vices of interestedness, previous enmity etc.
When her evidence is well reliable, this court has no
hesitation to believe her evidence that A2 involved in the
crime as PW1 firmly identified him before the Court. This
court cannot expect any eye witness of the occurrence
and conviction can be based on the sole testimony of the
witness as her evidence is reliable."
29) From the above, it appears that the learned Sessions
Judge believed the evidence of PW1; the answers given by
Accused No. 2 in 313 Cr.P.C. statement corroborate the
evidence of PW1 to the extent of dropping him at his house;
the evidence of PW1 getting corroboration with regard to
seizure of clothes of Accused No. 2 by PW17 and Ex.P8 and it
corroborates the evidence of PW10, who issued Ex.P11 to the
effect that Accused No. 2 has capacity to do sexual act.
Further, no enmity or interestedness can be attributed to
PW1.
30) Whether, these circumstances relied upon by the
learned Sessions Judge in paragraph No. 20 of the Judgment
are sufficient to say that they corroborate the evidence of PW1
with regard to participation of Accused No.2 in the
commission of the offence.
31) Insofar as capacity of Accused No.2 to do sexual act,
Ex.P11, in our view, will only establish his potency and
definitely does not connect him with the commission of the
offence.
32) Coming to the evidence of PW11, he was incharge
Village Revenue Officer of Peddatekur Village. On 04.08.2013
at about 12.30 hours, while he was in Tahsildar Office,
Kallur, he was called by Circle Inspector of Police through a
Constable to Taluka Police Station. By the time he reached
the Police Station, one Nagi Reddy was present. At the request
of the Police, PW11 and Nagi Reddy proceeded towards
Ulindakonda Railway Gate and started checking vehicles.
When they stopped an auto bearing No. AP 21 TV 5601, the
driver and another person in the auto tried to ran away, but,
they were apprehended. They disclosed their names as Matti
Ravi [A1] and Kuruva Sreenivasulu [A2]. Police found 25
packets of ganja in the auto.
33) On an information given by the Accused, in connection
with this crime, under a confessional statement under
Ex.P12, they seized M.O.1 to M.O.3 in the presence of
mediators under Ex.P12 [panchanama]. Neither the evidence
of PW11 nor the evidence of Investigating Officer [PW17] show
that the Accused lead them to a particular place and
produced M.O.1 to M.O.3. A perusal of Ex.P12 [panchanama]
would show that, M.O.2 and M.O.3 were produced by
Accused No.1 by taking them out of his pocket and M.O.1
from the auto of Accused No. 1. This circumstances, which
has been referred to by the learned Sessions Judge may be a
corroborating factor against Accused No. 1 only.
34) The next circumstance relied upon by the learned
Sessions Judge is the answers given by the Accused in 313
Cr.P.C., statement.
35) In Mohan Singh vs Prem Singh And Anr6, the Hon'ble
Apex Court held as under:-
"The statement of accused under Section 313 of Cr.P.C, is
not a substantive piece of evidence. It can be used for
appreciating evidence led by the prosecution to accept or
reject it. It is, however, not a substitute for the evidence of
the persecution. As held in the case of Nishi Kant (Supra)
by this Court, if the exculpatory part of his statement is
found to be false and the evidence led by the prosecution
is reliable, the inculpatory part of his statement can be
taken aid of to lend assurance to the evidence of the
prosecution. If the prosecution evidence does not inspire
confidence to sustain the conviction of the accused, the
inculpatory part of his statement under Section 313 of
Cr.P.C. cannot be made the sole basis of his conviction."
36) Having regard to the ratio laid down in the above
judgment, it stands established that only circumstance relied
upon, can be taken as a corroborating factor to the evidence
of PW1 insofar as the involvement of Accused No.1 is
concerned. As PW1 failed to identify Accused No. 2 in the test
identification parade conducted at the earliest point of time,
but instead identified a non-suspect, that too, with hesitation
AIR 2002 SC 3582
and since identification in the Court for the first time after
two years, (coupled with the delay in initiating the same), it
can be said that the prosecution has not proved its case
beyond reasonable doubt against Accused No.2, and, as such,
he his entitled for benefit of doubt of the charges leveled
against him. Accordingly, Accused No. 2 is acquitted of all the
charges framed against him.
37) By this, does it mean that, Accused No. 1 should also
get the benefit of the offence punishable under Section
376(2)(m) of I.P.C. The learned Counsel tried to contend that,
when Accused No. 2 is acquitted of all the charges, Accused
No. 1 alone cannot be prosecuted for gang rape.
38) In Ganesan V. State Rep. by Station House Officer7,
the Hon'ble Supreme Court in paragraph 53 held as under:
"........ However, it is required to be noted that as such
in the FIR there was a reference to five persons involved
in committing the robbery. Even the charge-sheet was
filed against five persons. However, as two accused
absconded, the trial was split and three accused came to
be tried. One accused Benny came to be tried
subsequently and one person is still absconding. Even
there are concurrent findings recorded by all the courts
below that five persons were involved in committing the
offence of robbery. Merely because some of the accused
2021 SCC Online SC 1023
absconded and less than five persons came to be tried in
the trial, it cannot be said that the offence under Section
391 IPC punishable under Section 395 IPC is not made
out. What is required to be considered is the involvement
and commission of the offence of robbery by five persons
or more and not whether five or more persons were tried.
Once it is found on evidence that five or more persons
conjointly committed the offence of robbery or attempted
to commit the robbery a case would fall under Section
391 IPC and would fall within the definition of 'dacoity'.
Therefore, in the facts and circumstances, the accused
can be convicted for the offence under Section 391 IPC
punishable under Section 395 IPC."
39) In Ghamandi & Others V. State8, the High Court of
Allahabad, in paragraph No. 9 held as under:
"The fact that two of the accused persons viz., Sarman
and Gudru, were acquitted on the ground that the
evidence of identification against them was not
satisfactory, does not necessarily mean that the offence
in the present case was committed by only four persons.
The learned Counsel for the State has produced before
me certain authorities to support this view. The earliest
case in point appears to be the decision of the Calcutta
High Court in the case of Phundi Ram v. Emperor 12
Cri LJ 193 (Cal). In that case eight persons were charged
with dacoity, but four of them were acquitted. It was
contended on behalf of the defence that in consequence of
the acquittal, the charge of dacoity under Section 395,
I.P.C. could not be sustained against the remaining four.
The learned Judges negatived the contention and upheld
the conviction of the four appellants on the charge of
1970 Cri LJ 386
dacoity. The decision of the Calcutta High Court in this
case was cited with approval by the Nagpur High Court
in the case of Narain Dinua v. Emperor AIR 1947 Nag
57 in which it was laid down that the mere fact that the
evidence was not sufficient to convict four of the accused
persons actually charged could not in any way affect the
question of the number of persons engaged. In a case
before the Orissa High Court, Sukha Misra v. State a
similar question arose. Twelve persons were put on trial,
to answer a charge of dacoitv. Nine of them were,
ultimately, acquitted and three convicted under Section
395 I.P.C. The case was heard by a Division Bench of the
High Court constituted of Jagannadhadas and Panigrahi.
JJ. Panigrahi, J., who delivered the leading judgment
had no hesitation in holding that the conviction of the
three of the appellants on the charge of dacoity was quite
correct, Jagannadhadas, J., however, came to the same
conclusion with some amount of apparent hesitation,
Ultimately, he agreed with Panigarhi, J. The correct
position is that, in spite of the acquittal of a number of
persons, if it is found as a fact that along with the
persons convicted there were other unidentified persons
who participated in the offence, bringing the total number
of participants to five or more, the conviction of the
identified persons, though less than five, is perfectly
correct. In the present case, as I have pointed out above,
there is the consistent testimony of the prosecution
witnesses that there were six dacoits including the four
appellants. This is also specifically the case stated in the
first information report. If, therefore, two of the dacoits
could not be traced and identified, there is no reason why
the remaining four cannot be convicted of the offence of
dacoity under Section 395 I.P.C."
40) The evidence of PW1 shows involvement of two persons
and the prosecution has proved its case beyond doubt against
Accused No.1 and the court acquitted Accused No.2 as PW1
failed to identify the second accused in the identification
parade held on 31.08.2013. But, participation of another
person along Accused No.1 is proved through the evidence of
PW1 and medical record. As stated above, the benefit of doubt
was given to Accused No.2, as PW1 failed to identify Accused
No. 2 in the Test Identification Parade conducted at the
earliest point of time, but, it does not mean that, the offence
was committed by Accused No.1 alone and participation of
another person is ruled out.
41) In view of the above, as PW1 identified the Accused No.1
in the Test Identification Parade, coupled with the evidence of
PW1, which gets corroboration from medical evidence and the
recovery of articles belonging to deceased from Accused No.1,
which were identified by PW1 and PW2, it stands established
that Accused No. 1 along with another person has committed
the offence of gang rape alleged against him.
42) Coming to the offence punishable under Section 366
I.P.C. it is to be noted that, Section 366 I.P.C. gets attracted if
abduction or kidnapping was to compel her marry any person
against her will. But, the evidence of PW1 does not indicate
the same. Hence, it can be said that no offence under Section
366 I.P.C. is made out. Insofar as offence under Section 394
I.P.C. is concerned - Section 394 I.P.C. reads as under:
"Section 394 I.P.C. Voluntarily causing hurt in
committing robbery.--If any person, in committing or in
attempting to commit robbery, voluntarily causes hurt, such
person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be
punished with 1[imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine.?
43) From the evidence of PW1, it is clear that, Accused No.1
beat her with an iron rod on the head and forcibly took away
M.Os. 2 and 3 from the body of the deceased. Hence, the
prosecution has proved its case for the offence punishable
under Section 394 I.P.C. Accordingly, while confirming the
sentence imposed, the quantum of fine to be paid is reduced
to Rs.1,000/- in default suffer simple imprisonment for six
[06] months.
44) Accordingly, Criminal Appeal No. 1101 of 2015 is
allowed in part confirming the conviction of Accused No.1
for the offences charged while modifying the sentence
recorded against the Appellant/Accused No. 1 in the
judgment, dated 01.04.2015 in SC/ST Sessions Case No. 6 of
2015 on the file of the Special Judge for Trial of Cases under
SCs and STs (POA) Act-cum-VI Additional Sessions Judge,
Kurnool, for the offences punishable under Sections
376(2)(m), 376(D) and 394 I.P.C., to twenty [20] years.
45) The Criminal Appeal No. 621 of 2015 is allowed setting
aside the conviction and sentence recorded against the
Appellant/Accused No. 2 in the Judgment, dated 01.04.2015
in SC/ST Sessions Case No. 6 of 2015 on the file of the
Special Judge for Trial of Cases under SCs and STs (POA) Act-
cum-VI Additional Sessions Judge, Kurnool, for the offences
punishable under Sections 366, 376(2)(m), 376(d) and 394
r/w. 34 I.P.C. and accordingly, he is acquitted for the said
offences. Consequently, the Appellant/Accused No. 2 shall be
set at liberty forthwith, if he is not required in any other case
or crime.
46) Consequently, miscellaneous petitions, if any, pending
shall stand closed.
______________________________
JUSTICE C.PRAVEEN KUMAR
__________________________________
JUSTICE B V L N CHAKRAVARTHI
Date: 04.01.2023
SM.../--
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B V L N CHAKRAVARTHI
Criminal Appeal No. 621 Of 2015
And
Criminal Appeal No. 1101 Of 2015
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice C. Praveen Kumar)
Date:04.01.2023
SM.
