Between vs The State Of Andhra Pradesh
2023 Latest Caselaw 3135 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                             ****

CRIMINAL APPEAL No.944 OF 2009

Between:

Yalukala Suryanarayana, S/o.Chitti Appadu, 50 Years, Turupu Kapu, R/o.22-17-5B, Cement Road, Bhanu Nagar, Vijayawada, A.P. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., through Inspector of Police, S.N. Puram P.S., Vijayawada City ... Respondent/Complainant.

DATE OF JUDGMENT PRONOUNCED : 14.06.2023

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes/No

2. Whether the copy of judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the Fair copy of the judgment? Yes/No

___________________________ A.V.RAVINDRA BABU, J

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

+ CRIMINAL APPEAL No.944 OF 2009

% 14.06.2023

# Between:

Yalukala Suryanarayana, S/o.Chitti Appadu, 50 Years, Turupu Kapu, R/o.22-17-5B, Cement Road, Bhanu Nagar, Vijayawada, A.P. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., through Inspector of Police, S.N. Puram P.S., Vijayawada City ... Respondent/Complainant.

! Counsel for the Appellant : Sri V. Raghu, State Brief.

^ Counsel for the Respondent : Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

This Court made the following:

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

CRIMINAL APPEAL NO.944 OF 2009

JUDGMENT:-

The unsuccessful accused in Sessions Case No.160 of

2008, on the file of Sessions Judge, Mahila Court, Vijayawada

("Sessions Judge" for short), challenging the judgment, dated

02.03.2009, filed the present Criminal Appeal. The unsuccessful

accused in the above said case faced charge under Section 376

of the Indian Penal Code ("I.P.C" for short) and after completion

of trial, he was convicted under Section 235(2) of the Code of

Criminal Procedure ("Cr.P.C." for short) and sentenced to suffer

rigorous imprisonment for seven years and to pay a fine of

Rs.2,000/-, in default to suffer simple imprisonment for six

months.

2) The parties to this Criminal Appeal will hereinafter

be referred to as described before the Sessions Judge, Mahila

Court, Vijayawada, for the sake of the convenience.

3) The Sessions Case No.160 of 2008 arose out of a

committal order in P.R.C.No.30 of 2008, on the file of I

Additional Chief Metropolitan Magistrate, Vijayawada, pertaining

to Crime No.166 of 2008 of Satyanarayanapuram Police Station,

Vijayawada City, alleging the offence under Section 376 of I.P.C.

4) The State, represented by the Inspector of Police,

S.N. Puram Police Station, Vijayawada City, filed a charge sheet

as above alleging in substance as follows:

(i) The accused is resident of Bhanu Nagar, Vijayawada.

He is working as night watchman in Satyabhama cloth stores.

The daughter of the accused is running Lakshmi Fancy and

Clothes Stores at Cement Road, Bhanu Nagar. The accused

being night watchman used to look after the shop of his

daughter during day time. He developed evil intention towards

the victim girl who used to purchase fancy articles from the said

shop.

(ii) L.W.1, the victim girl, is studying 7th class in

S.T.V.R.M.C.H. School. She is living with her mother L.W.2-

Bondada Lakshmi and her elder brother in a thatched house for

rent near railway track. Her father died in an accident about

one month back. Her mother used to do coolie works to look

after the welfare of the children.

(iii) As the shop of the daughter of the accused is very

nearer to the house of the victim, she used to visit the shop

frequently for purchase of bangles, ribbons, nail polish, etc.

Two days prior to Ugadi festival, she went to the said fancy shop

and by then the accused was transacting the business. She

asked the accused for nail polish and the accused told her that

the nail polish and ribbons are in his house and took her to his

house, which is situated in the next street. He took the victim to

the middle room where a cot is lying and asked her to remove

her clothes and lye on the bed. When she refused to do so, he

threatened her that he would kill her mother and brother and

made her to remove her clothes. He also removed his clothes

and laid on her and raped her. He gagged her mouth not to

shout. Afraid of the words of the accused, the victim did not

disclose the offence to anybody. Afterwards also whenever

victim goes to school, accused used to threaten her and asked

her to come to his house. He frequently gives nail polish without

taking money.

(iv) On 11.04.2008 at 1-30 p.m., the accused threatened

and took the victim to his house and again raped her. When

victim went to the house of the accused, the neighbourers

L.W.4-Peketi Vara Lakshmi, L.W.5-Jampala Prasanna, L.W.6-

Kadavala Lakshmi and L.W.7-Datti Parvathi, saw her.

Thereafter, the accused went to the school of victim and asked

her to come to his house which was also witnessed by L.W.8-

Cheemala Gunnamma @ Gundamma, who is the friend of the

victim. Gundamma immediately informed the same to L.W.2,

the mother of the victim and when the mother of the victim

enquired her, she disclosed the entire incident. Then the mother

of the victim went to the house of the accused to question him

and accused ran away from the house. Later, L.W.2 and the

brother-in-law of the victim i.e., L.W.3-Vinjarapu Ramu took the

victim to S.N. Puram Police Station and reported the matter to

the police.

(v) L.W.17-Sub-Inspector of Police, S.N. Puram Police

Station recorded the statement of the victim and registered the

same as a case in Crime No.166 of 2008 under Section 376 of

I.P.C. and issued original F.I.R. and copies to all concerned.

L.W.18-Inspector of Police, S.N. Puram Police Station,

Vijayawada City, took up investigation, examined the victim and

recorded her detailed statement. He also recorded the

statements of neighbourers and other witnesses. He visited the

scene of offence and got prepared observation report on

16.04.2008 at 3-00 p.m. in the presence of the mediators

L.W.12-Angirekula Nageswara Rao and L.W.13-Jangam Bala

Raju. He got photographed the scene of offence through L.W.10-

Bondalapati Joji. He also prepared rough sketch. L.W.18 sent

the victim to medical officer for conducting necessary medical

examinations and for issuance of medical certificate and to the

Asst. Professor for age determination certificate. L.W.18

arrested the accused on 17.04.2008 at 7-00 a.m. and sent him

to medical examination about the potency and thereafter sent

him to remand. On 25.06.2008 L.W.14-Judicial Magistrate of

First Class, Special Mobile Court, Machilipatnam recorded the

statement of the victim under Section 164 of Cr.P.C. L.W.15-

Medical Officer issued preliminary medical report kept pending

issuance of final opinion and forwarded the preserved material

to R.F.S.L. After receipt of R.F.S.L. report, she issued the final

opinion that there is a clinical evidence of sexual intercourse.

L.W.16-another Medical Officer issued age determination

certificate opining that the age of the victim girl is about 14

years. L.W.16 also issued potency certificate of the accused

opining that the accused is capable of performing sexual

intercourse. Hence, the charge sheet.

5) The learned I Additional Chief Metropolitan

Magistrate, Vijayawada, took cognizance of the case under

Section 376 of I.P.C. and after compliance of formalities under

Section 207 of Cr.P.C., committed the case to the Court of

Metropolitan Sessions Judge, Vijayawada and thereafter, the

case was numbered and was made over to the learned Sessions

Judge, Mahila Court, Vijayawada.

6) On appearance of the accused before the learned

Sessions Judge, Mahila Court, Vijayawada and after complying

the procedure under Section 228 of Cr.P.C., charge under

Section 376 of I.P.C. was framed and explained to the accused

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

tried.

7) To bring home the guilt against the accused, the

prosecution before the learned Sessions Judge examined P.W.1

to P.W.10 and got marked Ex.P.1 to Ex.P.11. After closure of the

evidence of the prosecution, the accused was examined under

Section 313 Cr.P.C. with reference to the incriminating

circumstances in the evidence adduced by the prosecution, for

which he denied the same and did not adduce any defence

evidence.

8) The learned Sessions Judge, Mahila Court,

Vijayawada, on hearing both sides and on considering the oral

as well as documentary evidence, found the accused guilty of

the charge under Section 376 of I.P.C. 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 six months. Felt

aggrieved of the same, the unsuccessful accused filed present

Criminal Appeal.

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

points that arise for consideration are:

(1) Whether the prosecution before the trial Court proved beyond reasonable doubt that the accused committed rape against the victim girl two days prior to Ugadi festival in the month of April, 2008 which is punishable under Section 376 of I.P.C.?

(2) Whether there are any grounds to interfere with the judgment of the learned Sessions Judge, Mahila Court, Vijayawada?

Points:-

10) Sri V. Raghu, Advocate, who is appointed as State

Brief to defend the appellant, would contend that there are

improvements in the evidence of the prosecution witnesses

especially, P.W.1 to P.W.4 on material aspects. Deviating from

the manner of incidents in Ex.P.1, the victim developed the case

as if the accused put cloth in her mouth and beat her. It is not

there in Ex.P.1 statement. The accused was able to elicit the

omissions from the mouth of the investigating officer. Though

the offence was said to be occurred two days prior to Ugadi

festival of 2008 and even thereafter within a gap of 10 days,

report came to be lodged with abnormal delay and the

prosecution failed to explain the delay. The report could be

lodged on 16.04.2008. There was previous dispute between the

mother of the victim and the accused in connection with the

daughter of the accused and keeping in view, a false case is

foisted against the accused. The investigating officer admitted

about the omissions in the cross-examination of PW.1. There

was no corroboration to the evidence of P.W.1. The Court below

did not appreciate the evidence of the medical officer P.W.7

properly. The victim was subjected to medical examination

during the menstrual period. The Court below erroneously

convicted the accused, as such, the Criminal Appeal is liable to

be allowed.

11) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the omissions that were suggested to the prosecution witnesses

are trivial in nature and even if they were excluded, the case of

the prosecution with reference to Ex.P.1 remained intact. The

evidence of P.W.1 has corroboration from P.W.2, the mother of

P.W.1 and even P.W.3, P.W.4 and P.W.6 testified the act of the

accused in coming to the school and causing enquiries about the

victim. According to the medical evidence, there was evidence of

sexual intercourse. So, the oral evidence of the victim has also

corroboration. The victim has no reason to implicate the accused

falsely. The learned Sessions Judge rightly appreciated the

evidence on record, as such, the appeal is liable to be dismissed.

12) P.W.1 is the victim. P.W.2 is mother of P.W.1.

P.W.3 is the neighbor to the house of the accused. P.W.4 is the

co-student of P.W.1. P.W.5 is the Photographer who took

photographs at the scene of offence. P.W.6 is the class Teacher

of P.W.1. P.W.7 is the medical officer, who examined P.W.1 and

issued wound certificate. P.W.8 is another medical officer, who

examined P.W.1 and issued age determination certificate and

who also examined the accused and issued potency certificate.

P.W.9 is the Sub-Inspector of Police, who registered the F.I.R.

P.W.10 is the main investigating officer.

13) Turning to the evidence of P.W.1, her evidence in

brief is that her father died about six months ago prior to her

evidence. Her mother is coolie. She knows the accused, who is

running a fancy shop near to their house. She used to go to the

fancy shop of the accused to purchase ribbons, nail polish, etc.

While she was studying 7th class, she went to the fancy shop of

the accused to purchase ribbons and nail polish in the month of

April. The accused took her to his house saying that they were

not available in the shop but they were available in the house.

House of the accused is situated in Bhanu Nagar very nearer to

his fancy shop. It was happened at about 1-30 p.m. After the

accused took her to his house, made her to sit on a cot. He put

clothes into her mouth and asked her to remove her clothes.

When she refused to do so, he beat her to remove her clothes.

Then the accused removed her clothes and also his clothes. The

accused put his penis into her vagina and committed rape. The

accused lifted her and asked her to put on her clothes. Then she

put on her clothes. He threatened her that he would kill her

mother and brother, if she disclose the incident to anybody and

stated that her father already died. Then she went to her house.

Thereafter she went to the school. The accused used to come to

the school and used to threaten her that he would kill her

mother and brother and used to ask her to come to his house

after the school is over. Once the accused came to her school

and asked her to come to his house. At that time one

Gundamma, her classmate, heard the words of the accused.

Then she was attending examinations. After she attended the

examination, the accused asked her Teacher to send her along

with him saying that her paternal grandmother died. Her

Teacher did not send her along with the accused and asked the

accused to go away. Then she went to her house. Her classmate

Gundamma informed to her mother, who in turn informed the

same to her mother. Then her mother took her to the house of

the accused, the accused ran away. When her mother

questioned her, she narrated the entire incident. Then she and

her mother went to the police station. Ex.P.1 is her statement.

She further deposed that the accused also committed rape on

her at another time in the same house. Police examined her.

One lady Magistrate also recorded her statement. Her date of

birth was 12.01.1996.

14) Coming to the evidence of P.W.2, the mother of

P.W.1, she deposed that about nine months back, the friend of

her daughter namely Gundamma told her that one person come

to school to take her daughter and that person is fancy shop

owner and further asked her whether she sent him (accused) for

her daughter. Then she replied that she did not send him for her

daughter. Then Gundamma told her that the person came to the

school and enquired about her daughter. She further revealed

that at 1-00 p.m. the said person came to their school. Then she

asked her daughter as to what happened. In the beginning she

did not tell anything. Then she insisted her daughter as to what

happened. She told her that when she gone to fancy shop of

accused to purchase ribbons and pinnusulu, he took her to his

house saying that they are not available in the shop, but, they

are available at his house and made her to sit on a cot and

closed the door and asked her to remove her clothes and when

she refused to do so, accused removed her clothes and also

removed his clothes and when she was crying, he put clothes

into her mouth and committed rape. Four days thereafter the

accused again committed rape and threatened her that he would

kill her mother and her brother. Then she took her daughter and

her son to the house of the accused. The accused ran away.

Then she took her to her daughter to the police station where

police examined her and sent her to hospital.

15) Coming to the evidence of P.W.3, the neighbourer to

the house of the accused, she deposed that three days prior to

the galata that took place at 4-00 p.m. P.W.1 was going in front

of her house and when she asked her where she was going, she

replied that she was going to the house of accused. When she

was enquiring other children, who was P.W.1 and why she came

there, within 10 minutes, the accused came out from his house

and later P.W.1 also came out from the house of accused and

went away. In the month of April, this incident took place. It

was during examinations period. Three days thereafter the

mother of P.W.1 came to their house and took the accused to

her house. Police also came to her house at that time.

16) Coming to the evidence of P.W.4, she deposed that

in the month of April, 2008, she and P.W.1 were studying 7 th

class. In the same month of April, 2008 their examinations were

going on. On that day, the accused came to their school at

about 1-30 p.m., and enquired her about P.W.1. She replied

that P.W.1 gone away. When she asked the accused as to why

he asked about P.W.1, he told her that the paternal

grandmother of P.W.1 died. Then the accused went away. Then

she went to the house of P.W.1 and asked the mother of P.W.1

whether her mother-in-law died and that the accused told the

said fact to her. Then the mother of P.W.1 told her that her

mother-in-law did not die and asked her who told the fact to

her.

17) Coming to the evidence of P.W.6, the Teacher, she

deposed that on 14.04.2008, the 7th class last annual

examinations were going on in the school. The primary school is

also located in their school premises. Two students of primary

school came to her and told her that somebody came for P.W.1

stating that her paternal grandmother died. By then P.W.1 was

writing her 7th class examination and she was the invigilator in

the examination. Then she came out and found the accused and

informed to the accused that as examination was going on,

P.W.1 could not be sent out. Then the accused went away. After

examination, students gone away and then she too went away.

Police examined her on 18.04.2008.

18) For better appreciation, it is pertinent to look into

Ex.P.1 statement of P.W.1 recorded by the police. The substance

of Ex.P.1 is that it is the statement of the victim. Her father died

about one month back prior to the report. She attained puberty

about one month ago. Her mother used to look after her and

her elder brother. Accused is running a fancy shop. She used

to purchase ribbons, nail polish and bangles. Accused used to

talk with her funnily. Ten days ago i.e., two days prior to Ugadi

festival she went to the shop of the accused to purchase the

above items and the accused took her to his house which is

situated by the neighbouring lane. He took her to the cot in the

house and asked her to lie over by removing her clothes, for

which she refused and he threatened to kill her mother and

elder brother and made her to remove her clothes and accused

also removed his clothes and committed rape. He pressed her

mouth preventing her from raising any cries. On account of the

words of the accused, she did not reveal the incident to

anybody. Thereafter, whenever she goes to school, accused

used to threaten her and demand her to come to his house. He

used to supply free of cost the nail polish and ribbons. On

11.04.2008 at 1-30 p.m., the accused took her to the house and

committed rape. When she is going along with the accused,

neighbourers also witnessed. On one day, accused came to the

school and asked her to come and it was witnessed by

Gundamma and Gundamma intimated the same to the mother

of the victim and her mother asked her as to what happened

and she reveled the incident. So, the victim lodged the report

on 16.04.2008. This is the substance of Ex.P.1.

19) As evident from the cross examination part of P.W.1,

the contention of the accused is that P.W.1 did not state before

police that the accused put clothes into her mouth and asked

her to remove the clothes and that she did not mention in

Ex.P.1 or before police that the accused inserted penis into her

vagina and beat her to remove her clothes. She denied that the

defence theory that her mother borrowed Rs.1,000/- from the

daughter of the accused and when his daughter demanded her

mother for repayment of the amount, altercation took place

where the accused intervened and beat her mother and with

grudge her mother used her to file false case. P.W.1 denied the

said defence theory. Coming to the cross examination of P.W.2,

the contention of the accused is that she did not state before the

police that P.W.1 told her that she gone to the shop of accused

to purchase safety pins, ribbons, etc., and that four days later

the accused committed rape on P.W.1 and that when she was

enquiring the accused, he ran away. She denied that she

borrowed hand loan of Rs.1,000/- from the daughter of the

accused and in that connection, an altercation took place

between her and the daughter of the accused and due to grudge

against his daughter, she used her daughter as a tool in filing

false case. P.W.3 during the cross examination denied that she

did not state before police that she enquired P.W.1 where she

was going and was enquiring other children as to why P.W.1 was

going to the house of the accused and that 10 minutes

thereafter, accused came out from his house and later P.W.1

came out from his house. She denied that she is deposing false.

P.W.4 during cross examination denied that she did not state to

police what she stated in her chief examination and that she told

to the mother of P.W.1 that the accused came and told her that

her mother-in-law died and that she is deposing false. Coming

to the cross examination of P.W.6, she denied that she did not

state to police that two primary school students came to her and

told her that somebody came for P.W.1. She deposed that the

parents of the students used to come to school. She denied that

the accused did not come to the school and she is deposing

false.

20) As seen from the evidence of P.W.10, the

investigating officer, certain omissions are proved. According to

P.W.10, P.W.1 did not state to him that the accused put clothes

into her mouth and the accused beat her to remove her clothes

and she did not specifically state that the accused inserted his

penis into her vagina, but she stated that the accused spoiled

her. He further deposed that P.W.1 did not state to him during

examination that the accused came to her school and asked her

Teacher to send her as her paternal grandmother died and that

her Teacher did not allow to send her along with the accused.

P.W.2 did not specifically state to him that the victim girl went

to the shop of the accused to purchase pinnisulu and that she

was told by P.W.1 that the accused put clothes into the mouth of

P.W.1. P.W.3 did not state to him that she enquired the victim

girl as to where she was going when the victim girl was going in

front of her house and that she enquired the co-students about

the victim girl and that thereafter, the accused came out and

followed by the victim girl. P.W.4 did not state to him during the

cross examination that the accused came to their school and

asked her about the victim girl and she replied that victim girl

went away to her house and that when she enquired the

accused as to why he was asking about P.W.1, he replied that

her paternal grandmother died. P.W.6 did not specifically state

to him that two primary school students came to her, but, she

stated two school children came to her.

21) As seen from the omissions suggested to P.W.1,

P.W.2, P.W.3, P.W.4 and P.W.6 which were elicited from the

mouth of P.W.10 they are trivial in nature. The substratum of

the case of the prosecution as projected in Ex.P.1, remained

intact, even if the omissions are excluded from the

consideration. There is a whisper in Ex.P.1 that the accused

pressed the mouth of the victim to prevent her in raising cries.

Though the evidence of P.W.1 that accused put clothes in her

mouth and beat her are omissions, but her evidence that the

accused committed rape against her remained intact. There is a

clear whisper in Ex.P.1 that the accused committed rape. The

evidence of P.W.1 that the accused put his penis into her vagina

would not convey any further meaning and it only means for

rape. Therefore, when the victim narrated in detail as to the

manner of rape, her evidence that the accused put his penis into

her vagina cannot be taken as omission. The manner in which

P.W.2 came to know about the fact that the accused made some

enquiries about P.W.1 in the school is corroborated by the

evidence of P.W.4, the co-student. Though there are omissions

in the evidence of P.W.2 to P.W.4, but, they are trivial in nature.

The substratum of the case of the prosecution that P.W.3

witnessed when the victim was going to the house of the

accused remained intact, even if the omissions of P.W.3 are

excluded from consideration. The fact that the accused came to

the school and caused enquiries about whereabouts P.W.1 is

spoken to by P.W.4, the co-student and P.W.6 the Teacher. On

what aspect the accused made such enquiry is immaterial.

Absolutely, the accused had no business to come to the school

of P.W.1, making enquiry about her presence subsequent to the

commission of offence. In my considered view that the very

evidence of P.W.1 to P.W.4 consistently corroborated with each

other.

22) Coming to the age of the victim at the time of

offence in question, the case of the prosecution is that she was

aged about 13 years. The victim testified the above. In the

entire cross examination of P.W.1 to P.W.4, the age of the

victim was not at all disputed. There is evidence of P.W.8, the

medical officer, that he examined the victim and issued age

determination certificate and according to Ex.P.6, she was aged

about 14 years. The date of examination of the victim by P.W.8

was on 17.04.2008. Apart from this, there is Ex.P.11, study

certificate, which reveals that the victim was born on

06.05.1995. Ex.P.11 was marked through the evidence of

P.W.10, the investigating officer. It is not the case of the

accused that the victim was above the age of 14 years at the

time of occurrence. So, the prosecution before the Court below

categorically proved through the scientific evidence as well as

Ex.P.11 that the victim was born on 06.05.1995 which means

that she was aged about 13 years as on the date of commission

of offence. The age of the victim is material here for the reason

that according to Section 375 of I.P.C. which was in force as on

the date of commission of offence, a man is said to commit rape

with or without her consent when the victim is under 16 years of

age. Throughout the trial, the accused never ventured to dispute

the age of the victim.

23) It is to be noticed that the defence of the accused is

that on account of quarrel between the accused and the mother

of the victim where he beaten the mother of the victim, a false

case is foisted. When the victim denied the said suggestion, the

accused did not venture to put up a suggestion before P.W.2

that he beaten her, as such, she implicated in the false case.

The vague suggestion put-forth before P.W.2 that on account of

dispute with the daughter of the accused, he is falsely implicated

cannot stands to any reason. P.W.1 who was a student in the

age of 13 years at the time of offence had no reason to

implicate the accused falsely. It is not the case of the accused

that P.W.1 had any questionable antecedents to implicate the

accused in the case of this nature. In Indian background of

society, a girl like P.W.1, who was a minor and who was a

student would not come and depose falsely that she was raped

by the accused unless she had questionable antecedents. Her

evidence remained unshaken during probing cross examination.

Hence, the oral evidence of P.W.1 is fully convincing. Her

evidence has corroboration from the evidence of P.W.2 to P.W.4

with regard to her going to the house of the accused along with

the accused and the accused making enquiry about her in the

school. P.W.6, the Teacher, had no reason to depose false

against the accused. The accused had no business whatsoever

to go to the school of the victim and questioned about her

whereabouts. So, he did all these things even after the offence

with a bad motive to commit further offence.

24) Coming to the medical evidence, according to P.W.7,

on 16.04.2008 at 8-00 p.m., she examined P.W.1 with history of

sexual assault by a known person repeatedly three or four times

since past one month. She deposed that the victim was in

menstrual period at the time of examination. According to her

on local examination, external genitalia is healthy and hymen is

found not intact. Old tears of hymen seen at 4 „o‟ clock position.

Vagina admitting one finger loosely. Hence, according to her,

there is clinical evidence of sexual intercourse. Ex.P.5 is her

final opinion. She denied in cross examination that if a girl

participates in sports and games and doing cyclying, there is a

possibility for tearing of hymen. She deposed that she did not

think there will be tearing of hymen by self fingering and itching.

25) It is to be noticed that P.W.1 specifically stated in

cross examination that she never participated in the sports and

drills. She used to play with friends. She can ride a cycle. The

accused failed to elicit any favourable answer from P.W.7 for

rupture of hymen in the manner as alleged. So, the oral

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

P.W.7 and coupled with Ex.P.5, the medical opinion. As pointed

out, the victim was aged about 13 to 14 years by the time of

commission of offence and the age of the victim is not in

dispute. According to P.W.7, the accused was capable of

performing sexual intercourse and Ex.P.7 is the potency

certificate.

26) P.W.9 spoken to the fact that on 16.04.2008 P.W.1

along with her mother came to the police station and gave

Ex.P.1 statement and he registered it as a case in Crime No.166

of 2008 under Section 376 of I.P.C. and issued F.I.R. P.W.10,

the investigating officer, spoken in detail about the investigation

done by him. Except, regarding the omissions suggested to

P.W.1 to P.W.8, nothing is elicited from his evidence to

disbelieve the evidence of the prosecution.

27) Coming to the aspect of delay, there was no

occasion for P.W.1 to go to the police station till her mother

enquired her as to what happened. So, her mother soon after

came to know about the occurrence through the mouth of

P.W.1, took P.W.1 to the police station. Under the

circumstances, the incident of rape could only came to the

notice of the mother i.e., P.W.2 subsequent to 11.04.2008 i.e.,

in between 11.04.2008 and 16.04.2008. Hence, it cannot be

held that there is any delay deliberately in lodging Ex.P.1 to

police. The contention of the learned counsel for the appellant

that there is delay in lodging report cannot stand to any reason.

28) The learned Sessions Judge, Mahila Court,

Vijayawada, having analyzed the evidence in proper perspective,

rightly convicted and sentenced the accused. The evidence of

P.W.1 is fully convincing which has corroboration from the

medical evidence.

29) Having regard to the overall facts and

circumstances, in my considered view, the prosecution before

the Court below categorically proved the incident of rape

committed by the accused against P.W.1 two days prior to Ugadi

festival in April, 2008 and thereafter beyond reasonable doubt.

Hence, I hold that there are no merits in the appeal, as such,

the Criminal Appeal is liable to be dismissed.

30) In the result, the Criminal Appeal is dismissed, as

such, the judgment, dated 02.03.2009 in S.C.No.160 of 2008,

on the file of learned Sessions Judge, Mahila Court, Vijayawada

shall stands confirmed.

31) The Registry is directed to take steps immediately

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

along with the trial Court, if any, to the Court below on or before

21.06.2023 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

appellant (accused) and to report compliance to this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.06.2023.

PGR

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

CRL. APPEAL NO.944 OF 2009

DIRECTION:

Date: 14.06.2023

PGR