Andhra Pradesh High Court - Amravati
Vallepu Koteswara Rao, vs The State Of Ap Rep By Its Pp Hyd., on 4 November, 2023
Bench: A V Babu
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.1563 OF 2010
Between:
Vallepu Koteswara Rao,
S/o.Venkata Swamy,
Aged 25 years, R/o.Vaddera,
Under the Flood Bank, Gollapudi,
Vijayawada Rural Mandal,
Krishna District. .... Appellant/Accused
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
DATE OF JUDGMENT PRONOUNCED : 04.11.2023
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
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
2
AVRB,J
Crl.A. No.1563/2010
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.1563 OF 2010
% 04.11.2023
# Between:
Vallepu Koteswara Rao,
S/o.Venkata Swamy,
Aged 25 years, R/o.Vaddera,
Under the Flood Bank, Gollapudi,
Vijayawada Rural Mandal,
Krishna District. .... Appellant/Accused
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
! Counsel for the Appellant : Sri D.S.N.V. Prasad Babu,
Rep. Sri Md. Saleem Basha
^ Counsel for the Respondent : Sri N. Sravan Kumar,
Learned Special Asst.
Rep. Learned Public
Prosecutor.
> Head Note:
? Cases referred:
1) (1979) 4 SCC 413
2) (1979) 4 SCC 349
3) (1995) 6 SCC 230
This Court made the following:
3
AVRB,J
Crl.A. No.1563/2010
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.1563 OF 2010
JUDGMENT:
The judgment, dated 14.12.2010, in Sessions Case No.78 of
2009 on the file of Sessions Judge, Mahila Court, Vijayawada (for
short, 'the learned Sessions Judge'), is under challenge in the
present Appeal filed by the appellant, who was the unsuccessful
accused in the aforesaid Sessions Case.
2. The parties to this Criminal Appeal will hereinafter be
referred to as described before the trial Court, for the sake of
convenience.
3. Sessions Case No.78 of 2009 arose out of the committal
order in Preliminary Registered Case (PRC) No.24 of 2008 on the
file of the Court of Chief Metropolitan Magistrate, Vijayawada (for
short, 'the learned Chief Metropolitan Magistrate') pertaining to
Crime No.647 of 2007 of Law and Order Police Station, Vijayawada
for the offence under Section 376 (2)(f) of the Indian Penal Code,
1860 (for short, 'the IPC').
AVRB,J
Crl.A. No.1563/2010
4. The case of the prosecution, in brief, according to the charge
sheet filed by the State, represented by the Inspector of Police, I
Town Police Station, Vijayawada City is as follows:
(i) The accused is a resident of Gollapudi, Vijayawada. He is
an Auto Driver. LW.1 - Vallepu Janaki is the de-facto complainant.
She is also resident of Gollapudi. Her husband, LW.3 - Vallepu
Guravaiah is also an Auto Driver. LW.2 (hereinafter referred to as
'the victim'), aged 12 years, is the daughter of LW.1 and LW.3. She
is studying 5th class. Accused is the younger brother of LW.3,
father of the victim. LW.1 used to do servant maid works at some
houses and used to leave the house early in the morning and
return at about 11:00 or 11:30 a.m. Likewise LW.3, father of the
victim, also used to go out in the morning with his Auto and
return to the house during nights.
(ii) On 18.11.2007, when the parents of the victim went out
on their works, the victim (LW.2) and her brother - Vallepu Ravi
Kumar (LW.4) and her cousin brother - Vallepu Malleswara Rao
(LW.5) were present in the house. Then, at about 10:30 a.m.,
accused, who is no other than her junior paternal uncle, came to
the house of the victim, when she was eating curd rice. He gave
Rs.1/- each to LW.4 and LW.5 and sent them out saying to get
some eatables. He took the victim to his house. His wife was also
AVRB,J
Crl.A. No.1563/2010
not present in the house. He laid the victim on the iron tubular cot
in his house, removed her pant (bottom of Punjabi dress) and
underwear, overpowered her and inserted his penis into her vagina
forcibly. She got much pain at her vagina and also resisted him
asking innocently as to 'Babayi, what is this' and thereby the
accused committed rape on her inhumanely. She got heavy
bleeding from her vagina and became unconscious. On seeing this,
the accused got confusion. He called LW.6 - Pasupuleti Manikyam
to his house and asked her to see the victim saying that she might
have got menses for the second time. He also sent a word to LW.7
- Jada Ramana through LW.4 - Vallepu Ravi Kumar to come to his
house and see the victim. He immediately went away from there.
Meanwhile, at about 11:30 a.m., LW.1 came to her house and
found her daughter missing from the house. On search, she
noticed her daughter in a pool of blood, unconsciously on the cot
in the house of the accused. Then, LW.6 and LW.7 also came there
and noticed the victim but they did not suspect any bad on the
part of the accused because he is the junior paternal uncle of the
victim. LW.1 and LW.6 immediately shifted the injured to the
nearby private hospital where the doctor advised them to take her
to Government General Hospital (GGH), Vijayawada as her
condition is very serious. Immediately, they shifted the victim to
AVRB,J
Crl.A. No.1563/2010
GGH, Vijayawada, where LW.18 - Dr. N. Durga Srilakshmi,
Woman Medical Officer, on examination, declared that she was
raped brutally. Then only LW.1 and LW.6 came to know about the
offence committed by the accused. LW.6 informed the same over
phone to LW.8 - Namburi Hemantha Rao, who in turn informed
the incident to all in the locality. Then, LW.3 - father of the victim
went to the hospital and found his daughter undergoing treatment
and learnt the details of the offence through her. Thus, the
accused, without considering the victim as daughter of his elder
brother, inhumanely and brutally, committed rape on a minor girl
and absconded.
(iii) On 19.11.2007 at about 07:00 p.m. LW.1 came to I
Town Police Station, Vijayawada and presented a report about the
occurrence. LW.21 - M. Naveen, Sub-Inspector of Police, Law and
Order I Town Police Station, Vijayawada registered the same as
FIR in Crime No.647 of 2007 for the offence under Section 376(2)(f)
IPC and submitted Express FIR to all the concerned Officers.
LW.22 - Y.V.Ramana, Inspector of Police, I Town P.S., Vijayawada
took up further investigation, inspected the scene of offence in the
presence of LW.16 - Vanguru Devadasu and LW.17 - Chittineni
Subbarao, mediators, prepared observation report and rough
sketch. He seized the clothes of the victim worn at the time of
AVRB,J
Crl.A. No.1563/2010
offence under the cover of observation report. He recorded the
statements of the witnesses under Section 161 Cr.P.C.
(iv) LW.18, Woman Medical Officer, who examined the
victim, issued the wound certificate opining that there is injury to
the vaginal wall caused by sexual intercourse and there is clinical
evidence of sexual intercourse.
(v) LW.19 - A. Subba Rao, Head Master of MPP UP School,
Gollapudi issued the study certificate of the victim stating the date
of birth of the victim as 11.10.1996. The accused was arrested on
21.11.2007 and, on his voluntary confession before the mediators,
the bloodstained shawl worn by him at the time of offence was
seized under the cover of mediators report. He was subjected to
medical examination. Later he was sent to judicial custody. The
material objects were forwarded to RFSL, Vijayawada through the
office of the ACP, West Zone, Vijayawada City. LW.20 - Dr. P.
Chandrasekhar Rao, who examined the accused, issued the report
opining that there is nothing to suggest the accused is not capable
of performing sexual intercourse. LW.23, Inspector of Police, I
Town Police Station, Vijayawada finalized the investigation and
filed charge sheet before the learned Chief Metropolitan
Magistrate.
AVRB,J
Crl.A. No.1563/2010
5. The learned Chief Metropolitan Magistrate, Vijayawada took
cognizance of the case for the offence under Section 376(2)(f) IPC
and numbered it as PRC No.24 of 2008. After compliance of
necessary formalities under Section 207 of the Code of Criminal
Procedure, 1973 (for short, 'the Cr.P.C') and exercising the powers
under Section 209 Cr.P.C., the learned Chief Metropolitan
Magistrate committed the case to the Court of Session and
thereupon, it was numbered as S.C. No.78 of 2009 and made over
to the Court of learned Sessions Judge, Mahila Court, Vijayawada
for disposal in accordance with law.
6. After appearance of the accused before the learned Sessions
Judge, Mahila Court, Vijayawada, a charge under Section 376(2)(f)
IPC was framed and explained to the accused in Telugu, for which
he pleaded not guilty and claimed to be tried.
7. The prosecution, in order to establish the guilt against the
accused, examined PWs.1 to PW.11 and got marked Exs.P-1 to
P-11 and MO.1 and MO.2.
8. After closure of the evidence of the prosecution, accused was
examined under Section 313 Cr.P.C with reference to the
incriminating circumstances appearing in the evidence let in by
AVRB,J
Crl.A. No.1563/2010
the prosecution, for which he denied the incriminating
circumstances and stated that he has no defence evidence and
nothing to show.
9. The learned Sessions Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found
the accused guilty of the charge under Section 376(2)(f) IPC and,
after questioning him about the quantum of sentence, sentenced
him to suffer Rigorous Imprisonment for 10 years and to pay a fine
of Rs.1,000/- in default to suffer Simple Imprisonment for 6
months.
10. Felt aggrieved of the same, the un-successful accused filed
the present Appeal challenging the judgment of the learned
Sessions Judge in convicting him under Section
376(2)(f) IPC.
11. Before going to frame the points for determination, this
Court would like to make it clear that as the accused was not
prosecuting the Appeal, properly, and he was not getting any
representation made on his behalf, initially a Bailable warrant was
issued and in spite of the execution of Bailable Warrant and
presence of the accused even thereafter he failed to give proper
AVRB,J
Crl.A. No.1563/2010
instructions to his Advocate to advance the arguments and later
this Court secured the presence of the accused by issuing a Non
Bailable Warrant and as of now the accused is undergoing the
sentence of imprisonment in pursuance of execution of Conviction
Warrant entrusted by the trial Court, pending disposal of the
Appeal.
12. Now, in deciding this Appeal, the points that arise for
consideration are as follows:
1) Whether prosecution before the trial Court proved
that the accused committed rape against the victim
(PW.2), aged 12 years, in the manner as alleged?
2) Whether the prosecution proved the charge under
Section 376(2)(f) IPC against the accused beyond
reasonable doubt?
3) Whether the judgment is sustainable under law and
facts and whether there are any grounds to interfere
with the impugned judgment?
POINT Nos.1 & 2:
13. Sri D.S.N.V. Prasad Babu, learned counsel, representing Sri
Md. Saleem Basha, learned counsel for the appellant, would
AVRB,J
Crl.A. No.1563/2010
contend that there was delay of 1 day in lodging Ex.P-1 report to
the Police. The prosecution did not explain as to why there was
delay of 1 day in lodging Ex.P-1 report. The evidence of PW.1 and
PW.2 - the victim, is not in corroboration. Except the evidence of
PW.1, there is no other direct evidence to speak about the
occurrence of incident. The evidence of PW.1 is hearsay in nature.
PW.3, brother of the victim, is a child witness and he was a
tutored witness, whose evidence is not at all convincing. The
prosecution did not examine the private hospital doctor before
whom firstly the victim was taken and it is fatal to the case of
prosecution. Though the victim was referred to GGH, Vijayawada
later the prosecution did not explain as to why Outpost Police
therein did not record the statement of the victim as a Medico
Legal Case. So, on account of the delay of 1 day, possibility for
false implication of the accused in this case cannot be ruled out.
No injuries were found on the person of victim, if really, the rape
was committed by the accused brutally. There was absence of
spermatozoa on the person of victim, which rules out the
allegation of rape. Non-examination of private doctor is fatal to the
case of prosecution. Learned counsel would further submit that
the un-corroborated evidence of PW.2 cannot be believed and
further the sentence imposed against the accused is also harsh.
AVRB,J
Crl.A. No.1563/2010
He would further rely upon a decision of the Hon'ble Apex Court in
Phul Singh v. State of Haryana1 and contend that, in that case,
considering the age of the accused as that of 22 years and that he
had no past criminal history, extended benefit of parole to the
accused. Similar analogy can be extended to the accused in the
present case. With the above submissions, learned counsel for the
appellant would contend when the evidence on record does not
warrant the conviction and even otherwise, in view of the decision
of Hon'ble Apex Court in Phul Singh (supra), this Court can show
some sympathy towards the accused for reducing the sentence of
imprisonment.
14. Sri N. Sravan Kumar, learned Special Assistant,
representing learned Public Prosecutor, would contend that the
accused is no other than the junior paternal uncle of the victim.
The victim was admitted into Hospital after occurrence of the
incident and she has undergone treatment in the hospital. The
laches, if any, on the part of the Medical Officer in not giving
medical intimation to the Police to record the statement of the
victim would not enable the accused to contend that the case is
false. There was brutal rape, which is evident from the medical
1 (1979) 4 SCC 413
AVRB,J
Crl.A. No.1563/2010
evidence. PW.2 withstood the cross-examination. In a case of this
nature, there would be no direct evidence. PW.3, brother of the
victim, supported the acts against the accused as if PW.3 was sent
out with some other reason. The evidence on record would reveal
that having found that the victim is profusely bleeding on account
of the act of the accused, accused invented a theory that as if
there was menstrual period to the victim and such a defence was
falsified before the trial Court. PW.1, PW.2 and PW.3 have no
reason to depose false against the accused because they are close
blood relatives. The act of the accused is inhuman. The learned
Sessions Judge rightly believed the evidence on record and
convicted the accused. He would rely upon the decisions of the
Hon'ble Apex Court in Mange v. State of Haryana2 and State of
A.P. v. Bodem Sundara Rao3. Learned Special Assistant would
further submit that the accused is liable for deterrent punishment
and the learned Sessions Judge rightly imposed the Rigorous
Imprisonment of 10 years as such the sentence imposed is not
liable to be reduced.
2 (1979) 4 SCC 349
3 (1995) 6 SCC 230
AVRB,J
Crl.A. No.1563/2010
15. PW.1 is the mother of victim. PW.2 is the victim. PW.3 is the
brother of the victim. Accused is no other than the junior paternal
uncle of the victim. The relationship, as above, is not in dispute.
16. Coming to the evidence of PW.1, the incident happened
about 3 years prior to her evidence. By that time, the victim was
studying 5th class and was aged 11 years i.e., completed 11 years
and entered into 12th year. Her elder son was studying LKG and
younger son was writing alphabets. The incident happened on a
Sunday. As a maid servant, she went to duty in the morning and
returned at 11:00 or 11:30 a.m. on that day. Her husband went
out for auto duty on that day. Only children were present in the
house. After her return, she found her daughter with heavy
bleeding and was laid on a mat. On seeing the same, she was
afraid and consulted her neighbor to know whether her daughter
attained puberty. She came to know that in case of puberty, her
daughter will not get that much bleeding as such she took her
daughter to a private hospital i.e., Asha Hospital. They advised her
to take her daughter to Government Hospital. When she asked the
doctors they stated that the bleeding was not due to puberty but
only due to forcibly sexual assault on her daughter. When the
doctors enquired her daughter, she stated to them that the
AVRB,J
Crl.A. No.1563/2010
accused committed rape on her. Then, they have sutured her and
she was unconscious for whole day and regained consciousness
only on the next day. Her daughter informed her that accused
entered into her house and by that time she was taking food.
Accused gave Rs.1/- each to the brothers of victim and asked
them to go out to purchase some eatables as such took her
daughter to his house and committed rape on her forcibly in spite
of her resistance. By the time her sons returned from shop, her
daughter came out from the house of accused without her
undergarments and she was bleeding profusely. Her children also
stated to her that accused secured one Ravanamma and got
cleaned the blood on the floor of the house of accused. She, her
daughter, accused and his wife and one Manikyam went to the
Hospital on that day. Her husband also came to the Hospital in
the evening. On the next day when her daughter informed about
commission of offence by the accused, she got a written complaint
through some known person and gave complaint in the I Town
Police station. Ex.P-1 is the complaint given by her to the Police.
Her daughter was in the Hospital for 8 days. Police examined her.
On the date of incident, the victim was wearing green colour
Punjabi dress. MO.1 is the top and bottom of green Punjabi dress
AVRB,J
Crl.A. No.1563/2010
with blood stains. MO.2 is the green colour shawl worn by the
accused at the time of offence.
17. Coming to the evidence of PW.2, victim, with regard to the
incident in question, she deposed that at the time of incident, she
was studying 5th class. Her father and accused were running
autos. PW.1 was working as servant maid. She used to go for work
at 06:00 a.m. and her father used to go for auto work at 09:00
a.m. The incident was happened on a Sunday while she was
studying 5th class. Her younger brother was at her junior paternal
aunt and she herself was in the house. She and her brothers were
playing and, as she felt hungry, she went inside and was taking
curd rice. Then, the accused came into the house and gave Rs.1/-
to each of her brothers to purchase some eatables and sent them
out. The accused came at about 10:30 a.m. on that day. Accused
took her to his house by saying that she can have food at his
house. Thereafter, accused laid her down on a cot and removed
her pant and committed rape forcibly in spite of her resistance and
bleeding. Thereafter, accused laid her down in her house. As she
was getting pain, she called her neighbors and, in the meanwhile,
her mother came there. She informed about the incident to her
mother. She (mother of the victim) wept and took her to hospital
AVRB,J
Crl.A. No.1563/2010
after changing her dress. She became unconscious in the Hospital
and regained unconscious on the next day.
18. PW.3, younger brother of the victim, with regard to the
incident in question, deposed that the incident was happened on
Sunday. His father, who is Auto Driver, and his mother, who is a
servant maid were not present in the house at the time of incident.
When his mother went out for her work at 06:00 a.m., his father
also went out for his duty on Auto afterwards. He, PW.2 and his
cousin were playing at that time. When PW.2 was taking food,
accused came to the house and gave Rs.1/- each to him and his
brother and called PW.2. Then, they (PW.3 and his cousin) went to
the shop for purchase of eatables. After his return, the accused
asked him to call his senior paternal aunt namely Manikyam, who
took his sister to his house. Then, his mother came and took his
sister to the hospital.
19. PW.4 is the person with whom the accused was stated to
have made some enquiry after the incident in question and her
evidence is that about 3 years ago, accused, on one day called and
asked her to verify whether PW.2 had menstrual period for the 2nd
time. She told that the victim attained puberty 15 days prior to the
incident and a function was celebrated on that occasion. On
AVRB,J
Crl.A. No.1563/2010
hearing the same, she doubted how the victim can attain her
menstrual cycle within 15 days. By that time, the victim was lying
on a cot in the house of accused and there was huge blood on her
dress. Meanwhile, PW.1 also came there. She and mother of PW.2
took the victim to the house of PW.1 and asked her as to what had
happened but the victim did not state anything to them. As there
was bleeding, they took her to a hospital at Gollapudi Bye-pass
road. Accused also came along with them and, on examination of
PW.2 doctors stated that she is in danger and advised them to go
to Government Hospital. Then they took her to the Government
Hospital at 01:00 p.m. When the doctor asked her specifically as
to what happened, PW.2 informed to her mother (PW.1) about the
incident and then she went to her house. PW.1 lodged a report on
19.11.2007.
20. PW.5 is the mediator for observation of the scene of offence.
On 20.11.2007 at about 09:00 a.m. he along with LW.16 -
Vanguru Devadasu acted as mediators for observation of the scene
of offence situated at Gollapudi Krishna Karakatta and that Police
observed the scene of offence and prepared observation report,
which is Ex.P-2. He also deposed that in the evening at 05:00 p.m.
Police arrested the accused near Gollapudi Auto Stand in his
AVRB,J
Crl.A. No.1563/2010
presence and in pursuance of the disclosure statement, accused
led them to his house and handed over the bloodstained shawl,
worn by him at the time of commission of offence. MO.2 is the
blood stained shawl. Ex.P-3 is the admissible portion in the
confessional statement of the accused. Ex.P-4 is the seizure
mahazar for seizure of MO.2.
21. PW.6 is the Woman Medical Officer, who examined the
victim and her evidence in brief is that she worked as Assistant
Professor in GGH, Vijayawada from 2001 to 2008. On 18.11.2007,
she examined PW.2, aged 12 years, at about 02:00 p.m. She was
brought by Woman Police Constable (WPC) of I Town Police
Station, Vijayawada accompanied by her mother. Her mother
informed her that sexual assault was committed on the victim by
her maternal (sic) uncle followed by heaving bleeding from vagina.
Her evidence is that on the date of examination, the victim was
grossly pale and BP was 70/40 with feeble pulse. All these denote
that she was in shock. She deposed that the victim did not co-
operate for her internal examination due to pain as such on
consent of her mother, she examined PW.2 under anesthesia. On
examination, left lateral vaginal wall tear is extending to fourchette
with profuse bleeding. She sutured the same and then the
AVRB,J
Crl.A. No.1563/2010
bleeding controlled. She transfused 2 pints of blood to stabilize the
victim and discharged her in fit condition on 22.11.2007. Her
vaginal swabs and smears were not taken due to profuse bleeding.
Finally she opined that the injury to the victim was the result of
sexual intercourse. She issued Ex.P-5 wound certificate.
22. PW.7 is the Head Master of the School, where PW.2 was
studying 5th class at the relevant point of time. He issued Ex.P-6
study certificate of PW.2. According to him, as per the records
available, the victim was born on 11.10.1996.
23. PW.8, the then Assistant Professor in the Department of
Forensic Medicine, S.M.C. Vijayawada from June 2007 to July,
2009, testified that he examined the accused on 22.11.2007 at
11:30 a.m. and ruled out the causes for his impotency and opined
that he is not incapable of performing sexual intercourse. Ex.P-7 is
the potency certificate of accused issued by him.
24. According to PW.9, the Sub-Inspector of Police,
Bhavanipuram Sector, I Town Police Station, Vijayawada on
19.11.2007 at 05:00 p.m., he received a report from PW.1.
Husband of PW.1 and another brother-in-law and mother-in-law
also accompanied her to Police Station. He registered the
AVRB,J
Crl.A. No.1563/2010
complaint as a case in Crime No.647 of 2007 for the offence under
Section 376(2)(f) IPC and issued FIR under Ex.P-8. The Inspector
of Police took up further investigation.
25. PW.10 is the Investigating Officer. His evidence is that on
19.11.2007 while he was attending duty at High Court, he came to
know about registration of FIR through PW.9. Then, he instructed
the SI of Police to cause protection of the scene of offence. Then,
he came to Vijayawada on 20.11.2007 and took up investigation.
He visited the GGH, Vijayawada and recorded the statements of
PW.1, PW.2 and LW.3. According to him, PW.1 brought the victim
with the assistance of PW.4 and the incident was informed by her
daughter. She also expressed her intention to handover the
clothes of the victim, which she has worn at the time of
commission of offence. He referred the victim to GGH, Vijayawada
through WPC 94 to know whether the sexual assault was
committed on her or not as already the victim was in medical
treatment. He secured the presence of mediators i.e., PW.5 and
LW.16 and went to the scene of offence along with the parents of
PW.2. He observed the scene of offence, which is in the house of
accused. They prepared the scene observation report. The ground
and bloodstains on the cot were washed off by that time. PW.1
AVRB,J
Crl.A. No.1563/2010
handed over the clothes (MO.1) from her house and he seized the
same in the presence of mediators. He examined PW.3 and LW.5
and recorded their statements. He also examined PW.4. He further
examined other witnesses. He prepared rough sketch under
Ex.P-9. Though he tried for the private doctor who examined the
victim initially but he was not available. On 21.11.2007, he
secured the presence of PW.5 and LW.16 and arrested the accused
near Gollapudi Sara Kottu (arrack shop). Pursuant to the
disclosure statement made by the accused, he seized MO.2 shawl
worn by the accused at the time of commission of offence. Accused
led them to his house and handed over the same. He seized the
same under the cover of Ex.P-4 mahazarnama. After effecting
arrest of the accused, he referred him to medical examination to
know his sexual potency and thereafter sent him to judicial
custody. On 07.12.2007, he forwarded the Material Objects to
RFSL, for chemical analysis vide letter of advice under Ex.P-10.
Subsequently, he was transferred.
26. PW.11 is the successor of PW.10. He deposed that he took
up further investigation on 13.12.2007 and verified the
investigation done by his predecessor. He examined PW.6 and
PW.8 on 06.02.2008 and also PW.7 - Head Master and received
AVRB,J
Crl.A. No.1563/2010
study certificate of PW.2 under Ex.P-6. He also caused enquiries
about the private doctor who treated the victim initially but he was
not available. He received chemical analysis report on 04.01.2008
under Ex.P-11. After receipt of medical reports and completion of
investigation, he filed charge sheet in this case.
27. Admittedly, it is a case where PW.1 came to know about the
occurrence through PW.2 alone. In a case of this nature, at best,
any culprit for commission of rape would prefer to commit it in a
secluded place. There need not be any direct witness to the
commission of rape. However, the prosecution sought to prove the
guilt against the accused by relying on the evidence of PW.1,
mother of the victim, PW.2 - victim and PW.3, who was sent out by
the accused on the pretext of purchasing eatables so as to commit
the offence against PW.2 and further the evidence of PW.4, with
whom the accused alleged to have made some enquiry to escape
from the offence as if there was a possibility for menstrual period
of PW.2.
28. During cross-examination of PW.1, accused got suggested to
her that on the date of offence , she along with her daughter went
to I Town Police Station and lodged a report but subsequently the
said report was suppressed and she gave a fresh report. She
AVRB,J
Crl.A. No.1563/2010
denied the said suggestion. She further denied that in the earlier
report given by her daughter, they mentioned that the offence was
committed by a known person but they implicated the accused on
the next day suppressing the earlier report. She denied that MO.2
was not seized from the accused. She denied that she found her
daughter with another boy in her house and got issued a
complaint on the same day but subsequently implicated the
accused. She denied that as her daughter had menstrual periods,
she had severe bleeding and that accused is in no way concerned
with the offence and that she is deposing false.
29. Coming to the evidence of PW.2, during her cross-
examination, she deposed that the accused was not wearing pant
at that time but he was wearing a lungi at the time of offence. She
denied that she did not state so before Police. She denied that she
and her mother went to I Town Police Station and then to
Government Hospital on the requisition. Witness volunteers that
when she regained consciousness, she was in the hospital. She
denied that she had physical relationship with somebody in her
house and she went to Police Station along with her mother and
gave a complaint but subsequently suppressed it and implicated
the accused. She denied that she had profuse bleeding due to
AVRB,J
Crl.A. No.1563/2010
menstrual cycle but not due to commission of offence by the
accused. She denied that on 18.11.2007, she gave report to I Town
Police Station against somebody and thereafter suppressing the
same, she falsely implicated the accused.
30. PW.3, during cross-examination, stated that accused is
residing in front of their house. There are no windows to their
house. Accused asked him to call his senior paternal aunt viz.,
Manikyam and also Ramana and he called Manikyam and she
came to his house.
31. Turning to the evidence of PW.4, she denied that accused is
in no way concerned with the offence and she is deposing false.
32. It is to be noted that it is PW.9 who took report from PW.1
under Ex.P-1 on 19.11.2007 at 05:00 p.m. and registered the FIR.
During cross-examination, he deposed that as per the contents of
the report, it is a cognizable offence. If there is any medical
intimation from the Medical Officer, Police will go to the hospital
and will record the statement. He was in the Police Station duty on
18.11.2007. He denied that he sent a WPC along with the
requisition to Outpost Police Station on that day. Witness
volunteers that when he received intimation from Outpost Police
AVRB,J
Crl.A. No.1563/2010
Station, on phone, he sent the WPC Outpost Police station as
there was no other WPC available at Outpost PS on that day and it
was also informed that the victim was unconscious and hence he
sent a WPC. By virtue of the above answers elicited from the
mouth of PW.9, during cross-examination, it is very clear that on
admission of the victim into GGH, Vijayawada information was
passed on to PW.9 as such he sent the WPC to Outpost PS as no
WPC was available at Outpost PS. His answers in cross-
examination are very clear that as the victim was in unconscious
stage, her statement could not be recorded. He denied that on
18.11.2007 itself PW.1 along with her daughter gave a complaint
and they suppressed the same and took another complaint on
19.11.2007. So the thing is that when there was heavy bleeding
from the private parts of a rape victim, it was quite natural for the
parents first to take care of the victim and accordingly they took
the victim to the private hospital wherefrom they took the victim to
GGH, Vijayawada. Though the Investigation Officer did not
examine the private doctor, before whom firstly the victim was
taken to, it is not going to affect the case of the prosecution in any
way.
AVRB,J
Crl.A. No.1563/2010
33. Apart from this, the evidence of PW.6, the Woman Medical
Officer, reveals that she got information about the sexual assault
from the mother of the victim. Apart from this, her evidence
reveals that the victim was in shock and even she did not co-
operate for internal examination due to pain. So, in such
circumstances, it is rather improbable to assume that PW.1 could
come to the Police Station on 18.11.2007 and could lodge a report.
The accused wanted to take an advantage basing on the fact that
unfortunately the statement of victim could not be recorded by the
Police as she was in utter shock and even she did not co-operate
for her internal examination. In a case of this nature, when the
alleged offence was committed by no other than the junior
paternal uncle of the victim, it was quite natural for the victim's
family to think over to lodge report immediately. Viewing the same,
this Court is of the considered view that the contention of the
accused that prosecution suppressed the earlier report on
18.11.2007 and brought into picture the name of the accused
cannot stand to any reason.
34. Apart from this, in a case of this nature, when the close
blood relative committed the offence against victim, the delay is
bound to occur. It is not as though PW.1 and PW.2 did not move
AVRB,J
Crl.A. No.1563/2010
any little finger after the alleged commission of offence. To provide
necessary medical aid, firstly the victim was taken to a private
hospital and from there to GGH, Vijayawada and after arrival of
the husband of PW.1, and after looking into the situation they
thought to bring the fact to the notice of Police and that is why
they could lodge the report under Ex.P-1 on the next day evening.
Under the circumstances, even the delay in lodging Ex.P-1 report
is not at all fatal to the case of prosecution.
35. In view of the defence of the accused that the victim along
with one boy was found in her house and that he was falsely
implicated, this Court would like to deal with as to what is the
scene of offence. According to PW.1, victim informed to her that
the accused took her to his house and committed rape. There is
evidence of PW.2, the victim, in categorical terms that the offence
was committed in the house of the accused. PW.3, brother of the
victim, testified that on the pretext of purchase of eatables,
accused sent him and his cousin out by giving Rs.1/- each and
later, after their return, accused asked him to call his senior
paternal aunt namely Manikyam and the Manikyam took his sister
to his house. So, even according to the evidence of PW.3, victim
was taken to the house of the accused. There is categorical
AVRB,J
Crl.A. No.1563/2010
evidence of PW.4 to the effect that she found the victim lying on
the cot in the house of the accused and there was huge blood on
the dress of the victim. There is evidence of PW.5, mediator, to the
effect that he acted as mediator for observation of the scene of
offence and observation of the scene of offence was drafted in the
house of the accused. The evidence of PW.10 - Investigating
Officer reveals that the scene of offence was situated in the house
of the accused. So, the prosecution has categorically established
the scene of offence as the house of the accused. The defence of
the accused as if somebody committed the offence against PW.2 or
she was found with a boy in her house is nothing but baseless.
36. The mode of commission of offence by the accused against
the victim is such that when the victim was in her house along
with her brother and cousin, accused came to her house and gave
Rs.1/- each to PW.3 and another and asked them to go out and
purchase some eatables as such they went away. Then, the
accused took the victim to his house and committed rape. PW.3
categorically testified that when he, PW.2 and his cousin were
playing and PW.2 was taking food, accused came there and sent
him and his cousin by giving them Rs.1/- each to purchase some
eatables. During the course of cross-examination of PW.3,
AVRB,J
Crl.A. No.1563/2010
absolutely the above said fact was not in dispute. Even PW.3
reiterated in his cross-examination that accused asked him to call
his senior paternal aunt namely Manikyam and Ramana and
accordingly, he called them. So, the crucial evidence spoken to by
PW.3 about the manner in which he and his cousin were sent out
is not disputed by the accused during the course of his entire
cross-examination. Apart from this, there is categorical evidence of
PW.4 that accused on one day called her to his house and asked
her as to whether PW.2 had menstrual period for the second time.
She attained puberty 15 days prior to the incident and then she
doubted. Then PW.2 was lying on a cot in the house of accused
and there was huge blood on her dress. Except putting a
suggestion that accused is in no way concerned with the offence,
he did not dispute in her cross-examination that accused called
her to his house and asked her as to whether PW.2 had second
menstrual period within 15 days. So, with regard to the crucial
evidence given by PW.4, no contra version was suggested in her
cross-examination. So, absolutely the enquiry made by the
accused with PW.4 by calling her to his house as to whether PW.2
can have second menstrual period within 15 days was not in
dispute. So, it all goes to show that the victim after commission of
offence got profuse bleeding. It appears that to cover up the issue
AVRB,J
Crl.A. No.1563/2010
accused made an enquiry with PW.4 as if can there be a possibility
for second menstrual period so as to put up a theory that she got
second menstrual period. This deliberate act made by the accused
is nothing but with a mala fide intention to throw blame on PW.2,
which shows the guilty consciousness of the accused.
37. Law is well settled that in a case of rape, conviction can be
sustained basing on the solitary testimony of the prosecutrix. Only
thing that has to be seen is as to whether such solitary evidence of
the prosecutrix is inspiring confidence in the mind of the Court.
Accused is no other than the junior paternal uncle of PW.2. Place
of offence was in the house of accused. There is corroboration to
the evidence of PW.1 and PW.2 with regard to the manner in which
accused sent out PW.3 and another so as to get a situation that
the victim alone would be available. Accordingly, he took the
victim to his house. Presence of the victim with profuse bleeding in
the house of the accused was also supported by PW.4. Victim had
no reason, whatsoever, to falsely implicate the accused. It is not a
case where the accused elicited any probabilities about any bitter
animosity between him and parents of PW.2. In the
circumstances, no person like victim would venture to allege that
his junior paternal uncle committed heinous offence of rape unless
AVRB,J
Crl.A. No.1563/2010
the incident is truly happened. The evidence on record altogether
excludes any probability for false implication of the accused.
38. There is corroboration to the testimony of PW.2 from the
medical evidence. The evidence of PW.6 proves the injury to the
private part of the victim on account of the forcible rape, which is
quietly evident. Though it is the contention of the accused that
there were no traces of spermatozoa in the private part of the
victim but, even according to explanation to Section 375 IPC, mere
penetration is sufficient and there need not be any ejaculation of
spermatozoa. Hence, the contention of accused that, if really, rape
was committed, there would have been traces of spermatozoa
cannot stand to any reason. Having regard to the above, I am of
the considered view that the evidence of PW.2 is quietly sufficient
to show that the accused committed heinous offence of rape
against PW.2, who is no other than his daughter by courtesy as he
is younger brother of father of PW.2.
39. Turning to the decision of the Hon'ble Apex Court in Mange
(2nd supra), the Hon'ble Apex Court, while dealing with the facts
and circumstances therein held that conviction can be based on
the sole testimony of an eye witness with regard to the offence of
rape. In Mange (2nd supra), prosecutrix was not examined. The
AVRB,J
Crl.A. No.1563/2010
mother of the prosecutrix was examined and even then the Hon'ble
Apex Court could found the reliability in the evidence of mother of
the prosecutrix relating to factual matrix. The present case is
quietly on better footing than the factual scenario in Mange (2nd
supra) for the reason that, in the instant case, victim was
examined as PW.2, who fully supported the case of prosecution
and withstood the cross-examination. The principle in Mange (2nd
supra) is that the conviction against the accused can be on the
sole testimony of an eye witness. Here, PW.2 is no other than the
prosecutrix, whose evidence is convincing and her evidence has
corroboration on crucial aspects from PW.3 and PW.4 and further
from the evidence of PW.6, the Medical Officer, who treated the
victim at GGH, Vijayawada. Having regard to the above, I am of
the considered view that the prosecution before the learned
Sessions Judge, Mahila Court, Vijayawada categorically proved
that on the fateful day, accused committed heinous offence of rape
against PW.2, who is no other than his daughter by courtesy,
beyond reasonable doubt.
40. Turning to the contention of learned counsel for the
appellant that in case of dismissal of the Appeal, for any valid
reason, the Court may reduce the sentence of imprisonment by
AVRB,J
Crl.A. No.1563/2010
relying on the decision of the Hon'ble Apex Court in Phul Singh
(1st supra), absolutely, the factual matrix in the above said case
altogether stood on a different footing and further it is a case
where the offence was under Section 376 IPC. Here, the charge
against accused is under the aggravated form of the offence of
rape. In Phul Singh (1st supra), the allegations were of 376 IPC
and the offence under Section 376 IPC was punishable with
imprisonment which shall not be less than 7 years and it may
extend to 10 years and shall also be liable to fine. The Court may
with adequate reasons reduce the term of imprisonment. Under
the aforesaid circumstances, the Hon'ble Apex Court considering
the age of the accused as that of 22 years, with no past criminal
antecedents and the allegations were that he committed rape of
his cousin's wife, reduced the term of imprisonment from Rigorous
Imprisonment of 4 years to 2 years.
41. Coming to the present case on hand, it is rather shocking to
note that the victim is no other than the daughter of the accused
by courtesy. He is blood relative to PW.2, being the younger
brother of her father. The punishment provided under Section
376(2)(f) IPC is Rigorous Imprisonment for a term which shall not
be less than 10 years but which may extend to imprisonment for
AVRB,J
Crl.A. No.1563/2010
life, which shall mean imprisonment for the remainder of the
persons natural life and also fine. Section 376(2) IPC contemplates
certain aggravated forms of rape. Apart from this, there is no
dispute that the age of the victim was below 12 years as on the
date of offence. So, the prosecution has categorically proved the
aggravated form of offence of rape against the accused. There is
also a proviso that, for any adequate and special reasons to be
mentioned in the judgment, the Court may impose a sentence of
imprisonment for a term of less than 10 years.
42. The learned Special Assistant, representing learned Public
Prosecutor, would rely upon a decision of the Hon'ble Apex Court
in Bodem Sundara Rao (3rd supra) to contend that the term of
imprisonment is not liable to be reduced. In Bodem Sundara Rao
(3rd supra), the Hon'ble Apex Court dealt with the case in the
scenario that there were no mitigating circumstances on record. It
was a case where the High Court reduced the term of
imprisonment without proper reasons. The Hon'ble Apex Court
looking into the fact that there were no mitigating circumstances
found fault with the judgment of the High Court and set-aside the
judgment of High Court of Andhra Pradesh.
AVRB,J
Crl.A. No.1563/2010
43. Coming to the present case on hand, considering the fact
that the accused committed heinous offence of rape against PW.2,
who is no other than the daughter of his elder brother, absolutely,
I do not find any mitigating circumstances to take a lenient view.
Hence, the contention of learned counsel for the
appellant/accused that the Court may reduce the term of
imprisonment deserves to be rejected.
POINT No.3:
44. In the light of the above reasons, the learned Sessions
Judge, Mahila Court, Vijayawada rightly appreciated the entire
evidence on record and rightly convicted and sentenced the
accused. Under the circumstances, judgment in Sessions Case
No.78 of 2009, dated 14.12.2010, on the file of Sessions Judge,
Mahila Court, Vijayawada is sustainable under law and facts and
absolutely there are no grounds, whatsoever, to interfere with the
same.
45. In the result, the Criminal Appeal is dismissed confirming
conviction and sentence imposed against the appellant/accused
in Sessions Case No.78 of 2009, dated 14.12.2010, on the file of
Sessions Judge, Mahila Court, Vijayawada.
AVRB,J
Crl.A. No.1563/2010
46. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the judgment of this Court including
the trial Court record, if any, to the trial Court on or before
10.11.2023 and on such certification, the trial Court shall take
necessary steps to forward a copy of this judgment to the
appellant/accused, who is lodged in Central Prison,
Rajamahendravaram. A copy of this judgment be placed before the
Registrar (Judicial), forthwith, for giving necessary instructions to
the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 04.11.2023
DSH
