Kommu Samuel Ashok, vs State Of A.P., Rep By Pp.,
2022 Latest Caselaw 4164 Tel

           THE HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.59 OF 2009

JUDGMENT:

1. The accused is convicted and sentenced to undergo

rigorous imprisonment for a period of one year under Section

448 IPC and rigorous imprisonment for 10 years for the offence

under Section 376 IPC and also rigorous imprisonment of six

months for the offence under Section 506 IPC vide judgment in

SC No.145 of 2008, dated 20.01.2009 passed by the Assistant

Sessions Judge at Khammam. Aggrieved by the same, the

present appeal is filed.

2. The case of the prosecution is that PW.1 is the victim and

wife of P.W.4. On 24.08.2007, the appellant/accused knocked

the door of P.W.1 and when she opened, he entered into the

house and closed P.W.1's mouth with his hand and pushed her

on cot and committed rape. The appellant threatened to kill if the

same was informed to anyone. At that juncture, P.W.4 husband

and P.W.5, his friend came on the motor cycle and when P.W.4

came near the door, then the appellant opened the door and ran

away. P.W.4 questioned P.W.1 as to what happened. When P.W.1

stated that she was raped, P.W.4 beat her. It is further the case

that P.W.4 called the parents of P.W.1, who are P.Ws.2 and 3.

P.W.4 then complained to P.Ws.2 and 3 stating that he was not

willing to stay with his wife P.W.1. Thereafter, P.W.1 filed a

written complaint with the police on 29.08.2007 after five days.

3. Learned counsel for the appellant submits that the entire

case of the prosecution is highly doubtful and the very narration

of the events appears to be a case of consensual sex in between

P.W.1 and the appellant and when they were caught, PW1 filed a

false complaint. There are several discrepancies in evidence

which go the root of the prosecution case. P.W.1 states that

when her husband P.W.4 came to the house, appellant opened

the door and ran away. However, P.W.4 states that he found the

appellant coming out of the house and at that time and his wife

P.W.1 was inside the house. P.W.5 stated that both P.Ws.4 and

5 came on the motor cycle and found the appellant coming of the

house of P.W.4 and ran away. P.W.5 further states that P.W.4

beat P.w.1 and also on the next day morning of the incident,

P.W.4 again confronted P.W.1 and beat her. P.W.4 thereafter

called the parents. The entire conduct of P.W.4 is highly

suspicious and the witnesses are suppressing the actual

happening as seen from the contradictions amongst each of the

witnesses. In the said circumstances, the appellant is liable to

be acquitted. In support of his contentions, he relied on the

judgments; i) Santosh Prasad v. State of Bihar1, and argued

that solitary version of prosecutrix, cannot be taken as gospel

truth at face value. In the absence of any supporting evidence,

conviction cannot be sustained and that the evidence of

prosecutrix should inspire confidence and appear to be

absolutely trustworthy, unblemished and sterling quality; ii)

Lalliram v. State of Madhya Pradesh2, and argued that if the

court finds it difficult to accept the version of a prosecutrix on

the face value, it may search for evidence direct or

circumstantial; iii) Narayan v. State of Rajasthan3, and argued

that the evidence of the prosecutrix is full of material

contradictions and there is no corroboration from any of the

(2020)3 SCC 443

(2008) 10 SCC 69

(2007) 6 SCC 465

witnesses; iv) State of Karnataka v. F.Nataraj4; v) State of

Rajasthan v. Babu Meena5; vi) Kommu Venkataratnam v.

State of A.P6 and argued that the testimony of prosecutrix is

inconsistent, uncorroborated by the medical evidence which is

vague and fails to establish clearly that the sexual intercourse

took place and hence not reliable; vii) Rajesh Patel v. State of

Jharkhand7, and argued that inordinate delay of 5 days in

lodging the FIR is fatal to the prosecution case.

4. On the other hand, learned Public Prosecutor submits that

the solitary testimony of victim is sufficient to convict the

appellant. As seen from the evidence of P.Ws.1, 4 and 5, the

appellant was found in the house when P.W.4 returned from

Vijayawada. P.W.1 narrated the facts that it was the appellant

who had committed rape on her. In the said circumstances, the

delay in lodging the FIR is of no consequence and conviction of

the appellant has to be sustained.

(2015) 16 SCC 752

(2013) 4 SCC 206

(1996) 2 ALT (Cri) 51

(2013) 3 SCC 791

5. The delay of five days in lodging the FIR is explained by

P.W.1 to 4 stating that they wanted to initially have a word with

the appellant and thereafter take the matter before the elders.

Since the appellant did not turn up to settle the issue, the

complaint was lodged. The said explanation given for the delay in

lodging the FIR cannot be accepted for the reason its

improbability. Any woman, who is subjected to rape will not

under normal circumstances try to have a word with the

perpetrator. It is amusing to find that initially the appellant was

seen in the house of P.W.1, the husband P.W.4 beat P.W.1. He

again entered into altercation with P.W.1 on the next day

morning and beat her again. PW4 complained to the parents

about PW1 and wanted to send her away. He called the parents

P.Ws.2 and 3, holds a panchayat regarding the conduct and

character of P.W.1. The very narration of events that transpired

at the time of incident and subsequently, gives rise to any

amount of doubt regarding the rape being committed by the

appellant.

6. The following facts as narrated by the prosecution

witnesses give rise to such suspicion;

i) The appellant entering the house of P.W.1 when P.W.4

goes to Vijayawada;

ii) P.W.1 when informs her husband P.W.4 that the

appellant raped her, P.W.4 instead of showing sympathy or

taking any action against the appellant, beats PW.1 and calls her

parents for a panchayat complaining about the character of

P.W.1;

iii) Even on the next day morning of the incident, P.W.4

again entered into the fight with the P.W.1 and beats her;

iv) Even before filing of complaint, which is after five days,

the efforts were made to call the parents PW2 and PW3 and

settle the issue in their presence after speaking to appellant.

7. The said circumstances would in fact create a doubt

regarding the version as stated by the witness P.W.1 to be

correct. Admittedly, there is no medical evidence to suggest any

kind of rape for the reason of P.W.1 victim being sent to Doctor

after six days. The evidence of P.W1 does not qualify to be a

'sterling witness'. Her evidence lacks consistency and during the

course of cross-examination prevaricates about the alleged

incident that happened. The versions of P.W.1, PW4 and PW5

regarding the happenings on the day of incident are different.

8. In the said circumstances, the allegation that P.W.1 was

raped cannot be believed in the back ground of several

inconsistent statements made and the reasons given for the

delay are found to be unacceptable and not probable in the

normal circumstances of a rape case.

9. For the aforementioned reasons, the conviction recorded by

the trial Court in SC No.145 of 2008 dated 20.01.2009 is set

aside and the appellant is acquitted. Since the appellant is on

bail, his bail bonds shall stand cancelled.

10. Accordingly, Criminal Appeal is allowed.

_________________ K.SURENDER, J Date:17.08.2022 kvs

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.59 of 2009

Dated:17.08.2022

kvs