Telangana High Court

Lyadella Sanjeev , Venkatesh And ... vs The State Of Ap., on 6 February, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

    IN THE HIGH COURT FOR THE STATE OF TELANGANA
                            AT: HYDERABAD
                                  CORAM:
            * HON'BLE SRI JUSTICE K. LAKSHMAN

                                     AND
           HON'BLE SMT. JUSTICE P. SREE SUDHA
              + CRIMINAL APPEAL No.493 OF 2014

% Delivered on: 06-02-2024

Between:
# Lyadella Sanjeev @ Venkatesh & another                              .. Appellants

                                       Vs.

$ The State of Telangana                                              .. Respondent

! For Appellants                             : Mr.A. Prabhakar Rao


^ For Respondent                             : Mr. Muthyala Muralidhar
                                               Ld. Addl. Public Prosecutor

< Gist                                       :

> Head Note                                  :

? Cases Referred                             :
1. (2000) 5 SCC 197        14. (2010) 2 SCC 9
2. AIR 1987 SC 1080        15. (2011) 7 SCC 130
3. (2002) 9 SCC 86         16. (2012) 8 SCC 21
4. (1996) 1 SCC 490        17. 2020 SCC OnLine Guj. 114
5. (1996) 2 SCC 384        18. SMW (Cri.) No.04 of 2019 decided on 18.12.2019
6. MANU/TL/0331/2020       19. (2009) 16 SCC 69
7. (1983) 3 SCC 217        20. (2004) 1 SCC 421
8. (2018) 17 SCC 658       21. (2013) 14 SCC 643
9. (2020) 10 SCC 573       22. 2006 AIR SCW 6424
10. (2010) 8 SCC 191       23. AIR 1977 SC 1307
11. (2005) 3 SCC 594       24. 2001 (2) ALD (Crl.) 706 (SC)
12. (1996) 2 SCC 384       25. (2019) 2 SCC 703
13. (1993) 2 SCC 622
                                    2
                                                        KL,J & PSS,J
                                                          Crl.A. No.493 of 2014




             HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
            HON'BLE SMT. JUSTICE P. SREE SUDHA

                  CRIMINAL APPEAL No.493 OF 2014

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. A. Prabhakar Rao, learned counsel for appellants -

accused Nos.1 and 2, and Mr. Muthyala Muralidhar, learned

Additional Public Prosecutor appearing on behalf of the respondent.

2. This appeal is filed challenging the judgment dated

28.03.2014 in Special S.C. No.3 of 2013 passed by learned Special

Judge for Trial of Cases under Protection of Children from Sexual

Offences Act - cum - I Additional Sessions Judge, Warangal (for short

'trial Court').

3. The appellants herein are arraigned accused Nos.1 and 2 in

the aforesaid Special S.C. No.3 of 2013, respectively. Therefore, for

the sake of convenience, the parties will be hereinafter referred to as

they were arraigned in Special S.C. No.3 of 2013.

4. Vide the aforesaid judgment, learned Sessions Judge

convicted the appellants - accused Nos.1 and 2 for the offences

punishable under Sections - 366, 376D and 506 read with 34 of IPC

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[Criminal Law (Amendment) Act, 2013] and Section - 5 (g) read with

6 of the Protection of Children from Sexual Offences Act, 2012 and

accordingly imposed life imprisonment on them and other

punishments mentioned therein.

5. The case of the prosecution is as follows:

i) PW.1, victim girl, aged 15 years and complainant, while

PWs.2 and 3 are her parents and PW.4 is her sister-in-

law. They are resident of Nagaram Village, whereas

accused Nos.1 and 2 also hail from the very same village.

Accused No.1 is the son-in-law of PW.5, maternal aunt

of the victim girl and related to victim girl i.e., brother-in-

law;

ii) Accused Nos.1 and 2 kept an evil eye over PW.1- victim

girl and waiting for a chance to fulfill their sexual lust

over her;

iii) On 14.03.2013, PW.2 and LW.4, brother of the victim

girl, went to Vemulawada Temple leaving the victim girl

and her father (PW.3) in the house. Accused came to

know the same and taken an opportunity to fulfill their

desire;

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iv) Accordingly, on 15.03.2023 night at about 22:00 hours,

PW.3 went to agricultural fields for watering so saying

the victim girl to sleep in her Aunt's house (PW.5). The

victim girl went to the house of PW.5 and while she was

sleeping, taking the same as advantage on the same day

night i.e., 15/16.03.2013 at about 0100 hours, accused

Nos.1 and 2 went to PW.3, offered him a quarter bottle

and made him consume liquor heavily and sent him to his

agricultural field;

v) Later, accused Nos.1 and 2 went to PW.5's house on their

motorcycle bearing registration No.AP 36AF 7039

(Splendor Plus), woke up her and informed that the father

of the victim girl had consumed liquor heavily and is

making nuisance by consuming liquor and said that they

are not finding their house keys;

vi) Accordingly, accused Nos.1 and 2 told lies and said

PW.5 to send the victim girl with them and took her to

their house on their motorcycle, made her to open the

lock of their house, took her into their house and

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threatened her to kill if she discloses the matter to

anybody;

vii) Accused Nos.1 and 2 gagged clothes in her mouth, laid

her on the cot, torn her Punjabi dress, forcibly removed

her underwear and accused No.1 committed rape on her.

While accused No.1 was raping her, accused No.2 stood

outside of the house watching arrival of anybody. Then,

accused No.1 said his friend, accused No.2 to rape the

minor girl. Accordingly, accused No.2 also committed

rape on the victim girl;

viii) After committing rape on PW.1, accused Nos.1 and 2

threatened her to kill with dire consequences if she

complains the matter to anybody and left away from their

house;

ix) On the same day, when PW.3 came and slept in the house

in late night hours, she did not inform the incident to him;

x) On 17.03.2013, when PW.2, LW.4 and PW.6, mother,

brother and sister-in-law, respectively, returned from

Vemulawada Temple, PW.1 informed them about the

rape committed by the accused on her. On that, her

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family members brought PW.1 to the police station and

lodged Ex.P1 - complaint, and the same was registered as

a case in Crime No.41 of 2013 under Sections - 376 (g)

and 506 read with 34 of IPC by Hasanparthy Police

Station against accused Nos.1 and 2 herein, and the

Investigating Officer took up investigation;

xi) During investigation, the police examined the witnesses,

recorded their statements, also collected the birth

certificate of the victim girl and it discloses that the

victim girl is a minor and her age was 15 years;

xii) PW.10 - Medical Officer examined the PW.1, preserved

the vaginal swabs, smears and pubic hair etc., for

examination and report and thereafter FSL report was

received which discloses that 'there is evidence of recent

intercourse';

xiii) Thereafter, PW.11 examined accused Nos.1 and 2 and

issued Exs.A11 and 12 - Potency Certificates opining that

'there is nothing to suggest that both the accused are not

capable of doing/performing sexual intercourse'; and

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xiv) After completion of investigation and collecting the

medical evidence, the police filed charge sheet and,

thereafter, it was committed to the Sessions Judge vide

Special S.C. No.3 of 2013.

6. The learned Sessions Judge after framing charges for the

offences proceeded with trial. During trial, PWs.1 to 13 were

examined and Exs.P1 to P14 were marked and so also MOs.1 to 4.

No evidence either oral or documentary was let in on behalf of the

accused.

7. PW.1 is the victim girl besides being complainant; PW.2 is

her mother and PW.3 is her father; PW.4 is her sister-in-law, while

PW.5 is her Aunt, sister of PW.1's mother; PWs.6 and 7 are panch

witnesses of scene observation panchanama; PW.8 is the panch

witness for seizure of crime vehicle; PW.9 is the Head Master, who

issued date of birth certificate of PW.1; PW.10 is the Medical Officer

who examined the victim girl; PW.11 is the Professor who issued

potency certificates (Exs.P11 and P12) in respect of accused Nos.1

and 2; PW.12 is the Inspector of Police, who registered the crime,

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while PW.13 is the Investigating Officer who conducted investigation

and laid charge sheet.

8. The learned Sessions Judge after hearing both sides,

recorded conviction against both the accused and imposed life

imprisonment on them. Challenging the same, both the accused

preferred the present appeal.

9. Mr. A. Prabhakar Rao, learned counsel for the appellants -

accused Nos.1 and 2 contended as follows:

i) There are serious contradictions in the version of the

victim (PW.1), more particularly, to that of Ex.P1 -

complaint and her deposition;

ii) There is delay of two (02) days in lodging Ex.P1 -

complaint;

iii) Colour of underwear (MO.2) was not mentioned;

iv) Investigating officer failed to conduct investigation with

regard to the date of birth of the victim;

v) Relying on the victim deposition, the trial Court cannot

record conviction against the appellants herein;

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vi) The trial Court failed to consider the contentions raised

by the appellants that there are disputes between the

accused and PW.3, father of the victim, with regard to the

amount borrowed by him from PW.5 which fact was also

admitted by PW.3 during his cross-examination;

vii) There are serious contradictions in the version of PW.3;

viii) As per medical evidence, there is no injury on the victim;

ix) Medical evidence is not supporting the prosecution case;

x) The version of the prosecution that both the accused

committed rape on the victim is highly improbable;

xi) There are many houses nearby or abutting to the house of

PW.1 i.e., scene of offence. According to PW.1, the

victim, during assault on her, she raised cries and tried to

escape, but accused forcibly committed rape on her.

Even then, the prosecution did not examine any of the

neighbours;

xii) All the prosecution witnesses are interested witnesses;

xiii) PW.5, crucial witness, did not support the prosecution

case;

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xiv) As per the evidence of PW.10, the doctor, who examined

the victim girl, categorically admitted that there is no

hard and fast rule to conclude of sexual intercourse only

when two fingers admits;

xv) In Ex.P8 - Preliminary report, there is no mention about

collection of pubic hair. The last menstrual period of the

victim is mentioned as 28.02.2013, but it is recorded as

28.11.2013. Absence of hymen may be due to several

reasons. But, total absence of hymen is not possible due

to other reasons other than sexual intercourse. Therefore,

medical evidence is not supported the prosecution case;

xvi) Without considering the said aspects, the trial Court

convicted the appellants for the aforesaid offences; and

xvii) The accused are in jail from 28.03.2014; and

10. On the other hand, learned Additional Public Prosecutor

contended as follows:

i) Prosecution has examined the victim girl (PW.1), their

parents - PWs.2 and 3 and sister-in-law - PW.4 and also

PWs.6 and 7 - panch witnesses for scene of offence and

panchanama, PW.8 - panch witness for seizure of crime

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vehicle, PW.7 - Head Master of the School, who issued

date of birth certificate of the victim, PW.10 - the doctor,

who examined the victim; PW.11 - the doctor who

conducted potency test and issued Exs.P11 and 12 -

potency certificates and PWs.12 and 13 - Investigating

Officers; and filed Exs.P5 - seizure panchanama, Ex.P6

date of birth certificate of the victim, Ex.P7 - admission

extract of the victim, Ex.P8 - preliminary report of the

doctor (PW.10) and Ex.P9 - final report of PW.10,

Ex.P10 - FSL Report, Exs.P11 and 12 - potency

certificates and Ex.P14 - copy of the letter of advice; and

also marked MOs.1 to 4;

ii) Victim girl specifically deposed about the entire incident;

iii) In a matter like this, minor contradictions can be ignored;

iv) PW.10, the doctor specifically opined that there was

evidence of recent sexual intercourse on the victim;

v) PW.9 is the Head Master of the School, who issued

Ex.P6 - date of birth certificate and Ex.P7 - admission

extract of PW.1;

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vi) The accused have taken advantage of loneliness off the

victim and also habits of her father (PW.3) and

committed rape on the victim;

vii) The offences committed by the accused are grave and

serious in nature; and

viii) On consideration of the entire evidence, the trial Court

convicted both the accused and there is no error in it;

MINOR CONTRADICTIONS:

11. It is the contention of learned counsel for the appellants -

accused Nos.1 and 2 that there are serious contradictions in the

version of the victim. In Ex.P1 - complaint, dated 17.03.2013, the

victim (PW.1) specifically stated about the incident occurred on

15/16.03.2013 at about 1.00 AM. She has also specifically stated that

accused No.1 is the son-in-law of her maternal aunt (PW.5) and

accused No.2 is distant relative. They have made PW.5 believe that

PW.3 was in drunken condition, that they sought key. Therefore,

PW.5 being the mother-in-law of accused No.1 believed their version

and sent the victim along with accused on the motorcycle. They have

committed rape on her one after other. But, the victim in her evidence

deposed that on 15.03.2013 at about 10.00 P.M., she and her father

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had dinner and they were sleeping in their house. At about 10.00 P.M.,

accused Nos.1 and 2 came to their house and woke them up. Accused

Nos.1 and 2 represented her father that the crop in their fields was

being drying up and requested him to go to the agricultural well for

watering the fields. While leaving so, her father asked the victim to

stay in the house of PW.5. Her father dropped her at the house of

PW.5 and left to the fields along with accused Nos.1 and 2. At about

1.00 A.M., PW.5 woke her up and informed her that her father was

vomiting at the house and that the house keys were with her and

requested her to go to her house. However, she deposed that she went

to her house along with accused Nos.1 and 2 on the motorcycle. Her

father was not there. Accused No.2 opened the doors, she entered into

the house. Thereafter, they have closed the doors, threatened her with

dire consequences. Accused No.1 dragged her into the room and

forcibly committed rape on her. Accused No.2 was staying in another

room. After committing rape by accused No.1, accused No.2 also

committed rape on her. Thus, both the accused (accused Nos.1 and 2)

had committed rape on the victim (PW.1).

i) It is not in dispute that the mother of the victim and other

family members went to Vemulawada for pilgrimage. However,

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during cross-examination, PW.1 has admitted that due to fear she did

not inform the incident to anybody. But she was suffering from the

incident. She went to the school to attend the examination but while

attending the examination, she was weeping due to the incident and

when the teacher asked her she informed him that she was afraid of

going to the house, but he advised her to go to the house of her aunt,

namely Rajitha. However, the police have not recorded the statement

of the said Rajitha, nor examined her during trial.

ii) Thus, there are contradictions with regard to the accused

taking the father of the victim i.e., PW.3 to the fields and vomiting etc.

According to this Court, the said contradictions are minor in nature.

However, PW.1 - victim specifically deposed about other facts

including the accused committing rape on her. Therefore, the

appellants cannot take advantage of the said minor contradictors in a

matter like this.

ABSENCE OF INJURY:

12. It is the specific contention of learned counsel for the

appellants that the prosecution failed to prove the offence by

producing cogent evidence. Referring to the deposition of PW.10, the

doctor, who treated the victim and Exs.P8 to P10, he would submit

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that there were no external injuries. Therefore, there was no sexual

assault on the victim. As discussed above, the victim specifically

deposed the entire incident. PW.10 opined that there is evidence of

recent sexual assault.

i) During cross-examination, PW.1 has admitted that she did

not sustain any bleeding injuries except impact of pressing of bangles

to her hands.

ii) In Joseph v. State of Kerala 1, the Apex Court held as

under:

15. "...Injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse..."

iii) In Balwant Singh v. State of Punjab2, the Apex Court

held as under:

15. "...As there was no such injury, it should be held that there was no such incident as alleged.

This argument, in our opinion, is devoid of merit. It cannot be said that whenever resistance is

. (2000) 5 SCC 197

. AIR 1987 SC 1080

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offered there must be some injury on the body of the victim..." (emphasis added)

iv) It is relevant to note that in State of Orissa v. Thakara

Besra 3, the Apex Court held as under:

"This Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case..."

v) In Bodhisattwa Gautam v. Subhra Chakraborty 4, the

Apex Court observed that rape is a crime not only against a woman

but against society. It was held in paragraph No.10 of the Report that:

"10.Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the

. (2002) 9 SCC 86

. (1996) 1 SCC 490

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most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."

vi) About a month later from the above judgement in

Bodhisattwa Gautam (supra), the Apex Court observed in State of

Punjab v. Gurmit Singh 5 as under:

"We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female."

vii) A Division Bench of this High Court in Sama

Thirupataiah v. The State of Telangana 6 has drawn attention

. (1996) 2 SCC 384

. MANU/TL/0331/2020

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towards the psychological impact of the sexual assault on children at a

young age, and held as under:

"12. It will be useful to quote from the research papers/articles published by the child psychologists and experts about the impact of trauma on account of sexual abuse.

"The trauma that results from sexual abuse is a syndrome that affects not just the victim and their family, but all of society. Because sexual abuse, molestation, and rape are such shame-filled events, our culture tends to suppress information about them." (Trauma: Childhood Sexual Abuse by Susanne Babbel MFT, PhD., Somatic Psychology). Posted on sychologytoday.com on 13th March, 2013 and updated in the website in the year 2020.

Consequences:

"Sexual assault in childhood or adulthood impacts not only the victim, but also the victim's family and friends as well as society as a whole. In this regard, sexual assault is a public health problem that concerns everyone. Sexual assault has numerous potential consequences that can last a

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lifetime and span generations, which serious adverse effects on health, education, employment, crime, and the economic wellbeing of individuals, families, communities and societies."

(Understanding sexual assault by INSPQ, Institute National de SantePublique du Quebec (French:

National Public Health Institute of Quebec;

Canada) ... Available in the website- mobile.inspq.ac.ca of INSPQ in 2020.)"

Therefore, the contention of learned counsel for the appellants that

there is no sexual assault on the victim and prosecution failed to prove

the offence by providing cogent evidence is untenable.

DELAY IN LODGING REPORT WITH POLICE:

13. Admittedly, there is delay of two (02) days in giving the

report with police. According to PW.1, the incident had occurred on

15/16.03.2013 at about 1.00 A.M., whereas she gave report to the

police on 17.03.2013 at 9.00 P.M. It is her contention that her mother

and other family members went to Vemulawada on pilgrimage. Her

father was not well. Therefore, she could not give report to the police

immediately and could not inform her father immediately. However,

after her mother, brother and sister-in-law returning from

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Vemulawada, she informed the said incident to her mother. She has

also informed the said incident to her teacher, who advised her to go

to her maternal aunt's house. However, the police have not examined

and recorded the statement of the said Mr. Narayana Reddy, the

teacher of the victim and Rajitha, her maternal aunt. Their non-

examination is not fatal to the case of the prosecution. Thus, PW.1 -

victim explained the delay in giving the report to the police. In a

matter like this, more particularly, when the victim is a minor girl, the

offence is grave and serious in nature, the delay of two (02) days is

not fatal to the prosecution case.

i) It is relevant to note that in Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat 7, the Apex Court has categorized

reasons for non-reporting sexual offences in Indian settings and those

are as under :

"(1) A girl or a woman in the tradition bound non-

permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred; (2) She would be conscious of the danger of being ostracised by the Society or being looked down by

. (1983) 3 SCC 217

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the society including by her own family members, relatives, friends, and neighbours;

(3) She would have to brave the whole world; (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered;

(5) If she is unmarried, she would apprehend that it would be, difficult to secure an alliance with a suitable match from a respectable or an acceptable family;

(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself;

(7) The fear of being taunted by others will always haunt her;

(8) She would feel extremely embarrassed in relating the incident to others being over powered by feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo;

(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy;

(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of

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social stigma on the family name and family honour;

(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence;

(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."

ii) As discussed above, in the present case, the mother, brother

and sister-in-law of the victim went to Vemulawada on pilgrimage,

her father alone was present. After her mother, brother and sister-in-

law returned from pilgrimage, PW.1, the victim, gave a report with the

police on 17.03.2013 at 21:00 hours. Therefore, the contention of

learned counsel for the appellants that there is delay in lodging the

report with the police cannot be accepted and it is not fatal to the case

of prosecution.

COMMITTING RAPE ON THE VICTIM BY BOTH THE ACCUSED IS HIGHLY IMPROBABLE:

14. It is the further contention of learned counsel for the

appellants that version of the prosecution that both the accused

committed rape on the victim is highly improbable since there are

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houses nearby the house of the victim - PW.1, and according to PW.1,

she raised cries, even then, prosecution did not examine any of the

neighbours of PW.1.

i) In Ex.P1 - report as well as deposition of PW.1, the victim

specifically deposed about the accused committing rape on her one

after other. According to her, accused No.1 committed rape on her

first by dragging her into the room and thereafter accused No.2

committed rape on her. Accused No.1 is the son-in-law of PW.5, her

maternal aunt while accused No.2 is her agnate. Therefore, PW.5

having sent PW.1 - victim along with the accused on their motorcycle

to her house and gave statement (Ex.P2) before the police under

Section - 161 of the Cr.P.C. But, PW.5 did not co-operate with the

prosecution. She turned hostile. Just because PW.5 turned hostile, it

is not fatal to the case of prosecution. In the light of the said specific

evidence of the victim, the contention of learned counsel for the

appellants that the version of prosecution that both the accused

committed rape on the victim girl is highly improbable cannot be

accepted.

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DETERMINATION OF AGE OF THE VICTIM GIRL:

15. According to learned counsel for the appellants, the

Investigating Officer did not conduct investigation properly to

determine the age of the victim girl. The prosecution did not examine

relevant witness and did not produce any cogent evidence in proof of

the age of the victim girl. Without considering the said aspects, the

trial Court convicted the appellants for the offence punishable under

Section - 5 (g) read with 6 of the Protection of Children from Sexual

Offences Act, 2012 (for short 'POCSO Act'). PW.9 is the Head

Master, ZPHS, Nagaram, where the victim girl studied up to 10th

Class. The police recorded his statement. He deposed that the police

came to him and requested to issue date of birth certificate. He has

furnished Ex.P6 - date of birth certificate and Ex.P7 admission extract

of PW.1. He has issued Exs.P6 and P7 on the basis of the admission

register.

i) However, referring to his cross-examination, wherein he has

admitted that the victim was admitted in their school in 6th Class and

he was not the Head Master at that time, he did not verify whether the

parents of PW.1 produced date of birth certificate at the time of her

admission, learned counsel for the appellants would submit that

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Exs.P6 and P7 were issued by PW.9 without verifying the record.

But, perusal of Ex.P6 - date of birth certificate, dated 23.06.2010

issued by PW.9, the date of birth of the victim girl is mentioned as

'11.03.1997'. Her admission number is mentioned as '3889'. In

Ex.P7 - extract of Register of Admission, the name of the victim girl

is mentioned at serial No.28 and admission number as '3889'. Her

date of birth is mentioned as '11.03.1997'. However, according to

learned counsel for the appellants, at serial No.27 in Ex.P7, 'Bandari

Anusha' name is mentioned which is above the name of the victim girl

and her date of birth is mentioned as '26.07.1995'. The victim name

is 'Elukati Anusha'. There is some confusion with regard to the date

of birth of both 'Bandari Anusha' and 'Elukati Anusha'. Even in the

said admission register, the date of leaving of the victim is mentioned

as 23.03.2013. There are corrections. Therefore, the same cannot be

relied upon.

ii) As discussed above, PW.9 specifically deposed about

issuance of Exs.P6 and P7 - date of birth certificate and extract of

admission register. He issued Exs.P6 and P7 on the basis of the

admission register. Even then, nothing contra was elicited from him.

There is no confusion in the name of the victim. Surnames of the

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victim and other Anusha are different i.e., 'Elukati Anusha' and

'Bandari Anusha'. The father's name are also different i.e., PW.1's

father name is 'Lachaiah', while the father's name of Bandari Anusha

is 'B. Sadaiah'. In fact, the appellants are trying to create confusion

and taking advantage of the same. The admission number, serial

number, name and surname etc., are specifically mentioned in Ex.P6

and Ex.P7.

iii) In State of Madhya Pradesh v. Preetam 8, the Apex Court

examined similar issue and observed as follows:

"11. ... In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of Headmaster, Bhaulal (PW 8), and the school certificate produced by him i.e. Ext. P/13-A, age of the victim has to be taken as 12 years at the time of occurrence."

. (2018) 17 SCC 658

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iv) As discussed above, to determine the age of the victim,

prosecution has examined the Head Master of the School as PW.9 and

also filed Exs.P6 and P7. Therefore, the contention of learned counsel

for the appellants that the Investigating Officer did not conduct proper

investigation to determine the age of the victim and that the

prosecution failed to prove the age of the victim by producing cogent

evidence cannot be accepted.

CONVICTION CAN BE SOLELY ON THE TESTIMONY OF VICTIM:

16. With regard to the contention of the appellants that except

the evidence of PW.1 - victim girl, there is no other evidence which

inspires confidence to convict the appellants and that conviction

cannot be solely on the testimony of the victim.

i) In Ganesan v. State 9, Vijay v. State of M.P. 10, State of

U.P. v. Pappu 11, State of Punjab v. Gurmit Singh 12, State of H.P.

v. Raghubir Singh 13, Wahid Khan v. State of M.P. 14, Krishan

Kumar Malik v. State of Haryana 15 and Rai Sandeep v. State

. (2020) 10 SCC 573

. (2010) 8 SCC 191

. (2005) 3 SCC 594

. (1996) 2 SCC 384

. (1993) 2 SCC 622

. (2010) 2 SCC 9

. (2011) 7 SCC 130

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(NCT of Delhi) 16, the Apex Court categorically held that there can be

conviction on sole evidence of prosecutrix, and in case, the Court is

not satisfied with the version of the prosecutrix, it can seek other

evidence, direct or circumstantial, by which it may get assurance of

her testimony. Evidence of the victim of sexual assault is enough for

conviction and it does not require any corroboration unless there are

compelling reasons for seeking corroboration. Seeking corroboration

of her statement before relying upon the same, as a rule, in such cases,

amounts to adding insult to injury. If evidence of the prosecutrix

inspires confidence, it must be relied upon without seeking

corroboration of her statement in material particulars. There is no

legal compulsion to look for any other evidence to corroborate the

evidence of the prosecutrix before recording an order of conviction.

Thus, the statement of the prosecutrix, if found to be worthy of

credence and reliable, requires no corroboration. The court may

convict the accused on the sole testimony of the prosecutrix.

ii) As discussed above, in the present case, the evidence of

PW.1 - prosecutrix is supported by deposition of PW.10, the doctor,

who issued Exs.P8 and P9 - preliminary and final reports and Ex.P10 -

. (2012) 8 SCC 21

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FSL report. Therefore, the contention of learned counsel for the

appellants that conviction cannot be recorded solely based on the

evidence of PW.1 - victim is untenable.

MEDICAL EVIDENCE:

17. As discussed above, PW.1 - victim girl has specifically

deposed about the incident and committing rape by both the accused

one after other. The same is supported by PW.10, the doctor, who

examined the victim girl and gave final opinion based on history and

clinical examination and FSL report, and as per the same, there is

evidence of recent sexual intercourse on the victim girl. The same is

supported by Ex.P8 - preliminary report and Ex.P9 - final report.

PW.10, the doctor, further stated that as per FSL report, the smears on

glass slides contain human semen and spermatozoa. The pubic hair

sent was detected as human hair. Ex.P10 is the FSL report furnished

to him. However, during cross-examination, he has admitted that in

Ex.P8, there is no mention about collecting the pubic hair. The last

menstrual period of the victim is mentioned as 28.02.2013, but it is

recorded as 28.11.2013. In the final report, the last menstrual period

is as 28.11.2013. There is no hard and fast rule to conclude of sexual

intercourse only when two fingers admit. Absence of hymen may be

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due to several reasons. But, total absence of hymen is not possible

due to other reasons other than sexual intercourse. Thus, PW.10

specifically deposed about the recent sexual intercourse on the victim

girl. Exs.P11 and 12 are the potency certificates of accused Nos.1 and

2, and PW.11 is the doctor, who issued the same.

i) In State of Gujarat v. Rameshchandra Ramabhai

Panchal 17, a Division Bench of Gujarat High Court held as under:

"26. The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman's vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman's vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.

27. It is relevant to quote Section-146 of the Indian Evidence Act. It reads thus:--

. 2020 SCC OnLine Guj. 114

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146. Questions lawful in cross-

examination.--When a witness is cross-

examined, he may, in addition to the questions herein-before referred to, be asked any questions which tend--

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross- examination of the prosecutrix as to her general immoral character.

28. Despite the aforesaid proviso, the two-

finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.

29. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no

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bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character.

30. The two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent..."

18. With regard to the FSL report, as stated above, the

Investigating Officer submitted MOs.1 to 3, consists of Punjabi dress

(both the top and bottom), underwear, and three broken pieces of

bangles. The testimony of the prosecution witness, P.W.1, the victim,

is strongly substantiated by medical evidence, particularly the

Forensic Science Laboratory (FSL) Report. The FSL Report

conclusively established traces of spermatozoa on the examined slabs,

providing concrete evidence that the victim had been subjected to

sexual intercourse.

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i) The Apex Court in Re:Assessment of The Criminal Justice

System in Response To Sexual Offences 18 highlighted the

importance of Forensic examinations. The relevant paragraph is

extracted hereunder:

"13. Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape."

19. The Forensic Science Laboratory (FSL) report stands as a

testament to the prosecution's case, affirming the presence of blood

stains on the lower portion of the Punjabi Dress and underwear.

Additionally, traces of spermatozoa and semen were detected on the

glass slides (Item No.5) and cotton swabs (Item No.6 and 7),

providing evidence of a sexual encounter between the victim and the

accused.

. SMW (Cri.) No.04 of 2019, decided on 18.12.2019

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20. The Potency Certificates of both accused, admitted as

Exs.P11 and P12, further corroborate the prosecution case. Notably,

the FSL report, dispatched for examination on the 17.03.2013 and

received on 18.03.2013 supports the prosecution case.

21. In the light of the aforesaid evidence, more particularly,

Ex.P10 - FSL report, Ex.P14 - copy of letter of advice, Exs.P8 and 9 -

preliminary and final reports issued by PW.10 - doctor, the contention

of learned counsel for the appellants that the medical evidence did not

support the prosecution to prove that there was sexual assault on the

victim girl cannot be accepted.

IMPLICATION OF ACCUSED IN FALSE CASE:

22. As discussed above, PW.5 is the mother-in-law of accused

No.1 and close relative of accused No.2. Therefore, she turned

hostile. PW.3, father of the victim, admitted that he borrowed an

amount of Rs.50,000/- from PW.5 for the marriage of his elder

daughter. Except that, the accused did not elicit anything from PW.3

and so also from PW.2. Basing on the said admission that PW.3

borrowed an amount of Rs.50,000/- from PW.5, the appellants cannot

claim that PWs.2 and 3 implicated both the accused in a false case.

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Even according to PW.5, accused No.1 is her son-in-law and accused

No.2 is her agnate.

i) In the socio-cultural context of India, where the public

perception of a rape victim remains stigmatized, and the enduring

impact on the victim is far from transient, the court grapples with the

notion that the prosecutrix would voluntarily subject herself to the

potential repercussions of levelling a fabricated accusation. This

scepticism is exacerbated by the societal consequences the victim

faces, including ostracization and limited opportunities, making it

challenging to assert that the victim would willingly fabricate an

allegation.

ii) In Rajinder v. State of H.P 19, the Apex Court has clearly

opined as under:

"In the context of Indian culture, a woman--victim of sexual aggression--would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-

. (2009) 16 SCC 69

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respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."

iii) In view of the above discussion and the principle laid down

in the above decision, the question of PWs.2 and 3 implicating both

the accused in a false case that too, in rape case, cannot be accepted.

FINDING OF TRIAL COURT:

23. The trial Court recorded the demeanor of PW.1 while

recording her evidence that the victim girl has been weeping

throughout the evidence. PW.1 in her evidence deposed that her

father was a drunkard. Her mother, brother and sister-in-law went to

Vemulawada on pilgrimage. Both accused are close relatives to PW.3

and the victim. Taking advantage of the said situation and also

advantage of PW.3, father of the victim, is a drunkard, took him to

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agricultural field, offered him drink, took the victim girl to her house

and committed rape on her. The same is supported by the evidence of

PW.1 - victim girl, PW.3, her father and PW.10, the doctor, who

examined her. Exs.P8 and 9 are preliminary and final reports. Even

Ex.P10 - FSL report supported the prosecution case.

i) On consideration of entire evidence, both oral and

documentary, the trial Court convicted the accused. The trial Court

also gave a finding that piece of evidence cannot be treated as

contradictory. The evidence of PW.1 is quite consistent that sexual

assault/rape was committed forcibly on her under the threat of dire

consequences and against her consent. The trial Court also considered

the scene of offence, crime details etc., and gave a finding that one

house is under construction situated towards west and another house is

situated on the other side of the road and house of one Mr. Bandari

Chandraiah is situated towards east at far away distance. Therefore,

the cries raised by PW.1 - victim girl from inside the house cannot be

heard by the neighbours, particularly neighbours staying in the

opposite house of the victim. Therefore, the said finding of the trial

Court is on consideration of entire evidence and based on proper

reasons.

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ii) It is also apt to refer that time of the incident was 1.00 A.M.

i.e., wee hours on 16.03.2013. The trial Court also considered the

contention of the appellants that the evidence of PWs.2 and 3 is not

believable and gave a finding that PW.2, mother, PW.3, father and

PW.4, sister-in-law of the victim girl cannot implicate the accused in a

case alleging that they have committed rape on PW.1. It is relevant to

note that PW.1 was studying 10th class at the time of incident and she

was an unmarried girl. Therefore, the question of PWs.2 and 3

implicating the accused in a false case as claimed by the appellants

does not arise.

iii) The trial Court also gave a finding that when the evidence

of victim is categorical that accused Nos.1 and 2 forcibly committed

rape on her, the contention of learned counsel for appellants that her

vagina admitting one finger disproves the evidence of PW.1 is not

tenable. The medical evidence further discloses that on examination

of the victim by PW.10, he found hymen was absent and pelvic admits

one finger and uterus infantile shows that the victim was aged only 15

years and was weak. The doctor has collected two swabs and smears

on glass slides and sent them to FSL. The Investigating Officer has

collected Punjabi dress of both upper and lower of the victim. The

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evidence of PW.1 clearly shows that while committing the offence of

rape on her, her Punjabi dress was also torn by the accused. When the

same was exhibited before the trial Court, the dress of PW.1,

particularly upper part was torn. It shows that some physical violence

was used on the victim.

iv) The trial Court also gave a further finding that seized

articles, such as dress and underwear of victim and bangles, smears

and swabs were collected and sent to the FSL, and Punjabi dress upper

part was marked as item No.1 etc. The trial Court on consideration of

the said evidence, gave a specific finding that the victim was subjected

to sexual intercourse. The evidence of PW.1 has categorically

corroborated by the evidence of the doctor and FSL report. The trial

Court also considered that there was no consent of the victim for

committing sexual intercourse. However, the said alleged consent has

no relevancy since the victim was 15 years as on the date of incident.

The trial Court also gave a finding with regard to the injuries and also

the medical evidence including FSL report.

v) In the light of the aforesaid discussion, the trial Court on

consideration of the entire evidence convicted the appellants. The

impugned judgment is a reasoned one and well-founded. The

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appellants failed to make out any case to interfere with the said

reasoned and well-founded judgment.

vi) The offence committed by the appellants is heinous and

grave in nature.

a) In State of Punjab v. Ramdev Singh 20, the Apex Court dealt

with the issue and held that rape is violative of the victim's

fundamental right under Article - 21 of the Constitution of India. So,

the courts should deal with such cases sternly and severely. Sexual

violence, apart from being a dehumanizing act, is an unlawful

intrusion on the right of privacy and sanctity of a woman. It is a

serious blow to her supreme honour and offends her self-esteem and

dignity as well. It degrades and humiliates the victim and where the

victim is a helpless innocent child or a minor, it leaves behind a

traumatic experience. A rapist not only causes physical injuries, but

leaves behind a scar on the most cherished position of a woman i.e.

her dignity, honour, reputation and chastity. Rape is not only an

offence against the person of a woman, rather a crime against the

entire society. It is a crime against basic human rights and also

violates the most cherished fundamental right guaranteed under

. (2004) 1 SCC 421

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Article - 21 of the Constitution of the India. The said principle was

also reiterated by the Apex Court in Lillu v. State of Haryana 21.

AUTHORITATIVES RELIED ON BY THE APPELLANTS:

24. In Prem Narain v. State of M.P. 22, the Apex Court

considered the testimony of an eye-witness. Since there were serious

contradictions in the versions of eye-witness, the Apex Court held that

the same is not reliable. In the present case, there are no serious

contradictions in the version of the victim. The contradictions, if any,

the same are minor in nature. Therefore, the facts of the said case are

different to the facts of the present case.

i) In Pratap Misra v. State of Orissa 23, the facts are that

prosecutrix was a grown up and experienced pregnant lady. The

allegation was that three accused had forcible and violent sexual

intercourse with her one after the other in quick succession resulting

in her abortion 4 or 5 days thereafter. There was no injury on any of

the accused or on prosecutrix except some bleeding from vagina.

Thus, in the absence of any injury, an inference of consent of

prosecutrix if can be drawn. Whereas, in the present case, in

. (2013) 14 SCC 643

. 2006 AIR SCW 6424

. AIR 1977 SC 1307

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paragraph No.29 of the judgment, the trial Court on consideration of

the evidence including MOs.1 to 4 gave a specific finding that when

the Punjabi dress was exhibited before the trial Court, the dress of the

victim, particularly upper part was torn, it shows that some physical

violence was used on the victim. The seized articles, such as dress

and underwear of the victim and bangles, smears and swabs were

collected and sent to the FSL. On considering items sent for the FSL

and also the FSL report, the trial Court gave a specific finding that

PW.1 was subjected to sexual intercourse. Therefore, the facts of the

said case are altogether different to the facts of the present case.

ii) In Dilip v. State of M.P. 24, the allegation against the

accused was that prosecutrix was raped by two persons. On

considering the evidence, the Apex Court gave a finding that the

evidence of prosecutrix comparing with other evidence found to be

unbelievable. In paragraph No.9 of the said judgment, the Apex Court

considered the facts of the said case. In the present case, the version

of PW.1 - victim is supported by medical evidence i.e., PW.10, the

doctor and Exs.P8 and P9 - preliminary and final reports and Ex.P10 -

. 2001 (2) ALD (Crl.) 706 (SC)

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FSL report. Therefore, the facts in the aforesaid decision are

altogether different to the facts of the present case.

CONCLUSION:

25. In the light of the aforesaid discussion, the trial Court on

consideration of the entire evidence convicted the appellants. The

impugned judgment is a reasoned one and well-founded. The

appellants failed to make out any case to interfere with the said

reasoned and well-founded judgment. Thus, the present criminal

appeal fails and the same is liable to be dismissed.

i) The present Criminal Appeal is accordingly dismissed

confirming the conviction and sentences of imprisonment imposed by

learned Special Judge for trial of Cases under Protection of Children

from Sexual Offences Act - cum - I Additional Sessions Judge,

Warangal, vide judgment, dated 28.03.2014 in Special S.C. No.3 of

2013.

VICTIM COMPENSATION:

26. However, it is relevant to note that learned trial Court did

not award any victim compensation to PW.1. The victim was fifteen

(15) years as on the date of incident. Exs.P6 and P7 - date of birth

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certificate and extract of admission register, respectively, and PW.9's

evidence who is the Head Master of the School would reveal the

same. Therefore, as per Section - 33 (8) of the POCSO Act, the

victim is entitled for compensation.

i) As per Section - 33 (8) of the POCSO Act and Rule - 9 of the

Rules, 2020, the Special Court is having power to determine the

compensation to the victim and forward the same to the DLSA for

disbursal of the award amount. The DLSA is under legal obligation to

give effect to the compensation determined by the Special Court.

ii) The Apex Court in Nipun Saxena v. Union of India 25, held

as under:

"The Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief or rehabilitation and upon giving an opportunity of hearing to the State and other affected parties including the victim pass appropriate order for interim compensation and/or rehabilitation of the child. In conclusion of proceeding, whether the accused is convicted or not, or in cases where the

. (2019) 2 SCC 703

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accused has not been traced or had absconded, the Special Court being satisfied that the victim had suffered loss or injury due to commission of the offence shall award just and reasonable compensation in favour of the victim. The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the Protection of Children from Sexual Offences Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund. The interim/final compensation shall be paid either from the Victim Compensation Fund or any other special scheme/fund established under section 357A of the Code of Criminal Procedure, 1973 (sic) or any other law for the time being in force through the State Legal Services Authorities or the District Services Authority in whose hands the Fund is entrusted. If the Court declines to pass interim or final compensation in the instant case it shall record its reasons for not doing so. The interim compensation, so paid, shall be adjusted with final compensation, if any, awarded by the Special Court in conclusion of trial in terms of section 33(8) of the Act."

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ii) In view of the above discussion and the principle laid down

by the Apex Court, the matter with regard to determination of victim

compensation is remanded to the Special Judge for Trial of Cases

under Protection of Children from Sexual Offences Act - cum - I

Additional Sessions Judge, Warangal, with a direction to determine

the victim compensation to be paid to the victim (PW.1) in terms of

Section - 33 (8) of the POCSO Act and Rule - 9 of the Rules, 2020.

Since the incident occurred on 15.03.2013, the Special Court/trial

Court is directed to complete the said exercise in consultation with

District Legal Services Authority within three (03) months from the

date of receipt of copy of this judgment.