Telangana High Court
Mohd Akbar, vs The State Of Andhra Pradesh, on 24 July, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.299 OF 2013
JUDGMENT:
1. The appellant was convicted for the offence under Section 448
and 376 IPC and sentenced to undergo rigorous imprisonment for a
period of six months and ten years respectively vide judgment in
S.C.No.592 of 2012 dated 16.01.2013 passed by the Assistant
Sessions Judge at Jangaon.
2. Briefly, the case of the victim/P.W.1 is that she was residing
alone in her house in Komalla village. The appellant is resident of
the very same locality. Taking advantage of her living alone, the
appellant trespassed into the house on 7/8.12.2011 and committed
rape on her. Her mouth was gagged and on hearing her cries,
P.W.2/son, who lives nearby and other witnesses P.Ws.3 to 5 and
others went to the spot. Immediately, even before the witnesses
entered into the house, the appellant fled.
3. P.W.1 narrated to P.W.2 and others regarding rape committed
on her by the appellant. She was then taken to the police station
and complaint was lodged. On the very same day, at 12.00 noon,
she was examined by P.W.8/Doctor, who found the following
injuries.
"1. Contusion over the left mandibular region of size of 5 x 4 cm.
2. Abrasion over the upper lip ½ x ½ cm
3. Abrasion over the right side of the tongue of 2 x 1cm.
I also found the injuries on breast.
1. Right breast-a contusion over the upper lateral quadrant of the breast of
sizes of (1) 3 x 4 cm, 2) 2 x 2 cm, 3) 2 x 3 cm.
b) Contusion over the lower lateral quadrant of size of 3 x 2 cm
2. Left breasts-contusion of sizes 1) 3 x 1 cm, 2) 2 x 2 cm"
4. Vaginal swabs were collected and sent for chemical
examination. The chemical examiner opined that there is no semen
or spermatozoa found on the vaginal smears or on the clothes of the
victim.
5. Having examined all the witnesses, charge sheet was filed.
6. Learned Assistant Judge recorded the evidence of prosecution
witnesses P.Ws.1 to 12 and marked Exs.P1 to P11. In defence,
Exs.D1 to D3 marked. Having considered the evidence on record
learned Assistant Sessions Judge recorded conviction, as stated
supra.
7. Learned counsel appearing for the appellant would submit
that it is highly improbable that woman, who was aged around 60
years would be raped by the appellant that too for two hours as
mentioned in her chief examination. On account of disputes among
them, false complaint was filed. However, P.W.1 stated that her
mouth was gagged with pieces of clothes from the pillow which is
highly improbable. Further, the FSL report did not disclose that
there was any semen or spermatozoa found on the smears collected
as samples and also the clothes. The said fact also makes the
version of the victim abundantly doubtful. In the said
circumstances, benefit of doubt has to be extended to the appellant.
8. On the other hand, learned Assistant Public Prosecutor
submitted that the solitary evidence of the victim would suffice to
record conviction in a rape case if the evidence is convincing. At the
earliest point of time, the compliant was lodged. The incident took
place in the mid night and the complaint was lodged within two
hours of the rape committed by the appellant.
"Section 375: Rape:
A man is said to commit "rape" if he--(a)penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other
person; or(b)inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of a woman or makes her to do so with him or any
other person; or(c)manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such woman or makes
her to do so with him or any other person; or(d)applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:--
...."
9. It is the version of P.W.1/victim that the appellant removed
her clothes, pressed her breasts and also bit on her breasts. He
slept on her and committed forcible sexual intercourse for two
hours. When she wanted to pass urine, the appellant asked her to
pass urine in a bowl. He also inserted his finger in the vagina of
P.W.1, due to which, she sustained scratch injury. She started
shouting for help, the other witnesses P.Ws.2 to 5 went to the house
of P.W.1.
10. P.W.1 narrated about the incident to her son/P.W.2. She was
taken to the police station within two hours at 3.00 a.m and
complaint was filed and she was examined by the Doctor at 12.00
noon on the same day. As seen from the evidence of Doctor/P.W.2,
she received injuries on her both breasts, cheek and upper lip. The
said injuries corroborate with the narration given by P.W.1
regarding the acts of the appellant in committing the rape while
assaulting her.
11. On the only ground that P.W.1 stated that the appellant had
sexual intercourse for two hours and during that time, she did not
shout for help, cannot form basis to disbelieve the entire version of
P.W.1. As already discussed, the version of P.W.1 with regard to
assault and commission of rape is corroborated by medical
evidence. Though semen and spermatozoa were not found on the
wearing apparel that in itself would not indicate that rape was not
committed. As argued by the counsel, secretion of semen is not
necessary to constitute an offence of rape. Section 375 IPC
indicates, as to what constitutes an offence of rape. Section 375
IPC reads as follows:
12. I do not find any infirmity with the finding of the Court below
and have no doubt regarding truth of the version of P.W.1.
13. Accordingly, appeal is dismissed. However, keeping in view
that the incident is of the year 2011 and nearly 14 years have
passed by, the sentence of imprisonment of ten years under Section
376 IPC is reduced to seven years.
14. The trial Court is directed to cause appearance of the
appellant and send him to prison to serve out the remaining period
of sentence. The remand period, if any, shall be given set off under
Section 428 Cr.P.C.
__________________
K.SURENDER, J
Date: 24.07.2024
kvs
