Telangana High Court
Kommu Pedda Balaiah vs The State Of A.P., on 2 April, 2025
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1037 OF 2010
JUDGMENT:
This criminal appeal is filed by the appellant/Accused,
challenging the conviction recorded by the Additional District &
Sessions Judge, Kamareddy, in SC.No.165 of 2007 dated
28.06.2010, whereby the learned Sessions Judge convicted the
appellant/accused for the offence under Section 376(2)(f) of the
Indian Penal Code and sentenced him to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.10,000/-.
2. PW.1 is the father of the victim girl-G.Latha, examined as
PW.3. He lodged a complaint on 01.01.2007 stating that on
29.12.2006, at about 12.30 P.M., while PW.3 was in the house,
the appellant, who was his neighbor, called her to his house, and
committed rape on her. The matter was taken before the elders,
thereafter, a complaint was filed with the Police. Then, PW.3 was
sent to the doctor for medical examination.
3. PW.11 is the doctor who examined the victim girl, and PW.11
stated as follows:
"The said girl has not attained her puberty. I did not find
any external injuries either on her body or on her private
parts. But I found that her hymen was ruptured in posterior
mid line internally and the vagina was admitted one finger.
Tenderness was also present in the vagina apart from
reddish black bleeding from the vagina. As such I have
taken the vaginal swabs and smears and preserved the
same to send to the FSL. I received the FSL report vide
Ex.P6 and on the basis of the report of the FSL i.e. Ex.P6
and my examination of the said victim, I opined that "the
rape cannot be ruled out in connection with the said victim
girl, i.e., PW.3."
4. The appellant was charge-sheeted for the offence of rape,
and the charge was framed by the learned Sessions Judge for the
said offence. The learned Sessions Judge convicted the appellant
on the basis of the evidence of PW.3 and other corroborating
evidence.
5. Learned Legal Aid Counsel, Sri Ravi Kumar Veluri, appearing
for the appellant, would submit that the complaint was filed with
a delay of 3 days, and the reasons for the delay were not
explained. The medical evidence does not support the version
given by PW.3. No semen or spermatozoa was found on the swabs
that were collected from the PW.3. PW.1 admitted that there were
disputes between them, and that on account of the long pending
disputes, a false case was filed. Further, PW.1 admitted that they
were not on good terms, as such, the question of PW.3 going to the
house of the appellant does not arise.
6. On the other hand, the learned Assistant Public Prosecutor
argued that there is no reason why a false complaint would be
filed against the appellant. Involving the victim girl, who was
around 11 years old, in such a case only to take revenge against
the appellant cannot be believed.
7. The incident happened on 29.12.2006, and the complaint
was filed three days thereafter, i.e., on 01.01.2007. According to
PW.1, on the date of the incident, the family members had
discussed the issue, and on 30.12.2006, the caste elders were
informed. Since on 31.12.2006, it was the Yellamma festival, the
complaint was filed on the next day, i.e., on 01.01.2007.
8. PW.11-doctor, who examined PW.3, stated that the girl had
not attained her puberty and her hymen was ruptured. There was
reddish black bleeding from the vagina. The opinion of the doctor
was that rape could not be ruled out. Since 3 days had passed
before the examination, the question of finding semen or
spermatozoa on the swabs collected from PW.3 does not arise. The
doctor further stated that PW.3 had not attained her puberty; as
such, the question of bleeding from the vagina on account of
menstrual cycle does not arise.
9. Though, it is admitted that there were disputes between the
families, however, such disputes cannot form basis to infer that
PW.1 had lodged a false complaint only to take revenge. The
reason for the dispute, according to PW.1, is the land that lies
between the houses of the appellant and the accused's family. It
was a long-pending dispute, and for the reasons of this ongoing
dispute, it cannot be said that PW.1 has fabricated a false case
against the appellant involving his 11 years old daughter.
10. The version of PW.1, stating that the incident occurred on
29.12.2006 and the complaint was filed three days thereafter, in
fact, lends credibility to the version of PW.1 and PW.3, supported
by medical evidence. If PW.1 wanted to falsely implicate the
accused, he would not have stated the date of incident as three
days prior to lodging the complaint. The complaint and the
evidence of PWs.1 and 3 would reflect that the appellant had
raped the victim girl. The delay was properly explained, and the
reason for not finding any semen or spermatozoa on the swabs
collected from PW.3 is of no consequence. It is not necessary that
there should be ejaculation of semen to make out an offence of
rape.
11. Section 375 of the Indian Penal Code reads as follows:
"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:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is
not her husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.--With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.--With or without her consent, when she is under
eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section, "vagina" shall
also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act: Provided that a woman
who does not physically resist to the act of penetration shall not
by the reason only of that fact, be regarded as consenting to the
sexual activity.
Exception 1.--A medical procedure or intervention shall not
constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is
not rape."
12. The evidence of the doctor (PW.11) is consistent and
corroborates the evidence of PW.3 regarding the actions of the
appellant.
13. There are no grounds to interfere with the conviction
recorded by the learned Sessions Judge. The conviction of the
appellant/accused in SC.No.165 of 2007 dated 28.06.2010 is
confirmed.
14. Accordingly, Criminal Appeal is dismissed.
_________________
K.SURENDER, J
Date: 02.04.2025
tk
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1037 OF 2010
Date: 02 .04.2025
tk
