viii. No blood strains were found on the clothes.
13. On the other hand, learned Additional Public Prosecutor
v) Having considered all the aforesaid aspects, the trial Court
convicted the appellant and, therefore, there is no error in it.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
With the aforesaid submissions, learned Additional Public Prosecutor
sought to dismiss both the appeals.
14. In the view of above rival submissions, the point that falls
for consideration by this Court is:
Whether the convictions and sentences of imprisonment
recorded by the trial Court for the charges under Sections -
452, 347, 506 and 323 read with 34 of IPC, 376D and 376
(2) (l) (n) of IPC and Sections - 5 (g), 5 (k) and 5 (1) read
with 6 of the POCSO Act against the appellants herein -
accused Nos.1 and 2 are sustainable, both on facts and in
law?
15. In view of the aforesaid rival submissions, it is apt to
note that the prosecution laid the charge sheet for the aforesaid
offences. Section - 451 of IPC deals with 'house trespass after
preparation'; Section 347 of IPC deals with 'wrongful
confinement'; Section - 506 of IPC deals with 'criminal
intimidation'; Section - 323 of IPC deals with 'voluntarily causing
hurt; Section - 34 of IPC deals with 'common intention'; Section -
376 of IPC deals with 'rape', Section - 376D deals with 'gang
rape, Section - 376 (2) (l) deals with 'rape on minor', while
Section - 376 (2)(n) deals with 'repeated rape'.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
16. As far as offences under POCSO Act are concerned,
Section - 5 (g) deals with 'aggravated penetrative sexual assault
(Gang); Section 5 (k) deals with 'assault on child'; Section - 5 (l)
deals with 'repeated assault', while Section - 6 deals with
punishment.
17. In view of the above provisions and the evidence
available on record, this Court has to re-appraise the evidence let
in by the sides as to whether the learned trial Court was right in
recording conviction and imposition of sentences of imprisonment
in the manner stated above.
18. In this case, PW.1 is the victim girl. PW.2 is the mother
of the victim girl and she gave Ex.P1 - report with the police on
18.03.2015 at 13:30 hours with regard to commission of offences
by the accused upon the victim girl, whereas the incident took
place on 16.03.2015 at 22:00 hours. In her chief-examination, the
victim girl as PW.1 specifically deposed that she knows accused
Nos.1 to 3 as they are the residents of her Thanda. Her mother is
staying in Jangaon as she was working in Lakshminarayana
Hospital. She alone was staying in her house.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
19. PW.1, the victim girl, further deposed that about one
week prior to 16.03.2015 at about 10.00 P.M., while she was
sleeping in her house, accused Nos.1 to 3 entered into her house
and caught hold of her and gagged her mother with a chunni.
They also tied her hands and at the first instance, accused No.1
committed rape upon her. Thereafter, accused No.2 committed
rape and then accused No.3 committed rape upon her one after
another, and it continued for about one hour. Accused Nos.1 to 3
threatened her with dire consequences of killing at the point of
knife if she informs anybody. Due to fear, she did not inform
anybody.
i) PW.1 further deposed that again on 16.03.2015, accused
Nos.1 to 3 entered into her house after 10.00 P.M. and they carried
a Thums Up bottle, Beer Bottles and a packet of Boondi Mixture.
They forced her to drink the Beer, for which she refused, but they
consumed. They again insisted her to have sexual intercourse and
accused N.1 slapped her and bit her right cheek and committed
rape upon her first. Thereafter, accused Nos.2 and 3 committed
rape upon her one after another. On the second time, they tied her
hands with a chunni and forcibly committed rape upon her. She
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
raised cries, but they did not listen to her. On hearing her cries,
PWs.3, 4 and 5 and also LW.6 rushed to her and on seeing them,
accused Nos.1 and 2 fled away, while accused No.3 hid himself
under a cot. They caught hold of accused No.3 and confined in
the house. When PW.5 went to attend calls of nature, accused
No.3 escaped from the house. Her mother came to the house on
the next day morning and LW.6 informed the incident to her
mother. She also informed the incident to her mother. The elders
promised to call the accused and enquire and, therefore, they did
not give the report to the police on the same day. On the next
Wednesday, they went to the police station and her mother gave
report. The police sent her to Government Hospital, Jangaon,
where she was examined. She was also produced before the
Magistrate, Warangal, where she stated regarding the incident and
her statement was recorded under Section - 164 of Cr.P.C.
ii) During cross-examination, PW.1 admitted that she did
not inform either her mother or the neighbours about the rape
committed by the accused on the first occasion due to fear. Her
mother came to the house about two days prior to the incident i.e.,
16.03.2015.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
20. PW.2, mother of the victim girl, deposed in her chief-
examination that she is working as Aaya in Lakshminarayana
Hospital at Jangaon and also staying there. She has two daughters
and a son. The victim girl is her eldest daughter. Her second
daughter and son are staying with her. The victim girl has studied
up to VII Class. Her husband is suffering from mental illness and
he is admitted in Erragadda Hospital, Hyderabad about one month
prior to the date of giving Ex.P1 report and is undergoing
treatment. They have some agricultural lands and to look after the
same she kept the victim girl at their house at Maloth Thanda. She
used to visit the house once or twice in a week to see PW.1 -
victim girl and her needs.
21. PW.2 further deposed that on 16.03.2015, LW.6 called
her over phone at about 11.00 P.M. and informed her that accused
Nos.1 to 3 entered into her house and committed rape upon PW.1,
and when PW.1 raised cries, they went there and on seeing them,
accused Nos.1 and 2 escaped from the house and accused No.3 hid
himself under the cot and he was caught by PWs.3, 4 and 5 and
beat him. When PW.5 opened the doors to attend calls of nature,
accused No.3 escaped from the house. She rushed to her house
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
and reached at 7.00 A.M. on the next day. When she enquired
PW.1, who also narrated that on the previous day, the accused
came to her house, tapped the door and when she opened the
doors, all the accused entered into the house and gagged her mouth
with chunni and forcibly committed rape upon PW.1. She also
informed that ten (10) days prior to the said incident also, the same
accused entered into the house and forcibly committed rape upon
her. When she questioned PW.1 for not informing of earlier
incident, PW.1 informed her that accused Nos.1 and 2 threatened
her with dire consequences on the point of knife, as such, she did
not inform her. She also informed the incident to her brothers,
relatives and elders, as such, she did not lodge the complaint on
the same day. On the next day, she went to the police station and
gave Ex.P1 - report. The police sent PW.1 to the Government
Hospital for examination. The police also examined her and
recorded her statement. She and PW.1 were also produced before
the Magistrate and recorded their statements. PW.1 was also
produced before the doctor at Hyderabad. PW.1 is suffering from
less IQ. PW.2 volunteered that she is apprehending danger from
the hands of the accused.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
i) During cross-examination, PW.2 admitted that PW.1
suffered fits earlier and she looks a little bit innocent in her
behavior and not that worldly-wise. Electricity supply was
disconnected for only one day and got it reinstated immediately.
She has no disputes with any of the villagers including the accused
prior to the incident.
22. Thus, PW.1 has categorically deposed with regard to
trespass, wrongful confinement and rape committed upon her by the
accused and the manner in which they committed the said offences
with common intention and causing hurt. Though PW.2, mother of
PW.2, is not an eye-witness to the incident, her evidence is in tune
with the evidence of PW.1. Further, on her enquiry, PW.1 has stated
with regard to the incident and the commission of offence by the
accused. Thereafter only, PW.2 gave Ex.P1 - report with the police.
However, it is contended by learned counsel for the appellants -
accused that the alleged incident had occurred on 16.03.2015 at 10.00
P.M., whereas Ex.P1 - report was given on 18.03.2015 at 13:30 hours
and that PW.1 did not inform the prior incident also to PW.2 etc.
Thus, there was delay in lodging Ex.P1 - report.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
23. Perusal of record and the evidence of PW.1 would show
that for the rape committed by the accused in the first instance, the
accused threatened her with dire consequences at the point of knife.
Even on the second time also, they threatened her with dire
consequences. Such threats create fear and silence, especially in a
minor. A child lacks the maturity and courage to immediately report
such a traumatic incident. Victims of rape often suffer mental shock,
shame, and confusion. Immediate reporting is not expected and some
time is needed to recover and disclose. In Indian Society, rape victims
(especially minors) face stigma and fear of social backlash. Families
may take time to decide to approach authorities. A delay of just 2
days is not inordinate. It does not give sufficient time to fabricate a
false story involving multiple accused. If the victim's statement
remains consistent, delay becomes immaterial.
24. PW.2, mother of the victim girl categorically deposed that
after reaching the home and enquiring the incident with PW.1, she
informed the same to her brothers, relatives and elders and, therefore,
the delay occurred. Thus, the delay in giving report with the police in
sexual offences is not fatal if it is reasonably explained. In State of
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
Punjab v. Ramdev Singh 1, the Hon'ble Supreme Court held that
delay in lodging complaint is not fatal when victim testimony is
reliable.
25. It is also apt to note that the PW.1 and PW.2 belong to the
scheduled tribes, illiterates and the victim girl IQ levels are bit low.
26. PW.3, who is an eye-witness, deposed with regard to going
to the house of PW.1 on hearing cries of the victim girl, he along with
PWs.4, 5 and LW.6 rushed to the house of PW.1 and found accused
No.3 was hiding in the house of PW.1 under the cot. PWs.4, 5 and
LW.6 consoled the victim. PW.4 beat accused No.3, but he escaped
and fled away. He was declared hostile.
27. PW.6, an eye-witness also deposed reiterating the
deposition of PW.3. However, he deposed that the police examined
him two days after the said incident. At this stage, learned Additional
Public Prosecutor declared him hostile and cross-examined him.
28. PW.8, an eye witness, deposed that on hearing quarrel and
cries near the house of PWs.1 and 2, he along with PW.6 rushed
towards their house and found PW.4 bearing accused No.3. When
. (2004) 1 SCC 421
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
they enquired PW.4, she informed that accused No.3 was caught as he
committed rape upon PW.1. He was declared hostile.
i) During their cross-examination by learned counsel for the
accused, nothing useful was elicited from them.
29. It is apt to note that evidence of hostile witnesses can be
relied to the extent it is useful to the prosecution. The said principle
was also laid down by the Apex Court in Selvamani v. The State,
rep.by the Inspector of Police2.
30. It is apt to note that the Apex Court in Vinod Kumar v.
State of Punjab 3 held as under:
"51. It is necessary, though painful, to note that
PW 7 was examined-in-chief on 30-9-1999 and
was cross-examined on 25-5-2001, almost after 1
year and 8 months. The delay in said cross-
examination, as we have stated earlier had given
enough time for prevarication due to many a
reason. A fair trial is to be fair both to the defence
and the prosecution as well as to the victim. An
offence registered under the Prevention of
Corruption Act is to be tried with all seriousness.
We fail to appreciate how the learned trial Judge
could exhibit such laxity in granting so much time
. 2024 INSC 393
. (2015) 3 SCC 220
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
for cross-examination in a case of this nature. It
would have been absolutely appropriate on the part
of the learned trial Judge to finish the cross-
examination on the day the said witness was
examined. As is evident, for no reason whatsoever
it was deferred and the cross-examination took
place after 20 months. The witness had all the time
in the world to be gained over. We have already
opined that he was declared hostile and re-
examined.
52. It is settled in law that the testimony of a
hostile witness can be relied upon by the
prosecution as well as the defence. In re-
examination by the Public Prosecutor, PW 7 has
accepted about the correctness of his statement in
the court on 13-9- 1999. He has also accepted that
he had not made any complaint to the Presiding
Officer of the court in writing or verbally that the
Inspector was threatening him to make a false
statement in the court. It has also been accepted by
him that he had given the statement in the court on
account of fear of false implication by the
Inspector. He has agreed to have signed his
statement dated 13-9-1999 after going through and
admitting it to be correct. It has come in the re-
examination that PW 7 had not stated in his
statement dated 13- 9-1999 in the court that
recovery of tainted money was not effected in his
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
presence from the accused or that he had been told
by the Inspector that amount has been recovered
from the accused. He had also not stated in his said
statement that the accused and witnesses were
taken to the Tehsil and it was there that he had
signed all the memos.
53. Reading the evidence in entirety, PW 7's
evidence cannot be brushed aside. The delay in
cross-examination has resulted in his prevarication
from the examination-in-chief. But, a significant
one, his examination-in-chief and the
reexamination impels us to accept the testimony
that he had gone into the octroi post and had
witnessed about the demand and acceptance of
money by the accused. In his cross-examination he
has stated that he had not gone with Baj Singh to
the Vigilance Department at any time and no
recovery was made in his presence. The said part
of the testimony, in our considered view, does not
commend acceptance in the backdrop of entire
evidence in examination in- chief and the re-
examination.
xxx xxx xxx
57. Before parting with the case we are constrained
to reiterate what we have said in the beginning. We
have expressed our agony and anguish for the
manner in which trials in respect of serious
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
offences relating to corruption are being conducted
by the trial courts:
57.1. Adjournments are sought on the drop of a hat
by the counsel, even though the witness is present
in court, contrary to all principles of holding a
trial. That apart, after the examination-inchief of a
witness is over, adjournment is sought for cross
examination and the disquieting feature is that the
trial courts grant time. The law requires special
reasons to be recorded for grant of time but the
same is not taken note of.
57.2. As has been noticed earlier, in the instant
case the cross-examination has taken place after a
year and 8 months allowing ample time to
pressurise the witness and to gain over him by
adopting all kinds of tactics.
57.3. There is no cavil over the proposition that
there has to be a fair and proper trial but the duty
of the court while conducting the trial is to be
guided by the mandate of the law, the conceptual
fairness and above all bearing in mind its
sacrosanct duty to arrive at the truth on the basis of
the material brought on record. If an accused for
his benefit takes the trial on the path of total
mockery, it cannot be countenanced. The court has
a sacred duty to see that the trial is conducted as
per law. If adjournments are granted in this manner
it would tantamount to violation of the rule of law
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
and eventually turn such trials to a farce. It is
legally impermissible and jurisprudentially
abominable. The trial courts are expected in law to
follow the command of the procedure relating to
trial and not yield to the request of the counsel to
grant adjournment for non-acceptable reasons.
57.4. In fact, it is not at all appreciable to call a
witness for cross-examination after such a long
span of time. It is imperative if the examination-
in chief is over, the cross-examination should be
completed on the same day. If the examination
of a witness continues till late hours the trial
can be adjourned to the next day for cross-
examination. It is inconceivable in law that the
cross-examination should be deferred for such a
long time. It is anathema to the concept of
proper and fair trial.
57.5. The duty of the court is to see that not only
the interest of the accused as per law is protected
but also the societal and collective interest is
safeguarded. It is distressing to note that despite
series of judgments of this Court, the habit of
granting adjournment, really an ailment, continues.
How long shall we say, "Awake! Arise!". There is
a constant discomfort. Therefore, we think it
appropriate that the copies of the judgment be sent
to the learned Chief Justices of all the High Courts
for circulating the same among the learned trial
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
Judges with a command to follow the principles
relating to trial in a requisite manner and not to
defer the cross-examination of a witness at their
pleasure or at the leisure of the defence counsel,
for it eventually makes the trial an apology for trial
and compels the whole society to suffer chicanery.
Let it be remembered that law cannot be allowed
to be lonely; a destitute."
31. Relying on the said judgment, the Apex Court also taken a
similar view in Rajesh Yadav v. State of Uttar Pradesh4.
32. Referring on the aforesaid two judgments in Selvamani3,
the Apex Court held that the testimony of a hostile witness can be
relied upon by the prosecution as well as the defence. In the said
judgment, the Apex Court also observed thus:
"13. In the present case also, it appears that, on
account of a long gap between the examination-
in-chief and cross examination, the witnesses
were won over by the accused and they resiled
from the version as deposed in the examination-
in-chief which fully incriminates the accused.
However, when the evidence of the victim as well
as her mother (PW-2) and aunt (PW-3) is tested
with the FIR, the statement recorded under Section
164 CrPC and the evidence of the Medical Expert
. (2022) 12 SCC 200
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
(PW-8), we find that there is sufficient
corroboration to the version given by the
prosecutrix in her examination-in-chief. 14. Insofar
as the reliance placed by the learned counsel for
the appellant on the judgment of this Court in the
case of Rai Sandeep alias Deepu (supra) is
concerned, the said case can be distinguished,
inasmuch as in the said case except a minor
abrasion on the right side of the neck below jaw,
there were no other injuries on the private part of
the prosecutrix, although it was allegedly a forcible
gang rape. As such, the said judgment would not
be applicable in the present case."
33. PW.4, another eye-witness to the occurrence, deposed with
regard to reaching the house of victim girl on hearing her cries and
finding accused No.3 was hiding under the cot and escaping of
accused Nos.1 and 2 and later accused No.3 also. She further deposed
that on her enquired, PW.1 informed her that she was raped by
accused Nos.1 to 3. Then, she informed the same to PW.2 over
phone. During cross-examination, nothing useful was elicited from
her.
34. PW.5, one more eye-witness, deposed reiterating what has
been deposed by PW.4. She further deposed that on her enquiry,
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
PW.1 informed that accused Nos.1 to 3 entered into the house,
removed her underwear and that accused Nos.1 to 3 slept with her one
after the other.
35. On perusal of evidence of PW.5, it is clear that she
categorically deposed that on her enquiry, the victim girl informed
that accused Nos.1 to 3 entered into the house, removed her
underwear and they slept upon her one after the another, which was
not deposed by PWs.1 to 4 in their evidence. Referring to the said
inconsistency and discrepancy, learned counsel for the appellants
would contend that their evidence cannot be looked into. Human
memory is not perfect. Minor discrepancies occur due to lapse of
time, trauma, or perception differences. Such variations actually lend
authenticity rather than suspicion. In rape cases, conviction can be
based on the sole testimony of the victim if it is consistent, credible
and inspiring confidence. Minor inconsistencies do not affect
substratum. Therefore, in sexual offences, greater weight should be
given to victim's evidence and trivial discrepancies do not shake the
prosecution case. In State of Punjab v. Gurmit Singh5, the Apex
Court held that in cases involving sexual harassment, molestation,
. (1996) 2 SCC 384
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
etc., the court is duty-bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant discrepancies in
the statement of a prosecutrix should not be a ground for throwing out
an otherwise reliable prosecution case. 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. The Court may look for some assurances of
her statement to satisfy judicial conscience. The statement of the
prosecutrix is more reliable than that of an injured witness as she is
not an accomplice. The Court further held that the delay in filing FIR
for sexual offence may not be even properly explained, but if found
natural, the accused cannot be given any benefit thereof.
36. PW.7, a photographer and videographer deposed with
regard to videographing the statement of the victim girl by a woman
Sub-Inspector as in Ex.P4 - Video CD.
37. PW.9, village elder, deposed with regard to reporting about
the rape committed by the accused to him and LW.9 on 17.03.2015
and he promising them to discuss the matter next day. He also
deposed about PWs.1 and 2 giving report to the police on the next
day. He was not examined by the police. He was declared hostile.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
38. PW.11, a panch witness for scene of offence panchanama,
deposed that at the request of police, he along with LW.15 went to the
house of PWs.1 and 2, where the police recovered MO.1 and prepared
panchanama as in Ex.P9.
39. PW.12, another panch witness for confessional
panchanama of accused Nos.1 and 3, deposed that on 20.03.2015 he
and LW.17 were present at the police station, where on their
questioning, accused Nos.1 and 3 confessed that they entered into the
house of PW.1 during the night and consumed the liquor and
committed rape upon her. Similarly, PW.13 is the panch witness for
confessional statement of accused No.2, who confessed to have
committed the rape upon the victim girl.
40. PW.14, Civil Assistant Surgeon, Area Hospital, Jangoan,
deposed that on 18.03.2015, she examined PW.1 in the presence of
her mother and found a bite mark on her right cheek. On examination
of her private parts, she found that PW.1's hymen was ruptured and
vagina was admitting two fingers. She collected two cotton swabs and
two smears from her vagina to send them to FSL. On receipt of FSL
report, she gave her final opinion as in Ex.P11. Ex.P10 is her
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
preliminary report. Ex.P12 is the FSL report. She opined that sexual
assault had occurred on PW.1.
41. PW.15, Civil Assistant Surgeon, Area Hospital, Jangaon
since November, 2014, deposed that as per the requisition of Inspector
of Police, he examined accused Nos.1 and 3 and found that they are
capable of performing sexual intercourse. He issued Exs.P13 and P14
certificates. Similarly, PW.16, the doctor also issued Ex.P15 potency
certificate in respect of accused No.2.
42. PW.16, Woman Sub-Inspector of Police, deposed with
regard to recording of statement of PW.1 under videography by PW.7
as in Ex.P4.
43. PW.18, Professor of Child Psychiatry, Niloufer Hospital,
Hyderabad, deposed that on 23.03.2015, PW.1 was produced before
him along with requisition of Inspector of Police, Jangoan (Rual) for
her examination. He examined PW.1, who is aged about 15 years and
found that she was fearful, hesitant and she was reacting very slowly
for his questions. She was unable to say the name of the month and
unable to speak as to what she had taken in the last night. Basing on
the questions and answers given by her, he had a doubt regarding her
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
intelligence. He referred her to clinical psychologist (PW.19), to
assess her intelligence. As per his examination, he found that PW.1
was slow for reactions and has sub-normal intelligence. He gave his
findings as in Ex.P16.
44. Whereas, according to PW.19, Clinical Psychologist,
Niloufer Hospital, Hyderabad, the IQ of PW.1 is 55 and, therefore, he
opined that she is suffering from mild mental retardation with
behavioural problems. He also recorded his findings as in Ex.P17.
45. PW.20 is the Investigating Officer. In his chief-
examination, he has deposed that on 18.03.2015 at 1.30 P.M., his Sub-
Inspector of Police, registered a case in Crime NO.30 of 2015 and
issued Ex.P18 - FIR on the complaint given by PW.2. On receipt of
copy of FIR, he proceeded to Narmetta Police Station and resumed
investigation. He examined and recorded the statement of PW.2. He
secured presence of PW.17 and got recorded the statement of PW.1
under videography by PW.7. He visited the scene of offence and
secured the presence of PW.11 and LW.15 and prepared CDF under
Ex.P9. He got recorded the statement of PWs.1 and 2 under Section -
164 of Cr.P.C. On 20.03.2015 he arrested accused Nos.1 and 3, while
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
accused No.2 on 23.03.2015. He also obtained study certificate of
PW.1. On completion of investigation, he laid charge sheet against
the accused.
46. The accused also examined DWs.1 to 3, residents of
Bommakur village, to disprove the case of prosecution and put forth
their defence in the nature of alibi.
47. DW.1 deposed that on 15.10.2015 he engaged accused
No.1 and his cousin for cutting of goats on the occasion of Durga
Festival at Ankushapur Village. He allowed him to leave on
16.10.2015 by 11.00 P.M.
48. DW.2 deposed that on One Sunday, he went to Ankushapur
village to cut the mutton along with accused No.1 and one Iylaiah.
On the same day night after dinner they returned to their village.
During cross-examination by learned Additional Public Prosecutor,
this witness admits that accused No.3 is the son-in-law of his elder
brother.
49. DW.3 deposed that on 16.03.2015, he along with accused
No.2 went to Madhapur village of Devaruppala Mandal, to attend the
marriage of one Nagender along with one Mangamma, Manjya,
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
Chilukamma, Seetharam and returned to their village at 2.00 A.M.
During cross-examination by learned Additional Public Prosecutor,
this witness admits that accused No.2 is related to him as maternal
uncle.
50. When the accused examined DWs.1 to 3 to prove alibi that
at the time of commission of offence, they were not at the scene of
offence and that they were somewhere-else. But, they neither
suggested nor put any questions to the prosecution witnesses, more
particularly PWs.1 and 2 during their cross-examination that they
were not at all present at the scene of offence as alleged by the
prosecution.
51. It is a settled principle that if a party intends to rely on a
particular defence, it must be put to prosecution witnesses in cross-
examination. Failure to do so mean the prosecution had no
opportunity to explain or rebut. The defence appears as an
afterthought. Under Section 103 of the Indian Evidence Act, 1872,
the burden of proving the plea of alibi lies on the accused and it must
be established with clear, cogent, and convincing evidence. Mere
examination of defence witnesses is not sufficient if their version is
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
doubtful and not tested against prosecution evidence. Since the alibi
was not suggested during cross-examination, the prosecution version
remains unchallenged on that aspect and the Court can safely accept
prosecution evidence. Raising alibi only at defence stage without
prior suggestion indicates lack of genuineness and weakens credibility
of defence witnesses. If the victim and other witnesses consistently
identified the accused, and no alibi suggestion was made, their
evidence stands unshaken. Alibi is successful only if it makes the
presence of accused at the scene impossible. Weak or untested
defence evidence cannot achieve this.
52. It is well settled in law that when a plea of alibi is taken by
an accused, the burden is upon him to establish the same by positive
evidence after the onus as regards the presence on the spot is
established by the prosecution. In Binay Kumar Singh v. State of
Bihar 6, the Apex Court held that alibi means the accused was so far
away that he could not have been present at the scene. Therefore, the
accused were unsuccessful in proving the alibi.
. (1997) 1 SCC 283
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
53. With regard to the age of victim girl, it is contended by
learned counsel for the appellants that the Investigating Officer did not
follow the procedure laid down under Rule - 12 of the Justice Juvenile
(Rules and Regulations) Rules, 2000, for determination of the age of
the victim girl. In this regard, the prosecution examined PW.10, the
Head Master, ZPSS School, Bommakur. According to him, PW.1
studied in their school from 2nd to 5th Class during the years 2006 to
2009. As per the request made by the police, he furnished the
particulars of date of birth of PW.1 as in Exs.P7 and P8 and as per
which, her date of birth is 05.06.2000.
54. Thus, in the present case, the age of the victim girl as on the
date of incident was 15 years. Therefore, the victim being below 18
years makes consent legally irrelevant. The offences fall under
aggravated penetrative sexual assault (Section - 5 of POCSO Act),
especially gang assault and repeated assault. This strengthens
prosecution and justifies stringent punishment under Section - 6 of
POCSO Act.
55. Committing rape is a serious offence. Lack of injuries does
not negate rape, especially if the victim is minor and there was no
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
resistance due to fear or coercion. The doctor's (PW.14) admission
shows that delay in medical examination does not automatically rule
out detection of semen. However, it also implies that detection after a
long gap is possible but not guaranteed, and absence of semen does
not negate sexual assault. Further, a witness is competent if she can
understand questions and give rational answers. Even a person with
mild intellectual disability can be a reliable witness under Section -
118 of the Indian Evidence Act, 1872. Competency depends on
understanding, not IQ level. Sexual intercourse with a woman unable
to understand or consent due to unsoundness of mind amounts to rape.
56. In view of the aforesaid discussion, there is clear and
categorical evidence of PWs.1 and 2 coupled with the evidence of
PWs.3 to 9 and also the medical evidence supporting sexual assault
through PW.14, to prove the case of prosecution with regard to
commission of the aforesaid offences. As per the evidence of PW.14
coupled with her preliminary report (Ex.P10), final opinion (Ex.P11)
and FSL Report (Ex.P12), it is also clear that sexual assault had
occurred upon PW.1. In view of the same, the decision in Dola alias
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
Dolagobinda Pradhan v. State of Odisha 7 is not helpful to the
appellants herein.
57. In sexual offence cases, especially involving minors, the
Court can rely on the sole testimony of the prosecutrix if it is credible
and trustworthy, then it forms a strong basis for conviction. As
already discussed supra, the FIR was lodged on 18.03.2015, two days
after the incident. The delay is reasonably explained that the victim
was threatened with dire consequences and considering the social
stigma and trauma, it can be considered that delay in rape cases is not
unusual. The coordinated acts, such as trespass, restraint, gang rape,
show pre-arranged plan, participation of all accused and, therefore,
liability is shared. Entry into the house in the absence of mother of
the victim is also clear and cogent in the present case (Section - 452 of
IPC). Gagging and tying hands amount to wrongful confinement
(Section - 347 of IPC). Threat to kill if disclosed attracts the
ingredients under Section - 506 of IPC. There is also evidence that
one week prior also rape occurred, which shows continuity and
repeated offence and thereby attracts Section - 376(2)(n)of IPC.
. (2018) 18 SCC 695
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
Conduct of the accused is also significant in the present case i.e.,
accused Nos.1 and 2 fleeing from scene and it indicates guilty mind.
58. Thus, this Court would confirm the conviction because the
victim's testimony is reliable and sufficient supported by surrounding
evidence. Thus, the prosecution proved its case beyond reasonable
doubt. Having considered all the aforesaid aspects, learned trial Court
convicted the accused and accordingly imposed the punishments in
the manner stated above for the aforesaid offences. There is no error
in the findings arrived at by learned trial Court and recording of
conviction thereof warranting interference by this Court. Thus, the
present appeals fail and the same are liable to be dismissed.
59. The present Criminal Appeals are accordingly dismissed
confirming the convictions and sentences of imprisonment recorded
and imposed against the appellants herein - accused Nos.1 and 2 for
the aforesaid offences, vide judgment dated 19.02.2016 in Special S.C.
No.60 of 2015 passed by learned Special Judge for trial of Cases
under Protection of Children from Sexual Offences Act-cum-I
Additional Sessions Judge, Warangal.
KL,J & VRKR,J
Crl.A. Nos.336 of 2016 & 1133 of 2019
As a sequel thereto, miscellaneous applications, if any, pending
in these appeals shall stand closed.
_________________________________
K. LAKSHMAN, J
_________________________________
VAKITI RAMAKRISHNA REDDY, J
26th March, 2026
Mgr
