Andhra Pradesh High Court - Amravati
Chikonda Moulali vs The State Of A.P. on 29 February, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Revision Case No. 386 of 2008
ORDER:
1) The present Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., assailing the Judgment of conviction and sentence imposed by Trial Court in S.C. No. 165 of 2006, dated 05.04.2007, which was confirmed in Criminal Appeal No. 45 of 2007.
2) Originally, the accused herein was tried for an offence punishable under Sections 376(2)(f) and 376(2)(f) read with 511 IPC. By its Judgment, dated 05.04.2007, he was convicted by the Additional Assistant Sessions Judge [Fast Track Court], Nandyal, for the offence punishable under Section 376(2)(f) IPC and sentenced him to undergo rigorous imprisonment for a period of seven [07] years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three [03] months. Challenging the same, he filed Criminal Appeal No. 45 of 2007 before the court of III Additional Sessions Judge, Kurnool at Nandyal, which was dismissed vide Judgment, dated 24.01.2008, confirming the conviction and sentence imposed by the Trial Court.
3) The case of the prosecution, in brief, as under:
i. The accused and the victim girl aged about 4 ½ years are residents of Busunur village of Gadivemula mandal. The victim girl was living with her parents [PW2 & PW3] 2 whose house was very near to the house of the accused. Both of them were also related to each other.
ii. On 09.01.2005 at 12.00 noon, when PW2 was attending household duties along with another child, the victim was playing in-front of her house. At that time, the accused, whose house was situated opposite to the house of PW2, is said to have invited the victim girl child, on the pretext of giving some biscuits to her. The victim girl child went inside the house of the accused, who was aged about 20 years as on the date of offence and taking advantage of loneliness, he said to have disrobed the victim girl child and committed rape on her. As a result of his acts, there was bleeding from her private parts. Afraid of the same, the accused absconded from that place. The victim girl started weeping and fell down in-front of the house of the accused. Hearing the cries, PW2 came out and questioned the victim girl as to what happened. Then, the victim girl is said to have informed about the act committed by the accused. On verification, PW2 found the private parts of the victim girl were swollen and blood was oozing. PW4 and LW5 who were neighbors also came there and noticed the blood oozing from her private parts. Meanwhile, PW3, the father of the victim girl and other came there, enquired about the same and went in search of the accused, but, could not trace him.3
iii. The mother [PW2] and others took the victim girl to Primary Health Center of Gadivemula, but as no Doctor was available there, PW7 [Pharmacist] applied some medicine and advised them to take the victim girl to Government Hospital, Nandyal, where PW2 took the victim girl to PW5 who was serving as Medical Officer in Primary Health Center, Gadivemula and was running a private clinic at Nandyal, who also applied some ointment on libia and advised to take the victim to Government Hospital, Nandyal.
iv. On the next day, a report came to be lodged, basing on which, a case in Crime No. 6 of 2005 came to be registered for the offence punishable under Section 376(2)(f) IPC. The police sent the victim girl to Government Hospital, Nandyal, where PW9 examined the victim girl and issued Ex.P6. On 11.01.2005, the accused was arrested and pant [MO3] and shirt [MO4] were seized under Ex.P2. Thereafter, MO3 and MO4 were sent to Forensic Science Laboratory, who opined that spermatozoa were found on them. Ex.P10 is the said Report. Further, PW8 examined the accused and opined that he is capable of performing sexual intercourse. Ex.P5 is the Report. After collecting all the necessary documents and examining the witnesses, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 111 of 2005 4 on the file of the Judicial Magistrate of First Class, Banaganapalli.
4) On appearance, copies of documents as required under Section 207 Cr.P.C. were furnished. Since the offence is triable by the Court of Sessions, the matter was committed to the Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.
5) To substantiate its case, the prosecution examined PW1 to PW10 and got marked Ex.P1 to Ex.P10, beside marking MO1 to MO4. After completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which, he denied, but, however did not adduce any oral or documentary evidence in support of his plea.
6) Considering the evidence available on record, more particularly of PW1 to PW4, the Trial Court convicted the accused, which was confirmed in Appeal. Challenging the same, the present Revision came to be filed through legal-aid.
7) Sri. Madhava Rao, learned legal-aid Counsel for the Revision Petitioner would contend that, there is absolutely no legal evidence on record to connect the accused with the crime. He further submits that, when 161 Cr.P.C., statement of PW1 was not recorded by the police, the court ought not to have relied upon the 5 version in the court since the accused is greatly prejudiced as he lost an opportunity to cross-examine the witness basing on her earlier statement. Apart from that, he would contend that, the evidence of PW2 is an exaggerated version, which is contrary to the medical evidence and the evidence of other witnesses. He further pleads that, the girl was not examined immediately by the doctor after the incident and when the evidence of earlier doctor does not indicate any sign of sexual act the report which is now sought to be relied upon cannot be the basis to connect the accused with the crime. It is pleaded that the evidence of PW9 completely demolishes the persecution version also.
8) The same is opposed by the learned Public Prosecutor contending that the evidence of PW1 to PW4 who have no enmity with the accused cannot be discarded and the same can be made basis to convict the accused.
9) The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the accused beyond all reasonable doubt?
10) It is to be noted herein that, the incident took place on 09.01.2005 at about 12.00 noon and the report about the incident was given on 11.01.2005 at 11.00 AM. The said report was given by Chikkonda Anasuyamma [PW2], who is the mother of the victim girl. Before dealing with the same, it will be useful to refer to the evidence of PW1 who is the victim.6
11) PW1 in her evidence deposed that, she was aged about 5 years on the date of giving evidence. She further deposed that, she knows the accused who is sitting in the court hall and that he resides by the side of their house at Buzunur village. According to her, the accused took her stating that he will give biscuits and kept a cloth in her mouth and put his penis in her vagina. The incident happened day time and that nobody was in the house. She suffered stomach pain and later she went and informed her father. According to her, the accused left the place after he pushed her out. She further deposed that, when she informed to her father about the incident, who he questioned her as to why she went there. She identifies MO1 - Gown and MO2 drawer. In the cross- examination, she admits that, "her parents told her to say like this". It will be useful to extract the relevant portion "my parents told me to say like this". However, to a suggestion that the accused does not rape her was denied. She also denies the suggestion that, she is speaking false.
12) But, however, a perusal of the record does not show recording of Section 161 Cr.P.C. statement of PW1. It is no doubt true that neither PW1 nor the I.O. was asked about it. But the material show that no 161 Cr.P.C., statement of victim was recorded. It is not as if PW1 was not in a position to give the statement. In-fact, her evidence in court came to be recorded within few months thereafter.
7
13) Further, it is also to be noted here that, PW1 in her cross- examination admitted that "her parents told her to say like this"
meaning thereby that she was made to say as to what she has said in her chief-examination. The answer given by PW1 in the cross- examination can be understood in more than one way. On the one hand, as observed by the learned Judge, it could only be to refresh her memory and made her to speak in the manner in which the incident took place. At the same time, in a given set of circumstances, it can be said that, she was tutored to speak in such manner. This evidence of PW1 would be considered a little later, more particularly, after referring to the evidence of other witnesses.
14) (i) PW2 is the mother of PW1, who in her evidence deposed that, the house of the accused is opposite to their house and that he is related to them. The surname of the accused and her surname is one and the same. It is said that, on the date of incident, while she was looking after the domestic work, PW1 and another daughter were playing outside the house between 11.00 AM and 12.00 noon, she heard cries of PW1. She came out and saw PW1 down in-front of the house in turtle position. She also noticed the accused running. When she questioned PW1 as to what happened, she told her that the accused took her stating that he will given biscuits and thereafter committed rape on her. She noticed bleeding through vagina of PW1 and also found swelling.
When she raised cries, neighbours including PW4 came and thereafter her husband who is examined as PW3 came. 8
(ii) When PW1 was examined by a Nurse [PW5], PW2 stated to her that, PW1 fell down and sustained injury. According to PW5, PW2 said 'like that' keeping the future of PW1 in mind. The said nurse [PW5] while giving some ointment advised PW2 to take PW1 to the Government Hospital at Nandyal. She also deposed about the treatment given and the report lodged. In the cross- examination, she admits that she did not state before the police or in Ex.P1, that she saw the accused running. She further states that, she did not state in Ex.P1 that she washed MO1 and MO2. Even in Section 164 Cr.P.C. statement recorded by the Magistrate, PW2 did not mention washing of MO.1 and MO.2 clothes and about the accused running away. She admits that, she took PW1 to a private doctor by name Naga Rekha at Nandyal at 5.00 PM, who is said to have prescribed medicine but PW2 failed to hand over it to the police. According to her, she did not disclose all these things to the police. But, however, she deposed that blood was oozing and there was swelling over the vagina and the doctor examined PW1 at Nandyal. To a suggestion that a false case has been foisted because of a dispute over rasta between the accused and PW2 was denied by her. She further admits that, after the incident she left the house and went to Hyderabad to eke out her livelihood and she took PW1 to Hyderabad along with her.
15) PW3 is the father of PW1 who in his evidence deposed about taking PW1 to Bijunur village. After taking treatment at Nandyal, a report came to be lodged on the advice of the elders. According to 9 him, he heard PW1 narrating the incident to PW2. However, to a suggestion that nothing has happened was denied by him.
16) According to PW4, PW2 told him that accused took PW1 into his house and put a cloth in her mouth and thereafter committed raped. PW4 noticed swelling of vagina and blood coming out of vagina. She was examined on the third day of the incident, but, she does not know whether she was examined by a Constable, Head Constable or a Sub-Inspector of Police. However, PW10 the investigation officer in his evidence admits that PW4 did not state before him that she witnessed blood oozing and the swelling of the private parts of PW1.
17) PW5 is the doctor, by name, A.Naga Rekha, who in her evidence deposed that, she verified the labia and advised some ointment and also advised to take PW1 to Government Hospital, Nandyal. She admits that, she did not maintain any O.P. record in the clinic and due to lapse of time, she is not able to recall the date and name of the patient. According to her, PW2 complained that PW1 was having burning sensation of vagina. In the cross- examination, PW5 admits that, she did not observe any swelling or bleeding over vagina. She also admits that PW1 and PW2 did not stay in Clinic after she gave ointment.
18) This evidence of PW5 show that, she examined the victim- PW1 on the very same day, but, did not notice any swelling or blooding oozing from the private parts of PW1, which is contrary to the evidence of PW1 to PW4.
10
19) Coming to the evidence of PW7, who is a Pharmacist in Primary Health Center, Gadivemula, she in her evidence deposed that, a year back one Gangamma brought her granddaughter aged about 5 years who informed that, her neighbour raped PW1 and there is bleeding from her vagina. PW7 advised her to take the child to Government Hospital, Nandyal. She admits that, she never gave any treatment. She further admits that the name of the person who alleged to have raped was not stated to him. At this stage, the witness was treated as hostile by the prosecution.
20) Coming to the evidence of PW9, the Doctor who examined PW1 on 11.01.2005, he in his evidence deposed that, on 11.01.2005 at about 3.30 PM she examined PW1 for the cause of attempt of rape by known person. On examination, she noticed general condition of PW1 was good. No abrasion or injuries were noticed over body and sexual character not developed. She found hymen normal. She reported that item no. 1 to 10 were examined and human semen and spermatozoa were detected on item nos. 4 and 8. Blood gropum of seminal stails on item no. 4 could not be determined and semen and spermatozoa were not detected on item no. 1, 2 3, 5 and 6. She further deposed that, as per the report, there is no evidence of penetration of male genital into the female genital. Ex.P6 is the Report.
21) This evidence of the doctor rules out possibility of rape as alleged by the witnesses. But, however, refers to semen and spermatozoa on item no. 4 and 8. Item no. 4 is a torn light khakhi 11 coloured terry cotton trouser and item no. 8 is whitish turbid liquid. These two MOs do not link with the clothes of the victim or the accused. No evidence has been adduced to that affect.
22) From the evidence of the prosecution, it is very clear that, the entire case is based on the evidence of PW1, who in her evidence narrates the manner in which she was alleged to have been raped. But, strangely the police did not record her Section 161 Cr.P.C. statement. It is not the case of the prosecution that, she was not in a position to make a statement at that point of time or later, more so, when her statement was recorded in court few months later and she was in a position to disclose the same to PW2 PW3 and others. But, it appears from the record that the police failed to record 161 Cr.P.C., statement of the PW1, which causes great prejudice to the accused as he would be denied with an opportunity to cross-examine PW1 based on her earlier version.
23) At this stage, it is to be noted that, the version of PW1 now given in the court coupled with the evidence of PW2 to PW4 who came to the scene speak about swelling of the private parts, which is found to be contrary to the medical evidence. PW5 who examined PW1 at the earliest point, in her cross-examination admits that, there was no swelling of private parts, leave alone any bleeding. Similarly, PW9 the doctor who examined PW1 on 11.01.2005 rules out the offence of rape being committed on her, moreso, in the absence of semen and spermatoza on item no. 4 and 8. It is to be noted that, even PW1 is not shown as a witness in the charge- 12 sheet. Hence, if the evidence of PW1 is eschewed from consideration, the evidence of other witnesses which is based on the information given by PW1 only and found to be inconsistent with medical evidence cannot be made the basis to convict the accused. As observed earlier, neither PW5 nor PW9 speak about any injuries on the body of PW1, leave alone penetration. In-fact, none of the witnesses speak about seeking the accused and PW1 together. PW2 tried to say that she noticed the accused away in her chief-examination, but, however, admits that she failed to mention the same before the police in her Section 161 Cr.P.C. statement. It is true that the investigation agency has committed a great blunder in not examining PW1.
24) The other aspect which requires to be noticed is that PW1 was taken to the doctor, namely, to the nurse, by name D.Gokaramma, who was examined as PW7. PW2 seems to have stated that the victim [PW1] sustained injuries due to a fall.
25) Further, the answer given by PW1 in the cross-examination that 'her parents made her to speak like that' goes to the root of the matter. Definitely, it can be said that PW1 who is a minor was blutered out the truth in the cross-examination, which shows that she has been tutored to speak in such manner. It may be true that substantial evidence has not been placed on record to show any motive to speak false, but, admittedly, the evidence of PW1 and PW2 shows existence of some disputes between both of them with regard to rasta.
13
26) For the foregoing reasons, I feel that the prosecution is not able to establish the guilt of the accused beyond reasonable doubt.
27) In the result, the Criminal Revision Case is allowed. The conviction and sentence recorded against the Revision Petitioner/ accused in the Judgment, dated 05.04.2007, in S.C.No.165 of 2006 on the file of the Additional Assistant Sessions Judge [Fast Track Court], Nandyal, is set aside. Consequently, accused shall be set at liberty, forthwith, if he is not required in any other case or crime.
28) Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date: 29.02.2020 SM.
14
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Revision Case No. 386 of 2008 Date: .02.2020 SM.