Andhra Pradesh High Court - Amravati
Between vs The State Of Andhra Pradesh on 14 June, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.944 OF 2009
Between:
Yalukala Suryanarayana,
S/o.Chitti Appadu, 50 Years,
Turupu Kapu, R/o.22-17-5B,
Cement Road, Bhanu Nagar,
Vijayawada, A.P. ... Appellant/Accused.
Versus
The State of Andhra Pradesh,
Rep. by the Public Prosecutor,
High Court of A.P., through Inspector
of Police, S.N. Puram P.S.,
Vijayawada City ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 14.06.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the judgment? Yes/No
___________________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.944 OF 2009
% 14.06.2023
# Between:
Yalukala Suryanarayana,
S/o.Chitti Appadu, 50 Years,
Turupu Kapu, R/o.22-17-5B,
Cement Road, Bhanu Nagar,
Vijayawada, A.P. ... Appellant/Accused.
Versus
The State of Andhra Pradesh,
Rep. by the Public Prosecutor,
High Court of A.P., through Inspector
of Police, S.N. Puram P.S.,
Vijayawada City ... Respondent/Complainant.
! Counsel for the Appellant : Sri V. Raghu, State Brief.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
This Court made the following:
3
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.944 OF 2009
JUDGMENT:-
The unsuccessful accused in Sessions Case No.160 of 2008, on the file of Sessions Judge, Mahila Court, Vijayawada ("Sessions Judge" for short), challenging the judgment, dated 02.03.2009, filed the present Criminal Appeal. The unsuccessful accused in the above said case faced charge under Section 376 of the Indian Penal Code ("I.P.C" for short) and after completion of trial, he was convicted under Section 235(2) of the Code of Criminal Procedure ("Cr.P.C." for short) and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for six months.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the Sessions Judge, Mahila Court, Vijayawada, for the sake of the convenience.
3) The Sessions Case No.160 of 2008 arose out of a committal order in P.R.C.No.30 of 2008, on the file of I Additional Chief Metropolitan Magistrate, Vijayawada, pertaining to Crime No.166 of 2008 of Satyanarayanapuram Police Station, Vijayawada City, alleging the offence under Section 376 of I.P.C. 4
4) The State, represented by the Inspector of Police, S.N. Puram Police Station, Vijayawada City, filed a charge sheet as above alleging in substance as follows:
(i) The accused is resident of Bhanu Nagar, Vijayawada.
He is working as night watchman in Satyabhama cloth stores. The daughter of the accused is running Lakshmi Fancy and Clothes Stores at Cement Road, Bhanu Nagar. The accused being night watchman used to look after the shop of his daughter during day time. He developed evil intention towards the victim girl who used to purchase fancy articles from the said shop.
(ii) L.W.1, the victim girl, is studying 7th class in S.T.V.R.M.C.H. School. She is living with her mother L.W.2- Bondada Lakshmi and her elder brother in a thatched house for rent near railway track. Her father died in an accident about one month back. Her mother used to do coolie works to look after the welfare of the children.
(iii) As the shop of the daughter of the accused is very nearer to the house of the victim, she used to visit the shop frequently for purchase of bangles, ribbons, nail polish, etc. Two days prior to Ugadi festival, she went to the said fancy shop and by then the accused was transacting the business. She 5 asked the accused for nail polish and the accused told her that the nail polish and ribbons are in his house and took her to his house, which is situated in the next street. He took the victim to the middle room where a cot is lying and asked her to remove her clothes and lye on the bed. When she refused to do so, he threatened her that he would kill her mother and brother and made her to remove her clothes. He also removed his clothes and laid on her and raped her. He gagged her mouth not to shout. Afraid of the words of the accused, the victim did not disclose the offence to anybody. Afterwards also whenever victim goes to school, accused used to threaten her and asked her to come to his house. He frequently gives nail polish without taking money.
(iv) On 11.04.2008 at 1-30 p.m., the accused threatened and took the victim to his house and again raped her. When victim went to the house of the accused, the neighbourers L.W.4-Peketi Vara Lakshmi, L.W.5-Jampala Prasanna, L.W.6- Kadavala Lakshmi and L.W.7-Datti Parvathi, saw her. Thereafter, the accused went to the school of victim and asked her to come to his house which was also witnessed by L.W.8- Cheemala Gunnamma @ Gundamma, who is the friend of the victim. Gundamma immediately informed the same to L.W.2, 6 the mother of the victim and when the mother of the victim enquired her, she disclosed the entire incident. Then the mother of the victim went to the house of the accused to question him and accused ran away from the house. Later, L.W.2 and the brother-in-law of the victim i.e., L.W.3-Vinjarapu Ramu took the victim to S.N. Puram Police Station and reported the matter to the police.
(v) L.W.17-Sub-Inspector of Police, S.N. Puram Police Station recorded the statement of the victim and registered the same as a case in Crime No.166 of 2008 under Section 376 of I.P.C. and issued original F.I.R. and copies to all concerned. L.W.18-Inspector of Police, S.N. Puram Police Station, Vijayawada City, took up investigation, examined the victim and recorded her detailed statement. He also recorded the statements of neighbourers and other witnesses. He visited the scene of offence and got prepared observation report on 16.04.2008 at 3-00 p.m. in the presence of the mediators L.W.12-Angirekula Nageswara Rao and L.W.13-Jangam Bala Raju. He got photographed the scene of offence through L.W.10- Bondalapati Joji. He also prepared rough sketch. L.W.18 sent the victim to medical officer for conducting necessary medical examinations and for issuance of medical certificate and to the 7 Asst. Professor for age determination certificate. L.W.18 arrested the accused on 17.04.2008 at 7-00 a.m. and sent him to medical examination about the potency and thereafter sent him to remand. On 25.06.2008 L.W.14-Judicial Magistrate of First Class, Special Mobile Court, Machilipatnam recorded the statement of the victim under Section 164 of Cr.P.C. L.W.15- Medical Officer issued preliminary medical report kept pending issuance of final opinion and forwarded the preserved material to R.F.S.L. After receipt of R.F.S.L. report, she issued the final opinion that there is a clinical evidence of sexual intercourse. L.W.16-another Medical Officer issued age determination certificate opining that the age of the victim girl is about 14 years. L.W.16 also issued potency certificate of the accused opining that the accused is capable of performing sexual intercourse. Hence, the charge sheet.
5) The learned I Additional Chief Metropolitan Magistrate, Vijayawada, took cognizance of the case under Section 376 of I.P.C. and after compliance of formalities under Section 207 of Cr.P.C., committed the case to the Court of Metropolitan Sessions Judge, Vijayawada and thereafter, the case was numbered and was made over to the learned Sessions Judge, Mahila Court, Vijayawada.
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6) On appearance of the accused before the learned Sessions Judge, Mahila Court, Vijayawada and after complying the procedure under Section 228 of Cr.P.C., charge under Section 376 of I.P.C. was framed and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.
7) To bring home the guilt against the accused, the prosecution before the learned Sessions Judge examined P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.11. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances in the evidence adduced by the prosecution, for which he denied the same and did not adduce any defence evidence.
8) The learned Sessions Judge, Mahila Court, Vijayawada, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the charge under Section 376 of I.P.C. convicted him under Section 235(2) of Cr.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for six months. Felt 9 aggrieved of the same, the unsuccessful accused filed present Criminal Appeal.
9) Now, in deciding the present Criminal Appeal, the points that arise for consideration are:
(1) Whether the prosecution before the trial Court proved beyond reasonable doubt that the accused committed rape against the victim girl two days prior to Ugadi festival in the month of April, 2008 which is punishable under Section 376 of I.P.C.?
(2) Whether there are any grounds to interfere with the judgment of the learned Sessions Judge, Mahila Court, Vijayawada?
Points:-
10) Sri V. Raghu, Advocate, who is appointed as State Brief to defend the appellant, would contend that there are improvements in the evidence of the prosecution witnesses especially, P.W.1 to P.W.4 on material aspects. Deviating from the manner of incidents in Ex.P.1, the victim developed the case as if the accused put cloth in her mouth and beat her. It is not there in Ex.P.1 statement. The accused was able to elicit the omissions from the mouth of the investigating officer. Though the offence was said to be occurred two days prior to Ugadi festival of 2008 and even thereafter within a gap of 10 days, report came to be lodged with abnormal delay and the 10 prosecution failed to explain the delay. The report could be lodged on 16.04.2008. There was previous dispute between the mother of the victim and the accused in connection with the daughter of the accused and keeping in view, a false case is foisted against the accused. The investigating officer admitted about the omissions in the cross-examination of PW.1. There was no corroboration to the evidence of P.W.1. The Court below did not appreciate the evidence of the medical officer P.W.7 properly. The victim was subjected to medical examination during the menstrual period. The Court below erroneously convicted the accused, as such, the Criminal Appeal is liable to be allowed.
11) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that the omissions that were suggested to the prosecution witnesses are trivial in nature and even if they were excluded, the case of the prosecution with reference to Ex.P.1 remained intact. The evidence of P.W.1 has corroboration from P.W.2, the mother of P.W.1 and even P.W.3, P.W.4 and P.W.6 testified the act of the accused in coming to the school and causing enquiries about the victim. According to the medical evidence, there was evidence of sexual intercourse. So, the oral evidence of the victim has also 11 corroboration. The victim has no reason to implicate the accused falsely. The learned Sessions Judge rightly appreciated the evidence on record, as such, the appeal is liable to be dismissed.
12) P.W.1 is the victim. P.W.2 is mother of P.W.1.
P.W.3 is the neighbor to the house of the accused. P.W.4 is the co-student of P.W.1. P.W.5 is the Photographer who took photographs at the scene of offence. P.W.6 is the class Teacher of P.W.1. P.W.7 is the medical officer, who examined P.W.1 and issued wound certificate. P.W.8 is another medical officer, who examined P.W.1 and issued age determination certificate and who also examined the accused and issued potency certificate. P.W.9 is the Sub-Inspector of Police, who registered the F.I.R. P.W.10 is the main investigating officer.
13) Turning to the evidence of P.W.1, her evidence in brief is that her father died about six months ago prior to her evidence. Her mother is coolie. She knows the accused, who is running a fancy shop near to their house. She used to go to the fancy shop of the accused to purchase ribbons, nail polish, etc. While she was studying 7th class, she went to the fancy shop of the accused to purchase ribbons and nail polish in the month of April. The accused took her to his house saying that they were not available in the shop but they were available in the house. 12 House of the accused is situated in Bhanu Nagar very nearer to his fancy shop. It was happened at about 1-30 p.m. After the accused took her to his house, made her to sit on a cot. He put clothes into her mouth and asked her to remove her clothes. When she refused to do so, he beat her to remove her clothes. Then the accused removed her clothes and also his clothes. The accused put his penis into her vagina and committed rape. The accused lifted her and asked her to put on her clothes. Then she put on her clothes. He threatened her that he would kill her mother and brother, if she disclose the incident to anybody and stated that her father already died. Then she went to her house. Thereafter she went to the school. The accused used to come to the school and used to threaten her that he would kill her mother and brother and used to ask her to come to his house after the school is over. Once the accused came to her school and asked her to come to his house. At that time one Gundamma, her classmate, heard the words of the accused. Then she was attending examinations. After she attended the examination, the accused asked her Teacher to send her along with him saying that her paternal grandmother died. Her Teacher did not send her along with the accused and asked the accused to go away. Then she went to her house. Her classmate 13 Gundamma informed to her mother, who in turn informed the same to her mother. Then her mother took her to the house of the accused, the accused ran away. When her mother questioned her, she narrated the entire incident. Then she and her mother went to the police station. Ex.P.1 is her statement. She further deposed that the accused also committed rape on her at another time in the same house. Police examined her. One lady Magistrate also recorded her statement. Her date of birth was 12.01.1996.
14) Coming to the evidence of P.W.2, the mother of P.W.1, she deposed that about nine months back, the friend of her daughter namely Gundamma told her that one person come to school to take her daughter and that person is fancy shop owner and further asked her whether she sent him (accused) for her daughter. Then she replied that she did not send him for her daughter. Then Gundamma told her that the person came to the school and enquired about her daughter. She further revealed that at 1-00 p.m. the said person came to their school. Then she asked her daughter as to what happened. In the beginning she did not tell anything. Then she insisted her daughter as to what happened. She told her that when she gone to fancy shop of accused to purchase ribbons and pinnusulu, he took her to his 14 house saying that they are not available in the shop, but, they are available at his house and made her to sit on a cot and closed the door and asked her to remove her clothes and when she refused to do so, accused removed her clothes and also removed his clothes and when she was crying, he put clothes into her mouth and committed rape. Four days thereafter the accused again committed rape and threatened her that he would kill her mother and her brother. Then she took her daughter and her son to the house of the accused. The accused ran away. Then she took her to her daughter to the police station where police examined her and sent her to hospital.
15) Coming to the evidence of P.W.3, the neighbourer to the house of the accused, she deposed that three days prior to the galata that took place at 4-00 p.m. P.W.1 was going in front of her house and when she asked her where she was going, she replied that she was going to the house of accused. When she was enquiring other children, who was P.W.1 and why she came there, within 10 minutes, the accused came out from his house and later P.W.1 also came out from the house of accused and went away. In the month of April, this incident took place. It was during examinations period. Three days thereafter the 15 mother of P.W.1 came to their house and took the accused to her house. Police also came to her house at that time.
16) Coming to the evidence of P.W.4, she deposed that in the month of April, 2008, she and P.W.1 were studying 7 th class. In the same month of April, 2008 their examinations were going on. On that day, the accused came to their school at about 1-30 p.m., and enquired her about P.W.1. She replied that P.W.1 gone away. When she asked the accused as to why he asked about P.W.1, he told her that the paternal grandmother of P.W.1 died. Then the accused went away. Then she went to the house of P.W.1 and asked the mother of P.W.1 whether her mother-in-law died and that the accused told the said fact to her. Then the mother of P.W.1 told her that her mother-in-law did not die and asked her who told the fact to her.
17) Coming to the evidence of P.W.6, the Teacher, she deposed that on 14.04.2008, the 7th class last annual examinations were going on in the school. The primary school is also located in their school premises. Two students of primary school came to her and told her that somebody came for P.W.1 stating that her paternal grandmother died. By then P.W.1 was writing her 7th class examination and she was the invigilator in 16 the examination. Then she came out and found the accused and informed to the accused that as examination was going on, P.W.1 could not be sent out. Then the accused went away. After examination, students gone away and then she too went away. Police examined her on 18.04.2008.
18) For better appreciation, it is pertinent to look into Ex.P.1 statement of P.W.1 recorded by the police. The substance of Ex.P.1 is that it is the statement of the victim. Her father died about one month back prior to the report. She attained puberty about one month ago. Her mother used to look after her and her elder brother. Accused is running a fancy shop. She used to purchase ribbons, nail polish and bangles. Accused used to talk with her funnily. Ten days ago i.e., two days prior to Ugadi festival she went to the shop of the accused to purchase the above items and the accused took her to his house which is situated by the neighbouring lane. He took her to the cot in the house and asked her to lie over by removing her clothes, for which she refused and he threatened to kill her mother and elder brother and made her to remove her clothes and accused also removed his clothes and committed rape. He pressed her mouth preventing her from raising any cries. On account of the words of the accused, she did not reveal the incident to 17 anybody. Thereafter, whenever she goes to school, accused used to threaten her and demand her to come to his house. He used to supply free of cost the nail polish and ribbons. On 11.04.2008 at 1-30 p.m., the accused took her to the house and committed rape. When she is going along with the accused, neighbourers also witnessed. On one day, accused came to the school and asked her to come and it was witnessed by Gundamma and Gundamma intimated the same to the mother of the victim and her mother asked her as to what happened and she reveled the incident. So, the victim lodged the report on 16.04.2008. This is the substance of Ex.P.1.
19) As evident from the cross examination part of P.W.1, the contention of the accused is that P.W.1 did not state before police that the accused put clothes into her mouth and asked her to remove the clothes and that she did not mention in Ex.P.1 or before police that the accused inserted penis into her vagina and beat her to remove her clothes. She denied that the defence theory that her mother borrowed Rs.1,000/- from the daughter of the accused and when his daughter demanded her mother for repayment of the amount, altercation took place where the accused intervened and beat her mother and with grudge her mother used her to file false case. P.W.1 denied the 18 said defence theory. Coming to the cross examination of P.W.2, the contention of the accused is that she did not state before the police that P.W.1 told her that she gone to the shop of accused to purchase safety pins, ribbons, etc., and that four days later the accused committed rape on P.W.1 and that when she was enquiring the accused, he ran away. She denied that she borrowed hand loan of Rs.1,000/- from the daughter of the accused and in that connection, an altercation took place between her and the daughter of the accused and due to grudge against his daughter, she used her daughter as a tool in filing false case. P.W.3 during the cross examination denied that she did not state before police that she enquired P.W.1 where she was going and was enquiring other children as to why P.W.1 was going to the house of the accused and that 10 minutes thereafter, accused came out from his house and later P.W.1 came out from his house. She denied that she is deposing false. P.W.4 during cross examination denied that she did not state to police what she stated in her chief examination and that she told to the mother of P.W.1 that the accused came and told her that her mother-in-law died and that she is deposing false. Coming to the cross examination of P.W.6, she denied that she did not state to police that two primary school students came to her and 19 told her that somebody came for P.W.1. She deposed that the parents of the students used to come to school. She denied that the accused did not come to the school and she is deposing false.
20) As seen from the evidence of P.W.10, the investigating officer, certain omissions are proved. According to P.W.10, P.W.1 did not state to him that the accused put clothes into her mouth and the accused beat her to remove her clothes and she did not specifically state that the accused inserted his penis into her vagina, but she stated that the accused spoiled her. He further deposed that P.W.1 did not state to him during examination that the accused came to her school and asked her Teacher to send her as her paternal grandmother died and that her Teacher did not allow to send her along with the accused. P.W.2 did not specifically state to him that the victim girl went to the shop of the accused to purchase pinnisulu and that she was told by P.W.1 that the accused put clothes into the mouth of P.W.1. P.W.3 did not state to him that she enquired the victim girl as to where she was going when the victim girl was going in front of her house and that she enquired the co-students about the victim girl and that thereafter, the accused came out and followed by the victim girl. P.W.4 did not state to him during the 20 cross examination that the accused came to their school and asked her about the victim girl and she replied that victim girl went away to her house and that when she enquired the accused as to why he was asking about P.W.1, he replied that her paternal grandmother died. P.W.6 did not specifically state to him that two primary school students came to her, but, she stated two school children came to her.
21) As seen from the omissions suggested to P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 which were elicited from the mouth of P.W.10 they are trivial in nature. The substratum of the case of the prosecution as projected in Ex.P.1, remained intact, even if the omissions are excluded from the consideration. There is a whisper in Ex.P.1 that the accused pressed the mouth of the victim to prevent her in raising cries. Though the evidence of P.W.1 that accused put clothes in her mouth and beat her are omissions, but her evidence that the accused committed rape against her remained intact. There is a clear whisper in Ex.P.1 that the accused committed rape. The evidence of P.W.1 that the accused put his penis into her vagina would not convey any further meaning and it only means for rape. Therefore, when the victim narrated in detail as to the manner of rape, her evidence that the accused put his penis into 21 her vagina cannot be taken as omission. The manner in which P.W.2 came to know about the fact that the accused made some enquiries about P.W.1 in the school is corroborated by the evidence of P.W.4, the co-student. Though there are omissions in the evidence of P.W.2 to P.W.4, but, they are trivial in nature. The substratum of the case of the prosecution that P.W.3 witnessed when the victim was going to the house of the accused remained intact, even if the omissions of P.W.3 are excluded from consideration. The fact that the accused came to the school and caused enquiries about whereabouts P.W.1 is spoken to by P.W.4, the co-student and P.W.6 the Teacher. On what aspect the accused made such enquiry is immaterial. Absolutely, the accused had no business to come to the school of P.W.1, making enquiry about her presence subsequent to the commission of offence. In my considered view that the very evidence of P.W.1 to P.W.4 consistently corroborated with each other.
22) Coming to the age of the victim at the time of offence in question, the case of the prosecution is that she was aged about 13 years. The victim testified the above. In the entire cross examination of P.W.1 to P.W.4, the age of the victim was not at all disputed. There is evidence of P.W.8, the 22 medical officer, that he examined the victim and issued age determination certificate and according to Ex.P.6, she was aged about 14 years. The date of examination of the victim by P.W.8 was on 17.04.2008. Apart from this, there is Ex.P.11, study certificate, which reveals that the victim was born on 06.05.1995. Ex.P.11 was marked through the evidence of P.W.10, the investigating officer. It is not the case of the accused that the victim was above the age of 14 years at the time of occurrence. So, the prosecution before the Court below categorically proved through the scientific evidence as well as Ex.P.11 that the victim was born on 06.05.1995 which means that she was aged about 13 years as on the date of commission of offence. The age of the victim is material here for the reason that according to Section 375 of I.P.C. which was in force as on the date of commission of offence, a man is said to commit rape with or without her consent when the victim is under 16 years of age. Throughout the trial, the accused never ventured to dispute the age of the victim.
23) It is to be noticed that the defence of the accused is that on account of quarrel between the accused and the mother of the victim where he beaten the mother of the victim, a false case is foisted. When the victim denied the said suggestion, the 23 accused did not venture to put up a suggestion before P.W.2 that he beaten her, as such, she implicated in the false case. The vague suggestion put-forth before P.W.2 that on account of dispute with the daughter of the accused, he is falsely implicated cannot stands to any reason. P.W.1 who was a student in the age of 13 years at the time of offence had no reason to implicate the accused falsely. It is not the case of the accused that P.W.1 had any questionable antecedents to implicate the accused in the case of this nature. In Indian background of society, a girl like P.W.1, who was a minor and who was a student would not come and depose falsely that she was raped by the accused unless she had questionable antecedents. Her evidence remained unshaken during probing cross examination. Hence, the oral evidence of P.W.1 is fully convincing. Her evidence has corroboration from the evidence of P.W.2 to P.W.4 with regard to her going to the house of the accused along with the accused and the accused making enquiry about her in the school. P.W.6, the Teacher, had no reason to depose false against the accused. The accused had no business whatsoever to go to the school of the victim and questioned about her whereabouts. So, he did all these things even after the offence with a bad motive to commit further offence.
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24) Coming to the medical evidence, according to P.W.7, on 16.04.2008 at 8-00 p.m., she examined P.W.1 with history of sexual assault by a known person repeatedly three or four times since past one month. She deposed that the victim was in menstrual period at the time of examination. According to her on local examination, external genitalia is healthy and hymen is found not intact. Old tears of hymen seen at 4 „o‟ clock position. Vagina admitting one finger loosely. Hence, according to her, there is clinical evidence of sexual intercourse. Ex.P.5 is her final opinion. She denied in cross examination that if a girl participates in sports and games and doing cyclying, there is a possibility for tearing of hymen. She deposed that she did not think there will be tearing of hymen by self fingering and itching.
25) It is to be noticed that P.W.1 specifically stated in cross examination that she never participated in the sports and drills. She used to play with friends. She can ride a cycle. The accused failed to elicit any favourable answer from P.W.7 for rupture of hymen in the manner as alleged. So, the oral testimony of P.W.1 has corroboration from the evidence of P.W.7 and coupled with Ex.P.5, the medical opinion. As pointed out, the victim was aged about 13 to 14 years by the time of commission of offence and the age of the victim is not in 25 dispute. According to P.W.7, the accused was capable of performing sexual intercourse and Ex.P.7 is the potency certificate.
26) P.W.9 spoken to the fact that on 16.04.2008 P.W.1 along with her mother came to the police station and gave Ex.P.1 statement and he registered it as a case in Crime No.166 of 2008 under Section 376 of I.P.C. and issued F.I.R. P.W.10, the investigating officer, spoken in detail about the investigation done by him. Except, regarding the omissions suggested to P.W.1 to P.W.8, nothing is elicited from his evidence to disbelieve the evidence of the prosecution.
27) Coming to the aspect of delay, there was no occasion for P.W.1 to go to the police station till her mother enquired her as to what happened. So, her mother soon after came to know about the occurrence through the mouth of P.W.1, took P.W.1 to the police station. Under the circumstances, the incident of rape could only came to the notice of the mother i.e., P.W.2 subsequent to 11.04.2008 i.e., in between 11.04.2008 and 16.04.2008. Hence, it cannot be held that there is any delay deliberately in lodging Ex.P.1 to police. The contention of the learned counsel for the appellant that there is delay in lodging report cannot stand to any reason. 26
28) The learned Sessions Judge, Mahila Court, Vijayawada, having analyzed the evidence in proper perspective, rightly convicted and sentenced the accused. The evidence of P.W.1 is fully convincing which has corroboration from the medical evidence.
29) Having regard to the overall facts and circumstances, in my considered view, the prosecution before the Court below categorically proved the incident of rape committed by the accused against P.W.1 two days prior to Ugadi festival in April, 2008 and thereafter beyond reasonable doubt. Hence, I hold that there are no merits in the appeal, as such, the Criminal Appeal is liable to be dismissed.
30) In the result, the Criminal Appeal is dismissed, as such, the judgment, dated 02.03.2009 in S.C.No.160 of 2008, on the file of learned Sessions Judge, Mahila Court, Vijayawada shall stands confirmed.
31) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court along with the trial Court, if any, to the Court below on or before 21.06.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant (accused) and to report compliance to this Court. 27
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.06.2023.
PGR 28 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU 44 CRL. APPEAL NO.944 OF 2009 DIRECTION:
Date: 14.06.2023 PGR