Andhra HC (Pre-Telangana)
Shaik Mehtab vs State Of Andhra Pradesh on 9 August, 2001
Equivalent citations: 2001(2)ALT(CRI)324, 2002CRILJ1421
JUDGMENT V. Eswaraiah, J.
1. This Criminal Appeal is filed by the sole accused against the judgment dated 9-11-1995 in S.C. No. 154/1994 on the file of the Assistant Sessions Judge, Bodhan, in convicting him for the offence under Section 376, IPC to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 300/-, in default, to undergo simple imprisonment for 2 months.
2. The case of the prosecution is that the prosecutrix while returning from Bhanswada after attending shandy on 13-8-1992 at about 7-00 p.m. by walk to Durki village and the accused came all of a sudden and dragged her into the nearby bushes by the side of the road and fell her down and committed rape on her forcibly and the said incident was witnessed by independent witnesses and the matter was reported to the Village Administrative Officer of Someswar and who in turn gave a complaint to the P.S. and the police investigated into the matter.
3. The prosecution examined PW. 1 to PW. 10 and marked Ex. P-1 to P-6 and M.Os. 1 and 2. On behalf of the defence, none was examined and no document was marked.
4. It is alleged that on 13-8-1992 at about 7-00 p.m. near Andhra Khandasari Sugar Factory of Durki village while she was returning to Durki by walk, the accused came all of a sudden and dragged her to nearby bushes by the side of the road and fell her down and committed rape on her forcibly which is punishable unbder Section 376, IPC. It is also stated that after commission of rape on her, P.Ws. 3 and 4 witnessed the accused while running away from the scene of offence and PW-3 chased the accused and caught hold of him and on the next day of the incident he was taken to the Village Administrative Officer PW. 1 and who in turn made a report to the Police which is marked as Ex. P-1. It is stated in Ex. P-1 that on 13-8-1992 (Thursday) evening at about 7-00 p.m. Smt. Girni Mogulavva-victim while she was going by walk to Durki village after attending the market at Bhanswada, after crossing Andhra Khandasari Sugar factory, the accused Shaik Mehtab S/o. Hussain Saheb R/o. Someshwar came and throttled her neck and took her into the bushes by biting on her body and committed rape on her. This information was given by the victim on 14-8-1992 at 11-30 a.m. to the Village Administrative Officer (PW-1) and accordingly he gave report (Ex. P-1) to the police on the same day and the police registered a case and issued First Information Report (Ex. P-4). The victim was sent for medical examination after recovering material objects M.O.I. saree and M.O. 2 petticoat and which were sent for chemical examination. The doctor examined the victim. Ex. P-2 is the wound certificate. Ex.P-3 is another certificate issued by the doctor (PW-6) in respect of the victim. Village Administrative Officer is examined as PW. 1. He confirmed in so far as giving report Ex. P-1 to the police is concerned.
5. P.W. 2 is the prosecutrix. She stated that on the fateful day, she went to Bhanswada market and after finishing the marketing while she was returning to Durki village and she got down at Someswar at about 6-00 p.m. for the reason that the private van in which she was traveling got failed and therefore, she was going by walk to Durki village. She had crossed Andhra Khandasari Sugar factory and after going some distance, the accused came and caught hold of saree and fell her down on the ground and he sat on her and he dragged her to nearby bushes on the side of main road and gagged her mouth with a cloth and put her saree around her neck as it was becoming dark, the accused pressed her hands and did the act according to his Will and he bite on her face and also bite on her cheeks. The accused also pressed and bite on her breast and committed rape on her and spoiled her. After completing the act, she removed the cloth from her mouth and she cried for help. On hearing her cries, P.W. 3 and 4 came to the spot. At that time, the accused was present at the spot and on seeing them, the accused tried to fly away from the scene of offence, but P.W. 3 and 4 chased him and caught hold of him. She could not get up on her own. PWs. 3 and 4 took her to the village. On the next day of the incident, PW. 2 took her to the Patwari and narrated the facts to him. While the accused was running away, he left his lungi and beedi katta at the spot, which were given to Patwari. Then the village Patwari gave the complaint to the police and herself and the accused were sent to the police station. Police saw injuries bearing on her person. Police sent her and her clothes to the Government Hospital, Nizamabad, as there was no lady medical officer at Bhanswada. Lady Medical Officer also examined her. She also noted the injuries on her person. The police examined her. M.O. 1 is the saree and M.O. 2 is the petticoat. It is worth to extract a portion of the cross-examination, which is as follows :
...I cannot say from which direction the accused has come to me. I was holding two bags in my hands. The accused came suddenly from my back and caught hold of my saree and put it round my neck. The accused put the saree around my neck and fell me down on the ground. The handbags, which I was possessing, were also fallen down on the ground. I made resistance to the accused by my hands and legs. I tried to catch hold the hair of the accused, but I could not catch as he was not having long hair. I fell down on the roadside only, there are no bushes, but there was some mud at the place of offence. There was slight raining on that night. There was also rain in the previous day. I am illiterate. I cannot give the exact time, but it may be one hour that took for entire incident. At the time of the incident, it was darkness, people are not visible. My saree and my body was also wet with mud and water. The accused put his legs on my hands, so that I could not do any resistance with my hands. The accused did not tie my legs. It is not possible to kick away the person with legs, as the legs were not tied. The accused placed lungi in my mouth, so that I should not cry. The accused removed his legs for doing sexual intercourse. I have caught hold of the person firmly, while he was doing the act of sexual intercourse. It is true that the hands and legs of the male person who is doing the sexual act would be free, whereas the hands and the legs of the women who is lying below him, would be free. It is not true to say that there was no occasion for me to remove the cloth placed in my month. It is true that I sustained some scratching on the back and also on my hips. The accused has bitten me on my both cheeks and also on both breasts resulting injuries. The Medical Officer noted the injuries.
I am not having any previous acquaintance with the accused. At the time of the sexual act, I was not knowing the name of the accused nor his father's name. The accused was present on my body of the time LW 3 Suresh and Kishan came on my cries. LW-4 Kishangoud is r/o Someswaram and working rice mill of Papireddy in Durki village. Suresh L.W. 3 runs a hotel at Durki bus stand. I have not seen from which direction Suresh and Kishan came near to me.
I narrated all the incident what had happened before PW-1. The VAO prepared the complaint as per my statement. I stated before police that the accused came from my behind and placed the saree kongu in my mouth and took me to the road side bushes and fell me down in the mud on the ground. I cannot say whether the accused placed kongu or his lungi in my mouth at the time of the incident. There are small bushes by the side of the road. I have stated before the police that the accused put my saree kongu round my neck. It is not true to say that I did not depose before police or omitted to say before police regarding the cries made by me during the act. The accused and Kishangoud are the residents of Someswar village. It is not true to say that the accused and Kishan goud LW-4 were having political rivalry in Someswar village. It is not true to say that I am not having illegal connection with LW-4 Kishan. It is not true to say that in order to take revenge against the accused, the LW-4 Kishan used me as an instrument to foist a false case against the accused. It is not true to say that the accused did not bite me on my both cheeks and both breasts and that I am deposing falsehood.
It is not true to say that the accused did not fell me down by the side of the road and pressed my hands with his legs and sat on me and that I am deposing falsehood. It is not true to say that the accused did not commit any sexual intercourse on me and that I am deposing all false at the instance of LW-4 Kishangoud. It is not true to say that the injuries appearing on my breasts are self-inflicted scratches and injures for the purpose of case. It is not true to say that I am deposing false at the instance of LW-4 Kishangoud.
6. Though the cross-examination was made very minutely, the victim-lady had meticulously narrated the incident which strenthens the case of prosecution that the rape has been committed on her by the accused. Her evidence is corroborated by PWs. 3 and 4 to the extent that after committing the rape she removed the cloth from her mouth and cried for help and at that time PWs. 3 and 4 went there and on seeing them, the accused ran away leaving his lungi and beedi katta. No doubt, there was a delay in giving report as it was night and the next day itself the victim and PW-4 and Village Administrative Officer and reported the same who in turn gave a report Ex. P-1 on which the police has registered FIR. Doctor (PW-6), who examined the victim, observed the following injuries :
1. Abrasion present right breast below the nipple 1 1/2" x 1"
2. An abrasion present below the right nipple, just adjacent to wound No. 1.
3. An abrasion present on the right check 1/4" x 1/4".
4. An abrasion present on the chin below the right side 1/4" x 1/4".
5. An abrasion on the right scapular region.
7. The doctor also stated that tenderness is present in the vagina of the victim and vaginal smears were sent for chemical examination. On receipt of the Forensic Science Laboratory report she stated that that Semen and Spermatozoa was not detected on M.O. I (saree of the victim) but semen and spermatozoa was detected on Item No. 2. (petticoat of the victim). In view of the said report, she is of the opinion that there are signs of rape in view of the external injuries as noted by her on the person in the wound certificate and she has also given further reasons that the semen and spermatozoa detected on Item No. 2 i.e., green colour petticoat. She also given reason for coming to the conclusion of the rape committed on her that there was tenderness of vagina present as observed by her on PW. 2. The defence counsel cross-examined the doctor (PW-6) and the last portion of the cross-examination is as follows :
...The injury No. 5 is possible for two reasons, one is by pressure on the ground and the second one is due to the nails. It is also possible to have self-inflictions on scapular region by finger nails. It is not necessary that there should be injury on the thighs if they are forcibly separated. It is not possible to have tenderness inside vagina if the inter-course is normal and ordinary. I have seen the PW-2 as such I can say that she can give physical resistance. It is possible for tenderness in Vagina if a person introduces chillies in vagina.
8. Thus, the way in which the cross-examination went on the victim prosecutrix and the doctor (PW-5) itself clearly shows that the rape has been committed on her.
9. No doubt, there are certain discrepancies in the evidence of PW-2, PW-3 and PW-4. PW-2 stated that the accused was also handed over to the police and he was examined and it was corroborated by PWs. 3 and 4. The fact remains is that the accused was not handed over to the police as admitted by the Inspector of Police (PW-10), who has stated that he has arrested the accused only on 20-8-1992. PW-8 Head Constable, who registered the case, was also cross-examined by the defence counsel. It was put to him that at the time of the lodging the complaint, PW-1 -PW. 4 handed over the accused to the police, but he denied the same. Though it is stated by PWs. 2, 3 and 4 that they have handed over the accused to the police, the police denied the said statements. But it is stated by the prosecution that the accused was arrested only on 20-8-1992. The said discrepancy is not fatal to the case of the prosecution in view of the evidence of PW-2 corroborated by other evidences including the doctor.
10. I, therefore, fell that the evidence of PW-2 is trustworthy and the discrepancy is not fatal to the case of the prosecution and the evidence available on record proves its case beyond all reasonable doubt that the accused has committed rape on the prosecutrix. In so far as the sentence is concerned, as it is alleged that the accused is a hamali by profession and he is very poor person and the entire family members depending on him, I, therefore, take a lenient view in imposing the sentence and in view of the peculiar circumstances of the case, the accused is sentenced to Rigorous Imprisonment for a period of 3 years. Accordingly, the appeal is dismisseed by reducing the sentence.