Telangana High Court
Md.Fazal Ahamed, vs The State Of A.P., on 28 June, 2023
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THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 857 OF 2009
JUDGMENT:
1. The appellant/accused is convicted for the offence under Section 376 of the Indian Penal Code and sentenced to seven years Rigorous Imprisonment and also for the offence under Section 3(i)(xii) of the SC/ST (POA) Act and sentenced to six months Rigorous imprisonment. Questioning the said conviction, present appeal is filed.
2. It is the case of the prosecution that in the year 2006, PW1 along with her father and daughter went and met the accused who was a witch doctor / Exorcist as she was suffering ill-health. The appellant/accused asked the father to go to the market and get some lemon. A banana was given to the daughter and she was asked to stand outside. The appellant/accused took PW1 into the house and chanted some 'mantras' and thereafter committed rape on her stating that her diseases would be healed. Though there was resistance, the appellant/accused did not yield to her request and forcibly committed rape. Meanwhile, the father came there. The appellant/accused assured PW1 and her father that PW1's ill- 2 health will be cured and tied thread around her wrist. PW1 informed her father that the appellant/accused committed rape on her. While going back to the village they came across PW2 who is a village elder. PW2 was informed about commission of rape. From there they went to the Police Station and lodged a complaint-Ex.P1.
3. The complaint was registered and PW1-victim was sent for medical examination. The victim (PW1) was examined by PW8- doctor. Swabs and other material were collected and sent for Forensic Science Lab for the purpose of analysis. Report-Ex.P7 was received and the doctor-PW8 gave opinion that there are definite signs of rape and gave a final opinion Ex.P8.
4. The learned Sessions Judge having examined PWs.1 to 11 and marking Exs.P1 to P14 found the accused guilty and accordingly convicted.
5. Learned Counsel appearing for the appellant would submit that Ex.P7 which is the FSL report does not indicate that any semen and spermatozoa were found. On any of the items sent for examination, there was no foreign hair, foreign material or any blood was found. In the said circumstances, it 3 cannot be said that the appellant had committed rape on the victim-PW1. Except the oral evidence there is no other corroborative evidence. If PW1's version is true, vaginal swabs and other material which were seized and sent for FSL report would have detected either semen or blood or any foreign hair. Scientific evidence belies the version of PW1. The solitary evidence of PW1 cannot be believed in the background of the father of PW1 or the doctor who were present at the scene being examined in the Court.
6. On the other hand, learned Assistant Public Prosecutor would submit that there is sufficient evidence to infer commission of rape by the appellant/accused. The solitary testimony of PW1-victim would suffice in cases of rape. There need not be any corroboration to the said evidence. There is no reason as to why a false complaint would be filed by PW1 against the appellant/accused. For the said reason the appeal has to be dismissed.
7. PW1 who is the victim has specifically stated that she along with her father and daughter went to the appellant/accused with a fond hope of getting cured of her ill- health. The father was sent out to fetch lemon and the daughter 4 was also sent out of the house by giving Banana. The victim- PW1 is a married woman and it cannot be said that she would speak against the appellant stating that rape was committed on her, inviting social stigma. The incident of rape is narrated and the reason of approaching the appellant is also convincing. PW2 is another witness who corroborated the evidence of PW1. After the rape was committed, while they were returning to the village, they came across PW2 who had taken PW1 and her father to the police station to lodge complaint.
Only for the reason of semen and spermatozoa not being found on the swabs collected from the victim does not mean that rape was not committed. As seen from the definition of rape under Section 375 of the Indian Penal Code any penetration to any extent into the vagina would confirm the definition of rape. Not finding any spermatozoa or blood as argued by the counsel for the appellant, will not rule out the offence of rape, if the evidence of PW1 is convincing. No reasons are given by the appellant as to why he would be falsely implicated by PW1 in a grievous offence of rape. Nothing is elicited in the cross-examination to remotely suggest that no such act of rape was committed or to infer any kind of false implication.
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8. I do not find any infirmity with the order of the learned Sessions Judge in convicting the appellant on the solitary testimony of PW1 which is both convincing and of sterling character.
9. Accordingly, the appeal fails and dismissed. The trial Court is directed to cause appearance of the appellant/accused and send him to prison to serve out the remaining part of the sentence.
Miscellaneous applications, if any pending in this criminal appeal, shall stand closed.
________________ K.SURENDER,J Date: 28.06.2023 tk 6 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.857 of 2009 Dt. 28.06.2023 tk