Telangana High Court
Sunkari Kishan vs The State Of Ap.Rep By Pp.,Hc.,Hyd on 20 October, 2022
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRL.A.NO.1449 OF 2011
JUDGMENT
The gravamen of the charge against the accused is that in the absence of his wife, he committed rape on the victim girl, who is his daughter, and hence he was charged under Section 376(2)(f) IPC.
2. The Trial Court i.e., the court of Assistant Sessions Judge at Sircilla vide judgment dated 11.3.2011 found the accused guilty for the said charge and convicted him, and sentenced him to undergo rigorous imprisonment for a period of ten years and imposed fine of Rs.500/‐, and in default of payment of fine, to undergo simple imprisonment for a period of six months. The Trial Court has also extended the benefit of set off under Section 428 Cr.P.C. Assailing the conviction and sentence, the accused has preferred this appeal.
3. The case of the prosecution is that on 16.11.2009 at about 2.00 p.m., P.W.1, Surabi Ramana, the Sarpanch of Maddikunta village, came to Police Station and lodged Ex.P‐1 report stating that on 16.11.2009 morning, she visited the S.C. colony of Maddikunta village to supervise the progress of the drainage work. At about 11.00 am., while she was going in front of the house of the accused, she noticed that the daughter of the accused, who is the victim girl, was coming from her house by weeping and blood 2 was passing through her legs. Then she asked the victim girl as to what had happened. The victim girl informed her, that she went to Anganwadi school at about 10‐00 a.m., that later, her father came to the school at about 11.00 a.m., and called her to come to the house to bring water. Accordingly she followed the accused, and when she entered into the house, the accused closed the house doors, laid down her on the cot, and committed rape on her forcibly. That in the meanwhile, the mother of the victim girl came there, and then the victim girl narrated the incident to her mother, and the villagers came and beat the accused. Then P.W.1 went to police station and gave report against the accused.
4. The S.I. of police, Mustabad registered the said report as a case in Cr.No.90 of 2009 under Section 376(2)(f), and recorded the statement of P.W.1 Ramana. Later, the Inspector of Police, Siricilla took up further investigation on 16‐11‐2009 at 3.00 p.m. He secured the presence of the witnesses, and recorded their statements, visited the house of the victim, and prepared crime details form of the scene of offence in the presence of mediators. He also seized one frock of the victim in the presence of the mediators. He arrested the accused and produced him for remand after seizing the lungi and underwear of the accused under a cover of seizure report in the presence of the mediators. He sent the victim girl to the Government Hospital, Siricilla for medical checkup. Thereafter, the victim girl was referred to District Headquarters Hospital, Karimnagar, where she was treated, and after receiving the FSL expert report, the 3 Medical Officer, who treated the victim girl, issued final opinion, to the effect that sexual assault was occurred on the victim girl. The Inspector of Police, sent the accused person for conducting potency test to the Government Hospital, Sircilla. He got recorded the Section 164 Cr.P.C. statement of the victim girl and others, and after completion of investigation filed charge sheet.
5. On committal, the Trial Court framed charge against the accused for the offence under Section 376(2)(f) IPC, and the same was read over and explained to him in Telugu, and he pleaded not guilty and claimed to be tried. As the accused pleaded that he has no means to engage a counsel, the Trial Court appointed Sri K.Rajesham, Advocate, to defend the accused.
6. To prove the case of the prosecution P.Ws.1 to 11 were examined and Exs.P‐1 to P‐9 were marked, and M.Os.1 to 3 were also marked.
7. After closure of the evidence on behalf of the prosecution, the accused was examined under Section 313 Cr.P.C. for the incriminating evidence against him in the evidence of prosecution witnesses, and he denied the same, and he reported no evidence on his behalf.
8. The Trial Court considering the evidence of P.W.1 and 3, which is corroborated by medical evidence, found the accused guilty for the offence under Section 376(2)(f) IPC and convicted him and sentenced to undergo rigorous imprisonment for ten years 4 and to pay a fine of Rs.500/‐, and in default to suffer simple imprisonment for a period of six months. The Trial Court has also given the benefit of set off under Section 428 IPC. Assailing the same, the present appeal is filed by the accused.
9. Learned counsel appearing for the appellant / accused submits that the victim girl who was examined as P.W.4, and her mother, who was examined as P.W.2, did not state that the accused committed rape on the victim. He further submits that the Trial Court has relied on the evidence of P.Ws.1, 3 and 7 to convict the accused. But they are circumstantial in nature, and their evidence is not corroborated by any other evidence. He submits that P.Ws.1 and 3 are politically inimical and their statements cannot be relied upon.
10. That as per the evidence of P.W.1, the victim girl took bath and the blood was cleaned and her clothes were washed. Therefore, when the clothes of the victim were washed, the question of detection of blood or semen on the frock of the victim girl does not arise, and hence the forensic report marked as Ex.P‐6, cannot be taken into consideration. In view of this discrepancy, and as P.W.2, mother of the victim girl turned hostile and even the prosecutrix did not specifically depose that the accused committed the offence, the accused is entitled for benefit of doubt. With these contentions, he sought to set aside the impugned judgment, and to acquit the accused of the charges leveled against him.
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11. On the other hand, learned Public Prosecutor, contended that as the guilt of the accused is proved beyond reasonable doubt as per the evidence on record, the trial court by recording cogent and convincing reasons, found the accused guilty and convicted him, and hence the impugned judgment may not be interfered with.
12. In view of the facts and circumstances of the case and the rival contentions, the issue that arises for consideration is whether the impugned judgment convicting and sentencing the accused, warrants any interference?
13. To consider the rival contentions, it is necessary to look into the evidence adduced by the prosecution.
14. P.W.1 is the Sarpanch of the village, Mustabad and she has given Ex.P‐1 complaint. In her evidence she deposed that on 16.11.2009 in between 10 ‐00 a.m. and 11‐00 a.m., the offence has taken place. That since four years, she has been acting as Panchayat Sarpanch of Madhikunta village of Mustabad. On the date of offence at about 10.30 a.m., when she went to S.C. colony to inspect the construction work of the drainage, and after inspection, when she was returning to his house at about 11.55 a.m., she noticed the victim girl aged about nine years coming from their house by weeping. She noticed blood on her legs. When she enquired her, she told her that she went to Anganwadi school at about 9.00 a.m., and her father who is the accused came to school at about 10.00 a.m., and called her to sweep the house, and accordingly she went and 6 completed the work and went to school, and again her father came to school, and called her to bring water from the tap, and then she came to her house and after she entered into house, accused bolted the doors and committed rape on her. That in the meanwhile, mother of the victim girl, and some of their villagers gathered. The mother of the victim girl and L.W.4 Lakshmi, the paternal aunt of the victim girl, took bath for the victim girl by cleaning the blood and washed the clothes, and that when the villagers were about to beat the accused, she (P.W.1) stopped them. Then P.W.1 gave report to the police, which is marked as Ex.P‐1. She stated that police examined her, and her Section 164 Cr.P.C. statement was recorded by the JFCM Vemulawada, and that they handed over the accused to the police.
15. P.W.2 is the mother of the victim girl and wife of the accused. She deposed that she does not know anything about this case. She further deposed that on one occasion they took her daughter to the police station, Mustabad, and so also to the court at Vemulawada.
16. As P.W.2 stated that she does not know anything about this case, she was declared hostile and the learned Public Prosecutor cross‐examined her, but nothing could be elicited from her.
17. P.W.3, who is working as Anganwadi Aya at the relevant time, deposed that on 16‐11‐2002 at about 10‐00 a.m., the victim girl aged about nine years attended to 7 Anganwadi school. At about 10‐15 a.m. the accused came to the school and took the victim girl with him to their house on the pretext that she has to take water from the tap. That after some time, she returned to the school, and again within 15 minutes, the accused came to the school and took her with him to their house on the pretext that she has to clean flooring of their house. The house of the accused is visible from their Anganwadi School building. That after ten minutes they noticed that P.W.2 was weeping at their house. They also noticed that victim girl was also crying. Then she went to them. There, P.W.1, the accused, L.W.8 Sailu, L.W.7 K.Kishan, and several others were also present. P.W.2 and the victim girl told them that the accused committed rape on the victim girl. They noticed blood on the dress of the victim girl. All of them chastised the accused. P.W.1 gave police report against the accused. Police re‐ examined her, and her Section 164 Cr.P.C. statement was recorded by JFCM, Vemulawada, and that the police took the accused into custody.
18. In her cross‐examination nothing contrary could be elicited by the defence.
19. P.W.4 is the victim girl. As she was weeping and as she was reluctant to answer the questions put by the court, her evidence could not be recorded by the court.
20. P.W.5 is one N.Lakshmi, who is stated to be residing near the house of the accused and she deposed that on the date of the incident at about 11‐00 a.m., she heard some galata at the house of the accused, then she went to his house, and saw 8 P.W.2 was weeping, and on enquiry, P.W.2 told her that the accused committed rape on P.W.4, who is his daughter.
21. P.W.6 is the punch witness to the drafting of Ex.P‐3, crime details form and he turned hostile.
22. P.W.7 is the punch witness to the seizure of one lungi and one cut‐drawer (underwear) of the accused under the cover of property seizure, which is marked as Ex.P‐4.
23. P.W8 is the Civil Assistant Surgeon in Government Hospital, Sircilla. He deposed that on 17.11.2009 at 4.30 p.m., he examined and conducted potency test on the accused, and issued potency certificate Ex.P‐5. In Ex.P‐5 he opined that there is no evidence to suggest that there is any erectile impotency.
24. P.W.9 is the Inspector of police. He deposed that on 16.11.2009 at 3.00 p.m., he took up further investigation from SI of Police, L.W.6. He stated that he re‐examined P.W.1 and she reiterated her statement recorded earlier by the police. He deposed that he proceeded to the scene of offence, where he secured the presence of P.Ws.2 and 4, examined them, and recorded their statements. He also examined the scene of offence and prepared crime details form in the presence of P.W.9 and L.W.6 Suresh. That he seized one frock of the victim girl. Then he secured L.W.4 Laxmi, and P.Ws.3 and 5, and recorded their statements. He sent the victim girl to the government hospital for 9 medical examination. That he arrested the accused and seized M.Os.1 and 2 in the presence of L.W.11 Rajaiah, and P.W.7. On the next day morning he sent the accused for potency test to the Government Hospital, Sircilla and later the accused was sent for remand. He sent the material objects to FSL for chemical examination, and later he got recorded Section 164 Cr.P.C. statements of P.Ws.1, 3,4 and 5. And after completion of investigation, and after receipt of report from FSL, filed the charge sheet. He got marked FLS report as Ex,.P‐6, Medical Report of the victim girl as Ex.P‐7 and Ex.P‐8, which is the final report issued by the Doctor in respect of the victim girl. M.O.3 is the skirt of the victim girl seized by P.W.9.
25. In cross‐examination, nothing contrary could be elicited by the defence counsel.
26. P.W.10 is the Civil Assistant Surgeon, Government Hospital. She deposed that on 17.11.2009 at 12.10 p.m., she examined P.W.4, the victim girl, aged 9 years, and issued Ex.P‐7 certificate. She further deposed that the vaginal washings and veginal spheres were sent to FSL for chemical examination and she received Ex.P‐6 FSL report. In Ex.P‐6 it is noted as follows:
"Item Nos.1 to 7 are examined.
Human semen and spermatozoa are detected on item No.5, (a red black and white coloured designed underwear) but its blood group could not be determined.
Semen is detected on item No.3 (a cream and red colour frock), but spermatozoa are not detected 10 Human blood is detected in item Nos.6 and 7, but their blood group could not be determined Semen and Spermatozoa are not detected on item Nos. 1,2 and 4.
Blood is not detected on item Nos.,3 4 and 5."
27. As per Ex.P‐7 preliminary examination report and Ex.P‐6 FSL report, she gave Ex.P‐8 final report dated 8‐3‐2010 opining that sexual assault occurred on the victim girl.
28. P.W.11 is the Sub Inspector of Police, Mostabad at the relevant time and he deposed that on 16.11.2009 at 2.00 p.m., he received Ex.P‐1 report from P.W.1 and registered the same as FIR in Cr.No.90 of 2009 under Section 376(2)(f) IPC. Ex.P‐9 is the original FIR. After registering the FIR, since the offence is grave in nature, after recording the 161 Cr.P.C. statements of P.W.1, he handed over further investigation to P.W.9.
29. Now from the above evidence it is to be examined whether the prosecution could prove the guilt of the accused beyond all reasonable doubt.
30. As per the evidence of P.W.1, the victim girl informed her that she went to Anganwadi school and that her father came there and brought her back to house on the pretext of sweeping the house, and for bringing water from tap, and when she came to her house the accused bolted the door and committed rape on her. P.W.3 is working as Aya in Anganwadi School in Madikunta village. As per the evidence of P.W.3 on 16.11.2009 the victim girl aged about nine years attended to Anganwadi school, and 11 that at about 10‐15 a.m., the accused came to the school and took the victim girl with him to their house on the pretext that she has to bring water from the tap, and that after some time victim girl returned to the school, and again within 15 minutes, the accused came to the school and took the victim girl with him to their house on the pretext that she has to clean the flooring of their house. P.W.5, is one N.Lakshmi, who is residing near the house of the accused. As per her evidence, on the date of incident, at about 11.00 a.m., she heard some galata at the house of the accused, and that when she went to the house of the accused, she saw P.W.2 was weeping, and on enquiry, P.W.2 told her that accused committee rape on P.W.4.
31. Thus from the evidence of P.Ws.1 and 3 it is clear that on the date of the incident, the victim girl had gone to Anganwadi school and the accused brought her home twice, on the pretext that the victim girl has to get water from the tap and that she has to clean the flooring of the house. Further P.Ws.1 and 3 have noticed blood on the legs and dress of the victim girl. As noted above, P.W.5, neighbor of the accused, deposed that on the date of incident, P.W.3 was weeping, and on her enquiry, P.W.2 told her that accused committed rape on P.W.5
32. P.W.2 is the wife of the accused and though she deposed that she doesn't know anything, but she has categorically admitted that on one occasion they took their daughter to the Police Station, Mustabad and also to the Court at Vemulawada. 12
33. P.W.4 is the victim girl and as she was weeping, and not properly answering question put by the court, the court opined that she is reluctant to answer the questions, most probably she is under the influence of her mother P.W.2, and since the accused is her father.
34. The allegation against the accused is that after bringing the victim girl from Anganwadi school, he committed the rape on her. As already noted above, the fact of accused bringing the victim girl from Anganwadi school, is proved by the evidence of P.W.3. The allegation is that the accused committed rape on her after bringing her from Anganwadi School. But, as noted above, P.Ws.2, who is the wife of the accused and mother of the victim girl, turned hostile and the victim girl who was examined as P.W.4, did not depose anything before the court, and as such the court also could not record her evidence.
35. Since P.W.2, the mother of the victim girl and P.W.4, the victim girl, did not depose that the accused had committed rape on her, in order to see whether the allegation is true or not, it is necessary to examine the evidence of other witness and also the medical evidence on record.
36. P.W.7 is the punch witness to the seizure of lungi (M.O.1) and one cut‐ drawer (underwear) (M.O.2) of the accused under the cover of property seizure form, 13 Ex.P‐4. Thus, immediately after the incident, the police have seized M.Os.1 and 2 of the accused.
37. P.W.8 is the Civil Assistant Surgeon in Government Hospital, Sircilla and he examined the accused and opined vide Ex.P‐5 that there is no evidence to suggest that there is any erectile dysfunction. This shows that the accused is potent.
38. P.W.10 is the Civil Assistant Surgeon, who examined the victim girl on 17.11.2009 at 12.10 p.m. and issued preliminary report Ex.P‐7 certificate. The veginal washings and veginal sphere were sent to FSL report for chemical examination and Ex.P‐6 is the FSL report. The contents of the said report, were extracted above, while noting the evidence of P.W.10. A perusal of FSL report, shows that human semen and spermatozoa are detected on item No.5, which is a red black and white coloured designed underwear, and semen is also detected on item No.3, which is the cream and red coloured frock.
39. Here the contention of the learned counsel for the appellant / accused is that as per the evidence of P.W.1, the mother of the victim girl and L.W.4 Lakshmi, the paternal aunt of the victim girl, have given bath to the victim girl by cleaning the blood and washing her clothes. Therefore, when the clothes of the victim girl were washed, the question of blood and semen being present on the frock does not arise and hence the FSL report in this regard cannot be taken into consideration. 14
40. It is to be seen that P.W.9, who is the Investigating Officer, deposed that on 16.11.2009 at 3.00 p.m., he took up further investigation from S.I. of Police L.W.6. He deposed that he seized one frock of the victim girl and sent the material objects to FSL for chemical examination. As already noted above, the FSL report is marked as Ex.P‐6 and in the said report, it is mentioned that semen is detected on item No.3, i.e., the cream and red coloured frock. In light of the chemical examination of the frock of the victim and the report thereof, the above contention of the learned counsel for the appellant / accused, cannot be countenanced.
41. P.W.10, Civil Assistant Surgeon, who examined the victim girl, and gave Ex.P‐8 final report, based on Ex.P‐6 FSL report and Ex.P‐7 preliminary report. In Ex.P‐8 final report, she has categorically opined that sexual assault was occurred on the victim girl. The relevant portion in Ex.P‐8 is as under:
"As per preliminary examination report and F.S.L. report the sexual assault occurred on the victim girl."
42. At this stage it is to be noticed that even if a witness turns hostile, his/her evidence cannot be totally eschewed from consideration, and it can used to the extent it supports the case of the prosecution or the defence. In HANU BAISTAV vs. THE STATE OF ASSAM1, a Division Bench of the Gauhati High court held as under:
"33. The decisions, in Laghu Majhi @ Barat vs. State of Assam, reported in 2004 (Suppl) GLT 335, State of UP v. Ramesh Prasad Misra and Another, reported in (1996) SCC 360, and Koli Lakhmanbhai Chanabhai v. State of Gujarat, reported in (1999) 8 SCC 624, which the learned trial Court has relied 1 Criminal appeal No.105(J) of 2007, dated 18.9.2012, Gauhati High court 15 upon, which lay down that a hostile witness's evidence is not washed off the record or cannot be thrown away lock, stock and barrel merely because he was allowed to be cross‐examined by prosecution and that his evidence can be made use of to the extent that the same supports either the prosecution or the defence has to be understood in its correct perspective, the correct perspective being that a hostile witness's evidence can be used to the extent that it support the case of the prosecution or the defence;. . ."
43. Keeping in view the above legal position, it is necessary to examine the evidence of P.Ws.2 and 4. P.W.2 is the mother of the victim girl, and she turned hostile. As already noted above, she admitted that she has taken the victim girl P.W.4 to the Police Station, Mustabad and also to the Court at Vemulawada. This admission clearly probablises the case of the prosecution that the victim girl was taken to the police station to give Ex.P‐1 report and to the court at Vemulawada for the purpose of recording her Section 164 Cr.P.C. statement.
44. P.W.4 is the victim girl. When she was sought to be examined by the prosecution, except weeping before the court, has not specifically stated that the accused has not committed the rape on her. For ready reference, the deposition of P.W.4 is extracted as under:
"Since the witness is a child witness, in order to ascertain her understandability of the proceedings, I put the following preliminary questions before recording her evidence:
Q) In which school you are studying? Ans) In Government School.
Witness is weeping and she is not answering properly to my questions and hence I could not record her evidence and she also stated that she came to police station and that I am MDO. On seeing the witness, I am of the opinion that she is reluctant to answer to my questions most probably since she is under the influence of her mother P.W.2 and since the accused is her father.
For the above reasons recorded by me, I could not record the evidence of the witness." 16
45. Thus, the court on carefully observing the behavior of the victim girl, opined that she was reluctant to answer the questions put by the court, most probably since she is under the influence of her mother P.W.2, and also since the accused is her father. This circumstance also militates against the accused.
46. The allegation of the accused is that as he pointed out some irregularities in the application of the government funds by P.W.1, who is the Sarpanch, she bore grudge against him and gave a false report against the accused. But the accused could not prove the same by leading any evidence. Even assuming for the sake of argument that this allegation is true, but it is to be noticed that no one would venture to involve any individual especially, a girl child aged nine years, that too against her own father, in a heinous crime of the present nature, since that would be affecting healthy relations between the family members, and also would affect the society at large.
47. Thus by considering the evidence of independent witness P.Ws.1, 3 and 5 coupled with medical evidence of P.W.10 doctor and Ex.P‐8 final report, which was issued based on preliminary examination report and FSL report, Exs.P‐7 and P‐6 respectively, it is clear that the prosecution has established beyond reasonable doubt that the accused committed rape on P.W.4 the victim girl.
48. In view of the above facts and circumstances of the case and the evidence on record, the impugned judgment passed by the Trial Court finding the accused guilty 17 under Section 376(2)(f) IPC , and convicting him, and sentencing him, does not warrant any interference, and the appeal is devoid of any merits and the same is accordingly dismissed.
49. The accused shall surrender to serve the balance sentence and the bail granted to him stands cancelled.
50. Interlocutory Applications pending, if any, shall stand closed.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADRSINI,J DATE:20--10--2022 AVS