Telangana High Court
Banoth Ravi, Warangal Dt., vs State Of Telangana, Rep Pp., on 10 March, 2020
Author: A. Abhishek Reddy
Bench: Raghvendra Singh Chauhan, A.Abhishek Reddy
THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY
CRIMINAL APPEAL No. 741 OF 2015
JUDGMENT:{ Per the Hon'ble the Chief Justice Raghvendra Singh Chauhan } Having been convicted for offence under Section 376(2)(i) IPC, and sentenced to life imprisonment, having been convicted for offence under Section 5(1) read with Section 6 of the Protection of Children from Sexual Offences Act ('POCSO Act', for short), and sentenced with life imprisonment, and directed to pay a fine of Rs.50,000/- under the POCSO Act, and to further suffer simple imprisonment for three months in default thereof, and having been convicted for offence under Section 366-A IPC and punished with a sentence of three years rigorous imprisonment, to pay a fine of Rs.1,000/-, and also to suffer simple imprisonment of one month in default thereof, by judgment dated 01.07.2015 on the file of the Special Judge for trial of cases under Protection of Children From Sexual Offences Act-Cum-I Additional Sessions Judge at Warangal, the accused, Banoth Ravi, has approached this Court.
Briefly, the facts of the case are that on 18.10.2014 Ms. X (name withheld as she is the prosecutrix in the present case) (P.W.1) lodged a complaint with the Sub-Inspector, Maripeda Police Station wherein she claimed that she had studied from Class-I to Class-V at the Government School in Thanamcherla village. Subsequently, she left the school, and 2 was staying at home. She was eking out her livelihood by doing manual work. A person, by name Banoth Ravi, aged 30 years, caste: Lambada, a farmer by profession, has been chasing her, telling her that he has fallen in love with her, and wanted to marry her. "I ignored his words. Three days ago, around 4:00 'O' Clock in the evening, Banoth Ravi, induced me and took me from my house to his maternal grand- mother's house at Bachodu Thanda in Bachod village, in Thirumalayapalem Mandal of Khammam District, stating that he would marry me and forcibly participated in intercourse with me many times. On 18.10.2014 in the morning, I narrowly escaped from the clutches of Banothu Ravi and reached home and conveyed to my parents about the happenings. I am filing this grievance petition before your authority accompanying my parents to this police station."
On the basis of the said complaint, the police chalked out a formal FIR, namely FIR No. 221 of 2014 for the offences under Sections 366, 376(2)(i) of IPC, and under Section 5 (2) read with Section 6 of the POCSO Act; the investigation commenced. During the course of investigation, the appellant was arrested by the police. He was put up for trial.
In order to substantiate its case, the prosecution examined fourteen witnesses, and submitted fourteen documents. On the other hand, the appellant submitted neither oral or documentary evidence in defence. After appreciating the evidence, the learned Trial Court convicted 3 and sentenced the appellant as aforementioned. Hence, this appeal by the appellant before this Court.
Mr. P. Shashi Kiran, the learned counsel for the appellant, has raised the following contentions:-
Firstly, the prosecutrix (P.W. 1) herself is not a trustworthy witness. For, in the FIR (Ex. P. 9), and in her statement recorded under Section 161 of Cr.P.C., she nowhere states that the appellant and his father kidnapped her from her house. In the FIR (Ex. P. 9), she nowhere mentioned that the appellant was accompanied by his father. But, she merely claims that three days ago, at 4:00 'O' clock, in the evening, the appellant induced her, and took her from her home. Yet, in her testimony, she claims that it is at night that the accused came along with his father, put a towel on her nose, due to which, she lost consciousness. From her house, the appellant took her to Bachod Thanda/Village and took her to the house of his maternal grandmother. Therefore, there are two different versions, with regard to the time when the appellant took her from her house. Hence, it is a glaring contradiction in her testimony.
Secondly, although the prosecutrix (P.W. 1) claims that she was forced by the appellant to have intercourse for three days, although she claims that he had bitten her all over the body, but neither the Preliminary Report (Ex. P. 12), nor the Final Opinion (Ex. P. 13) indicate that she was subjected to any sexual intercourse. According to the Preliminary Report 4 (Ex. P. 12), there were no external injuries except for excoriation over inner part of thigh, and that there was no indication that the hymen had been ruptured. Even according to the Final Opinion (Ex. P. 13), "there was nothing indicative to show that there was a sexual intercourse in the recent past". Therefore, the Medical Report belies the testimony of the prosecutrix (P.W. 1).
Lastly, although the clothes of the prosecutrix, the vaginal swab of the prosecutrix were sent to the F.S.L. for its report, but according to the F.S.L. Report (Ex. P. 14), neither semen, nor spermatozoa was detected on any of these articles. This clearly proves that there was no sexual intercourse between the appellant and the prosecutrix. Therefore, the prosecution has miserably failed to establish its case for offences under Section 376(2)(i) of IPC, and under Section 5(1) read with Section 6 of the POCSO Act. Therefore, the appellant deserves to be acquitted of the said offences.
On the other hand, Ms. J. Sridevi, the learned Additional Public Prosecutor, contended that a complaint is not meant to be encyclopedic in its content. As long as the gist of the prosecution is revealed in the complaint, the complainant cannot be faulted.
Secondly, whether the appellant's father was involved in the kidnapping or not, is immaterial. For, from day one, the investigation was against the appellant, and the charge-sheet was filed by the police only against the appellant. Therefore, 5 it is a minor contradiction in her testimony which would not destabilize the substratum of the case of the prosecution.
Thirdly, for the offence under Section 376 IPC, it is not essential that there should be complete penetration, or ejaculation; even the slightest penetration is sufficient to convict a person for offence under Section 376 IPC, and under Section 5(1) read with Section 6 of the POCSO Act. Moreover, the testimony of the prosecutrix that she had bite marks, or injuries on other parts of her body is established by her medical record. For, even in the Preliminary Report (Ex. P. 12), it is clearly indicated that she had injuries on her inner thigh. Furthermore, even in the Final Opinion (Ex. P.
13), it is clearly indicated that her hymen was ruptured.
Therefore, even if neither the semen, nor the spermatozoa was discovered in her clothes, or in the vaginal swab of the prosecutrix, even then, it would not dilute the veracity of the prosecutrix's testimony.
Lastly, the appellant has taken the defense of a total denial. He has nowhere pleaded that he has been falsely implicated in the present case by the prosecutrix. Therefore, just the testimony of prosecutrix is sufficient to convict the appellant for the aforementioned offences. Hence, the learned Additional Public Prosecutor has supported the impugned judgment.
Heard the learned counsel for the parties, perused the impugned judgment, and examined the record. 6
In her testimony, the prosecutrix (P.W. 1) clearly states in her examination-in-chief that "I know the accused, who is also a resident of my village. About six months back, at about 5:00 p.m., while I was returning from Coolie works to the Thanda, the accused met me on the way and began stating that he was loving me and wants to marry me. But I did not care for his words. Again after three days, the accused came to me and informed that he was loving me and wants to marry me, for which I grew wild and slapped him with my chappal. The accused threatened me with dire consequences during the said night. On that day, while I was sleeping in front of my house, the accused came to me and kept towel against my nose due to which I lost consciousness. The accused had applied some power (sic) to the said Towel. Thereafter, the accused took me to Bachoda Village and took me to the house of his maternal grandmother where the accused "nannu Aagam Chesindu and Pandukunnadu" (He ruptured me and slept) continuously for three days. The accused had also bite (sic) me all over my body and also inflicted injuries with nails. When I cried after regaining consciousness, he threatened to kill me over a point of knife. The accused had also took (sic) my photographs through his cell phone, when I slept. I came out of the hosue on the pretext of attending calls of nature and escaped from there and went to my parent's house at 10:00 a.m. I narrated the entire incident to my parents. Thereafter, I along with my parents went to P.S., Maripeda and presented a 7 complaint. Ex.P.-1 is the complaint presented by me. A lady police constable examined me and recorded my statement. The police also sent me to the Government Hospital at Warangal." In her cross-examination, she tells the Court that the house of the accused is situated two houses away from her house. Although certain contradictions have been pointed out in her testimony, after comparing it with her complaint and with her statement recorded under Section 161 of Cr.P.C., these contradictions are minor in nature. Therefore, they do not dislodge the veracity of her testimony.
Although the learned counsel for the appellant has pleaded that there is a contradiction with regard to the time when the prosecutrix was taken from her house, even the said contradiction is not a major one, but is a minor one. For, in order to appreciate the testimony of the prosecutrix, it is essential to consider her age, and the impact of the traumatic experience of having been ravished by a man. Therefore, even if there were some contradiction between the time mentioned in the FIR, and the time mentioned in her examination-in-chief, such a contradiction does not dislodge the major premise of the prosecution case that it is the appellant who had committed rape on the prosecutrix.
It is, indeed, a settled principle of law that for the commission of an offence under Section 376 IPC, or under Section 5(1) read with Section 6 of POCSO Act, there need not be a complete penetration; even a minor penetration into the 8 vagina of a prosecutrix would be sufficient to constitute the offence under Section 376 IPC, and under Section 5(1) read with Section 6 of the POCSO Act.
Moreover, the testimony of the prosecutrix is further corroborated by the fact that according to the Preliminary Report (Ex. P. 12), the prosecutrix had suffered injuries on her inner thighs. According to the Final Opinion (Ex. P. 13), her hymen was found to be ruptured. Therefore, her testimony is certainly supported by the medical evidence. Hence, the contention raised by the learned counsel that there is a clear cut contradiction between the oral testimony of the prosecutrix (P.W. 1), and the documentary medical evidence, is clearly untenable.
Neither for the offence under Section 376 IPC, nor for an offence under Section 5 read with Section 6 of the POCSO Act, is it essential that there should be ejaculation by the culprit. Therefore, even if the F.S.L. Report (Ex. P. 14) clearly indicates that neither any spermatozoa, nor any semen is detected on the clothes of the prosecutrix, or in her vaginal swab, yet the said finding does not dilute the case of the prosecution.
Although the learned counsel for the appellant has vehemently contended that the prosecutrix has foisted a false case upon the appellant inter alia on the ground that there is some land dispute between her father and the appellant, the 9 said suggestion has been denied by the prosecutrix in her cross-examination.
Moreover, considering the adverse impact of an allegation of rape would have on the reputation of the prosecutrix, neither the prosecutrix, nor her parents would force her to make such an allegation against a total stranger, or against the appellant himself. In the case of Rajinder v. State of H.P1, the Hon'ble Supreme Court has clearly opined as under:
In the context of Indian culture, a woman--victim of sexual aggression--would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent. In the present case, the victim was aged fourteen years old, when she claimed that it is the appellant, and only the appellant, who had intercourse with her. Considering the fact that the prosecutrix is a minor, obviously, the question of consent does not even arise. Therefore, the contentions raised by the learned counsel for the appellant are unacceptable.
In the alternative, the learned counsel for the appellant has pleaded that even if this Court were of the opinion that 1 (2009) 16 SCC 69 10 the offences under Section 376(2)(i) IPC, and under Section 5(1) read with Section 6 of the POCSO Act were made out against the appellant, even then, the sentence should be reduced from life imprisonment to ten years. The learned counsel submits that before the maximum punishment of life imprisonment can be inflicted by the learned Trial Court, the case must fall within the "rarest of the rare case". Whereas, the present case does not fall within the said category. But for the fact that it is alleged that the appellant had physical relationship with the prosecutrix, there are no aggravating circumstances which would warrant the imposition of life imprisonment upon the appellant. Therefore, at least, the sentence should be reduced in the present case.
On the other hand, the learned Additional Public Prosecutor has argued that in the cases of crime against women in general, and crime against children in particular, should be dealt with harshly by the Courts. For, such crimes tend to shock the conscious of the society. Therefore, she has vehemently contended that the sentence should not be reduced by this Court.
While sentencing an offender, the Court is required to do a balancing act between the interests of the society on the one hand, and the rights of the accused on the other hand. While it is true that the Courts are the conscience keeper of the society, it is equally true that the Courts are the upholders of the rights of an offender. Moreover, the Courts 11 have to be keenly aware of the fact that the punishment must commensurate with the nature of the offence alleged to be committed by an offender. Therefore, the Court has to examine whether in the peculiar facts and circumstances of a case, the offender deserves to be punished with a gravest form of punishment, or with the lightest form of punishment?
Before an offender can be subjected to the harshest punishment, the case should fall within the category of being the "rarest of the rare case". For, the harshest punishment cannot be inflicted as a knee-jerk reaction to an incident.
In the present case, it has been proven by the prosecution that the prosecutrix was violated by the accused. However, the medical evidence does not indicate that she has been violated with a great force, or under aggravated circumstances. Even after the alleged act, the appellant has not maltreated the prosecutrix. Hence, the case certainly does not fall within the category of being the "rarest of the rare case". Therefore, to sentence the appellant with life imprisonment would be rather unjust.
But, keeping in mind that the life of a child has been traumatized, the appellant certainly deserves to be punished by the Court.
Therefore, while upholding the conviction of the appellant, both for offences under Section 376(2)(i) IPC, and for offence under Section 5(1) read with Section 6 of the POCSO Act, this Court reduces the sentences from life 12 imprisonment to rigorous imprisonment for ten years, under both the counts. The sentence of fine amount imposed is not interfered with. Since the appellant is already in jail, he shall continue to serve the sentence as modified by this Court. The period already undergone by the appellant shall be given set off. However, it is clarified that during the remaining part of the sentence, he shall not be granted the benefit of parole by the jail authorities, or by the court. He is, in fact, required to serve the remaining part of the sentence till the sentence is totally completed. His conviction for offence under Section 366-A IPC is also upheld by this Court.
Thus, the appeal is partly allowed as indicated above. Miscellaneous petitions, if any, pending shall stand dismissed.
______________________________________ (RAGHVENDRA SINGH CHAUHAN, CJ) __________________________ (A. ABHISHEK REDDY, J) 10th March, 2020 Tsr 13 THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY CRIMINAL APPEAL No. 741 OF 2015 (Per Hon'ble the Chief Justice Raghvendra Singh Chauhan)
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