Telangana High Court
Pallapu Jangaiah, R.R.District And ... vs The State Of A.P., Rep.By Pp., High ... on 11 May, 2020
Author: G.Sri Devi
Bench: G.Sri Devi
HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL APPEAL No.442 of 2011
JUDGMENT:
This appeal is directed against the judgment of the learned Special Sessions Judge for SC & ST (POA) Act, 1989, Ranga Reddy District at L.B.Nagar, in S.C.No.72 of 2008 dated 28.02.2011, whereby the appellants/A-1 and A-2 were convicted for the offence punishable under Section 376 (2) (g) of I.P.C. and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for a period of six months. However, the learned Special Sessions Judge acquitted the appellants/A-1 and A-2 for the offences punishable under Sections 385 read with 34 of I.P.C. and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The case of the prosecution is that on 23.01.2006 at 3.00 P.M., PW.5 lodged a report stating that on 22.01.2006, she consumed toddy in two spells at Shastripuram toddy shop. At about 6.00 P.M., while she was returning home, the appellants/A-1 and A-2, who have also consumed toddy, followed and intercepted her near Kingsway Colony, Sastripuram and they caught hold of her, forcibly dragged her 2 into the bushes at the outskirts of Kingsway Colony, assault her with sticks and also committed rape on her one after another without her will and consent. The appellants/A-1 and A-2 further snatched away the gold and silver ornaments comprising gold gundlu, pair of gold ear studs, a pair of silver kadas, silver waist band of her son and silver ring. Basing on the said report, P.W.11-Sub-Inspector of Police, Rajendranagar Police Station registered a case in Crime No.77 of 2006 for the offences punishable under Sections 376 and 394 of I.P.C. After completion of investigation, charge sheet has been filed against the appellants/A-1 and A-2 for the offences punishable under Sections 376 (g) and 392 of I.P.C., and Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The plea of the accused is one of total denial. The prosecution, in order to prove its case against the accused, examined P.Ws.1 to 12 and got marked Exs.P1 to P21 and M.O.1. The learned Special Sessions Judge, on appraisal of entire evidence, both oral and documentary, held that the prosecution has proved its case against the accused for the offence under Section 376 (2) (g) of I.P.C. and accordingly convicted and sentenced them as stated supra. However, the 3 learned Special Sessions Judge, acquitted the accused for the offences punishable under Sections 385 read with Section 34 of I.P.C. and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Aggrieved by the said conviction and sentence, the appellants/A-1 and A-2 preferred the present appeal.
Learned Counsel for the appellants/A-1 and A-2 submitted that in the facts and circumstances of the case, the trial Court has materially erred in convicting the appellants for the offence punishable under Section 376 (2) (g) of I.P.C. It is further submitted that the evidence of the prosecutrix is not supported by the medical evidence since no blood group is determined on the petticoat of the prosecutrix. It is further submitted that there are material contradictions in the evidence of the prosecutrix and no independent witness has been examined by the prosecution, and therefore, it is not safe to convict the accused on the solitary testimony of the prosecutrix. It is also submitted that the trial Court ought to have seen that the victim was a married woman and she was examined by the doctor with an inordinate delay and that the trial Court has failed to see that there was no material to establish the fact that the appellants/A-1 and A-2 committed rape on her. The trial 4 Court should have seen that P.Ws.5 and 6 did not speak about the gold ornaments of the victim.
On the other hand, the learned Additional Public Prosecutor appearing for the respondent/complainant submitted that ordinarily the evidence of a prosecutrix should not be suspected and should be believed and if the evidence is reliable, no corroboration is necessary. He further submitted that in the facts and circumstances of the case, no error has been committed by the trial Court in convicting the appellants and that there is sufficient material to show that the appellants/A-1 and A-2 were accountable for the commission of offence and, therefore, the conviction and sentence passed by the trial Court is justified and no interference is called for from this Court.
In the light of the aforesaid submissions, the point for consideration is whether the conviction and sentence imposed by the trial Court against the appellants/A-1 and A-2 needs any interference from this Court or not?
In order to prove its case, the prosecution examined P.Ws.1 to 12. Out of them, P.W.1 is the circumstantial witness; P.W.2 is the person, who speaks about mortgaging of gold ornament by P.W.5; P.Ws.3 and 9 are the panch witnesses for the scene of offence; P.W.4 is the doctor, who examined the 5 victim; P.W.5 is the complainant and victim, P.W.6 is the husband of P.W.5, P.Ws.7 and 8 are the panch witnesses for confession and recovery, P.W.10 is the doctor, who conducted potency test of the accused and P.Ws.11 and 12 are the official witnesses.
P.W.4-the Doctor, who examined the victim, deposed that on police requisition she examined the victim-M.Padmamma, aged about 35 years on 23.01.2006 and on examination, she found the following injuries.
1. Two abrasions 10 x 3 cm on both the thighs
2. An abrasion on the right side of neck 4 x 3 cm
3. An abrasion on left upper arm 3 x 2 cm P.W.4 further stated that on examination of private parts of the victim, she found no injuries, but she collected smear of the vagina and sent to the F.S.L. As per F.S.L. report, semen and spermatozoa was detected. Ex.P4 is the report of the Analyst. Basing on the F.S.L. report, she opined that the possibility of sexual intercourse with the victim cannot be ruled out. In the cross-examination, P.W.4 stated that the victim was examined by her 24 hours after the incident. She did not mention the age of injury as they were bruises and fresh i.e., 6 to 12 hours from the time of incident. She denied the 6 suggestions that by the time of her examination of the victim, all the injuries were almost healed and she did not mention the injuries specifically. She also denied the suggestions that after 24 hours of rape on victim, the sperm will not be available and she did not examine the victim properly and that she issued the certificate under the influence of police.
P.W.5, who is the victim and complainant, stated in her evidence that they lived at Sastrypuram and Accused Nos.1 and 2 were also living in the huts at Sastrypuram. Accused No.1 is a mason and Accused No.2 is a labourer and she worked with Accused No.1 for two months only. She deposed that about three years eight months back in the morning hours, her husband went to work and she went to Marvadi to release her pledged ornaments and that she returned to the hut at about 4.00 P.M. with her ornaments. Thereafter, she went to Danamma Jopidi to consume toddy and as such she consumed one bottle of toddy and while returning home on the road, she sat was under a tree and then A-1 and A-2 came to her and A-1 asked her to get him toddy at her expenses and that she refused to purchase toddy for him. She further stated that again she went to Danamma Jopidi to consume some more toddy and she purchased a bottle of toddy and that the accused also sat beside 7 her and they consumed toddy. At about 6.00 P.M., while she was going to her home, the accused came and asked her as to where she is going, she answered that she is going to her house and then they stated that there is a short cut way to go to their houses through paper company. She stated that she will go to her house on her regular route. But, the accused caught hold of her, dragged her into bushes, beat her with sticks on hands and threatened to kill her if she would raise hue and cry. When she tried to free herself, they closed her mouth, laid her on a stone and both of them committed rape on her. They snatched away the 40 gold beads weighing about half tula, gold ear tops one pair, silver anklets, silver waist thread, one silver ring. She lost consciousness and after half an hour, she gained conscious and went to her house. She informed about the incident to her husband. Her husband took her to the huts of the accused and demanded them for return of the ornaments, but Accused No.1 refused. Thereafter, they went to police station and her statement was recorded by the police.
In the cross-examination, P.W.5 admitted that she was taken to the hospital by her husband for treatment after two days of incident. But she denied the suggestions that she was beaten by her husband since she was consumed toddy; that she 8 has demanded Rs.5,000/- as loan from the accused and that she was stopped from attending work with the accused and that she filed false complaint with the accused due to grouse and that the accused had not robbed her ornaments as stated by her and that she is deposing falsehood. In further cross- examination, P.W.5 admitted that she does not know reading and writing. After the incident they went to the Police Station after about 7 or 8 hours and the report was given on the same day. She did not state before police in her 161 Cr.P.C. statement that Accused No.2 was residing in the huts at Sastrypuram. She stated before police that the accused closed her mouth, laid her on a stone and committed rape on her. She admitted that she stated before police that after the incident she informed about the same to her husband and that her husband took her to the huts of the accused. She admitted that she stated before the police that her husband demanded for return of ornaments robbed from her by the accused, but she denied the suggestion that she did not make such statement before police. She also admits that she stated before police that Accused No.1 refused to return the articles, but she denied the suggestion that she did not make such statement before police and what she stated before the Court that the accused also sat beside her and consumed toddy. She also admits that she did not handover 9 the bills pertaining to her ornaments to police and also the documents to show that she mortgaged the ornaments with the Marvadi. She also admits that after attending labour work, she used to consume toddy. She denied the suggestion that herself and her husband quarreled with each other regarding consumption of toddy. She admits that on the day of incident she consumed toddy twice and she used to get drowsiness after consumption of two bottles of toddy. She stated to the police that she lost 40 gold beads. She voluntarily stated that her mouth was gagged with cloth and hands were tied. However, she stated before the police that the hands were tied. Since her hands were tied and mouth was gagged, she could not resist them.
P.W.6, who is the husband of the victim (P.W.5) deposed that on the date of incident he went to his work at 8.00 A.M., and returned to the house at 6.00 P.M. His wife returned home at 7.30 P.M. by crying. When he asked his wife about the reason for crying, she stated that she was raped by Accused Nos.1 and 2 and also robbed her ornaments viz., gold beads, ear tops, silver waist thread, silver anklets and one silver ring. Just 10 minutes prior to arrival of his wife, Accused No.1 came to him and informed that his wife is crying at kallu compound. 10 Thereafter, they went to police station and his wife gave statement and she was taken to hospital. In the cross- examination, P.W.6 deposed that he was examined by the police on the date of complaint at police station. He stated to the police that Accused No.1 was also residing in the huts, nearby his hut, at Sastrypuram. He denied the suggestion that he did not state the same to the police and that he is deposing falsehood. He also admits that he stated to the police that his wife returned home at 7.30 P.M., by crying and 10 minutes prior to arrival of his wife, Accused No.1 came to him and informed that his wife was weeping at toddy compound, but he denied the suggestion that he did not state the same before the police. He did not give any receipts to police showing that his wife released the pledged articles from Marvadi. He denied the suggestion that he beat his wife since she did not release the articles and that she consumed toddy. He did not enquire his wife as to where she had spent the time from afternoon to evening. He did not raise any panchayat regarding the incident in the presence of elders. He admits that only one day his wife worked with the accused and thereafter she did not work with him and they had no contacts with the accused. He denied the suggestion that the accused removed his wife from works and that they demanded Rs.5,000/- and when he refused to pay 11 money, they filed false complaint against the accused and that the accused had not committed any offence like snatching the ornaments and committing rape on his wife and that he is deposing false.
P.W.10-Doctor, who conducted potency test of the accused, deposed that on 16.02.2006 on the requisition of the Magistrate, he examined A-1 and A-2 and opined that A-1 and A-2 are capable of performing the sexual act. He issued Ex.P13 and Ex.P14, potency certificates of A-1 and A-2. In the cross- examination, he denied the suggestion that he did not examine A-1 and A-2 and he got issued Exs.P13 and P14 at the instance of police.
P.W.11-the Inspector of Police, deposed that on 23.01.2006 at 3.00 A.M., he examined P.W.5 and recorded her statement and basing on the said statement, he registered a case in Crime No.77 of 2006 for the offences punishable under Sections 376 and 394 of I.P.C. Ex.P15 is the F.I.R. He also recorded the statement of P.W.5 under Section 161 of Cr.P.C. and he referred P.W.5 to hospital for examination. On 23.01.2016 at about 8.00 A.M., he visited the scene of offence, conducted scene observation in the presence of P.Ws.3 and 9 and drawn sketch map.
12
P.W.12-the Investigating Officer, deposed that on 03.02.2006 he took up investigation after obtaining permission from D.G.P., Hyderabad. He visited the scene of offence and recorded the statements of P.Ws.1, 2, 5 and 6. On 14.02.2006, the Assistant Sub Inspector of Police by name Sattar apprehended Accused Nos.1 and 2 and produced before him. He interrogated them in the presence of P.Ws.7 and 8. He recovered gold gundlu from Accused No.1, a pair of gold kammalu, a pair of silver kadialu and one silver ring from Accused No.2 under a cover of panchanama. He deposited the case property before the Court. After collecting all the material, he filed charge sheet.
From the judgment and order passed by the trial Court, it appears that the appellants/A1 & A2 have been convicted solely relying upon the evidence of the prosecutrix (P.W.5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the evidence of the prosecutrix, it has come on record that on the date of incident at about 6.00 P.M. while she was going to her house on her regular route, the accused followed her and insisted her to go through the shortcut way and when she refused the same, they caught hold of her, dragged her into bushes, assaulted her with sticks on hands and threatened to 13 kill her if she raise hue and cry. When she tried to free herself, the accused closed her mouth, laid her on a stone and both of them committed rape on her and thereafter they snatched away her purse, which was kept in her blouse and took away 40 gold beads weighing about half tula, gold ear tops one pair, silver anklets, in which her name was inscribed, silver waist thread of her son, one silver ring from her finger. She lost her consciousness and after half an hour she regained her consciousness and went to her house. In the cross-examination P.W.5 admits that she did not handover the bills pertaining to her ornaments to police and also the documents to show that she mortgaged the ornaments with the Marvadi. Further, P.W.6, who is the husband of the victim, in his cross- examination admits that he did not give receipts to the police showing that his wife released the pledged articles from Marvadi. However, the ornaments said to have been seized by the police are not produced before the trial Court. It is not known as to what happened to the gold and silver ornaments which were said to have been recovered by the police under cover of panchanama. P.W.1, who is the toddy shop owner and P.W.2, who speaks about mortgaging/redeeming of gold ornaments and P.Ws.3 and 9, who are the panch witnesses for the scene of offence, turned hostile and did not support the case 14 of prosecution. So also P.Ws.7 and 8, who are the panch witnesses for confession and recovery of ornaments of P.W.5 also turned hostile and did not support the case of the prosecution. Further, the prosecutrix (P.W.5) in her chief- examination stated that she worked with A-1 for two months only, whereas P.W.6, who is the husband of P.W.5, admits in his cross-examination that only one day his wife (P.W.5) worked with the accused and thereafter, she did not work with him and they had no contacts with the accused.
It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Admittedly, the prosecutrix (P.W.5) had consumed two bottles of toddy and she is in an inebriated state at the time of alleged incident. Having gone through and considered the evidence of the prosecutrix, I find that there are material contradictions in the evidence of the prosecutrix. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable.
Basing on the F.S.L. report, P.W.4-the doctor opined that the possibility of sexual intercourse with the victim cannot be ruled out. In the cross-examination, P.W.4 stated that she did 15 not mention the age of injury as they were bruises and fresh and also stated that she did not take swabs from the victim when she was examined. The Medical Certificate of the victim was sent on 23.06.2006, wherein it was categorically mentioned that human semen and spermatozoa are detected on item No.7 i.e., a faded orange colour cotton petticoat of the prosecutrix, but its blood group could not be determined. Semen and Seprmatozoa are not detected on item Nos.1 and 2 but blood is not detected on item No.7. The prosecutrix (P.W.5) in her cross-examination stated that she was taken to hospital by her husband for treatment after two days of the incident. However, P.W.4-Doctor in her cross-examination stated that the victim was examined by her 24 hours after the incident. No police requisition is available on record as to when the victim was sent for medical examination and through which of the police constable. Even if the presence of spermatazoma was found on item No.7, the possibility of physical cohabitation with her husband (P.W.6) cannot be ruled out before going to the police station. The evidence of the prosecutrix is not supported by the medical evidence since P.W.4-Doctor has not taken the swabs from the victim and no blood group is determined on item No.7 and, therefore, it creates serious doubt about the credibility of the prosecution. Furthere, there is no mention with regard to 16 the distance between the police station and the place of occurrence and no G.D.entry was made by the police and hence it cannot be ruled out the possibility of ante dated F.I.R. Statement of the victim under Section 164 Cr.P.C. was not recorded and only 161 Cr.P.C. statement was recorded by the police.
P.W.12-the Investigating Officer, in his chief-examination stated that on 03.02.2006, he took up investigation in this case after obtaining permission from the D.G.P., Hyderabad vide proceedings dated 03.02.2006. But a perusal of the said permission (Ex.P18), would show that the date of proceedings was mentioned as 04.02.2006 and later the date was altered as 03.02.2006 and the signature in the office of the Commissioner of Police, Cyberabad, was also corrected as 03.02.2006. (ante- date was mentioned). P.W.5 has not given the descriptive particulars of A-2. If that be so, how the name of A-2 was found place in the F.I.R., which shows that after due deliberations F.I.R. has been lodged mentioning the ante date and time by falsely implicating both the accused. Both the accused were apprehended on 14.02.2006 by the Assistant Sub Inspector of Police by name Sattar. It is no where mentioned that from 23.01.2006 to 14.02.2006 i.e., till their apprehension, 17 both the accused were not available at the place where they were residing and that they were absconding. Moreover, no where it is mentioned that there was a search for the accused. It is nowhere mentioned by P.W.11 as to when he hand over further investigation of the case to P.W.12.
For the foregoing reasons and in the facts and circumstances of the case, I find that the solitary version of the posecutrix cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant/A1 and A2. The learned trial Court has not properly appreciated the evidence on record and on wrong assumption of facts convicted the appellants/A-1 and A-2. Therefore, I am of the considered view that the prosecution has failed to prove its case against the appellants/A-1 and A-2 beyond all reasonable doubt. Hence, the impugned conviction and sentence imposed against the appellants-A-1 and A-2 are liable to be set aside.
In the result, the Criminal Appeal is allowed. The conviction and sentence imposed against the appellants/A-1 and A-2 for the offence punishable under Section 376 (2) (g) of I.P.C. by the trial Court in S.C.No.72 of 2008 on the file of the 18 Special Sessions Judge for SC & ST (POA) Act, 1989, Ranga Reddy District at L.B.Nagar, are hereby set aside and the appellants/A-1 and A-2 are acquitted for the said offence and they shall be set at liberty forthwith, if not required in any other case. Further, the bail bonds of the appellants/A-1 and A-2 shall stand cancelled and their sureties shall be discharged. The fine amount, if any, paid by the appellants/A-1 and A-2 shall be refunded to them.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G.SRI DEVI 11.05.2020 Gsn/gkv 19