Telangana High Court
Idaboina Shankar vs The State Of A.P. on 21 October, 2022
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.2636 OF 2012
ORDER:
This Criminal Revision Case, under Sections 397 & 401 of Cr.P.C., is filed by the petitioner/accused, challenging the judgment, dated 28.12.2012, passed in Criminal Appeal No.69 of 2011 by the learned III Additional Sessions Judge (I-FTC), Nalgonda, whereby, the Court below, while confirming the conviction recorded against the petitioner/accused of the offences under Sections 376 read with 511 and 506 of IPC by the learned Assistant Sessions Judge at Nalgonda, vide judgment, dated 12.05.2011, passed in S.C.No.391 of 2010, modified the sentence imposed on the petitioner/accused to that of payment of fine of Rs.5,000/- instead of rigorous imprisonment for one year, in default, to undergo simple imprisonment for six months for the offence under Section 506 of IPC; and to undergo rigorous imprisonment for three years instead of rigorous imprisonment for a period of five years for the offence under Section 376 read with 511 of IPC.
2. I have heard the submissions of Sri Vinod Kumar Deshpande, learned senior counsel, appearing for Sri N.Mukunda Reddy, learned counsel for the petitioner/accused, learned 2 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 Assistant Public Prosecutor appearing for the respondent/State. I have perused the material record.
3. The case of the prosecution, in brief, is that on 25.12.2008, at 20:00 hours, PW.1 (de-facto complainant) lodged Ex.P1-written complaint with Chinthapally Police Station stating that on same day at about 03:00 PM, while she was cutting green grass in their citrus garden situated at Theededu Venkatampeta Village, the petitioner/accused, who belongs to the same village, came there and started chit chat with her, caught hold of her hand, pushed her down to the ground and attempted to commit rape on her. When she raised hue and cry, the petitioner/accused pulled the sickle from her hand, kept it on her throat and threatened with dire consequences and not to raise any alarm. In the meantime, PW.2/farm servant of PW.1 rushed to the spot on hearing the hue and cry of PW.1. On seeing PW.2, the petitioner/accused ran away from the spot. Meanwhile, PW.3, LWs.4 to 6, who were the villagers, reached the place of incident and came to know about the incident from PW.1. Thereafter, PW.1 went home and informed about the incident to her husband. On a report lodged by PW.1, the police, Chinthapally, registered the subject crime, completed investigation, and laid charge-sheet before the trial 3 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 Court against the petitioner/accused for the offences under Sections 376 read with 511 and 506 of IPC.
4. To substantiate the case of prosecution, PWs.1 to 5 were examined and Exs.P1 to P4 were marked. PW.1 is the de-facto complainant/victim. PW.2-Morla Shankaraiah and PW.3-Panga Sattaiah are circumstantial witnesses. PW.4-Rasika Shankar is the mediator for scene of offence and seizure panchanama. PW.5- R.Thirupathi, SI of Police, is the investigating officer. Ex.P1 is the report lodged with the police by PW.1. Ex.P2 is the scene of offence panchanama marked through PW.4. Ex.P3 is the rough sketch of scene of offence marked through PW.4. Ex.P4 is the FIR. The prosecution has given up the evidence of LWs.4 to 6 and 8, viz., Vallapu Ramulu, Jella Ankalaoah, Idagoni Edaiah, Gundeboina Srinu, respectively. On behalf of the petitioner-accused, no evidence, either oral or documentary, has been adduced. MO.1 is the sickle which the petitioner/accused allegedly kept on the throat of PW.1 and threatened with dire consequences.
5. The trial Court, after analyzing the entire evidence on record, holding that the prosecution has satisfied the ingredients of the offences punishable under Sections 376 r/w 511 and 506 of IPC against the petitioner/accused, convicted him for the said offences and sentenced him as stated supra. Aggrieved by the same, the 4 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 petitioner/accused preferred the subject Criminal Appeal No.69 of 2011 before the Court below and the Court below, on re- appreciation of entire evidence on record, while confirming the conviction recorded against the petitioner/accused of the offences under Sections 376 r/w 511 and 506 of IPC, modified the sentence imposed on the petitioner/accused to that of payment of fine of Rs.5,000/- instead of rigorous imprisonment for one year, in default, to undergo simple imprisonment for six months for the offence under Section 506 of IPC; and to undergo rigorous imprisonment for three years instead of rigorous imprisonment for a period of five years for the offence under Section 376 r/w 511 of IPC. Aggrieved by the same, the petitioner/accused filed this Criminal Revision Case.
6. Learned senior counsel appearing for the petitioner/accused would contend that both the Courts erred in convicting and sentencing the petitioner/accused of the offences under Sections 376 r/w 511 and 506 of IPC. The ingredients of Section 376 and 511 and 506 of IPC have not been made out against the petitioner/accused. Except the self-serving evidence of the prosecutrix, there is no evidence, much less cogent and convincing evidence, to establish the accusations levelled against the petitioner/accused. In Ex.P1-report, there is no mention of closing 5 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 the mouth of the prosecutrix with his hand by the petitioner/accused. There are material inconsistencies and improvements in the evidence of prosecutrix. The prosecution failed to record the statements of the material witnesses in this case due to which, an adverse inference is required to be drawn against the prosecution and benefit of doubt is required to be extended to the petitioner/accused. Though the prosecutrix stated in her evidence that one Yadamma, sister of the petitioner/ accused, came to her and requested not to reveal the incident to any one, the prosecution, for the reasons best known to it, did not choose to examine said Yadamma before the Court. The scribe of Ex.P1-reoprt was also not examined. The evidence of PWs.2 and 3 is hearsay evidence, which is no evidence at all. There is also no evidence on record as to at whose instance, MO.1-sicke was seized. In rape cases, the Court should invariably lean in favour of medical evidence before holding that the offence has been conclusively established. In the instant case, there is no medical evidence on record at all, since the prosecutrix has refused to go to hospital for examination. Further, in order to constitute offence under Section 511 of IPC, it is necessary that firstly the culprit must have intention to commit offence, secondly he does preparation to commit the offence and thirdly, an attempt must 6 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 have been made to commit offence. All the above ingredients are patently absent in the instant case. It is a fit case to set aside the conviction and sentence recorded against the petitioner/accused, by exercising the revisionary jurisdiction of this Court under Sections 397 and 401 of Cr.P.C. and ultimately prayed to allow the Criminal Revision Case as prayed for.
7. Per contra, learned Additional Public Prosecutor appearing for the respondent/State supported the impugned order and contended that the petitioner/accused committed heinous offence of rape on the prosecutrix by sleeping on her. The evidence placed on record clinchingly proves the guilt of the petitioner/accused beyond all reasonable doubt for the offences under Sections 376 read with 511 and 506 of IPC. There are neither material inconsistencies/contradictions, nor any improvements/embellishments in the evidence of prosecutrix, as contended. It is well settled that in rape cases, the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The victim in a rape case is not treated as accomplice, but could only be characterized as an injured witness. The statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. No woman would falsely implicate a 7 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 person in sexual offence, as the honour and prestige of that woman also would be at stake. The evidence of the prosecutrix coupled with the other evidence on record clearly established that the petitioner/accused committed rape on her. Further, the petitioner/accused threatened the prosecutrix with dire consequences by putting MO.1 sickle on her throat. Both the Courts below properly appreciated the evidence on record and rightly convicted the petitioner/accused of the offences under Sections 376 read with 511 and 506 of IPC. Further, the revisionary jurisdiction of the High Court, as contemplated under Section 401 of Cr.P.C., operates in narrow limits and can be exercised only in exceptional cases, to avoid miscarriage of justice. The Revisional Court will not interfere even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. Both the Courts below are justified in convicting and sentencing the petitioner/accused. There are no circumstances to interfere with the impugned judgment and ultimately prayed to dismiss the Criminal Revision Case.
8. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows: 8
Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 "Whether the impugned judgment, dated 28.12.2012, passed in Criminal Appeal No.69 of 2011 by the III Additional Sessions Judge (I-
FTC), at Nalgonda, convicting the petitioner/accused of the offences under Section 376 read with 511 and 506 of IPC is liable to be set aside?
POINT:-
9. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 & 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., is not to be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High 9 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 Court to exercise all powers of appellate Court, if necessary, in aid of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
10. In the above context in regard to the scope and limitation imposed on Revisional court, this Court deems it proper to evaluate the entire case on hand, in order to find out as to whether the prosecution has established the case of rape against the petitioner/accused and if not, whether the accused is entitled for acquittal at the hands of Revisional court.
11. The petitioner/accused was convicted for the offences under Sections 376 r/w 511 and 506 of IPC. While Section 375 of IPC defines 'rape', Section 376 of IPC prescribes punishment for rape. In order to arrive at a just conclusion as to whether the conviction of the petitioner/accused for the offence under Section 376 r/w 511 is sustainable, it is desirable to examine the basic ingredients 10 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 of Section 375 of IPC punishable under Section 376 of IPC. Section 375 of IPC reads as follows:-
375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First -- Against her will.
Secondly -- Without her consent.
Thirdly -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly -- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly -- With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Under Section 375 of IPC, the six categories indicated above are the basic ingredients of the offence. The important ingredient of the offence under Section 375 of IPC punishable under Section 376 IPC is 'penetration', which is altogether missing in the instant case. In the instant case, apart from other material particulars, 11 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 the testimony of the prosecutrix before the Court in relation to implication of the petitioner/accused of the offence under Section 376 of IPC is "the accused caught hold my right hand and fell me down and closed my mouth with hand and kept sickle on my throat and tried to outrage my modesty and attempted to rape me by sleeping over me...". No offence under Section 376 can be made out unless there was penetration to some extent. In the absence of penetration to any extent, the offence would not fall within the four corners of Section 375 of IPC. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence, clear and cogent, to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.
12. In State of U.P. Vs. Babul Nath1, the Hon'ble Apex Court, while dealing with the basic ingredients of offence under Section 375 of IPC, held as follows:-
"8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows:
"Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/ 1 (1994) 6 SCC 29 12 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
13. In State of Kerala Vs. Kundumkara Govindam2, the Hon'ble Kerala High Court observed as follows:-
"The crux of the offence u/s 376 IPC is rape and it postulates a sexual intercourse. The word "intercourse" means sexual connection. It may be defined as mutual frequent action by members of independent organization. By a metaphor the word "intercourse" like the word "commerce" is applied to the relation of sexes. In intercourse there is temporary visitation of one organization by a member of the other organization for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. There is no intercourse unless the visiting member is enveloped at least partially by the visited organization, for intercourse connotes reciprocity. In intercourse between thighs the visiting male organ is enveloped at least partially by the organism visited, the thighs; the thighs are kept together and tight."
14. According to Concise Oxford Dictionary, the word 'penetrate' means "find access into or through, pass through". As observed in R.Vs. Marsden3, it is unnecessary to prove actual emission of seed; sexual intercourse is deemed complete upon proof of penetration only.
2 1969 Crl.L.J. 818 = 1968 Ker LJ 485 3 (1891) 2 QB 149 13 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012
15. In Nirmal Kumar Vs. State of Haryana4, the Court held that even slightest degree of penetration of the vulva by the penis, with or without emission of semen, is sufficient to constitute the offence of rape.
16. The distinction between 'rape' and 'criminal assault' has been aptly described in the English case Rex v. James Lloyd5. In the said case, while summing up the charge to the jury, Justice Patterson observed as follows:
"In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part."
17. A similar case was decided by Justices Mirza and Broomfield of the Bombay High Court in Ahmed Asalt Mirkhan6. In that case, the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the house of the accused to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and girl's petticoat, picked her up, laid her on the bed, sat on her chest. He put his hand over her mouth to prevent her crying and placed his private part against hers. However, there was no 4 2002 Crl LJ 3352 (P&H) 5 (1836) 7 C & P 317 = 173 ER 141 6 Crl.A.No.161 of 1930, decided on 12.08.1930 in Law of Crimes by Ratanlal Dhirajpal, p.922 14 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 penetration. The girl struggled and cried and hence, the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.
18. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the petitioner/accused under Section 376 of IPC is wholly unsustainable. Leave apart penetration, the petitioner/ accused did not even undressed himself nor asked the prosecutrix to undress. As indicated above, the only testimony of the prosecutrix in relation to the alleged rape on her by the petitioner/accused, is that "the accused caught hold my right hand and fell me down and closed my mouth with hand and kept sickle on my throat and tried to outrage my modesty and attempted to rape me by sleeping over me...". On the basis of this testimony, the petitioner/accused, in any event, cannot be convicted of the offence under Section 376 of IPC, more particularly in view of the legal position obtaining thereof. Hence, in the absence of any 15 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 attempt to penetrate, the conviction under Section 376 of IPC is wholly illegal and unsustainable.
19. Further, the plea relating to applicability of Section 376 r/w 511 of IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, i.e., attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law punishes the person attempting the Act. Section 511 of IPC is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to 16 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what Section 511 of IPC requires. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and affecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 of IPC (waging war against the 17 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 Government of India) and Section 399 of IPC (preparation to commit dacoity). The dividing line he dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which, if not prevented, would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
20. In order to find an accused guilty of an attempt with intent to commit rape, the Court has to be satisfied that the accused, 18 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
21. Further, it is needless to say that in a case under Section 376 of IPC, the evidence of the prosecutrix is most vital. Conviction can be based on the sole testimony of the prosecutrix if her evidence is found to be trustworthy, believable, cogent, reliable and free from material contradictions. In other words, if the sole testimony of the prosecutrix inspires confidence of the Court, no corroboration is required to record conviction of the offence under Section 376 of IPC. It has been consistently held by the Hon'ble Apex Court that a victim in a case of rape is not an accomplice. On the contrary, she is at par with the injured witness. At the same time, considering the gravity of the offence, the Hon'ble Supreme Court time and again echoed a voice of caution that the evidence of the prosecutrix is to be considered with great care and circumspection. Only when the evidence of 19 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 the prosecutrix is found to be of "sterling quality", Court can rely on her sole testimony to convict the accused. In Rai Sandeep @ Deepu vs. State of NCT of Delhi7, the Hon'ble Supreme Court had the occasion to consider as to who can be said to be "sterling witnesses". It is observed thus:
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."7
(2012) 8 SCC 21 20 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012
22. In the instant case, it is culled out from the evidence of PWs.1 to 4, more particularly of PW.1, that there was neither intention nor preparation to commit the offence. According to the evidence of PW.1, after the petitioner/accused entered into the Mosambi garden of the prosecutrix, they had a casual talk with regard to the petitioner/accused not seen in the village, switching over to other profession by the petitioner/accused etc. If really the petitioner/accused had intention to commit rape on the prosecutrix, the situation would have been altogether different. He would not have chosen the place where there is every possibility of the persons reaching the spot within no time on hearing the hue and cry of the prosecutrix. PW.2, in his cross-examination denied the suggestion that there is no possibility of hearing the cries allegedly made by the prosecutrix. So, the intention and preparation on the part of the petitioner/accused to commit rape on the prosecutrix appear to be doubtful.
23. There are yet other circumstances favoring the petitioner/accused. As rightly contended by the learned senior counsel appearing for the petitioner/accused, in Ex.P1 report lodged by the prosecutrix, there is no mention of 'closing the mouth of the prosecutrix with hand' by the petitioner/accused, but in her deposition before the Court, the prosecutrix deposed that 21 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 "the accused caught hold my right hand and fell me down and closed my mouth with hand and kept sickle on my throat...". Further, though the prosecutrix stated in her evidence that one Yadamma, sister of the accused, came to her and requested not to reveal the incident to any one, there is no such mention in Ex.P1 report. On a close scrutiny of the evidence of prosecutrix, it is found that the said witness has failed to pass any of the tests of "sterling quality". The law is well settled that the Court can act upon the solitary statement of the prosecutrix, provided the testimony is truthful and trustworthy, but at the same time, it cannot be mechanically applied to every case of sexual assault and the veracity of the story projected by the prosecution qua allegations of rape must be carefully examined. There are material inconsistencies and improvements in the testimony of the prosecutrix, which renders the entire case of prosecution unreliable. The story put forward by the prosecutrix is improbable and belies logic. Further, LWs.3 to 6, who, according to the prosecutrix, arrived at the spot on hearing her cries and to whom she informed about the alleged incident, were not examined before the Court. Further, Yadamma, sister of the petitioner/accused, who allegedly requested the prosecutrix not to reveal the incident to any one, was not examined before the Court, so also the scribe 22 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 of PW.1-report. Furthermore, there is also no evidence on record as to at whose instance, MO.1-sicke was seized by PW.5- investigation officer. The applicability of Section 27 of the Evidence Act requires the 'information' leading to the 'discovery' to be made only by an 'accused' who must be in the 'custody of a police officer'. Further, there is no medical evidence on record at all to establish that the petitioner/accused committed rape on the prosecutrix, since the prosecutrix has refused to go to hospital for examination. Though absence of medical evidence is not fatal to the case of prosecution and a rape accused can be convicted even in the absence of medical evidence, the medical evidence, if available, is of great importance and can prove to be of a clinching nature. Though the rape victims should not suffer and justice should not be denied to them for want of medical evidence and the crucial piece of evidence is their testimony, but however, that does not mean that the importance of medical evidence is minimized in any way. Conversely, if medical evidence is available, collected and analyzed properly, then, it clinches the issue, as it gives strong support to the testimony of the prosecutrix. In the absence of any other direct evidence or eye-witnesses on record, as offence of rape take place in secrecy, the only piece of corroborating evidence in case of doubt, is medical evidence. In a recent 23 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 judgment in Subrata Pradhan Vs. State of West Bengal and another8, the rape victim therein denied to have examined medically. In the circumstances, the Hon'ble Calcutta High Court held that the absence of any report of medical examination of the victim would go in favour of the accused and he is entitled to get benefit of doubt.
24. In view of the foregoing discussion, this Court is of the considered opinion that the prosecution miserably failed to prove the guilt of the petitioner/accused of the offences under Sections 376 r/w 511 and 506 of IPC. Both the Courts below erred in properly appreciating the evidence on record. The findings recorded by both the Courts below are perverse and untenable in law, which resulted in miscarriage of justice. It is a fit case to set aside the conviction and sentence recorded against the petitioner/accused of the offences under Sections 376 r/w 511 and 506 of IPC, by exercising the Revisional jurisdiction of this Court under Sections 397 & 401 of IPC.
25. Accordingly, the Criminal Revision Case is allowed by setting aside the judgment, dated 28.12.2012, passed in Criminal Appeal No.69 of 2011 by the learned III Additional Sessions Judge (I- FTC), Nalgonda. The conviction and sentence recorded against the 8 Decided on 10.03.2022 in C.R.A.No.270 of 2019 by Hon'ble Calcutta High Court 24 Justice Juvvadi Sridevi Crl.R.C.No.2636 of 2012 petitioner/accused of the offences under Sections 376 read with 511 and 506 of IPC is set aside. The petitioner/accused is on bail by virtue of the order, dated 31.12.2012, passed by this Court in Crl.R.C.M.P.No.3935 of 2012. The bail bonds of the petitioner/accused shall stand cancelled. Fine amount, if any, paid by the petitioner/accused, shall be refunded to him.
Miscellaneous applications, if any, pending in this Criminal Revision Case, shall stand disposed of in terms of this order.
______________________ JUSTICE JUVVADI SRIDEVI 21st October, 2022 Ksk