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2003 DIGILAW 445 (AP)

Tangirala Venkateswarlu v. State Of A. P.

2003-03-18

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS is an appeal by A-1 and A-2 in S. C. No. 529 of 1995 on the file of the Assistant Sessions Judge, Markaput. They were tried for offence under Section 376 (2) (g) of I. P. C. The trial Court found them guilty of the same and on conviction sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/- each, in default to undergo simple imprisonment for six months. ( 2 ) THE case of the prosecution was that PW-1 is resident of Sunkesula village of Prakasham District. She was married to one Mr. Rangaiah. Having been deserted, she is residing with her mother. On 8-5-1991, she came to the village Gottipadia, where her sister-in-law PW-2, was residing. On her return journey to her village by walk, at 4. 00 p. m. after she crossed some distance, A-1 came from behind and after questioning as to where she was going, caught hold of her. He physically lifted her and took to his Chini garden and laid under a tree of drumstick. There A-1 and A-2 are said to have committed rape on her. ( 3 ) SHE was alleged to have been dragged to the road by the accused themselves and PW-3 who was passing through the road has noticed her. On being told by PW-1 of the incident, PW-3 has admonished the accused and had told their names to PW-1. PW-3 took her to the house of PW-2 and on the next day a complaint was submitted to the police. PW-1 was also sent for medical examination carried on by PW-4 ( 4 ) THE prosecution examined PWs-1 to 8 and marked Exs. P-1 to P-11 and M. Os. 1 and 2. For the defence Exs. D-1 and D-2 were marked. ( 5 ) SRI C. Praveen Kumar, learned counsel for the appellants submits that PW-1 had categorically admitted in her evidence that she belongs to one of the factions in the village and the complaint was motivated. He submits that the medical report does not support the version of the prosecution. It is his case that PW-3, the witness, who is said to have met PW-1 immediately after the incident did not support the case of the prosecution, and that Ex. He submits that the medical report does not support the version of the prosecution. It is his case that PW-3, the witness, who is said to have met PW-1 immediately after the incident did not support the case of the prosecution, and that Ex. P-3 does not disclose the factum of commission of offence of rape on PW-1. ( 6 ) THE learned Public Prosecutor submits that the discrepancies pointed out by the learned counsel for the appellants are inconsequential. He submits that though PW-3 turned hostile, his evidence to the extent that he saw PW-1 by the side of road and her revealing the factum of having been raped and having taken PW-1 to the house of PW-2 goes very long way to corroborate the version of PW-1. He also submits that Ex. P-4 categorically discloses the traces of rape having been committed. ( 7 ) PW-1, in her complaint marked as Ex. P-1 stated that when she was returning to her village, A-1 came from behind, physically lifted and took her to the chini garden on the eastern side of the road. She has also stated that A-1 and A-2 have committed rape on her. She has narrated graphically the incident leading to the submission of the complaint. She has furnished the names of the accused in Ex. P-1 itself. She has disclosed the source of knowing their names. She has categorically stated that PW-3, who noticed A-1 and A-2 nearby the road, had admonished them and revealed their names to PW-1. ( 8 ) THE learned counsel for the appellants submits that though PW-1 had disclosed the names of the accused in Ex. P-1, she did not speak of the same during the course of her oral evidence. The submission of the learned counsel for the appellants would certainly have been important, had it been as regards any other circumstances. So far as the disclosure of identity of the accused is concerned. PW-1 has not only stated their names in Ex. P-1 but she has been referring to the accused, who were very much present in the Court. Her reference was not general. She had spoken to the individual acts performed by A-1 and A-2. There was not even a suggestion during the course of cross-examination that she did not know the accused or their names. P-1 but she has been referring to the accused, who were very much present in the Court. Her reference was not general. She had spoken to the individual acts performed by A-1 and A-2. There was not even a suggestion during the course of cross-examination that she did not know the accused or their names. Added to these circumstances, in the Test Identification Parade conducted by PW-6, the Magistrate, PW-1 had identified A-1 and A-2 in separate rows without any hesitation. The defence did not choose to cross-examine PW-6 at all. PW-1 has stated in her evidence that the accused reside nearby the place of her sister-in-law i. e. PW-2 and she knows them. Under these circumstances, the contention of the learned counsel for the appellants cannot be accepted. ( 9 ) COMING to the question as to whether any rape had taken place at all, learned counsel for the appellants submits that PW-4 the Doctor, who examined PW-1 did not tender any opinion directly on the aspect and that the medical report Ex. P-3 does not disclose any such incident. Another circumstance he relies upon is that even according to Ex. P-3 no bodily injuries were found on PW-1. ( 10 ) PW-4 is the Woman Assistant Surgeon at Ongole and she examined PW-1 on 9-5-1991 i. e. one day after the incident. Her evidence clearly discloses that PW-1 was subjected to forcible intercourse. Nothing was suggested to her to discredit her evidence. So far as the contention as to the non-existence of bodily injuries are concerned, PW-1 never alleged that she sustained any injuries during the incident. She was virtually over powered by the accused and she had to meekly submit to the beastly acts of the accused. ( 11 ) ANOTHER contention advanced by the counsel for the appellants is that there was discrepancy as to the scene of offence and as regards its actual location. He pointed out certain discrepancies as between the version of PW-1 in her deposition as well as Ex. P-1 and the one in Ex. P-11 the rough sketch and much is sought to be commented on the evidence of PW-1, when she said that she was taken two kilometers away from the road. He pointed out certain discrepancies as between the version of PW-1 in her deposition as well as Ex. P-1 and the one in Ex. P-11 the rough sketch and much is sought to be commented on the evidence of PW-1, when she said that she was taken two kilometers away from the road. ( 12 ) PW-1 was categorical in her complaint as well as evidence that she was taken to the chini garden of A-1 and was laid under the drumstick tree. The sketch of scene of offence marked as Ex. P-11 discloses the same. Ex. P-11 is not drawn to scale. PW-1 was a rustic woman residing in a remote village and she cannot be expected to know the distance in terms of meters and kilometers. Once the factum of commission of rape is established, these minor discrepancies pale into insignificance. In a catena of decisions, the Hon ble Supreme Court took the view that in the offences under Section 376 of I. P. C. , the Courts need not look much for corroborative evidence. Unless shaken in any other respects. The evidence of the victim itself should be sufficient to convict the accused. The evidence of PW-1 is not only consistent but is corroborated by the medical evidence and even the evidence of PW-3 who was declared hostile. ( 13 ) IN her complaint PW-1 stated that when she was laid on the road, PW-3 noticed her and it is he who admonished the accused, disclosed their names to her and took her to the house of PW-2. The evidence of PW-3 in the chief examination is as under:-"about 5 years back I went to my Thota at Akkachervu village, and at about 5. 00 p. m. I was returning to my house as the current was off. On the way to Gottipadiya village about one mile away I met PW-1 by the side of road and she complained to me that she was taken away by some and then I took her to her brother s house at Gottipadiya as it was setting dark. " ( 14 ) EVEN though PW-3 did not speak to the other aspects, the evidence referred to above is sufficient to corroborate the version of PW-1. " ( 14 ) EVEN though PW-3 did not speak to the other aspects, the evidence referred to above is sufficient to corroborate the version of PW-1. ( 15 ) AN attempt is made to suggest that even according to PW-1, she belongs to the party led Chenchi Reddy and the accused belong to the rival party. The context in which she said that she belongs to a particular party led by an individual in the village and its implications are too insignificant. It was not even suggested to her that she had any enmity with the accused or some one related to them and that the complaint is accentuated on account of such differences. Nothing was elicited in this context. Therefore, viewed from any angle the conviction of the accused for the offence alleged against them cannot be said to be unsustainable. Therefore, the conviction against them is affirmed. ( 16 ) THE trial Court sentenced the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/- each. It is true that the crime committed by the accused is ghastly in nature. They do not deserve any sympathy from the Court. The learned counsel for the appellant however, submits that they are the only earning members of their respective families and as on today there is none to look after their families or to provide livelihood to their families. Keeping the earning members of the family in jail for 10 years would virtually shatter the entire family. The incident took place way back in the year 1991 i. e. more than 12 years back. This Court feels that this is a case where the discretion conferred on the Court under the proviso to sub-section (2) of Section 376, I. P. C. and the discretion under sub-section (3) of Section 357 of Cr. P. C. can be exercised. Taking the totality of the circumstances into account, this Court feels that ends of justice would be met if the accused-appellants are sentenced to undergo rigorous imprisonment for three years and required to pay compensation of Rs. 3,000/- each to PW-1. ( 17 ) IN the result, the sentence against them is modified to be one for rigorous imprisonment for three years and to pay compensation of Rs. 3,000/- (Rupees three thousand only) each by the accused to PW-1 within three months from today. 3,000/- each to PW-1. ( 17 ) IN the result, the sentence against them is modified to be one for rigorous imprisonment for three years and to pay compensation of Rs. 3,000/- (Rupees three thousand only) each by the accused to PW-1 within three months from today. In default in payment of compensation, they shall undergo simple imprisonment for six months each. The sentence as to fine shall stand set aside and fine if any paid by the accused shall be refunded to them. The appeal is dismissed with the modification of sentence as indicated above. The sentence if any, already undergone by the accused shall be given set off. Order accordingly.