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2004 DIGILAW 1014 (AP)

Seerapu Tulasi Rao v. State Of A. P.

2004-09-16

P.S.NARAYANA

body2004
( 1 ) HEARD Sri Maddi Pratap Reddy, Counsel representing the appellant-accused provided by Legal Aid and Sri Mohd. Osman Shaheed, Additional Public Prosecutor. ( 2 ) THIS Criminal Appeal is preferred by the sole accused in Sessions Case No. 1 of 2000 on the file of the I Additional Metropolitan Sessions Judge-cum-Special Judge for Cases Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Visakhapatnam. ( 3 ) SRI Maddi Pratap Reddy, the learned Counsel representing the appellant-accused would contend that there is no acceptable evidence available on record, and the medical evidence also does not support the version of the prosecution, and on the basis of the mere circumstantial evidence, it cannot be said that the guilt of the accused had been proved beyond all reasonable doubt. The learned Counsel had taken this Court through the evidence available on record. ( 4 ) ON the contrary, the learned Additional Public Prosecutor would contend that taking the age of the victim girl into consideration, and also the evidence of P. W. 12, which is clear and categorical relating to the recent intercourse, the offence under Section 376 IPC had been well established. The learned Additional Public Prosecutor also would submit that it is needless to say that the ingredients under Section 363 IPC also had been satisfied in the light of the evidence available on record, and in view of the medical evidence, the offence under Section 307 IPC also had been proved. The learned Additional Public Prosecutor also would submit that however, the learned Judge, on appreciation of the evidence available on record, recorded an acquittal, as far as the offences under Section 3 (2) (v) and 3 (i) (vii) of SC and ST (POA) Act, 1989. ( 5 ) THE prosecution had examined P. Ws. 1 to 16 and got marked Exs. P1 to P. 22, and M. Os. 1 to 7. On behalf of the defence D. W. 1 was examined and Exs. D. 1 to D. 5 were marked. The learned Judge came to the conclusion that the offence under section SC and ST (POA) Act, 1989 had not been proved, and recorded acquittal, but however, convicted the accused for the offences under Section 363, 376 and 307 IPC and sentenced him to undergo Rigorous Imprisonment for a period of five years and also to pay a fine of Rs. 200/- in default, to undergo Simple imprisonment for a period of two months; Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 200/- in default, to undergo Simple Imprisonment for a period of two months; and also further sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 200/- in default, to undergo Simple Imprisonment for a period of two months respectively, with a direction that the said sentences shall run concurrently. Aggrieved by the same, the present appeal had been preferred. ( 6 ) THE Assistant Commissioner of Police, Law and Order, North, Visakhapatnam City, filed the charge sheet against the accused for the offences under Sections 363, 376 and 307 IPC and under Section 3 (2) (v) and Section 3 (i) (vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The matter was taken on file as P. R. C. No. 2 of 2000 by the learned III Metropolitan Magistrate, Visakhapatnam and the same was committed to the Court of Session. ( 7 ) THE case of the prosecution is as hereunder:- the victim girl Nammalapalle Subha, daughter of Ashok aged about 8 years belongs to the Schedule Caste and was residing in Rangireeju Veedhi, Visakhapatnam along with her mother and sister. While so, on 26. 10. 1999 the mother of the victim girl by name Susheela-LW. 1 was busy, in offering prayers to the village Godess at Rangireeju Veedhi, along with others. At that time, the victim girl was playing with her friends near the Temple. The accused who happened to come to the house of Madhabattula Shankar Rao-L. W. 21 and Madabattula Lakshmi-LW. 22, having noticed the victim girl playing near the temple, with an intention to commit rape on her and to fulfill his sexual desire, took the victim girl tactfully in between 06-00 p. m. and 08-00 p. m. towards K. G. Hospital premises and it was witnessed by L. Ws. 14 and 20 namely Kalapati Indhira and Yamala Muralikumar. The accused took the victim girl to the terrace of the dilapidated building situated by the side of the College of Nursing Hostel, and he submitted the rape on her. 14 and 20 namely Kalapati Indhira and Yamala Muralikumar. The accused took the victim girl to the terrace of the dilapidated building situated by the side of the College of Nursing Hostel, and he submitted the rape on her. As blood came out of her vagina and the accused having anticipated that the offence will come to light, with an intention to kill the victim, he threw her from the terrace of the building to a depth of about 30 feet. She had survived, and later, she crawled to the Nursing Hostel in the darkness and raised cries. On hearing her cries, L. W. 3-Devi Darshini, a Medico Student having noticed the victim girl and informed L. Ws. 4 and 5 namely Kantimohanthi Jothee Kannathalli Patnaik and Koppula Vijia Rani, the house Keepers and they in turn, telephoned to L. W. 13-CMO. , K. G. Hospital, Visakhapatnam for help, who in turn sent L. Ws. 11 and 12 namely Ramineni Sudhakar and Dhanala Nagaraju, ward boys to the Hostel and they went and rescued the victim girl and brought the victim girl from the bushes and then, took the victim to the hospital for treatment. Meanwhile, the mother of the victim-L. W. 1, who was in search of the victim girl, reached the K. G. Hospital along with her relatives, and on knowing that the girl was admitted in the K. G. Hospital for treatment, went and found her daughter with injuries undergoing treatment. She enquired her and came to know that the offence was committed by the accused. She in turn gave a complaint to the police I Town Police Station. L. W. 28-Assistant Sub-Inspector of Police, registered the same as a case in Crime No. 181 of 199 under Sections 363, 376 and 307 IPC and under Section 3 (2) (v) and Section 3 (i) (vii) of SC and ST (POA) Act, 1989, and issued the FIR. L. W. 29-Inspector of Police, L and O Circle-II, Visakhapatnam, took up investigation and investigated into. During the course of the investigation, he visited the K. G. Hospital, Visakhapatnam and examined the mother of the victim girl, L. W. 1 and also the victim girl-L. W. 2, and recorded their statements. After that, he visited the scene of offence along with the mediators L. Ws. During the course of the investigation, he visited the K. G. Hospital, Visakhapatnam and examined the mother of the victim girl, L. W. 1 and also the victim girl-L. W. 2, and recorded their statements. After that, he visited the scene of offence along with the mediators L. Ws. 23 and 23 namely Siriki Pothuraju and Rajeti Chittibabu and prepared the observation panchanama at the scene of offence. He got taken the photograph of the scene of offence by L. W. 25-Pudi Baburao. He seized incriminating material available at the scene of offence under observation report. He visited the school of nursing and Rangireeju Veedhi, and examined the material witnesses. During the course of the investigation, he arrested the accused at 17-00 hours on 27. 10. 1999 at Tenneti Park, Visakhapatnam in the presence of the mediators and recorded the statement of the accused, and at his instance, the clothes, which he was wearing at the time of the commission of the offence were seized, and sent the accused to remand. L. W. 29-PVRSSSMV Ravi Varma had sent the victim girl and also the accused for medical examination at K. G. Hospital, Visakhapatnam, and collected the reports. The Assistant Professor of Gynaecology, L. W. 26-Dr. D. Hemalatha Devi, issued her opinion, after examining the victim, stating that the victim girl was subjected to rape. L. W. 13-CMO had given his opinion that the accused was potent to participate in sexual acts. L. W. 30-Assistant Commissioner of Police having verified the investigation done by L. W. 29 filed the charge sheet. ( 8 ) AFTER committal, after examining the witness and also marking the documents referred to supra, acquittal was recorded as far as the offence under Section 3 of SC and ST (POA) Act, 1989 is concerned, and conviction was recorded in relation to the other offences. ( 9 ) P. W. 1-MOTHER of the victim girl had deposed about the victim girl and how the incident happened, and her giving Ex. P1-report to the police, and all of them searching for the victim girl. ( 10 ) THE evidence of P. W. 2 is crucial. P. W. 2-Victim girl, was a minor on the date of the offence. P1-report to the police, and all of them searching for the victim girl. ( 10 ) THE evidence of P. W. 2 is crucial. P. W. 2-Victim girl, was a minor on the date of the offence. She deposed that on the date of the offence, when there was Kunkuma Pooja to Nookalamma in the temple situated in their street, and she was playing by the side of the temple and it was in the night time. She deposed that the accused came to her and informed that her father was calling her, but she refused to follow the accused, then, the accused lifted her on his shoulder and took her to a terrace of a building in K. G. Hospital. She deposed that after going there, the accused removed her clothes, and laid down on her, and attempted to commit rape. She deposed that she had felt pain, and informed the same to the accused, but the accused beat on her chest and cheek. She also deposed that how she had been thrown, and how she had sustained injuries by falling down into the bushes. She deposed about the bleeding from the private parts, and the Doctor giving treatment to her. This witness though a child witness had specifically identified the accused in the Court. This evidence was discussed in detail by the learned Judge, and reliance was placed on the evidence of this witness. ( 11 ) THE evidence of P. Ws. 3, 4 and 5 would go to show that the victim girl was crying in the bushes, behind their nursing hospital building, and this evidence would definitely corroborate the evidence of P. W. 2. P. Ws. 3 and 4 are the house keepers of the nursing hospital. P. W. 6-Ward boy of K. G. Hospital. ( 12 ) P. W. 7-C. M. O. of the K. G. Hospital, who had received the intimation, that a small girl of aged 8 years was lying down in the bushes, and the victim girl informed him that she was taken to the terrace of the hostel, and she was subjected to the sexual assault, and he found bleeding also from external genitalia. ( 13 ) P. W. 8 is the elder sister of P. W. 1. ( 13 ) P. W. 8 is the elder sister of P. W. 1. P. W. 9 is a resident of Rangirajuee Veedhi, who had deposed about his seeing the accused and P. W. 2, and later coming to know about the commission of the offence by the accused against P. Ws. 2. P. W. 10 is also a resident of the said Veedhi, living by tailoring work. P. W. 11-Village Administrative Officer, who had accompanied the police to the scene of offence, had deposed about the noting of the blood stains on the terrace of the hostel, and the other aspects relating to the scene of the offence, and the arrest of the accused and the seizure of the M. Os. 1 to 3. ( 14 ) P. W. 12 is the Doctor. Much comment was made on the evidence of the doctor. P. W. 12 had specifically deposed about the bleeding from Vagina, and she also clarified that there was forcible recent intercourse, and vagina admitting one finger, and hence, the medical evidence also would support the version of the prosecution. ( 15 ) P. W. 13-PHOTOGRAPHER. P. W. 14-Assistant Sub-Inspector of Police. P. W. 15- Inspector of Police P. W. 16-Assistant Commissioner of Police, who laid the charge sheet. ( 16 ) D. W. 1-M. V. Gopal was examined and the evidence of D. W. 1 and Exs. D1 to D5 also had been discussed. But, in the light of the clear evidence of P. W. 2, well supported relating to the post incident events by P. Ws. 1, 3, 4 and 5 and also what had been deposed about what actually had been observed by the other witnesses, the chain of the events had been well established, corroborating the evidence of P. W. 2, in all material particulars, and hence, the evidence let in on behalf of the defence had not been given credence, and ultimately, the conviction had been recorded. Reasons in detail had been given by the learned Judge, appreciating the evidence available on record commencing from paragraphs 13 to 39. ( 17 ) ON a careful scrutiny of the findings recorded by the learned Judge, this Court is of the considered opinion that there are no any compelling reasons to record different findings. Reasons in detail had been given by the learned Judge, appreciating the evidence available on record commencing from paragraphs 13 to 39. ( 17 ) ON a careful scrutiny of the findings recorded by the learned Judge, this Court is of the considered opinion that there are no any compelling reasons to record different findings. But, however, in the facts and circumstances, though the ingredients of Section 363 and 376 IPC as such had been established. As far as the ingredients under Section 307 IPC is concerned, in the light of the medical evidence available on record, it is highly doubtful whether the appellant accused had an intention to do away with the life of this unfortunate victim girl-P. W. 2. No doubt, certain injuries had been caused, and at the best, it can be said that the appellant-accused is punishable under Section 324 IPC. ( 18 ) THE conviction imposed by the Special Judge for SCs and STs (Prevention of Atrocities) Act, 1989, Visakhapatnam against the appellant-accused in Sessions Case No. 1 of 2000 on 07. 03. 2001 for the offences under Sections 363 and 376 IPC is confirmed. But, in view of the facts and circumstances, the conviction for the offence under Section 307 IPC is hereby set aside and the appellant accused is convicted under Section 324 IPC instead of Section 307 IPC. ( 19 ) THE sentence imposed against the appellant-accused for the offence under Section 363 IPC is modified and reduced to Rigorous Imprisonment for three years from five years and as far as payment of fine of Rs. 200/- in default, to undergo Simple Imprisonment for two months is here by set aside; for the offence under Section 376 IPC is concerned, it is modified and reduced to Rigorous imprisonment for five years from ten years and as far as the payment of fine of Rs. 200/- in default, to undergo Simple Imprisonment for two months is hereby set aside; Further, the accused is sentenced to undergo Rigorous Imprisonment for a period of six months for the offence under Section 324 IPC. The sentences imposed under Sections 324, 363 and 376 IPC referred to supra shall run concurrently. 200/- in default, to undergo Simple Imprisonment for two months is hereby set aside; Further, the accused is sentenced to undergo Rigorous Imprisonment for a period of six months for the offence under Section 324 IPC. The sentences imposed under Sections 324, 363 and 376 IPC referred to supra shall run concurrently. Except the setting aside of the conviction and the sentences under Section 307 IPC, and convicting under Section 324 IPC and also the modification of sentences under Section 376 and 363 IPC, in all other particulars, the findings of the learned Special Judge are hereby confirmed and the Criminal Appeal is partly allowed to the extent indicated above. It is needless to say that the appellant-accused shall serve the rest of the sentences in accordance with law.