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2004 DIGILAW 1361 (AP)

Enagu Gangareddy v. State Of A. P.

2004-11-11

P.S.NARAYANA

body2004
( 1 ) THE Division Bench by order dated 13. 9. 2004 made the following order: "the following questions were referred to this Division Bench for appropriate decision, (1) Whether the decision in Viswanadhula chittibabu v. State of A. P. , 2002 (2) ALD (Crl.) 206, requires reconsideration in view of the decisions in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 , munnala v. State of Uttar Pradesh, AIR 1964 SC 28 and Bhanuprasad Hari prasad Dave v. State of Gujarat, AIR 1968 SC 1323 ? (2) Whether in the facts and circumstances of the case can it be said that prejudice was caused to the accused in the light of the investigation conducted by investigating agency below the rank of Deputy Superintendent of police? ( 2 ) BEFORE going to the legal aspect it is necessary to refer the facts of the case covered by Criminal Appeal No. 1744 of 1997. ( 3 ) A1 and A2 were charged for the offence punishable under Section 376 (1) IPC and A1 was found guilty and he was convicted and sentenced to suffer rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one year. However, A2 was acquitted. ( 4 ) AGGRIEVED by the conviction and sentence imposed on A1, the present appeal has been preferred to the High Court. ( 5 ) THE learned Judge after referring to the facts of the case entertained a doubt that the principle laid down by the Division bench of this Court in "viswanadhula chittibabu v. State of A. P. , 2002 (2) ALD (Crl.) 206, requires reconsideration in view of the judgments of the Supreme Court referred to above. ( 6 ) IT was the contention of learned Senior counsel appearing before the learned Single judge that on a complaint having been filed by the prosecutrix on 24. 2. 1996, it was registered as a case in Crime No. 17 of 1996 under Section 376 IPC read with Section 3 of S. Cs and STs. (Prevention of Atrocities) act (For short "the Act"), but, however, the investigation was not conducted by the police officer not below the rank of Dy. Superintendent of Police as required under rule 7 of the S. Cs and S. Ts. (Prevention of Atrocities) act (For short "the Act"), but, however, the investigation was not conducted by the police officer not below the rank of Dy. Superintendent of Police as required under rule 7 of the S. Cs and S. Ts. (Prevention of atrocities) Rules and therefore the entire investigation and consequently the prosecution proceedings get vitiated in its entirety. Taking into consideration the above contention and with reference to the principle laid down by the Division bench in Viswanadhula Chittibabu s case (supra), the learned Judge had made an exercise to refer the matter to the Division bench. ( 7 ) ON a query raised by this Court as to under what circumstances a reference to be made to the Division Bench, the learned senior Counsel Mr. C. Padmanabha Reddy appearing for the appellant/accused submitted that usually the decision of the division Bench is binding on the learned single Judge, but however if he entertains any doubt as to the correctness of the judgment of the Division Bench with reference to the decided cases of the Higher courts, it may be open for him to refer the matter to the learned Chief Justice, who in turn may refer the same to the Bench of appropriate strength. ( 8 ) IN Tribhovandas v. Ratilal, AIR 1968 SC 372 (2), the Supreme Court observed that a single Judge of a High Court is ordinarily bound to accept as correct judgments of courts of co-ordinate jurisdiction and of division Benches and of the Full Benches of this Court and of the Supreme Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law. The supreme Court after referring to the decision in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 sc 83 and some other cases observed as follows:"when it appears to a Single Judge or a division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a Special or Full bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice, no authority of the Constitution or of the charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the chief Justice. A Single Judge does not by himself refer the matter to the Full Bench; he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer to the case; that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by judges of that Court on the ground of some alleged irregularity in the Constitution of the Full Bench". ( 9 ) IN the Full Bench judgment of Gujarat high Court in "state of Gujarat v. Gordhandas"-AIR 1962 Guj. 128 (FB) (3), it was reiterated that the judicial decorum, propriety and discipline required that the learned Judge should not ignore the same. ( 9 ) IN the Full Bench judgment of Gujarat high Court in "state of Gujarat v. Gordhandas"-AIR 1962 Guj. 128 (FB) (3), it was reiterated that the judicial decorum, propriety and discipline required that the learned Judge should not ignore the same. It was further observed that our system of administration of justice aims at certainty in the law and that can be achieved only if judges do not ignore decisions by Courts of co-ordinate authority or of superior authority. Gajendra Gadkar, Chief Justice, observed in Bhagwan v. Ram Chand, AIR 1965 SC 1767 , as follows:"it is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single judge hearing a matter is inclined to take the view that the earlier decisions of the high Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a Larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. In considering whether a precedent of a court of co-ordinate authority is binding, reference to Section 165 of the Evidence act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved. But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case". ( 10 ) IN "f. C. I v. Yadav Engineer and contractor" AIR 1982 SC 1302 (4) in paragraph 14 it is observed as follows;". . . . . . . . It may be pointed out here that the division Bench decision of the Madhya pradesh High Court which was in terms binding on the learned Judge of the High court, and it was specifically submitted to us that even though the attention of the learned Judge was invited, he neither referred to it nor distinguished it. . . . . It may be pointed out here that the division Bench decision of the Madhya pradesh High Court which was in terms binding on the learned Judge of the High court, and it was specifically submitted to us that even though the attention of the learned Judge was invited, he neither referred to it nor distinguished it. Times without number this Court has observed that considerations of judicial propriety and decorum require that if a learned Single judge hearing a matter is inclined to take the view contrary to the earlier decision of a division Bench of the same High Court, it would be judicial impropriety to ignore that decision but after referring to the binding decision he may direct that the papers be placed before the Chief Justice of the High court to enable him to constitute a Larger bench to examine the question. Judicial comity demands that a binding decision to which attention has been drawn should neither be ignored nor overlooked (Refer air 1960 SC 936 ), AIR 1965 SC 1767 , 1970-2 scr 875)" ( 11 ) IN "government of Andhra Pradesh v. B. Satyanarayana Rao", 2000 (3) S 715 (5), a contention was sought to be raised as to whether the learned Single Judge has to ignore the principles decided by the division Bench. While dealing with this matter the Supreme Court observed as follows:"learned Counsel for the respondent attempted to convince us that the decision in the case of State of A. P v. V. Sadanandam, air 1989 SC 2060 = 1989 Lab ic 2024) (supra) has to be ignored on the principle of per incuriam as certain relevant provisions of the rules were not considered in the said case, and in any case this case requires to be referred to a Larger Bench of three Judges. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. This is not the case here. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. This is not the case here. In State of A. P. v. V. Sadanandam (supra) the controversy was exactly the same as it is here and this Court after considering Paragraph 5 of the presidential Order of 1975 held that the government has power to fill a vacancy in a zone by transfer. We therefore, find that rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a Larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another co-ordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. We, therefore, reject the arguments of learned Counsel for the respondents. " (emphasis supplied ). ( 12 ) KEEPING in view the aforesaid principles it has to be considered whether the reference as made by the learned Single Judge conforms to the principles laid down by the supreme Court. As held by the Supreme court a decision of the Division Bench is binding on the learned Single Judge unless it is demonstrated by any subsequent change in law or decision ceases to laying down a correct law. But this situation is not present in this case. Moreover, we find that there is any amount of difference on factual matrix. ( 13 ) IN the instant case the complaint was registered under Section 376 IPC read with section 3 of the Act. But, however, investigation was taken up by the police officer below the rank of Deputy superintendent of Police and charge-sheet was filed under Section 376 IPC and cognizance was taken by the learned Trial judge only under Section 376 IPC but not under Section 3 of the Act. In the case referred to by the learned Single Judge namely Viswanadhula Chittibabu (supra), the charge-sheet itself was filed under section 3 of the Act and investigation was conducted and charges were also farmed. In that regard it was found that when the officer below the rant of dy. In the case referred to by the learned Single Judge namely Viswanadhula Chittibabu (supra), the charge-sheet itself was filed under section 3 of the Act and investigation was conducted and charges were also farmed. In that regard it was found that when the officer below the rant of dy. Superintendent of Police conducted the investigation the entire proceedings were declared as vitiated. In the instant case we are not faced with such a situation. The primary fact requires to be taken note of is that cognizance was taken only under section 376 IPC and there is no reference to section 3 of the Act. Merely because the complaint was registered under Section 376 ipc read with Section 3 of the Act, it is not necessary that the investigation should be commenced by the officer below the rank of Dy. Superintendent of Police. It is only when the charge-sheet is filed under section 3 of the Act and also cognizance is taken under the said Act, then the question would arise as to the competence of the Investigating Officer. But in the present case neither the charge-sheet was filed nor the cognizance was taken under Section 3 of the Act and the cognizance was only taken under Section 376 IPC, were are of the considered view that the reference need not be answered as the factual foundation is quite different in this case as compared to Viswanadhula Chittibabu s case (supra ). ( 14 ) IT is also observed that the learned single Judge opining that the questions being some general importance could be referred to the appropriate Bench. Merely because the matter is of general importance that need not be a matter for reference. The Supreme Court has clearly observed that the learned Single Judge can only direct the placing of papers before the Chief justice, if he is of the opinion that the said decision referred by him requires reconsideration in view of subsequent changes in law or decisions. In view of this we find that the very reference made by the learned Single Judge proceeds diametrically in opposite direction to the principle laid down by the Supreme Court. In view of this we find that the very reference made by the learned Single Judge proceeds diametrically in opposite direction to the principle laid down by the Supreme Court. Even otherwise we are of the considered view that the decision rendered by the Division Bench is in conformity with the principles laid down by the Supreme Court In these circumstances, we find that the questions do not call for any decision" 2. The relevant portion of the order of reference by this Court dated 10. 8. 2004 is as hereunder: "it is no doubt true that the crime was registered under Section 3 of the S. Cs and s. Ts. (Prevention of Atrocities Act), 1989 apart from Section 376 (g) of IPC. It is also not in controversy that the investigation was done by the Sub-Inspector of Police and continued and charge-sheet was laid by the circle Inspector of Police. Rule 7 of the SCs. and STs (Prevention of Atrocities) Rules, 1995 ready as hereunder: "rule 7: Investigating Officer : (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of police. The Investigating Officer shall be appointed by the State Government, Director general of Police Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. 2. The Investigating Officer so appointed under sub-rule 1 shall complete the investigation on top priority within thirty days and submit the report to the superintendent of Police who in turn will immediately forward the report to the Director general of Police of the State Government. 3 The Home Secretary and the Social welfare Secretary to the State Government, director of Prosecution the Officer-in- charge of Prosecution and the Director general of Police shall review by the end of every quarter the position of all investigations done by the Investigating officer. It is also not in controversy that in view of this Rule 7, the investigation into the offences falling under the Act to be conducted by an officer not below the rank of Deputy Superintendent of Police. (a) In D. Ramalinga Reddy @ D. Babu v. State of A. P. , 1999 (2) ALD (Crl) 436 = 1999 crl. It is also not in controversy that in view of this Rule 7, the investigation into the offences falling under the Act to be conducted by an officer not below the rank of Deputy Superintendent of Police. (a) In D. Ramalinga Reddy @ D. Babu v. State of A. P. , 1999 (2) ALD (Crl) 436 = 1999 crl. LJ 2918, it was held that investigation conducted by the Sub-Inspector of police and not by the officer envisaged under Rule 7 of the Rules, vitiates the trial and on that basis set aside the conviction of the appellant and acquitted him for the charge under Section 3 (1) (xi) of the Act. (b) Reliance was also placed on viswanadhula Chittibabu v. State of A. P. , 2002 (2) ALD (Crl.) 206, wherein the same view is expressed that:"investigation conducted by Sub-Inspector of Police suffers from inherent defect in complying with the mandatory procedural safeguard resulting in prejudice to accused and hence, trial is vitiated". This decision was rendered on a reference made by a learned Single Judge of this court. In the present case on the material available on record, the facts appear to be a bit peculiar. Except registering the case under Section 3 of SC and ST (Prevention of Atrocities) Act, 1989 also, nothing else had been done and the specific version of the prosecution is that inasmuch as PW1 is a converted Christian, evidently the investigating agency thought of filing the charge-sheet under Section 376 (g) IPC only. Section 2 (h) Cr. PC defines investigation as "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. (c) In Roopchand Lal v. State of Bihar, AIR 1968 SC 117 , at Paragraph 18 it was held that:"it has already been pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. " (d) In The State of Madhya Pradesh v. Mubarak A1i, AIR 1959 SC 707 , while dealing with steps involved in investigation at paragraph 7 it was held that:"in this view no other question arises for consideration. But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the magistrate was obtained ten days after the investigation was started was wrong, it would be as well that we considered the argument briefly. Section 4 (1) of the Code of criminal Procedure defines "investigation" as to include all the proceedings under that code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorized by the Magistrate in this behalf. Chapter XIV of the Code prescribes the procedure for investigation. Investigation starts after the police officer receives information in regard to an offence. Under the Code "investigation consists generally of the following steps: (1) proceeding to the spot; (ii) ascertainment of the fact and the circumstance of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consists of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit; (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. "- See 1955-1 SCR 1150 = (S) AIR 1955 sc 196 (supra)". This decision was rendered by a three Judge bench of the Apex Court. "- See 1955-1 SCR 1150 = (S) AIR 1955 sc 196 (supra)". This decision was rendered by a three Judge bench of the Apex Court. (e) In H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 , two Judge Bench while dealing with illegality in investigation and the report of police officer based on such investigation and taking cognizance of such report and the effect on trial, observed that:"a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Criminal P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Criminal PC is one out of a group of sections under the heading "conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i. e. , Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of. Section 190 (1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, criminal PC is attracted". (f) In Munnala v. State of Uttar Pradesh, air 1964 SC 28 , a three Judge Bench while dealing with Section 5a of Prevention of corruption Act, 1947 observed that"the provision is mandatory and the investigation in violation of the provision is illegal and the trial is however not vitiated in absence of miscarriage of justice". (g) In Bhanuprasad Hari Prasad Dave v. State of Gujarat, AIR 1968 SC 1323 . (g) In Bhanuprasad Hari Prasad Dave v. State of Gujarat, AIR 1968 SC 1323 . A three Judge Bench of the Apex Court while dealing with offence under Section 5a, prevention of Corruption Act held that, "illegal investigation does not render statements recorded therein by police officer as illegal and the investigation made by a deputy Superintendent of Police and fresh investigation by Superintendent of Police- statements recorded earlier by Deputy superintendent of Police fall under sections 161 and 162, Criminal PC.- Witnesses resiling from such statements can be cross- examined. (h) In Jagannadhan v. State, 1983 Crl. LJ 1748, it was held that "once a case is taken cognizance of by a competent Court and the proceedings of the case has commenced, the mere antecedent illegality or irregularity in the investigation, on the basis of which the final report has been filed, will not invalidate or vitiate the proceedings unless it is shown that prejudice has been caused thereby to the accused or any miscarriage of justice has resulted thereby. Hence the illegal investigation conducted beyond the prescribed period of six months, without the order of the Magistrate, would not vitiate the taking cognizance of the offence and the subsequent proceedings. " (i) It is no doubt true that two Judge Bench of the Apex Court in Chandrakant v. State of Maharashtra, AIR 1974 SC 220 , it was observed that "the benefit of highly defective investigation cannot go to the prosecution. " (j) In the light of State v. Mainabai, AIR 1962 Bombay 202, while dealing with suppression of immoral traffic in Women and grils Act 1956 it was held that"investigation was done by officer having no authority-Jurisdiction of Magistrate is not affected-Result of trial not vitiated unless prejudice is caused to accused". 17. No doubt, on the strength of the decisions rendered by the Division Bench of this Court in Viswanadhula Chittibabu v. State of A. P. (supra) which in fact was delivered on a reference made by the learned single Judge, arguments had been advanced at length by the Counsel representing the appellant-accused No. 1. Except registering the case under Section 3 of SCs. and STs. Except registering the case under Section 3 of SCs. and STs. (Prevention of Atrocities Act), it appears nothing more had been done and despite the same submissions at length were made that this may have to be taken as causing serious prejudice, in view of the fact that rule 7 of SC and ST (Prevention of Atrocities rules) aforesaid, may have to be taken as mandatory. 18. In the light of the foregoing discussion and also especially in the light of the decisions of the Apex Court referred to supra and the views expressed especially in the light of the fact that trial was only commenced after investigation and investigation is only an administrative act and the trial is a judicial act, it is highly doubtful whether the mere registration of crime and nothing beyond it under the specified enactment of SCs. and STs. (Prevention of Atrocities) Act, 1989, it cannot be said that prejudice was caused. Inasmuch as on reference by the learned judge of this Court, the Division Bench had decided in relation to the interpretation of Rule 7 which is direct on the point. But however, in the light of the decisions referred to supra, delivered by the Apex court, which hold the field even to this day, this Court is of the considered opinion that the questions of law of general importance may have to be decided by appropriate Bench. 19. In the light of the facts and circumstances referred to supra and in view of Viswanadhula Chittibabu v. State of A. P. , 2002 (2) ALD (Crl) 206, this Court is inclined to refer the matter to appropriate bench to decide the following questions: (1) Whether the decision in Viswanadhula chittibabu v. State of A. P. , 2002 (2) ALD (Crl) 206, requires reconsideration in view of the decisions in H. N. Rishbud v. State of Delhi, AIR 1955 SCC 196, munnala v. State of Uttar Pradesh, AIR 1964 SC 208 and Bhanuprasad Hari prasad Dave v. State of Gujarat, AIR 1968 SC 1323 ? (2) Whether in the facts and circumstances of the case can it be said that prejudice was caused to the accused in the light of the investigation conducted by investigating agency below the rank of deputy Superintendent of Police?" the learned Judges of the Division Bench opined that the decision in Viswanadhula chittiy v. State of A. P. , 2002 (2) ALD (Crl) 206, is distinguishable on facts and their Lordships are of the considered view that the reference need not be answered as the factual foundation is quite different in this case as compared to the said decision. Judicial discipline requires that when a learned Single Judge made reference and their Lordships of the Division Bench expressed certain views, it is needless to say that the learned Single Judge is bound by the views expressed by the Division bench and in the light of the views expressed by the learned Judges referred to supra, I now proceed to decide the matter. 3. Factual backdrop: The appellant- accused No. l filed the present criminal appeal, aggrieved by the judgment dated 27. 12. 1997, in Sessions Case No. 928 of 1996 on the file of Sessions Judge, Karimnagar, wherein the learned Sessions Judge, convicted him under Section 235 (2) Cr. PC for the offence under Section 376 (1) IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year. 4. It is the case of the prosecution that PW1 Dasandla Sathawa, aged about 16 years and PW2 Dasandla Rajaiah are the daughter and son of PW7 and pochamma and residents of Rechapalli village. Accused 1 and 2 are also the residents of Rechapalli Village. While so, on 21. 2. 1996, when Dasandla Sathawa (PW1) was returning home and reached the cattle shed of one Medipalli Butchamma, cattle came opposite to her. When she tried to escape from the cattle, she went inside the cattle shed of the said Butchamma. At that time, A1 and A2 were present there. A1 dragged PW1 into the cattle shed, gagged her mouth with a cloth and committed rape on her. At that time, A2 closed the gate and kept watch. It is also the case of the prosecution that PWs. At that time, A1 and A2 were present there. A1 dragged PW1 into the cattle shed, gagged her mouth with a cloth and committed rape on her. At that time, A2 closed the gate and kept watch. It is also the case of the prosecution that PWs. 3 and 4 witnessed while A1 dragging the PW1 into the cattle shed and informed to PW2, who is the brother of PW1, about the incident and then, all of them rushed to the scene of offence-cattle shed and on seeing them, A-2, who was guarding the scene of offence, ran away and then they went to the back side of the cattle shed and found A1 lying on PW1. Immediately, on seeing the witnesses, A-1 ran away from the scene of offence. It is the further case of the prosecution that on 22. 2. 1996 at request of pw7 father of PW1, the village elders conducted Panchayat about the incident happened on 21. 2. 1996. The village elders discussed the matter at the time of panchayat and advised PW7, to go to the police Station. Accordingly, on 24. 2. 1996 at about 3. 00 p. m. , PW1 reported the incident happened on 21. 2. 1996, to the Sub- inspector of Police, Sarangapur, who in turn registered the same as a case in crime No. 17 of 1996, under Section 376 ipc and Section 3 of SCs. and STs. (Prevention of Atrocities) Act, 1989 (for short the Act ) and issued First Information report to all the concerned. During the course of investigation, the Sub-Inspector of Police visited the scene of offence, examined the witnesses and recorded their statements and seized three bangle pieces of PW1 at the scene of offence in the presence of PWs. 9 and 10, under a cover of scene of offence Panchanama. PW1 was referred to the Government Civil hospital, Jagityal, where a Lady Medical officer examined her and issued certificate opining that the victim may or may not have sexually assaulted. PW11-Inspector of Police had taken up further investigation and arrested A1 and A2 at Rechapalli and referred A1 to Government Civil Hospital, jagityal for his potency test. The Medical officer examined A1 and gave certificate opining that A1 is potent to perform sexual act. Thereafter, A1 and A2 were remanded to Judicial custody. PW11-Inspector of Police had taken up further investigation and arrested A1 and A2 at Rechapalli and referred A1 to Government Civil Hospital, jagityal for his potency test. The Medical officer examined A1 and gave certificate opining that A1 is potent to perform sexual act. Thereafter, A1 and A2 were remanded to Judicial custody. After completion of investigation, the police had filed the chargesheet into the Court. Learned Judicial magistrate of First Class, Jagityal, on receipt of the charge-sheet numbered the same as prc No. 110 of 1996 under Section 376 (2) (g) ipc against A1 and A2 and committed the said case to the Court of Sessions, karimnagar. 5. The prosecution had examined pws. 1 to 13 and got marked Exs. P1 to P17 and M. O. I. On behalf of the defence, dw1 was examined. On appreciation of both oral and documentary evidence available on record, the learned Sessions Judge convicted A1 and sentenced him as aforesaid, but, however recorded acquittal as far as A2 is concerned. Aggrieved by the same, the appellant A1 preferred the present appeal. 6. Submissions of Sri Praveen kumar: Sri C. Praveen Kumar, learned counsel representing the appellant-A1 would submit that PW2, the brother of PW1, was declared hostile. PW3 who is an alleged eye-witness and also PWs. 9 and 10 are the panch witnesses. PW8 is the Upa sarpanch who said to have conducted the mediation also had been declared hostile. The learned Counsel also would point out that from the evidence of PWs. 1, 3 and 4 and in view of the variations, the very happening of the incident is doubtful. The learned Counsel also would point out that since the scene of offence is surrounded by the houses and it is highly unnatural and definitely not believable that the incident would have taken place as alleged by the prosecution. The learned Counsel also had drawn the attention of this Court to the evidence of PW5-doctor and in the light of the medical evidence also, it is doubtful whether the alleged offence was committed by the appellant-A1. The learned Counsel also had pointed out the evidence of PW7, who had stated that his daughter was unmarried at that point of time. But the evidence of PW5-doctor is to the effect that she is habituated to the sexual intercourse at least one or two years prior to her examination. The learned Counsel also had pointed out the evidence of PW7, who had stated that his daughter was unmarried at that point of time. But the evidence of PW5-doctor is to the effect that she is habituated to the sexual intercourse at least one or two years prior to her examination. In the alternative the learned Counsel also would submit that there are absolutely no injuries on the person of PW1 prosecutrix and that though it was shown that the age of the victim girl would be 16 years, absolutely, there is no evidence in this regard, and that in the light of the peculiar facts and circumstances, it can be inferred that PW1 is a consenting party and on seeking some gathering, she would have changed her version, ultimately leading to the present prosecution. The learned Counsel also had pointed out about the inconsistent versions of PWs. 3 and 4 and the conduct of A2 also in not alerting, which is highly unnatural. The learned counsel had also canvassed that in view of rule 7 of the Act, the very investigation is illegal and hence, the whole trial is vitiated. The learned Counsel would submit that the very registration of the crime under section 3 of the Act, apart from the other offence under the Indian Penal Code would be sufficient to attract the mandatory provision i. e. , Rule 7 of the Rules framed under the Act and when the investigation is conducted by officers below the rank of deputy Superintendent of Police, the whole investigation is vitiated and consequently, the trial is also vitiated and on that ground the appellant-A1 is entitled for acquittal. It is the further contention of the learned counsel that there is delay in reporting the matter to the police. In support of his contentions, the learned Counsel placed reliance on M. Niranjan Reddy v. State of a. P. , 2000 (1) ALD (Crl) 762 (AP ). The learned Counsel also placed strong reliance on Suresh N. Bhusare and others v. State of Maharashtra, 1998 (2) ALD (Crl.) 522 (SC ). The Counsel also would contend that even otherwise in view of the medical evidence it is highly doubtful whether the ingredients of Section 376 IPC as such are satisfied in the present case. The Counsel also pointed out several other evidentiary details. 7. The Counsel also would contend that even otherwise in view of the medical evidence it is highly doubtful whether the ingredients of Section 376 IPC as such are satisfied in the present case. The Counsel also pointed out several other evidentiary details. 7. Submissions of Additional Public prosecutor: On the other hand, the learned Additional Public Prosecutor would submit that it is no doubt true that the crime was initially registered under Section 3 of the Act and under Section 376 (2) (g) of ipc. He submits that though the investigation was conducted by the Sub-Inspector of police, subsequent there to, the same was continued by the Inspector of Police and he laid charge-sheet. However, the learned additional Public Prosecutor would also submit that the trial commences only after taking cognizance and after investigation, the trial in a case is judicial whereas investigation is only administrative. The learned Additional Public Prosecutor would submit that when the cognizance is taken by the Court and the trial is conducted in accordance with law, it cannot be said that the whole trial is vitiated on the ground that either defective investigation or some illegality in conducting investigation, and that since the trial would commence after the offences are taken cognizance by the court and the prior aspects relating to investigation may not vitiate the trial, unless it is shown that prejudice had been caused to the accused. The learned Additional public Prosecutor would further submit that in the present case except registering the case under Section 3 of the Act and section 376 (2) (g) IPC, nothing more had been done by the Investigating Officer and that the whole investigation was completed and charge-sheet was laid only under Section 376 (2) IPC. He further urged that evidently, for the reason that PW1 is a converted christian, the said Act had no application and it is not a case where the whole trial was conducted in relation to the said offence and findings had been recorded. The learned Additional Public Prosecutor would submit that the reasons in detail had been recorded by the learned Sessions Judge as to why PW2 had not supported the version of the prosecution and that at least the evidence of PW1 and PW4 is available on record though PW3 was declared hostile and though PW3 also supported the version of the prosecution to some extent. The learned Additional Public Prosecutor would also submit that the evidence of PW7 also would lend support to the version of the prosecution. The learned Additional Public prosecutor also would submit that in the light of the evidence of the Investigating officer, the very fact that the Panch witnesses were declared hostile may not be of serious consequences and that in the light of the clear evidence available on record, definitely it cannot be said that PW1 is a consenting party and by mere absence of the injuries, such consent cannot be inferred. The learned Additional Public prosecutor would also submit that if the evidence of PW1 is believed, conviction can be sustained on the strength of evidence of pw1. The learned Additional Public prosecutor also explained about the delay and had taken this Court through the evidence of PWs. 1 to 7 in this regard. In support of his contentions, the learned additional Public Prosecutor had also placed reliance on State of Maharashtra v. Chandra Prakash Kewal Chand Jain, air 1990 SC 658 and State of Rajasthan v. N. K. , AIR 2000 SC 1812 . 8. Evidence on record: It is no doubt true that though in the charge, it is specified that the victim-prosecutrix was aged about 16 years, she was shown to be of 18 years on the date of examination. PW1 deposed in her evidence that she is a converted christian and on the date of incident at about 5. 30 p. m. , while she was returning to her house from the house of her paternal aunt and reached the hut of Medipalli buchamma, the cattle were going and that she was passing adjacent to the Kottam of medipalli Buchamma in order to allow the cattle to pass through, she found A1 and a2 in the cattle shed and A1 caught hold of her left hand and dragged her into the hut of Medipalli Buchamma. She further deposed that A1 gagged her mouth with a cloth preventing her from raising cries and that A1 took her to the back side of the cattle shed of Medipalli Buchamma and that he pushed her down and committed rape on her. She further deposed that A1 gagged her mouth with a cloth preventing her from raising cries and that A1 took her to the back side of the cattle shed of Medipalli Buchamma and that he pushed her down and committed rape on her. She further deposed that A2 closed the gate of the cattle-shed of medipalli Buchamma and was guarding at the gate preventing others to come inside and while A-1 committing rape on her, her brother PW2, Rajaiah (PW3) and Narasiah (PW4) came there and witnessed A1 the offence and that on seeing PWs. 2 to 4, the accused ran away. She also deposed that she narrated the incident to them. Further she deposed that her bangles were also broken at the scene of offence. She also deposed that she narrated the incident to her parents and that a Panchayat was convened in the presence of village elders where they advised her father-PW7 to receive Rs. 25,000/- from A1 for which her father did not agree. She also deposed that her father PW7 insisted A1 to marry her for which A1 did not agree. She further deposed that on the fourth day of the incident, they went to Sarangapur Police station and gave a report to the police and that she had affixed her thumb impression on Ex. P1 Report. She further deposed that the police referred her to the Government hospital, Jagtial, where the Lady Medical officer, examined her and referred to kakatiya Medical College to the Professor of Forensic Medicines for examination. She also deposed that she was present at the time of Sub-Inspector of Police inspecting the scene of offence and that time, the sub-Inspector of Police seized the broken bangles, which are marked as M. O. I. She also deposed that the learned Munsif magistrate, Metpalli recorded her statement under Section 164 Cr. PC with regard to the incident. During the course of cross- examination, PW1 denied the suggestion that pws. 2 to 4 had not witnessed while A1 committing rape on her. She denied the suggestion that the scene of offence is visible to the villagers. It is also denied by her that she did not narrate the incident to pws. 2 to 4. During the course of cross- examination, PW1 denied the suggestion that pws. 2 to 4 had not witnessed while A1 committing rape on her. She denied the suggestion that the scene of offence is visible to the villagers. It is also denied by her that she did not narrate the incident to pws. 2 to 4. She also denied the suggestion put to her that due to the grudges between a1 and PW2, as A1 was supporting the wife of PW2 in a dispute between PW2 and his wife, this case was foisted against a1. 9. PW2, who is the brother of PW1 had not supported the version of the prosecution and he was declared hostile. During the course of cross-examination, he admitted that he is an accused in a murder case relating to murder of one duda Rajaiah of Battepalli Potharam village and that his wife (PW2 s wife) initiated prosecution against him. He denied the suggestion that he had received rs. 50,000/- from A1 promising that the said case would be compromised. He also admitted that he beat his father. PW2 admitted that he had taken PWs. 1 and 3 to the defence Counsel about three days back. He further stated that A1 promised him that he will help in a criminal case initiated against him by his wife, which is pending on the file of Judicial Magistrate of I Class, jagital. No doubt, he denied the suggestion that he had compelled PW1 not to depose against A1 with regard to the rape and he also threatened PW1 that her husband would give divorce to her in case the rape incident was known to him. It is no doubt true that pw2 is the brother of PW1, but the reasons are obvious as to why this witness had not supported the version of prosecution. 10. PWs. 3 and 4 who are said to be the eye-witnesses to the incident, did not support the case of prosecution and turned hostile. Though certain variations were pointed out in between the evidence of pws. 3 and 4, the incident as such had been narrated by both of them to some extent, though they declared hostile. It is needless to say that the evidence of the hostile witnesses need not be totally discarded. Though certain variations were pointed out in between the evidence of pws. 3 and 4, the incident as such had been narrated by both of them to some extent, though they declared hostile. It is needless to say that the evidence of the hostile witnesses need not be totally discarded. Hence in that view of the matter, the incident which actually happened on the fateful day, had been deposed by both PWs. 3 and 4. Certain minor variations and the alleged inconsistent versions in between PWs. 3 and 4 had been pointed out by the learned Counsel for the appellant-A1. It is needless to say that if the evidence of PW1- prosecutrix is trustworthy and believable, the other corroborating evidence may not be necessary. No doubt, some comment was made that pw4 is related and hence PW4 supported the version of the prosecution. Merely because a witness is a relative, the evidence may have to be scrutinized with care and caution and the same need not be discarded. 11. PW5-doctor, who had examined pw1, no doubt had recorded that she did not find any injuries on her private parts. She deposed that on 24. 2. 1996 at about 7. 40 p. m. , she examined PW1 and that pw1 stated before her that she has been habituated to sexual intercourse for the past one year. PW5 further deposed that she sent vaginal swabs to the chemical analysis and that after receipt of FSL report ex. P10, she issued Ex. P8 and P9, which are preliminary certificate and final opinion respectively. She also deposed that she was not able to give any opinion whether pw1 was sexually assaulted. 12. PW6-doctor, who examined the A1, had deposed in his evidence that on 29. 2. 1996, he examined A1 and opined that a1 is capable of performing sexual act. He issued Ex. P11 requisition-cum-certificate in this regard. 13. PW7-father of PW1 deposed that on the date of the incident, he went for coolie work and returned home at about 8. 00 p. m. , and by that time, several persons were assembled before his house and witnessed that his wife and PW1 were weeping, and when he questioned them, they narrated the incident to him. He deposed that PW8-Upa Sarpanch, stated to him that he would convene a panchayat and settle the matter. 00 p. m. , and by that time, several persons were assembled before his house and witnessed that his wife and PW1 were weeping, and when he questioned them, they narrated the incident to him. He deposed that PW8-Upa Sarpanch, stated to him that he would convene a panchayat and settle the matter. He further deposed that in that panchayat, the village elders requested him to take Rs. 25,000/- from A1, for which, he rejected and that he insisted A1 to marry pw1, for which A1 did not agree. He deposed that since the village elders expressed their inability to settle the matter, on the fourth day of the incident, he went to sarangapuram Police Station along with pws. 1 and 2 and his wife and then he got lodged a complaint by PW1. During the course of cross-examination, he admitted that he is a converted Christian. No doubt, it was suggested that there was a quarrel between his family and the family of A1 and A2 during Dasara festival in that year and that himself and PW2 beat A1 with an axe and caused injuries. It is pertinent to note that PW2 had not supported the prosecution version even though he is said to be the brother of PW1. PW2 admitted in cross-examination that he beat PW7 also. In the light of the several admissions made by PW2 and in the light of the evidence of pw7, the version of PW7 may have to be believed which is well supporting the version of PW1 as to why there was delay in giving the report to the police. 14. PW8 the Upa Sarpanch, who is said to have conducted the panchayat no doubt was declared hostile. ( 15 ) PWS. 9 and 10-panchayat witnesses were also declared hostile. It is pertinent to note that PW9 has none other than the brother-in-law of PW7. It is also essential to note that PWs. 1 and 2 and 9 were also declared hostile. ( 16 ) PW11 is the Circle-Inspector of police, deposed that he had took up further investigation in this case on 25. 2. 1996 and that he visited the scene of offence and verified the investigation done by the Sub- inspector of Police. He further deposed that he arrested A1 and A2 on 29. 2. 1996, and sent A1 for potency test. 2. 1996 and that he visited the scene of offence and verified the investigation done by the Sub- inspector of Police. He further deposed that he arrested A1 and A2 on 29. 2. 1996, and sent A1 for potency test. Thereafter, he sent both the accused for judicial custody. After completion of investigation, he laid charge-sheet. ( 17 ) PW12 deposed that he worked as judicial Magistrate of I Class, Metpalli at the time of proceedings of this case and that on 22. 3. 1996 he recorded the statements of PWs. l to 4 under Section 164 Cr. PC which are marked as Ex. P13, P14 and P15 respectively. PW12 no doubt was examined and deposed that he worked as Judicial i Class Magistrate, Metpalli and received requisition on 18. 3. 1996 from Sub-Inspector of Police for recording statements of pws. 1 to 4 under Section 164 Cr. PC. This witness deposed about recording of exs. P3, P13, P14, and P15 statements of the above witnesses under Section 164 cr. PC. ( 18 ) PW13- Sub-Inspector of Police deposed in his evidence that on 24. 2. 1996, he received a written report from PW1 and registered the same as a case in Crime no. 17 of 1996 under Section 376 (g) IPC and issued Ex. P16-FIR and submitted the copies to all the concerned. He further deposed that he recorded the statement of pw1 and visited the scene of offence and conducted Panchanama in the presence of pws. 9 and 10, on the same day and that time, he seized M. O. 1 under the cover of panchanama-Ex. P17. He deposed that he recorded the statements of the witnesses under Section 161 Cr. PC. He further deposed that on 25. 2. 1996, he referred PW1 to the Government Hospital. He further deposed about the further investigation conducted by the Circle Inspector of police. This witness also deposed that he filed requisition before the Judicial I Class magistrate, Metpalli to record the statements of PWs. 1 to 4 under Section 164 Cr. PC. He further deposed that PWs. 2, 3 and 8 stated before him as in Exs. P2, P4, p6 and P12 are the Section 164 Cr. PC statements. This witness was cross- examined. 1 to 4 under Section 164 Cr. PC. He further deposed that PWs. 2, 3 and 8 stated before him as in Exs. P2, P4, p6 and P12 are the Section 164 Cr. PC statements. This witness was cross- examined. ( 19 ) ON the material available on record and on appreciation of the same, the learned Sessions Judge recorded findings in detail and arrived at a conclusion that A2 is entitled for an acquittal, but convicted A1 only under Section 376 (1) IPC and sentenced him to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year and further directed that out of the fine amount collected, a sum of Rs. 4,000/- to be paid to pw1 under Section 357 (1) (b) Cr. PC after the expiry of the appeal period. In the decision referred in Suresh N. Bhusare and others v. State of Maharashtra (supra) while dealing with evidence and proof where the conduct of victim is not consistent with her case of rape and no injuries on her body in spite of her version that the accused dragged her into his shop to rape her and her evidence otherwise also suffers from several infirmities and also not corroborated by medical evidence, it was held that she appears to be a consenting party and the conviction cannot be sustained. ( 20 ) IN the present case, PW1 in detail had deposed about what happened on the fateful day. Submissions at length were made in relation to the presumption available in such a case under Section 114-A of indian Evidence Act, 1872. It is pertinent to note that acquittal had been recorded so far as it relates to A2 is concerned. The crime no doubt was registered under Section 3 of the Act apart from Section 376 (2) (g) IPC and there is no doubt that the investigation was done by the Inspector of Police and the charge-sheet was filed by the Circle inspector of Police. In the light of the view expressed by the Division Bench referred to supra, this Court may have to decide on facts whether prejudice had been caused in the present case to the accused. In the light of the view expressed by the Division Bench referred to supra, this Court may have to decide on facts whether prejudice had been caused in the present case to the accused. Though the crime was registered even under Section 3 of the Act, it is pertinent to note that the charge-sheet was filed under the offence under Indian Penal code only. Hence this Court is of the considered opinion that due to the said investigation and the filing of the charge- sheet by the Police Official referred to supra, no prejudice as such is caused to the appellant/a1. ( 21 ) THE evidence of PW1 was discussed in detail. PW7 deposed about the panchayat and the village elders requesting him to take Rs. 25,000/- from A1 for which he rejected and insisted A1 to marry PW1 and A1 did not agree. The delay caused in the circumstances also had been explained. It is no doubt true that submissions at length were made that the absence of injuries on the private parts of pw1 and also the absence of any resistance whatsoever would be suggestive of consent. PW1 had taken a specific stand and apart from this the presumption under Section 114-A of. the Indian evidence Act, 1872 also is available in this regard. No doubt PW5 specifically deposed that she was not able to give any opinion whether PW1 was sexually assaulted. It is also essential to note that acquittal was recorded as against A2. Hence in the light of the evidence of PW1 and also the evidence of PW5 and taking into consideration the evidence of PW7 this court is of the considered opinion that on facts an offence under Section 376 read with Section 511 IPC had been established. ( 22 ) HENCE, for the reasons recorded above, the appellant/a1 is convicted under section 376 read with Section 511 IPC and sentenced to under rigorous imprisonment for a period of 3 years and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for a period of one year and the further direction that out of the fine amount collected a sum of Rs. 4,000/- to be paid to PW1 is hereby confirmed. Accordingly, the criminal appeal is partly allowed to the extent indicated above. It is needless to say that the appellant to serve the rest of the sentence.