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2004 DIGILAW 859 (AP)

Cheema Rama Rao v. State Of A. P.

2004-08-17

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) THE appellant/accused is charged with the offence under Section 376 (2) (f) IPC but was convicted under section 376 (2) (f) IPC read with Section 511 ipc and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment for one year, in SC no. 360/96 on the file of Assistant Sessions judge, Khammam. ( 2 ) BEFORE further proceeding with the matter, it may be appropriate to have a look at the relevant provisions. Section 376 (2) (f) ipc reads as hereunder :"whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: provided that the Court may, for the adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. "section 511 IPC reads as hereunder : punishment for attempting to commit offence punishable with imprisonment for life or other imprisonment: Whoever attempts to commit an offence punishable by this code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life, or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. ( 3 ) THE case of the prosecution is that on 26-2-1996 at 2 p. m. , in Mujjugudem village the appellant/accused committed rape on PW-2 who is aged about 10 years. PW-1 is the father and PW-3 is the mother of PW-2. PW-2 is, having a younger brother and sister who are twins. PW-1 works at kiran Gas Agencies, Khammam and PW-3 attends to agricultural work. It is the version of the prosecution that the house of the appellant/accused is adjacent to the house of PW-1 to PW-3. PW-1 is the father and PW-3 is the mother of PW-2. PW-2 is, having a younger brother and sister who are twins. PW-1 works at kiran Gas Agencies, Khammam and PW-3 attends to agricultural work. It is the version of the prosecution that the house of the appellant/accused is adjacent to the house of PW-1 to PW-3. On 26-2-1996 at about 2 p. m. , when the parents of PW-2 were absent on their avocation and PW-2 was playing with her brother and sister, the appellant/accused called PW-2 to his house offering biscuits and chocolates and after pw-2 entered the house, the appellant/ accused closed the door, bolted inside, removed his clothes, fell on PW-2 removed her drawer, opened her jacket, inserted his penis into her vagina and committed rape and PW-2 who was unable to bear the pain raised cries. On hearing the cries of PW-2, pw-4, PW-6, Cheema Babu and Cheema bharathi came and knocked at the door from outside and the accused got up from pw-2 and asked her to wear clothes and opened the door. PW-5, a farm servant of pw-1 to PW-3, also came there and the accused ran away. No doubt this Cheema babu and Cheema Bharathi who are closely related to the appellant/accused were given up and they were not examined. PW-3 returned to the house at 4 p. m. , and PW-2 narrated the incident to PW-3 with a weeping tone and PW-3 informed the same to PW-1, her husband through PW-5 and on intimation given by PW-5, PW-1 came the next morning and he had consulted his cousin PW-7 and after such consultation pw-1 lodged the complaint Ex. P-1. PW-11 registered Crime No. 15/96 and Ex. P15 is the report sent to the Magistrate and the investigation Officer recorded the statements and PW-2, the victim/prosecutrix was examined. PW-10, the Doctor who had examined PW-2, deposed that there are no positive signs of rape. PW-9, another doctor, was examined in relation to the potency test of the appellant/accused. The learned II Additional Judicial First Class magistrate, Khammam had committed the matter PRC. No. 53/96 and after committal the Court of Session made over the same to the Assistant Sessions Judge, Khammam and the learned Assistant Session Judge, khammam on appreciation of evidence of pw-1 to PW-11 and Exs. Pl to P-7 and also ex. D1, portion of Section 161 Cr. No. 53/96 and after committal the Court of Session made over the same to the Assistant Sessions Judge, Khammam and the learned Assistant Session Judge, khammam on appreciation of evidence of pw-1 to PW-11 and Exs. Pl to P-7 and also ex. D1, portion of Section 161 Cr. PC statement of PW-6, ultimately arrived at the conclusion that the appellant/accused is guilty of the offence under Section 376 (2) (f) IPC read with Section 511 IPC. ( 4 ) THE charge framed as against the appellant/accused is as hereunder :"that you accused on or about the day of 26-2-1996 at about 2. 00 p. m. , at your house in Mujjagudem Village committed rape on boddu Nagalaxmi d/o. Kotaiah, aged 10 years, R/o. Mujjagudem (LW-2) a woman under the age of 12 years and that you thereby committed an offence punishable under Section 376 (2) (f) of the Indian Penal code and within the cognizance of the Court of Sessions. "pw-2 is a child witness aged about 12 years on the date of her examination. The learned Judge had put some preliminary questions and PW-1 deposed that she is a resident of Mujjugudem Village and PW-1 is her father and she is aged 12 years and the preliminary questions put by the Court and the answers given thereto by PW2 are as hereunder : question by Court:- Where have you come ? answer:- To the Court. Question :- Why you have come to the Court? answer:- I have come to give evidence. Question:- What happens if evidence is given? answer :- The guilty will be punished with hanging. Question :- What evidence must be given since you say that the guilty will be punishable with death on evidence ? answer :- Truth things must be spoken. Question :- What happens if one speaks false? answer:- The guilty man would not be punished. On the above answers given by PW-2 the learned Judge was of the opinion that the witness was able to understand the questions and was able to give rational answers and in view of her age, no oath was administered. This witness, PW-2, deposed that PW-1 is her father and she calls Nookala Manikyamma as sister and boddu Maisaiah is her paternal uncle and boddu Ramulamma is her paternal grand mother. Cheema Babu is the brother of the accused and Cheema Bharathi is the wife of Cheema Babu. This witness, PW-2, deposed that PW-1 is her father and she calls Nookala Manikyamma as sister and boddu Maisaiah is her paternal uncle and boddu Ramulamma is her paternal grand mother. Cheema Babu is the brother of the accused and Cheema Bharathi is the wife of Cheema Babu. PW-2 had also deposed about her relationship with others and also deposed that the accused resides in a house adjacent to their house and she had stated studied upto 2nd standard and she attends to household work and her mother attends to agricultural work and her father works in a Gas Company at Khammam by residing at Khammam. She also categorically deposed that about two years four months back at about 2 p. m. she was at her house along with her younger brother and sistev who are twins and her mother was away at the fields and at that time the appellant/ accused came to her house and took her to his house saying that he would give biscuits and chocholates and therefore she went to his house and nobody was present at his house at that time and after she entered the house, he closed the door and bolted it from inside and thereafter the appellant/ accused removed his clothes and fell on her. She further deposed that thereafter the appellant/accused removed her drawer and he also opened her jacket and after removing the drawer he inserted his penis into her vagina and committed rape on her and at that time she raised crises since she was feeling pain and she raised loud cries since she was not able to bear the pain and hearing her cries, Manikyamrna, Ramulamma, cheema Babu and Cheema Bharathi came to the house and at that time they were knocking the door and as they were knocking at the door the appellant/accused got up from her and asked her to wear clothes and after she wore her dress, the appellant/ accused opened the door and after opening the door they enquired the appellant/accused about his conduct against PW-2 and in the meanwhile Boddu Maisaiah also came there and on seeing him the appellant/accused ran away. PW-2 further deposed that manikyamma, Maisaiah, Ramulamma, Babu and Bharati enquired her as to what had happened and she narrated them the incident and from there she went to the house. PW-2 further deposed that manikyamma, Maisaiah, Ramulamma, Babu and Bharati enquired her as to what had happened and she narrated them the incident and from there she went to the house. She further deposed that thereafter her mother returned at 4 p. m. , and she narrated the incident to her mother and her mother sent a word to her father through Maisaiah an her father came on the next day after receiving the information and she also narrated the incident to her father who enquired as to what had happened and thereafter her father and senior paternal uncle had well thought over the matter and went to Police Station where her father lodged a report of the incident. PW-2 further deposed that police sent her to Government Hospital, Khammam and recorded her statement and her langa and drawer were seized by the police at the hospital. This witness was cross-examined at length. ( 5 ) THOUGH an attempt was made to shake the credibility of this witness (PW-2), 2004 (2) (Crl.) F-46 no serious infirmities could be traced in the cross-examination. No doubt she had stated in cross-examination that there was bleeding after the intercourse and she also received scratches on her person during the course of the incident and on the strength of it certain submissions were advanced that the medical evidence does not support this exaggerated version and hence after all pw-2 being a child witness, she had been well tutored and hence on the sole testimony of this witness the conviction cannot be sustained. PW-3, the mother of PW-2, deposed that her husband works at Gas company at Khammam and he resides at khammam and she attends to agricultural work. She deposed that she found PW-2 weeping who had narrated the whole incident to her and PW-3 in turn had sent the intimation through PW-5 and her husband pw-1 and on the advise of elders they gave report. PW-5 is yet another crucial witness who had immediately reached the spot and had seen the accused running away from the house and PW-2 at that time was weeping and this witness had passed on the intimation to PW-1 and on the information furnished by PW-5 only PW-1 came to the village on the next day. The evidence of pw-4 and PW-6 also is very crucial. The evidence of pw-4 and PW-6 also is very crucial. PW-4 manikyamma clearly deposed that her house is opposite the house of PW-1 at mujjugudem Village and about 2 /2 years back at about 2 p. m. , she was in her house and at that time Ramulamma came to her house and woke her up saying that she was hearing cries from the house of the appellant/accused and that she woke up and they both went to the house of the appellant/ accused and in the meanwhile Maisaiah, babu and Bharathi also came there. PW-3 further deposed that they found the door of the house of the appellant/accused closed and bolted from inside and they knocked the door and thereafter the appellant/accused opened the door and ran away. She also deposed that they found PW-2 inside the house and PW-2 came out weeping and when they questioned PW-2 as to what had happened, PW-2 told her that the appellant/ accused had removed her clothes, fell on her and raped her. Police examined this witness. Certain suggestions were put to this witness and those suggestions were denied. ( 6 ) PW-6 Ramulamma is yet another witness who also deposed to the effect that she was going to her fields from her house when she heard cries from the house of the appellant/accused and she went to the house of PW-4 and both of them went to the house of the appellant/ accused and when the door was locked they knocked at the door, but it was not opened and thereafter Cheema Babu and bharathi came there and knocked the door and the appellant/accused opened the door and ran away. PW-2 was present inside the house and she told them that the appellant/accused had taken her to his house offering biscuits and raped her after closing the door. The evidence of PW-4 and pw-6 is very crucial since they had deposed exactly what had happened immediately after the incident and the evidence of PW-5 also is to the effect that when he reached the spot he had seen the appellant/accused running away and PW-2 weeping. No doubt in cross-examination of PW-6, Ex. D-1 was marked. She had deposed that she might have stated before police that Manikyamma was already present at the house of the appellant/accused by the time she went there as in Ex. D-1. No doubt in cross-examination of PW-6, Ex. D-1 was marked. She had deposed that she might have stated before police that Manikyamma was already present at the house of the appellant/accused by the time she went there as in Ex. D-1. This was relied upon as material contradiction on behalf of the appellant/accused. ( 7 ) PW-7 is the cousin of PW-1 and he deposed that PW-1 informed about the incident and no doubt he suggested that the matter be placed before the caste elders to solve the problem, but PW-1 did not agree and told that he would lodge report with the police. ( 8 ) PW-1, the father of PW-2, narrated the post incident events clearly how the intimation was given to him by PW-5 and how he had reached the village and enquired and after consulting his cousin pw-7 got the report drafted by one Suri babu and gave the report Ex. P-1. PW-8 is the scribe of Ex. P-1 and he supports the version of the prosecution to the effect that he had scribed Ex. P-1. PW-9 had deposed about the potency of the appellant/accused and Ex. P-2 is the certificate. PW-10, the doctor who examined PW-2, no doubt deposed that there are no positive signs of rape and in cross-examination he had stated that there should be bleeding in case PW-2 is raped as she is a child. But however in re-examination PW-10 had stated that there need not be bleeding if there is no penetration and there may be ejaculation of semen along with spermatozoa when there is attempt to rape. ( 9 ) PW-11, the Sub-Inspector of Police, khammam I Town Police Station deposed that on 28-2-1996 at 4. 30 p. m. he received ex. P-1 report from PW-1 and registered the same as Crime No. 15/96 and issued Ex. P-5 report to the Magistrate and he examined pw-1 to PW-3 at Police Station and had taken the victim to the scene of offence and recorded the observation thereon in a panchanama in the presence of Swamy and Ramulu and he also examined PW-4 to pw-6, Cheema Babu, Cheema Bharathi, prakasham and Suri Babu and then forwarded the victim to Government hospital, Khammam for examination and determination of age etc. , and the further investigation was taken up by the Inspector of Police who filed the final report after completion of investigation which bears his signature which he can identify since he is acquainted with the signature. This witness, pw-11, was cross-examined. Ex. P-1 reads as hereunder :"on 26-2-1996 at about 2. 00 p. m. Cheema rama Rao S/o. Bedaiah Harijan, R/o majjgudem have manhandled my elder daughter viz. , Boddu Nagalakshrni and taken her from our house to his house situated besides our house and by force raped her. Since I am working in H. P. Gas, Kiran agency at Khammam, my wife sent word to me. Then I came over to Majjigudem and knew the details and brought my daughter today to the Police Station and got the complaint written and submitted. Hence, i pray you Sir to take necessary action and render justice to us. "the contradiction Ex. D-1 marked through pw-6, if carefully scrutinized, it is not such a material contradiction so as to disbelieve the version of the prosecution. Yet another serious contention was advanced that the incident was on 26-2-1996 at 2 p. m. and ex. P-1 was given on 28-2-1996 at 4. 30 p. m. , and there is a delay of two days and there is no explanation in this regard. The evidence of PW-1 is clear that he was at Khammam and on the intimation given by PW-5 he came to the village on the next day and he had consulted his cousin PW-7 and due to deliberations and since the honour of the family and the child is involved the parents might have taken this time to take a decision whether to approach the police or to drop the matter then and there and hence this court is of the considered opinion that the prosecution was able to explain the delay also. In the light ,of the clear evidence of pw-2 which clearly supports the version of the prosecution though she is just a child and also the evidence of the other witnesses i. e. , PW-4, PW-6 and PW-5 since the said evidence clearly corroborates what actually happened immediately just after the incident, the prosecution was able to prove the case beyond all reasonable doubt. But however in the light of the evidence of pw-10, inasmuch as some doubt was entertained in the light of the medical evidence, instead of convicting the appellant/ accused under Section 376 (2) (f), he was convicted under Section 376 (2) (f) I. P. C. read with Section 511 I. P. C. It is no doubt true that while appreciating the evidence of a child witness, Courts are expected to be more careful and cautious and the approach should be with greater caution c. P. Fernandes v. Union Territory, Goa, air 1977 SC 135 . The only test of competence of a child witness is to test whether he/she is able to explain the questions put to him/her and is able to give rationale answers. It is no doubt true that competence of a witness to give evidence is something different from the credibility of the evidence given by such witness. Courts no doubt are of the opinion that normally in the case of child witnesses some corroboration is needed. This Court had well scrutinized the evidence of the child witness i. e. , PW-2, with care and caution and also the other circumstances and the chain of events clearly explain the post incident events in seriatim. Apart from the evidence of PW-2, there is clear corroboration of what actually transpired just after the incident which had been clearly explained by PW-4 and PW-6 and also to some extent by PW-5. Even in this view of the matter, this Court is of the considered opinion that the evidence of PW-2, child witness, is well corroborated at least so far as the offence of attempt to rape is concerned, by the evidence of PW-4, PW-5 and PW-6. In the light of the findings recorded in detail by the learned Judge, especially on the strength of the medical evidence, this Court is of the considered opinion that the conviction imposed under Section 376 (2) (f) i. P. C. read with Section 511 I. P. C. need not be found fault in any way and hence the said findings are hereby confirmed. The appellant/accused is of young age and had lost father and his brother-in-law had deserted his sister and he has to look after the family. The appellant/accused is of young age and had lost father and his brother-in-law had deserted his sister and he has to look after the family. Taking all the facts and circumstances into consideration and for the reasons recorded above, the sentence imposed is modified and the sentence of rigorous imprisonment of ten years is reduced to five years and as far as the imposition of fine of Rs. 2,000/-, in default to undergo simple imprisonment for one year is concerned, the same is hereby confirmed. It is brought to the notice of this Court that the fine amount already had been paid and even otherwise the sentences imposed shall run concurrently. The bail bonds of the appellant/accused shall stand cancelled. The appellant/accused shall serve the rest of the sentence. The criminal appeal is accordingly dismissed subject to the modification of sentence specified supra.