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2006 DIGILAW 1044 (AP)

Public Prosecutor v. Pamarthi Venkataramana @ Ramana

2006-08-30

B.SESHASAYANA REDDY

body2006
JUDGMENT : B. SESHASAYANA REDDY, J.:— This Criminal appeal is directed against the judgment dated 05-10-1998 passed in S.C./S.T. Sessions Case No. 173 of 1995 on the file of the Special Sessions Judge (1st Additional Sessions Judge) for cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act. Rajahmundry, East Godavari District, whereby and whereunder the learned Special Sessions Judge found accused Pamarthi Venkatarmana @ Ramana not guilty of the offence under Section 376 I.P.C. read with Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short; the Act) and acquitted him accordingly. 2. The prosecution case, in brief, is as follows: P.W. 1 Battu Vanajakumari is the victim. She was aged about 14 years on the date of occurrence. On 04-05-1994 at about 12.00 noon the victim went to the field on being sent by her father to watch the groundnut crop. She was sitting near the motor shed underneath the tree in the field and laid a watch on the groundnut crop so as to avoid crop being damaged by monkeys. The respondent-accused came there and asked her as to when she would be getting married as her sister's marriage was already fixed and so saying he caught hold of her right hand. She managed to escape from his clutches and started running away. The respondent-accused chased her and caught hold of her in plantain garden of Kolli Musalayya. He lifted her langa and revished her. She raised cries which drew the attention of P.W. 2 Konda Manohar. On seeing P.W. 2, the respondent-accused got up and took to his heels. The victim-P.W. 1 returned home and informed her parents. She along with her mother-P.W. 5 Battu Venkayamma and sister P.W. 3 Vara Lakhmikantham went to Atreyapuram Police Station and presented Ex. P.-1 Report. P.W. 10 K. Lakshmma Murthy, Sub inspector of Police, Atreyapuram Police Station, received Ex. P.-1 report and registered a case in Crime No. 13 of 1994 for the offence under Section 376 IPC and issued Ex. P.-5 FIR. He sent the victim-P.W. 1 to Government Hospital, Kothapeta, for medical examination. P.W. 9 Dr. B. Annapurnna medically examined the victim P.W. 1 and issued Ex. P.-4 wound certificate. She did not find any external injuries on genetalia of P.W. 1. P.-5 FIR. He sent the victim-P.W. 1 to Government Hospital, Kothapeta, for medical examination. P.W. 9 Dr. B. Annapurnna medically examined the victim P.W. 1 and issued Ex. P.-4 wound certificate. She did not find any external injuries on genetalia of P.W. 1. But she noticed a fresh tear of hymen and edges of the tear are red an swollen with bleeding ends. She determined the age of the victim-P.W. 1 between 13 and 18 years on physical and dental examination. She collected vaginal swabs and smears, cervical swabs and smears, stained clothes and pubic hair and sent them for chemical analysis. Ex. P.-9 is the chemical examiner report. On receipt of Ex. P.-9, She issued Ex. P.-10 final opinion. K. Rajasimhareddy, Inspector of police, Razole (LW. 13) inspected the scene of offence and prepared Ex. P-6 rough sketch and Ex. P.-2 observation report in the presence of P.W. 7 M. Ramarao. During the course of investigation, the respondent-accused came to be arrested and sent for medical examination with regard to his potency to perform sexual intercourse. P.W. 8 Dr C. Sudarsanarao medically examined the respondent-accused and issued Ex. P.-3 medical certificate opining that the respondent-accused is capable of performing sexual intercourse. After completing the investigation, a charge-sheet came to be presented before the Judicial Magistrate of First Class, Special Mobile Court, Kakinada, East Godavari District. 3. The learned Magistrate took the charge-sheet on file as P.R.C. No. 6 of 1995 and committed the case to the Sessions Division, East Godavari District at Rajahmundry, as the offence under Section 376 IPC is exclusively triable by the Court of Session. The learned Sessions Judge took the case on file as Sessions Case No. 173 of 1995 and made over the same to the II Additional Sessions Judge, East Godavari at Rajahmundry, for disposal according to Law. The learned II Additional Sessions Judge, East Godavari at Rajamundry, on hearing the prosecution and the accused, framed a charge under Section 376 IPC read with Section 3(2)(v) of the Act against the respondent-accused, read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried. 4. Subsequently, the case came to be transferred to the Court of the Special Sessions Judge (1st Additional Sessions Judge) for cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act, Rajahmundry, East Godavari District 5. 4. Subsequently, the case came to be transferred to the Court of the Special Sessions Judge (1st Additional Sessions Judge) for cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act, Rajahmundry, East Godavari District 5. To bring home the guilt of the respondent-accused for the offence with which he stood charged, prosecution examined 12 witnesses and proved 10 documents. On behalf of the respondent-accused, he marked contradictions in 161 Cr. P.C. statements of P.Ws. 4 and 5 as Exs. D-1 to D-3. 6. The learned Special Sessions Judge, on considering the evidence on record and on hearing the prosecution and the accused, recorded a finding that the victim-P.W. 1 is of consenting age and she is a consenting party to the sexual intercourse and thereby recorded acquittal of the respondent accused for the offence under Section 376 IPC and read with Section 3(2)(v) of the Act, by judgment dated 05-10-1998. Hence, this Criminal appeal by the State. 7. Heard learned Additional Public Prosecutor appearing for the appellant-State and learned legal aid counsel appearing for the respondent-accused. 8. Learned Additional Public Prosecutor submits that P.W. 1 is the victim and her testimony, is corroborated by medical evidence and thus, the trial Court is not justified in recording-acquittal of the respondent-accused for the offence under Section 376 IPC read with Section 3(2)(v) of the Act. A further submission has been made that the trial Court has misread the evidence of P.W. 9 who medically examined the victim-P.W. 1 and thereby erred in recording a finding that the victim-P.W. 1 was of consenting age as on the date of he occurrence. He took me to the evidence of P.W. 1 and P.W. 9 in great detail. 9. Learned legal aid counsel appearing for the respondent accused submits that P.W. 9 is the Doctor, who medically examined the victim-P.W. 1. and issued Ex. P.-4 wound certificate, wherein the age of the victim-P.W. 1 has been stated to be between 13 and 18 years. As further submission has been made that the evidence brought on record is not certain to show that the victim-P.W. 1 was under 16 years, in which case, the finding recorded by the trial Court does not warrant interference by this Court. 10. P.W. 1 is the victim. As further submission has been made that the evidence brought on record is not certain to show that the victim-P.W. 1 was under 16 years, in which case, the finding recorded by the trial Court does not warrant interference by this Court. 10. P.W. 1 is the victim. P.W. 2 is the person who responded to the cries of the victim-P.W. 1 and reached and scene of offence and noticed the respondent-accused lying over the victim-P.W. 1. P.W. 3 is the younger sister and P.W. 5 is the mother of the victim P.W. 1. P.W. 4 is a resident of Rajavaram. He speaks of P.W. 3 being informed him of the sexual abuse of the victim-P.W. 1 by the respondent-accused. He further states that on being informed of the sexual abuse, he went to the field and questioned the respondent-accused and thereupon the respondent-accused told him that he can do what he could. P.W. 6 is a resident of Rajavaram. He speaks of the sexual assault on the victim-P.W. 1 being informed by P.W. 5 and thereupon he advised P.W. 5 to get a report drafted by an educated person and submit the same before the Police. P.W. 7 is a panch witness for the observation of the scene of offence. He did not support the prosecution and prosecution declared him hostile. P.W. 8 is the doctor who medically examined the respondent-accused and issued Ex. P.-3 certificate. P.W. 9 is the doctor who medically examined the victim-P.W. 1 and issued Ex. P.-4 wound certificate and Ex. P.-10 final opinion. P.Ws. 10 and 11 are the Investigating Officers. P.W. 12 is the scribe of Ex. P.-2 scene of offence panchanama. 11. It is now well-settled principle of law that the conviction can be based on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The woman or girl subjected to sexual assault is not an accomplice to the crime. But, a victim of another person's lust and it is improper and undesirable to test her evidence with certain amount of suspicion treating as if she was an accomplice. 12. Section 375 defines rape. Sec. 376 IPC deals with punishment for rape. The essential ingredients of Section 376 IPC are: (1) sexual intercourse by a man with a woman; (2) the sexual intercourse must be under circumstances falling under any of the six clauses in the Section. 12. Section 375 defines rape. Sec. 376 IPC deals with punishment for rape. The essential ingredients of Section 376 IPC are: (1) sexual intercourse by a man with a woman; (2) the sexual intercourse must be under circumstances falling under any of the six clauses in the Section. 13. Sexual intercourse is with or without her consent, when she is under 16 years of age, is rape as defined in clause (6) of Section 375 IPC. 14. It is contended by the learned legal aid counsel appearing for the respondent-accused that the circumstances suggest that the victim-P.W. 1 is a consenting party and she being of consenting age, there is no offence of rape committed by the respondent-accused. He took me to the evidence of P.W. 9 to show that the victim was not under 16 years. P.W. 9 is the doctor who medically examined the victim-P.W. 1 and issued Ex. P.-4 wound certificate and Ex. P.-10 final opinion. In the chief-examination itself, she stated that the age of the victim-P.W. 1 as between 13 and 18 years. Therefore, it cannot be said with certainty that the victim was under 16 years. Keeping in view this aspect, the evidence of the victim-P.W. 1 is required to be scrutinized. 15. It is her version that the respondent-accused fell her down and had intercourse with her for about 10 minutes despite making resistance at her command. The doctor-P.W. 9 who medically examined the victim-P.W. 1 did not notice any external injuries on her person. Absence of injuries on the person of the victim-P.W. 1 falsifies her version that the respondent-accused fell her down and committed sexual intercourse against her will for about 10 minutes. The trial Court has taken note of the various circumstances and observed as follows: “…No doubt P.W. 9 in her evidence stated that a fresh tear hymen at the bottom is present. The edges of the tear are red swollen with bleeding ends. The trial Court has taken note of the various circumstances and observed as follows: “…No doubt P.W. 9 in her evidence stated that a fresh tear hymen at the bottom is present. The edges of the tear are red swollen with bleeding ends. The evidence of P.W. 1 is not consistent, cogent and convincing with regard to the overt acts attributed to the accused and with regard to the alleged injuries sustained by her at the time of the alleged incident and further the evidence of P.W. 2 is disbelieved with regard to the incident proper and the evidence of P.W. 3 and 4 is also disbelieved with regard to the presence of the accused at the scene of offence place soon after the commission of offence when P.Ws. 3 and 4 said to have gone to the scene of offence in search of the accused. Therefore the evidence of P.W. 1 that the accused committed rape on her cannot be believable as the evidence of P.W. 1 is not in corroboration with the medical evidence of P.W. 9 and Ex. P.-4 wound certificate. Further, the evidence of P.W. 9 is that, P.W. 1 is aged about 13 year and below 18 years by physical and dental examination. But, in her cross-examination she categorically stated that she did not examine the victim for identifying her age and stated that she cannot deny the age of the victim is 17 or 18 years. The evidence of P.W. 9 discloses that she did not examine P.W. 1 to identify the age, therefore her evidence in the chief-examination that P.W. 1 is aged about 13 years below 18 years by physical and dental examination cannot be believable. Further P.W. 1 in her evidence stated that by the date of this incident she was studying 8th Class. When such is the case, the prosecution ought to have filed at least certificate issued by the Head Master to show the age of P.W. 1 as recorded in the school register. But they did not file the same. Therefore, it cannot be said that P.W. 1 was aged about 13 years by the date of this incident as alleged by the prosecution. 17. P.W. 9 in her cross-examination stated that she cannot deny the suggestion that the victim is aged about 17 or 18 years. But they did not file the same. Therefore, it cannot be said that P.W. 1 was aged about 13 years by the date of this incident as alleged by the prosecution. 17. P.W. 9 in her cross-examination stated that she cannot deny the suggestion that the victim is aged about 17 or 18 years. In view of the said evidence of P.W. 9, it can be presumed that P.W. 1 was aged about 17 or 18 years by the time when P.W. 9 examined her. Therefore, the allegation that the victim was below 16 years by the date of this alleged incident cannot be accepted. Even assuming that P.W. 1 had intercourse as per the evidence of P.W. 1 and as per the Ex. P.-4 wound certificate, by the date of this incident and as P.W. 1 had no injuries on her private parties and as well as on her body, therefore, it can only be said that P.W. 1 is only consenting party to the said intercourse.” The finding recorded by the trial Court is based on sound reasons and therefore, they do not require to be interfered. It is well settled that in an appeal against acquittal, the appellate. Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such, which could not have been possibly arrived at by any Court acting reasonably and judiciously and is therefore, to be characterized as perverse. 16. For the foregoing reasons, I am of the view that this is not a fit case of interfere with the judgment of acquittal and accordingly, this appeal fails and the same is hereby dismissed.