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Andhra High Court · body

2007 DIGILAW 1085 (AP)

Bathina Sombabu v. State of Andhra Pradesh

2007-11-02

D.S.R.VERMA, K.C.BHANU

body2007
D.S.R. VARMA, J :-Heard the learned Counsel appearing for the appellant-accused as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant is the sole accused III the Sessions Case. 3. This criminal appeal, by the accused, under Section 374(2) Cr.P.C., is directed against the judgment, dated 31.1.2006, in S.C.S.T. Sessions Case No.1 of 2002, passed by the I Additional Sessions Judge (Special Judge), Vizianagaram, convicting the accused for the offence punishable under Section 376 IPC and sentencing him to suffer simple imprisonment for seven years and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for fifteen days, and convicting for the offence punishable under Section 323 IPC, and sentencing him to suffer simple imprisonment for three months and convicting for the offence punishable under Section 3(1)(x) of the S.C. S.T. (Prevention of Atrocities Act, 1989) (for brevity "the Act 1989") and sentencing him to suffer simple imprisonment for six months and to pay a fine of Rs.I00/-, in default to suffer simple imprisonment for fifteen days and also convicting for the offence punishable under Section 3(2)(v) of the Act, 1989, and sentencing him to suffer imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for fifteen days and ordering to run all the sentences concurrently. 4. Case of the prosecution, in brief, is that, on 2.7.2001, at about 2.30 p.m., when one Vasi Yernamma, the prosecutrix, along with her niece, by name Vasi Ramu (P.W.4), was involved in the activity of securing firewood near Naidu Tank, the accused had approached and expressed his interest to have sexual intercourse with her, for which she refused and slapped him; that then the accused got wild and abused her by caste saying that he beat her on the mouth and left hand, dragged her into bushes and committed rape on her; that, while the accused was leaving the scene of offence, the husband of the prosecutrix, P.W.2, found him on the way; that then she narrated her husband about the rape committed by the accused. 5. 5. It is the further case of prosecution that, on the next day i.e., on 3.7.2001, the accused came, driving an auto, to the house of the prosecutrix; that, upon which, P.W.2 abused the accused, slapped him and then asked him to come to the panchayat on that evening; that then the accused left their house and since the accused did not come, no panchayat appears to have been conducted; that, on 5.7.2001, a complaint, under Ex.P.1, was lodged before the police, S. Kota Police Station, basing on which a case in Crime No.46 of 2001 was registered against the accused, for the offences punishable under Sections 376 and 323 I.P.C., and Section 3(2)(v) of the Act, 1989, and also Section 7(1)(d) of the Protection of Civil Rights Act (for brevity "PCR Act") and that after completion of all necessary formalities, police laid the charge-sheet. 6. It has to be noted, at this juncture itself, that, in EX.P.1 it was noted that when the accused had beaten the prosecutrix on her mouth and left hand, and also caused nail injuries above her left eye on forehead, she raised cries, "ammo...... nayano....... save me", and, in spite of which, none came to her. 7. When the charges under Sections 376 and 323 IPC and Sections 3(1)(x) and 3(2)(v) of the Act, 1989, were framed, read over and explained to the accused in Telugu, he denied the same and claimed to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.l5 and M.Os.1 to 8 on its behalf. 9. After closure of evidence on behalf of the prosecution, when the accused was examined under Section 313 Cr.P.C., with reference to the incriminating material found against him, in the evidence of the prosecution witnesses, he denied the same, but no witnesses were examined and no documents were marked on his behalf. 10. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, recorded the finding that the accused was guilty of the offences, with which he was charged, and eventually convicted and sentenced him, as stated supra. Aggrieved by the same, the accused has preferred the present criminal appeal. 11. 10. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, recorded the finding that the accused was guilty of the offences, with which he was charged, and eventually convicted and sentenced him, as stated supra. Aggrieved by the same, the accused has preferred the present criminal appeal. 11. The learned Counsel appearing for the accused contends that no injuries were found on the prosecutrix, as contended by her, and her husband, P.W.2, and, therefore, in the circumstances on record, it has to be understood that there was consent between the parties, and hence the offence under Section 376 IPC, cannot be invoked. He further contends that when the offence under Section 376 IPC, cannot be invoked, the other charges also cannot be sustained and prays to set aside the convictions and sentences. 12. On the contrary, the learned Public Prosecutor, appearing for the respondent State, vehemently contends that, as stated by the prosecutrix, decency and dignity of the woman have been assaulted in a violent manner by catching hold of her hand; that since the prosecutrix is a woman, catching hold of her hand itself is an offence punishable under Section 354 IPC, apart from the offence under Section 3(2)(v) of the Act, 1989, and that the medical evidence reveals that there was sexual intercourse between the prosecutrix and the accused, which is an indicative factor that the rape was committed by the accused. Therefore, he contends that since the reasoning given by the Court below is cogent and its eventual conclusion, convicting the accused and sentencing him, as stated supra, was based on appreciation of evidence, on record, the impugned judgment does not call for interference by this Court. 13. This is a case where no independent evidence is available. Further, the oral evidence, which is most relevant, is that of the prosecutrix and her husband, who were examined as P.Ws.1 and 2, respectively and the only documentary evidence is that of Exs.P.9 and P.IO, which are wound certificates of the accused and the prosecutrix, respectively. 14. Therefore, it is essential to examine the evidence of the prosecutrix, P.W.1. Further, the oral evidence, which is most relevant, is that of the prosecutrix and her husband, who were examined as P.Ws.1 and 2, respectively and the only documentary evidence is that of Exs.P.9 and P.IO, which are wound certificates of the accused and the prosecutrix, respectively. 14. Therefore, it is essential to examine the evidence of the prosecutrix, P.W.1. She stated that the accused came from his thrashing floor, stood on the tank bund and called her; that when she went near to him, he expressed his desire to have sexual intercourse with her and caught hold of her hand and that she scolded him and later slapped him. 15. The further evidence of P.W.1 is: "Then the accused dragged me towards bushes and abused me as 'Mala Lanja Kuuthura'. After I was dragged near to the bushes, the accused lifted my saree and petticoat and penetrated his pennis into my vagina and kept the same for sometime and he committed rape against me. The accused beat me on my left hand and made scratches below my left eye. When I tried to relieve from his clutches, while he was committing rape, he pushed on my chin. After committing rape the accused went away. While the accused was going away my husband LW.2 Vasi Mahalakshmi and L.W.3 Vasi Sureedamma came near to the tank. My husband questioned about the delay for coming to the house, but I kept quiet. After we went to the house, I narrated about the incident to my husband. On the next day the accused came to our house driving the auto. Then my husband questioned the accused about the offence of rape committed on me and slapped the accused. Then the accused wept and asked my husband to pardon him. My husband asked the accused to come to Panchayat on the evening. But, the accused did not come to Panchayat on the evening and also on the next day...." 16. It is her further evidence that, thereafter, she, along with her husband, went to police and gave a report, under Ex.P.1. 17. In the cross-examination, P.W.1 deposed that she did not give the report to police immediately after the incident because the accused came to her house on the next day. It is her further evidence that, thereafter, she, along with her husband, went to police and gave a report, under Ex.P.1. 17. In the cross-examination, P.W.1 deposed that she did not give the report to police immediately after the incident because the accused came to her house on the next day. For the suggestion made by the defence that she was an interested party to the alleged sexual activity, the answer of the prosecutrix was that of denial. 18. P.W.2 stated that one Vasi Ramu @ Ramulamma, P.W.4, came to his house and informed that herself and P.W.1 went near Naidu Tank for securing firewood, but she did not find P.W.1 after sometime and later she returned; that then himself along with one Sureedamma, P.W.3, went to the tank where he found the accused running and noticed his wife coming with firewood and that after they returned to their house, the prosecutrix narrated the incident to him. He further deposed that the prosecutrix informed that the accused expressed his willingness to have sex with her and when she questioned, the accused told that he belongs to Yatha Caste and his wife belongs to Scheduled Caste; that, saying so, the accused dragged P.W.I and committed rape on her. Nothing relevant could be elicited from his cross-examination. 19. The evidence of P.Ws.3 and 4 is to the effect that P.W.1 informed P.W.2, in their presence, that, while she was searching for firewood near Naidu Cheruvu, the accused came and expressed his willingness to have sex with her, and when she refused, the accused abused her by her caste, dragged her to bushes and raped. 20. At this juncture, it has to be seen that the evidence of P.Ws.3 and 4 is of no consequence because they had only heard what allegedly P.W.1 stated to P.W.2, and therefore, their evidence cannot be given much credence. 21. The evidence of P.W.2, as such, is also not much useful because he was not an eye-witness of the alleged assault on P.W.1. He only saw his wife, P.W.1, coming with firewood and nothing more. His evidence is to the further effect that when he asked as to why the delay was caused to come back to home, the prosecutrix allegedly stated that the accused had committed rape on her. 22. He only saw his wife, P.W.1, coming with firewood and nothing more. His evidence is to the further effect that when he asked as to why the delay was caused to come back to home, the prosecutrix allegedly stated that the accused had committed rape on her. 22. But, it is to be seen that this fact was not informed to anyone, including the police. Of course, this is not such a fact, which can be revealed voluntarily to others. However, if the prosecutrix was really felt aggrieved, she ought to have given a report to the police immediately. But, the same was not done on the ground that P.W.1 was waiting for the accused to attend the panchayat and when the accused did not turn upto the panchayat, then a report was given to the police and thereafter the prosecutrix was taken to Doctor for medical examination. 23. In this context, it has to be seen that whether any panchayat was slated or not either on 3.7.2001 or 4.7.2001. In normal course, panchayat will be conducted by the approved village elders. An individual like P.W.2 cannot hold a panchayat on his own. Unless a complaint is made to the panchayat, the panchayat elders will not call for a panchayat to find out the fact. Without there being anything on record, it is rather difficult to understand as to how P.W.2 simply directed the accused to attend the panchayat on the evening, nor there is any evidence to show that a panchayat was slated to be conducted. Therefore, we are not prepared to accept the contention of P.W.2 that the delay, in taking the prosecutrix to the Doctor and make the report to the police, was only because the accused did not turn upto the panchayat for two consecutive days, and so only on the third day, the report was given to the police. This conduct on the part of P.W.2, in our considered view, is something strange. 24. Now, we have to start further discussion from the point of giving report to the police and the prosecutrix being subjected to medical test. 25. This conduct on the part of P.W.2, in our considered view, is something strange. 24. Now, we have to start further discussion from the point of giving report to the police and the prosecutrix being subjected to medical test. 25. P.W.8, the Doctor, who examined P.W.1, did not find any external injuries and stated that the origin of semen detected on item Nos.3 to 6, 9 and 11 could be determined and they are of human origin but their blood group could not be established and opined that there was chemical evidence suggestive of intercourse. 26. From the above evidence, the most significant factor that has to be noticed is that P.W.8, the Doctor, did not find any external injuries in spite of definite identification of sexual intercourse between the prosecutrix and the accused. 27. In this connection, it has to be seen that, it is the specific case of the prosecutrix that when the accused caught hold of her hand, she slapped him; that then the accused dragged her to a distance into the nearby bushes, abused by caste and committed rape. Before that, the accused beat her on the left hand and caused nail scratches below her left eye. She further stated that she tried to get herself released from the clutches of the accused. From the above, it appears that the prosecutrix had resisted, at her best, and also received an injury of scratch below her left eye. But, no external injuries were found by P.W.8, the Doctor. 28. An attempt is made by the learned Public Prosecutor, appearing for the respondent-State, to explain that because the prosecutrix was examined by the Doctor was after three days, no marks of injury could be found. The said contention also cannot be accepted for the reason that though the actual injury might not be present, still trace of the injury below the left eye, ought to have remained at least for three days without just vanishing. That apart, when the prosecutrix was dragged forcibly into the bushes, obviously there must have been some injuries on the body of the prosecutrix. But, again, as per the evidence of P.W.8, the Doctor, no traces of injury whatsoever was found. In other words, we are of the view that when a person was dragged forcibly, that too, into the bushes, there would be every likelihood of sustaining, at least, bruises. But, again, as per the evidence of P.W.8, the Doctor, no traces of injury whatsoever was found. In other words, we are of the view that when a person was dragged forcibly, that too, into the bushes, there would be every likelihood of sustaining, at least, bruises. But, P.W.8, the Doctor, did not find any traces of small injuries on the body of the prosecutrix. 29. Furthermore and obviously, the other persons i.e., P.Ws.3 and 4, were moving around in the open fields. No attempt was made by the prosecutrix to raise her voice. Had she raised any cry, there would have been some chance of somebody hearing the same and coming to her rescue. But, nothing of that sort has happened. On this aspect, there is absolute silence on the part of the prosecutrix. The entire course of events right from catching hold of the hand of the prosecutrix till the actual act of rape was completed, without any injuries on her body, suggests that she was a consenting party to the sexual activity with the accused. That apart, she disclosed this fact to P.W.2, her husband, only when he asked as to why she was late, but not voluntarily. This aspect also adds something to the above conduct of the prosecutrix. 30. Now, the consequential question that falls for consideration is as to whether the accused is liable to be punished for the offence punishable under Section 376 IPC or not ? 31. As already discussed, the conduct of the prosecutrix, all through, is indicating the fact that the accused had consent of the prosecutrix for participating in the sexual activity. Mere sexual intercourse is not sufficient to constitute the offence of 'rape' to fall squarely within the definition of Section 375 IPC. 32. For ready reference, it is apt to extract Section 375 IPC which is thus: "Rape ;-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First.-Against her will. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent, Sixthly.-With or without her consent, when she is under sixteen years of age." 33. Description Nos.3, 4, 5 and 6 are the exceptions to the Description Nos.1 and 2. 34. Description No.2 is more relevant in a criminal case. As we are already expressed our view that the prosecutrix was the consenting party to the sexual intercourse that took place, yet such I participation by the accused with the prosecutrix cannot be brought into the definition of Section 375 IPC. It is not the case of the prosecution that the prosecutrix would fall within the exceptions under Description Nos.3 to 6 of Section 375 IPC. Therefore, we are rather impelled to hold that despite the sexual activity between the prosecutrix and the accused has been successfully established, that mere fact does not amount to rape. 35. The other contention of the learned Public Prosecutor, appearing for the respondent-State, is that catching hold of the hand of the prosecutrix itself is an offence punishable under Section 354 IPC, apart from the offence under Section 3(2)(v) of the Act, 1989. 36. In this regard, again the things are obvious. The accused, only with the consent of the prosecutrix, might have caught hold of the hand of the prosecutrix. This fact, as such, is not established. Even assuming that it is established, because there cannot be any other evidence, still, in view of our finding, in the aforementioned paragraphs, with regard to the main act of rape was held to be with consent of the prosecutrix, we do not think that the ingredients of Section 354 IPC also would get attracted. 37. Even assuming that it is established, because there cannot be any other evidence, still, in view of our finding, in the aforementioned paragraphs, with regard to the main act of rape was held to be with consent of the prosecutrix, we do not think that the ingredients of Section 354 IPC also would get attracted. 37. As already pointed out by us, there was neither coercion, nor any luring promise etc., made by the accused, to catch hold of the hand of the prosecutrix. In such an event, the follow-up conduct of the accused, would certainly not amount to rape after being excluded from Description Nos. 1 and 2 of Section 375 IPC. Therefore, this contention also cannot be accepted. 38. Further, in view of the fact that there were no external injuries on the body of the prosecutrix, P.W.1, the charge under Section 323 IPC, does not attract. Accordingly, viewed from any angle, particularly in view of our finding that the prosecutrix was the consenting party to the sexual activity with the accused, the accused is entitled to be extricated from the other charges and so the charges under Sections 3(2)(v) and 3(l)(x) of the Act, 1989, also do not attract. 39. In the result, the criminal appeal is allowed, setting aside the convictions and sentences recorded against the appellant/accused, by the trial Court, in the judgment, dated 31.1.2006, in S.C. S.T. Sessions Case No.1 of 2002, on the file of the I Additional Sessions Judge (Special Judge), Vizianagaram, and the appellant/accused is found not guilty of all the charges levelled against him, accordingly acquitted of the same and he is set at liberty. The appellant/accused shall be released forthwith if he is not required in any other case.