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2008 DIGILAW 573 (AP)

Akuthota Venkanna v. State of Andhra Pradesh

2008-07-25

GOPALA KRISHNA TAMADA

body2008
JUDGMENT: Appellant, who is A-2 in Sessions Case No.779 of 2002 was charged by the learned I Additional Assistant Sessions Judge, Warangal along with A-1, who is none other than the father of the appellant, for the offence punishable under Section 376(2)(g) of the Indian Penal Code, 1860. As A-1 was murdered during the pendency of the sessions case, the case against him was abated and ultimately the appellant alone was tried for the said offence and the trial Court having considered the entire evidence both oral and documentary has come to the conclusion that the appellant is guilty of the said offence and accordingly sentenced him to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of one month. 2. The substance of the charge framed against the appellant and other accused is that on 02-04-2002 at about 3-30 P.M. at Parlapally village they committed gang rape on one Akuthota Lakshmi, who was examined as PW-1. 3. As per the evidence that came during the course of trial, in brief, the case of the prosecution, is as follows-- (i) A-1 is the father of the appellant - A-2. The husband of the victim, who was examined as PW-2, is the first cousin of A-1 and there are land disputes between two families. The pipeline coming from the well of PW-1 was laid through the land of the accused. In that regard on a complaint made by PW-1 and her husband, PW-2, there was a panchayat in the presence of the elders and it was resolved that PWs.1 and 2 shall remove the same from the land of the accused and lay a road. Despite the said mediation and advise by the elders PWs.1 and 2 did not give passage to the accused. While so, on 02-04-2002 at about 3-30 P.M., while PW-1 was returning home from the fields, both A-1 and A-2 kicked her from behind and when she fell down they both committed rape one after another. Because of the said kicking and also the said act of rape, PW-1 was bleeding and when she was lying because she sustained injuries, the appellant and his father (A-1) ran away. After some time, PW-1 slowly got up and while returning home she met PW-3 and with her assistance she reached the house. Because of the said kicking and also the said act of rape, PW-1 was bleeding and when she was lying because she sustained injuries, the appellant and his father (A-1) ran away. After some time, PW-1 slowly got up and while returning home she met PW-3 and with her assistance she reached the house. Immediately thereafter one Venkatarajam, who is the elder brother of PW-2, took a private medical practitioner, who was examined as PW-6, to the house of PW-1 for treatment and PW-6 advised to take her to Jammikunta hospital for better treatment. Accordingly, PW-1 was taken to the hospital at Jammikunta by PW-4 and two others, where she was treated by a doctor, who was examined as PW-9, and as sutures are required to the private parts of the body of PW-1, PW-9 gave the required treatment. (ii) It is the further case of the prosecution that in the hospital PW-1 was unconscious and she was there for a period of three days and thereafter PW-1 after informing about the incident to her husband, PW-2, lodged a report on 07- 04-2002 at about 9.00 P.M. and the Assistant Sub Inspector of Police, Mogulapally Police Station, who was examined as PW-10 registered the same as a case in Crime No.24 of 2002 under Section 376 of IPC. The report given by PW-1 was marked as Ex.P1 and the F.I.R. was marked as Exs.P7. After recording the statements of PWs.1 and 2, PW-10 referred PW-1 to the Maternity Hospital, Hanamkonda for examination. The Civil Assistant Surgeon, Government Maternity Hospital, Hanamkonda, who was examined as PW-8 on receipt of the requisition given by PW-10 examined PW-1 on 08-04-2002, collected the vaginal smears and sent the same to the Forensic Science Laboratory. The expert at Forensic Science Laboratory gave his opinion and the same was marked as Ex.P4. According to his preliminary report marked as Ex.P3, PW-8 did not find any injuries on the body of PW-1 and the tear in the posterior vaginal wall was already sutured. The Inspector of Police, Intezargunj, who was examined as PW-13 took up further investigation, visited the scene of offence on the next day i.e. on 09-04-2002, conducted scene of offence observation panchanama in the presence of PW-7 and another and he also drew a rough sketch of the scene of offence. The Inspector of Police, Intezargunj, who was examined as PW-13 took up further investigation, visited the scene of offence on the next day i.e. on 09-04-2002, conducted scene of offence observation panchanama in the presence of PW-7 and another and he also drew a rough sketch of the scene of offence. The observation panchanama was marked as Ex.P2 and the rough sketch was marked as Ex.P11. Later, PW13 went to the house of PW-1 seized M.Os.1 to 5 under the cover of Ex.P10 panchanama in the presence of PW-12 and another. Thereafter, PW- 13 recorded the statements of PWs.3, 4, 5 and 6 and arrested A-1 and produced him before the learned Magistrate concerned for remand. The appellant surrendered himself before the learned Judicial Magistrate of First Class at Parkal. Thereupon, PW-13 filed a requisition before the learned Magistrate for police custody of A-2 to conduct potency test and age determination test on A-2. The Assistant Professor in Forensic Medicine of Kakatiya Medical College, Warangal, who was examined as PW-11, after examining A-2 gave his opinion that he is aged between 21 to 25 years and is capable of performing sex. (iii) It is also the case of the prosecution that after receipt of the FSL report, which was marked as Ex.P4, PW-8 gave her final opinion, marked as Ex.P5, stating that there is a tear in posterior vaginal wall and there may be an attempt to commit rape. The successor of PW-13 after receipt of the FSL report and after collecting all the required documents filed charge sheet against the appellant and A-1. As stated supra, during the course of trial as A-1 died and the case against him was abated, the appellant - A-2 alone was tried for the said offence. 4. In order to bring home the guilt of the appellant, the prosecution examined PWs.1 to 13 and got marked Exs.P1 to P11 and M.Os.1 to 5. 5. Heard learned counsel for the appellant, Sri A. Prabhakar Rao, and the learned Additional Public Prosecutor. 6. It is mainly contended by learned counsel for the appellant that the trial Court erred in holding that the appellant is guilty of the offence punishable under Section 376 of IPC. According to him there is rivalry between the two families with regard to the lands and that might be the reason for PW-1 to foist a false case against the appellant. According to him there is rivalry between the two families with regard to the lands and that might be the reason for PW-1 to foist a false case against the appellant. It is further submitted by the learned counsel that the relationship between the appellant and PW-1 is that of son and mother and no son would try to commit rape on a woman, who is his mother. According to him the conduct of PW-1 in not revealing about the alleged incident at the earliest point of time shows any amount doubt in the entire case of the prosecution and the filing of case is only after deliberations and as such the appellant is entitled for acquittal. 7. Per contra, learned Additional Public Prosecutor opposed the said submissions and stated that the victim who was examined as PW-1 has come forward and stated that the appellant has committed the said act of rape and the said testimony is trustworthy and that alone is sufficient for this Court to come to the conclusion that the appellant is guilty of the offence for which he was tried. According to him, a man in lust will not think of the relationship and other things and his aim at that point of time would only be to satisfy his lust with a woman, may be it is mother by courtesy. It is his further submission that the delay in cases of this nature cannot be said to be fatal and as the evidence of the victim i.e. PW-1 is truthful, the other attendant circumstances are immaterial to base a conviction and the trial Court is perfectly justified in holding that the appellant is guilty of the offence for which he was tried. 8. The entire case of the prosecution rests solely on the testimony of PW-1, who is none other than the victim. As rightly contended by the learned Additional Public Prosecutor it is not at all necessary for this Court to come to the conclusion that the said evidence of the prosecutrix requires corroboration. In the normal circumstances, no woman would come forward to depose that the accused has committed the act of rape. As rightly contended by the learned Additional Public Prosecutor it is not at all necessary for this Court to come to the conclusion that the said evidence of the prosecutrix requires corroboration. In the normal circumstances, no woman would come forward to depose that the accused has committed the act of rape. Hence, the sole testimony of the victim is sufficient to hold that the accused is guilty of the offence punishable under Section 376 of IPC, but it shall also be remembered by the Court that the said solitary testimony of the victim is truth nothing but truth. It is only when the said evidence of the victim thoroughly satisfies the Court then it is immaterial whether the said evidence of the victim is supported by any other independent witness, but the facts here are altogether different. According to PW-1 while she was returning from the fields, the appellant and his father (A-1) came behind and kicked her on account of which, she fell down and thereafter both the accused committed rape on her. It is her further evidence that she was bleeding and while going to her house, she met PW-3 to whom she did not reveal anything. Thereafter she went to a doctor in the village, and there also she did not reveal anything to the said doctor, who was examined as PW-6. On the advise of PW-6 she went to a private hospital, situated at Jammikunta and there also she did not reveal anything to the doctor, PW-9. What was stated by PW-1 to PW-9 is that she received an injury. It may be apt to refer to the evidence of PW-9. According to him on 02-04-2002 at about 9.00 P.M. PW-1 was brought to his hospital for treatment and when questioned PW-1 stated that she received an injury on her private parts due to accidental fall. It may be understood that she was hesitant to reveal the same to the doctors, as they happen to be belonging to the opposite sex. But she has not chosen to reveal the same to Smt. M. Radhamma, who was examined as PW-3, or A. Venkata Lakshmi, who was examined as PW-4. The said conduct of the victim appears to be somewhat doubtful. On that score the entire evidence of the prosecutrix i.e. PW-1 need not be brushed aside. 9. But she has not chosen to reveal the same to Smt. M. Radhamma, who was examined as PW-3, or A. Venkata Lakshmi, who was examined as PW-4. The said conduct of the victim appears to be somewhat doubtful. On that score the entire evidence of the prosecutrix i.e. PW-1 need not be brushed aside. 9. It is nothing but common to understand woman not to reveal about this sort of activities to others and the same would be revealed only to the husband. The evidence of PW-2, who is none other than the husband of PW-1, is also not satisfactory. According to him, he went to Warangal to pay the fees of his son and he returned to the house at about 4 or 5 P.M. On information that his wife was bleeding and she was taken to the hospital at Jammikunta he went to the hospital and there his wife did not inform anything about the incident and according to him she gained consciousness at about 10 P.M. on that day itself. But the evidence of PW-1 is to the effect that she was in the hospital and unconscious for about three days and she gained conscious only on 06-04-2002 and thereafter she revealed the said information to her husband. When the evidence of PW-2 is to the effect that she gained conscious at about 10 P.M. on 02-04- 2002 itself, the said evidence of PW-1 appears to be somewhat doubtful. 10. Taking advantage of the situation i.e. bleeding from the private parts of PW-1 and because of the rivalry between the two families the foisting of a false case cannot be ruled out. Even the evidence of the doctor, PW-9, is to the effect that the victim i.e. PW-1 was bleeding and as her vagina requires immediate sutures he gave the required treatment and according to the final opinion of another doctor, PW-8 "as there is a tear in posterior vaginal wall there may be an attempt of normal intercourse". If the appellant had merely attempted to commit normal intercourse or had committed the act of normal intercourse the question of a tear in posterior vaginal wall, requiring sutures will not arise. In sexual act, even if there is any amount of pressure or force the vaginal wall would not tear to the extent of bleeding, requiring sutures. If the appellant had merely attempted to commit normal intercourse or had committed the act of normal intercourse the question of a tear in posterior vaginal wall, requiring sutures will not arise. In sexual act, even if there is any amount of pressure or force the vaginal wall would not tear to the extent of bleeding, requiring sutures. Another circumstance, which is also against the case of the prosecution, is the relationship between the victim and the appellant. They are in the form of mother and son. Of course, as stated by the learned Additional Public Prosecutor a man with lust will not think of the relationship and his desire is only to satisfy his lust, if that alone is the circumstance probably this Court could have come to the conclusion that the appellant has forgotten the relationship with the victim and committed the said act of rape. 11. In the light of the above discussion made by me, this Court also gives importance to the relationship. No son would venture to commit the act of rape and it is only in rarest of the rare cases such a thing would happen. Of course there are cases and cases where the fathers commit the rape on daughters, sons satisfying their lust forcibly with mothers etc., but in my considered view it is not one of such rarest of the rare case where the appellant had committed the act of rape in order to satisfy his lust. All the attendant circumstances, which were discussed above, clearly indicate that a false case has been foisted against the appellant, because of the land disputes etc. Hence, this Court is of the view that the trial Court erred in coming to the conclusion that the appellant is guilty of the offence punishable under Section 376(2)(g) of IPC. 12. Accordingly, the criminal appeal is allowed and the conviction and sentence imposed on the appellant in S.C.No.779 of 2002, vide judgment dated 28- 11-2003, by the learned I Additional Assistant Sessions Judge, Warangal is hereby set aside. The bail bond of the appellant shall stand cancelled and the fine amount paid by him shall be refunded to him.