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2011 DIGILAW 556 (AP)

Golla Krishna v. State of A. P.

2011-07-20

G.KRISHNA MOHAN REDDY

body2011
JUDGMENT This Criminal Revision Case is preferred by the petitioner-accused challenging judgment dated 30.07.2004 passed by the Additional Sessions Judge, Hindupur, in Criminal Appeal No.206 of 2002, whereby and whereunder conviction and sentence imposed in S.C.No.533 of 2001 dated 02.12.2002 by the Assistant Sessions Judge, Hindupur, was confirmed. 2. The facts of the case, in brief, al e as follows: PWs.1 and 2, who are father and daughter, and the accused are residents of Devarahatti village. On 13.09.2000, when PW.1 went to Sira on personal work and his daughter PW.2 was alone attending the agricultural works in their agricultural fields, the accused went to PW.2 and caught hold of her hand and dragged her into the vanka situated on the eastern side of the fields and forcibly committed rape on her by gagging her mouth with cloth and left the place of occurrence threatening her with dire consequences that she would be killed not to reveal the occurrence to anyone, and subsequently, PW.1 lodged a report on 14.09.2000, but as the police did not take any action thereon, PWs.1 and 2 approached the Additional Superintendent of Police, Anantapur, on 19.09.2000 and gave a report in writing addressed to the Superintendent of Police and the same was forwarded to the Deputy Superintendent of Police, Penukonda, who, in turn, directed PW.11-Sub Inspector of Police, Gudibanda P.S., to register the case and, thereupon, PW.11 registered the case as Crime No.22 of 2000 under Section 376 IPC and took up and conducted the investigation of the case. Further, after the completion of the investigation of the case, the corresponding charge sheet was filed. 3. The petitioner/accused was tried for the offence punishable under Section 376 IPC and was found guilty of committing the offence and was accordingly convicted under Section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 1,000/- and in default of paying the fine to undergo simple imprisonment for six months, whereas aggrieved by the same, the accused preferred the Criminal Appeal No.206 of 2002, whereby the learned Additional Sessions Judge, Hindupur, on the consideration of the material available on record, confirmed the judgment of the trial Court, and aggrieved by that, the petitioner-accused has preferred the present CriP1inal Revision Case. 4. For the sake of convenience, I refer the parties as arrayed before the trial Court. 5. 4. For the sake of convenience, I refer the parties as arrayed before the trial Court. 5. It is the contention of learned counsel for the Accused that according to PWs.1 and 2, the corresponding report was given on the next date of the incident itself, but according to PW.11, on 20 09.2000 i.e., one week after he incident, at about 11.00 a.m., while he Not in the police station, PWs.1 and 2 came there and gave written report marked as Ex.P1, on the basis of which the case was registered, whereas EX.P11 is the F.I.R., but the alleged earlier report was not produced, which circumstances amply show that, in fact, the earlier report was suppressed because it would not have been helpful to the prosecution version. Further, empathically the prosecution version is that the accused went and caught hold of the hand of PW.2 and dragged her to a vanka, which is adjacent to her land, and committed rape on her and in that process, she sustained abrasions on her chest and her back and so on and if such incident took place, then PW.2 might have sustained serious injuries on her body, but the medical evidence discloses that no such injuries were found on her body, and in that regard, it is the observation of the Courts below that because PW.2 was sent for medical examination after a week, the abrasions she received in the process would have been healed and disappeared which is not acceptable. Further it is the finding of the courts below that the 1st report given by PW.1 is only corroborative piece of evidence and, in fact, the subsequent report marked as EX.P1 is hit by Section 162 Cr.P.C., in the light of the evidence of PWs.1 and 2 that they lodged the prior repot with PW.11 on 14.09.2000, but however PWs.1 and 2 gave trustworthy evidence and, accordingly, it is to be accepted and the accused should be convicted and sentenced is not tenable because of the suppression of the first report which is a very serious aspect. Further it is unbelievable that PW.2 received very small injuries even though she was dragged in the field upto the stream. Further therefore the courts below failed to appreciate the evidence properly and arrived at incorrect conclusions and, therefore, the conviction and sentence imposed by the courts below are liable to be set aside. 6. Further it is unbelievable that PW.2 received very small injuries even though she was dragged in the field upto the stream. Further therefore the courts below failed to appreciate the evidence properly and arrived at incorrect conclusions and, therefore, the conviction and sentence imposed by the courts below are liable to be set aside. 6. Learned counsel for the petitioner/accused has relied upon decisions in Pratap Misra v. State of Orissa (1) AIR 1977 SC 1307 and Puttan v. State (2) 1972 Crl.L.J. 270 and observations made' in Modis Medical Jurisprudence in support of his contentions. 7. The points that arise for consideration are:- (1) Whether the prosecution placed sufficient evidence with regard to the charge framed against the accused? (2) Whether the courts below properly examined the matter and arrived at correct conclusions? (3) Whether the conviction and sentence recorded by the courts below are liable to be set aside or sustainable? 8.POINTS: As per the prosecution, in fact, PW.2 informed her father PW.1 about the incident, and on the next day, they went to the police station and presented the report about the incident, but no action was taken by the police and therefore they approached the concerned S.P. and gave a report, on the basis of which the case was registered, whereas according to PW.11, no such earlier report was given to him and only basing upon the report given to the S.P., he registered the case. It is observed by the courts below in fact that the earlier report given at the first instance was not produced before the court and it was suppressed by the police and, therefore, the subsequent report-Ex.P1 given to the S.P. is hit by Section 162 CrP.C. Further the courts below, having observed that the First Information Report is only a corroborative piece of evidence and the lacuna need not be given any significance in view of the fact that there is trustworthy evidence of PWs.1 and 2 about the incident, and further because of lapse of time, the abrasions caused to PW.2 might have been healed and disappeared and, therefore, the medical evidence to the effect that no injuries were found on the body of the victim/PW.2 need not be taken seriously, conducted and sentenced the accused as already referred. The First Information Report is important for the purpose of setting the investigation of the case in motion. The First Information Report is important for the purpose of setting the investigation of the case in motion. It is only a corroborative piece of evidence and not substantive piece of evidence and it can be made use of in order to establish the veracity of PW.1, the maker of it, and also the evidence of PW.2. If in fact PW.1 gave a report to the police on the next day of the incident itself, the same should have been produced before the court. In my opinion suppressing the earlier report is to be taken very seriously as it definitely gives a doubt as to whether the case presented by the prosecution is actually true or not. It is pertinent to note here that the defence version is that the earlier report was suppressed by the police as there was no incriminating material against the accused. It has to be examined the other important circumstance of the case then. In the instant case, the medical evidence is also very important in order to test the veracity of PWs.1 and 2. Whereas according to PW.2, she was dragged by the accused in their field upto vanka and she received some injuries, it is the testimony of PW.7, the Medical Officer, that he examined PW.2 on 20.09.2000 on a requisition given by the S.H.O., Gudibanda police station, and found no injuries on her body and further found that her genitalia-hymen was ruptured with carcular multiform and he sent her vaginal swabs to concerned RFSL & FSL along with her inner garments through the police and received two reports Exs.P8 and P9, which disclose that human semen and spermatozoa were detected on saree. The evidence of PW.7 also discloses that rupture of hymen may be caused due to several reasons and not necessarily due to rape. Further it is the testimony of PW.10, another Medical Officer, that on 20.12.2000 she examined the accused and found no external injuries on him and the accused was apparently healthy and so on, and she issued Ex.P10 wound certificate. Therefore, the medical evidence rules out that by the time PW.2 and the accused were examined clinically, they were having any injuries. Then it has to be examined whether there was a possibility of healing of the injuries, if any, received by PW.2 because of lapse of 7 days. Therefore, the medical evidence rules out that by the time PW.2 and the accused were examined clinically, they were having any injuries. Then it has to be examined whether there was a possibility of healing of the injuries, if any, received by PW.2 because of lapse of 7 days. In Pratap Misra's case (1 supra) relied on by the learned counsel for the petitioner/ accused, it is observed: "..In the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. It is true that the learned Sessions Judge was impressed with the demeanour of this witness, but that by itself is not sufficient to prove the case if the allegation of the prosecution suffers from inherent improbabilities. The opinions of medical experts show that it is very difficult for any person to rape single-handed a grown up and an experienced woman without meeting stiffest possible resistance from her. In the instant case, according to the evidence given by P.W.1, A-1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so, we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by P.W. 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape... The theory propounded by the learned Sessions Judge was that as the appellants were N. C. C. students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like P.W.1." It is further observed as follows: "If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs or other part of the body. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like P.W.1." It is further observed as follows: "If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs or other part of the body. The learned Sessions Judge, with whom the High Court has agreed, seems to have brushed aside this important circumstance on the ground that as the prosecutrix was examined by the Doctor on Apri120, 1972, at about 5 P. M about 17 hours after the occurrence Injuries may have disappeared and has relied on an observation of Taylor at p. 66 of his book which runs as follows: "Injuries from rape may soon disappear or become obscure, especially in women who have been used to sexual intercourse." The Sessions Judge explained that as the prosecutrix was habituated to sexual intercourse injuries may have disappeared. While referring to one part of the observation of Taylor, the learned Sessions Judge has completely lost sight of the other part which explains the real issue and which runs thus: " After 3 or 4 days, unless there has been unusual degree of violence, no traces may be found. Where there has been much violence, the signs may of course persist longer". Thus, if such a serious violence was caused to the prosecutrix by the appellants, the injuries are not likely to have disappeared before 2 or 3 days and the signs were bound to persist at least when she was examined by the Doctor." It is also observed as follows: "The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter". In Puttall's case (2 supra), it ~s held as follows: "The next question that arises is whether the sexual intercourse was committed with or without her consent. It is in evidence that there was no external injury of any kind whatsoever either on the body of the girl or that of the appellant. In Puttall's case (2 supra), it ~s held as follows: "The next question that arises is whether the sexual intercourse was committed with or without her consent. It is in evidence that there was no external injury of any kind whatsoever either on the body of the girl or that of the appellant. It is inconceivable that a grown-up girl of about 16 years, would submit to a forcible intercourse without struggling. Had she struggled, there would have been some scratches on the face, the hands and the arms of the appellant as well as on her own body. She was subjected to inter course in a field where the ground must be uneven and rough. The appellant must have kept her down by applying force and that was bound to cause some scratches or bruises on her back through friction. The complete absence of any injury or scratch on the person of the appellant and the victim suggests very clearly that intercourse was not forcible. The girl must have been a cons en ting party. This conclusion derives force from the Statement of the appellant, who had stated that he was in love with the girl for the past one year and had been meeting her off and on. To me it appears more probable that on the day of the occurrence the girl must have (succumbed 7) to the advances of the appellant and must have agreed to an intercourse. I, therefore, find that the sexual intercourse was not forcible but was with the consent of the girl." Further, in Modi's Medical Jurisprudence, with regard to the age of abrasions and also healing process, it is stated as follows:- "Age of the Abrasions: The exact age cannot be determined. Fresh: Bright red. 12 to 24 hours: Lymph and blood dries up leaving a bright scab. 2 to 3 days : Reddish-brown scab. 4 to 7 days : Epithelium grows and covers defect under the scab. Fresh: Bright red. 12 to 24 hours: Lymph and blood dries up leaving a bright scab. 2 to 3 days : Reddish-brown scab. 4 to 7 days : Epithelium grows and covers defect under the scab. After 7 days : Scab dries, shrinks and falls off." If the version of PW.2 that she was dragged in the field upto vanka and was subjected to the offence of rape on hard surface is true, definitely she would have struggled against the accused and received scratches and bruises on her back and front as the case may be through friction and also received injuries on her private parts, face and arms, which recovered long time for necessary healing, but the doctor who examined PW.2 found no injuries on her body, and therefore, the evidence of PW.2 that she received injuries then cannot be accepted to be true and correct and, in the circumstances of the case, it clearly appears that she was a consenting party to have sexual intercourse with the accused and that is why no injuries were found on her body when she was examined by the Medical Officer. The decisions cited and the corresponding observations made are quite applicable herein. Therefore, it is very categorical that there is no trustworthy evidence with reference to the alleged offence and the evidence of PWs.1 and 2 in that context is brushed aside. For the reasons stated above, the accused is entitled for benefit of doubt. 9. In the result, the Criminal Revision Case is allowed and the conviction and sentence recorded by the courts below are set aside and the appellant/accused is acquitted of the charge framed against him and his bail bonds are discharged.