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2023 DIGILAW 1435 (AP)

Vallepu Koteswara Rao v. State of Andhra Pradesh

2023-11-04

A.V.RAVINDRA BABU

body2023
JUDGMENT A.V.RAVINDRA BABU, J. - The judgment, dtd. 14/12/2010, in Sessions Case No.78 of 2009 on the file of Sessions Judge, Mahila Court, Vijayawada (for short, 'the learned Sessions Judge'), is under challenge in the present Appeal filed by the appellant, who was the unsuccessful accused in the aforesaid Sessions Case. 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. Sessions Case No.78 of 2009 arose out of the committal order in Preliminary Registered Case (PRC) No.24 of 2008 on the file of the Court of Chief Metropolitan Magistrate, Vijayawada (for short, 'the learned Chief Metropolitan Magistrate') pertaining to Crime No.647 of 2007 of Law and Order Police Station, Vijayawada for the offence under Sec. 376 (2)(f) of the Indian Penal Code, 1860 (for short, 'the IPC'). 4. The case of the prosecution, in brief, according to the charge sheet filed by the State, represented by the Inspector of Police, I Town Police Station, Vijayawada City is as follows: (i) The accused is a resident of Gollapudi, Vijayawada. He is an Auto Driver. LW.1 - Vallepu Janaki is the de-facto complainant. She is also resident of Gollapudi. Her husband, LW.3 - Vallepu Guravaiah is also an Auto Driver. LW.2 (hereinafter referred to as 'the victim'), aged 12 years, is the daughter of LW.1 and LW.3. She is studying 5th class. Accused is the younger brother of LW.3, father of the victim. LW.1 used to do servant maid works at some houses and used to leave the house early in the morning and return at about 11:00 or 11:30 a.m. Likewise LW.3, father of the victim, also used to go out in the morning with his Auto and return to the house during nights. (ii) On 18/11/2007, when the parents of the victim went out on their works, the victim (LW.2) and her brother - Vallepu Ravi Kumar (LW.4) and her cousin brother - Vallepu Malleswara Rao (LW.5) were present in the house. Then, at about 10:30 a.m., accused, who is no other than her junior paternal uncle, came to the house of the victim, when she was eating curd rice. He gave Rs.1.00 each to LW.4 and LW.5 and sent them out saying to get some eatables. He took the victim to his house. His wife was also not present in the house. He gave Rs.1.00 each to LW.4 and LW.5 and sent them out saying to get some eatables. He took the victim to his house. His wife was also not present in the house. He laid the victim on the iron tubular cot in his house, removed her pant (bottom of Punjabi dress) and underwear, overpowered her and inserted his penis into her vagina forcibly. She got much pain at her vagina and also resisted him asking innocently as to 'Babayi, what is this' and thereby the accused committed rape on her inhumanely. She got heavy bleeding from her vagina and became unconscious. On seeing this, the accused got confusion. He called LW.6 - Pasupuleti Manikyam to his house and asked her to see the victim saying that she might have got menses for the second time. He also sent a word to LW.7 - Jada Ramana through LW.4 - Vallepu Ravi Kumar to come to his house and see the victim. He immediately went away from there. Meanwhile, at about 11:30 a.m., LW.1 came to her house and found her daughter missing from the house. On search, she noticed her daughter in a pool of blood, unconsciously on the cot in the house of the accused. Then, LW.6 and LW.7 also came there and noticed the victim but they did not suspect any bad on the part of the accused because he is the junior paternal uncle of the victim. LW.1 and LW.6 immediately shifted the injured to the nearby private hospital where the doctor advised them to take her to Government General Hospital (GGH), Vijayawada as her condition is very serious. Immediately, they shifted the victim to GGH, Vijayawada, where LW.18 - Dr. N. Durga Srilakshmi, Woman Medical Officer, on examination, declared that she was raped brutally. Then only LW.1 and LW.6 came to know about the offence committed by the accused. LW.6 informed the same over phone to LW.8 - Namburi Hemantha Rao, who in turn informed the incident to all in the locality. Then, LW.3 - father of the victim went to the hospital and found his daughter undergoing treatment and learnt the details of the offence through her. Thus, the accused, without considering the victim as daughter of his elder brother, inhumanely and brutally, committed rape on a minor girl and absconded. Then, LW.3 - father of the victim went to the hospital and found his daughter undergoing treatment and learnt the details of the offence through her. Thus, the accused, without considering the victim as daughter of his elder brother, inhumanely and brutally, committed rape on a minor girl and absconded. (iii) On 19/11/2007 at about 07:00 p.m. LW.1 came to I Town Police Station, Vijayawada and presented a report about the occurrence. LW.21 - M. Naveen, Sub-Inspector of Police, Law and Order I Town Police Station, Vijayawada registered the same as FIR in Crime No.647 of 2007 for the offence under Sec. 376(2)(f) IPC and submitted Express FIR to all the concerned Officers. LW.22 - Y.V.Ramana, Inspector of Police, I Town P.S., Vijayawada took up further investigation, inspected the scene of offence in the presence of LW.16 - Vanguru Devadasu and LW.17 - Chittineni Subbarao, mediators, prepared observation report and rough sketch. He seized the clothes of the victim worn at the time of offence under the cover of observation report. He recorded the statements of the witnesses under Sec. 161 Cr.P.C. (iv) LW.18, Woman Medical Officer, who examined the victim, issued the wound certificate opining that there is injury to the vaginal wall caused by sexual intercourse and there is clinical evidence of sexual intercourse. (v) LW.19 - A. Subba Rao, Head Master of MPP UP School, Gollapudi issued the study certificate of the victim stating the date of birth of the victim as 11/10/1996. The accused was arrested on 21/11/2007 and, on his voluntary confession before the mediators, the bloodstained shawl worn by him at the time of offence was seized under the cover of mediators report. He was subjected to medical examination. Later he was sent to judicial custody. The material objects were forwarded to RFSL, Vijayawada through the office of the ACP, West Zone, Vijayawada City. LW.20 - Dr. P. Chandrasekhar Rao, who examined the accused, issued the report opining that there is nothing to suggest the accused is not capable of performing sexual intercourse. LW.23, Inspector of Police, I Town Police Station, Vijayawada finalized the investigation and filed charge sheet before the learned Chief Metropolitan Magistrate. 5. The learned Chief Metropolitan Magistrate, Vijayawada took cognizance of the case for the offence under Sec. 376(2)(f) IPC and numbered it as PRC No.24 of 2008. LW.23, Inspector of Police, I Town Police Station, Vijayawada finalized the investigation and filed charge sheet before the learned Chief Metropolitan Magistrate. 5. The learned Chief Metropolitan Magistrate, Vijayawada took cognizance of the case for the offence under Sec. 376(2)(f) IPC and numbered it as PRC No.24 of 2008. After compliance of necessary formalities under Sec. 207 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C') and exercising the powers under Sec. 209 Cr.P.C., the learned Chief Metropolitan Magistrate committed the case to the Court of Session and thereupon, it was numbered as S.C. No.78 of 2009 and made over to the Court of learned Sessions Judge, Mahila Court, Vijayawada for disposal in accordance with law. 6. After appearance of the accused before the learned Sessions Judge, Mahila Court, Vijayawada, a charge under Sec. 376(2)(f) IPC was framed and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried. 7. The prosecution, in order to establish the guilt against the accused, examined PWs.1 to PW.11 and got marked Exs.P-1 to P-11 and MO.1 and MO.2. 8. After closure of the evidence of the prosecution, accused was examined under Sec. 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the incriminating circumstances and stated that he has no defence evidence and nothing to show. 9. The learned Sessions Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the accused guilty of the charge under Sec. 376(2)(f) IPC and, after questioning him about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs.1, 000.00 in default to suffer Simple Imprisonment for 6 months. 10. Felt aggrieved of the same, the un-successful accused filed the present Appeal challenging the judgment of the learned Sessions Judge in convicting him under Sec. 376(2)(f) IPC. 11. 10. Felt aggrieved of the same, the un-successful accused filed the present Appeal challenging the judgment of the learned Sessions Judge in convicting him under Sec. 376(2)(f) IPC. 11. Before going to frame the points for determination, this Court would like to make it clear that as the accused was not prosecuting the Appeal, properly, and he was not getting any representation made on his behalf, initially a Bailable warrant was issued and in spite of the execution of Bailable Warrant and presence of the accused even thereafter he failed to give proper instructions to his Advocate to advance the arguments and later this Court secured the presence of the accused by issuing a Non Bailable Warrant and as of now the accused is undergoing the sentence of imprisonment in pursuance of execution of Conviction Warrant entrusted by the trial Court, pending disposal of the Appeal. 12. Now, in deciding this Appeal, the points that arise for consideration are as follows: 1) Whether prosecution before the trial Court proved that the accused committed rape against the victim (PW.2), aged 12 years, in the manner as alleged? 2) Whether the prosecution proved the charge under Sec. 376(2)(f) IPC against the accused beyond reasonable doubt? 3) Whether the judgment is sustainable under law and facts and whether there are any grounds to interfere with the impugned judgment? POINT Nos.1 and 2: 13. Sri D.S.N.V. Prasad Babu, learned counsel, representing Sri Md. Saleem Basha, learned counsel for the appellant, would contend that there was delay of 1 day in lodging Ex.P-1 report to the Police. The prosecution did not explain as to why there was delay of 1 day in lodging Ex.P-1 report. The evidence of PW.1 and PW.2 - the victim, is not in corroboration. Except the evidence of PW.1, there is no other direct evidence to speak about the occurrence of incident. The evidence of PW.1 is hearsay in nature. PW.3, brother of the victim, is a child witness and he was a tutored witness, whose evidence is not at all convincing. The prosecution did not examine the private hospital doctor before whom firstly the victim was taken and it is fatal to the case of prosecution. Though the victim was referred to GGH, Vijayawada later the prosecution did not explain as to why Outpost Police therein did not record the statement of the victim as a Medico Legal Case. The prosecution did not examine the private hospital doctor before whom firstly the victim was taken and it is fatal to the case of prosecution. Though the victim was referred to GGH, Vijayawada later the prosecution did not explain as to why Outpost Police therein did not record the statement of the victim as a Medico Legal Case. So, on account of the delay of 1 day, possibility for false implication of the accused in this case cannot be ruled out. No injuries were found on the person of victim, if really, the rape was committed by the accused brutally. There was absence of spermatozoa on the person of victim, which rules out the allegation of rape. Non-examination of private doctor is fatal to the case of prosecution. Learned counsel would further submit that the un-corroborated evidence of PW.2 cannot be believed and further the sentence imposed against the accused is also harsh. He would further rely upon a decision of the Hon'ble Apex Court in Phul Singh v. State of Haryana, (1979) 4 SCC 413 and contend that, in that case, considering the age of the accused as that of 22 years and that he had no past criminal history, extended benefit of parole to the accused. Similar analogy can be extended to the accused in the present case. With the above submissions, learned counsel for the appellant would contend when the evidence on record does not warrant the conviction and even otherwise, in view of the decision of Hon'ble Apex Court in Phul Singh (supra), this Court can show some sympathy towards the accused for reducing the sentence of imprisonment. 14. Sri N. Sravan Kumar, learned Special Assistant, representing learned Public Prosecutor, would contend that the accused is no other than the junior paternal uncle of the victim. The victim was admitted into Hospital after occurrence of the incident and she has undergone treatment in the hospital. The laches, if any, on the part of the Medical Officer in not giving medical intimation to the Police to record the statement of the victim would not enable the accused to contend that the case is false. There was brutal rape, which is evident from the medical evidence. PW.2 withstood the cross-examination. In a case of this nature, there would be no direct evidence. There was brutal rape, which is evident from the medical evidence. PW.2 withstood the cross-examination. In a case of this nature, there would be no direct evidence. PW.3, brother of the victim, supported the acts against the accused as if PW.3 was sent out with some other reason. The evidence on record would reveal that having found that the victim is profusely bleeding on account of the act of the accused, accused invented a theory that as if there was menstrual period to the victim and such a defence was falsified before the trial Court. PW.1, PW.2 and PW.3 have no reason to depose false against the accused because they are close blood relatives. The act of the accused is inhuman. The learned Sessions Judge rightly believed the evidence on record and convicted the accused. He would rely upon the decisions of the Hon'ble Apex Court in Mange v. State of Haryana, (1979) 4 SCC 349 and State of A.P. v. Bodem Sundara Rao., (1995) 6 SCC 230 Learned Special Assistant would further submit that the accused is liable for deterrent punishment and the learned Sessions Judge rightly imposed the Rigorous Imprisonment of 10 years as such the sentence imposed is not liable to be reduced. 15. PW.1 is the mother of victim. PW.2 is the victim. PW.3 is the brother of the victim. Accused is no other than the junior paternal uncle of the victim. The relationship, as above, is not in dispute. 16. Coming to the evidence of PW.1, the incident happened about 3 years prior to her evidence. By that time, the victim was studying 5th class and was aged 11 years i.e., completed 11 years and entered into 12th year. Her elder son was studying LKG and younger son was writing alphabets. The incident happened on a Sunday. As a maid servant, she went to duty in the morning and returned at 11:00 or 11:30 a.m. on that day. Her husband went out for auto duty on that day. Only children were present in the house. After her return, she found her daughter with heavy bleeding and was laid on a mat. On seeing the same, she was afraid and consulted her neighbor to know whether her daughter attained puberty. Her husband went out for auto duty on that day. Only children were present in the house. After her return, she found her daughter with heavy bleeding and was laid on a mat. On seeing the same, she was afraid and consulted her neighbor to know whether her daughter attained puberty. She came to know that in case of puberty, her daughter will not get that much bleeding as such she took her daughter to a private hospital i.e., Asha Hospital. They advised her to take her daughter to Government Hospital. When she asked the doctors they stated that the bleeding was not due to puberty but only due to forcibly sexual assault on her daughter. When the doctors enquired her daughter, she stated to them that the accused committed rape on her. Then, they have sutured her and she was unconscious for whole day and regained consciousness only on the next day. Her daughter informed her that accused entered into her house and by that time she was taking food. Accused gave Rs.1.00 each to the brothers of victim and asked them to go out to purchase some eatables as such took her daughter to his house and committed rape on her forcibly in spite of her resistance. By the time her sons returned from shop, her daughter came out from the house of accused without her undergarments and she was bleeding profusely. Her children also stated to her that accused secured one Ravanamma and got cleaned the blood on the floor of the house of accused. She, her daughter, accused and his wife and one Manikyam went to the Hospital on that day. Her husband also came to the Hospital in the evening. On the next day when her daughter informed about commission of offence by the accused, she got a written complaint through some known person and gave complaint in the I Town Police station. Ex.P-1 is the complaint given by her to the Police. Her daughter was in the Hospital for 8 days. Police examined her. On the date of incident, the victim was wearing green colour Punjabi dress. MO.1 is the top and bottom of green Punjabi dress with blood stains. MO.2 is the green colour shawl worn by the accused at the time of offence. 17. Her daughter was in the Hospital for 8 days. Police examined her. On the date of incident, the victim was wearing green colour Punjabi dress. MO.1 is the top and bottom of green Punjabi dress with blood stains. MO.2 is the green colour shawl worn by the accused at the time of offence. 17. Coming to the evidence of PW.2, victim, with regard to the incident in question, she deposed that at the time of incident, she was studying 5th class. Her father and accused were running autos. PW.1 was working as servant maid. She used to go for work at 06:00 a.m. and her father used to go for auto work at 09:00 a.m. The incident was happened on a Sunday while she was studying 5th class. Her younger brother was at her junior paternal aunt and she herself was in the house. She and her brothers were playing and, as she felt hungry, she went inside and was taking curd rice. Then, the accused came into the house and gave Rs.1.00 to each of her brothers to purchase some eatables and sent them out. The accused came at about 10:30 a.m. on that day. Accused took her to his house by saying that she can have food at his house. Thereafter, accused laid her down on a cot and removed her pant and committed rape forcibly in spite of her resistance and bleeding. Thereafter, accused laid her down in her house. As she was getting pain, she called her neighbors and, in the meanwhile, her mother came there. She informed about the incident to her mother. She (mother of the victim) wept and took her to hospital after changing her dress. She became unconscious in the Hospital and regained unconscious on the next day. 18. PW.3, younger brother of the victim, with regard to the incident in question, deposed that the incident was happened on Sunday. His father, who is Auto Driver, and his mother, who is a servant maid were not present in the house at the time of incident. When his mother went out for her work at 06:00 a.m., his father also went out for his duty on Auto afterwards. He, PW.2 and his cousin were playing at that time. When PW.2 was taking food, accused came to the house and gave Rs.1.00 each to him and his brother and called PW.2. When his mother went out for her work at 06:00 a.m., his father also went out for his duty on Auto afterwards. He, PW.2 and his cousin were playing at that time. When PW.2 was taking food, accused came to the house and gave Rs.1.00 each to him and his brother and called PW.2. Then, they (PW.3 and his cousin) went to the shop for purchase of eatables. After his return, the accused asked him to call his senior paternal aunt namely Manikyam, who took his sister to his house. Then, his mother came and took his sister to the hospital. 19. PW.4 is the person with whom the accused was stated to have made some enquiry after the incident in question and her evidence is that about 3 years ago, accused, on one day called and asked her to verify whether PW.2 had menstrual period for the 2nd time. She told that the victim attained puberty 15 days prior to the incident and a function was celebrated on that occasion. On hearing the same, she doubted how the victim can attain her menstrual cycle within 15 days. By that time, the victim was lying on a cot in the house of accused and there was huge blood on her dress. Meanwhile, PW.1 also came there. She and mother of PW.2 took the victim to the house of PW.1 and asked her as to what had happened but the victim did not state anything to them. As there was bleeding, they took her to a hospital at Gollapudi Bye-pass road. Accused also came along with them and, on examination of PW.2 doctors stated that she is in danger and advised them to go to Government Hospital. Then they took her to the Government Hospital at 01:00 p.m. When the doctor asked her specifically as to what happened, PW.2 informed to her mother (PW.1) about the incident and then she went to her house. PW.1 lodged a report on 19/11/2007. 20. PW.5 is the mediator for observation of the scene of offence. On 20/11/2007 at about 09:00 a.m. he along with LW.16 - Vanguru Devadasu acted as mediators for observation of the scene of offence situated at Gollapudi Krishna Karakatta and that Police observed the scene of offence and prepared observation report, which is Ex.P-2. 20. PW.5 is the mediator for observation of the scene of offence. On 20/11/2007 at about 09:00 a.m. he along with LW.16 - Vanguru Devadasu acted as mediators for observation of the scene of offence situated at Gollapudi Krishna Karakatta and that Police observed the scene of offence and prepared observation report, which is Ex.P-2. He also deposed that in the evening at 05:00 p.m. Police arrested the accused near Gollapudi Auto Stand in his presence and in pursuance of the disclosure statement, accused led them to his house and handed over the bloodstained shawl, worn by him at the time of commission of offence. MO.2 is the blood stained shawl. Ex.P-3 is the admissible portion in the confessional statement of the accused. Ex.P-4 is the seizure mahazar for seizure of MO.2. 21. PW.6 is the Woman Medical Officer, who examined the victim and her evidence in brief is that she worked as Assistant Professor in GGH, Vijayawada from 2001 to 2008. On 18/11/2007, she examined PW.2, aged 12 years, at about 02:00 p.m. She was brought by Woman Police Constable (WPC) of I Town Police Station, Vijayawada accompanied by her mother. Her mother informed her that sexual assault was committed on the victim by her maternal (sic) uncle followed by heaving bleeding from vagina. Her evidence is that on the date of examination, the victim was grossly pale and BP was 70/40 with feeble pulse. All these denote that she was in shock. She deposed that the victim did not cooperate for her internal examination due to pain as such on consent of her mother, she examined PW.2 under anesthesia. On examination, left lateral vaginal wall tear is extending to fourchette with profuse bleeding. She sutured the same and then the bleeding controlled. She transfused 2 pints of blood to stabilize the victim and discharged her in fit condition on 22/11/2007. Her vaginal swabs and smears were not taken due to profuse bleeding. Finally she opined that the injury to the victim was the result of sexual intercourse. She issued Ex.P-5 wound certificate. 22. PW.7 is the Head Master of the School, where PW.2 was studying 5th class at the relevant point of time. He issued Ex.P-6 study certificate of PW.2. According to him, as per the records available, the victim was born on 11/10/1996. 23. She issued Ex.P-5 wound certificate. 22. PW.7 is the Head Master of the School, where PW.2 was studying 5th class at the relevant point of time. He issued Ex.P-6 study certificate of PW.2. According to him, as per the records available, the victim was born on 11/10/1996. 23. PW.8, the then Assistant Professor in the Department of Forensic Medicine, S.M.C. Vijayawada from June 2007 to July, 2009, testified that he examined the accused on 22/11/2007 at 11:30 a.m. and ruled out the causes for his impotency and opined that he is not incapable of performing sexual intercourse. Ex.P-7 is the potency certificate of accused issued by him. 24. According to PW.9, the Sub-Inspector of Police, Bhavanipuram Sector, I Town Police Station, Vijayawada on 19/11/2007 at 05:00 p.m., he received a report from PW.1. Husband of PW.1 and another brother-in-law and mother-in-law also accompanied her to Police Station. He registered the complaint as a case in Crime No.647 of 2007 for the offence under Sec. 376(2)(f) IPC and issued FIR under Ex.P-8. The Inspector of Police took up further investigation. 25. PW.10 is the Investigating Officer. His evidence is that on 19/11/2007 while he was attending duty at High Court, he came to know about registration of FIR through PW.9. Then, he instructed the SI of Police to cause protection of the scene of offence. Then, he came to Vijayawada on 20/11/2007 and took up investigation. He visited the GGH, Vijayawada and recorded the statements of PW.1, PW.2 and LW.3. According to him, PW.1 brought the victim with the assistance of PW.4 and the incident was informed by her daughter. She also expressed her intention to handover the clothes of the victim, which she has worn at the time of commission of offence. He referred the victim to GGH, Vijayawada through WPC 94 to know whether the sexual assault was committed on her or not as already the victim was in medical treatment. He secured the presence of mediators i.e., PW.5 and LW.16 and went to the scene of offence along with the parents of PW.2. He observed the scene of offence, which is in the house of accused. They prepared the scene observation report. The ground and bloodstains on the cot were washed off by that time. PW.1 handed over the clothes (MO.1) from her house and he seized the same in the presence of mediators. He observed the scene of offence, which is in the house of accused. They prepared the scene observation report. The ground and bloodstains on the cot were washed off by that time. PW.1 handed over the clothes (MO.1) from her house and he seized the same in the presence of mediators. He examined PW.3 and LW.5 and recorded their statements. He also examined PW.4. He further examined other witnesses. He prepared rough sketch under Ex.P-9. Though he tried for the private doctor who examined the victim initially but he was not available. On 21/11/2007, he secured the presence of PW.5 and LW.16 and arrested the accused near Gollapudi Sara Kottu (arrack shop). Pursuant to the disclosure statement made by the accused, he seized MO.2 shawl worn by the accused at the time of commission of offence. Accused led them to his house and handed over the same. He seized the same under the cover of Ex.P-4 mahazarnama. After effecting arrest of the accused, he referred him to medical examination to know his sexual potency and thereafter sent him to judicial custody. On 7/12/2007, he forwarded the Material Objects to RFSL, for chemical analysis vide letter of advice under Ex.P-10. Subsequently, he was transferred. 26. PW.11 is the successor of PW.10. He deposed that he took up further investigation on 13/12/2007 and verified the investigation done by his predecessor. He examined PW.6 and PW.8 on 6/2/2008 and also PW.7 - Head Master and received study certificate of PW.2 under Ex.P-6. He also caused enquiries about the private doctor who treated the victim initially but he was not available. He received chemical analysis report on 4/1/2008 under Ex.P-11. After receipt of medical reports and completion of investigation, he filed charge sheet in this case. 27. Admittedly, it is a case where PW.1 came to know about the occurrence through PW.2 alone. In a case of this nature, at best, any culprit for commission of rape would prefer to commit it in a secluded place. There need not be any direct witness to the commission of rape. 27. Admittedly, it is a case where PW.1 came to know about the occurrence through PW.2 alone. In a case of this nature, at best, any culprit for commission of rape would prefer to commit it in a secluded place. There need not be any direct witness to the commission of rape. However, the prosecution sought to prove the guilt against the accused by relying on the evidence of PW.1, mother of the victim, PW.2 - victim and PW.3, who was sent out by the accused on the pretext of purchasing eatables so as to commit the offence against PW.2 and further the evidence of PW.4, with whom the accused alleged to have made some enquiry to escape from the offence as if there was a possibility for menstrual period of PW.2. 28. During cross-examination of PW.1, accused got suggested to her that on the date of offence, she along with her daughter went to I Town Police Station and lodged a report but subsequently the said report was suppressed and she gave a fresh report. She denied the said suggestion. She further denied that in the earlier report given by her daughter, they mentioned that the offence was committed by a known person but they implicated the accused on the next day suppressing the earlier report. She denied that MO.2 was not seized from the accused. She denied that she found her daughter with another boy in her house and got issued a complaint on the same day but subsequently implicated the accused. She denied that as her daughter had menstrual periods, she had severe bleeding and that accused is in no way concerned with the offence and that she is deposing false. 29. Coming to the evidence of PW.2, during her crossexamination, she deposed that the accused was not wearing pant at that time but he was wearing a lungi at the time of offence. She denied that she did not state so before Police. She denied that she and her mother went to I Town Police Station and then to Government Hospital on the requisition. Witness volunteers that when she regained consciousness, she was in the hospital. She denied that she had physical relationship with somebody in her house and she went to Police Station along with her mother and gave a complaint but subsequently suppressed it and implicated the accused. Witness volunteers that when she regained consciousness, she was in the hospital. She denied that she had physical relationship with somebody in her house and she went to Police Station along with her mother and gave a complaint but subsequently suppressed it and implicated the accused. She denied that she had profuse bleeding due to menstrual cycle but not due to commission of offence by the accused. She denied that on 18/11/2007, she gave report to I Town Police Station against somebody and thereafter suppressing the same, she falsely implicated the accused. 30. PW.3, during cross-examination, stated that accused is residing in front of their house. There are no windows to their house. Accused asked him to call his senior paternal aunt viz., Manikyam and also Ramana and he called Manikyam and she came to his house. 31. Turning to the evidence of PW.4, she denied that accused is in no way concerned with the offence and she is deposing false. 32. It is to be noted that it is PW.9 who took report from PW.1 under Ex.P-1 on 19/11/2007 at 05:00 p.m. and registered the FIR. During cross-examination, he deposed that as per the contents of the report, it is a cognizable offence. If there is any medical intimation from the Medical Officer, Police will go to the hospital and will record the statement. He was in the Police Station duty on 18/11/2007. He denied that he sent a WPC along with the requisition to Outpost Police Station on that day. Witness volunteers that when he received intimation from Outpost Police Station, on phone, he sent the WPC Outpost Police station as there was no other WPC available at Outpost PS on that day and it was also informed that the victim was unconscious and hence he sent a WPC. By virtue of the above answers elicited from the mouth of PW.9, during cross-examination, it is very clear that on admission of the victim into GGH, Vijayawada information was passed on to PW.9 as such he sent the WPC to Outpost PS as no WPC was available at Outpost PS. His answers in crossexamination are very clear that as the victim was in unconscious stage, her statement could not be recorded. He denied that on 18/11/2007 itself PW.1 along with her daughter gave a complaint and they suppressed the same and took another complaint on 19/11/2007. His answers in crossexamination are very clear that as the victim was in unconscious stage, her statement could not be recorded. He denied that on 18/11/2007 itself PW.1 along with her daughter gave a complaint and they suppressed the same and took another complaint on 19/11/2007. So the thing is that when there was heavy bleeding from the private parts of a rape victim, it was quite natural for the parents first to take care of the victim and accordingly they took the victim to the private hospital wherefrom they took the victim to GGH, Vijayawada. Though the Investigation Officer did not examine the private doctor, before whom firstly the victim was taken to, it is not going to affect the case of the prosecution in any way. 33. Apart from this, the evidence of PW.6, the Woman Medical Officer, reveals that she got information about the sexual assault from the mother of the victim. Apart from this, her evidence reveals that the victim was in shock and even she did not cooperate for internal examination due to pain. So, in such circumstances, it is rather improbable to assume that PW.1 could come to the Police Station on 18/11/2007 and could lodge a report. The accused wanted to take an advantage basing on the fact that unfortunately the statement of victim could not be recorded by the Police as she was in utter shock and even she did not co-operate for her internal examination. In a case of this nature, when the alleged offence was committed by no other than the junior paternal uncle of the victim, it was quite natural for the victim's family to think over to lodge report immediately. Viewing the same, this Court is of the considered view that the contention of the accused that prosecution suppressed the earlier report on 18/11/2007 and brought into picture the name of the accused cannot stand to any reason. 34. Apart from this, in a case of this nature, when the close blood relative committed the offence against victim, the delay is bound to occur. It is not as though PW.1 and PW.2 did not move any little finger after the alleged commission of offence. 34. Apart from this, in a case of this nature, when the close blood relative committed the offence against victim, the delay is bound to occur. It is not as though PW.1 and PW.2 did not move any little finger after the alleged commission of offence. To provide necessary medical aid, firstly the victim was taken to a private hospital and from there to GGH, Vijayawada and after arrival of the husband of PW.1, and after looking into the situation they thought to bring the fact to the notice of Police and that is why they could lodge the report under Ex.P-1 on the next day evening. Under the circumstances, even the delay in lodging Ex.P-1 report is not at all fatal to the case of prosecution. 35. In view of the defence of the accused that the victim along with one boy was found in her house and that he was falsely implicated, this Court would like to deal with as to what is the scene of offence. According to PW.1, victim informed to her that the accused took her to his house and committed rape. There is evidence of PW.2, the victim, in categorical terms that the offence was committed in the house of the accused. PW.3, brother of the victim, testified that on the pretext of purchase of eatables, accused sent him and his cousin out by giving Rs.1.00 each and later, after their return, accused asked him to call his senior paternal aunt namely Manikyam and the Manikyam took his sister to his house. So, even according to the evidence of PW.3, victim was taken to the house of the accused. There is categorical evidence of PW.4 to the effect that she found the victim lying on the cot in the house of the accused and there was huge blood on the dress of the victim. There is evidence of PW.5, mediator, to the effect that he acted as mediator for observation of the scene of offence and observation of the scene of offence was drafted in the house of the accused. The evidence of PW.10 - Investigating Officer reveals that the scene of offence was situated in the house of the accused. So, the prosecution has categorically established the scene of offence as the house of the accused. The evidence of PW.10 - Investigating Officer reveals that the scene of offence was situated in the house of the accused. So, the prosecution has categorically established the scene of offence as the house of the accused. The defence of the accused as if somebody committed the offence against PW.2 or she was found with a boy in her house is nothing but baseless. 36. The mode of commission of offence by the accused against the victim is such that when the victim was in her house along with her brother and cousin, accused came to her house and gave Rs.1.00 each to PW.3 and another and asked them to go out and purchase some eatables as such they went away. Then, the accused took the victim to his house and committed rape. PW.3 categorically testified that when he, PW.2 and his cousin were playing and PW.2 was taking food, accused came there and sent him and his cousin by giving them Rs.1.00 each to purchase some eatables. During the course of cross-examination of PW.3, absolutely the above said fact was not in dispute. Even PW.3 reiterated in his cross-examination that accused asked him to call his senior paternal aunt namely Manikyam and Ramana and accordingly, he called them. So, the crucial evidence spoken to by PW.3 about the manner in which he and his cousin were sent out is not disputed by the accused during the course of his entire cross-examination. Apart from this, there is categorical evidence of PW.4 that accused on one day called her to his house and asked her as to whether PW.2 had menstrual period for the second time. She attained puberty 15 days prior to the incident and then she doubted. Then PW.2 was lying on a cot in the house of accused and there was huge blood on her dress. Except putting a suggestion that accused is in no way concerned with the offence, he did not dispute in her cross-examination that accused called her to his house and asked her as to whether PW.2 had second menstrual period within 15 days. So, with regard to the crucial evidence given by PW.4, no contra version was suggested in her cross-examination. So, absolutely the enquiry made by the accused with PW.4 by calling her to his house as to whether PW.2 can have second menstrual period within 15 days was not in dispute. So, with regard to the crucial evidence given by PW.4, no contra version was suggested in her cross-examination. So, absolutely the enquiry made by the accused with PW.4 by calling her to his house as to whether PW.2 can have second menstrual period within 15 days was not in dispute. So, it all goes to show that the victim after commission of offence got profuse bleeding. It appears that to cover up the issue accused made an enquiry with PW.4 as if can there be a possibility for second menstrual period so as to put up a theory that she got second menstrual period. This deliberate act made by the accused is nothing but with a mala fide intention to throw blame on PW.2, which shows the guilty consciousness of the accused. 37. Law is well settled that in a case of rape, conviction can be sustained basing on the solitary testimony of the prosecutrix. Only thing that has to be seen is as to whether such solitary evidence of the prosecutrix is inspiring confidence in the mind of the Court. Accused is no other than the junior paternal uncle of PW.2. Place of offence was in the house of accused. There is corroboration to the evidence of PW.1 and PW.2 with regard to the manner in which accused sent out PW.3 and another so as to get a situation that the victim alone would be available. Accordingly, he took the victim to his house. Presence of the victim with profuse bleeding in the house of the accused was also supported by PW.4. Victim had no reason, whatsoever, to falsely implicate the accused. It is not a case where the accused elicited any probabilities about any bitter animosity between him and parents of PW.2. In the circumstances, no person like victim would venture to allege that his junior paternal uncle committed heinous offence of rape unless the incident is truly happened. The evidence on record altogether excludes any probability for false implication of the accused. 38. There is corroboration to the testimony of PW.2 from the medical evidence. The evidence of PW.6 proves the injury to the private part of the victim on account of the forcible rape, which is quietly evident. The evidence on record altogether excludes any probability for false implication of the accused. 38. There is corroboration to the testimony of PW.2 from the medical evidence. The evidence of PW.6 proves the injury to the private part of the victim on account of the forcible rape, which is quietly evident. Though it is the contention of the accused that there were no traces of spermatozoa in the private part of the victim but, even according to explanation to Sec. 375 IPC, mere penetration is sufficient and there need not be any ejaculation of spermatozoa. Hence, the contention of accused that, if really, rape was committed, there would have been traces of spermatozoa cannot stand to any reason. Having regard to the above, I am of the considered view that the evidence of PW.2 is quietly sufficient to show that the accused committed heinous offence of rape against PW.2, who is no other than his daughter by courtesy as he is younger brother of father of PW.2. 39. Turning to the decision of the Hon'ble Apex Court in Mange (2nd supra), the Hon'ble Apex Court, while dealing with the facts and circumstances therein held that conviction can be based on the sole testimony of an eye witness with regard to the offence of rape. In Mange (2nd supra), prosecutrix was not examined. The mother of the prosecutrix was examined and even then the Hon'ble Apex Court could found the reliability in the evidence of mother of the prosecutrix relating to factual matrix. The present case is quietly on better footing than the factual scenario in Mange (2nd supra) for the reason that, in the instant case, victim was examined as PW.2, who fully supported the case of prosecution and withstood the cross-examination. The principle in Mange (2nd supra) is that the conviction against the accused can be on the sole testimony of an eye witness. Here, PW.2 is no other than the prosecutrix, whose evidence is convincing and her evidence has corroboration on crucial aspects from PW.3 and PW.4 and further from the evidence of PW.6, the Medical Officer, who treated the victim at GGH, Vijayawada. Here, PW.2 is no other than the prosecutrix, whose evidence is convincing and her evidence has corroboration on crucial aspects from PW.3 and PW.4 and further from the evidence of PW.6, the Medical Officer, who treated the victim at GGH, Vijayawada. Having regard to the above, I am of the considered view that the prosecution before the learned Sessions Judge, Mahila Court, Vijayawada categorically proved that on the fateful day, accused committed heinous offence of rape against PW.2, who is no other than his daughter by courtesy, beyond reasonable doubt. 40. Turning to the contention of learned counsel for the appellant that in case of dismissal of the Appeal, for any valid reason, the Court may reduce the sentence of imprisonment by relying on the decision of the Hon'ble Apex Court in Phul Singh (1st supra), absolutely, the factual matrix in the above said case altogether stood on a different footing and further it is a case where the offence was under Sec. 376 IPC. Here, the charge against accused is under the aggravated form of the offence of rape. In Phul Singh (1st supra), the allegations were of 376 IPC and the offence under Sec. 376 IPC was punishable with imprisonment which shall not be less than 7 years and it may extend to 10 years and shall also be liable to fine. The Court may with adequate reasons reduce the term of imprisonment. Under the aforesaid circumstances, the Hon'ble Apex Court considering the age of the accused as that of 22 years, with no past criminal antecedents and the allegations were that he committed rape of his cousin's wife, reduced the term of imprisonment from Rigorous Imprisonment of 4 years to 2 years. 41. Coming to the present case on hand, it is rather shocking to note that the victim is no other than the daughter of the accused by courtesy. He is blood relative to PW.2, being the younger brother of her father. The punishment provided under Sec. 376(2)(f) IPC is Rigorous Imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the persons natural life and also fine. Sec. 376(2) IPC contemplates certain aggravated forms of rape. The punishment provided under Sec. 376(2)(f) IPC is Rigorous Imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the persons natural life and also fine. Sec. 376(2) IPC contemplates certain aggravated forms of rape. Apart from this, there is no dispute that the age of the victim was below 12 years as on the date of offence. So, the prosecution has categorically proved the aggravated form of offence of rape against the accused. There is also a proviso that, for any adequate and special reasons to be mentioned in the judgment, the Court may impose a sentence of imprisonment for a term of less than 10 years. 42. The learned Special Assistant, representing learned Public Prosecutor, would rely upon a decision of the Hon'ble Apex Court in Bodem Sundara Rao (3rd supra) to contend that the term of imprisonment is not liable to be reduced. In Bodem Sundara Rao (3rd supra), the Hon'ble Apex Court dealt with the case in the scenario that there were no mitigating circumstances on record. It was a case where the High Court reduced the term of imprisonment without proper reasons. The Hon'ble Apex Court looking into the fact that there were no mitigating circumstances found fault with the judgment of the High Court and set-aside the judgment of High Court of Andhra Pradesh. 43. Coming to the present case on hand, considering the fact that the accused committed heinous offence of rape against PW.2, who is no other than the daughter of his elder brother, absolutely, I do not find any mitigating circumstances to take a lenient view. Hence, the contention of learned counsel for the appellant/accused that the Court may reduce the term of imprisonment deserves to be rejected. POINT No.3: 44. In the light of the above reasons, the learned Sessions Judge, Mahila Court, Vijayawada rightly appreciated the entire evidence on record and rightly convicted and sentenced the accused. Under the circumstances, judgment in Sessions Case No.78 of 2009, dtd. 14/12/2010, on the file of Sessions Judge, Mahila Court, Vijayawada is sustainable under law and facts and absolutely there are no grounds, whatsoever, to interfere with the same. 45. In the result, the Criminal Appeal is dismissed confirming conviction and sentence imposed against the appellant/accused in Sessions Case No.78 of 2009, dtd. 14/12/2010, on the file of Sessions Judge, Mahila Court, Vijayawada is sustainable under law and facts and absolutely there are no grounds, whatsoever, to interfere with the same. 45. In the result, the Criminal Appeal is dismissed confirming conviction and sentence imposed against the appellant/accused in Sessions Case No.78 of 2009, dtd. 14/12/2010, on the file of Sessions Judge, Mahila Court, Vijayawada. 46. The Registry is directed to take steps immediately under Sec. 388 Cr.P.C to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 10/11/2023 and on such certification, the trial Court shall take necessary steps to forward a copy of this judgment to the appellant/accused, who is lodged in Central Prison, Rajamahendravaram. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. Consequently, Miscellaneous Applications pending, if any, shall stand closed.