IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1202 OF 2004 Between:
Jadi Ravi . PETITIONER AND The State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT The Court made the following:
THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1202 OF 2004 ORDER:
This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”) is directed against the Judgment, dated 13.07.2004, in Crl.A.No.44 of 2001 on the file of the Sessions Judge, Karimnagar , whereunder and whereby, the conviction of the petitioner/accused of the offence punishable under Section 376 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month, recorded in the judgment, dated 11.04.2001, in S.C.No.405 of 2000 on the file of the Assistant Sessions Judge, Karimnagar, were confirmed.
2. The brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows:
PW.2 is the victim in this case. She was aged about 14 years as on the date of offence. On 14.06.1999 at about 05:00 AM she went to a place near canal in the village to attend calls of nature. Suddenly, the accused came there, took away the girl and forcibly committed rape on her. On hearing the cries of the victim girl, PW.1 – mother of the victim girl, rushed to the spot and found the accused lying on her daughter. On seeing her, the accused ran away from the scene. Then PWs.1 and 2 went to the village. As the father of the victim girl was not available in the village, report to the police was not given immediately. After the arrival of the father of the victim girl, a complaint was lodged on 15.06.1999. Police registered a case in Cr.No.62 of 1999 for the offence punishable under Section 376 I.P.C., took up investigation and examined witnesses. On 16.06.1999, PW.2 was referred to the District Headquarters Hospital, Karimnagar, for medical examination and report. PW.8 - a lady medical officer examined her, preserved the smear slides and sent them to the Forensic Science Laboratory. After receipt of report from the Forensic Science Laboratory, the doctor gave a final opinion that PW.2 was subjected to intercourse. Police observed the scene of occurrence and prepared a crime detailed Form. The accused was arrested and sent to the doctor for examination with regard to the potency test. After completion of investigation, police filed charge sheet.
3. A charge under Section 376 I.P.C. was framed against the accused, and when the same was read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.
4. To substantiate its case, the prosecution examined PWs.1 to 8 and got marked Exs.P-1 to P-7 besides case properties MOs.1 to 4.
5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same and reported no evidence.
6. The trial Court, upon considering the evidence on record, accepted the evidence of PWs.1 and 2 and found the accused guilty of the offence punishable under Section 376 I.P.C. and accordingly, convicted and sentenced him as stated above. Aggrieved by the same, the accused preferred an appeal before the appellate Court, which confirmed the judgment of the trial Court. Challenging the same, the present revision is filed by the accused.
7. Now the point for determination is whether the prosecution had proved the guilt of the accused beyond all reasonable doubt and whether the judgments of both the Courts below are correct, legal and proper?
8. Learned counsel appearing for the petitioner contended that there is no evidence to show that the victim girl was aged less than 16 years as on the date of incident; that there was a delay of 24 hours in lodging Ex.P- 1 – complaint; and that the evidence of PW.2 cannot be accepted because it is not in corroboration with the evidence of PW.8 with regard to the injuries and hence, he prays to set aside the impugned judgments.
9. On the other hand, learned counsel appearing for the learned Public Prosecutor contended that the concurrent findings given by the two Courts below need not be interfered with, in view of the fact that they are shown to be not illegal and incorrect; that, some delay in lodging the complaint, cannot be a ground to disbelieve the evidence of PW.2; that the evidence of PW.2 coupled with the evidence of PW.1 shows that the accused committed rape on the minor girl and hence, she prays to dismiss the Criminal Revision Case.
10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. This Court cannot re- appreciate the evidence sitting as if in an appeal. Unless the findings are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record.
11. The evidence of PW.2 would go to show that on 14.06.1999 at about 05:00 AM she went to attend the calls of nature from her house to a canal, which is located at a distance of 30 yards from her house and while she was attending calls of nature, the accused approached, lifted and took her to the outside of the canal and removed his underwear and lifted her petty coat and pierced his penis into her private parts and committed rape on her. It is in her evidence that while the accused was performing sexual intercourse, she raised cries and on hearing her cries, PW.1 - mother of the victim girl, rushed to the spot and on seeing her, the accused ran away. Ex.P-5 is the certificate issued by PW.8 – lady medical officer. She examined PW.2 on 16.06.1999 at about 08:45 AM. The age of the victim girl was noted as 16 years. In view of the statement made by the doctor and further the victim girl herself admitted that she was aged about 19 years as on the date of offence, it can be said that PW.2 was not minor by the date of offence.
12. There is no prior enmity for PW.2 against the accused so as to implicate him falsely in a case of this nature. If PW.2 was a consenting party to the act of sexual intercourse, certainly she would not have raised cries, drawing the attention of her mother and others. The evidence of PW.2 is very clear that while the accused was committing sexual act on her, after removing his clothes and lifting her petty coat and committing the rape forcibly, she raised the cries, and on hearing her cries, her mother rushed to the scene of occurrence.
13. The scene of occurrence is located at a distance of 30 yards from the house of the victim girl. It is not uncommon for a girl like PW.2 to go to answer the calls of nature in the early hours of the day to a nearby place.
Though it is stated that PW.2 sustained injuries while the accused committing rape on her, the doctor, who examined her, did not find any injuries on the body of the victim. On that ground, it cannot be said that no rape was committed on her. If the scene of occurrence is smooth and was having a mud, there was no scope or possibility for the victim to sustain injuries while she was resisting at the time of committing rape. There must be a strong motive for PW.2 to falsely foist a case of this nature. There is no such evidence elicited from the evidence of PWs.1 to 3, as to the reason or motive, for them to implicate the accused falsely. As seen from the evidence, PW.2 was an unmarried girl, and so, her parents would not have gone to the extent of lodging a false complaint against a innocent person, stating that their daughter was subjected to rape, in which case, PW.2 will be looked down in the society and her marriage prospects would be affected severely as nobody would come forward to marry her, if they lodged a false complaint. So, under these circumstances, PWs.1 and 3 would not venture to give a false complaint against the accused involving the chastity of their daughter.
14. Further, the evidence of PW.2 is completely in corroboration with the medical evidence. PW.8 – Doctor preserved the vaginal slabs and sent them to the Forensic Science Expert. The Expert gave Ex.P-6 report about the finding of human semen and spermatozoa on the petty coat and drawer of the victim girl. Basing on the forensic science laboratory report, PW.8 opined that there was evidence of intercourse. Therefore, there is no other reason to doubt the evidence of PW.2. That is the reason why both the Courts below placed implicit reliance on the evidence of PW.2 and there are no grounds to interfere with the said finding.
15. Coming to the delay in filing the First Information Report, proper explanation was given by PWs.1 and 2 that when PWs.1 and 2 returned to the house, PW.3 - father of the victim girl, was not available in the village. On the next day, when PW.3 came to the house, he was informed about the incident. Thereafter, a complaint was lodged. The delay of 24 hours in this case is not shown to have been taken with a view to implicate the accused falsely. Because there was no male assistance to rush to the police station, PW.1 did not go to the police station. Therefore, when the delay has been properly explained, it cannot be said to be fatal to the case of the prosecution. Even assuming that the delay was not explained, still, that by itself is not a ground to discredit the testimony of prosecution witnesses, unless it is shown that the delay was deliberate one with a view to implicate the accused falsely. Such a false implication cannot be inferred from the facts and circumstances of the case. Therefore, there are no grounds to interfere with the conviction recorded in the impugned judgments.
16. With regard to the sentence, the petitioner was aged about 25 years at the time of the incident and during pendency of this case, the petitioner is not involved in any other case similar to the present one. The case has been pending for a decade. Hence, it is a fit case where sentence can be reduced.
17. In the result, the Criminal Revision Case is dismissed confirming the conviction of the petitioner of the offence punishable under Section 376 I.P.C. recorded by the Assistant Session Judge, Karimnagar, dated 11.04.2001, in S.C.No.405 of 2000, and as confirmed by the Sessions Judge, Karimnagar, vide judgment, dated 13.07.2004, in Crl.A.No.44 of 2001. But, the sentence of imprisonment is reduced from seven years rigorous imprisonment to five (5) years rigorous imprisonment, while maintaining the fine amount with default sentence. Period of remand, if any, undergone by the petitioner during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C.
K.C. BHANU, J July 01, 2010 MD