THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1368 of 2008 23-12-2014 BETWEEN:
Syed Vasiuddin And another.
…..Appellants/A.1 and A.2 AND The State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh …..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1368 of 2008 JUDGMENT:
This Criminal Appeal is preferred by the appellants/A.1 and A.2 against the Judgment dated 11.11.2008 passed in SC/ST S.C.No.31 of 2007 by the Court of the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge, Medak, at Sanga Reddy, whereby the learned Judge found A.1 guilty for the offence under Section 376(1) IPC and A.2 guilty for the offence under Section 376(1) read with Section 109 IPC, and accordingly convicted and sentenced A.1 to suffer rigorous imprisonment for seven years to pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to suffer simple imprisonment for a period of three months for the offence under Section 376(1) IPC and sentenced A.2 to suffer rigorous imprisonment for seven years to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to suffer simple imprisonment for a period of three months for the offence under Section 376(1) read with Section 109 IPC.
The case of the prosecution, in brief, is as follows:
That A.1 threatened P.W.1 to stop working in the school and directed her to work in his fields. Accordingly, she joined working in the fields of A.1. Later, A.2 told her to stop that work and she would show other work and took her to A.1 to the fields of A.1. Then A.1 threatened her to come with him and due to fear she went into the sugar cane fields and then A.1 raped upon her and she was subjected to sexual harassment continuously in the said fields. Thereafter, when she did not get her menstrual cycle (mensus), she informed the same to A.1 and then A.1 took her to the hospital, where the Doctor gave injection, thereby she got her pregnancy aborted, and due to such injection, she got infection on her buttocks. Therefore, she was shifted to Gandhi Hospital, Secunderabad, where she was treated for twelve days. Thereafter, on the advice of his brother, she lodged a complaint before the police and basing on the same, a case was registered against A.1 and A.2. After completion of the investigation, charge sheet was filed against A.1 and A.2 for the offences under Sections 376(f), 109 IPC and Section 3(2)(v) of the SCs and STs (PoA) Act.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 6 were examined and Exs.P.1 to P.5 were marked. No oral or documentary evidence was adduced on behalf of the accused.
P.W. 1, the victim lady, deposed regarding the occurrence. She deposed when she was working in the school, the accused telephoned her and threatened her not to work there. Later, A.2 took her to work in the sugarcane field of A.1 and one day, A.1 was present in the field, A.2 left the place and then A.1 committed rape upon her. She further deposed that A.1 threatened her not to reveal the incident to any one, otherwise he would kill her. P.W.2 deposed that P.W.1 is his junior paternal aunt’s daughter. He further deposed that he went to see P.W.1 when she was in hospital and later P.W.1 was shifted to other hospital by P.W.2 and her relatives. He deposed that he was informed regarding the occurrence of rape. P.W.3 is the Doctor, who treated P.W.1 at Government Hospital, Zaheerabad, and opined that sexual act of intercourse occurred. P.W.4 turned hostile and has not supported the case of prosecution. P.W.5 is the then Sub Inspector of Police, who conducted investigation and filed charge sheet. P.W.6 is the then Tahsildar, who gave caste certificate to
P.W.1 certifying that she belongs to Madiga community.
On appreciation of oral evidence of P.W.1, the prosecutrix, coupled with the evidence of Doctor, P.W.3, the learned trial Judge convicted A.1 for the offence under Section 376(1) IPC and convicted A.2 for the offence under Section 376(1) read with Section 109 IPC and accordingly sentenced them as stated above. The learned Judge acquitted A.1 for the offence under Section 3(2)(v) of the SCs and STs (PoA) Act. Aggrieved by the order of conviction, the appellants/A.1 and A.2 have preferred the present criminal appeal.
Heard and perused the entire material available on record.
P.W. 1, the prosecutrix, in her evidence deposed that she was raped by A.1. She further deposed that A.1 continuously had sexual intercourse more than ten times. But, it is unfortunate to note that she has not stated the manner in which she was subjected to sexual assault. She has also not stated whether the same was resisted by her and whether A.1 had sexual intercourse against her will. The only evidence available on record is that after the commission of sexual intercourse, A.1 threatened her that she should not reveal the same to anyone, otherwise he would kill her.
This Court is of the view that even admitting the entire evidence adduced by
P.W.1 to be true, the same does not disclose the ingredients of Section 375 IPC. Merely basing on the deposition of P.W.1 that she was raped by A.1, especially without informing the manner, in which she was subjected to sexual assault and without informing whether she has resisted the acts of A.1 and whether the said act was done without her will, the Court cannot come to a conclusion that A.1 has sexual intercourse with P.W.1 without her will. Further, the prosecution has not ventured to establish the age of the victim girl. According to the Doctor, P.W.3, who treated P.W.1, the age of P.W.1 is about 15 years, but P.W.3 has not conducted any test for assessing the age of P.W.1. P.W.3 further admitted in her cross-examination that she recorded the age of P.W.1 as 15 years basing on the information provided by P.W.1.
In view of the above discussion, the evidence of P.W.1, the prosecutrix, is highly unbelievable and it is also highly unsafe to convict the accused relying on the evidence of prosecutrix in a serious offence of this nature, and as such, it can be held that the prosecution failed to prove the guilt of the accused beyond any reasonable doubt. Hence, the conviction and sentence imposed by the Court below against A.1 and A.2 for the offences under Section 376(1) IPC and Section 376(1) read with Section 109 IPC respectively, is liable to be set aside and is accordingly set aside.
In the result, the Criminal Appeal is allowed and the appellants/A.1 and A.2 are acquitted of the offences under Section 376(1) IPC and Section 376(1) read with Section 109 IPC respectively. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any paid, shall be refunded to them. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 23.12.2014 pln