Judgment:

Dr. Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the learned Single Judge of the Andhra Pradesh High Court upholding the conviction of the appellant for the offences punishable under Sections 376 and 342 of the Indian Penal Code, 1860 (for short ‘IPC), while acquitting the appellant of the charges in terms of Section 506 IPC. The accused was sentenced to 10 years imprisonment by learned Sessions Judge, Chittoor, which was reduced to 7 years by the High Court. The appellant faced trial for offences punishable under Sections 376, 323, 342 and 506 IPC. The Trial Court directed acquittal of the appellant in respect of offence punishable under Section 323 IPC but convicted in respect of other offences as noted above.

3. Background facts as projected by the prosecution are as follows:

On 1.10.2001 at about 5.30 pm while U. Vijayalakshmi - PW.1 was returning from the fields to the village and when she reached the fields of Viswanatha Reddy along with her cattle, the accused who was hiding in the bushes, gagged her mouth with his towel and tied her hands with his lungi, pushed her to the ground, lifted her petty coat and forcibly committed rape on her. When PW.1 struggled to escape, the accused pinched on her face with nails and caused scratches. Then, the accused untied the hands of the victim-PW.1, threatened to kill her and her family members if she informs the incident to her parents. When PW.1 told the accused that she would inform the incident to her uncle, the accused threatened her with dire consequences to kill her. After accused left the place, PW.1 returned to village informed the incident to her parents, and on the next day she went to Police Station, Baireddipalli and presented a report to the Sub-Inspector of Police who in turn sent her for medical examination. The doctor gave report to the effect that sexual intercourse was committed on her. The investigation revealed that accused committed the offence of rape on PW.1 and also threatened to kill her and thus the accused committed the offence punishable under Sections 342, 376 and 506 IPC. On the said allegations, the learned Magistrate took the case on file and after appearance of the accused furnished copies of the documents. The learned magistrate after observing all the formalities, duly committed the case to the Court of Session, Sessions Division, and the Sessions Judge took the case on file as Sessions Case and made over the same to the Additional Assistant Sessions Judge, Chittoor for trial.

The learned Additional Assistant Sessions Judge after hearing the defence counsel and the prosecutor, framed charges under sections 376, 323, 342 and 506 Indian Penal Code against the accused, read over and explained to him for which he pleaded not guilty and claimed to be tried.

4. To establish the accusations, the prosecution examined 12 witnesses and got marked 13 exhibits besides marking of MOS. After closing of prosecution evidence accused was examined in terms of Section 313 of the Code of Criminal Procedure, 1973 (in short ‘Code). The accused again pleaded innocence but marked Ex.D1. The Trial Court placed reliance on the evidence of the prosecution PW1 and the evidence of the doctor PW9 and held that the accusations were established. Accordingly, the appellant was convicted and sentenced.

5. In appeal, the stand was that PW9 has stated that the age of the victim was around 18 years and, therefore, no offence was made out under Section 376 IPC. The reference was also made to the evidence of the doctor to show that in the note, rape was not established. The High Court did not find any substance in the plea and noted that the case of the accused was not of consent. The age of the victim was really of no consequence. So far as the stand that no rape was established by medical evidence, the High Court analysed the evidence of the PW9 to hold that stand was without any substance.

6. In support of the appeal, learned counsel