2002 Supreme(AP) 1469
Andhra Pradesh High Court
Judges : K.C.BHANU
Palaparthy Vijaya Kumar - Appellant
Versus
State OF A.P. - Respondent
Decided On : 12-20-02
Headnote:
India Panel Code 1860 - Sections 366, 376, 342 and 506 (2) – Evidence - FIR was properly – Conviction - Appeal is directed against judgment in Sessions Case on file of Sessions Judge Mahila Court Visakhapatnam wherein sole accused was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of and in default to undergo simple imprisonment for six months for offence under Section 376 of Indian Penal Code rigorous imprisonment for seven years and to pay a fine of and in default to undergo simple imprisonment for six months for offence under Section 366, IPC, and rigorous imprisonment for three years for offence under Section 506 (2), IPC. All sentences were directed to run concurrently – Held, As per third clause of Section 375, IPC sexual intercourse with a woman even with her consent is rape when her consent has been obtained by putting her in fear - Though P. W. 1stated that at the point of knife the accused committed rape on her since court have already held that P. W. 1 is not a truthful witness her evidence on this aspect cannot be believed – In light of above discussion and keeping in view that evidence on record does not lead to conclusion unerringly pointing guilt to accused it has to be held that Prosecution has failed to prove charges levelled against accused beyond all reasonable doubt - Therefore, benefit of doubt should be given to the accused - Appeal allowed.
( 1 ) THIS appeal is directed against the judgment in Sessions Case No. 196/1993 on the file of the Sessions Judge, Mahila Court, Visakhapatnam, wherein the sole accused was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, and in default to undergo simple imprisonment for six months for the offence under Section 376 of the Indian Penal Code, rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, and in default to undergo simple imprisonment for six months for the offence under Section 366, IPC, and rigorous imprisonment for three years for the offence under Section 506 (2), IPC. All the sentences were directed to run concurrently.
( 2 ) THE brief facts, that are necessary for disposal of the appeal, as per the case of the Prosecution, may be delineated as follows : that the accused was working as Junior Assistant in Government High School, Visakhapatnam, that the victim-Kundarapu Sivalakshmi, who was examined in this case as P. W. 1, was a resident of Ramachandra-puram village, that on 30-4-1993 at about 6-30 a. m. , P. W. 1 and her father-P. W. 3, started from their house to go to Employment Exchange at Visakhapatnam to get the name of P. W. 1 registered therein, that at that time the accused approached them and told P. W. 3 that he would get the said work done as he knew all the persons working in the Employment Exchange, that due to faith in the accused, P. W. 3 sent P. W. 1 to Visakhapatnam along with the accused, that accordingly both the accused and P. W. 1 proceeded to Visakhapatnam by bus, that after getting down from the bus the accused informed P. W. 1 that her photographs were necessary for registration of her name in the Employment Exchange, that the accused took P. W. 1 to a Photo Studio, that thereafter they went to the Employment Exchange, that the accused informed P. W. 1 that there was heavy rush in the Employment Exchange, and as such he took P. W. 1 to a hotel and they had Tiffin in the hotel, that when they were going to the Employment Exchange after taking Tiffin, P. W. 6-Bandaru Mutyalanaidu saw them going together near the Employment Exchange, that the accused informed P. W. 6 that after registration of the name of P. W. 1 in the Employment Exchange he would send her back to Ramachandra-puram, that after going to the Employment Exchange the accused told P. W. 1 that there was heavy rush in the Employment Exchange and left her there and returned at about 5. 00 p. m. , and got her name registered in the Employment Exchange, that thereafter the accused took P. W. 1 to his house stating that there would be no buses available from Visakhapatnam to Chodavaram after 5. 00 p. m. , that P. W. 1 slept in the house of the accused, that during the midnight the accused woke her up, threatened her at the point of knife and had intercourse with her forcibly and obtained a letter from her to the effect that she would marry him, that he also threatened that if she revealed the incident to anybody, he would kill her, that the accused forcibly removed her clothes from her body and took nude photographs of her upper portion of the body with a camera, that he again threatened her that he would kill her and throw her body into the sea if she informed the incident to anybody, that on the next day of incident at about 8. 00 a. m. , she returned to her house, that P. W. 3 asked her as to why she did not return on the previous night, but she did not reveal the incident to her father due to fear of the accused and to save her family s honour, that on 11-6-1993 P. W. 2-K. Atchayyamma, the elder sister of P. W. 1, received a cover by post which contained a nude photograph of P. W. 1 and a letter in the handwriting of P. W. 1 expressing her intention to marry the accused, that she felt very bad as the accused was of the age of her father, and proceeded to Ramachandra-puram and informed about the same, to her father, that then P. W. 1 informed ab