1999 Supreme(AP) 1201

Andhra Pradesh High Court
Judges : BILAL NAZKI
Malleia Sreenu, Srinivasa Rao - Appellant
Versus
State - Respondent
Decided On : 12-30-99

Headnote:

Criminal Procedure Code , 1973 – Section 313 - Indian Penal Code , 1863 - Section 376 - Constitution of India - Article 142 – Rape – Harassment - Facts giving rise to filing of charge-sheet against accused are that, hereinafter referred as victim was alone in her house, her mother had gone for work in cotton fields - Between 2. 00 and 3. 00 p. m. victim went to give fodder to her buffalo in open space behind her house - A-1 and a-2 were watching her from a nearby distance - 1st accused came and gagged mouth of victim, then dragged her to nearby sheep shed belonging to one A-1 and A-2 then committed rape on her one after another - Both accused thereafter threatened victim with dire consequences, if she narrated incident to anybody - Victim thereafter went to her friend and to her aunt, informed them about incident - Those ladies kept victim with themselves till arrival of victims mother from fields - After her mother arrived victim accompanied by her mother went to police Station and filed a report at 23. 30 hours Case was registered under Crime - Matter was investigated and charge- Sheet was filed as P. R. C. 14/93 before 7th addl Magistrate, who committed case for trial to Sessions court, Guntur - Thereafter, case was registered and was tried by principal Assistant Sessions Judge - Charges were framed against accused persons - They denied charges and were put to trial - Prosecution examined 10 witnesses. 21 exhibits were exhibited and finally accused were convicted - In order to appreciate arguments made against conviction scrutiny of evidence is necessary – Held , In their statements accused have only denied accusations made against them - Contentions of accused-appellants are that, there is only one witness i. e. , P. W. 1 on which conviction has been based by learned trial Court which cannot sustain - It is true that, eye-witness is only victim but in cases of this nature Courts cannot expect that rape would be committed by rapists in full view of public - Therefore, evidence of victim assumes greater importance in cases of rape than in other cases - But, in present case it has been found that there is corroborative evidence to what has been stated by P. W. 1. P. W. 3 is friend of victim and P. W. 8 is her aunt - Both of them were narrated same story by victim immediately after incident which was narrated in court - Same story was narrated to mother of victim - Therefore, in a case of this nature Court cannot set aside conviction solely on ground that there are no eye-witnesses except P. W. 1 - Evidence given by P. W. 1 is further corroborated by Doctor and Forensic report - Though this Court wishes that doctor who examined victim along with Forensic experts were more concerned about grievousness of crime, but because of latitude of persons concerned on many important things, forensic experts view could not be noted - Even semen collected from A-1 which was sent to Forensic expert was not fit for analysis but at same time blood and semen were found on clothes worn by victim at time of occurrence - Further, it was opinion of Doctor that intercourse had taken place recently and he was also of firm view that intercourse had taken place within 24 hours of his examination - Evidence that hymen had been recently torn was also important piece of evidence which could certainly go against accused persons - Defence taken by A-2 was that since he was not sent to medical examination therefore it could not be conclusively said that he was capable of committing rape - Accused all along knew what was charge against him and if he had not been sent for examination nobody stopped him from requesting court to send him for examination - However, trial Court rejected this plea of accused No. 2 and Court quite agree with trial Court - It is curious to note that, even in examination accused did not make place that he was an impotent person, besides there is recording of fact by trial Court that, at Bar it was conceded by Counsel for accused that accused was married and has a child therefore, this defence is taken without any basis - There was another defence which was taken that, no injuries were found on vital parts of body of victim - Two injuries have been referred by Doctor - But, it is not necessary in each and every case that victim who was subjected to rape should be injured also seriously - Learned counsel appearing for A-2 also stated that there was delay in filing of report - Court have not found that there is any unexplained delay in report - It is usual and normal for a girl before taking a decision to take matter to police, particularly in case of a rape where girl is subjected to humiliation and harassment to wait for her mother atleast to take a decision - Since her mother was not available upto 6. 00 p. m. therefore she waited till her mother came and after her mother came it took some time to take a decision and then went to Police station which is 5 Km. away and this distance had to be covered by bus or by walk - Learned Counsel appearing for appellants also suggested that conduct of victim all along shows that she was consenting party - Court afraid that this cannot be accepted - She had been categoric in her statement that she was forcibly lifted by accused persons and then she was subjected to rape - There was no evidence to show that she was a consenting party - Appeals are accordingly dismissed