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2009 (2) ALT (Cri.) 1 (A.P.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
G.V. SEETHAPATHY, J.
Public Prosecutor, High Court of A.P. Hyderabad - Appelants
Vs.
Sri Radhakrishna Nagesh - Respondents
Criminal Appeal No.1 007 of 1999
Decided on 23-1-2009
b) EVIDENCE ACT, 1872, Sections 3 and 118 - Indian Penal Code, 1860, Sections 363, 376(2)(f) – Where the testimony of the prosecutrix is sought to be discredited on the ground that she had narrated the whole incident to the S.I. at the first instance was deprecated because a child witness cannot be expected to reveal whole incident in a comprehensive manner or by way of a graphic description with sequential narration and failure of prosecution to elicit complete information from Prosecutrix by putting all necessary and relevant questions cannot be pitted against Prosecutrixs veracity.
c) CRIMINAL PROCEDURE CODE, 1973, Section 161 - Where the statement of witnesses were recorded expeditiously on the same day and the case was later handed over to senior officer in view of the gravity of the case and also where there are not contradictions or inconsistencies elicited from the witnesses in the cross examination, the statements can not be thrown out merely because there was some delay in forwarding the statements to the court because they does not constitute any substantive records.
d) EVIDENCE ACT, 1872, Sections 3 and 45 - Indian Penal Code, 1860, Sections 363, 376(2)(f) - Entire evidence direct, circumstantial, medical and forensic on record to be read and appreciated as a whole but not in isolation and the undue reliance given by the trial court on the medical opinion that the semen and spermatozoa found on M.O. 1 langa and M.O. 3 drawer and the vaginal swabs and vaginal wash was that of the accused was held unreasonable and unjustified.
e) EVIDENCE ACT, 1872, Section 27:- Where seizure of the articles from the accused is proved by the deposition of the investigating officer, failure of the accused even to suggest that they does not belong to the accused would establish the reliability of the seizure. Similarly where the investigating officer deposed that on examination of the genital of the matting of pubic hair and semen was found would cover up the failure to send the pubic hair of the accused for medical examination.
f) INDIAN PENAL CODE, 1860, Sections 363, 376(2)(f) – The approach of the trial court in giving undue importance to trivialities like small corrections in the date and time of inspection by the doctors was seen as lack of sensitivity of the court in appreciating evidence in a grave crime of rape against a child.
g) INDIAN PENAL CODE, 1860, Section 363 and 376(2)(f):- Trial court’s observation that in view of the long gap between the time of offence of rape and medical examination of the accused, it is possible that the accused might have taken bath or passed urination is unsustainable since the accused was taken directly from police station to medical examination. The approach of the trial court in appreciating evidence and acquitting the rape victim was deprecated and order of acquittal is set aside.
This criminal appeal is directed against the judgment dated 11-2-1999 in S.C. No. 260 of 1998 on the file of the Principal Assistant Sessions Judge, Tirupati, wherein, the respondent herein/accused was found not guilty of the offences under Sections 363 and 376(2)(f) of IPC and was acquitted thereof under Section 235(1) Cr.P.C.
2. Heard the learned Additional Public Prosecutor for the appellant-State and the learned counsel for the respondent-accused. Perused the records.
3. The case of the prosecution in brief is as follows:
The accused was working as a ball picker in SV University tennis court, Tirupati, and as such he was having custody of the key of the storeroom situated to the south-east of the tennis court, wherein, tennis net and other articles are stored. The victim girl A. Haritha, is aged 11 years and she belongs to scheduled caste. Her mother Sampurnamma is working as servant maid in the red-buildings attached to the SV University.
On 7-9-1997 at about 7.00 p.m. the accused saw the victim girl Harith, standing alone outside the red buildings and called her to come along with him. At first she refused but the accused enticed her by purchasing gold colour plastic bangles and took her to the store room near tennis court, opened the lock and took her inside the room and committed rape on her against her will and under threat of assault.
One Narayanaswamy, rickshaw puller, who was waiting at Gate No.3 of S.V. University, keeping his rickshaw by the side of the gate, noticed the accused taking the victim girl into the room and became suspicious and tapped on the door several times. The accused did not open the door. After further tapping, the accused opened the door. Narayanaswamy saw the victim girl weeping. The accused slammed the door. Narayanaswamy suspecting that the accused might have done something to the minor girl bolted the door from out side and ran to the de-facto complainant-S.M. Ramesh P.W. 1, Sub-Inspector of Police, Traffic PS, Tirupati, who was on the road near NCC Office traffic point and informed him. Immediately, S.M. Ramesh-Sub-lnspector of Police, along with another Traffic R.S.I. R. Sivanandakishore P.W. 4 and PC 2435-Ch.Ramakrishna, accompanied Narayanaswamy to the said room, opened the bolt from out side and found the victim girl and she complained of pain in her vaginal region.
The Sub-Inspector S.M. Ramesh took the victim girl and the accused to SVU Camps PS and gave complaint Ex. P-1, based on which, FIR Ex. P-7was registered in Cr. No. 31 of197 under Section 363, 376(2)(f) IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
P.W. 10 the Sub-Inspector of Police, SVU campus PS, arrested the accused at 10.30 p.m. and seized his cut drawer containing seminal stains and the accused was sent to SV RR GG Hospital, Tirupati, for medical examination. The victim girl was sent to Government Maternity Hospital, Tirupati for medical examination and also for assessment of age, after seizure of the skirt under a cover of mahazar. The Assistant Director, RFSL, Anantapur, after analysis of the material objects, detected semen on the cloths of the victim and on the under wear of the accused and also in the vaginal swabs collected and preserved by the Medical Officer. After completion of the investigation, (he Inspector of Police-P.W. 12 filed charge sheet against the accused for the offences under Sections 363 and 376(2)(f) IPC.
4. On appearance of the accused before the Court, the learned Principal Assistant Sessions Judge, Tirupati, to whom the case was made over, framed charges under Sections 363 and 376(2)(f) IPC, for which, the accused pleaded not guilty.
5.In support of their case, the prosecution examined P.Ws. 1 to 12 and marked Exs. P-1 to P-9 and M.Os. 1 to 3. P.W. 1 is the Sub-inspector of Police, Traffic, who reached the scene of offence on being informed by P. W. 3 and opened the room, took the accused and victim girl-P.W. 2 to SVU Camps PS
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