JUDGMENT :

This Criminal Appeal is filed by the appellant/accused aggrieved by the conviction recorded by the VI Additional Sessions Judge (Fast Track Court) Nizamabad at Kamareddy, Nizamabad District, dated 11.12.2009, passed in SC.No.43 of 2007, for the offence punishable under Section 376(2)(f) of the Indian Penal Code.

2. Heard learned counsel for the appellant/accused and learned Additional Public Prosecutor for the respondent State.

3. Briefly, the case of the prosecution is that on 15.05.2006, around 2.30 p.m., while the victim girl who was examined as PW5 was playing in-front-of the house along with PWs. 2 and 4, the appellant allegedly took PW5-victim girl and PW2 stating that he would give mangoes. PW1 who is the mother of PW5victim girl searched for the victim girl. PW3 saw PW2 and PW5 crying and brought them back to the village and on enquiry with PW5-vicrim girl, she informed that a stranger had committed rape on her by taking her on a bicycle along with PW2 stating that he would give mangoes. On the basis of said information provided by PW5-victim girl, Ex.P1-complaint was filed before the Kamareddy Police. The same was registered and after investigation, Police filed charge sheet for the offence under Section 376 (2) (F) of the Indian Penal Code.

4. During the course of trial, the learned Sessions Judge examined witnesses PWs.1 to 9 and marked Exs.P1 to P11 on behalf of prosecution.

5. PW1 is the sister of grand-mother of PW5. She stated that while the children were playing in-front-of her house and since she did not find them, she went in search of them. PW3 who is the resident of same village went in search of PWs.2 and 5 and found that PW5 was weeping near the bushes. She was bleeding from her private parts, PW3 brought PW2 and PW5 back to the house. It was informed by PW5-victim girl that one unknown person had taken them stating that he would give mangoes to them took PW5 into the bushes, beat and raped her. PWs.2, 4 and 5 who are children were aged 5 years, 7 years and 8 years respectively at the time of incident. All the three witnesses including victim girl-PW5, identified the accused and PW5 stated that she was forcibly taken by the appellant behind the bushes by closing her mouth.

6. The learned Sessions Judge considered the evidence of PWs.2 and 5 coupled with the evidence of doctor-PW7 who deposed that the victim girl was found with injuries. Vaginal smear and Vaginal swabs were sent for chemical examination. The report of FSL report was as follows;

a) Abrasion on the Labia Majora 2x1 cms.

b) Hymen ruptured

c) Posterior Vaginal wall tear is about 3x2x1/2 cms.

According to FSL report Ex.P3, human blood was detected on the wearing apparel of the victim. However, Semen and Spermatozoa was not found. On the basis of FSL report, PW7 gave opinion that she cannot say that the rape has not occurred.

7. The learned Sessions Judge believing the version of the prosecution convicted the appellant.

8. Learned Counsel appearing on behalf of the appellant/accused raised the following grounds.

1) The appellant was arrested after 17 days when he was caught in some other case by PW6 who is also a coolie and a stranger to the appellant.

2) On the basis of the evidence of PW6 that the appellant has confessed about committing rape of a girl earlier in Bathkamma Kunta, appellant was handed over to the Police and arrayed as accused in the present case.

3) PW6 being stranger, the said confession cannot be considered and does not fall within Section 24 of the Evidence Act.

4) PWs.2 and 4 specifically stated that they were tutored before entering into witness box and the accused was shown by the Police outside the Court, as such, the evidence of identification cannot be considered.

5) The police have not conducted any test identification parade to ascertain the identity of the person who committed rape on PW5.

6) The identification of the appellant for the first time was in the Court after three years during trial and totally unreliable.

9. I