IMPORTANT POINT
Proper witness examination procedures, corroboration in serious allegations, benefit of doubt in case of reasonable doubt

JUDGMENT :

1. The appellant was found guilty for the offence of rape punishable under Section 376 of IPC and sentenced to undergo rigorous imprisonment for a period of seven years, by the IV Additional Metropolitan Sessions Judge, Hyderabad vide judgment in SC No.85 of 2009 dated 09.12.2009.

2. The case of the prosecution is that P.W.1/victim lodged complaint by giving oral statement which was recorded by the police on 18.03.2008. According to the statement of the victim, about four months prior to lodging complaint, she was residing along with her parents and three brothers. She went out to search for her brother’s son. At that time, the appellant caught hold of her hands, closed her mouth, took her into a school premises and raped her. On 08.03.2008 when she was suffering from fever, her mother/P.W.2 took her to hospital and it was known that she was pregnant. Accordingly, P.W.2/mother and other family members including P.W.3/brother questioned as to who was responsible for the pregnancy. P.W.1 informed that she was raped four months prior, by the appellant. Abortion procedure was done on 13.03.2008. Thereafter complaint was lodged on 18.03.2008 requesting to take necessary action against the appellant.

3. Police examined witnesses and also sent the appellant and victim/P.W.1 for medical examination. Thereafter police filed charge sheet for the offence under Section 376 of IPC against the appellant. Having concluded examination of witnesses P.Ws.1 to 12 and marking Exs.P1 to P8 on behalf of the prosecution, the learned Sessions Judge found that the appellant was guilty of committing rape on the victim/P.W.1 and sentenced him accordingly.

4. Sri C.Mastan Naidu, learned Senior Counsel appearing for the appellant would submit that there is an inordinate delay of four months in lodging the complaint. The said delay is not explained. Only for the reason of P.W.1 becoming pregnant and she stated that the appellant had committed rape on her, conviction was recorded without any other corroboration. Even the recording by the learned Sessions Judge is incorrect. Chief examination of the victim/P.W.1 was conducted by the Public Prosecutor by putting leading questions which is impermissible.

5. Counsel submitted that the Learned Public Prosecutor requested the Court, since witness was not able to understand questions, he may be permitted to put leading questions. Learned Sessions Judge had mechanically permitted such procedure, which is contrary to law.

6. Learned counsel relied on the judgment of Varkey Joseph v. State of Kerala (1993 Supp(3) Supreme Court Cases 745), wherein the Hon’ble Supreme Court held that the procedure adopted by the prosecution in recording the evidence in the form of questions put by the Public Prosecutor in Chief Examination which were leading in nature is incorrect. On the said basis, the Hon’ble Supreme Court set aside the conviction for the offence under Section 302 IPC.

7. Learned Public Prosecutor submitted that there was nothing wrong in the procedure adopted by the learned Sessions Judge when the questions were put with the permission of the Sessions Judge. When questions and answers are recorded, it is fair and such recording is after observation by the learned Sessions Judge regarding answers being given by the victim/P.W.1.

8. Public prosecutor further submitted that the fact remains that she was impregnated and she has specifically stated that she was raped by the appellant.

9. It is necessary that the evidence of P.W.1/victim is extracted, which is as under:

“About one year back on one day I went to in search of my brother son. At that time accused caught hold of my hand, closed my mouth with hand and Cherchaddu. This incident took place in the evening hours. Accused caught hold my hand and taken me towards upwards of a building consisting of three floors from the cross-roads.

Question:- Where the accused taken you, whether it is a building, or a room. Addl. PP also asked the questions repeatedly. But the wit