HON’BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.299 OF 2013

JUDGMENT:

1. The appellant was convicted for the offence under Section 448 and 376 IPC and sentenced to undergo rigorous imprisonment for a period of six months and ten years respectively vide judgment in S.C.No.592 of 2012 dated 16.01.2013 passed by the Assistant Sessions Judge at Jangaon.

2. Briefly, the case of the victim/P.W.1 is that she was residing alone in her house in Komalla village. The appellant is resident of the very same locality. Taking advantage of her living alone, the appellant trespassed into the house on 7/8.12.2011 and committed rape on her. Her mouth was gagged and on hearing her cries, P.W.2/son, who lives nearby and other witnesses P.Ws.3 to 5 and others went to the spot. Immediately, even before the witnesses entered into the house, the appellant fled.

3. P.W.1 narrated to P.W.2 and others regarding rape committed on her by the appellant. She was then taken to the police station and complaint was lodged. On the very same day, at 12.00 noon, she was examined by P.W.8/Doctor, who found the following injuries.

“1. Contusion over the left mandibular region of size of 5 x 4 cm.

2. Abrasion over the upper lip ½ x ½ cm

3. Abrasion over the right side of the tongue of 2 x 1cm.

I also found the injuries on breast.

1. Right breast-a contusion over the upper lateral quadrant of the breast of sizes of (1) 3 x 4 cm, 2) 2 x 2 cm, 3) 2 x 3 cm.

b) Contusion over the lower lateral quadrant of size of 3 x 2 cm

2. Left breasts-contusion of sizes 1) 3 x 1 cm, 2) 2 x 2 cm”

4. Vaginal swabs were collected and sent for chemical examination. The chemical examiner opined that there is no semen or spermatozoa found on the vaginal smears or on the clothes of the victim.

5. Having examined all the witnesses, charge sheet was filed.

6. Learned Assistant Judge recorded the evidence of prosecution witnesses P.Ws.1 to 12 and marked Exs.P1 to P11. In defence, Exs.D1 to D3 marked. Having considered the evidence on record learned Assistant Sessions Judge recorded conviction, as stated supra.

7. Learned counsel appearing for the appellant would submit that it is highly improbable that woman, who was aged around 60 years would be raped by the appellant that too for two hours as mentioned in her chief examination. On account of disputes among them, false complaint was filed. However, P.W.1 stated that her mouth was gagged with pieces of clothes from the pillow which is highly improbable. Further, the FSL report did not disclose that there was any semen or spermatozoa found on the smears collected as samples and also the clothes. The said fact also makes the version of the victim abundantly doubtful. In the said circumstances, benefit of doubt has to be extended to the appellant. 8. On the other hand, learned Assistant Public Prosecutor submitted that the solitary evidence of the victim would suffice to record conviction in a rape case if the evidence is convincing. At the earliest point of time, the compliant was lodged. The incident took place in the mid night and the complaint was lodged within two hours of the rape committed by the appellant.

“Section 375: Rape A man is said to commit "rape" if he—(a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or(b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or(c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or(d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

….”

9. It is the version of P.W.1/victim that the appellant removed her clothes, pressed her