THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA CRIMINAL REVISION CASE No.744 of 2008

ORDER:

This Criminal Revision Case is filed aggrieved by the concurrent findings of convictions recorded by the trial court and the appellate court for the offence under Section 376 IPC.

2. The case of the prosecution is that on 01.08.2002, PW.1, mother of the victim and PW.2, father of the victim, along with the petitioner-accused went to Hyderabad for the treatment of their son Naveen Kumar, by leaving their daughter-Padma (victim girl) and the mother of PW.1-B. Nagavva at their village. On the same day at 11.00 p.m., the accused returned back to the village and knocked the door, on that the victim opened the door and enquired about her parents and brother and after hearing his reply, she was about to close the door, the accused forcibly entered into the house, caught hold of the victim and dragged her into the kitchen, put a cloth in her mouth and forcibly committed rape on her.

3. Heard Sri T. Rajashekar, learned counsel for the petitioner and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for the respondent-State.

4. The learned counsel for the revision submitted that the courts below have erred in convicting the petitioner for the offence under Section 376 IPC and that the courts below failed to consider the evidence in proper perspective and that they ought to have seen that there is contradictory evidence and the same could not bring home the guilt of the petitioner beyond all reasonable doubt. It is further contended that the cloth, which was kept in the mouth of the victim, was not marked as an exhibit and further both the courts below ought to have seen that there was delay of 19 days in lodging the complaint and further the trial court and the appellate court ought to have seen that the evidence of PWs.1 and 2 was not corroborated with the material aspects, and contended that a false case is foisted against him only for extraneous considerations.

5. The first and foremost ground raised by the learned counsel for the petitioner is that there is contradictory evidence and that the prosecution could not bring home the guilt of the accused. Though it is his contention, no such contradiction is pointed by the petitioner herein. The said ground was also raised in the appeal and the appellate court has answered the same stating that no contradiction is pointed by the appellant.

6. Another ground raised by the learned counsel for the petitioner is that the cloth which was kept in the mouth of the victim was not marked as an exhibit. The witness for the scene of offence panchanama was examined as PW.5. He has categorically stated that the victim girl handed over the clothes. It clearly shows that the police have seized the blood stained clothes of the victim. Therefore, seizure of the cloth kept in the mouth of the victim does not have much credence. It is pertinent to mention in this regard that the evidence of the eye witness is most crucial apart from the evidence of the victim herself in this case.

7. PW.3 is the grandmother of the victim girl and an eye witness to the incident. Her evidence disclosed that on the date of the alleged incident, her grandson was taken to Hyderabad for treatment by PWs.1 and 2, who are her daughter and son-in-law and the petitioner-accused also accompanied PWs.1 and 2. She further stated that on the same night, the accused came to their house and knocked their door. The victim girl opened the door and on hearing the hue and cry of the victim girl, PW.3 went to the place where the incident took place and on enquiry, the victim informed that the accused committed rape on her. Thus, the contention of the petitioner that non-seizure of the cloth, which was kept in the victim’s mouth, does not gain much importance.

8. Another contention raised by the petitioner is that there is a delay of 19 days in lodging the complaint. PW.3-grandmother of the victim and PW.6 victim herself have categorically stated