APHC010490762010 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) WEDNESDAY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE T CRIMINAL APPEAL NO: 190 Between: 1. VEMULA VEERA SWAMY, AGED ABOUT 25 YEARS, MACHILIPATNAM. 1. THE STATE OF A.P. THROUGH THE INSPECTOR OF POLICE, BANDAR TOWN CIRCLE, KRISHNA DISTRICT, REP. BY PROSECUTOR, HIGH COURT OF A.P. Appeal under Section 372 the High Court may be pleased to set aside the conviction and sentence passed against the appellant / accused by Assistant Sessions Machilipatnam, Krishna District by its Judgment dated 18 Case No. 104 / 2009 and consequently allow the Criminal Appeal in the interest of justice. IA NO: 1 OF 2010(CRLAMP 293 OF 2010 Petition under Section 151 CPC praying that in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 14 days in filing the above appeal in the interest of Justice. IA NO: 2 OF 2010(CRLAMP 320 OF 2010 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 190 OF 2010 VEMULA VEERA SWAMY, S/O. KANAKA BABU @ KANNA BABU AGED ABOUT 25 YEARS, R/O. LAKSHMANARAOPURAM, ...AP AND THE STATE OF A.P. THROUGH THE INSPECTOR OF POLICE, BANDAR TOWN CIRCLE, KRISHNA DISTRICT, REP. BY PROSECUTOR, HIGH COURT OF A.P. ...RESPO Appeal under Section 372 and 374(2) and 378(4) of Cr.P.C praying that the High Court may be pleased to set aside the conviction and sentence passed against the appellant / accused by Assistant Sessions Machilipatnam, Krishna District by its Judgment dated 18-08-2009 in Sessions Case No. 104 / 2009 and consequently allow the Criminal Appeal in the IA NO: 1 OF 2010(CRLAMP 293 OF 2010 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 14 days in filing the above appeal in the interest of IA NO: 2 OF 2010(CRLAMP 320 OF 2010) IN THE HIGH COURT OF ANDHRA PRADESH [3369] MALLIKARJUNA RAO S/O. KANAKA BABU @ KANNA BABU R/O. LAKSHMANARAOPURAM, ...APPELLANT THE STATE OF A.P. THROUGH THE INSPECTOR OF POLICE, BANDAR TOWN CIRCLE, KRISHNA DISTRICT, REP. BY PUBLIC ...RESPONDENT 378(4) of Cr.P.C praying that the High Court may be pleased to set aside the conviction and sentence passed against the appellant / accused by Assistant Sessions Judge, 2009 in Sessions Case No. 104 / 2009 and consequently allow the Criminal Appeal in the in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 14 days in filing the above appeal in the interest of 2 TMR, J Crl.A.No.190 of 2010 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of Sentence including the sentence dated 18.08.2009 in Sessions Case No.104/2009 passed by Assistant Sessions Judge, Machilipatnam, Krishna District and release /enlarge the Petitioner on bail pending disposal of the above Crl.Appeal. Counsel for the Appellant: 1. D PURNACHANDRA REDDY Counsel for the Respondent: 1. SRI K. SANDEEP, ASST. PUBLIC PROSECUTOR. The Court made the following: JUDGMENT 1. This appeal, under section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) has been preferred by the Appellant / Accused against the judgment of conviction rendered by the learned Assistant Sessions Judge, Machilipatnam (for short, ‘the Sessions Court’) in Sessions Case No.104 of 2009 by its judgment dated 18.08.2009, convicted the accused for the offences punishable under section 366 and 376 of Indian Penal Code, 1860 (for short, ‘IPC’). 2. Vide Judgment, dated 18.08.2009, the Sessions Court convicted the Accused under Section 235(2) of Cr.P.C., for the offences punishable under section 366 and 376 IPC. Accordingly, the accused was sentenced to undergo Rigorous Imprisonment for Five (5) Years and directed to pay a fine of Rs.1000/-, in default, he shall suffer Simple Imprisonment for a period of six months for the offence punishable under Section 366 IPC. The accused was further sentenced to undergo Rigorous Imprisonment for Ten (10) years and directed to pay a fine of Rs.2000/-, in default, he shall suffer Simple Imprisonment for Six months for the offence punishable under Section 376 of IPC. Both the sentences were directed to be run concurrently. 3 TMR, J Crl.A.No.190 of 2010 3. For the sake of convenience, the parties will be referred to as arrayed before the Sessions Court. 4. Perused the impugned judgment of conviction rendered by the Sessions Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 13 and documents Exs.P.1 to P.18 and M.Os.1 to 8 were marked. 5. The facts in a nutshell, which give rise to the present appeal, are as follows: (a) The accused is a notorious habitual offender residing in Machilipatnam. The victim, PW.1, was a minor at the time of the alleged offence and was enrolled in the first year of B.Sc. Computer Science at Hindu College, Machilipatnam. PW.3, Mohamad Barkat Ali, who was studying at the intermediate level in the same college, shared a close friendship with the victim. (b) On the morning of 19.01.2009, at approximately 10:30 A.M., the victim girl, PW.1, was attending college after coming from her village, Vullipalem, on her Scooty Pep bearing registration number A.P.16 AR 1731. On the way, PW.1 and PW.3 proceeded to Sai Baba Temple, Bhaskarapuram, to offer their prayers, as the college authorities had declared a holiday. While they were conversing, the accused arrived at the location on a Bajaj Pulsar motorcycle bearing registration number AP 16 AR 4788 and noticed PW.1. Upon introducing himself, the accused slapped PW.3, who immediately fled the scene on his cycle out of fear. Subsequently, the accused persuaded PW.1 that he would drop her at her home. Trusting his words and fearing the situation, the victim girl boarded the Pulsar motorcycle as a pillion rider. The entire incident was witnessed by PW.4, D. Sudhakar, and L.W.4, Ch. Ramesh, who happened to be present at the location. © At about 11.00 A.M., the accused along with PW.1 reached dilapidated house in Adarsha Nagar and took her inside the house, then laid on cot and pulled her lower Punjabi dress. The accused committed rape on 4 TMR, J Crl.A.No.190 of 2010 her against her consent under the threat of assault. Then, after commission of rape, the accused brought the victim girl on his motorcycle to Bhaskarapuram and dropped her threatening not to inform the incident to anybody. (d) PW.1 returned to her village, Vullipalem, as she was unable to cope with the traumatic incident. She later came back to Machilipatnam and informed her father, PW.2, Kammili Madhusudhana Rao, about the occurrence, and a report was submitted at Chilakalapudi Police Station. PW.12, the Sub-Inspector of Police, received the report and registered it as Crime No.77 of 2009 under Sections 366 and 376 of the IPC, issuing express FIRs to all concerned parties. PW.12 also informed PW.13, the Inspector of Police, who subsequently visited Chilakalapudi Police Station, obtained a copy of the express FIR, and took up the investigation. During the course of the investigation, PW.13 examined PWs.1 and 2 and recorded their statements under Section 161 of the Cr.P.C. He visited the scene of the offence, where he found a bed sheet on an iron cot, which was seized in the presence of PW.7, K. Anjaneya Kumar, and LW.12, Gopisetti Madhusekhar, under cover of Ex.P4 - Observation Report. Thereafter, PW.13 examined additional witnesses and recorded their Section 161 Cr.P.C., statements. Subsequently, PW.13 sent PW.1 to the Government Headquarters Hospital, Machilipatnam, for a medical examination, accompanied by a woman Police Constable. (e) On 20.01.2009, at approximately 12:30 P.M., based on credible information, PW.13 proceeded to the Old Railway Station, Machilipatnam, and observed the accused under suspicious circumstances. Subsequently, PW.13, along with his staff, surrounded and arrested the accused. A confessional statement was recorded in the presence of PW.7 and LW.12, and M.O.6 – a Bajaj Pulsar motorcycle – along with M.O.8 – a shaded jeans pant – were seized under the cover of Ex.P5, the confessional statement. Thereafter, PW.13 sent the accused to the Government Hospital, Machilipatnam, for medical examination to obtain a certificate. Following the examination, the 5 TMR, J Crl.A.No.190 of 2010 accused was produced before the learned Magistrate and remanded to judicial custody. Upon completion of the investigation, PW.13, Inspector of Police, filed the charge sheet. 6. The learned II Additional Judicial Magistrate of First Class, Machilipatnam, has taken on file as P.R.C.No.05 of 2009. On appearance, furnished the copies of the documents to the accused under Section 207 Cr.P.C., and committed to the Sessions Court. Based on the material available on record, a Charge under Sections 366 and 376 of IPC, have been framed against the accused, read over and explained to the accused. He pleaded not guilty and claimed for trial. 7. The Sessions Court examined the accused as required under Section 313 Cr.P.C., to enable him to consider the evidence that had been led on the part of the prosecution and also appeared against him. But the accused denied the truth of the evidence adduced by the prosecution. After conclusion of arguments and upon perusal of the material, the Sessions Court found the accused guilty and convicted him for the offences as stated supra. Aggrieved by which, the appellant/accused preferred the present appeal. 8. Sri D. Purnachandra Reddy, learned counsel for the appellant/accused, contends that the Court below ought to have considered that PW.1, the victim girl, did not fully support the prosecution case and was declared hostile. She was cross-examined by the Additional Public Prosecutor with reference to her complaint, Ex.P1. The learned counsel submits that there is no direct evidence in the case, and PW.1 admitted that Ex.P1 was drafted at the dictation of police officials. It is further contended that there were no injuries on the person of PW.1 from which the use of force for sexual intercourse could be inferred. PW.9, the Medical Officer who examined P.W.1, stated in cross- examination that she observed no rupture of the vaginal parts, and the court below, despite observing that the evidence of PW.9 coupled with Ex.P9 indicated no violence on the body of PW.1 and that the hymen was intact, ought to have ruled out rape and acquitted the accused. The learned counsel 6 TMR, J Crl.A.No.190 of 2010 further contends that the accused has already suffered and undergone the substantive sentence imposed upon him under Section 376 of the IPC. Nevertheless, it is emphatically urged that the conviction so recorded by the learned Sessions Court under the aforesaid provision is patently unsustainable in law, inasmuch as the entire record of proceedings is bereft of any cogent, credible, or corroborative material capable of establishing the essential ingredients of the offence under section 376 of the IPC. 9. On the other hand, Sri K. Sandeep, learned Assistant Public Prosecutor for the State contended that the Sessions Court had convicted the appellant after considering the evidence available on record, as there was no error or irregularity in the Sessions Court judgment. He contended that the Prosecution had proved the ingredients punishable under Sections 366 and 376 of IPC, and prayed to dismiss the appeal. 10. I have heard learned counsel on either side and carefully perused the material available on record, including the oral and documentary evidence produced by the prosecution before the Sessions Court. 11. The point for determination is: Was the Sessions Court justified in convicting the accused for the offences punishable under Sections 366 and 376 of IPC? 12. In Jangbali Singh & Anr., V. State of Madhya Pradesh1, the Hon’ble Supreme Court held that when an appeal is preferred against a judgment of conviction and sentence, the Appellate Court is duty bound to re-appreciate the evidence and form its own conclusion on the reliability of the evidence on which the prosecution case hinges. 13. The victim girl was examined as PW.1, and her father was examined as PW.2. Their evidence reveals that the victim was pursuing a B.Sc., degree in Computer Science at Hindu College, Machilipatnam, as on the date of 1 2001 Supreme(SC) 150 7 TMR, J Crl.A.No.190 of 2010 offence. PW.1 testified that she used to attend college on her own moped bearing registration number AP16 AR 1731. She further stated that she did not know the accused. According to PW.1, on 18.01.2009, at about 11:00 a.m., while she and her friend (PW.3) were proceeding on the road, an unknown person hurled a stone at her. She then went to the police station and lodged a report, marked as Ex.P1. Except for this incident, nothing else had occurred. During her chief examination, after Ex.P1 was read over to her, PW.1 denied the contents of the report and stated that no such incident, as referred in Ex.P1, had taken place, even though it was written in her own handwriting. She was treated as hostile and cross-examined by the learned Public Prosecutor. In her cross-examination, she denied having given the 161 Cr.P.C., statement marked as Ex.P2 to the police. She also denied the suggestion that she had consciously written the contents of Ex.P1 and narrated the incident therein. Furthermore, she denied the suggestion that she had identified the accused from a photograph shown to her at the police station. Thus, PW.1 denied both the contents of Ex.P1 and the giving of Ex.P2 statement to the police. However, in part, she supported the prosecution during the cross-examination by the Public Prosecutor. She deposed that the following properties were taken by a nurse at the hospital, MO.1: Orange and green coloured Punjabi lower, MO.2: Orange, green, and yellow coloured floral Punjabi top, MO.3: Orange and green coloured floral chunni, MO.4: Ash- coloured underwear with black floral designs, and MO.5: Maroon coloured cotton petticoat. PW.1 further stated that she had never told anyone that she was subjected to rape by any person. 14. During the cross-examination held by the learned defence counsel, PW.1 testified that she had prepared Ex.P1 at the dictation of the police officials. She further stated that she was not examined by a female doctor at the Government Hospital, Machilipatnam. A careful reading of the evidence of PW.1 clearly indicates that she did not support the prosecution case. However, her testimony reveals that while she did not dispute her signature on 8 TMR, J Crl.A.No.190 of 2010 Ex.P1, she denied the correctness of its contents. Nonetheless, PW.1 supported the prosecution to a limited extent by stating that MOs.1 to 5 were collected by a nurse at the hospital. 15. The record reflects that the initial chief examination of PW.1 was conducted on 13.07.2009. Subsequently, on 20.07.2009, she was further examined-in-chief by the learned Additional Public Prosecutor pursuant to the orders passed in Crl.M.P.No.111 of 2009, dated 18.07.2009. However, in her further chief examination held on 20.07.2009, she supported the prosecution’s case to some extent. PW.1 testified in further chief examination that on the date of the incident, the accused had threatened her and forcibly took her as a pillion rider on his pulsar motorcycle (MO.6). She identified the accused present in the court hall as the person who had taken her and however, she explained that she had omitted this fact in her earlier chief examination due to fear. Her testimony further reveals that the accused took her to a dilapidated asbestos-roofed room. While narrating this portion of her testimony, PW.1 became visibly emotional and wept. Her demeanour was accordingly recorded, and she refrained from deposing about the events that transpired in the dilapidated house. During the cross-examination conducted on 20.07.2009 by the defence counsel, PW.1 stated that she had stated to the police that after leaving the dilapidated room, she directly went to her house on her moped. At that time, her father was not at home, while her mother was engaged in domestic work. She also stated that she did not possess a mobile phone at the time of the incident. PW.1 further deposed that she neither changed her clothes nor found them soiled or dirty. She remained at home for about two hours, took lunch, and thereafter went for tuition. When her mother asked her why she appeared upset, she did not disclose the incident to her. 16. The evidence on record does not disclose how PW.1 was able to maintain such seemingly normal and composed demeanour in the immediate aftermath of the ghastly incident. One would reasonably expect that a person 9 TMR, J Crl.A.No.190 of 2010 subjected to such a distressing experience, particularly someone of PW.1’s age and maturity, would have confided in her mother. Yet, the evidence presented does not shed light on why PW.1 did not communicate the occurrence to her family, nor does it clarify why she did not attempt to resist or escape the alleged act of the accused. It is further perplexing that PW.1 was reportedly taken away on a motorcycle along a public road, where the presence of other members of the public could have offered an opportunity to seek help or raise an alarm. The absence of any attempt to alert bystanders raises significant question. Given that PW.1 was pursuing a degree course at the time, it would be reasonable to expect some form of resistance or attempt to evade such an audacious act. Compounding these concerns is the fact that the investigating officer failed to probe this crucial aspect during the course of the investigation. 17. A comprehensive reading of the evidence of PW.1 clearly indicates that she did not support the prosecution case with respect to the allegation that the accused had committed rape against her will. Nevertheless, the Sessions Court convicted the accused for the offence punishable under Section 376 of the IPC. The learned counsel for the petitioner further contends that PW.2, the father of the victim, also did not support the prosecution case in relation to the allegation of rape. 18. PW.2 testified that in the month of January 2009, his daughter (PW.1) had called him at about 11:00 or 12:00 noon, informing him that while she was proceeding on her moped, someone had hurled a stone at her, and that she was on her way to the police station to lodge a complaint against the person responsible. PW.2 further stated that his daughter did not disclose the name of the individual who had thrown the stone. By the time he reached the police station, PW.1 had already lodged the report marked as Ex.P1. However, PW.2 stated that he was unaware of the contents of Ex.P1 as he had not gone through it. Since PW.2 did not support the prosecution case, the learned 10 TMR, J Crl.A.No.190 of 2010 Public Prosecutor cross-examined him; however, nothing material could be elicited in support of the prosecution. Thus, the evidence of both PW.1 and PW.2 fails to support the prosecution with regard to the allegation of rape against the accused under Section 376 of the IPC. 19. As evident from the testimony of PW.2, there is an inconsistency between the evidence of PWs.1 and 2 regarding the time at which the report was lodged. PW.1 stated that immediately after the incident, she remained at home for approximately two hours, had lunch, and then went for tuition. She did not testify that she went directly to the police station to lodge a report. It is the stand of PW.2 that she did not go to the house after the alleged incident, she went to the police station, during which time her father arrived at the police station. The evidence on record indicates that PW.1 did not have a mobile phone at that time, and there is no evidence to explain how she could have communicated the matter to her father without returning home. 20. Coming to the evidence of PW.3, who is a friend of PW.1, it can be seen that she has supported the prosecution case to a certain extent, particularly with respect to the identification of the accused. PW.3 deposed that on 19.01.2009, she had gone to the college; however, as the college was declared a holiday, she, along with PW.1, proceeded for a walk to the Sai Baba Temple at Bhaskarapuram at about 10:30 a.m. At that time, a man of stout build, dark complexion, and medium height approached them on a Pulsar motorcycle bearing registration number AP16 AR 4788. He questioned them regarding their presence at the location, to which they replied that they had come to visit the temple. PW.3 further stated that upon her inquiry regarding his identity, the man disclosed his name as Vemula Veera Swamy. Thereafter, he slapped and struck her with his fist. Out of fear, she fled from the spot, and the accused subsequently compelled PW.1 to board his Pulsar motorcycle and took her away. PW.3 identified the said person as the accused 11 TMR, J Crl.A.No.190 of 2010 present before the Court and also identified the Pulsar motorcycle, which was marked as MO.6. 21. During her cross-examination, it was elicited that there are residential houses surrounding the Sai Baba Temple, and PW.3 did not raise any hue and cry or alert the public to assist PW.1. She denied the suggestion that she had not stated to the police that the accused took PW.1 on the Pulsar motorcycle (MO.6) as a pillion rider. PW.3 claimed that she had informed the police that she knew the accused, as he was allegedly involved in murder cases and had a rowdy sheet registered against him. She further admitted that she did not inform her father by phone about the accused taking PW.1, nor did she disclose the incident at college or during tuition. PW.3 also stated that her elder brother is a police constable in Machilipatnam and that her brother had been summoned to the police station by the Sub-Inspector. However, she denied the suggestion that she and PW.1 had engaged in sexual intercourse in the said room and that the police had raided the room and apprehended them; on enquiry, PW.3 stated that both she and PW.1 told the police that by using the name of accused, they took room from PW.5 for temporarily staying. However, PW.5 denied, during cross-examination, the suggestion that she used to let out the room on an hourly basis when a couple approached her, that the police raided her house, and that a case was registered against her and another person, for which she was subsequently tried in court. 22. Coming to the evidence of PW.5, she deposed that on 19.01.2009, at about 10:30 to 11:00 a.m., while she was at his house, the accused arrived on a Pulsar motorcycle accompanied by a girl dressed in a Punjabi suit. The accused took the girl into the side room of her house through the entrance at the back. Approximately half an hour later, the accused brought the girl back onto his motorcycle. PW.5 observed that the girl appeared fearful and was weeping. During cross-examination, PW.5 stated that her house is surrounded by other residential houses and that the girl did not raise any cries to alert the 12 TMR, J Crl.A.No.190 of 2010 neighbors for assistance. She further stated that she had not filed a complaint against the accused at the police station. PW.5 identified PW.1 as the girl in question. 23. From the evidence of PW.5, it is noted that she stated she came to know that the accused had brought PW.1 from Sai Baba Temple, Bhaskarapuram, and had committed rape upon her. However, PW.5 did not claim to have witnessed the alleged act. The evidence of PW.5 indicates that her house is surrounded by residential houses, and the girl did not raise any cries that could have alerted the neighbors to render assistance. Moreover, PW.1 did not testify that she raised any cries when she was allegedly taken to the dilapidated house. 24. PW.6 deposed that PW.5 was residing in one portion of the house as a tenant at a rent of Rs.300/- per month, while the other portion remained vacant as it was in a dilapidated condition. The evidence of PW.6 was not challenged by the defence, and no cross-examination was conducted. 25. The evidence of PW.4 reveals that on 19.01.2009, at about 10:30 a.m., he, along with LW.4, observed the accused taking away a girl, aged about 23 to 24 years, of fair complexion and approximately 5 feet 3 inches to 5 feet 4 inches in height, on a black Pulsar motorcycle towards the Adarshnagar side. PW.4 further stated that he later came to know that the accused had allegedly committed rape on that girl. 26. The prosecution examined PW.7, who worked as a Village Revenue Officer (VRO). He deposed that on 19.01.2009, at about 6:00 p.m., the Inspector of Police, along with PWs.1 and 2 and LW.12, who acted as another mediator, proceeded to the scene of the offence located at Aseervadhapuram, which comprised a dilapidated two-portion asbestos-sheet house. PWs.1 and 2 pointed out the house, and they observed its physical features. PW.7 identified Ex.P4 as the scene observation report bearing his signature. PW.7 13 TMR, J Crl.A.No.190 of 2010 further stated that on 20.01.2009, at about 12:30 noon, he, along with LW.12, proceeded to the old railway quarters at Machilipatnam, where they noticed a person attempting to evade the police. The police apprehended the accused, who subsequently confessed to the offence. During the course of the investigation, the Pulsar motorcycle (M.O.6) and one pant belonging to the accused (marked as M.O.8) were seized. It is noted that the evidence of PW.7 regarding the preparation of the scene observation report was not disputed. However, it is also not claimed by the prosecution that the scene observation report, in any way, materially assisted in establishing the identity of the accused. 27. As per the record, the seizure of M.Os.6 to 8 from the accused is not seriously disputed. The prosecution examined PW.8, the photographer, who deposed that he had taken photographs of the scene of offence, vide Ex.P6, which comprises three photographs along with one C.D. The prosecution also examined PW.12, the investigating officer, to establish the lodging of the report by PW.1. He testified that on 19.01.2009, PW.1, along with her father (PW.2), came to the police station and submitted Ex.P1 report. Immediately thereafter, he informed the Circle Inspector, who instructed him to register the case. Upon registration of the crime, Ex.P14 FIR was submitted to the Court. The investigation officer also produced a copy of the rowdy sheet, which corroborates the prosecution’s contention that a rowdy sheet had been opened against the accused. The evidence of PW.1 and others did not support the prosecution’s case regarding the allegation that the accused committed rape against the victim, PW.1. However, the evidence of PWs.1, 3, 4, and 5 is consistent and establishes that the accused forcibly took PW.1 on his Pulsar motorcycle. 28. The Sessions Court has correctly appreciated the evidence on record with respect to the accusation under Section 366 of the IPC. However, a reading of the impugned judgment reveals that the accused’s prior 14 TMR, J Crl.A.No.190 of 2010 involvement in a murder case and the existence of a rowdy sheet against him were given significance. 29. The prosecution’s case regarding the allegation of rape is not corroborated by other evidence. As noted earlier, PW.1 stated in her cross- examination that Ex.P1 was drafted to the dictation of the police. She denied having undergone any medical examination by a Government doctor. At the time of the incident, PW.1 was a first-year B.Sc. Computer Science student. The evidence on record shows that PW.1 was taken by the accused to a dilapidated asbestos room; however, PW.5 did not witness any act of rape committed on PW.1 by the accused. The evidence of PWs.5 and 6 establishes that PW.6 had let out one room to PW.5 for a monthly rent of Rs.300/-, which was adjacent to the scene of the alleged offence. PW.2, the father of PW.1, did not support the prosecution’s case. It is admitted that the accused was arrested by PW.12 on the day following the occurrence. The record shows that PW.1 was born on 10.03.1991 at 4:00 p.m. in the Government Hospital, Machilipatnam, as per entries in the parturition register (306/48 as I.P.45/2178). The prosecution also relied on Exs.P12 and P13 (delivery certificates and attested copies of registers). The Sessions Court noted that the evidence of PW.1, together with Ex.P11, in light of Exs.P12 and P13, established the date of birth of PW.1 as 10.03.1991. The prosecution further relied on Ex.P17 (Dentist report) and Ex.P18 (Radiologist report). However, the Sessions Court, giving prominence to Exs.P12 and P13, concluded that PW.1 was born on 10.03.1991 at 4:00 p.m., and her age at the time of the incident was 17 years, 3 months, and 16 days 30. As already noted, the alleged incident is stated to have occurred on 19.01.2009, whereas PW.1 tendered her evidence on 13.07.2009. At that time, she was approximately 17 years and 3 months old. Upon a careful examination of PW.1’s testimony, it cannot be concluded that she was incapable of accurately narrating the events of the relevant day. 15 TMR, J Crl.A.No.190 of 2010 31. In State of Rajasthan V. Chatra2, the Hon’ble Supreme held that: 17. Having considered the principles of law as above, let us now proceed further. We have independently examined the evidence of the witness, by placing reliance on whom the Trial Court recorded the conviction of respondent- accused, which was erroneously appreciated by the High Court, the same was reversed by the High Court. The child witness (victim), it is true, has not deposed anything about the commission of the offence against her. When asked about the incident, the trial Judge records that ‘V’ was silent, and upon being further asked, only shed silent tears and nothing more. Nothing could be elicited from the testimony regarding the commission of the offence. This, in our view, cannot be used as a factor in favour of the respondent. The tears of ‘V’, have to be understood for what they are worth. This silence cannot accrue to the benefit of the respondent. The silence here is that of a child. It cannot be equated with the silence of a fully realised adult prosecutrix, which again would have to be weighed in its own circumstances. 32. On the contrary, PW.1’s cross-examination demonstrates that she was able to provide detailed responses and addressed nearly all questions put to her by the defence with clarity. Furthermore, she did not display any hesitation in narrating the alleged commission of the offence punishable under Section 366 of the IPC. In light of these observations, the Court cannot, and indeed should not, infer, solely on the basis of her demeanour or momentary emotional display during testimony that the incident occurred exactly as narrated in the F.I.R. The witness was a young adult engaged in pursuing her education, and there is no substantive basis in her conduct or responses to suggest that she lacked the capacity to recollect or articulate the events in question. Consequently, reliance on her emotional state as a proxy for corroboration of the allegations would be both legally unsound and procedurally inappropriate. 33. The prosecution examined PW.9, Dr. M. Anitha, Civil Assistant Surgeon, who deposed that on 19.01.2009, at about 9:45 p.m., she examined PW.1 and collected vaginal swab, vaginal smear, cervical swab, cervical smear, pubic hair, and the left-hand little fingernail. Her testimony indicates that PW.1 had 2 2025 LiveLaw (SC) 323 16 TMR, J Crl.A.No.190 of 2010 engaged in sexual intercourse. However, the medical officer observed no rupture of the vaginal parts of PW.1. Ex.P9, the final opinion, shows that the chemical analyst detected semen and spermatozoa of human origin in the samples collected by PW.9 from PW.1. The Sessions Court determined that the vaginal swab and smear samples collected by PW.9 from the victim, PW.1, conclusively established the presence of human spermatozoa. Furthermore, the final opinion of the medical examiner (Ex.P11) affirms that the accused is capable of committing a sexual offence. However, it cannot be definitively concluded, based solely on this evidence, that the accused committed rape against PW.1. The Sessions Court observed that although PW.1 was approximately 17 years old and studying for a B.Sc. in Computers, being a slight build may have rendered her unable to resist the alleged offence, which occurred on a country cot inside a closed room, and the absence of physical injuries on her person cannot be deemed evidence that she did not resist. Based on this medical evidence, it cannot be concluded that the accused committed the alleged rape. PW.1 did not specifically depose against the accused regarding the commission of rape, and the medical evidence does not link the accused to the act. 34. Apart from the contents of the F.I.R., there is no independent ocular or direct evidence available on record to substantiate the charges leveled against the accused. PW.1, although partially supporting certain aspects of the prosecution’s case, specifically, her statement that she was taken away by the accused on a Pulsar motorcycle, did not corroborate the allegations of sexual assault in any substantive manner. During her chief examination on 13.07.2009, PW.1 explicitly denied having seen the accused or happening of any incident of the nature alleged. She merely stated that, while she was proceeding with LW.3, some individuals hurled stones at her, and that nothing further occurred. Subsequently, while giving evidence on 20.07.2009, PW.1 only mentioned, in general terms, that the accused took her to a dilapidated asbestos room and became emotional while testifying. However, she failed to 17 TMR, J Crl.A.No.190 of 2010 provide any detailed account or specific narration of the alleged incident of sexual assault. It is important to note that the mere fact that PW.1 wept during her testimony does not, in itself, serve as proof of the events narrated in the F.I.R. The Sessions Court observed that PW.1 was visibly emotional when asked about the events said to have occurred inside the room. In such circumstances, the correct procedural approach would have been to temporarily defer recording her evidence, allowing her adequate time to regain composure, rather than relying on her emotional display as a substantive account of the incident. Given that PW.1 did not furnish a detailed or substantive narration of what transpired inside the room, the Court cannot presume that the allegations in the F.I.R. reflect the actual sequence of events. The matter becomes even more critical when considered in light of PW.1’s deposition that Ex.P1 report, was prepared on the dictation of the police, rather than being an independent contemporaneous record. Such a circumstance raises serious questions regarding the authenticity and reliability of the Ex.P1 report. Further compounding the issue is the inconsistency in the testimonies of PW.1 and PW.2 concerning the precise time at which the F.I.R. was lodged. This discrepancy undermines the credibility of the prosecution’s case. Taken together, the fact that the report was prepared on the dictation of the police and that the witnesses differ on a fundamental aspect such as the time of lodging the F.I.R., significantly weakens the evidentiary value of both the report and the witness statements. In the absence of corroboration from independent and reliable sources, the Court cannot treat such evidence as sufficient to establish the guilt of the accused. 35. Moreover, it is evident from the record that PW.1 was pursuing a degree course at the relevant time, which underscores the need for a careful assessment of her testimony rather than making assumptions based on her emotional state. While she partially supported the prosecution’s version by stating that the accused took her to a dilapidated asbestos room, the Sessions Court erred in treating this limited and uncorroborated evidence, coupled with 18 TMR, J Crl.A.No.190 of 2010 her emotional display, as sufficient to establish the guilt of the accused under Section 376 of the IPC. The prosecution failed to provide the necessary reliable evidence to substantiate the serious allegations of sexual assault, and the conviction could not be justified solely on the basis of PW.1’s emotional response. 36. The Sessions Court observed that there appears to be no discernible motive for PW-1, a first-year B.Sc. (Computer Science) student, to have fabricated or lodged a false case against the accused. However, upon careful consideration of the facts of the case, this Court notes certain pertinent aspects regarding the petitioner. The petitioner, being over 17 years of age and pursuing studies, specifically stated that the accused had taken her to a dilapidated room with an asbestos roof. Based on the same, in the absence of evidence of PW.1 and any other substantive evidence establishing that the accused committed the act of rape, it is legally difficult to arrive at a conclusion that the accused engaged in any sexual misconduct. Furthermore, an examination of the medical evidence produced does not indicate any injuries, or forensic findings that would support the contention that the accused was responsible for committing sexual acts upon PW.1. The lack of medical corroboration weakens the evidentiary foundation required to substantiate the allegations of sexual assault. In light of the foregoing, while the petitioner’s version of events raises serious doubts with regard to accusation of rape concerned, this Court is constrained by the absence of concrete and corroborative evidence establishing the accused’s culpability. Consequently, it becomes difficult, from a judicial standpoint, to conclude that the accused committed rape against the victim, PW.1. 37. In view of the foregoing discussion and the reasons stated above, this Court finds that the victim’s testimony, corroborated by other evidence on record, clearly establishes that the accused abducted the victim on his motorcycle. Consequently, the prosecution has successfully proved beyond 19 TMR, J Crl.A.No.190 of 2010 reasonable doubt that the accused committed the offence punishable under Section 366 of the IPC. However, regarding the offence under Section 376 of the IPC, the prosecution has failed to establish the allegations beyond reasonable doubt. The evidence on record is insufficient and does not inspire confidence that the accused committed sexual assault. 38. Accordingly, Criminal Appeal is partly allowed. The conviction of the accused for the offence under section 366 of IPC in the judgment dated 18.08.2009 in Sessions Case No.104 of 2009 on the file of the Assistant Sessions Judge, Machilipatnam, is confirmed. The conviction and sentence recorded against the Accused under Section 376 of IPC are set aside, and the accused is acquitted of the said charge under section 235(1) of Cr.P.C. The sentence of five years’ rigorous imprisonment and fine of Rs.1000/-, in default, simple imprisonment for six months imposed by the Sessions Court for the offence under section 366 of IPC are upheld. The fine of Rs.2,000/- imposed by the Sessions Court for the offence under Section 376 IPC, if already paid by the appellant, shall be refunded to him. Since 02.06.2022, the accused has been lodged in Central Prison, Visakhapatnam, and a copy of this judgment shall be communicated to the Superintendent of Jails, Central Prison, Visakhapatnam. The period of imprisonment, if any, already undergone by the accused shall be set off under section 428 of Cr.P.C. The rest of the Sessions Court’s judgment remains undisturbed. Registry is directed to send back the Trial Court records along with the copy of this judgment to the learned Sessions Judge, forthwith. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 05.11.2025 MS / SAK 20 TMR, J Crl.A.No.190 of 2010 21 TMR, J Crl.A.No.190 of 2010 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 190 of 2010 Date: 05.11.2025 SAK