B. Venkataramana vs State

P.S. Narayana, J.—This appeal is preferred by the appellant/accused by having legal aid.

The charge framed in Sessions Case No. 129 of 1998 on the file of Assistant Sessions Judge, Madanapalle is as hereunder:

"That on 11.10.1997 at 2.00 PM, C. Kavitha, went for calls of nature at thorny bushes in open place at B.T. College grounds, Madanapalle, you went there and then C. Kavitha rose on seeing you. You made her lie on the ground by squeezing her neck and removed her petty coat and also your pant and by threatening her that you would kill her if she raises alarm and raped her. Then she bled from her genitals and shouted with pain, and thereby committed an offence u/s 376(1) IPC, and within my cognizance."

The accused was apprehended on 24.10.1997 and he was not released on bail and the matter was committed on 11.03.1998 and trial was closed on 28.07.1998 and the judgment was delivered by the Court of Session in Sessions Case No. 129 of 1998 on 31.07.1998. From the records, it is clear that a representation was made by the appellant/accused requesting for legal aid and accordingly the present appeal had been preferred. This appeal is filed as against the judgment in Sessions Case No. 129 of 1998 on the file of learned Assistant Sessions Judge, Madanapalle. The accused was found guilty u/s 376 IPC and the accused was sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 2000/- (Rupees Two thousand only) in default six months simple imprisonment and it was also further directed the period of detention shall be set off.

The case of the prosecution is that the victim Chintalolla Kavitha (PW-1) is the daughter of one C. Kadirappa (PW-2) who is a resident of Gandhipuram, Madanapalle and she is studying 5th standard at Nehru Municipal School, Madanapalle and she is a Harijan by caste. The appellant/accused is also a resident of Gandhipuram, Madanapalle and he is also a Harijan by caste. On 11.10.1997 at 2.00 PM she went for calls of nature at thorny bushes in open place situated at B.T. College grounds, Madanapalle. Meanwhile, the appellant/accused went there and then she rose on seeing him and the appellant/accused made her lie on the ground by squeezing her neck and removed her petty coat, his pant, and by threatening her that he would kill her if she raises alarm, committed rape on her. Then blood oozed from her genitals and she shouted with pain. Meanwhile, PW-4 and one another B. Marakka (LW-5) came there and the victim girl informed them about the incident. On seeing them the accused escaped from the scene of offence. On the oral statement of victim girl to Police Station I-Town, Madanapalle a case in Crime No. 171 of 1997 was registered u/s 376 IPC by PW-12 and she was referred to Government hospital, Madanapalle. She was examined by PW-5 the Deputy Civil Surgeon, Community Hospital, Madanapalle and she was referred to Maternity Hospital, Tirupathi and PW-10 the Assistant Professor, Government Hospital, Tirupathi examined her and preserved vaginal swabs and sent them to Regional Forensic Science Laboratory (RFSL), Ananthapur, for examination. The blood stained petty coat MO-1 and torn blouse MO-2 were seized under mahazarnama Ex. P3 in the presence of PW-6 and another M. Chandrasekhar. The Investigating Officer visited the scene of offence, and had drawn the rough sketch and also the broken pieces of bangles MO-3, rold gold ear rings MO-4, hair pin with December flowers MO-5 were seized under a cover of mahazarnama Ex. P4 in the presence of PWs-7 and 8. The accused was arrested on 24.10.1997 at 6.30 PM and the cut drawer containing semen MO-6 was seized in the presence of PW-8 and another K.C. Narasimhulu (LW-10) under a cover of Ex. P5 and the accused was sent to Medical Examination, where he was examined by PW-5. During further investigation MO-6 was seized from the accused containing semen and vaginal swab and sent to Forensic Science Laboratory through a letter of advice and they were examined by LW-13 who opined that the semen detected is of human origin. The investigation establishes that the accused committed rape on 11.10.1997 at the open space abutting B.T. College grounds, Madanapalle against the victim girl and hence the case was taken on file u/s 376 IPC by the Judicial Magistrate of First Class, Madanapalle and the same was committed to the Court of Session, which was made over to the learned Assistant Sessions Judge, Madanapalle.

In support of the prosecution, PWs-1 to 12 were examined and Exs. P1 to P9 and also Mos 1 to 7 were marked.

PW-1 the victim girl, who is of very tender age of 10 years and studying 5th Class, had deposed about the commission of offence that is rape on her. The evidence of PW-1 is clear and convincing. PW-2 is father and PW-3 is mother of victim girl. Their evidence is to the effect that PW-1 narrated the incident before them and they had seen oozing of blood from the private parts of PW-1. They also deposed that PW-4 and another Marakka brought her from the scene of offence and they have witnessed the bleeding from the private parts of PW 1. PW-5 examined PW-1 and gave first aid. He had observed that there are blood stains over both the lower legs of both feet of PW-1 and on external examination he found bleeding from vagina of PW-1 and he referred PW-1 to the Maternity Hospital, Tirupathi for expert examination and opinion. PW-6 is the mediator. In his presence Mos-1 and 2 were seized under a cover of Ex. P3 mediators report.

PW-7 is another mediator in whose presence Mos-3 and 4 were seized under a cover of Ex. P4 mediators report. PW-8 is also another mediator in whose presence the accused cut-drawer and shirt Mos-6 and 7 were seized under a cover of Ex.P5 mediators report. PW-9 is the Assistant Sub-Inspector, who received the first information report and who recorded the statement of PW-1. He reduced the statement into writing i.e., Ex. P1 and registered the first information report and sent PW-1 to the Hospital for examination. PW-10 is the Assistant Professor, Government Maternity Hospital, Tirupathi, who examined PW-1, collected swab and sent the same to Regional Forensic Science Laboratory, Ananthapur for examination. He had opined that there may be a rape against the victim girl. PW-11 arrested the accused and seized Mos-6 and 7 under a cover of Ex. P5 mediators report. PW-12 is the Police Officer who seized Mos-1 and 2 under a cover of Ex. P3 report and recorded the statement of PW-1. He also seized Mos-3 to 5 under a cover of Ex. P4 mediators report.

The learned Judge had discussed the evidence at length at paragraphs 18 to 26 and recorded findings at paragraph 27 of the judgment and ultimately arrived at a conclusion that the accused is found guilty of the offence u/s 375 IPC which is punishable u/s 376 IPC and after questioning about the quantum of sentence and after recording the reasons the accused was sentenced to Rigorous Imprisonment for ten years and also to pay a fine of Rs. 2000/- (Rupees Two thousand only) in default six months simple imprisonment. Learned Judge had taken the view that lenience cannot be shown in view of tender age of PW-1. There cannot be any controversy relating to the same. In view of the evidence of PWs-1 to 12 and Exs. P1 to P9 and Mos 1 to 7 and the clear evidence of PW-1 well supported by PWs-2 and 3 and also the medical evidence, the findings recorded by the learned Judge need not be disturbed and the same are hereby confirmed.

However, it is brought to the notice of this court that there is no male assistance to the wife, mother and children of the appellant/accused and the appellant/accused has been in custody from 24.10.1997 which is nearly just two months less than 7 years. In view of the facts and circumstances, it would be just if the appellant/accused is convicted and sentenced to the period commencing from 24.10.197 till today which would be nearly just two months less than 7 years as stated supra. Inasmuch as the appellant/accused had served the sentence for this period, which would meet the ends of justice, the appeal is no doubt hereby dismissed, but in view of the fact that the appellant/accused had already undergone imprisonment for sufficient period as specified supra, the appellant/accused shall be set at liberty forthwith.