D DURGESH ALIAS DURGI Vs. STATE OF AP

JUDGEMENT

(1.) These four criminal appeals arise out of the common judgment dated 04.04.2003 passed in Sessions Case Nos.320 of 2002 and 344 of 2002 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, whereby and whereunder, the learned Additional Metropolitan Sessions Judge found A-1-D.Durgesh @ Durgi and A-2-C.Ranga guilty for the offence under Section 376(2)(f) of IPC in each of the Sessions cases, convicted them accordingly and sentenced each of them to suffer rigorous imprisonment for 10 years and pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months in each of the Sessions Cases. The sentence of imprisonment imposed on the accused in S.C.No.320 of 2002 is ordered to run concurrently along with the sentence of imprisonment imposed in S.C.No.344 of 2002.

(2.) The prosecution case, in brief, is Pw-1 and Pw-3 are aged about 11 years as on the date of their filing respective reports before the police. They are victims of rape. Pw-4 Krishnavni is the junior paternal aunt of Pw-1. Pw-5 M.Venkatesh is the father of Pw-1. Pw-6 G.Balamani is neighbour to A-1. Pws. 1 to 4 and A-1 and A-2 are residents of Mohan Nagar and it is a slum area. The house of Pw-1 and the house of A-1 are intercepted by a lane. Renuka, the sister of A-1 is residing as a tenant in a portion of the house owned by A-2. Pw-3 along with his widowed mother, brothers and elder sister was residing in portion of the house owned by A-1s father as tenant. A-1, his parents, brothers and sister-in-law were residing together. A-1 is an auto driver. Pw-1 and Pw-3 were moving with A-1 intimately. On one day, sister-in-law of A-1 asked Pws 1 and 3 to take coffee to A-1, who was in the house of his sister Renuka. While they were returning after giving coffee to A-1, A-2 took them to the terrace of the house of Renuka and ravished them. Earlier, A-1 took Pws.1 and Pw-3 to Friends Colony on the premise of making them to learn cycling. He took them in the garden and committed rape on both of them. A-1 committed rape on Pw-1 spotting the places whichever was accessible. The places spotted by him are:- (i) On the terrace of house of Renuka, who is no other than his sister, (ii) community hall, (iii) Friends Colony and (iv) his house. A-2 committed rape on them twice once on the terrace of the house of Renuka and once in his house. The sexual assaults on Pws.1 and 3 went on over a period commencing from November 2001 to January 2002. In the month of January 2002, Pw-1 attained puberty. She had been to her grandmothers house and after few days of her stay there, she returned to her parents house. On the next day of her reaching her parents house, A-1 hurled stones on her signaling her to come to him. Pw-1 got frightened and informed her junior paternal aunt-Pw-4 Krishnaveni, who in turn, informed the same to Pw-5 Venkatesh, the father of Pw-1, and Venkatamma, the mother of Pw-3. All of them went to Saifabad P.S to complain against the accused. Pws. 1 and 3 narrated the incidents to Pw-7 A.Madhavilatha, Sub Inspector of Police, who recorded the statements of Pws.1 and 3, read over the statements and thereupon, Pw-1 and Pw-3 admitted the contents of the statements to be true and correct and signed thereon. Ex.P-6 is the statement of Pw-1 and Ex.P-5 is the statement of Pw-3. Basing on Ex.P-6 statement of Pw-1, Pw-7 registered a case in Crime No.46 of 2002 and issued Ex.P-9 F.I.R. Basing on Ex.P-5 statement of Pw-3, Pw-7 registered a case in Crime No.47 of 2002 and issued Ex.P-10 F.I.R. Pw-7 sent Ex.P-6 and Ex.P-7 F.I.Rs to the concerned Court while marking copies of the same to all the officials concerned. Pw-8 P.Rameshaiah, Inspector of Police, Musheerabad P.S received the copies of the F.I.R and took up investigation. He examined Pws.1, 3, 4 and 5 and recorded the statement under Section 161 Cr.P.C. On 13.2.2002, he sent Pw-1 and Pw-3 to Gandhi Hospital for clinical examination. Pw-2 Dr.K.Sunanda clinically Pws-1 and 3 and issued Ex.P-1 and P-3 clinical examination reports. Ex.P-1 clinical examination report relates to Pw-1 and Ex.P-3 clinical examination report relates to Pw-2. She collected vaginal smears and swabs and sent them to F.S.L. Exs.P-2 and P-4 are the F.S.L reports. The F.S.L reports do not indicate the presence of semen or spermatozoma in the vaginal swabs and smears. Basing on the clinical examination and F.S.L reports, she opined that the possibility of sexual assault on Pws.1 and 3 cannot be excluded. Pw-8 arrested A-1 and A-2 near community hall of Mohan Nagar on 15.2.2002 at about 8 pm. He sent them to Gandhi Hospital for medical examination with regard to potency test. He sent the sealed covers received from Pw-2, who medically examined Pw.1 and Pw.3 to F.S.L with a letter of advice. After completing investigation, he laid charge sheets before the XVII Metropolitan Magistrate, Hyderabad. The learned Metropolitan Magistrate took the charge sheets on file as P.R.C.Nos.11 and 12 of 2002 and committed the cases to the Metropolitan Sessions Judge, Hyderabad. The learned Metropolitan Sessions Judge took the cases on file as Sessions Case Nos.320 of 2002 and 344 of 2002 and on hearing the prosecution and the accused, framed charges under Sections 376(2)(f) and 506 IPC, read over and explained the same to the accused, for which they pleaded not guilty and claimed to be tried.

(3.) The accused filed petition under Section 219 Cr.P.C being Crl.M.P.No.651 of 2002 to conduct joint trial in both the Sessions Cases on the ground that the victims as well as the witnesses in both the Sessions Cases are common and one victim is a witness in the case relating to other victim and vice versa. The said Crl.M.P came to be allowed on 01.11.2002 and Sessions Case No.344 of 2002 came to be clubbed with Sessions Case No.320 of 2002. To bring home the guilt of the accused for the offences with which they stood charged, prosecution examined eight witnesses as Pws.1 to 8 and marked 10 documents as Exs.P-1 to P-10. The accused marked three documents Exs.D-1 to D-3 on their behalf. Requisition issued by Pw-2 for examination of victim girls (Pw.1 and Pw.3) has been exhibited as Ex.X-1. The learned Additional Metropolitan Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences under Section 376(2)(f) and 506 IPC and convicted them accordingly and sentenced each of them to suffer imprisonment for 10 years and pay a fine of Rs.1,000/- for the offence under Section 376(2)(f) IPC in each of the Sessions Cases. No separate sentence has been imposed on the accused for the offence under Section 506 IPC. The sentence imposed on the accused for the offence under Section 376(2)(f) IPC in S.C.No.320 of 2002 is ordered to run concurrently with the sentence of imprisonment imposed for the offence under Section 376(2)(f) IPC in S.C.No.344 of 2002.