C LAXMAIAH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner herein is the first accused in Sessions Case No.58 of 1977 on the file of the Asst. Sessions Judge, Nalgonda. He was tried along with A,2 and A.3. A-l was tried for a charge under Section 376 of the Indian Penal Code. A.2 was tried for a charge under Section 202 of the Indian Penal Code and A-3 was tried for a charge under Section 376 read with section 109 of the Indian Penal Code. A-l to A-3 were also tried for a charge under Section 506 (2) of the Indian penal Code. The learned Asst. Sessions Judge acquitted A-2 to A-3 of the offence U/s 506 (2) of the Indian Penal Code. He also acquitted A-2 of the offence under Section 202 of the Indian Penal Code, But he convicted A 1, who is the petitioner herein, under Section 376 I.P C., and sentenced him to undergo rigorus imprisonment for a period of fourveass and also to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for two months. He also convicted A-3 under Section 376 read with Section 109 I.P.C , and sentenced him to suffer rigorous imprisonment for four months and to pay a fine of Rs. 25/- in default to suffer rigorous imprisonment for one week. A-l and A-3 preferred an appeal before the Sessions Judge against their conviction and sentence. The learned Sessions Judge confirmed the conviction and sentence passed against them by the trial court, and dismissed the appeal. Now A-l has preferred this revision case.

(2.) From the evidence brought on record, the case of the prosecution is as follows: A-2 is the warden and A-3 is the watchwoman of the Scheduled Tribes Girls Hostel at Pylon, Vijayapuri South. A-l is the husband of A-2 and he is working as a warden of Peddavoora Scheduled Tribes Boys Hostel, which is situated at a distance of 20 K.Ms, from Vijayapuri. A-l and A-2 are living at Pylon Colony, Vijavapuri in one and the same house near the hostel A-3 used to live in the hostel. But A-l used to go to Peddavoora Village everyday and come back. When A-2 was unable to attend to her duty, A-l used to allend the hostel to issue ration to the cook or watch woman. The hostel consists of 28 girls studying from 1st class to 7th class. P.W. 1, P.W.2, P W.3, P.W.4. and others were studying in class VI at the time of the offence in this case. P.W. 1 attained puberty in May, 1977. On 27-8-1977 at about 10.00 p.m., A-l came to the hostel for giving rice and other provisions for the next day. P.W. 1 and A-3 went to take provisions. P.W. 1 went as A-3 called her to assist her. A-l gave rice and other provisions from the store and P.W. Hook and kept them in the kitchen room. A-3 came behind P W. 1 and A-l behind A-3 to the kitchen room. Then A3 went out and bolted the door from out side while P.W. 1 and A-l were in the kitchen room. Then A-l pulled P.W 1 by her hand. P.W. 1 began to shout out calling P.W. 2 A-l threatened her not to shout and closed her mouth with his hand. P.W.2 came on hearing the cries of P.W. 1 and asked A-2 as to what the matter was. But A-3 reprimanded P.W. 2 and asked her to go away and sleep. Then A-2 began to remove langa and jacket of P.W. 1 while P W. 1 was shouting. A-l thereatened to kill her if she shouted and therew her down on the ground and committed rape on P.W. 1. Then there was bleeding from her private parts. Thereafter A-l asked A-3 to open the door. After A-3 opened the door A-l had gone away. P.W. 1 had put on her clothes and went to her room crying. She told P.W. 2 and P.W. 3 who are her room mates, as to what A 1 had done to her on the previous Night. Then A-2 threatened her and others, that she would poisop the food aqd kill them if they disclose this to anyone olse. She also prevented P.W. t from going to her parents fearing that P.W. 1 would inform her parents- On 10th September 1977 in the afternoon P.W. 5, the mother of P.W. 4 came to the hostel to see her daughter P.W. 4 and another. P.W. 5 was living on the right bank of Nagarjuna Sagar. Her husband P.W. 6 is a watchman in the Fisheries Department, P.W. 4 and her sister were also residing in the same hostel. When P.W. 5 came to the hostel P.W. 4 told her that A-l bad raped P.W. 1. P.W.I also told her weeping that A-l had committed rape on her. When P.W.I, P.W.4 and others were telling P.W. 5 against A-l to A-3, they absconded from the hostel. In the evening P W. 5 left the hostel and went to her house and informed her husband, P.W. 6 as to what P.W.I and others informed her. P.W. 6 on being informed by P.W. 5 about the unlawful acts of A-l, went to the hotel at 10 or 10-30 a.m. on 11-9-77. When he enquired, P.W.-l and others told him that A-l raped P.W 1. Tn the place of A-3, another P.W.7 was working P.W. 6 took P.W. 1 to the Police Station, Where she gave the report to the S.I. of Police, P.W. 17. On the receipt of Ex. A-7 P.W. 17 registered a case as Crime No. 48/1977 and issued express F.I.R. From there P.W. 17 proceeded to the hostel and examined P.W.I and seized her langa M.O.I under the panchanama, Ex. P-4. Then he sent P.W. I to the Kamala Nehru Hospital, Vijayapuri with requisition Ex.P-5 for her examination. He inspected the scene of offence. On 12-9-1977 he recorded the statements of P.Ws. 2 to 8 and 15. On the receipt of the requisition Ex. P.5 sent by PW. 17, the Medical Officer, Kamala Nehru Hospital, Vijayapuri, P W. 11 examined P.W.I at about 11 p.m. on that day. She found P. W.l a hymen tore and granular tages present. There were no signs of inflamation and swelling. She was of opinion that the tears in hymen were caused by sezuai acts. She referred P.W.I to P.W. 13 for expert opinion. P.W. 13 who is the Asst. Professor of Forensic Medicine, examined P.W. 1 at about 11.30 a.m on 14-9-1977 on the receipt requisition Ex.P-11 He was of the opinion that P.W.I was aged about 14 years and that there is no evidence of having sexual intercourse within 24 hours prior to his examination. He found healed tears of hymen suggesting that she had experience of sexual intercourse and the tears were healed and might have been more than one week old. He issued his report Ex- P-10. On the basis of Ex.P-10, P W. 11 issued her final report Ex. P-7 P.W. 17 found the accused under absconding then he search for them and he finally arrested them on 15-9-1977. P.W. 17. sent A-l for medical examination under the requisition Ex P-8. On receipt of Ex. P. 8 from P.W.17, P.W. 12 working as the Asst. Surgeon at Kamala Nehru Hospital. Vijayapuri, examined A-1 and found an external injury i.e., a long and thin healed scratch '11/2' long just above and lateral to anteral to anterior superior iliacs spine on the right side i.e., between the hip and lower abdomen on the right side. He was also of the opinion that A 1 is capable of performing sexual act. He issued the certificate Ex P-9. He also gave a requisition Ex. P-12to the Judicial First Class Magistrate, Devarakonda for recording the concessional statement of A-3. P.W. 14 the Jo.- dicial First Class Magistrate, Devarakonda after receiving the requisition from P.W. 17 recorded the confessional statement of A.3. The confessional statements is Ex. P 14. After the completion of the investigation P.W. 17 filed the Charge sheet.

(3.) The prosecution examined 17 witnesses in all. The case of accused is one of denial and the accused did not examine any witnesses.