Bolleddu Sreenu vs Sub-Inspector of Police, Jaggayyapeta

The accused-appellant herein was prosecuted for an offence punishable under Ss. 376(1) and 506, IPC in the Court of the Assistant Sessions Judge, Vijayawada in Sessions Case No. 99 of 1989. On hearing the prosecution and the defence of the accused, the learned Sessions Judge came to the conclusion that the prosecution was able to prove the guilt of the accused and therefore, the learned Sessions Judge proceeded to convict the accused of the offence punishable under S. 376(1), IPC and sentenced him to suffer R.I. for Ten years and to pay a fine of Rs. 1000/- in default to suffer S.I. for one year. The learned Sessions Judge further convicted the accused-appellant of an offence punishable under S. 506, IPC and sentenced him to suffer R.I. for one year. Both the sentences were ordered to run concurrently.

Being aggrieved by the aforesaid order of convictions and sentences, the accused-appellant herein has preferred the present Appeal.

The prosecution case can briefly be narrated as follows : That the prosecutrix, Kanagala Rani, is a resident of Pedamodugupalli village. She is staying in the said village along with her parents. She has three elder sisters and they are already married. It appears from the prosecution case that the parents of prosecutrix were working as coolies and therefore the prosecutrix is used to take her goats to the pasture land of Kalyanam Koteswara Rao.

On the date of incident i.e., on 1-12-1988 at about 2-00 p.m. while the prosecutrix was grazing her goats in the pasture land of Kalyanam Koteswara Rao, the accused, who was working in the thrashing floor of Kalyanam Lakshmipathi, which is situated by the side of the land of Kalyanam Koteswara Rao, alleged to have came from behind her and caught hold of her and gagged her mouth with his hands to prevent her from raising cries, threw her down on the ground by keeping his hand on the neck of the victim and pushing her down. The accused alleged to have threatened the prosecutrix in case she raises cries and she would be thrown into the well. After making the prosecutrix to fall on the ground, the accused alleged to have lifted her langa and had a sexual course with her. While leaving the said place after completing the act, the accused alleged to have threatened the prosecutrix to kill her if she reveals the incident to any body.

It appears from the prosecution case that immediately thereafter the prosecutrix left the place to go to the house. On the way she met one Gajja Narasimha Rao, who was coming from the opposite direction on a cycle. He was made to get down from the cycle by the prosecutrix and narrated him the entire story. Thereafter both of them went to their houses. When the victim reached the house, P.W. 3 Smt. Kalyanam Kamalamma was only present in the house. The victim narrated the entire incident to P.W. 3. Thereafter they went to the fields of Kalyanam Appaiah where the mother and the brother-in-law of the victim were working as coolies. The victim narrated the entire incident to them. All of them went to the Sarpanch (P.W. 7) and the entire incident was narrated to him. On the advice of the Sarpanch, they went to Vatsavai Police Station at 7-00 p.m. The statement given by the prosecutrix was recorded by the Police and the same has been treated as FIR and it was brought on record as Ex. P. 5. On the strength of the FIR, the offence came to be registered against the accused-appellant. Statements of various witnesses were recorded. The clothes of the victim were seized in the presence of the mediators under a cover of mediator''s report. The victim was sent for medical examination. On arrest the accused was also sent for medical examination. The material objects seized from the victim were sent to the Chemical Examiner, Andhra Pradesh, Hyderabad for chemical analysis. Thus, on completion of investigation, the charge sheet was filed by the Investigating Officer. The accused was tried for the abovesaid offences and convicted and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1000/- in default to suffer S.I. for one year for the offence u/S. 376(1), IPC. The accused was also convicted and sentenced to suffer R.I. for one year for the offence u/S. 506, IPC. Both the sentences to run concurrently.

The learned counsel Mr. P. Raghava Reddy appearing on behalf of the accused-appellant mainly submitted that even for the sake of argument, the incident as narrated by the prosecutrix is accepted as it is, no offence punishable under S. 376, IPC has been disclosed. The learned counsel Mr. P. Raghava Reddy invited my attention to the evidence of the Doctor, who had examined the prosecutrix after she was admitted into the hospital. P.W. 10 Dr. Y. Rama Devi, has stated that she was working as Woman Assistant Surgeon, Jaggaiahpet from 20-10-1987. On 2-12-1987 at about 1-45 p.m. she had examined the prosecutrix. On examination she had noticed the following injuries on the person of the prosecutrix.

A contusion with abrasion on throat 1 cm x half cms. at throat.

Abrasion at the lower side of breast.

Ext. Genitalia no tear or hymen swelling of labia majora and minora. Edges of hymen are red and bleeding present.

After carrying out the examination, she had taken Vaginal swab, cervical swab, pubic hair and nail clippings for being sent to the Chemical analysis. As per the observations, she issued wounds certificate which is marked at Ex. P. 8. The report of the Chemical Examiner is produced as Ex. P. 4. Looking into the nature of injuries and intact of hymen, lacerations and abrasions on the vital part of the prosecutrix, the Doctor opined that there was an attempt to commit rape and in fact there was no rape.

The learned counsel Mr. P. Raghava Reddy also took me to the evidence of R.W. 6, Dr. V. Venkateswara Rao, who had examined the accused. P.W. 6 has stated that on 3-12-1988 at about 9-30 a.m. he had examined the accused and he had also collected the incriminating articles such as nail clippings and pubic hair for being sent for chemical analysis. In the cross-examination he has admitted that he did not find any injuries on the male organ of the accused. The learned counsel for the appellant relied upon a ruling reported in Rahim Beg and Another Vs. State of U.P., in which it was held in para 26 of the judgment as follows :

"If a girl of 10 or 12 years, who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was however, detected by the Doctor on the male organ of any of the accused. The absence of such injuries on the male organs of the accused would thus pointed to their innocence."

It was submitted by the learned counsel for the appellant that there was merely an attempt to commit a rape and as such the learned Sessions Judge has wrongly convicted the accused for an offence punishable under S. 376(1), IPC.

Considering the evidence as brought on record especially the evidence of both the Doctors, I hold that the accused had merely attempted to commit rape on the prosecutrix and he did not complete the sexual act and therefore the order of conviction and sentence passed by the learned Sessions Judge of the offence punishable under S. 376(1), IPC. is erroneous. I hold the accused-appellant is guilty of the offence punishable under S. 376(1) read with S. 511, IPC.

The accused-appellant has been in jail for over a period of five years. Maintaining the order of conviction under S. 376(1) read with S. 511, IPC, I hold that the sentence already undergone by the accused-appellant is adequate punishment which could be imposed upon him. The order of sentence of fine amount is set aside. No separate finding for the offence punishable under S. 506, IPC is found necessary and therefore the sentence passed under this count is set aside. I, therefore, order that the accused-appellant be released forthwith if he is not required in any other case.

In the result, the Criminal Appeal is accordingly partly allowed.

Appeal partly allowed.