Chintamalla Laxmaiah vs State of A.P.

Punnayya

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-1 was tried for a charge u/s 376 of the Indian Penal Code. A.2 was tried for a charge u/s 202 of the Indian Penal Code and A-3 was tried for a charge u/s 376 read with section 109 of the Indian Penal Code. A-1 to A-3 were also tried for a charge u/s 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 u/s 202 of the Indian Penal Code. But he convicted A 1, who is the petitioner herein, u/s 376 I.P.C., and sentenced him to undergo rigorus imprisonment for a period of fourvears and also to pay a fine of Rs 100/- in default to suffer rigorous imprisonment for two months. Re also convicted A-3 u/s 376 read with Section 109 I.P.C., and sentenced him to surffer rigorous imprisonment for four months and to pay a fine of Rs. 25/- in default to suffer rigorous imprisonment for one week. A-1 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-1 has preferred this revision case. From the evidence brought on record, the case of the prosecution is as follows: A-2 is the warden and A-3 is the watehwoman of the Scheduled Tribes Girls. Hostel at Pylon, Vijayapuri South, A-1 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-1 and A-2 are living at Pylon Colony. Vijayapuri in one and the same house near the hostel, A-3 used to live in the hostel. But A-1 used to go to Peddavoora Village everyday and come back. When A-2 was unable to attend to her duty, A-1 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-1 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-1 gave rice and other provisions from the store and P.W. 1 took and kept them in the kitchen room. A-3 came behind P. W. 1 and A-1 behind A-3 to the kitchen room. Then A 3 went out and bolted the door from out side while P.W. 1 and A-1 were in the kitchen room Then A-1 pulled P.W 1 by her band. P.W. 1 began to shout out calling P.W. 2 A-1 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-1 threatened to kill her if she shouted and there her down on the ground and committed rape on P.W. 1. Then there was bleeding from her private parts. Thereafter A-1 asked A-3 to open the door. After A-3 opened the door A-1 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 poison the food and kill them if they disclose this to anyone else. She also prevented P.W. 1 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. 9 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-1 had raped P.W. 1. P.W. 1 also told her weeping that A-1 had committed rape on her. When P.W. 1, P.W. 4 and others were telling P.W. 5 against A-1 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. 1 and others informed her. P.W. 6 on being informed by P.W. 5 about the unlawful acts of A-1, went to the hotel at 10 or 10-30 a.m. on 11-9-77. When he enquired, P.W. 1 and others told him that A-1 raped P.W 1. In 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 P.I.R. From there P.W. 17 proceeded to the hostel and examined P.W. 1 and seized her langa M.O.I under the panchanama, Ex. P-4. Then he sent P.W. 1 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 P.W. 17, the Medical Officer, Kamala Nehru Hospital, Vijayapuri, P W.11 examined P.W. 1 at about 11 p.m. on that day. She found P. W. Vs-hymen fore and granular tages present. There were no signs of infiamation and swelling. She was of opinion that the tears in hymen were caused by sezuai acts. She referred P.W. 1 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. 1 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 Act 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 ''1�'' long just above and lateral to anteral to anterior superior iliacs spine on the right side i.e., between the hip end 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-12 to she Judicial First Class Magistrate, Devarakonda for recording the confessional statement of A-3 P.W. 14 the Judicial 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.

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

Sri. T. Govindaiah, the learned counsel for the petitioner A-1 contends that there is an abnormal delay in giving the report to the police and the explanation offered by the prosecution with regard to the delay is unsatisfactory. He also contends that the evidence of the prosecutrix is full of infirmaries and improbablities and is not corroborated by the medical evidence. He also contends that the medical evidence discloses that P.W. 1 had sexual experience by the date of medical examination and hence her evidence does not deserve to be given any weight. He further contends that the evidence of P.W. 5 and 6 is unworthy of acceptance as they are inimically disposed of towards A-1 and A-2 and were bent upon for the removal of A-1 and A-2 from their services so that, they can be appointed in their places and it is they that created this false story winning over P.W. 1 to their side as A-1 to A-3 used to impose restrictions on P.W. 1''s movements And as such she was aggrieved against A-1 to A-3.

Both the courts below held that the evidence of prosecutrix itself is cogent and satisfactory and is corroborated by the evidence of P.Ws. 2 to 4 and also by the medical evidence, and the delay in giving the report to the police is satisfactorily explained.

The incident took place at about 10 p.m. on 27-8-1977. According to P.W. 1 she attained puberty in May, 1977 i.e., nearly four months prior to the alleged offence, P.W. 11 is the Lady Medical Officer, who examined P.W. 1 at about 11 p.m on 11-9-1977 i.e., 15 days after the incident. She found P.W. 1''s hymen torn and granular tags and the tears in hymen were caused by sexual act. The hymen was healed with the formation of granular tags. The medical evidence clearly corroborates the evidence of P.W. 1.

Sri T. Govindiah, the learned counsel for the petitioner contends that P.W. 11''s admissions in the cross examination clearly show that what P.W. 1 stated is not correct. In the cross-examination P.W. 11 stated that in the case of violent intercourse with a virgin girl below 14 years of age laceration of vaginal walls invariably occurs posteriorly are slightly posteriorily and even if vaginal wall is lacerated the signs will disappear in a week. She further stated that in the case of a forcible intercourse considerable bleeding will be there and in that case the girl may feel difficult in walking and if it is first act of intercourse with violence, then it will result in damage of the other tissues of genital organs. There will be no severe bleeding if only hymen is torn without any injuries to other parts of genital. The external injuries in the case of the forcible intercourse will not be there on the genital of P.W. 1 for after a lapse of two weeks.

If the entire evidence of P.W. 11 is appreciated in Its proper perspective, It proves beyond doubt that it corroborates the evidence of P.W. 1. At the evidence of P.W. 11 makes it abundantly clear that the tears in hymen and the presence of granular tags clearly show that the tears in hymen were due to sexual act and the formation of tags is due to the healing of the tears in hymen. P.W. 12 deposed that the tears In hymen were healed and might be more than one week old.

P.W. 1 was in the hostel from the date of the offence to the dates when she was was examined by P.W. 11 and P.W. 12. During that period she did not go any where and she was staying in the hostel only. P.W. 1 unequivocally stated that she never had intercourse with anyone prior to the incident. Nothing worth to be mentioned is brought on; record to show that P W, 1 had sexual intercourse with some other prior to the incident. When there is no evidence to show that P.W. 1 had sexual intercourse prior to the incident and that act or sexual intercourse caused tears in hymen and the tears were healed by the date of the medical examination and when P.W. 1 states that the act of sexual intercourse was caused by A-1, why should the courts refuse to believe her version?. It is true that she did not give any report to the police immediately after the incident. P.W. 1 offers her explanation that on the next day morning,, A-2 the wife of A-1 came to the hostel and P.Ws. 1 to 4 reported to her that P.W. 1 was ravished by A-1 and then she threatened that she would poison the food and kill them if they disclose the same to anyone and hence P. Ws 1 to 3 kept quite out of fear due to the threats administered by A-3 and it Is only when P.W. 3, the other of P.W. 4 came to the hostel, P.W 4 informed P.W.5, that P.W.1 was raped and P.W.1 also came to her weeping and told that A-1 had raped her and then P.W.5 informed her husband P.W.6 P.W.6 came to the hostel and enquired P.W.1 and others and when they told him that A-1 had raped P.W.1 and then he took P.W.1 to the Police Station where P.W.1 gave the report to sub-Inspector of Police P.W. 17.

P.Ws. 1 to 4 are young and unsophisticated tribal girls. They are under the control and influence of A-2, the warden. They depend upon the hostel for their boarding and lodging and for prosecuting their studies. When the warden A-2 threatened them with dire consequences, if they disclosed to anyone about A-1 committing rape on P.W. 1, they were afraid of losing the boarding and lodging facilities and consequently the benefit of education. A-2 also was watchful of their movements. It is true that P. Ws. 1 to 4 were going to school even after the incident and she was having opportunity to go to her parents, who were residing at a distance of two miles from the hostel. But P.W.1 stated that A-2 did not permit her to go to her parents so that she might inform them. P.W.1 was therefore afraid to go to her parents in view of the restrictions imposed and threats administered on P.W.1, by A-2. When she was obsessed with such fears, it is impossible to expect that she would deny the restrictions imposed on her by A-2 and go to her parents. II is for this reason that P.W.1 did not venture to go to her parents for informing them even though she was going to school alter the incident. The circumstances under which P.W.1 was placed cannot be brushed aside or over looked. Hence P.W.1 failure to go to her parents immediately after the incident for informing them or for giving a report to the police does not discredit her testimony. Further, P.W.1 informed P.Ws.2 and 3 immediately after the incident, as they are her room mates and P.W. 4 on the next morning. When P.W.5 came to see her daughter P.W.4, it is natural for P.W.4 to inform P.W.5 as to what A-1 had done to PW.1 and naturally P.W.5 enquired P.W.1 and P.W. 1 told her weeping as to the rape committed by A-1 on her. In such a case P.W.5 would naturally inform her husband P.W.6 and it is also natural for P.W.6 to go to the hostel since he has got two daughters P.W.1 and another studying in that hostel and he would also certainly ask P.W.1 and others as to what had happened. Naturally P.W.6 would also take P.W.1 to the Police Station for giving a report. Thus P.W.1 ventured to give the report Ex.P-1 to P.W. 17. As P.Ws.5 and 6 are elderly people, P.Ws. 1 to 4 ventured to tell them as to what had happened and P.W.I was prepared to accompany P.W.6 to the Police Station for giving a report and accordingly she gave the report. Hence the delay for P.W.1 in giving the report to the police is satisfactorily explained. When once the delay is satisfactorily explained the evidence of P.W.1 becomes free from suspicion.

P.W. 1''s version with regard to the incident is corroborated by the evidence of P.W 2 to 4. In fact P.W.2, whom P.W.1 called for her assistance by shouting, when A-1 caught hold of her in the kitchen room, came to the kitchen room asking what the matter was. But A-3 who was at the door of the kitchen room admonished her advising her to go and sleep and thus prevented P.W.2 from opening the door. After A-1 committed the rape on P.W.1, P.W.1 came weeping and informed P.W.2 as to what A-1 had done to her and P.W.1 showed P.W.2 and P.W.3 bleeding from her private parts and the blood stained langa. She also informed P.W.4 and others on the next day morning as to what A-1 bad done to her. The evidence of P.Ws. 2 to 4, which corroborates the evidence of P.W.1 has not suffered from any infirmity on the material particulars, P.W.1 washed her langa, which was stained with blood and hence M.O.2 was not having blood stains when it was produced be fore the S.I of Police, P.W. 17. When P.W.1 was affraid to go to her parents leaving the hostel, she would have naturally washed the blood stains on the langa for wearing the same as she was not having more langas. Hence she was able to produce the blood stained langa before the police. On that account it cannot be said that her evidence that her langa was stained with blood is false. The evidence of P.W.7 also corroborates the evidence of P Ws. 1 to 4 that A-2 threatened them with dire consequences if they would reveal to any one that A-1 had committed rape on P.W.1, is she was also present at that time.

It is attributed that P.Ws.5 and 6 wanted the dismissal of A 1 and A-2 from their service for the purpose of their being appointed in their places and they, therefore, set up P Ws. 1 to 4 to foist this false case. Obviously, this is a far fetched suggestion. P.W.1 will not be prepared to go to that extent of saying that she was raped by A.1 in order to help P.Ws.5 and 6. If that be the plan of P.Ws. 5 and 6 then they could have set up their own daughter P.Ws. 4 to play the drama. There was no necessity for P.W.1 to tell a false story for the sake of P.Ws. 5 and 6.

Here there is also the judicial confession of A-3 which is marked as Ex. P-14, the proceedings for the same are marked as Ex. P-14 Sri. T. Govindaiah, the learned counsel for the petitioner contends that the confessional statement of A 3 (Ex. P-14) was not recorded in accordance with the provisions of section 164 Cr. P.C. and Rule 29 of the Andhra Pradesh Criminal Rules of Practice. 1966.

Sub-Section (3) to Section 164 Cr. P.C lays down the procedure for a Magistrate to record a confessional statement. It is to the following effect :--

A Magistrate shall, before recording any such confession, explain to the person making it that be is not, bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily ; and, when he records any confession, he shall make a memorandum at the foot of such record.

Rule 29 of the A.P. Criminal Rules of Practice, 1966 points out the important questions to be put by the Magistrate to the accused when he recorded a confessional statement under Sec. 164 Cr. P.C. from the accused. The questions are as follows:--

Rule 29 (1) (a) he has explained to the accused person, that the accused person is under no obligation at all to a answer any question and that he is free to speak or to refrain from speaking as be pleased; and Rule 29 (1) (b) he has warned the accused person that it is not intended to make him an approver, and that anything said by him will be taken down and thereafter be used against him;

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The above two questions were not put to A-3. Instead he put the question "do you think that you would be released or acquitted if you give such a statement". To this the accused has answered "I am speaking of my own accord. God may do what he likes." Another question put by the Magistrate is "have you got fear from any question that if you fail to give statement of being illtreated or so?". To this, the accused has answered "I have no fear of any kind". The next question the Magistrate put to her is "are you thinking that just because you are before me, you should give the statement?". To this, the accused gave answer "I have no such thinking and what I would like to say is out of any own accord". The next question that was put by the Magistrate to the accused is "the statement may be used against you and even you may be punished"?. To this the accused answered "whatever I know I shall despose, let God do what ever he likes".

I do not think that the questions put by the Magistrate are in accordance with the provisions of Sections 164 (3) Cr. P.C. and Rule 29 of the A.P. Criminal Rules of Practice. They are intended to make the accused to understand that there is no obligation for the accused to answer any questions put by a Magistrate and is free either to make a statement or refrain from making such a statement. The Magistrate has, therefore, got a duty to assure the accused that he is in free atmosphere and all his interests are safeguarded by the Magistrate and nothing will happen to him if he does not make any statement and he will not be taken as an approver if he makes a statement and it will be used as evidence against him. The Magistrate must, therefore take care to see that the requirements of sub-Section 3 to Section 164 Cr. P.C. are fully satisfied in putting the important questions incorporated in rules 29 (1) (a) and (5) of the A.P. Criminal Rules of Practice, Hence no element of casualness should be allowed to creep in and therefore the strict or substantial compliance of these provisions is insisted upon the Magistrate. The question under sub-clause (a) to Rule 29 (1) of the Criminal Rules of Practice is intended for the accused understand clearly that he has no obligation at all to answer any questions and that he is free to speak or refrain from speaking as he pleases, Unless the question is put in that form the accused cannot be in a position to know that it is not necessary for him to answer any questions. From the question put by the Magistrate to the affect "have you got fear from any question that if you far to give statement of being illtreated or so?", the accused is not given to understand that she is under no obligation to answer any question and that she is free to speak as she pleases. The accused, therefore, without understanding that it is not necessary for her to make any statement merely stated that she has no fear of any kind. She was asked whether she has no obligation to make any statement. Even the question", "are you thinking that just because you are before me you should give the statement" cannot be said to be a question in conformity with the question under sub-clause (a) to Role 29 (1) the other questions put by the Magistrate that the statement should be used against you and even you may be punished also cannot be said to be a question under sub-clause (b) to Rule 29 (1) of the Criminal Rules of Practice, as the accused was not warned as required by clause (b) that she is not intended to be taken as an approver and anything said by her will be taken down and thereafter be used against her.

Since the Magistrate has not complied with the requirements of Section 164 (3) Cr. P.C. in not putting the questions incorporated in the rule 29 (1) (a) and (b) of the A.P. Criminal Rules of Practice 1966 the Magistrate committed an irregularity, which cannot be cured. Hence the confessional (sic) Ex. P-14 is discarded from being considered.

Even if the confessional statement, Ex. P-14 is discarded, the evidence of P.W. 1 and the corroborating evidence of P.Ws. 2 to 4 and P.W. 7 and the medical evidence are entitled to acceptance.

It is now well settled as enunciated by the Supreme Court in Rameshwar Vs. The State of Rajasthan, that a woman, who has been raped is not an accomplice. If she was ravished she is the victim of outrage............In the case of a girl, who is below the age of 18 years her consent will not matter so far as the offence of rape is concerned, but if she consented, her testimony will naturally be as suspect as that of an accomplice. So also in the cases of unnatural offences. But in all these cases a large volume of case law has grown up which treats the evidence of the complainant some what along the same lines as accomplice evidence though often for widely different reasons and the position now reached is that the rule about corroboration has hardened into one of law. But it is important to understand exactly what the rule is and what the expression ''hardened into a rule of law'' means. Adverting to the nature and extent of corroboration required when it is not considered safe to dispense with it the Supreme Court added it would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of an each case and also according to the particular circumstances of the offence charged". Following the decision in Sidheswar Gangully vs. St ate of West Bengali their Lordships of the Supreme Court added "that the nature of the corroborative evidence should be such as to land assurance that the evidence of the prosecutrix can be safely acted upon". In the case on hand, P.W. 1 is an innocent tribal girl. Her evidence is not only satisfactory but is also corroborated by the evidence of P.W. 2 to 4, who are meek, docile and innocent and uninfluenced by any extraneous considerations. Under these circumstances I am not able to accept any of the contentions of the learned counsel for the petitioner except in respect of the confession under Sec. 164 Cr. P.C., recorded by P.W. 14. Even if Ex. P-14 confessional statement is excluded from consideration, the evidence of P.W. 1 as well as the evidence of P.Ws. 2 to 4 proves the prosecution case beyond doubt against the petitioner and A-3. Hence the revision case fails and conviction and sentence passed against the petitioner are confirmed.

In the result, the Criminal Revision Case is dismissed.