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IN THE COURT OF THE II.ADDL. DISTRICT AND SESSIONS JUDGE,
AT MAHABUBNAGAR
Tuesday, the 19th day of March, 2013.
Present:- Sri Md. Nurulla Ghori, B.Com., B.L., II.Addl. District & Sessions Judge, (FTC),Mahabubnagar.
SESSIONS CASE NO. 633 of 2012
In Preliminary Registered Case No.78 of 2012 committed by the
Judicial Magistrate of First Class, Shadnagar, in Crime No. 98/2010 of
Police Station Keshampet.
Prosecution:-: Sri..G.K.Harshavardhan Reddy,
Additional Public Prosecutor.
Defence Counsel:-: Sri. K.Mohan Rao and B.Satyanarayana Rao Advocates (Defence) for accused No.1. Sri. K.Sugunaka goud, Advocate (Defence) for accused No.2. Sri. M.Chennaiah Goud, Advocate (Defence) for accused No.3 and 4. Name and particulars of : A-1: Dishanapu Jangaiah, S/o. Sathaiah, age Accused22 years, Caste: Mudiraj, Occ: Agriculture, R/o. Veljerla village, Farooqnagar Mandal. A-2: Vadde Krishna, S/o. Yadaiah, age 25 years, Caste: Waddera, Occ: Stone cutter, R/o. Papireddyguda village, Keshampet Mandal. A-3: Kandhada Raju, S/o. Sailu, age 24 years, Caste: Mudiraj, Occ: Labour, R/o. Papireddyguda village, Keshampet Mandal. A-4: Gannoji Shiva, S/o. Dakshana Murthy, age 23 years, Caste: Vadla, Occ: Labour, R/o. Joolapally village, Thalakondapally Mandal. Offence under section(s): 376(2)(g) IPC.
Nature of offence(s): Rape – Gang rape
Plea of the Accused:Pleaded not guilty
Finding of the Court:Found not guilty
Sentence or Order: In the result, accused 1 to 4 are not found guilty for the offence under Sec.376(2)(g) 2
IPC and they are acquitted u/s 235(1) Cr.P.C and their bail bonds shall stand cancelled.
The M.O. 1 and 2 shall be destroyed after appeal time is over.
The superintendent of the District jail is hereby directed to release the A3 and A4 forthwith if they are not required in any other case.
The superintendent, Central prison
Cherlapally, Hyderabad is directed to release the A2 if he is not required in any other case.
J U D G M E N T
The Circle-Inspector of Police, Shadnagar filed Charge Sheet against the A1 to A4 for the offence under Section 376(2)(g) of IPC with the following allegations.
2.The brief facts of the prosecution case that the lands of L.W.2-
Smt.Delhi Laxmamma and Accused No.1 are situated adjacent each other.
Since 6 or 7 months prior to the incident there are ill feelings among both the families over the issue of cutting the bore well electrical cable wire,
Since then there are no talking terms among them. While so on 23-10-2010 at 1400 hours L.W.2 was alone at Agricultural fields, while washing the clothes at the bore well. Observing the same all the accused A1 to A4 with the evil desire decided commit rape on L.W.2. While watching their movements, A3 took chilly power from the basket near bore well and all of sudden sprinkled in the eyes of L.W.2. She went to start bore well. In a panic state of affair, she raised hue and cries, when A1, A2, A4 all together closed her mouth, eyes, tied her hand with towel and forcibly dragged to 3 nearby bushes of custard apple trees. Then the accused persons 1 to 4 forcibly committed rape on her one after the other. Due to the cruel behaviour L.W.2 fell on unconscious. After committing the offence all the accused escaped from the spot. Later at about 3.00 p.m., husband L.W.1.
Return from Shamshabad Market after selling the custard apple went to the fields and found L.W.2. In a depressed stage. Initially did not speak later when he ask L.W.2. Inform about the offence committed rape A1 to A4., against her.
3.Then L.W.1 approached the police and lodged a complaint before
L.W.21(G.Sai Chandra Prasad) who registered a case in crime No.98/2010
U/s 376 (2)(g) of I.P.C., he recorded the detailed statement of L.W.1, and secured L.W's.10 and 11(Wadde Yadaiah and Konde Ajaiaha) seized the clothes of the victim,. She was sent community health center, Shadnagar for examination, Later L.W.22(P.Srinivasa reddy) took up investigation and visited the scene of offence at the land of L.W.1 and conducted scene of offence panchyanama in the presence of L.W's.12 and 13(Deshapu
Laxmaiah and Uppari Sathyam). Later I secured the presence of L.W. 3 to 9 recorded the statements, on 3-11-2010 at 800 hours L.W.21(G.Sai Chandra
Prasad) apprehended A1 from his house and produced before
L.W.22(P.Srinivas Reddy) and he interrogated him, admitted the offence along with requisition sent to remand, L.W.16(Dr.K.Chandrakala) examined
L.W.2(Smt.Delhi Laxmamma). Preserved samples and her final opinion that there are science of recent vaginal penetration, L.W.17(Dr.Vijay
Kumar) examined A1, A2 to A4 found they are capable of doing sexual act.
The L.W.22(P.Srinivasa Reddy) transmitted material object to F.S.L., on his requisition L.W.19(Ravindra Varma) recorded statement of L.W.2 under 4 164 Cr.P.C. Twice. After completion of investigation he filed charge sheet against A1 to A4. Hence the charge.
4. The learned Judicial Magistrate of First Class, Shadnagar, on filing of charge sheet before him took the case into cognizance under Section 376 (2)
(g) of IPC and numbered the charge sheet as PRC No. 78/2012. After appearing of the accused 1 to 4 the learned Magistrate furnished copies of documents as required under Sec.207 Criminal Procedure Code. Heard both sides committed the case to the court of Sessions, Mahabubnagar under
Section 209 Cr.P.C, as offences are exclusively triable by the court of
Sessions. Mahabubnagar.
5. The Hon'ble Prl.Sessions Judge, Numbered the same as S.C.633 of 2012 and made over the case to this court for disposal according to law.
6. On appearance of the accused 1 to 4 before this court and on hearing on the counsel on both sides, this court framed the charge under section 376 (2)(g) of IPC against the accused 1 to 4 read over and explained to them in Telugu. They pleaded not guilty and claims to be tried. Then this court fixed trial schedule and conducted the trial.
7. During trial of the case, prosecution examined P.W’s 1 to 17, and
Ex’s P1 to P17 and M.O.1 and 2 are marked. The prosecution failed to examine L.Ws., 6 to 9, L.W.13, 15, and L.W.19. As such their evidence is closed.
8. After closing of the prosecution side evidence, the accused 1 to 4 are examined u/sec.313 Cr.P.C to explain the incriminating material found 5 against them. They denied the above said evidence and stated that a false case foisted against them and they never did any offence the prosecution falsely implicated them in this case. The accused got marked Ex.D1 to D4 on their behalf, no oral evidenced is adduced on their behalf. The defence of the accused is total denial of the prosecution case.
9. The learned Addl. Public Prosecutor argued the prosecution could able to establish case against A1 alone to the evidence of Pw.1 and 2, Pw.10 to 17. Pw.1 and 2's evidence corroborated with each other and discloses that
A.1 committed rape on Pw.2. However the identity of other culprits was not forthcoming through other evidence on record. Here the evidence of Pw.12,
Pw.14 to 17 projected that A2 to A4's involvement in the alleged offence was spoken by them. However Pw.2 confined her case towards A.1 alone.
So, the evidence of Pw.9, Pw.10 in respect of capability of A.1 in participating the sexual act was proved through Pw.9. Further PW.10's evidence however did not show any signs of rape against Pw.2 but oral evidence of Pw.2 and 1 shall be taken into consideration to prove the prosecution case coupled with evidence of Pw.12 to 17. further the contradictions which was marked in the evidence of Pw.2 is not so material to demolish the case of the prosecution. As such prosecution established their case against A.1 alone under Sec.376 IPC. So, rest of the case shall be considered by the court according to law.
10.The counsel for the accused contended that it is the story of the prosecution that A.1 and another came to the scene of offence sprinkled chilly powder on the eyes of the Pw.2, then she pushed him aside, A.1 and another caught the theft of Pw.2 dragged to the custard apple trees and 6 committed rape on her. But subsequently prosecution developed its case and introduced A.2 to A4 has assailants against Pw.2. Prosecution twice recorded 164 Cr.P.C statements of Pw.2 and she has not supported the subsequent case of the prosecution. She changed her version from time to time, as such her evidence is not consistent corroborated with story of the prosecution. More over at one stage she given a statement before the police that Pw.1 repeatedly saying that A.1 alone did the offence as such in confusing stage she had been given a complaint against A.1 and subsequently she fully thought recollected her memory and stated that A2 to
A3 committed the offence against her. The above said facts were brought on record as contradictions D1 to D3. As such her evidence is not reliable to believe. More over medical evidence clearly shows that there is no sings of intercourse by the time of incident as such no medical evidence on record to prove or support the oral evidence of Pw.2. Further no injuries found either on Pw.2 or on the alleged accused. Further there is no material on record to show that A.1 sexually assaulted against PW.2 as such he is entitled for benefit of doubt. The investigation done by PW.12 to 17 is perversed not upto mark. The prosecution story is not consistence not inspires confidence not reflecting the true facts. As such A.1 is entitled for benefit of doubt.
11.The counsel for the A.2 contended that as per the prosecution story that A2 to A4 brought on record on their confessional statements made in crime No.437/2011 under Sec.302, 379 IPC of P.S. Shadnagar. But whereas
Pw.2 did not state that A.1 and others came to the scene and assaulted against her. Pw.2 in her evidence given clinch chit it against A.2 in other words she says A.2 did not noticed at the scene of offence with A.1 & 2 did not commit any offence against her., as such there is no substantial piece of 7 evidence against A.2 to fix the responsibility on him. Though Pw.9 examined him medically certified he is capable of doing sexual assault did not bring him in the fold of guilty. Further the confession which was made
before PW.14 is not proved through independent evidence. So, the
confession piece of evidence against A.2 through Pw.14 may not be helpful to the prosecution because his evidence is not corroborated with the other independent evidence more particularly victim girl, as such he is entitled for benefit of doubt.
12.Here the learned counsel for the A3 and A4 contended that they were falsely implicated in this offence they are no way concerned with alleged offence. Further he contended even at the earlier case in crime No.437 of 2011 under Sec.302, 379 IPC of Shadnagar town P.S. was falsely implicated by the police and said case was acquitted by this court. Further Pw.2 categorically stated that A.3 never involved in the offence never assaulted against her sexually and never scene him at the time of incident. In respect of A.4 is concerned she stated that she did not know A.4 and never saw him at the time of incident. So, from the above said factual aspects Pw.1 did not speak any material facts against A3 and A4. More over medical evidence through Pw.10 does not found any sings of rape or any sings of recent intercourse as such at any point of time it could not possible to the prosecution to bring A3, A4 in the fold of the guilty of charges. Further the evidence of Pw.12 to 17 investigation officers at the first instance Pw.12 received Ex.P1 complaint against A.1 and other person and his investigation does not disclose that one or more persons assaulted against Pw.2 and committed rape on her. Later Pw.15's evidence also does not disclose about the participation of A2 to A4 coming to the evidence of Pw.14 he introduced 8 the involvement of A2 to A4 as they were confessed in crime No.437 of 2011 of their P.S. But the confessional statement recorded by Pw.14 did not furnished any facts of discovery leading to the recovery that too confessions are being made one year one month after the alleged incident except Pw.14's evidence their would not be material to connect A2 to A4 with oral evidence of Pw.2. More over Pw.2 did not state about the involvement and presence of A2 to A4 in the offence. Further Pw.15 is the 2nd investigation office is confine his investigation to the extent investigation done by Pw.12. So, he is the very important investigation officer in this case Pw.16 who filed charge sheet against the accused. Here he has verified the entire investigation done by Pw.12, 14, 15 and 17 but filed charge sheet against the all the accused.
Here court also put a question on which version that he has based his charge sheet against the accused. He has not given any conclusion and he says he rest his conclusion basing on the investigation done by Pw.14 and 15 and
Lw.23. At one stage he says that prosecution witnesses eliminates A.1 at one stage prosecution witnesses eliminates A2 to A4 but he filed charge sheet against A1 to A4 without giving reasonable explanation as such his investigation is perfunctory and falsely implicated the accused persons and filed charge sheet without any basis. As such the accused persons 3 and 4 are entitled for benefit of doubt.
13. Pw.1 D.Yadaiah deposed against that about two years back he went to
Shamshabad market to sell custard apples at about 12.30 or 1.00 noon of the day came back to their village, had a lunch and went to his agricultural land where he searched for his wife who was not found. Further she says he found LW.2 laying in a irrigation channel of his land unconscious state, he sprinkled water, she came in conscious state, enquired about her condition, 9 she told that A.1 came to their land while she was engaged in work sprinkled chilly power on her eyes dragged her to nearby custard trees bushes, where
A.1 and other person not known committed rape against her will. Further he says LW.2 raised cries for help by calling Nagaiah Bhava, then A.1 replied ‘eenirojula lendi Nagaiah bhava eppudu yadikelliwachinadu’, he approached
Katike Bhoopal for his help, called LW.4 and 5 to the scene of offence.
Further he says thereafter they shifted LW.2 in Ambulance van of 108 services to community hospital, Shandnagar later he approached the police lodged a complaint Ex.P1 against two persons, police recorded his details statement. Further he says there was dispute with A.1 which is one month prior to the incident, A.1 quarreled with them alleging they cut the cable, current wire to the motor of A.1 and threatened with their consequences i.e.
the motive for the offence to A.1 handed over the cloths of LW.2 to police during investigation.
14.PW.2 Smt. D.Laxmamma stated against that about two years three months back in between 9.00 and 10.00 am she came to her land for agricultural work while attending washing of cloths at her bore well and on completion she went to switch off bore well motor and raised from the ground A.1 then caught her tuft of air dragged towards the bushes, thereafter he raped her against her will. Further he says due to that she was in abarated condition by then rain was commenced, as she was not responded to the calls of PW.1, later police came to the hospital and recorded her statement.
MO.1 and 2 are cloths at the time of incidents. She further says she was shifted to the hospital where she regained conscious then she informed the entire episode to PW.1 later police came to the hospital and recorded her statement MO.1 and 2 are cloths at the time of incidents.
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15.PW.3 K.Bhoopal stated that about two years back in day time PW.1 came to him and informed him that PW.2 fell unconscious at his agricultural well and asked his assistance, thereafter he went to the land of PW.1 noted the PW.2 in conscious stage in the flow of water channel near custard apple bushes, thereafter LW.4 and 5 came and shifted her to crusher machine point from thereafter to hospital, Shadnagar.
16.PW.6 Vadde Yadaiah stated that police secured his presence at
Keshampet P.S. where PW.1 produced victim cloths which are MO.1 and 2 and the same was seized under the cover of Ex.P5 panchanama.
17.PW.8 Venkata Krishna Rao VRO deposed on 10.11.2011 at 2.00 pm at P.S Keshampet he noticed three persons in the custody of the police, on the request of the C.I. enquired those persons one after another, first person disclosed his name as a Vadde Krishana A.2 and confessed himself A.3 and another, ran from the place, later police recorded confession statement of
A.2 which is Ex.P7.
18. Pw.9 Dr. G.Bucha Reddy CAS stated that on 12.12.2011 at 11.55 am he conducted potency test against A.2, A.3, A.4 and issued Ex.P8, P9, P10 opined all are capable of performing sexual act.
19.PW.10 Dr.K.Chandrakala, CAS, Shadnagar stated that on 23.10.2010 on the requisition of police, Keshampet examined PW.2 at 7.00 pm and found No.1 abrasion/scratches over chest area. She collected swabs samples from the victim girl for analysis and after receipt of final report she opined 11 that there is no evidence of any intercourse issued Ex.P.11 her final opinion and Ex.P.12 is FSL report.
20.PW.11 K.Swapna, J.C.J. Jadcherla deposed on 21.1.2012 on the requisition of P.S Keshampet he recorded the statement of PW.2 under
Sec.164 Cr.P.C. she stated when she was washing cloths and another came and sprinkled chilly powder on her eyes committed rape against her will.
Ex.P.3 is 164 Cr.P.C. statement of PW.2.
21.G.Saichandra Prasad(LW.21) S.I. of police, Keshampet stated that on 23.10.2010 at about 1830 hours PW.1 came to P.S. and gave a statement basing on it a case in crime No. 98 of 2010 under Sec.376 IPC and issued
Ex.P.14 FIR to court, he recorded the details statement of PW.1 secured the presence of PW.6, LW.11 and collected victim cloths which are MO.1 and 2, the PW.2 was sent to hospital for examination, later investigation was taken over by LW.22.
22.PW.13 Dr.Vijay Kumar, CAS of Kalwakurhty stated 3.11.2010 on the requisition of C.I. of police, Shadnagar he conducted potency test of A.1 and found that he is able to perform sexual act issued Ex.P.15.
23.PW.14 B.Naveen Reddy Inspector of police, Shadnagar stated on 10.11.2011 during investigation in Crime No.437 of 2011 of their P.S. he got apprehended A.2 to A.4 on enquiry are going to confessed facts relating to the offence, secured PW.8, LW.15 and recorded statements that all stated at about one year back went to the land of PW.1 found PW.2 alone at bore well and sprinkled chilly powder by A.3 and thereafter all dragged her near 12 custard apple trees and committed rape one after another, the said confession was recorded and all remand in crime No.437 of 2011, Shadnagar and later he came to know that C.I. of police rural obtained the said confessional statement which are Ex.A.7 which includes detail statement of A.3 and A.4.
24.PW.15 P.Sriniva Reddy inspector of police rural Shandnagar he took up investigation of PW.12 on 23.10.2010, visited community health center
Shandnagar, recorded the statement of PW.2, on 24.10.2010 he visited the scene of offence situated at S.No.36 of Papi Reddy guda village secured the presence of PW.7 and LW.13 and conducted scene of offence panchanama on the land of victim PW.2. Further says he secured the presence of PW.3 to 5, LW.6 to 8 and recorded their statements, visited Papireddy guda examined LW.9, on 3.11.2010 PW.12 apprehended A.1 and produced before him. Further he says he effected the arrest of A.1 and subjected him for medical examination and produced before J.F.C.M for remand, on 6.11.2010 he filed requisition before JFCM Jadcherla to record 164 Cr.P.C. statement of PW.2 and accordingly it was recorded on 20.11.2010 Ex.P6 is the requisition before the J.F.C.M Jadcherla, later he transmitted the material objects collected by Medical officer from PW.2 for FSL through S.D.P.O.
Shadnagar Ex.P.17 is the DNA report of A.1. Further he says on 11.11.2010 he filed another requisition before the JFCM to subject A.1 for medical examination, accordingly A.1 blood samples were collected in order to compare the stains found on MO.1 and 2, 20.2.2011 received Ex.P.12 FSL report later he was transferred investigation was handed over to LW.23.
25. PW.16 A.Ravinder Reddy C.I. of police, Shandnagar rural stated he took up the charge in this case on 28.6.2012 from LW.23 collected DNA report for FSL and filed charge sheet against all.
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26. PW.17 Mohd Jakir Hussain C.I. of police, Shadnagar rural stated on 24.6.2011 he took up investigation for PW.15 and filed a requisition on 19.11.2011 before JFCM for issuance of PT warrant against A.2 to A.4 collected original remand C.D. in crime No.437 of 2011 of P.S. Shandnagar town along with confessional statements, then A.2 to A.4 got produced under PT warrant before JFCM in this crime A.2 to A.4 subjected to medical test, on 10.1.2012 secured the presence of PW.2 recorded her 161 Cr.P.C.
statement and filed requisition before the JFCM Jadcherla to record statement of PW.2 under Sec.164 subsequently he was transferred. PW.16 was taken the charge of the case.
27. Now the point for my consideration is that:
1. Whether the prosecution established that A1 and another committed rape against P.W.2?
2. Whether the prosecution established that A2 to A4 committed rape against P.W.2.?
3. Whether the prosecution placed any medical evidence to establish that P.W.2. Sexually assaulted by all the accused. ?
28.Point No.1: ?
As seen from that the story of the prosecution at the earliest point of time set out in Ex.P1 document is that P.W.1., after completing his work he went to agricultural land found P.W.2. In a depressed condition and not had talk with him then he enquired with her she told that on 23-10-2010 at 2.00 p.m., when she going to stop motor A1 and another person came to her caught her committed rape against her. This factual aspects are set out to project their case at the earliest point of time. P.W.1. In his evidence he stated that on the date of incident he return back from Shamshabad Market had a lunch went to his land where he noticed P.W.2. Lying in a Irrigation channel unconscious state then he sprinkled water, she regain conscious and told to him that A1 came to their land when she was engaged in work 14 sprinkled chilly powder in her eyes dragged her to nearby custard apple tree bushes where A1 and another person not known about his particulars and committed rape against her. Further he emphasized he lodged complaint against two persons. In his evidence admitted he did not notice the chilly powder on the clothes of P.W.2. The contents which was deposed by him
before the court was furnished to the Gopal and the same was incorporated
under Ex.P1. So from the above said factual aspects the material fact is that
P.W.2. Specifically alleged over tact against A1 and another. Further he admits in his cross examination that A2 is resident of their village he never involved in the alleged incident against P.W.2. Further he says A3 also known to him he never involved in the alleged incident P.W.2. Did not state any overtacts against A3 and A4. So these factual aspects clearly shows that
P.W.1. Stated that A1 alone committed offence against P.W.2. Which is against the case of the prosecution.
29.P.W.2. Victim in this case she projected a new version. She told that on the date of incident she went to attend the agricultural work at her land from his house when she attending washing of clothes at her bore well and on completion of work while she was switching of the bore well motor and she raised from the ground A1 came and sprinkled chilly powders on his face fell into her eyes she pushed A1, even then he caught the hair dragged her towards the bushes and committed rape on her and she was in a abrated condition then P.W.1. Came and noticed the condition of P.W.2. And rushed to the P.W.3., and took the assistance of P.W.3 to 5 and shifted victim to near by huts and changed her clothes. She informed entire episode about sexual assault made by A1,. A1 alone. So the oral evidence of P.W.2. And
P.W.1. Is not consistence moreover according to story of the prosecution 15 when P.W.1 reached the scene of offence, P.W.2 well conscious but a surprisingly P.W.1 and 2 brought the theory of P.w.2 found in unconscious state which is a development from the story of the prosecution. Besides that
P.W.2. Did not made any overtacts against A2 to A4 and also never say about their presence at the scene of offence and their participation in the commission of offence. So prosecution witnesses P.W.1,2, confined their case only against A1.
30.Actually the prosecution case is that A1 and another came to the land of P.W.2. And sexually assaulted against her. So at the first face of investigation that the case of the prosecution is around A1 alone.
Subsequently A2 to A4 was brought on record as they were confessed commission of offence in crime No.437/2011 of P.S., Shadnagar town in an offence U/s 302, 379 I.P.C., According to the Ex.P1 document the alleged offence was taken place on 23-10-2010 at 2.00 p.m., subsequently after one year gap that A2 to A4 alleged to have been confessed in crime No.437/2011 of P.S.Shadnagar town about their involvement and made sexual assault against P.W.2. Unfortunately the above alleged confessions brought by the prosecution in this case but this fact is not corroborates or correlates with the facts mentioned in Ex.P1 document. The facts mentioned in Ex.P1 document is independent allegations against A1 and another with separate incident. The confessional fact which are alleged to have been made A2 to
A4 is entirely separate incident and eliminates facts mentioned in Ex.P1 document. So in the set off circumstances prosecution must brought consistence evidence but unfortunately P.W.1 or victim P.W.2. Never says that A1 to A4 participated in the sexual assault made against P.W.2.
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Moreover P.W.1 and 2 specifically in categorically terms stated that A2 to
A4 never participated in the alleged offence.
31.Now we have to seen P.W.2. Stick on to her evidence or the allegations against A1 can be seen from her evidence. It is a fact at the first instance P.W.12 recorded the statement of P.W.2. Subsequently P.W.14 recorded her detailed statement and her statement U/s 164 Cr.P.C. All these stages P.W.2. Alleged that A1 and another committed rape against her. But subsequently on 10-01-2012 P.W.17 recorded her statement where in she given details of the incident in a developed manner alleges the participation of A2 to A4 and committed rape against her. The said factual aspects brought to notice of P.W.2. She state that she never state before the police that when she switched of “one person near the trees came and picked up chilly powder from her Saddi gampa and sprinkled on her face and the said part was marked as Ex.D1”
32.Further she did stated before the police that on 10-01-2012, that she was in abrated condition and confused condition at about 3.00 p.m., when
PW.1. Enquired “Naku Yemi chepalani Palu poka manasika vedaku guri ayi maku gatha koddi rojuluga Bhu panchayathi Disnepu Jangaiah ku madya
Unandhuna atene vachi mana bangam chesinatluga” the said part marked as
Ex.D.2.
33.From these factual aspects and contradictions marked in her statement shows by 10-01-2012 she changed her version and eliminates the allegations against A1 and given a fresh statement 10-01-2012 but contrary to that statement she given evidence before the court that A1 committed rape 17 against her but these factual aspects is not inspires confidence not trust worthy and not reveals true fact, so in the set of circumstances evidence of
P.W.2. Is not a reliable evidence in view of the contractions of Ex.D1 and
D2. Moreover these contradictions goes to root of the case.
34.Further as seen from the evidence of P.W. 10 Dr.Chandrakala she stated in her evidence that she examined P.W.2. And collected a swap samples from vagina of the victim for analysis, subsequently after receipt of
F.S.L. Report she issued her final opinion, according to it there is no evidence of any recent intercourse issued Ex.P11. Final report, Ex.P12 is
F.S.L., report so her evidence ruled out that there is a sexual inter course no medical evidence is available. Moreover victim reported the incident at 23- 10-2010 at 1830 hours and she was examined by the medical officer at 7.00 p.m., which is an half an hour, the incident was taken place at 2.00 p.m., from this point we calculated the duration of P.W.2.'s examination would be arrived 5 hours. That there is no evidence that she was taken both she was came approached the P.S., as well as hospital further the evidence of P.W.6 stated that police collected M.O.1 and 2 in his presence under Ex.P5 which are clothes of the victim. Further Ex.P12 document does not show any seminal stains on the other hand it shows human blood detected but it was not found its blood grouping. P.W.1 and P.W.2. Never say that private parts of P.W.2. Was bleeding and even P.W.10 never say that there was a tearing on vaginal part no injuries were found so all these factual aspects goes to show that there is no science of forcible sexual act or any science of intercourse, Therefore the medical evidence and oral evidence is not corroborates and support the case of P.W.2. Further oral evidence eliminates A1 as such excluding the evidence of PW2 there is no other 18 evidence on record, the other circumstantial witnesses did not support the case of prosecution. So remaining evidence is only investigation officers and their evidence is changed from stage to stage. Therefore there is no convincing evidence on record that A1 committed rape against P.W.2.
Hence I answer this point against prosecution.
35. Point No.2:
Here the prosecution case is 23.10.2010 at about 1400hrs Pw.2 was alone at agricultural fields while washing cloths at her bore well, all the accused i.e A1 to A4 with evil desire to decide to commit rape on Pw.2 while washing her cloths A.2 took the chilly powder and sprinkled on eyes of Pw.2 and when she was about to started the bore well. Then A1, A2 , A4 altogether close her mought tied her hands with tower and forcibly dragged to near b y custard apple trees accused 1 to 4 forcibly committed rape on her one after other.
36.In order to substantiate above said case prosecution placed the evidence of Pw.1 and 2. Pw.9, Pw.10, Pw.12 to 17 witnesses evidence. Out of these witnesses PW.2 is a victim. Pw.1 is husband of Pw.2. According to the evidence of Pw.1 he went to the his agricultural land found Pw.2 in conscious stage sprinkled water and she regained conscious and informed that A.1 and another person came sprinkled chilly powder committed rape against her will. Here the evidence of Pw.1 is deviated from the story set out from Ex.P1 document. At the first instance it alleged that Pw.2 found in dipressed condition when enquired with her she told that A.1 and another came and committed rape against her but this factual aspects was stated by
Pw1. And entirely different version was put forth. Further he categorically 19 admitted in his evidence A2, A3, A4 never came to the scene of offence never participated in the sexual assault against Pw.2. Pw.1 stated Pw.2 never alleged any over tacks against A2 to A4. Here Pws.3 to 5 are the neighboring owners of the scene of offence land they never stated that Pw.2 informed that A.1 or A2 to A4 came to the scene of offence sprinkled chilly powder on her eyes and committed rape against her will. Therefore Pw.3 to 5 who are available at the scene of offence on the date of incident at alleged time of incident. Here their evidence only discloses that PW.1 came to Pw.3 requested him to assist Pw.1 to shift Pw.2 near by crusher point. Therefore to that extent their presence could be taken but they did nto support the case of the prosecution as such we shall rely on the evidence of Pw1 and 2.
37.Pw.2 in her evidence she stated that she went to attend agricultural work at her land from hs house after completion of watching of cloths at her bore well she went to switch off of bore well motor, when she raised from the ground A.1 came and sprinkled chilly powder on her face caught her theft of hair dragged towards the bushes and committed rape on her. In her cross-examination she admitted that she did not state before the police when she went for switching of the motor, one person nearby a tree came up picked up chilly power from her saddigampa and sprinkled on her face, the said portion was marked as Ex.D1. Further her evidence shows that she did not state before the police in his statement of 10.1.2012 that she was eborated condition and confused condition at about 3.00pm when Pw.1 enquired with her “Naku Emichepalani palupoka mansikavedaku guriai, maku gatha kodirojuluga bhumi panchayath Dishanapu Jangaiahku madya unanduna athane oochi manabhangam chesinatlga police wariki courtlo cheppinanu”. The said part was marked as Ex.D2 so, from these factual 20 aspect Pw.2 accepted that she made allegation under confusion state against
A.1 that he committed rape against her.
38.Further she admitted in her cross-examination in continuation of
Ex.D3 that “Kani konirojuluga alochinki mariu atti shock nundi telukonutaku naku chala rojulu pattinadi purthiga atti manasika vada nundi kolukoni alochinchaga dt.23.10.2010 roju madyhanam andaja 2.00 gantala samayamulo nenu battalu neellalo addalidamani bore starter veyutaku prayathnionchuchunna samayamolu ma gramasthudu vaddi krishan yokka snehethudu gannoji shiva na kadlalo karam kottaga, nenu kandla nudumukuntundaga vadde krishan na chei pattukoni seethapalam chetla prakanna gala kaluvalo na noru moosi krinda padaveyaga athani snehethud kanda raju na chethulu pattukonaga pai mugguru okari tharuvatha okaru napai manabhangam chesinatluga guthuku vachinadi”
39.So, considering the Ex.D1 and D3 contradictions Pw.2 she changed her version at one stage to another stage by making contradictions Ex.D2 she eliminates A.1 from the alleged offence. But however she gave statement in court that A.1 committed offence which is quite contrary. So, her credibility on facts of incident is not consistence. Further after making Ex.D2 contradictions she gave confirmed allegation against A2 to A4 that they committed the rape against her. But during her evidence she admitted in positive sense that A2 never saw at the time of incident and never comitted rape against her . Further she says she did not noticed A3, A4 at the time of incident and they are no away concerned with the offence. So, she given a clinchit against A2 to A4.
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40.From the above said evidence Pw.2 changed her version time to time at one stage she says A.1 assaulted against her at another stage she says
before the police that A2 to A4 assaulted against her while coming to the
evidence she aliminatesA2 to A4 from the offence. In this set of circumstances her evidence needs corroboration on the material aspects but prosecution though placed Pw.3 to 5's evidence, they did not support in respect of material incident is concerned their evidence only they assisted
Pw.1 to bring Pw.2 to scene of offence to nearby hurts except that there is no material to support material allegation that A1 to A4 committed rape on
Pw.2.
41.Further even in the evidence of Pw.2 she says that she regained conscious at Shadnagar hospital. So, if this fact is taken into consideration the evidence of Pw.1 that she regained conscious on sprinkled in water and informed that A.1 and another came and committed rape against her was not informed by Pw.2. Therefore these factual aspects not corroborated between
Pw.1 and 2. so, their entire evidence is full of with omissions material contradictions leads to suspicion over their version to believe. So, discarding the evidence of Pw1 and 2 there is no other oral evidence on record.
42.Now coming point to the point of medical evidence of Pw.10 according to her evidence she examined PW.2 and collected vaginal swabs sent for analysis received FSL report issued final opinion as there is no evidence of any recent intercourse issued Ex.P11 final opinion and Ex.P12
FSL report.
43.According to the prosecution case A1 to A4 committed intercourse forcibly against Pw.2. Further as per the version of Pw.1, and 2 that she was 22 assaulted by the accused in water channel. According to Pw.6 the cloths of
Pw.2 was seized under cover of panchanama which is marked as Ex.B5 but those cloths does not contain any seminal stains and Pw.2 did not receive any injuries on vaginal part and Pw.10's evidence shows no signs of recent intercourse, all these facts cumulatively to draw an inference that the versions spoken by Pw.2 is not true. As such her oral evidence medical evidence of Pw.10 not corroborates and not established the alleged forcible sexual act did by A1 to A4 against Pw.2. Further Pw.12, Pw.14, Pw.15,
Pw.16 and Pw.17 are the investigation officers who conducted investigation at stage by stage, Pw.14's evidence shows that during his investigation in crime No.437/11 under Sec.302, 376 IPC of Shadnagar P.S. Town. A2 to A4 was apprehended and they confessed about committing rape against Pw.2 at her fields. But here prosecution placed the evidence of Pw.8. Pw.8 stated in his evidence that A2 to A4 confessed before him that they went to the land of Pw.1 and sprinkled chilly powder in the hands of Pw.2 and committed rape on her one after another and ran from that place after commission of offence, in order to concealed their identity. Here this factual aspects is not supported by PW.2. PW.2 never say that A2 to A4 committed forcibly sexual act against her will. As such these two witness evidence is not corroborated, as such the evidence of Pw.8 and Pw.14 is not believable.
When substantial evidence of Pw.2 discloses that A.2 to A4 never did any offence. So, the evidence of Pw.8 and 14 is not accepted.
44.Remaining evidence of Pw.17 is alone on record. According to him that Pw.2 given a fresh statement on 10.1.2012 one year after the incident alleging that she mistakenly given that A.1 committed rape against her that fact is not correct actually she recollected her memory and remembered that 23
A2 to A4 committed offence against her. But this fact also not supported by
Pw.2 and the same was elicited as contradiction as D3 and the said contradiction goes to the root of the case demolished the prosecution case.
Pw.7 has not given explanation why he filed the case against A.1 when Pw.2 categorical terms admits that A2 to A4 committed rape against her. So, considering the evidence of Pw.12, 14 to 17 the investigation done by the police officers is very much perversed not based on true facts, it appears some actual facts were not brought on record the investigation officers might have been filed a false case against the accused persons. More particularly
Pw.16 and 17 has not taken care of states interest they had not investigated the case basing on the material and not collected the true facts to protect the interest of Pw.2 perversely investigated and filed charge sheet against A1 to
A4 implicating them. Therefore the said two officers are liable for departmental action. The copy of the judgment will be sent to concerned S.P office and he has to take care of departmental action against PW.16 and 17 for their laches in the investigation.
45.Considering the evidence of Pw1 and 2, Pw.6, 8,.9, 10, 12 to 17 the prosecution failed to establish that A2 to A4 committed rape against Pw.2.
Hence, I answered this point against the prosecution.
46. Point No.3:
Here prosecution examined Pw.10 medical officer who examined
Pw.2. Before going to the merits and demerits of the medical evidence we have to bear in mind story of the prosecution and evidence of Pw.2.
According to the story of the prosecution A1 to A4 came to the scene A.3 sprinkled chilly powder on the face of Pw.2, A1, A2, A4 caught Pw.2 closed her mouth and eyes fell her down and committed rape one after another by the four persons. So, in this set of circumstances we have to analyzed the 24 medical evidence. Here Pw.2 stated that A.1 and another person sexually assaulted against her by sprinkled chilly powder on her eyes. Here Pw.10 admitted that there is no particulars of chilly powder either in the eyes or on
MO.1 and 2. further on examination of FSL report she gave a final opinion that there is no signs of recent intercourse. Here Pw.2 was brought to the hospital within five hours of the incident there is no evidence that she washed her private parts. Therefore the agreed versions projected by Pw.2 about the manner of incident was not found place on her body in medical evidence. Therefore the prosecution failed to established that A.1 or A2 to
A4 committed rape against Pw.2. So, in view of these factual aspects on any event on consideration of evidence of Pw.1, 2 more particularly Pw.10 that alleged fact of A1 to A4 committed rape on Pw.2 is not established. Hence I answered this point against prosecution.
47.In view of the answered to the points 1 to3 and on evidence of Pw.1 to 17 and Ex.P1 to P17 the prosecution failed to established their case beyound all reasonable doubt. Hence A1 to 4 are entitled for acquittal.
48.In the result, accused 1 to 4 are not found guilty for the offence under
Sec.376(2)(g) IPC and they are acquitted u/s 235(1) Cr.P.C and their bail bonds shall stand cancelled. The M.O. 1 and 2 shall be destroyed after appeal time is over.
The superintendent of the District jail is hereby directed to release the
A3 and A4 forthwith if they are not required in any other case.
The superintendent, Central prison Cherlapally, Hyderabad is directed to release the A2 if he is not required in any other case.
Dictated to the Steno-typist, on computer system and corrected and
pronounced by me in open court, on this the 19th day of March, 2013.
II.Addl. District & Sessions Judge. (FTC) Mahabubnagar.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the Prosecution:For Defence:
P.W.1 Y.Yadaiah --N o n e -- P.W.2 D.Laxmamma, P.W.3 K.Bhupal, P.W.4 D.Ramaswamy, P.w.5 D.Nirmalamma, P.W.6 Wadde Yadaiah, P.W.7 D.Laxmaiah, P.W.8 B.Venkateshwar Rao, P.W.9 D.Bucha Reddy, P.W.10 Dr.K.Chandrakala, P.W.11 Smt.K.Swapna Rani, J.M.F.C, P.W.12 G.Sai Chandra Prasad, S.I., P.W.13 Dr.Vijay Kumar,CAS., P.W.14 B.Naveen Reddy, Inspector of police, P.W.15 P.Srinivas Reddy,C.I., P.W.16 A.Ravinder Reddy, C.I., P.W.17 Shakir Hussain, C.I.,
EXHIBITS MARKED
For Prosecution: Ex.P.1 Complaint by Pw.1, Ex.P.2 161 Cr.P.C. Statement by PW.3, Ex.P.3 161 Cr.P.C. Statement by PW.4, Ex.P4 161 Cr.P.C. Statement by PW.5, Ex.P5 Seizure panchanama by PW.6, Ex.P6 Signature on crime details form by PW.7(scene of offence), Ex.P7 C.C of confession and seizure panchanama by PW.8(A1 to A4), Ex.P8 Certificate of Potency of A2 by PW.9, Ex.P.9 Certificate of Potency of A3 by PW.9, Ex.P10 Certificate of Potency of A4 by PW.9, Ex.P11 Opinion (Examination of victim) by PW.10, Ex.P12 F.S.L report by PW.10, Ex.P13 164 statement by PW.11, Ex.P14 F.I.R by PW.12, Ex.P15 Potency certificate by PW.13, Ex.P16 requisition by PW.15, Ex.P17 F.S.L by PW.15.
For the Defence:
Ex.D1 A portion of 161 Cr.P.C (II) copy of statement of PW.2, Ex.D2 A portion of 161 Cr.P.C (II) statement of PW.2, Ex.D3 A portion of 161 Cr.P.C (II) statement of PW.2, Ex.D4 A portion of 161 Cr.P.C (II) statement of PW.2, Material Objects marked: M.O.1 red colour petty coat M.O.2 saree
II.Addl. District & Sessions Judge. (FTC) Mahabubnagar.