Allowed

Khaja Subba Rao, v. The State of A.P.

Telangana HC20 Dec 2012CRLA/292/2006

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant of offences under IPC Sections 376 and 448. The single judge found the prosecutrix's and the son's evidence highly unbelievable and improbable when viewed alongside the doctor's examination report, rendering the conviction unsafe.

What did the court decide?

The appellant is acquitted of charge 448 IPC and Section 376 IPC and fine is refunded.

Khaja Subba Rao, Vs The State of A.P. — Criminal Trial and Appeal | Telangana HC (2012)

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THE HONOURABLE SRI JUSTICE RAJA ELANGO

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CRIMINAL APPEAL No.292 OF 2006

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Date:20-12-2012

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BETWEEN: Khaja Subbarao

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…..Appellant AND State of A.P., Rep. by Public Prosecutor, High Court of a.P., Hyderabad.

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…..Respondent

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THIS COURT MADE THE FOLLOWING ORDER:

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THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.292 OF 2006

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JUDGMENT:

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This appeal is filed by the sole accused challenging the judgment

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of the Special Judge for trial of cases under SC & ST (PA) Act, 1989 (I Additional Sessions Judge) at Khammam in S.C.No.100 of 2000 dated 24.02.2006, whereby the learned Sessions Judge convicted the appellant for the offences under Sections 448 and 376 IPC and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.200/- in default, to suffer simple imprisonment for 15 days for the offence under Section 448 IPC and further sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 376 IPC. Both the sentences were ordered to run concurrently.

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The case of the prosecution, in brief, is that the accused and the victim-P.W.1 both are residents of Kamepally village. P.W.1 belongs to Lambada Caste i.e. member of scheduled tribe. On 17.9.1997 at about 10.00 p.m., while P.W.1 was sleeping in her house along with her sonP.W.2, the accused trespassed into her house, gagged her mouth with cloth and forcibly raped her. When her son woke up, the accused ran away by scaling a wall. On a report given by P.W.1, the Sub-Inspector of Police-P.W.9 registered a case against the accused and after completion of investigation, laid the charge sheet against the accused.

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In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 10, marked Exs.P.1 to P.9. On behalf of defence, D.Ws.1 and 2 were examined and Ex.D.1 was marked.

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After analyzing the evidence brought on record, the trial Court convicted and sentenced the appellant-accused as aforementioned.

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Heard the learned counsel for the appellant and learned Public Prosecutor. Perused the material available on record.

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This being a case under Section 376 IPC, the evidence of

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prosecutrix gets importance. The appraisal of the evidence of P.W.1 and the evidence of doctor is sufficient to decide the issue. It is the evidence of prosecutrix-P.W.1 before the court that the accused trespassed into her house at 10.00 p.m., lifted her saree, put a cloth in her mouth and forcibly committed rape on her. At that time, her son-P.W.2 was also sleeping nearby her. After sometime, she could remove the cloth from her mouth and cried and on hearing her cries, her son-P.W.2 got up and then the accused threatened him and ran away. The evidence of doctor-P.W.7, on examination of P.W.1 deposed before the Court as under:

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“on examination, I found no injuries or signs of struggle over the body. No blood signs, no seminal signs and no foreign material found on the body. No difficulty in walking, no difficulty to pass urine and motion. No blood signs and no seminal signs and no foreign material found locally. No tenderness and redness of the vulva. Hymen was ruptured, but not the recent one. She was having a child. Hymen was not congested. No inflammatory signs found. No discharge was found through vagina. Forechetta and perineum was intact.”

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P.W.2, who was studying in first standard at the time of occurrence, deposed before the Court while studying ninth standard. The evidence of P.W.2 was shattered by the defence in view of the fact that the investigating officer has stated that what all stated by the said witness was not stated during the course of investigation. The evidence of P.W.1 also suffers with infirmities. In her evidence, she has not stated the date on which the occurrence took place and it is also evident from her crossexamination that she went to the police station in an auto on the same day night but she was advised to come in the next day morning. But, in the chief-examination, she deposed that she lodged the complaint only on the next day. Further nowhere it is stated by the said witness that prior to the said incident, the appellant herein had any occasion to behave with her with an intent to commit such sexual assault. Further she has not stated in her evidence how she was able to identify the accused that too in the night time. Further the accused was not arrested on the said date and it is his case that he was in Hyderabad at the relevant point of time. In the absence of any identification, the evidence of P.W.1 that the accused is

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the person who committed rape upon her is highly unbelievable and also highly improbable. Further the doctor’s evidence would go to show that on the very next day, P.W.1 was examined and he has stated before the court as extracted above. Thus coupled with the evidence of doctor, this Court is of the view that the prosecution case is highly improbable and unbelievable and therefore, it is unsafe to convict the accused on the evidence available on record that too for an offence under Section 376 IPC. Hence, the convictions and sentences imposed on the accused are liable to be set aside.

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In the result, the appeal is allowed and the impugned judgment is set aside. The convictions and sentences imposed on the accused by the trial court for the offences under Sections 376 and 448 IPC are hereby set aside and the appellant is acquitted of the said charges. The fine amount, if any, paid by the appellant, shall be refunded.

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Miscellaneous petitions, if any pending, shall stand closed.

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_________________ RAJA ELANGO,J 20^th December, 2012 Tsr

Khaja Subba Rao, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Khaja Subba Rao, v. The State of A.P.

Case brief

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What did the court decide?

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