Dismissed

Bogadameedi Gangaram v. The State of A.P. rep. by Public Prosecutor

Telangana HC27 Jul 2012CRLRC/2122/2004

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition filed by a convicted accused challenging his conviction and seven-year rigorous imprisonment for attempted rape under IPC Sections 376 and 511. The court held that the medical evidence corroborating injury and the oral evidence of the child victim and parents were sufficient and no interference was warranted.

What did the court decide?

The criminal revision case is dismissed, confirming the conviction and sentence imposed by the courts below.

Bogadameedi Gangaram Vs The State of A.P… — Child Sexual Offences (POCSO) | Telangana HC (2012)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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Criminal Revision Case No.2122 of 2004

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Date: 27.07.2012

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Bogadameedi Gangaram.

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…Petitioner

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and The State of Andhra Pradesh through Public Prosecutor. …Respondent

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This Court made the following:

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Criminal Revision Case No.2122 of 2004

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ORDER:

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1. This Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C to set aside Judgment dated 13.10.2004 passed in Criminal Appeal No.24 of 2004 on the file of II Additional Sessions Judge, Adilabad, confirming conviction and sentence imposed in S.C.No.197 of 2002 on the file of Assistant Sessions Judge at Nirmal.

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2. The petitioner is the accused, whereas the respondent is the complainant. For the sake of convenience, I refer the parties as arrayed in the sessions case.

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3. The accused was tried for offence punishable under Section 376 r/w 511 IPC and was found guilty and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- and in default of paying the fine amount, to suffer simple imprisonment for five months under that count, which was confirmed in the criminal appeal.

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4. The accused attacks the judgment on the ground that the findings of the courts below in respect of the offence punishable under Sec.376 r/w 511 IPC are totally erroneous and sufficient evidence which would inspire the confidence of the court to do so was not placed and oral and medical evidence do not agree with each other and actually delay caused in giving the corresponding report to the police is not explained.

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5. The facts pleaded which lead to the prosecution of the accused are as follows. The accused and the defacto complainant namely Kodisetti Adellu (P.W.1) are the residents of Mategaon village. Kodisetti Savithri (P.W.3) is P.W.1’s daughter. On 25.4.2002, P.W.1 and his wife (P.W.2) went to attend coolie work leaving their daughters, i.e., P.W.3 aged seven years and Rajitha aged 3 years in their house. At about 5.00 p.m, P.W.3 informed P.W.1 and P.W.2 that the accused took her into his house and made her to lie on a mat and removed her underwear and inserted his

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finger into her vegena. Later P.Ws.1 and 2 returned their house and having not found P.W.3 called her. On hearing the call the accused opened the doors of his house. Then P.W.3 returned to their house and informed P.Ws.1 and 2 about the occurrence. Then, P.W.1 & P.W.2 went to the house of the accused and questioned his conduct, but the accused ran away. On 26.04.2002, P.W.1 went to the rural police station at Bhainsa and presented a report, Ex.P1 about the incident which was registered by P.W.7, the Sub-Inspector of Police there, who also conducted the investigation of the case. He came to the conclusion on the basis of the investigation done that the accused committed the alleged offence.

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6. In fact at the out set and after observing necessary formalities, charge under Sec.376 r/w 511 IPC was framed, read over and explained to the accused and he pleaded not guilty and claimed to be tried.

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7. For the prosecution, P.Ws.1 to 7 were examined and Exs.P1 to P5 were marked.

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8. Here the evidence of P.W.3 is very important. According to her, there was no eye witness to the incident. The evidence of other witnesses is relevant for corroboration.

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9. P.W.3 deposed as follows. On the date of occurrence at about 5.00 p.m, while herself, P.W.4 and some other children were playing under a tree, the accused called her to his house. Thereby, she went into the house of the accused. Then, the accused closed the doors of the house. Then he made her to keep a bag which was in her possession on the ground and also made her to lie on it. She further deposed that the accused removed her underwear and inserted his finger into her private part and closed her mouth with his hand. She further deposed that as P.Ws.1 and 2 made a call for her from their house then the accused opened the doors of his house and left her and after reaching their home, she informed P.Ws.1 and 2 about the incident.

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10. P.W.4, a girl aged about 11 years corroborated her evidence with

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regards to playing at the tree. She did not speak especially that the accused called P.W.3 and then P.W.3 went to the house of the accused. However, she deposed that later while she was taking food in front of the wall of her house, P.W.2 called Savithri (P.W.3) and then she noticed P.W.3 coming out of the house of the accused while weeping and going to their house.

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11. On the other hand, P.Ws.1 and 2 deposed similarly to the effect that at about 5.00 p.m on that day, when they returned home, after attending coolie work, they did not find P.W.3 in their house and then the second of them raised cries and called P.W.3, following which, P.W.3 came out of the house of the accused while weeping and then she informed to them about the incident. Pertinently, the accused admitted when examined under Sec.313 Cr.P.C that his house was situated near the house of P.Ws.1 to 3.

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12. Learned defence counsel pointed out certain discrepancies in the oral evidence. P.W.1 deposed that Nagamani is his eldest daughter, which is not found in Ex.P1. P.Ws.1 and 2 deposed that they reported about the matter to the village elders which is also not found in Ex.P1. P.W.2 deposed that herself and P.W.1 returned home, whereas P.W.1 deposed that P.W.2 returned home ten minutes before. P.W.2 deposed that she found blood stains on the private parts of P.W.3, which she did not speak before the police. P.W.6, Medical Officer deposed that she noticed signs of injury on the libia mizora of P.W.3. But those discrepancies are very minor and natural. Minor discrepancies do appear in the evidence of truthful witnesses.

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13. P.W.6, Deputy Civil Surgeon, Government Head Quarters Hospital, Adilabad deposed that on the requisition of P.W.7, she examined P.W.3,who was aged seven years and who was mentally disturbed and who was crying and found that her secondary sexual characters were not developed. There were no stains present on her undergarments and both labia mizora and minora of her were found swallowed and tendered.

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Further, according to her, she found raw area of ¼ x ¼ present on the right side of hymanal orfice extending from 9 O’ clock to 12 O’ clock position. According to her, there were signs of injury on the lebia mizora. She issued Ex.P3 certificate.

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14. According to P.W.7, he registered the case and took up and conducted the investigation of the case. According to him, he visited the scene of offence and prepared rough sketch of it in the presence of P.W.5 and another.

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15. The evidence of P.W.1 to 4 is very natural. Nothing was elicited to discredit their evidence. What is important is that the defence failed to discredit the oral evidence and also the medical evidence. When no third person witnessed the incident, the question of examining him or her to give direct evidence on that point does not arise at all. The medical evidence is important because it discloses that the medical officer found symptoms of injury at the private parts of P.W.3. No suggestion was given to P.Ws.1 and 2 as to whether a false case was foisted on the ground of some enmity or for any other reason. There was no need for P.Ws.1 and 2 to give false report and also to give false evidence. They would not have gone to the extent of doing so as that would cause stigma to P.W.3. The delay said to be caused in giving the report to the police is significant if there was a possibility of making improvements over what actually happened which is not the case. There is absolutely no reason to disbelieve the evidence adduced and accordingly it is accepted.

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16. With regards to the charge under Sec.376 r/w 511 IPC what is required to be seen is that the accused attempted to commit rape against P.W.3, but could not succeed. It is proved mainly basing upon the evidence of P.W.3 that the accused inserted his finger into her vegina after seeing that she would lie on the ground and remove her clothes and also after he removed his clothes. Significantly, the evidence adduced discloses that meanwhile, the parents of P.W.3 called her and hence, the accused opened the doors and thereafter she left the house weeping and

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then she informed about the incident to her parents. This shows that he made all preparations to commit rape.

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17. According to the accused, the case does not attract Section 376 r/w 511 IPC placing reliance upon a decision reported in State of Punjab v.

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Major Singh, Responden t^[1] In that case, there was a question regarding a modesty of a girl aged seven years and the Supreme Court held that even a girl of seven years who was not developed a sense of shame and who got no awareness of sex would still possess the modesty which was an attribute of her sex. That case is quite distinguishable from this case to apply the same analogy here.

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18. It appears that the accused having got sexual lust even went to the extent of doing the said acts in the preparation of committing rape against her. It also seems but for the intervention of her parents, he would have succeeded in his attempts, which is quite deplorable. The accused in fact does not deserve any lenient punishment.

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19. The Courts below properly examined the matter and I do not find any grounds to interfere with the conviction and sentence imposed.

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In the result, the Criminal Revision Case is dismissed.

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______________________________ G.KRISHNA MOHAN REDDY, J

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Date: 27.7.2012 KVS

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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Criminal Revision Case No.2122 of 2004