# RADHAKRISHNA NAGESH v. STATE OF ANDHRA PRADESH

- **Citation:** [2012] 11 S.C.R. 1114
- **Court:** Supreme Court of India
- **Decided:** 2012-12-13
- **Case number:** Criminal Appeal No.1707 of 2009
- **Bench:** Swatanter .Kumar, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/radhakrishna-nagesh-v-state-of-andhra-pradesh-27974
- **Pages:** 41

## Headnote

Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
C - Plea of accused that serious contradictions between ocular
and medical evidence materially affected the case of the
prosecution - Held: Not tenable - In order to establish conflict
between the ocular evidence and the medical evidence, there
has to be specific and material contradictions - Absence of
D injuries on the body of the victim girl (PW2) not of any
advantage to the accused - Absence of injuries on her back
and neck can be safely explained by the fact that she was
lured into the offence rather than being taken by using
physical force on her - Preparation, attempt and actual act
E on the part of the accused clear from the fact that he had
purchased bangles which he had promised to her and
thereafter had taken her into the tennis court store room, the
key of which was with him - This is also corroborated from the
recovery evidence - Merely because, some fact was not
F recorded or stated by the doctor at a given point of time and
subsequently such fact was established by the expert report,
the FSL Report, would not by itself substantiate the plea of
contradiction or variation - No reason to disbelieve the
statement of PW2 that she knew the accused and that he
G incited her and lured her to buying bangles and then took her
to the storeroom where he committed rape on her - PW3 had
seen the accused taking PW2 inside the tennis court store
room and bolted the door from outside, and then went to report
the matter -
On way, he met PW1 (a police official), who
H
1114
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1115
PRADESH
accompanied him to the store room, brought both the
A
accused and PW2 to the police station, and got an FIR
registered on his own statement, the investigation of which was
conducted by PW11 -
No reason to disbelieve the
statements of PW1, PW2, PW3, PW5(mother of PW2) and
PW11, particularly when they stood lengthy cross-examination
B
without any material damage to the case of the prosecution.
Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
-
Plea of accused that there was no direct evidence
connecting him to the commission of the crime - Held: Not C
tenable - On facts, presence of the element of mens rea on
part of the accused cannot be denied - He had fully prepared
himself - He first lured the victim girl (PW2) not only by
inciting her, but even by actually purchasing bangles for her
- Thereafter, he took the girl to a room where he threatened
D
her of physical assault as a consequence of which the girl did
not raise protest - This is why no marks of physical injury
could be noticed on her body - Absence of injuries in the
context of the present case would not justify drawing of any
adverse inference against the prosecution, but on the contrary
E
would support the case of the prosecution - Direct link of the
accused with the commission of the crime well established by
the statement of the witnesses, the recoveries made, the
Medical Report and the FSL Report -Statement of PW2
credible, truthful and, thus, can safely be relied upon - Such
F
statement fully corroborated by the statements of PW1 and
PW3, who were independent witnesses and had no personal
interest or motive of falsely implicating the accused or
supporting the case of the prosecution.
Penal Code, 1860 - s.376 and Explanation to s.375 -
G
Rape - Penetration - Intact hymen - Inference - Held: The
mere fact that the hymen was intact and there was no actual
wound on her private parts not conclusive of the fact that she
was not subjected to rape - Penetration itself proves the
H
1116
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A offence of rape, but the contrary is not true i.e. even if there
is no penetration, it does not necessarily mean that there is
no r8pe - Penetration may not always result in tearing of the
hymen and the same will always depend upon the facts and
circumstances o

## Text

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A
B
[2012] 11 S.C.R. 1114
RADHAKRISHNA NAGESH
v.
STATE OF ANDHRA PRADESH
(Criminal Appeal No.1707 of 2009)
DECEMBER 13, 2012
[SWATANTER .KUMAR AND GYAN SUDHA MISRA, JJ.]
Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
C - Plea of accused that serious contradictions between ocular
and medical evidence materially affected the case of the
prosecution - Held: Not tenable - In order to establish conflict
between the ocular evidence and the medical evidence, there
has to be specific and material contradictions - Absence of
D injuries on the body of the victim girl (PW2) not of any
advantage to the accused - Absence of injuries on her back
and neck can be safely explained by the fact that she was
lured into the offence rather than being taken by using
physical force on her - Preparation, attempt and actual act
E on the part of the accused clear from the fact that he had
purchased bangles which he had promised to her and
thereafter had taken her into the tennis court store room, the
key of which was with him - This is also corroborated from the
recovery evidence - Merely because, some fact was not
F recorded or stated by the doctor at a given point of time and
subsequently such fact was established by the expert report,
the FSL Report, would not by itself substantiate the plea of
contradiction or variation - No reason to disbelieve the
statement of PW2 that she knew the accused and that he
G incited her and lured her to buying bangles and then took her
to the storeroom where he committed rape on her - PW3 had
seen the accused taking PW2 inside the tennis court store
room and bolted the door from outside, and then went to report
the matter -
On way, he met PW1 (a police official), who
H
1114
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1115
PRADESH
accompanied him to the store room, brought both the
A
accused and PW2 to the police station, and got an FIR
registered on his own statement, the investigation of which was
conducted by PW11 -
No reason to disbelieve the
statements of PW1, PW2, PW3, PW5(mother of PW2) and
PW11, particularly when they stood lengthy cross-examination
B
without any material damage to the case of the prosecution.
Penal Code, 1860 - ss.376(2)(f) and 363 - Rape - Of
minor girl - Conviction of accused-appellant - Challenge to
-
Plea of accused that there was no direct evidence
connecting him to the commission of the crime - Held: Not C
tenable - On facts, presence of the element of mens rea on
part of the accused cannot be denied - He had fully prepared
himself - He first lured the victim girl (PW2) not only by
inciting her, but even by actually purchasing bangles for her
- Thereafter, he took the girl to a room where he threatened
D
her of physical assault as a consequence of which the girl did
not raise protest - This is why no marks of physical injury
could be noticed on her body - Absence of injuries in the
context of the present case would not justify drawing of any
adverse inference against the prosecution, but on the contrary
E
would support the case of the prosecution - Direct link of the
accused with the commission of the crime well established by
the statement of the witnesses, the recoveries made, the
Medical Report and the FSL Report -Statement of PW2
credible, truthful and, thus, can safely be relied upon - Such
F
statement fully corroborated by the statements of PW1 and
PW3, who were independent witnesses and had no personal
interest or motive of falsely implicating the accused or
supporting the case of the prosecution.
Penal Code, 1860 - s.376 and Explanation to s.375 -
G
Rape - Penetration - Intact hymen - Inference - Held: The
mere fact that the hymen was intact and there was no actual
wound on her private parts not conclusive of the fact that she
was not subjected to rape - Penetration itself proves the
H
1116
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A offence of rape, but the contrary is not true i.e. even if there
is no penetration, it does not necessarily mean that there is
no r8pe - Penetration may not always result in tearing of the
hymen and the same will always depend upon the facts and
circumstances of a given case - In the case at hand, it was
B clear that there was limited penetration due to which probably
the hymen of the victim girl (PW2) was not ruptured.
Appeal - Appeal against acquittal - Interference with -
Principles - Held: The appellate Court has to be more
C cautious while dealing with the judgment of acquittal -
However, it does not mean that the appellate Court cannot
disturb the finding of acquittal - All that is required is that there
should be a compelling rationale and also clear and cogent
evidence, which was ignored by the Trial Court to upset the
finding of acquittal - On facts, the course of appreciation of
D evidence and application of law adopted by the Trial Court
was not proper - Trial Court failed to appreciate the evidence
on record cumulatively and in its correct perspective by
ignoring the material piece of evidence and by improper
appreciation of evidence - It recorded findings which are on
E the face of it unsustainable - This error was rightly corrected
by the High Court - No reason to interfere with the judgment
of conviction recorded by the High Court.
The prosecution case was that the accusedF appellant, a ball picker in the University tennis court,
enticed PW2, a maid working in the staff quarters of the
University, on the pretext of purchasing gold colour
plastic bangles for her and when she agreed to
accompany him, he bought her the bangles and then
G took her inside the store room near the tennis court and
committed rape on her against her will. The appellant was
charged with having committed offences under Sections
363 and 376 (2)(f) IPC. The trial court acquitted the
appellant, but the High Court reversed the order of
H
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1117
PRADESH
acquittal and convicted him under Sections 363 and
A
376(2)(f) IPC, and therefore the instant appeal.
The appellant challenged his conviction inter a/ia on
the following grounds: 1) that the High Court exceeded
its jurfsdiction by interfering with the judgment of 8
acquittal of the Trial Court which was very well-reasoned,
based upon proper appreciation of evidence and in
consonance with the settled principles of law; 2) that
there were serious contradictions between the ocular and
the medical evidence which materially affected the case
C
of the prosecution; 3) that there was no sexual
intercourse between the appellant and the victim and the
prosecution had not been able to establish any link
between the commission of the alleged offence and the
appellant and 4) that the case of the prosecution was
based upon the sole testimony of the victim.
D
Dismissing the appeal, the Court
HELD: 1.1. There is no merit in the contention raised
on behalf of the appellant with regard to discrepancy in
E
the medical and the ocular evidence. [Para 20] [1138-D]
1.2. PW2 was 11 years old at the time of occurrence,
while she was 12 years old, when her statement was
recorded in the Court. After the Court was convinced of
the fact that she is competent to make the statement, the
F
same was recorded. In her statement, she stated that she
was working as a maid in the staff quarters of the
University, known as the red building. According to her,
she knew the accused-appellant and he was in the habit
of escorting children to the school. The accused had
G
taken her to the tennis court, promised her that he would
buy bangles for her and after purchasing the bangle$.the
accused took her to a room in the tennis court. The
accused closed the door of the room, lifted her /anga,
removed his own pant and underwear, put her on the
H
1118
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A floor of the room and passed liquid like urine into her
private parts. In the meanwhile, she stated that she felt
the starch in her private parts. At that time, one rickshaw
puller, PW3 came and knocked at the door. The accused
abused him in a filthy language and later the police came
B to the room. She further narrated that it was PW1 (SubInspector of Police, Traffic P.S.) who had taken her and
the accused to the police station, where she was
examined by the Police. The /anga of PW2 was seized by
the police and was sent to hospital for examination. She
c stated that her mother (PW5) was also working as a maid
in the red building itself. Despite a lengthy crossexamination, she stood to her statement and did not cast
any doubt on the statement made by her in her
examination-in-chief. [Paras 10, 11] [1134-B-G]
D
1.3. When PW2 was taken to the hospital, she was
examined ·by Dr. PWB, a Professor of Forensic Medicine
in a Medical College and also by PW9, an Assistant
Professor in a Maternity Hospital. According to PW9, the
girl had washed herself after the incident. PW9 also stated
E that considering the age of the victim and on seeing that
the parts were tender to touch, she could say that there
was an attempt to rape the victim girl. Since, according
to PW9, the girl had washed herself after the incident, the
doctor had to reserve her final opinion till the Chemical
F Analyst's Report (FSL Report). The FSL Report was Ext.
P.6, while the Wound Certificate of victim girl was Ext.
P.5. According to the FSL Report, semen was detected
on Items 1, 2, 4, 5 and 6 and the same was of human
origin. Saliva of human origin was detected on Item No.
G 3. The Chemical Analyst also detected semen and
spermatozoa on Item Nos. 1, 2, 4, 5 and 6 and on Item No.
3 saliva was found. Item No. 1 was torn brown colour
polyester langa with dirty stains which the girl was
wearing. Item No. 2 was a torn grey colour mill made cut
H drawer with dirty stains which the accused was wearing.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1119
PRADESH
Item No. 3 and Item No. 4 were the turbid liquid which was
A
present on the cloth and in a bottle respectively. Item No.
5 was a cotton swab and Item No. 6 were two glass slides
which were sent for opinion and via FSL Report, Ext. P.6,
the opinion was received. From the above evidence, it is
not feasible to state with certainty that there is any conflict B
between the medical and the ocular evidence. No fault
can be found in the statement of Dr. PW9, who waited to
give her final opinion till she received the FSL Report.
[Paras 11, 12, 13 and 14] [1134-G; 1135-A-H; 1136-A]
1.4. According to the medical evidence and c
statements of PWS and PW9, the victim was 11 years old
at the time of occurrence and her private parts were
tender to touch. The doctor, PW9 had reserved her final
opinion awaiting the FSL Report. According to the FSL
0
Report, the langa of the girl as well as the drawer of the
accused were containing semen of human origin. The
slides which contained the swab taken from the vagina
of the girl also showed presence of semen of human
origin. Noticeably these reports, in relation to Items 1, 2,
4, 5 and 6 came despite the fact that the girl had washed
E
herself after the occurrence. [Para 24] [1139-D-E]
.
1.5. It is a settled principle of law that a conflict or
contradiction between the ocular and the medical
evidence has to be direct and material and only then the
F
same can be pleaded. Even where it is so, the Court has
to examine as to which of the two is more reliable,
corroborated by other prosecution evidence and gives
the most balanced happening of events as per the case
of the prosecution. [Para 15] [1136-8-C]
G
1.6. The absence of injuries on the back and neck of
the victim girl can safely be explained by the fact that she
was lured into the offence rather than being taken by
using physical force on her. The preparation, attempt and
H
1120
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A actual act on the part of the accused is further clear from
the fact that he had purchased bangles which he had
promised to her and thereafter had taken her into the
tennis court store room, the key of which was with him.
This is also corroborated from the fact that even vide Ext.
B P.3, the langa as well as the bangles, coated with golden
colour were recovered by the Investigating Officer, PW11.
[Para 16] [1136-D-F]
1.7. An eleven year old girl and that too from a small
place and serving as a maid could hardly be aware of the
C technicalities of law in relation to an offence of sexual
assault. She felt very shy while making her statement in
the Court, which fact was duly noticed by the Court. [Para
17] [1136-F-G]
D
1.8. In order to establish a conflict between the ocular
evidence and the medical evidence, there has to be
specific and material contradictions. Merely because,
some fact was not recorded or stated by the doctor at a
given point of time and subsequently such fact was
E established by the expert report, the FSL Report, would
not by itself substantiate the plea of contradiction or
variation. Absence of injuries on the body of the
prosecutrix would not be of any advantage to the
accused. [Para 18] [1136-G-H; 1137-A-B]
F
1.9. The possibility of some variations in the exhibits,
medical and ocular evidence cannot be ruled out. But it is
not that every minor variation or inconsistency would tilt
the balance of justice in favour the accused. Where the eye
witness account is found credible and trustworthy, medical
G opinion pointing to alternative possibilities may not be
accepted as conclusive. [Para 19] [1137-C-D; 1138-A]
1.10. There is no reason for the Court to disbelieve
the statement of PW2 that she knew the accused and that
H the accused incited her and lured her to buying bangles
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1121
PRADESH
and then took her to the storeroom where he committed
A
rape on her even threatened her of physical assault.
PW3, the rickshaw puller who was standing at the gate
of the University, had seen the accused taking the young
girl towards the tennis court store room. Suspecting that
he would do something wrong with the girl, he went to
B
the room and knocked the door. The door was not
opened by the accused, however, he persisted with the
knocking. Thereafter the accused opened the door and
abused him, but PW3 maintained his presence of mind
and bolted the door from outside, leaving the accused c
and the prosecutrix inside the room and went to report
the matter. On his way, he met PW1, who accompanied
· him to the store room, brought both the accused and the
.: .victim to the police station, got an FIR registered on his
own statement, the investigation of which was conducted
0
by PW11, the Inspector of Police. [Para 22] [1138-F-H;
1139-A-B]
1.11. There is no reason as to why this Court should
disbelieve the statements of PW1, PW2, PW3, PWS and
PW11, particularly when they stood the lengthy crossE
examination without any material damage to the case of
the· prosecution. [Para 23] [1139-B-C]
Dayal Singh and Others v. State of Uttaranchal [(2012) 7
SCALE: 165] - relied on.
·
F
• ..
.
2.1. The mere fact that the hymen was intact and there
was no actual. wound oil her private parts is not
conclusive.of the fact that she was not subjected to rape.
According to PW9, there was a definite indication of
attempt to rape the. girl: AISo, la~r semen of h~man origin
G
was traceable in the private parts of the girl, ·as indicated
by the FSL Report .. This woi.ild sufficiently indicate. that
she had b~en ~ubjected to ra.pe: Penetration .i~elf proves
the offence of riJpe, but the contrary ·is !lOt true _t.e. even
if there is no penetration, it does not necessarily'.mean
H
1122
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A that there is no rape. The Explanation to Section 375 IPC
has been worded by the legislature so as to presume that
if there was penetration, it would be sufficient to
constitute sexual intercoursr necesr ~ry for the offence
of rape. Penetration may not always re" . in .earing of
B the hymen and the same will always de.,end upon the
facts and circumstances of a given case. The Court must
examine the evidence of the prosecution in its entirety
and then see its cumulative effect to determine whether
the offence of rape has been committed or it is a case of
c criminal sexual assault or criminal assault outraging the
modesty of a girl. [Para 25] [1139-F-H; 1140-A-B]
2.2. It can safely be concluded in the case at hand
that there was limited penetration due to which probably
the hymen of the victim girl was not ruptured. [Para 28]
D [1143-F]
Guddu @ Santosh v. State of Madhya Pradesh (2006)
Supp. 1 SCR 414; Tarkeshwawr Sahu v. State of Bihar (now
Jharkhand) (2006) 8 sec 560: 2006 (7) Suppl. SCR 10 -
E relied on.
3.1. The Court should adhere to a comprehensive
approach, in order to examine the case of the
prosecution. But as regards the facts and circumstances
F of the present case, the presence of the element of mens
rea on part of the accused cannot be denied. He had fully
prepared himself. He first lured the girl not only by inciting
her, but even by actually purchasing bangles for her.
Thereafter, he took the girl to a room where he threatened
her of physical assault as a consequence of which the
G girl did not raise protest. This is why no marks of physical
injury could be noticed on her body. Absence of injuries
in the context of the present case would not justify
drawing of any adverse inference against the
prosecution, but on the contrary would support the case
H of the prosecution. [Para 28] [1143-F-H; 1144-A]
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1123
PRADESH
3.2. As per the facts and circumstances of the
A
present case, there is a direct link of the accused with the
commission of the crime. Such conclusion can well be
established by the statement of the witnesses, the
recoveries made, the Medical Report and the FSL Report.
It does not leave any doubt that the accused has
B
committed the offence with which he was charged. [Para
31] [1146-B-C]
3.3. There is nothing on record to show that the
statement of PW2 is either unreliable or untrustworthy.
On the contrary, in light of the given facts, the statement C
of PW2 is credible, truthful and, thus, can safely be relied
upon. Statement of PW2 is fully corroborated by the
statements of PW1 and PW3. They are independent
witnesses and have no personal interest or motive of
falsely implicating the accused or supporting the case of D
the prosecution. PW2 is a poor young girl who works as
a maid servant. PW3 coming to her rescue and PW1
reaching the spot without any delay, saved the girl from
further assault and serious consequences. The. High
Court has not based the conviction of the accused solely
E
on the statement of PW2. Even if it were so, still the
judgment of the High Court will not call for any
interference because the statement of PW2 was reliable,
trustworthy and by itself sufficient to convict the accused,
by virtue of it being the statement of the victim herself.
F
[Para 32, 33] [1146-D-G]
O.M. Baby (Dead) by L.Rs. v. State of Kera/a JT 2012
(6) SC 117 and State of Himachal Pradesh v. Asha Ram AIR
2006 SC 381: 2005 (5) Suppl. SCR 280 - relied on.
G
4.1. It is true that the appellate Court has to be more
cautious while dealing with the judgment of acquittal.
Under the Indian crimi1'1al jurisprudence, the accused has
two fundamental protections available to him in a criminal
trial or investigation. Firstly, he is presumed to be
H
1124
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A innocent till proved guilty and secondly that he is entitled
to a fair trial and investigation. Both these facets attain
even greater significance where the accused has a
judgment of acquittal in his favour. A judgment of
acquittal enhances the presumption of innocence of the
B accused and in some cases, it may even indicate a false
implication. But then, this has to be established on
record of the Court. However when one mentions about
the Court being cautious, it does not mean that the
appellate Court cannot disturb the finding of acquittal. All
c that is required is that there should be a compelling
rationale and also clear and cogent evidence, which has
been ignored by the Trial Court to upset the finding of
acquittal. [Paras 34, 35] [1147-A-D]
4.2. In the facts of the present case, the High Court
D has recorded reasons while interfering with the judgment
of acquittal by the Trial Court. The Trial Court attempted
to create a serious doubt in the case of the prosecution
on the basis of the statement of PW3, that he does not
know what PW2 narrated to PW1, when he made
E inquiries. This was not a proper way to appreciate the
evidence on record. The statement of a witness must be
read in its entirety. Reading a line out of context is not
an accepted canon of appreciation of evidence. Another
aspect of the statement of PW3 which the Trial Court had
F a doubt with, was, as to how PW3 had noticed the
accused taking away the minor girl along with him to the
tennis store room and how he suspected some foul play.
PW3 admittedly was a rickshaw puller and was standing
at the gate of the University. The tennis store room was
G quite near to the gate. PW3, quite obviously knew the
accused as well as PW2. The conduct of PW3 in the given
circumstances of the case was precisely as it would have
been of a person of normal behaviour and was not at all
extra-ordinary in nature, particularly in the late hours of
H evening. Still, another fact tha.t was taken into
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1125
PRADESH
consideration by the Trial Court while acquitting the
A
accused was that Ext. P.5 neither showed any injuries on
the body nor reflected that rape was attempted on the
victim. In the considered view of this Court, the course
of appreciation of evidence and application of law
adopted by the Trial Court was not proper. It was
B
expected of the Trial Court to examine the cumulative
effect of the complete evidence on record and case of the
prosecution in its entirety. [Paras 36 to 40] [1152-F-H;
1153-A·E]
4.3. Equally without merit is the contention that Ext.
C
P.5 which was authored by PW9 upon examination of the
victim neither recorded any injuries on her person nor the
fact that she was raped. It is for the reason that PW9 had
not recorded any final opinion and kept the matter
pending, awaiting the FSL Report. Furthermore, in Ext.
D
P.5, she had noticed that her parts were tender to touch.
The vaginal swabs and vaginal wash were taken and
slides were preserved. She was also sent to the hospital
for further examination. Thus, Ext. P.5 cannot be looked
into in isolation and must be examined in light of other
E
ocular and documentary evidence. In the peculiar facts
and circumstances of the case, it was not even expected
of PW1 or the Investigating officer PW11 to examine the
victim particularly in relation to her private parts. Absence
of such recording does not cause any infirmity to the
F
case of the prosecution much less a reason for acquitting
the accused. [Para 41] [1153-E-H; 1154-A]
4.4. The trial Court has failed to appreciate the
evidence on record cumulatively and in its correct G
perspective by ignoring the material piece of evidence
and improper appreciation of evidence. It has recorded
findings which are on the face of it unsustainable. This
error was rightly corrected by the High Court, and there
is no reason to interfere with the judgment of conviction
H
1126
SUPREME COURT REPORTS
[2012] 11 S.C.R.
A recorded by the High Court. [Para 42] [1154-A-C]
B
c
Ravi Kapur v. State of Rajasthan JT 2012(7) SC 480 -
relied on.
Case Law Reference:
(2012) 7 SCALE 165
relied on
Para 18
(2006) Supp. 1 SCR 414 relied on
Para 26
2006 (7) Suppl. SCR 10 relied on
Para 27
JT 2012 (6) SC 117
relied on
Para 29
2005 (5) Suppl. SCR 280 relied on
Para 30
JT 2012(7) SC 480
relied on
Para 35
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1707 of 2009.
From the Judgment & Order dated 23.1.2009 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in
E Criminal Appeal No. 1007 of 1999.
Ch. Leela Sarveswar, V. Sridhar Re,ddy and V.N.
Raghupathy for the Appellant.
D. Mahesh Babu, Suchitra, Amit, Balashivdu and D.
F Bharathi Reddy for the Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment dated 23rd January, 2009
G passed by the Division Bench of the High Court of Judicature
at Hyderabad, Andhra Pradesh whereby the order of acquittal
dated 11th February, 1999 passed by the Trial Court was
reversed. The appellant, while impugning the judgment under
appeal, raised the following contentions: -
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RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1127
PRADESH [SWATANTER KUMAR, J.]
1.
The High Court could not have interfered with the
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judgment of acquittal of the Trial Court which was
very well-reasoned, based upon proper
appreciation of evidence and was in consonance
with the settled principles of law. The High Court,
thus, has exceeded its jurisdiction by interfering with
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the judgment of acquittal of the Court of Sessions.
2.
There are serious contradictions between the
ocular and the medical evidence which materially
affect the case of the prosecution. Therefore, the
accused is entitled to a reversal of the judgment of C
the High Court.
3.
There was no sexual intercourse between the
appellant and the victim. The prosecution has not
been able to establish any link between the o
commission of the alleged offence and the
appellant.
4.
The case of the prosecution is based upon the sole
testimony of the victim. All these circumstances,
examined cumulatively, entitle the accused for an
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order of acquittal.
5.
Lastly, the punishment awarded to the accused is
too harsh.
2. These contentions have been raised with reference to
the case brought on record by the prosecution. The factual
matrix of the case as per the prosecution is:
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3. The accused/appellant was working as a ball picker in
S.V. University tennis court, Tirupati, and in that capacity he was
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having the custody of the key to the storeroom situated on the
south-east of the tennis court. The tennis net and other articles
were stored in this place. On 7th September, 1997 at about
7.00 p.m., the accused saw a girl named A. Haritha, who was
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A standing alone outside the red building. It may be noticed, that
the mother of the victim girl, namely Sampuramma, PWS, was
working as a maid-servant in the red building attached to the
University.
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4. A. Haritha, the victim belonged to the Scheduled Caste
category and was a!:>out 11 years of age at the time of the
incident. The accused asked her to come along with him. At
first she refused but the accused enticed her on the pretext of
purchasing gold colour plastic bangles. When she agreed to
accompany him, he bought her the bangles and then took her
C to the store room near the tennis court, the key to which he was
possessing. He opened the lock and took the victim inside the
room and committed rape on her against her will. In fact, he
even threatened to assault her. One Narayanaswamy, PW3, a
rickshaw puller, who was waiting by the side of Gate No. 3 of
D the S.V. University noticed the accused taking the victim into
the store room and thus, became suspicious. He went to the
store room and tapped the door several times. However, the
accused did not open the door at first, but upon further
insistence of PW3, he did so. PW3 saw the victim girl weeping.
E The accused slammed the door. Suspecting that the accused
might have done some wrong to the minor girl, Narayanswami,
PW3 bolted the door from outside and ran to inform the
authorities and/or the police. On his way he met Sub-Inspector
of Police, Traffic P.S., Tirupati, Sh. S.M. Ramesh, PW1, who
F was standing near the NCC Office traffic point and informed
him of the incident. Immediately, PW1 along with another Traffic
R.S.I, R. Sivanandakishore, PW4, accompanied by PW3 went
to the said storeroom, opened the door from outside and found
the victim girl A. Haritha. She complained of pain in her vaginal
G region. PW1 took the victim girl as well as the accused to the
SVU Campus Police Station and made a complaint, Ex. P .1,
based upon which FIR, Ex. P.7 was registered under Sections
363 and 376 (2)(f) of the Indian Penal Code 1860 (for short
'IPC') and Section 3(2)(v) of the Schedule Castes and the
H Schedule Tribes (Prevention of Atrocities) A,ct, 1989.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1129
PRADESH [SWATANTER KUMAR, J.]
5. Upon this report, Sub-Inspector of Police, B.
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Katamaraju, PW10 undertook the investigation. The accused
was sent to the SV RR GG Hospital, Tirupati for medical
examination. The victim girl was sent to the Government
Maternity Hospital, Tirupati, for the same purpose and also for
the assessment of her age. Certain articles, including the cut
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drawer of accused containing seminal stains, skirt of the victim
girl etc. were seized and were sent to the laboratory. The
Assistant Director, RFSL Anantpur, after analysing the material
objects, detected semen on the clothes and on the vaginal
swabs of the victim, collected and preserved by the Medical c ,
Officer, and also on the underwear of the accused. The
Investigating Officer recorded the statement of various
witnesses and completed the investigation. Upon completion
of the investigation, the Inspector of Police, PW11 presented
a report under Section 173(2) of the Code of Criminal D
Procedure 1973 (for short 'the CrPC) for offences under
Sections 363 and 376 (2)(f) of IPC. As the alleged offences
were triable exclusively by the Court of Sessions, the accused
was committed to the Court of Sessions, where he faced the
trial. The prosecution examined 12 witnesses being PW1 to
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PW12 and exhibited documents P1 to P9 and material objects
(M.Os.) 1 to 3 in its effort to bring home the guilt of the accused.
As already noticed the Trial Court vide its judgment dated 11th
February, 1999 held the accused not guilty of any offence and
acquitted him. While recording the finding of acquittal, the Trial
Court found certain material improbabilities and contradictions
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in the statements of the witnesses. Since we have to deal with
the judgment of reversal of an order of acquittal, it will be useful
for us to notice some relevant extracts of the judgment which
would indicate as to what really weighed with the Trial Court
while granting acquittal to the accused.
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"(32) In the evidence of P.W.3, he says that he does not
know what P.W.2 informed to P.W.1 when he made
enquiries. The evidence of P.W.4 is of no use. As seen
from his evidence, it is manifest that he is unable to identify
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the accused person who was present in the court on the
date of his giving evidence. Even he has not divulged
anything about P.W.2 informing the incident to P.W.1. As
such, the evidence of PW.1 that the victim girl narrated the
incident to him, is not corroborated by any one of the
witnesses.
(33) It is an admitted fact that at the scene of offence,
P .W.1 did not prepare any statements, and he simply
brought both the accused and P.W.2 to the Police Station.
But, it is (sic) not unnatural on the part of P .W.1 and other
police personnel who went to the scene of offence without
any pen or papers on their hand, as it is evident from the
evidence of P.W.3 that immediately after informing the
incident to P.W.1 they went to the scene of offence. In such
case we cannot expect P.W.1 to procure paper and pen
to prepare any statement on the spot. Hence, in this
context, the version of learned counsel for accused, that
as P.W.1 failed to record any police proceedings or
statement at the spot, ca~not go against the prosecution
case.
(34) Nextly, it may be pointed out that though P.W.10 the
S.I. of the Police registered the case, he did not try to
record the statements of P.Ws 1 to 3 though they were
available at that juncture. Till arrival of P .W.11, the
Inspector of Police, the statements were not recorded.
When P .W.10 himself registered the case, why he has not
recorded the statements of the witnesses available at the
spot, was not explained by him., it is only P.W.11 who
received express F.1.R. from P.W.10 recorded statements
of P.Ws. 1 and 2, and later sern the victim girl to the
hospital for medical examination.
(35) When coming to the evidence of P.W.2, though she
narrated the incident and stated in her chief - examination
that the accused removed his pant and underwear and laid
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1131
PRADESH [SWATANTER KUMAR, J.]
her on the floor and passed liquid like urine in her private
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part, her admission in the cross-examination that
Narayanswamy P.W.3 tutored her to depose in this case
and also at the request of P.W.1, she deposed about
purchasing of bangles by the accused and taken her to the
room, makes her entire evidence lack of credibility and
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inadmissible.
(36) In this context, the learned counsel for accused
submitted that in view of the particular admission made by
P.W.2 that she was tutored by P.W.3, the evidence of C
P.W.2 becomes worthless and inadmissible. In this regard,
he placed reliance upon a decision reported in "Ramvilas
and others, Appellants. Vs. State of Madhya Pradesh,
Respondent" (1985 Crl.L.J. Page 1773), wherein Their
Lordships held that, when the statement was narrated to
the witness just before entering into the witness box, the
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evidence of such witness is inadmissible in view of section
162 Cr.P.C. because the fact remains that it was narrated
to the witness for the purpose of giving evidence at the trial
and that tantamounts to making use of the statement at the
trial which is prohibited by section 162 Cr.P.C.
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(38) When coming to the evidence of P.W.3, it goes to ·
show that he noticed the accused taking away a minor girl
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along with him to the tennis court. Though he suspected
some foul play, he did not try to prevent the accused from
taking the girl into the room of tennis court. This conduct
of P.W.3 is not natural in those circumstances.
(39) The evidence of P.W.5, the mother of victim girl goes
to show that she came to know the incident after the victim
girl and the accused were brought to Police Station.
Hence, she is also not a direct eye-witness.
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(43) Hence, it is manifest that for sustaining tenderness on
the private parts of the victim girl, there could be some
other reasons and those reasons are not ruled out by
P .W.9. Admittedly, in the wound certificate furnished by her
under Ex.P.5, she has not mentioned that there was an
attempt on the person of P.W.2 victim girl. Further, there
is no record to show that she obtained acknowledgment
from the police for handing over the material objects
collected by her at the time of examination. She collected
vaginal swab and also vaginal washings. Further, on her
examination, she found the hymen of the victim girl was
intact and there was no laceration or congestion on
fourchette.
(59) But, in this case on hand, the evidence of P.W.2 the
prosecutrix is of no avail in view of her admission that she
was tutored by P.W.3 before her giving evidence. Hence,
the above said citation also cannot be made applicable
to the present facts of the case.
(70) In this case, what is important is, that, though P.W.2
narrated the incident and stated that the accused took her
to the tennis room and passed urine like substance on her
private part, her own admission that she was tutored by
P.W.3, demolishes the credibility of the victim girl. Hence,
when the very direct evidence is doubtful in nature, the
evidence of P.W.3 that he saw the accused taking away
the girl along with him, and also P.W.1 and other noticing
the victim girl along with the accused in the tennis court
room, it also not much helpful.
(71) Further as seen from the record, though P .Ws. 1 to 5
were examlhed by P.W.11 on the date of incident itself,
all the said statements were sent to the court only on
28.1.1998. The alleged occurrence is on 7.9.1997. Hence,
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1133
PRADESH [SWATANTER KUMAR, J.]
the sending statements to the court at a belated stage, has
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the effect of losing the spontaneity of the statements and
further; admittedly the statement of P.W.2 recorded by
P.W.1 was also not read over to her. Hence, in these
circumstances, the benefit of doubt should be given to the
accused. Hence, this point is answered against the
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prosecution.•
6. Besides the above, the Trial Court had also expressed
its doubt in relation to the authenticity of Ex.P.9, the wound
certificate of accused, issued by the Chief Medical Officer, SV c
RR GG Hospital, Dr. V.V. Pandurana Vittal, PW12. There were
certain corrections as referred to in paragraph 52 of the
judgment in this regard. The High Court disturbed the above
judgment of the Trial Court and found the accused guilty under
Sections 363 and 376(2)(f) of IPC an.d· convicted him to
undergo rigorous imprisonment for ihree years and to pay a fine
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of Rs.1000/- and in default of payment,· to undergo simple
imprisonment for three months under Sectio.il · 363 of IPC.
Accused was sentenced to undergo rigorous imprisonment for
10 years and also to pay a fine of Rs.2000/-, and in default of
payment, to undergo simple imprisonment for six months for the
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offence under Section 376 (2)(f) of IPC. The substantive
sentences were directed to run concurrently.
7. Aggrieved from the judgment of conviction and order of
sentence passed by the High Court, the accused has filed the
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present appeal.
8. We would prefer to discuss the first argument advanced
on behalf of the appellant as the last because !t would primarily
depend upon the view we take upon appreciation of the
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evidence and the case of the prosecution in its entirety.
9. The second contention on behalf of the appellant is that
there is a clear conflict between the medical evidence and the
ocular evidence which creates a serious doubt in the case of
the prosecution. To buttress this contention, reference has been
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A made to the statement of PW2, the prosecutrix, where she
states that she was subjected to rape, but according to the
doctor, PW9 and the Medical Report, Ext. P.5, neither was she
subjected to sexual intercourse nor was there any penetration.
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10. PW2 was 11 years old at the time of occurrence, while
she was 12 years old, when her statement was recorded in the
Court. After the Court was convinced of the fact that she is
competent to make the statement, the same was recorded. In
her statement, she stated that she was working as a maid in
C the staff quarters of S.V. University, known as the red building.
According to her, she knew the accused and he was in the
habit of escorting children to the school. The accused had taken
her to the tennis court, promised her that he would buy bangles
for her and after purchasing the bangles the accused took her
to a room in the tennis court. The accused closed the door of
D the room, lifted her /anga, removed his own pant and
underwear, put her on the floor of the room and passed liquid
like urine into her private parts. In the meanwhile, she stated
that she felt the starch in her private parts. At that time, one
rickshaw puller, PW3 came and knocked at the door. The
E accused abused him in a filthy language and later the police
came to the room. She further narrated that it was PW1 who
had taken her and the accused to the police station, where she
was examined by the Police.
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11.Her langa was seized by the police and was sent to
hospital for examination. She stated that her mother was also
working as a maid in the red building itself. We must notice that
despite a lengthy cross-examination, she stood to her
statement and did not cast any doubt on the statement made
G by her in her examination-in-chief. When she was taken to the
hospital, she was examined by Dr. G.