JUDGMENT
M. Narayana Reddy, J.
1. This judgment, according to Law, based on the legal material placed, on Record, arises out of a Criminal Appeal, filed by the two appellants, against the sole respondent-State of A.P., under Sub-section (2) of Section 374, Cr. P.C. 1973, questioning the validity and legality of the adjudications made by, and set forth in para 4, infra.
2. Appellants 1 and 2 herein correspond, respectively, to A.1 and A.2 in S.C. No. 1148/2000, on the file of the Assistant Sessions Judge, Gurazala (Trial Court). The sole respondent herein corresponds to the sole complainant therein, corresponding to the Inspector of Police, Macherla.
3. The parties are, hereinafter, referred to, with reference to their respective descriptions before the said Trial Court, in that S.C. No. 1148/2000, unless, otherwise, so specified.
4. Judgment, dated 21-1-2002 of the Trial Court, adjudicating upon the said S.C. No. 1148/2000, as under ;–
I. Finding A.1 and A.2, guilty of the offences and charges framed against them, and set forth, hereunder ;–
(a) A.1… under Section 376, IPC;
(b) A.1…. under Section 306, IPC; and
(c) A.2…. under Section 306, IPC, read with Section 34 thereof.
II. Consequently, convicting A.1 andA.2, under Sub-section (2) of Section 235, Cr. P.C. 1973, as the case may be, in respects thereof, and hence, sentencing them, thereunder, as under :–
(a) A.1…. under Section 376, IPC,
(i) to undergo Rigorous Imprisonment for ten years; and
(ii) to pay a fine of Rs. 5,000/-, and, in default of payment thereof, to undergo Simple Imprisonment for three months.
(b) A.1…. under Section 306, IPC,
(i) to undergo Rigorous Imprisonment for ten years, and
(ii) to pay a line of Rs. 5,000/-, and, in default of payment thereof, to undergo Simple Imprisonment for three months.
(c) A.2…. under Section 306, IPC; read with Section 34, thereof,
(i) to undergo Rigorous Imprisonment for ten years.
(ii) to pay a fine of Rs. 5,000/-, and, in default of payment thereof, to undergo simple Imprisonment for three months.
The foregoing substantive sentences in respect of A.1, are directed to run, concurrently.
5. The Inspector of Police. Macherla, filed a charge-sheet, against A.1 and A.2, in the Committal Court, being the Court of Judicial Magistrate of First Class, Macherla, under Sections 376 and 306, IPC, read with Section 34 thereof, inter alia, alleging, as under :–
(a) A.1 is aged about 25 years. A.2 is aged about 23 years. A.2 is the wife of A.1.
(b) The alleged victim is aged about 14 years and is a married girl.
(c) The accused and the victim are all residents of Regulavaram Tanda.
(d) For festival, the married daughter (victim) came to her parents’ house. In that context, on 6-10-1999, the father gave money to his victim daughter for getting new clothes stitched by a Tailor. For that purpose, she went to the house of A.1, who was present alone in the house.
(e) Thereupon, A.1 forcibly put chothes in the mouth of the victim girl, felled her on the cot, and committed rape on her. His wife (A.2) saw the same and abused the victim girl, and beat her with hands, not to tell anyone about the same. etc.
(f) Subsequently, the victim girl left to her parents’ house, and wept, and did not inform, anything, but consumed pesticide poison available in that house. Thereafter, she was taken to Macherla, in APSRTC bus. In that bus, the then surviving victim girl informed about the rape incident, etc., to L.Ws. 3 and 4, and, later died at the outskirts of Kothapalli village.
(g) Subsequently, the report given by the father, in respect of the said offence, a case was registered by the Police, Macherla, as Crime No. 126/99, under Sections 376 and 306, IPC, and was investigated into, in the process whereof, inquest was held over the dead body of the deceased, and also, postmortem examination was got done, and different witnesses were examined, etc., as prescribed by Law,
(h) Because, the investigation revealed, that, A.1 and A.2 committed the foregoing offences, the charge-sheet was filed against them, under the foregoing two penal provisions.
6. The said Committal Court, after registering the said charge-sheet, as P.R.C. No. 18/2000, committed the case, to the Court of Session, Guntur, which, after registering the same, as S.C. No. 1148/2000, of its Sessions Division, made-over the same, to the said Trial Court for adjudication thereof, according to Law.
7. The said Trial Court framed separate charges against A.1, in respect of the offences punishable under Sections 376 and 306, IPC and another separate charge against A.2 under Section 306, IPC read with Section 34 thereof, and, later, because, they pleaded not guilty in respects thereof, tried the said S.C. No. 1148/2000, following the procedure prescribed in Chapter XVIII, Cr. P.C. 1973, for trial of a Sessions Case, in the process whereof, it recorded the oral evidence of P.Ws. 1 to 14, and exhibited the documentary evidence, byway of Exs. P1 to P.12, and Exs. D. 1 and D.2 and, the object evidence, as. M.Os. 1 to 6, and, later, after due arguments there-into, finally, adjudicated thereupon, as set forth, in detail, in para 4, supra.
8. Questioning the, validity and legality, thereof, A.1 and A.2 filed the present Criminal Appeal, as set forth in paras 1 and 4, supra.
9. Hence, the point for consideration and determination, in this Criminal Appeal, will be, as under :–
“Whether the impugned judgment of the trial Court, set forth in para 4, supra, as well as, the respective convictions and sentences imposed thereby, upon A.1 and A.2, are, all, unsustainable at fact and Law, and, hence, are liable to be set aside, in toto, or, modified, or, interfered with, in any manner?”
10. Before this Appellate Court, neither party sought to adduce any additional oral, or, documentary evidence.
11. Arguments were heard of the learned counsel for the two appellants (A. 1 and A.2), and the learned Addl. Public Prosecutor for the sole respondent-State.
12. Point. The victim girl, being, the deceased, is aged about 14 years, as per the post-mortem certificate, exhibited as Ex. P.9. The case of the prosecution is, that, on 6-10-1999, when she went to the house of A.1, for getting her new clothes stitched, he fell on her on the cot, and committed rape, against her will, etc. and that, hence, A.1 committed the offence, punishable under Section 376, IPC.
12-A. However, even according to the prosecution, to substantiate the same, there is no direct independent witness in respect thereof. The prosecution sought to prove the same, on the basis of the alleged oral Dying Declarations made by the said victim, to P.Ws. 3 and 7, as well as, by way of medical evidence, covered by the post-mortem certicate, exhibited as Ex. P.9, issued by P.W. 12, as also, by the potency certificate of A.1, exhibited as Ex. P. 10, and the Doctor, who issued the same, who is P.W. 13, as also, by the report of Regional Forensic Science Laboratory, exhibited as Ex. P. 12, and M.Os. 1 to 6.
13. The said Ex. P. 9 and the evidence of P.W. 12 do not, even remotely, disclose, that, any offence of rape is committed upon the deceased. The intervening period, from the time of the death report to the Police at 6.00 p.m., on 7-10-1999, as per Ex. P.8, FIR, and the time of actual post-mortem examination, as disclosed by Ex. P.9, post-mortem certificate, being, 12.30 p.m., on 8-10-1999, is more than 18 hours, and odd. However, thereby, it can’t be said, that, the evidence, in respect thereof, is lost, or, will be lost. In any case, there is, nothing, to disclose the offence of rape, contained therein.
14. M.O.s. 1, 2, 3 are, respectively, the blouse, skirt and saree of the deceased. M.Os. 4 and 5 are, respectively, skirt and blouse. M.O.6 is the lungi of the accused. Ex. P. 12 is the report of the Assistant Director, Regional Forensic Science Laboratory. Item No. 8, corresponding to a bottle containing Turbid Liquir, pertaining to A.1, contained semen, and that, the same is not found on any other item. When, the same is collected from A.1, it doesn’t disclose, anything, incriminating, against A.1. That report also mentions, that, Spermatozoa are not detected on items 5, 6, 8 and 9, corresponding, respectively, to Cotton Swab relating to the deceased and Hair of the deceased, and the Turbid Liquid, and also, that, foreign hair is not detected on items 6 and 9, as can be seen from that report. In the circumstances, this Ex. P-12-Report is not helpful to disclose the commission of rape on the deceased.
15. Ex. P. 10 is the Potency Certificate of A.1, issued by P.W, 13. P.W. 13 also deposed in respect thereof. Even, if, the same is accepted, in toto, the same, at best, discloses, that, A.1 is potent. But, at the same time, the same cannot, even remotely, disclose, much less, prove, that, thereby, A.1 committed rape on the deceased.
16. So, therefore, the foregoing medical and scientific evidence do not, at all, substantiate, even remotely, the offence of rape being committed on the deceased, not to speak of, by A-1, at all.
17. Then, the prosecution sought to prove the offence of rape, by way of the oral Dying Declarations, alleged to have been made by the deceased, to P.Ws. 3 and 7.
18. The oral Dying Declarations should be proved, strictly, and, in a cogent, and, convincing, and, satisfactory, manner, and, much more so, when the Court has to accept and act thereupon, in the direction of convicting and sentencing the accused, ipso facto, on their basis or, coupled with some other corroborative medical evidence, or, corroborative surrounding circumstances.
19. P.W. 3 is the daughter of P.Ws. land 2. P.W. 7 is the son of P.Ws. 1 and 2. P.W. 3 is aged about 25 years and P.W. 7 is aged about 18 years. P.Ws. 3 and 7 deposed, that, while they were taking the then surviving deceased, Bujji, in the R.T.C. Bus, to go to Macherla, for treatment, on the way, the then surviving deceased informed them, that, A.1 caught hold of her, and committed rape upon her, by closing her mouth, with clothes, while A.2 threatened her, not to inform the same, to others, and that, for that reason, she (deceased) consumed pesticide poison, etc. This is the operative part of the oral Dying Declaration.
20. In her cross-examination, P.W. 3 deposed, that, the deceased informed her that she consumed poison, because, she was afraid of being beaten by her brothers, and hence, committed suicide. In her cross-examination, she deposed, that, P.W. 1 was also accompanying them in the bus.
21. In his cross-examination, P.W. 7 deposed, that, the husband of the deceased asked the deceased, to follow him, to his house, but that, she is not willing to go with him, stating, that, she will go there ten days thereafter. P.W. 7 denied the suggestion, that, he omitted to mention in his Police Statement, that, the deceased went to the house of A.1, for getting the new clothes stitched. This omission is proved by P.W. 14, the then Investigating Officer. Again, in his cross-examination, this P.W. 7 deposed, that, while he was in their house itself, the deceased was conscious and was able to talk and on his enquiry, as to why, she consumed poison, she informed him, that, A.1 committed rape against her, and that, A.2 threatened her not to inform the same. He denied the suggestion, that, he stated, as contained in Ex. D.2, which is not of much significance.
22. So, therefore, according to the chief-examination of P.W. 7, the oral Dying Declaration was made in the R.T.C. Bus, while in his cross-examination, it was made in the house itself.
23. P.W. 1 is the father of P.Ws. 3 and 7, and husband of P.W.2. He deposed, that, the deceased went to the house of A.1, for getting new clothes, stitched. He also deposed about the offence of rape being committed by A.1, against the deceased. However, he is not an eye-witness, and hence, his evidence is inadmissible. In his chief-examination, he deposed, that, P.W. 3 and P.W. 7 shifted the deceased in APS RTC Bus, to Macherla, and that, on the way, the deceased informed them about A.1 committing rape on her.
24. P.W. 1 gave Ex. P. 1, Police Report. In his cross-examination, P.W. 1 deposed, that, his wife (P.W. 2) informed him, that, the deceased informed her (P.W. 2) in the house itself, that, A.1 committed rape on her. He admitted, that, in his Police Statement, under Section 161(3), Cr. P.C. 1973, or, in Ex. P. 11, he mentioned, that, he came to know about the commission of rape by A.1, against the deceased, even prior to shifting of the deceased in the APS RTC Bus. In his cross-examination, P.W. 1 admitted, that, the accused lived in the house of his brother, as a tenant, and continued as a tenant under him, even after he (P.W. 1) purchased that house, and that, A.1 avoided to pay rents, and that, for that reason, there were disputes between him and A.1, in respect of rents, etc. P.W. 1 also admitted in his cross-examination, that, all the Thanda people are supportors of the Congress Party, while A.1 alone supported Telugu Desam Party, and that, during the Assembly elections, Madya Naik (L.W. 9), elected as M.P.T.C. on behalf of the Congress Party. In his cross-examination, P.W. 1 deposed, that, by the time, they boarded the Bus, to go to Macherla, it became dark. He again deposed, that, the deceased was not shifted in the R.T.C. Bus, but was shifted in a Jeep, and that, it was 8.00p.m. or 9.00 p.m., and that, by then, the deceased lost her consciousness. He admitted, that, the husband of the deceased gave a report to the Macherla Police, informing, that, he is not responsible for the death of the deceased. P.W. 1 pleaded ignorance, as to, whether, the husband of the deceased, in his report to the Police, stated, that, the deceased was not willing to lead marital life with him, but, that, P.W. 1 and others were forcing the deceased, to go to her marital house, and that, for that reason, she consumed poison. He denied the suggestion, that, even though, the deceased was not willing to go to her husband’s house, and hence, came back to his house (P.W. 1’s house), after the marriage. Sometime later, she was sent back to her husband’s house, forcibly, at the instance of the mediation held by them, etc. P.W. 1 denied the suggestion, that, the case is falsely foisted against A.1 and A.2, at the instance of the said M.P.T.C. Member (L.W. 9) and 10 others, due to political enmities and other disputes between them and the accused, and that, they became enemies towards the accused, because, the accused, who belonged to Achammakunta Thanda, migrated to the village of P.W. 1, and creating a base for Telugu Desam Party, in their Thanda.
25. The evidence of P.W. 1, the father of the deceased Bujji, is inconsistent, apart from his presence in the Bus, at the time of the alleged Dying Declaration of the deceased is not spoken to by P.Ws. 3 and 7, being, his daughter and son. Even otherwise, the evidence of P.W. 1 is discrepant, as to, whether, the deceased was taken in a Jeep, or, in R.T.C. Bus. The Conductor, or, Driver, of that Bus was examined, if actually, the deceased was taken in that Bus. No valid, or, tangible, reasons, forth-came, in respects thereof. Even otherwise, the cross-examination of P.W. 1 reveals, that, their earlier enmities between him and A.1, inter alia, because of rent dispute, as to the house, as well as, in respect of they belonging to two different political parties, and A.1 being the only person supporting Telugu Desam Party in that village, etc.
26. As aforesaid, the evidence of P.W. 7 is also inconsistent as to the actual place, where the Dying Declaration was made by the deceased, as to, whether, in the R.T.C. Bus, or, at the house, as already observed, P.W. 1 claims, that, the deceased was taken to the Hospital, in a Jeep.
27. P.W. 2 is the wife of P.W. 1, and mother of the deceased and P.Ws. 3 and 7. Her evidence-in-chief, as if, she is an eyewitness to the said offence of rape, is inadmissible, as, admittedly, she is not an eyewitness. However, at a later part of her chief-examination, she deposed, that, in the R.T.C. Bus, the deceased informed P.Ws. 1, 3 and 7, about A.1 committing rape, etc. So, there is no direct declaration, made to her (P.W. 2), by the deceased. Her version is hearsay, from all, or, any of P.Ws. 1, 3 and 7, and hence, is inadmissible. The evidence, in chief, of P.W. 2 doesn’t, at all, even remotely, disclose, that, in her house itself the deceased informed her about the rape being committed on her, by A.1. So, for all practical purposes, the evidence of P.W. 2 is of no avail to the prosecution. Ex. D. 1, contradictory portion in her Police Statement, is not of significance to the accused, ipso facto. P.W. 2 admitted, that, she was not present at the time of shifting of the deceased, in the RTC Bus.
28. After examining the evidence of P.Ws. 3 and 7, and also, that of P.Ws. 1 and 2, visa-vis, as is done in the foregoing paragraph, I am of the opinion, that, the alleged oral Dying Declaration of the deceased was not proved, much-less, satisfactorily, and it is not safe to be accepted and acted thereupon. The evidence of those witnesses suffer from discrepancies and inconsistencies, on material aspects. Even if, the witnesses are rustics, or, illiterate persons, there cannot be such variations, or, discrepancies, on material aspects. As afore-observed, P.W. 3 also admitted in her cross-examination, that the deceased was afraid of being beaten by her brothers, etc.
29. P.W. 14, the then C.I. of Police, in his cross-examination deposed, that, he felt, that, it was necessary to examine the Driver and Conductor of R.T.C. Bus. However, they were not examined. He admitted, that, even though, he tried to seize the clothes of the deceased, given to A.1., for stitching, but he could not do so. P.W. 1 and some other witnesses sought to prove, that, there is one Tailor in their village, or, Thanda, being, A.1. However, the evidence of P.W, 9, who is one of the mediators for Ex. P.5-Inquest Report, and Ex. P.6-Scene of offence panchanama, deposed, that, there are 5 Tailors in that village. It is disputed, that, the deceased did not specify, as to, which Tailor, she went, for getting her clothes stitched.
30. After considering the foregoing material, I am of the opinion, that, the prosecution could not prove, much-less, beyond all reasonable doubts, that, A.1 committed rape on the deceased Bujji, and that, for that reason, and indignation, she committed suicide, attracting against A.1, the provisions of Section 376, IPC and 306, IPC. When so, A. 2, who is the wife, cannot be made liable in respect thereof, with the aid of Section 34, IPC.
31. While so, the Trial Court erroneously convicted A.1, in respect of the said offences, under Sections 376 and 306, IPC, and found A. 2 liable for the offence, punishable under Section 306, IPC, read with Section 34 thereof, as set forth in para 4, supra.
32. The material, on Record, pertains to investigation, etc., which, in the foregoing facts and circumstances, will not be of any significance, or, consequence.
32-A. Hence, the impugned Judgment of the Trial Court, and the convictions and sentences imposed, thereby, upon A.1 and A. 2, are unsustainable, both, at fact and Law, and hence, are liable to be set aside, in toto, as such, as is being done, hereunder, ordering acquittal of A.1 and A. 2, etc.
33. Hence, the High Court doth hereby adjudicate upon the Criminal Appeal, as under :–
I. Setting aside, in toto, the impugned judgment of the Trial Court, set forth in para 4, supra, as well as, the convictions and sentences imposed thereby upon appellants 1 and 2 (A. 1 and A. 2), and set forth in that para 4, supra;
II. (a)(i) Consequently, finding A.1 not guilty of the alleged offences and charges, punishable under Sections 376 and 306, IPC;
(ii) Finding A. 2, not guilty of the offence and charge, punishable under Section 306, IPC read with Section 34 thereof;
(b) Consequently, acquitting A.1 and A. 2, in respect of the offences and charges in respect whereof, they were found not /guilty in Clause (a), supra, and hence, directing, that, they be set at liberty, forthwith, in respect thereof; and
III. The fine amounts, if any, deposited By A-1 and A-2 in pursuance of the now set aside judgment of the Trial Court, should be refunded to them, after the time to question this judgment, if any, expires.