T. Ch. Surya Rao, J.@mdashThe appellant seeks to assail his conviction and sentence passed by the learned Additional Assistant Sessions Judge, Narasaraopet, convicting him under Sections 376 and 306 of the Indian Penal Code (for brevity ''the IPC'') and sentencing him to suffer rigorous imprisonment for 10 years u/s 376 of the IPC and rigorous imprisonment for 5 years u/s 306 of the IPC besides sentencing him to pay a fine of Rs. 5,000/- and in default to suffer simple imprisonment for 1 year on the first count while directing both the sentences to run concurrently, by his Judgment dated 26.06.2000 in Sessions Case No. 410 of 1998.
2. The appellant stood charged along with three others under Sections 376 and 306 read with 113 of the IPC insofar as the other accused are concerned. The gravamen of the charge against the appellant was that on 11.06.1997 at about 06.30 P.M. to 07.00 P.M. at Arepalli village he committed rape on the deceased Battula Uma Devi with the assistance of A.2 to A.4, on account of which the said Uma Devi committed suicide by consuming poison and thereby committed the said offences.
3. All the accused abjured the guilt and denied of having committed the offence alleged when charges were read over and explained to them. In proof of the above charges, the prosecution examined as many as 12 witnesses and got Exs.P.1 to P.20 and M.Os.1 to 6 marked. None was examined on the side of the accused but Exs.D.1 to D.3 contradictions were marked in the evidence of P.Ws.3 and 6.
4. The case of the prosecution in brief may be stated thus: P.W.2 is the daughter of P.W.3 and sister of the deceased girl. The deceased was a third daughter of P.W.3, P.W.2 being the eldest. On 14.06.1997 the marriage celebration was expected to be performed for the marriages of P.W.2 and second daughter of P.W.3. Three days earlier thereto, P.W.3 sent Uma Devi the deceased to the Kirana shop of P.W.4 to bring betel leaves and nut powder. Accordingly, the deceased went to the shop of P.W.4 who was running a Kirana shop. Adjacent to the said shop there is a house of one China Gurunadham. The deceased went there at about 07.00 or 08.00 P.M. and purchased betel leaves and nut powder and tobacco. By then all the accused were present there who purchased pan parag. When the deceased left the shop of P.W.4, all the accused followed her from the shop. P.W.1 who is a resident of that village was returning from grazing ground and washed his legs at the bore well which is at a distance of 40 yards from the shop of P.W.4. He found A.1 catching hold of the hand of the deceased near the hut of Bathula Guravaiah. He then shouted at A.1 on account of which A.1 left the deceased but was standing there. P.W.1 went away from that place to his house which is at a distance of 50 yards from the hut of the said Guravaiah. The husband of P.W.3 was not present as he left for Putaparti for distribution of invitation cards. The deceased returned home at about 08.30 P.M. and went into the lane, sat there and started weeping. P.W.2 who was watching T.V. by then later went to the deceased and noticed mud on the head and dress of the deceased. She then questioned the deceased as to what happened. The deceased stated that while she was coming from the shop of Venkateswara Rao, P.W.4, on the way A.1 caught hold of her hand, took her to the house of Gurunadham and committed rape on her, while A.2 to A.4 were assisting A.1. While P.W.2 asked the deceased to come to their mother, she was not in a position to stand up. Suspecting that she might have consumed some pesticide, P.W.2 went to her mother P.W.3. On being informed by P.W.2, P.W.3 also questioned the deceased whereupon she narrated the incident to her also. The deceased also informed P.W.3 that she consumed pesticide as the accused committed rape on her. P.Ws.2 and 3 along with another took the deceased to a private hospital at Muppalla. The Doctor there directed them to take the deceased to Narasaraopet. While the deceased was being brought back home, she breathed her last on the way at about 10.00 P.M. On the next day, the husband of P.W.3 returned. He informed P.W.5 the Village Assistant about the occurrence, who then drafted Ex.P.3 written report and lodged with P.W.12 at Rompicherla Police Station who registered the case as Crime No. 37 of 1997 initially u/s 174 of the Code of Criminal Procedure. Immediately P.W.12 left the Station for Arepalli village and in the presence of P.W.5 and two others he visited the house of P.W.3 whereat the deceased body was placed, made an observation and seized M.Os.1 to 3 under the cover of Ex.P.4 observation report. Thereafter he conducted inquest over the dead body of the deceased at 03.00 P.M., examined the witnesses at the inquest, recorded their statements, got the photographs of the dead body taken in Exs.P.6 to P.8 and Ex.P.2 inquest report was drafted there. He then despatched the dead body to the Government Hospital for conducting post-mortem. P.W.10, the Civil Assistant Surgeon, Government Hospital, Narasaraopet, on 13.06.1997 at about 11.00 A.M. examined the dead body and found three nail prick like compressed abrasions over base of back of left hand thumb and two small abrasions over back of left wrist which were ante-mortem. During the course of post-mortem examination, he preserved viscera and vaginal smears and sent them to the Regional Forensic Science Laboratory, Vijayawada. After receiving the report from the Regional Forensic Science Laboratory, he gave Ex.P.19 final report opining therein inter alia that the death was due to poisonous organo phosphate insecticide.
5. P.W.12 in the meanwhile visited the scene of offence in the presence of P.W.5 and two others, made an observation of scene and drafted Ex.P.5 observation report. He noticed betel leaves, tobacco pieces, three pieces of yellow colour ball point pen and seized them in M.Os.4 to 6 under the cover of the said observation report. After returning to the Police Station, he altered the Section of law from Section 174 of the Code of Criminal Procedure to Sections 376 and 306 of the IPC and issued Ex.P.20 First Information Report. He made a surprise visit to the house of the accused and noticed that they were absconding from their houses. The subsequent investigation was taken up by the Circle Inspector of Police, who eventually after completing the investigation laid the charge sheet. The Circle Inspector of Police arrested A.1 on 16.06.1997 and sent him to P.W.9 Doctor for examination who examined him at 05.20 P.M. on that day. P.W.9 opined that A.1 was capable of committing sexual intercourse. As aforesaid, he laid the charge sheet eventually.
6. After the evidence of prosecution was completed, the accused were examined u/s 313 of the Code of Criminal Procedure when they denied the incriminating material put to them. When called upon to enter upon their defence, they stated that there was no defence evidence.
7. After hearing either side, the learned Additional Assistant Sessions Judge was of the view that the prosecution was able to prove the guilt against A.1 and found him guilty of both the charges u/s 376 and 306 of the IPC while finding A.2 to A.4 were not guilty of the charges framed against them. Consequently, the Court below convicted A.1 for the said offences and acquitted A.2 to A.4 and sentenced A.1, as aforesaid. The appellant is now assailing the said conviction and sentence, as aforesaid.
8. In proof of the charges framed against the appellant, the prosecution relies upon the testimonies of P.Ws.1 to 12 and Exs.P.1 to P.20 documents. Of the 12 witnesses thus examined, P.W.1 was stated to be the eye witnesses to the occurrence. P.Ws.2 and 3, the sister and mother of the deceased are the witnesses to whom the deceased is said to have narrated the incident. The evidence of P.W.4 is circumstantial in nature as he deposed about the presence of the accused at his shop when the deceased came there for purchasing betel leaves and nut powder. The testimony of other witnesses, except P.Ws.9, 10 and 12, is of no significance in this case having regard to the nature of the charges levelled against the appellant. P.W.9 is the Doctor who examined the appellant and found him to be potent. P.W.10 is the Doctor who conducted autopsy over the dead body of the deceased and eventually opined that she committed suicide by consuming organo phosphate insecticide. He preserved the clothes, vaginal smear and sent them to Regional Forensic Science Laboratory, Vijayawada. The Doctor found external injuries on the person of the deceased on the left wrist and at the bottom of left thumb on the dorsal side. The evidence of P.W.10 did not reveal anything about the offence of rape. The medical evidence is totally absent to support the charges of rape, except the abrasions found on the person of the deceased. The prosecution has, therefore, to chiefly rely upon the oral testimony of P.Ws.1 to 4. P.Ws.2 and 3 being the sister and mother of the deceased deposed about the narration of the incident by the deceased to them. The Court below found that their evidence is admissible u/s 6 of the Indian Evidence Act. In having found so, it committed an error. The facts reveal that after the alleged incident, the deceased came home, consumed poison and was found weeping in the lane. It is only at that point of time when P.W.2 wanted to know the cause, the deceased stated to have revealed the incident to her and thereupon to P.W.3. Absolutely the statements said to have been made by P.Ws.2 and 3 lack contemporanity and they do not form part of the same transaction. On account of the time gap in between and as it was not the part of the same transaction, the statements said to have been made by P.Ws.2 and 3 cannot constitute an exception to the hearsay rule and become admissible u/s 6 of the Indian Evidence Act. The law in this regard has been succinctly stated by the Apex Court in
The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue as to form part of the same transaction becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible u/s 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.
It is obvious that the statements of the deceased said to have been made before P.Ws.2 and 3 which lack contemporanity and since they do not form part of the same transaction on account of the time gap in between, cannot constitute as res gestae, as an exception to the hearsay rule. Such statements made by the victim at or about the time of the offence are squarely attracted u/s 157 of the Indian Evidence Act. Therefore, they can be made use of as corroborative pieces of evidence under the said provision. Unfortunately in the instant case, there was no statement of the deceased since she died. When there is an evidence given on oath by the victim her previous statements said to have been made before P.Ws.2 and 3 can be used u/s 157 but in the instant case the prosecution cannot make use of those previous statements of the deceased made to P.Ws.2 and 3 inasmuch as there has been no statement on oath given before the Court by the author thereof. Consequently, the testimonies of P.Ws.2 and 3 are not available to the case of the prosecution since it is in the nature of hearsay and is not admissible in evidence.
9. There remains the testimonies of P.Ws.1 and 4. P.W.1 has not supported the case of the prosecution in toto. He resiled from his previous statement and had to be cross-examined by the Addl. Public Prosecutor. Nonetheless, any part of the statement made by the witness can be taken into consideration provided it is creditworthy. He categorically deposed in chief-examination that while washing his legs at the bore well nearer to the thatched hut of Bathula Guravaiah, he found A.1 catching hold of the hand of the deceased and when he shouted at him, A.1 left the deceased and was standing there. The witness, as aforesaid, was cross-examined by the Public Prosecutor and defence counsel as well. No material worth the name could be elicited from the witness during the cross-examination which can make his statement incredible. The veracity of the witness has not been shaken in any way so as to dub his evidence as uncreditworthy. Since any part of his statement can be taken into consideration by the Court, I see no compelling reason as to why that part of the statement made by him in the chief- examination, as discussed hereinabove, cannot be considered by the Court. The evidence of this witness is so probable and consistent. Added to it, it is corroborated to some extent by the testimony of P.W.4. P.W.4 categorically deposed that when the accused were standing at his shop, after purchasing pan parag, the deceased came there who purchased the betel leaves and nut powder and left his shop, followed by the accused in the same direction. That was obviously towards the bore well side. This probabilises the testimony of P.W.1. Although P.W.1 has not supported the case of the prosecution in whole, since that part of his testimony deposed in chief-examination is being probabilised by testimony of P.W.4, which can safely be relied upon, a combined reading of the evidence of P.Ws.1 and 4 shows that the accused were found at the shop of P.W.4 at which the deceased came later and when the deceased left that shop after purchasing betel leaves and nut powder they accompanied her and A.1 out of four accused found catching hold of the hand of the victim and when he was shouted by P.W.1, he left the hand of the deceased but remained there. This evidence is thus clearly discernible from the testimonies of P.Ws.1 and 4 which can be taken into consideration without any hesitation. The Court below accepted the testimony of these two witnesses. Of course, it has gone a step forward and eventually found A.1 guilty of the charge of rape. As discussed hereinabove, it is not discernible from the medical evidence of P.W.10 any traces of rape or sexual intercourse. In the absence of the statement of the victim of rape, such type of circumstantial evidence is not sufficient enough so as to draw a legitimate inference of the offence of rape from out of it. Thus, the evidence available on record falls short of the reasonable proof of the charge of rape. The evidence of P.W.1 that A.1 caught hold of the hand of the deceased when shouted at by him, he left the hand, clearly brings home the offence of outraging the modesty of a woman punishable u/s 354 of the IPC. Thus, the prosecution is able to establish the offence of outraging the modesty of a woman punishable u/s 354 of the IPC though not the charge of rape levelled against the appellant. The Court below found A.2 to A.4 not guilty of the charge of abetting the offence when committed by A.1. No appeal has been filed by the State as against the acquittal qua A.2 to A.4.
10. The charge u/s 306 of the IPC must fail having due regard to the fact that there has been no abetment whatsoever on the side of the appellant. It requires instigation, conspiracy or intentional aid so as to constitute the offence of abetment. The circumstance of rape might have led the victim to entertain the idea of committing suicide, but it falls short of instigation or intentional aid. The conviction u/s 306 of the IPC, therefore, cannot be sustained.
11. For the above reasons, I am of the considered view that the prosecution in this case is able to establish only the offence of outraging the modesty of a woman punishable u/s 354 of the IPC qua the appellant.
In the result, the Criminal Appeal is allowed in part while acquitting the accused/appellant of the charges under Sections 376 and 306 of the IPC, instead convicting him u/s 354 of the IPC.
Heard the learned Counsel appearing for the appellant and the learned Public Prosecutor as regards the quantum of sentence. Having due regard to the nature of the offence alleged that it is anti-social, the beneficial provisions u/s 360 of the Code of Criminal Procedure and Sections 3 and 4 of the Probation of Offenders Act, 1958 cannot be invoked in this case. The appellant was aged 19 years at the relevant time. Considering his age, family background etc., I am of the considered view that if he is sentenced to suffer rigorous imprisonment for a period of two years, it would meet the ends of justice. Although the offence entails a minimum sentence of five years, sentence of two years can be imposed for the reasons to be recorded. As discussed hereinabove, it is a fit case where statutory period of minimum two years imprisonment can be imposed qua the appellant. The bail bonds of the accused/appellant shall be cancelled forthwith. He shall surrender to serve the sentence after giving credit to the period, if any, he has already undergone as under trial prisoner as a set off. However, the sentence of fine as imposed by the Court below stands confirmed.
