Telangana High Court
Sk. Mypasha, Karimnagar vs State Of Telangana, Hyd on 16 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL No. 964 of 2014
JUDGMENT:
(Per the Hon'ble Sri Justice P.SAM KOSHY) The instant is an appeal Section 374(2) of Cr.P.C challenging the judgment of conviction dated 11.06.2014 passed in S.C.No.5 of 2014 by the Court of the I Addl. Sessions Judge, Karimnagar.
2. Heard Mrs. T.Bala Jayasree (Legal Aid), learned counsel for appellant and Mrs. Shalini Saxena, learned Additional Public Prosecutor appearing for the Respondent- State.
3. Vide the impugned judgment, the appellant has been found guilty for the offences punishable under Section 376 (2)(f)(i)(n) and Section 506 of Indian Penal Code, 1860 (for short, 'IPC') and under Section 4 of the Prevention of Children from Sexual Offences Act, 2012 (for short, the 'POCSO Act') and has been sentenced to undergo rigorous imprisonment for life with fine of Rs.1,000/- and in default of payment of fine to under to suffer simple imprisonment for a period of one (01) month. Further, the appellant has been ordered to undergo rigorous imprisonment for a period of Page 2 of 11 seven (07) years and to pay a fine of Rs.1000/- for the offence under Section 506 of IPC and in default to undergo simple imprisonment for a period of one month. The sentences shall run concurrently and the period of imprisonment undergone by the appellant as under Trial prisoner is set-off under Section 428 of Cr.P.C.
4. As could be seen from the impugned judgment, the appellant herein is the husband of the SK Sada (hereinafter, the PW.1 and defacto-Complainant) and they are resident of Korivi, Warangal. The prosecution had alleged that the appellant had committed rape repeatedly on PW.2 (Daughter of PW.1) since seven (07) months in the absence of PW.1 and made impregnate to PW.2.
5. The case of the prosecution, in brief, as is reflected from the charge-sheet is that on 29.12.2013 at 7:30 PM, PW.1 lodged a complaint stating that about fourteen (14) years back her marriage was performed with one SK Saidulu and she was blessed with two children by name SK Reshma, aged twelve (12) years, (hereinafter PW.2) and SK Subani, aged ten (10) years. After the birth of children, her husband deserted her. Thereafter, about nine (09) Page 3 of 11 years back, one SK Mypasha (the appellant) married her and it was the second marriage to the PW.1 with him and she was living with him. PW.1 was working as a Sweeper in Vemulawada temple. One day, her daughter SK Reshma complained to her about stomach pain. When she took her to Padmavathi Nursing Home, the Doctor declared that her daughter was carrying five (05) month's pregnancy. On enquiry, her daughter revealed that her father, SK Mypasha (the appellant) had been committing an offense upon her for the last seven (07) months i.e., after PW.1 left for the temple at 5:00 AM to attend her duty. He used to threaten PW.2 with dire consequences to kill her and used to commit the act of offense upon her. Due to fear she did not reveal the matter to PW.1. Hence, she lodged the complaint to take necessary action against the appellant.
6. The said complaint was registered and investigated into and during the course of the investigation PW.10 (Ch Deva Reddy, Inspector of Police, Vemulawada) examined PWs.1 to 3 with the help of PW.9 (B. Sarojana, Women Police, Vemulawada) and recorded their statements. Thereafter, he referred PW.2, the victim girl to the Government Area Hospital, Sircilla for medical Page 4 of 11 examination. He visited the scene of offense, observed the scene and sketched the scene in the presence of the mediators. Thereafter, PW.10 collected the Date of Birth Certificate of PW.2 from Head Master. On 06.01.2013, PW.10 rushed to the Tollgate of Vemulawada and apprehended the appellant herein and secured the presence of mediators. He interrogated the appellant and at that time, the appellant voluntarily confessed to having committed this offense. Then he recorded the confession of the appellant, affected the arrest of the appellant and sent him to Court for remand. Prior to being produced before the Trail Court, he was referred to medical examination. The matter was finally put to trial before the Court of I Additional Sessions Judge, Karimnagar where the matter was registered as Session Case No.5 of 2014. The prosecution examined as many as ten (10) witnesses. No witnesses were examined in defence and later on after recording the statement of the appellant under Section 313 of Cr.P.C, the Trail Court finally passed the impugned judgment of conviction which is under challenge in the instant appeal.
7. Opposing the judgment of conviction, the learned counsel for the appellant contended that from plain reading of the complaint Page 5 of 11 and the entire case of prosecution it appears to be highly improbable. The appellant has been wrongfully convicted based on insufficient and unreliable evidence and prosecution's case relies heavily on assumptions, presumptions and the testimony of interested witnesses without any substantial corroborative evidence. It was further contended that the validity of the date of birth certificate and the entries in the school records suggest that the prosecution does not seem to have proved its case beyond all reasonable doubts.
8. According to the learned counsel for the appellant, the appellant has been wrongfully convicted based on insufficient and unreliable evidence. It was argued that the prosecution's case relies heavily on assumptions, presumptions and the testimony of interested witnesses without any substantial corroborative evidence. The learned counsel for the appellant pointed out that the evidence presented by the prosecution is not only weak but also lacks the necessary support to establish the appellant's guilt beyond a reasonable doubt. Additionally, the learned counsel for the appellant highlighted the prosecution's failure to examine key witnesses such as the immediate neighbours of the appellant who Page 6 of 11 were in a position to provide crucial insights into the case. This omission is significant because these witnesses could have offered perspectives that might have contradicted the prosecution's claim. The learned counsel for the appellant further contends that there is an unexplained delay of 24 hours in filing the FIR after PW.1 took PW.2 to the hospital, which casts doubt on the veracity of the present case. By not including these testimonies, the prosecution has failed to present a comprehensive and balanced view of the events in question.
9. It was further contention of the learned counsel for the appellant that the validity of the date of birth certificate (Ex.P6) and the entries in the school records suggesting they were tailored to fit the prosecution's narrative, suggests that these documents were manipulated or selectively presented to create a misleading picture. Thus, undermining the credibility of the prosecution's case which ascertains their authenticity and relevance to the case.
10. Per contra, the learned Additional Public Prosecutor contended that perusal of the paper book is sufficient itself to establish commission of the offence by the appellant. She referred Page 7 of 11 to the statements of PWs.1 and 2 and also the other witnesses examined to show that the prosecution has been able to prove its case beyond all reasonable doubts. She further referred to the school certificate which was collected by the investigating agency wherein the date of birth of PW.2 in school certificate was reflected as 05.03.2002. Accordingly, as on the date of incident i.e. on 29.12.2013, PW.2 was aged around twelve (12) years which admittedly establish her being a minor.
11. According to the learned Additional Public Prosecutor from the deposition of PW.2, who is the victim girl, her deposition gives a clear capability of providing rational and coherent statement, thus, there does not seem to be any scope of interference to the judgment of conviction. It was also the contention that there was no reason to disbelieve the statement of PW.2, particularly when there was no animosity between the victim and the appellant and for these reasons prayed for rejection of the appeal.
12. Having heard the contentions put forth on either side and on perusal of records, certain facts which need to be taken note of, is the testimony of PW.2 which is not only consistent but also Page 8 of 11 remarkably detailed providing a comprehensive account of the event that took place. PW.2 has explicitly confirmed that the appellant as the perpetrator and has vividly described the ongoing sexual abuse and threats she endured over a significant period. Her statement paints a clear picture of the traumatic experiences she faced including specific times and circumstances under which the sexual abuse occurred. The medical examination conducted by the Doctors, who confirmed PW.2's pregnancy serves as a crucial corroborative evidence supporting her claim. This medical confirmation aligns with PW.2's timeline of events and substantiates her allegations against the appellant. The medical report adds a layer of objective evidence that reinforces the credibility of her testimony.
13. Furthermore, the testimony of PW.1, who is PW.2's mother, plays a significant role in corroborating PW.2's statement. PW.1 confirmed the details surrounding the revelation of the sexual abuse including the circumstances that led to the discovery of PW.2's pregnancy and the subsequent police report. PW.1's statement is consistent with PW.2's testimony providing additional validation of the narrative presented by P.W.2. Page 9 of 11
14. According to the contention of the appellant that PW.1 first sought medical attention for PW.2 which is then after twenty-four (24) hours she lodged FIR with the police. Then taking into the normal circumstances surrounding the delay in lodging the FIR, this Court finds that the complainant's delay of twenty-four (24) hours after consulting the Doctor is reasonable. It is not uncommon for individuals to take some time to process distressing information and decide on the appropriate course of action. This Court thus finds that the delay does not sufficiently undermine the credibility of the PW.1's actions or the seriousness of the allegations.
15. This Court had also taken into account the behaviour and the actions of the appellant as described by PW.2 and PW.1. The appellant's pattern of arriving home in a drunken state, his frequent quarrels with PW.1 and his violent behaviour towards both PWs.1 and 2 also contribute to a context that supports PW.2's allegations. The threats made by the appellant to kill PW.2 and her family members further underscore the gravity of the situation and the fear under which PW.2 was living. The police investigation, which included the examination and recording of statements from Page 10 of 11 PW.2 as well as visit to their home, also supports the credibility of PW.2's claim. The timely actions taken by PW.1 to report the abuse and the subsequent involvement of the police demonstrate a consistent and serious approach to addressing the allegations.
16. When this Court put a specific query as to why DNA test was not conducted to establish paternity, the learned Additional Public Prosecutor stated that PW.2 was carrying a pregnancy of five (05) months duration during which time a DNA test could not be performed. It is pertinent to note that while non-invasive prenatal tests (NIPTs) capable of determining fetal sex can be conducted as early as seven (07) to nine (09) weeks into pregnancy. The decision was made to avoid any potential risk to the life of PW.2 and the unborn child. This explanation is found to be reasonable under the circumstances to ensure the safety and well-being of both the victim and the fetus.
17. In the result, this Criminal Appeal is dismissed confirming the conviction recorded by the Trial Court dated 11.06.2014 in S.C.No.5 of 2014 for offence under Section 376 (2)(f)(i)(n) and section 506 of IPC and under Section 4 of the POCSO Act. This Page 11 of 11 Bench finds that the prosecution has been able to prove its case against the appellant beyond all the reasonable doubts. No costs.
18. As a sequel, miscellaneous applications pending if any, shall stand closed.
__________________ P.SAM KOSHY, J ___________________________ SAMBASIVARAO NAIDU, J Date: 16.07.2024 GSD