Telangana High Court
Jerpula Devender, Warangal Dt., vs The State Of Telangana, Rep Pp., on 7 June, 2024
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.155 of 2017
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha) This criminal appeal is filed against the judgment of the trial Court in Special Sessions Case No.33 of 2014 (Crime No.39 of 2014 of PS Ghanapur Mandal dated 05.08.2015).
2. Jarpula Devender aged 22 years/accused found guilty for the offences under Sections 452, 376-D of the Indian Penal Code (for short 'IPC'), Section 5(g) r/w. Section 6 of Protection of Children from Sexual Offences Act (for short 'POCSO Act') and convicted for life imprisonment and convicted for fine. Against the said order, he preferred the appeal.
3. In the appeal it is mainly contended that at the time of incident, victim girl has not raised any cries and the incident occurred at her house and it was also contended that victim/P.W.1 has not sustained any injuries to her private parts and there is no deposit of semen and spermatozoa. P.W.9/Doctor clearly stated that he collected two swabs and 2 two slides from her vagina and also sent to FSL but nothing was detected on the said swaps as per the medical evidence there was no recent sexual intercourse. It was further contended that incident took place on 07.03.2014 and complaint was made on 09.03.2014 i.e., with a gap of 48 hours and there is no explanation about lodging complaint in delay though accused along with three persons participated in committing the offence but their names were not shown in FIR and it shows that it is a created and false case and requested this Court to suspend and set aside the judgment passed by the trial Court.
4. Heard arguments of both sides and perused the entire evidence on record.
5. Father of the victim gave complaint on 09.03.2014 and stated that on 06.03.2014 he went to Madhukar Reddy Hospital at Parkal and got operated to his leg for injury and was admitted in the said hospital and also stated that his wife is staying with him in the hospital. On 07.03.2014 his son came to Parkal Hospital and brought food for them and her daughter aged 16 years, Inter 2nd year alone stayed at their house and at that time i.e., on 07.03.2014 at about 12 3 noon two persons of their village Nerella Narender, aged 18 years and Jarupula Devendar, aged 19 years tress passed into their house and sexually assaulted her daughter one after the another and also threatened her if she informs the same to anybody she will be killed. As his daughter felt humiliated tried to commit suicide by consuming pesticide which was available in their house. After that she said the same to Kannuri Vijender and Kannuri Puja who stay at the backyard of their house where upon they shifted his daughter to RMP Doctor wherein he said that her condition was serious upon which again they took his daughter to Lalitha Nursing Home and got her admitted in the said hospital, the said facts were informed by Vijender to him through phone upon which he rushed to the hospital and saw his daughter. His daughter stated him about the entire incident. Later on 08.03.2014 evening at 4 P.M doctor informed him that his daughter condition is serious and advised him to take her to Warangal and on the same day evening he shifted his daughter to Max Care Hospital at Hanamkonda and got admitted her at about 5 P.M and she underwent treatment and therefore, in the complaint he requested to take 4 necessary action against the persons who committed rape against her daughter. The complaint is registered as Crime No.39 of 2014 under Section 376-D of the IPC, Criminal Amendment Act, 2013, Section 5(g) r/w Section 6 of POCSO Act-2012 and FIR was issued.
6. In order to prove the case, the prosecution in all examined P.Ws.1 to 17 and Exs.P.1 to P.10 and M.Os.1 and 2 are marked.
7. P.W.1 is the victim admitted that her date of birth is 14.03.1996. On 06.03.2014, her father was admitted in the hospital of Madhukar Reddy, Parkal for the operation of his legs and her mother was attending on him. On 07.03.2014, at about 10.00 A.M her mother called her brother and informed him to bring meals to them. Accordingly her brother left the home by carrying meals carrier. As such, she was alone in the house and preparing for the examinations. At about 12.00 noon, the Juvenile and the accused entered into the house and the accused caught hold of her hands and gagged her chunni in her mouth. The Juvenile removed her clothes and committed rape on her against her wish. They closed her mouth with chunni. Thereafter, the accused also 5 forcibly committed rape on her against her consent. After committing rape, while leaving the house, both of them threatened her with dire consequences of killing her if the same is revealed. After the incident, she felt insulted and humiliated. As such, she consumed pesticide immediately after the said incident. Thereafter, she came out of the house and went to the back side of the house and informed the same to P.W.3 and his wife i.e., P.W.4 that she consumed pesticides and when they enquired the reasons, she narrated the incident. She was shifted to RMP doctor at Gollapally. As her condition was serious, he advised to shift to a big hospital at Parkal. As such, she was shifted to Soundarya Hospital, Parkal, from there, she was shifted to Lalitha Devi Hospital, Parkal. It was further stated that her parents also came to Lalitha Devi Hospital when her father questioned her, she informed the rape committed on her by the Juvenile and the accused. Thereafter, she lost consciousness. She was shifted to Max Care Hospital, Hanamkonda on 20.03.2014 and her statement was recorded by Magistrate wherein she stated that actually juvenile is her classmate in High School and also stated that accused committed rape on 6 her for 15 minutes by each of them and at the time of incident she was wearing Punjabi Dress but she did not handed over dress to the police too. She stated that she regained consciousness after ten days and Magistrate recorded her statement after regaining consciousness as such she do not know as to when lady Doctor examined her. She further stated that her marriage took place about two months back. P.W.1 was examined on 23.03.2015 two months after her marriage.
8. P.W.2 is father of the victim and he reiterated the contents of the complaint. He stated that by the time victim was brought to the Hospital, victim was not in a position to speak and she was not coherent. P.W.1 regained consciousness after eight or nine days. He scribed complaint through a known person, but he do not remember his name. P.W.1 was admitted in the hospital for about 13 to 14 days.
9. P.W.3 is K.Vijender to whom victim girl informed about the incident immediately. He shifted her to RMP Doctor. He stated that Doctor himself came to his house along with the victim and got vomited P.W.1 and advised to shift the victim to any big hospital. Then he along with his wife shifted P.W.1 7 to Soundarya Hospital, Parkal. But the doctors advised to shift her to any other big hospital. Then they shifter her to Lalitha Hospital. In the meanwhile, P.W.2 and his wife came to Lalitha Nursing home and he admitted the victim in Max Care Hospital at Hanamkonda. Even in the cross- examination he stated that RMP Doctor brought to his house and got her vomited.
10. P.W.4 stated that he took P.W.1 along with P.W.3 to on motor cycle to RMP Doctor and RMP Doctor got vomited and advised to shift her to any big hospital. Later she was shifted to another hospital at Parkal. It was stated that P.W.3 informed P.W.4 about cause of victim consuming poison.
11. P.W.5 is an auto driver who shifted her to Soundarya Hospital, Parkal and from there to Lalitha Hospital and he also stated that through P.W.3, he came to know about the cause of consuming poison by the victim.
12. P.W.6 is the RMP Doctor who got her vomited as her condition was serious advised her to shift her to any big hospital. He stated that after seeing her at his house he went to their house and got washed her stomach.
8
13. P.W.7 is Physician in Lalitha Nursing Home, Parkal. He stated that P.W.1 brought to the Hospital with a complaint of consuming unknown pesticide. They again washed stomach and provided treatment as her condition became worsen advised to shift another hospital. He stated that she was unconscious and mentioned in the case sheet as per the information furnished by the attendants that P.W.1 had consumed poisonous pesticides.
14. P.W.8 is the panch witness who recovered Ex.P.2 and also recovered M.Os.1 and 2.
15. P.W.9 is the Assistant Professor in CKM Maternity Hospital, Warangal. He stated that P.W.1 was admitted in their hospital on 12.03.2014 and also stated that she was not in conscious state of mind on 08.03.2014 due to poisoning. After taking consent of her mother, he examined her private parts and found that hymen was ruptured. He found emanating foul smell and blood stained discharge. He collected two swabs and two slides from her vagina to send them to the FSL. After receipt of the FSL Report, he gave final opinion that there was no medical evidence of recent sexual intercourse held on P.W.1. Ex.P.3 is the preliminary 9 report. Ex.P.4 is the final opinion. Ex.P.5 is the FSL report. In the cross-examination he stated that patient was conscious and responding to the examination. He further stated that patient was conscious and was responding to her examination. It is mentioned against the mental status of the victim as "patient on ventilator". When the patient is on ventilator, she will be kept on ET Tube covering mouth to lungs and the patient may not speak, but she can respond to the treatment and examination. He mentioned in his report that the Hymen was not intact and also stated that there is no difference between the writings of brief history and other report, but they are in different inks.
16. P.W.10 is the Principal of Siddhartha Junior College, Bhupalpally. He stated that P.W.1 was studying Intermediate in CEC group in their college and her date of birth is 03.06.1996 and he stated that the said date of birth entered in their admission register as per the date of birth mentioned in SSC certificate.
17. P.W.11 is the Principal, Sanghamitra Degree College, Bhupalpally. He stated that accused is student and studying degree and born on 08.05.1995. He stated that accused was 10 admitted in their college on 06.06.2013 for academic year 2013-2016.
18. P.W.12 is the Assistant Professor, FMD, KMC, Warangal. He conducted the potency test under Ex.P.8 on the accused.
19. P.W.13 is the WHC, P.S, Mattewada. On 09.03.2014 she received complaint from P.W.2, registered Crime No.39 of 2014 and issued F.I.R under Ex.P.9.
20. P.W.14 is the Compounder, Soundarya Nursing Home, Parkal. He got her stomach washed. It was stated that when the doctor was not available he will send the patients back without attending and he has not handed over the vomited substances to the police.
21. P.W.15 is the Woman Head Constable, P.S, Venkatapur who recorded statement of P.W.1. As per the instructions of DSP, Probationary, she stated that P.W.1 did not specifically stated that accused No.1 gagged her mouth with chunni and caught hold her hands.
22. P.W.16 is the ACP, Abids, Hyderabad. He stated that earlier he workded as SDPO, Incharge, Muglugu. On 09.03.2014, received intimation about gang rape through 11 P.W.13 immediately rushed to the P.S, Ghanapur Mandal and received express FIR from P.W.13. He examined P.W.2 and recorded his statement and conducted scene of panchnama. The doctors informed that P.W.1 was unconscious and under treatment. Therefore, he could not record her statement. He gave requisition to the doctors for conducting medical examination to find out whether any rape took place on the victim. On 10.03.2018, he gave requisition for recording the dying declaration of P.W.1 and accordingly, the dying declaration was recorded. On 16.03.2014 he arrested both the accused and dying declaration was recorded on 17.03.2014. He collected material objects from Max Care hospital and forwarded them to RFSL through SDPO, Mulugu on 22.03.2014 and filed requisition before the Court for recording the 164 Cr.P.C. He did not collect any case sheet from the hospital at Parkal and Max Care hospital.
23. P.W.17 recorded the statement of P.W.1 under Section 164 Cr.P.C at JFCM, Parkal. On completion of the investigation he filed charge sheet. It was suggested that he is not aware of any circular issued by the DGP and that investigation under POCSO Act shall be done by SDPO's only. 12
24. A copy of the judgment in J.C.C.No.14 of 2015 dated 21.01.2022 filed before the Court in which the Juvenile who is conflict with law is found guilty for the offences punishable under Sections 450, 376-D IPC and Section 5 (g) R/w.6 of POCSO Act (Criminal Law Amendment Act-2013). Accordingly he is convicted under Section 255(2) of Cr.P.C and also sentenced for four months, one month and three months respectively and all the sentences shall run concurrently.
25. Now it is for this Court to see whether the judgment of the trial Court is on proper appreciation of the facts or not. The offence took place on 07.03.2014, whereas, the complaint was lodged on 09.03.2014 i.e., two days after the alleged incident and the inordinate delay in filing the appeal is not explained anywhere. P.W.2 in the complaint stated that he came to know about the incident through P.W.3 and his wife when his daughter was shifted to Lalitha Nursing home though she was undergoing treatment he gave complaint. This is a peculiar case in which the victim girl immediately after commission of the offence attempted to commit suicide by consuming poison and she requested the neighbors i.e., 13 P.W.3 and his wife to inform her parents about the consuming poison. When they questioned the reasons hen she stated that juvenile and present accused in this case committed sexual assault on her.
26. P.W.3 tried his best to save her as such immediately took her to RMP Doctor and he got her vomited and advised to shift to better hospital as such initially she was shifted to Parkal and Soundarya Hospital and again to Lalitha Nursing Home as such unless and until she was admitted in Lalitha Nursing Home.
27. P.W.2/father of the victim who was admitted in hospital on 06.03.2014, for operation of legs could not reach there as such he came there on 09.03.2014. Therefore, the argument of the defence counsel that there was inordinate delay and it was not explained properly is not tenable.
28. In this case, the trial Court based conviction on the solitary testimony of the prosecutrix and now it is for the Court to see whether it can be relied upon or not. As per the medical evidence there was no recent sexual intercourse but her hymen was ruptured and it was not intact. When P.W.1 is alone in the house at about 12.00 noon juvenile who was 14 her classmate and another trespassed into the house committed sexual assault on her one after another and threatened with dire consequences as such she was insulted and humiliated and intended to commit suicide by consuming pesticide poison and informed the same to her neighbors i.e., P.W.3 and his wife.
29. There is no suggestion at any point of time the eye of the witnesses that there was enmity between accused and P.W.1 or their families as such there is no reason for her to depose falsely against the accused. It was also not elicited from P.W.1 that there was any love affair between accused and P.W.1 as such they came to her house in the absence of her parents.
30. As per the case of prosecution, juvenile is only her classmate and nothing else. Both the accused taking advantage of loneliness of the victim trespassed into her house while she was alone and committed sexual assault. If at all no such incident happened on her there is no reason for her to commit suicide and immediately after the offence, she informed the cause of the suicide to P.W.3. She was not in consciousness for 12 or 13 days period. P.W.3 in turn 15 informed about the incident to her father immediately through cell phone as such it cannot be said that P.W.2 and P.W.1 foisted a false case against the accused. There no motive for them to implicate the accused falsely at the cost of reputation of their family and thus the solitary testimony of the prosecutrix can be relied upon. Though, in the medical evidence it was stated that there are no traces of semen on her private parts and there is no evidence of recent sexual intercourse. Her hymen was ruptured and thus the said medical evidence can be taken as corroborative piece of evidence to the testimony of P.W.1.
31. The counsel for the defence argued that P.W.1 ought to have raised her voice but she stated that they gagged her mouth with chunni and committed offence one after another. One of the accused caught hold her legs as such there is no possibility to her to run out of the house or raise cries and also no chance to escape from the accused from sexual assault.
32. Though, it was stated that her dying declaration was recorded by Magistrate it was not placed on record and 164 Cr.P.C statement was not available on record. P.Ws.4 and 5 16 who shifted her came to know about the incident through P.W.3 only.
33. The trial Court rightly considered the entire evidence on record and convicted the accused but the accused was also aged 19 years as on the date of incident and victim was aged 18 years and the victim girl marriage was performed on 23.01.2015 itself. Accused in jail from 05.08.2018 onwards i.e., for nearly 9 years.
34. The counsel for the accused relied upon the citation in "Manoj Mishra Alias Chhotkau Vs. State of Uttar Pradesh" 1 wherein it was held that:
"the evidence of the prosecutrix and the medical evidence would establish the charge of rape."
35. Considering the age of the accused at the time of commission of offence and the period of his detention along with the gravity of the offence, this Court finds that it is just and reasonable to modify the sentence to the period already undergone by the accused and is liable to be convicted under Section 376 IPC and not under Section 376 D IPC. 1 2021 (SCC) 763 17
36. In the result, the Criminal Appeal is allowed in part. The conviction and sentence of imprisonment in Special Sessions Case No.33 of 2014 (Crime No.39 of 2014 of PS Ghanapur Mandal dated 05.08.2015), imposed against the accused for the offences under Sections 452, 376-D of IPC, is modified to that of Section 376 of IPC and is reduced to the period already undergone by him. The appellant/accused shall be set at liberty forthwith, if he is not required in any other case. M.Os.1 to 2 shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE:07.06.2024 Bw