Telangana High Court
Kuntla Shiva, Warangal Dt., vs State Of Telangana, Rep Pp., on 20 June, 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 Nos.189, 211 and 339 of 2015
COMMON JUDGMENT:
(per the Hon'ble Sri Justice P.SAM KOSHY) These appeals are preferred by the three appellants - accused under Section 374(2) of the Cr.P.C. The challenge in these three appeals is to the common judgment of conviction dated 30.02.2014 passed by the Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge, Warangal in Special Case No.15 of 2014.
2. Heard Mr. Nazeer Khan, learned counsel for the appellants and Ms. Shalini Saxena, learned Additional Public Prosecutor appearing for the respondent - State.
3. Vide the impugned judgment, the three appellants have been found guilty for the offences punishable under Section 342, 366, 376D, 506 read with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC') and Section 5(g) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the 'POCSO Act'). Upon being convicted for the aforesaid offences, the three appellants stand sentenced to undergo rigorous imprisonment for one year with fine of Page 2 of 13 Rs.1000/- each for the offence under Section 342. Likewise, they have also been convicted and sentenced to suffer rigorous imprisonment for three years with fine of Rs.1000/- for the offence under Section 366, 506 read with 34 of IPC. Similarly, all the three appellants have also been convicted and sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 376D of IPC and Section 5(g) read with Section 6 of the POCSO Act with fine of Rs.25,000/- each with default stipulation as well.
4. The case of the prosecution in brief, as is reflected, from the charge-sheet is that on 31.12.2013 at around 11:15 hours PW.1, the victim aged around 16½ years lodged a complaint at Raghunathpura Police Station stating that on the previous day when she was travelling from Hanamkonda to Bhongir along with PW.2, the cousin the PW.1, enroute they stopped at M.G.M. Hospital, Warangal to visit her cousin who was hospitalized at the said hospital. Later they went to Hanamkonda in an auto and caught an auto so that they could be dropped at Ghanpur. The fare fixed for dropping them at Ghanpur was Rs.30/- and from there they went to Bhongir. In the auto that they had caught, apart from the driver there were two more persons sitting in front side along with the driver presuming the two persons Page 3 of 13 also to be passengers on the said auto, PWs.1 and 2 decided to go along with them so that they could reach Ghanpur at the earliest and from there to Bhongir. Midway, however, the three persons i.e. the driver of the auto and two other accompanies took a different route and took PWs.1 and 2 to an isolated dark area which was bushy as well. Forcefully they took PW.1 to the nearby field and the appellants one by one committed rape with PW.1 and did the act three times through the period between 10:00 PM to around 4:00 AM in the morning. Subsequently, they brought PW.1 back to the auto and were proceeding to drop her at Ghanpur. Enroute the appellants again planned to have commit rape with PW.1 which PW.1 heard sitting back side of the auto and in order escape their clutches she jumped from the auto, on account of which she fell on the road and suffered some injuries and was later on assisted by some passersby on the road and enroute they also met a police personnel who assisted them in going to the Government Hospital.
5. The said Government Hospital provided medical assistance to PW.1 and later on PW.1, the complainant, reported the matter to the police authorities on account of which Crime No.321 of 2013 for the offence under Section 342, 366, 376D, 506 read with 34 of IPC and Page 4 of 13 Section 5(g) read with 6 of the POCSO Act was registered. Subsequently, the three appellants were apprehended and sent to judicial custody and the entire prosecution case started. The matter was finally put to trial before the Court of the Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum- I Additional Sessions Judge, Warangal where the matter was registered as Special Case No.15 of 2014. The prosecution in all examined as many as eighteen witnesses. No witnesses were examined in defence and later on after recording the statement of the appellants under Section 313 of Cr.P.C, the Trial Court finally passed the impugned judgment of conviction which is under challenge in the instant three appeals.
6. Opposing the judgment of conviction, the learned counsel for the appellants contended that from plain reading of the complaint and the statements recorded during the course of investigation, the entire case of the prosecution appears to be highly improbable. It was further contended that even otherwise from the material evidences which have been collected then also the prosecution does not seem to have proved its case beyond all reasonable doubts. Page 5 of 13
7. According to the learned counsel for the appellants the deposition of PW.1 itself is highly doubtful and is unreliable as at one stage it was contended that on the previous time they had travelled on the same route by bus and at another stage they say that since she was allergic to travel on bus they intended to go by an auto. This according to the learned counsel for the appellants makes the deposition of PW.1 not worthy accepting. It was also the contention that when compared the statement of PWs.1 and 2 it would give an indication that there was sufficient time available with PW.1 and PW.2 to raise an alarm and seek help while they were travelling on road, particularly, when they sensed that the appellants were taking them to a different direction and further had also diverted from the main road. The non-raising of any human cry by PWs.1 and 2 makes the prosecution case more vulnerable and the judgment of conviction needs to be interfered.
8. It was the further contention of the learned counsel for the appellants that PWs.1 and 2 both have stated the appellants to have stopped the auto enroute for the purpose of liquor. Even at that point of time they did not think it proper for escaping from the clutches of these people and also by raising an alarm seeking for Page 6 of 13 help. It was also the contention that even the independent witness PW.15 has not supported the case of the prosecution which further weakens its case and the benefit of which should go in favour of the appellants.
9. According to the learned counsel for the appellants, the prosecution has also not convincingly proved that the victim, PW.1 was a minor. The documents which have been produced are also unreliable as those have been obtained only for the purpose of lodging of the complaint showing her to be a minor. Other than this, the complainant has not been able to show any authentic document to establish her age and also prove the fact that she was a minor.
10. Lastly, it was contended by the learned counsel for the appellant that considering the fact that even if the prosecution case is accepted in its toto, it would reflect that the appellants enroute had purchased liquor and condom and used those condoms in the course of committing the offence which therefore should be given its due weightage and the offence should not be treated as an aggravated penetrative offence and considering these aspects the sentence may be reduced for a fixed tenure rather than the life imprisonment awarded by the Trial Court.
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11. Per contra, the learned Additional Public Prosecutor contends that perusal of the paper book is sufficient itself to establish commission of the offence by the three appellants. The learned Additional Public Prosecutor referred 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 also referred to the school certificate which was collected by the investigating agency wherein the date of birth of PW.1 in school certificate was reflected as 06.05.1997. Accordingly, as on the date of incident i.e. on 30.12.2013, PW.1 was aged around sixteen years and few months which admittedly establish her being a minor.
12. According to the learned Additional Public Prosecutor from the deposition of PW.1 which stands corroborated from the deposition of PW.2 and which further gets substantiated from the evidence of PW.15 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 PW.1 of PW.2 particularly when there was no animosity between the victim and the appellants and for these reasons prayed for rejection of the appeals.
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13. Having heard the contentions put forth on either side and on perusal of records, certain facts which needs to be appreciated is, first the deposition of the victim itself wherein she has categorically narrated the entire incident that transpired right from the time she stepped the auto of the appellants. Secondly, the said statement of PW.1 stands duly corroborated from the evidence of PW.2 who also has practically stated the same that which have been narrated by PW.1. As such, there does not seem to be any contradiction or omissions in the evidence of PW.2 as compared to the statement of PW.1. Further what is also reflected is the date of birth of PW.1 reflecting it to be 06.05.1997. The same has been issued from ZPPSS, Perikaid which has been accepted before the Trial Court as Ex.P3 and which has also been proved by PW.4 who is the headmaster of ZPSS School, Perikavidu. The evidence of PW.4 so far as the proving date of birth has got unchallenged as the appellants did not cross-examine the said witness which is Ex.P3 and the evidence of PW.4 establishes convincingly the fact that the victim being a minor. There is no strong material available on record to even doubt the document Ex.P3 or the deposition of PW.4 as regards PW.1's actual age is concerned.
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14. From the evidence which has come on record, what is also apparent is the fact that from the statement under Section 313 Cr.P.C that was recorded in respect of the three appellants, nowhere have they denied the fact that they were not travelling in the said auto on the fateful day. Likewise, nowhere have these three appellants also disputed the fact that PW.1 and PW.2 having travelled along with them on the auto on the fateful day. This further strengthens the case of the prosecution of PWs.1 and 2 having travelled in the auto where the three appellants were already sitting in it. The statement of PW.15 further strengthens the case of the prosecution who also testifies that on the fateful day, he had seen PWs.1 and 2 being taken in the auto of the appellants.
15. To make things worse for the appellants, there is not even a whisper on their part to state that they have been falsely implicated in the case, there was no enmity between PWs.1 and 2 with that of the appellants so as to falsely implicate them or even having acquaintance with PWs.1 and 2. In the absence of such materials, this Bench also finds it difficult to disbelieve the version of PWs.1 and 2 who have specifically identified these persons. Page 10 of 13
16. Yet another fact which goes against the appellants is the spot inspection done in presence of the mediators and upon visiting the spot the collection of certain incriminating materials further proves the case against the appellants. The medical report of PW.1 who was examined immediately upon her report to the police on the early hours of 31.12.2013 shows that the Doctor has opined of PW.1 to have been subjected to sexual intercourse. In addition, the Doctor who conducted the medical examination also found certain injuries on the lower end of the upper arm, so also the abrasions on the left side of the back and also abrasions on the left knee, all of which further proves the case of the prosecution.
17. It would be trite at this juncture to refer to a few decisions of the Hon'ble Supreme Court on this subject matter. The Hon'ble Supreme Court in the case of State of Punjab vs. Gurmit Singh and Others 1 held at paragraph No.21 as under:
"...If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration 1 (1996) 2 Supreme Court Cases 384 Page 11 of 13 required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
18. Similarly, the Hon'ble Supreme Court in the case of Sadashiv Ramrao Hadbe v. State of Maharashtra 2 held as under:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."
19. Further, the Hon'ble Supreme Court relying upon the case of Gurmit Singh (supra) in Raju vs. State of Madhya Pradesh 3 decided the conviction based on sole testimony of the prosecutrix and held as under:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no 2 (2006) 10 SCC 92 3 (2008) 15 SCC 133 Page 12 of 13 corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
20. In yet another case of similar nature, relying upon the above three judgments, the Hon'ble Supreme Court recently in Manak Chand alias Mani vs. State of Haryana 4 held at paragraph Nos.7 and 9 as under:
"7. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the 4 2023 SCC OnLine SC 1397 Page 13 of 13 prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh (1996) 2 SCC 384.
9. Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence."
21. For all the aforesaid reasons and the judicial precedents referred above, we do not find any strong case made out by the appellants calling for an interference with the impugned judgment of conviction. The appeals sans merit and are accordingly dismissed. No costs.
22. As a sequel, miscellaneous applications pending if any, shall stand closed.
__________________ P.SAM KOSHY, J ___________________________ SAMBASIVARAO NAIDU, J Date: 20.06.2024 GSD