Telangana High Court
Mohd Raheem, Hyd vs Sho, Punjagutta P.S., Hyd on 21 November, 2024
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.125 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant was convicted for the offence under Section 376 IPC and sentenced to undergo imprisonment for life vide judgment in S.C.No.412 of 2012 dated 25.01.2016 passed by the V Additional Metropolitan Sessions Judge(Mahila Court), Hyderabad. Aggrieved by the same, present Appeal is filed.
2. Heard Sri P.Prabhakar Reddy, learned Senior Counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for the State.
3. Briefly, the case of the prosecution is that the appellant was working as an Attender in the Rajbhavan. His marriage with P.W.1/complainant had taken place in the year 1994 and she has two daughters, who are the victims, examined as P.Ws.2 and
3. All of them were staying in the quarters in the Raj Bhavan.
4. On 09.10.2010, P.W.1 went to the Osmania Hospital at 9.00 a.m and returned at 1.00 p.m. When she came back, P.W.2 opened the door and second daughter/P.W.3 was in the bath room. P.W.1 questioned as to what happened and why were they 2 scared, they did not state anything. However, on repeated questioning by P.W.1, P.W.3 informed that his father was chasing, she went inside the bathroom and closed the door. On further questioning, both P.Ws.2 and3 informed that when P.W.1 went to Karnataka to visit her father in the third week of December, 2009, the appellant raped both P.W.2 and P.W.3, daughters repeatedly, during the said time. Both P.Ws.2 and 3 further informed that the appellant threatened to die if they reveal his acts to anyone. On the same day, the appellant, returned home and when questioned, he fell on their feet. P.W.1 then went to her parents in Karnataka and brought them from Karnataka. Panchayat was held in the presence of P.W.4/father of P.W.1, P.W.5/brother of the appellant, P.W.6, who is brother- in-law of the appellant and other elders. It was decided by the elders that according to Islamic law, if the father rapes the daughter, he should not be allowed to stay in the house, as such, the appellant left the house. Again four or five days thereafter, he came to the house on the ground that there were some articles in the house. Thereafter, complaint was filed with the police on 02.11.2010.
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5. The police conducted investigation and filed charge sheet against the appellant. Learned Sessions Judge found favour with the version of P.Ws.1 to 3 and convicted the appellant.
6. Learned counsel appearing on behalf of the appellant would submit that there is delay of nearly ten months in lodging the complaint. According to P.Ws.2 and 3, the date of committing rape on them was on 18.12.2009 and 20.12.2009, however, the incident was disclosed on 09.10.2010 to P.W.1. There is a delay of ten months in disclosing the incident to P.W.1. The complaint was filed on 02.11.2010 again with the delay of 22 days after P.W.1 being informed. It is not in dispute that P.W.1 gave divorce (khula) to the appellant on 14.10.2010. Since Khula divorce was not accepted, false complaint was filed on 02.11.2010.
7. Learned counsel further submitted that the conduct of P.W.1 is abnormal and unnatural since P.W.1 left both the children in the house and went to Karnataka to meet her parents after they complained of rape. If at all the daughters complained that their father raped them, the mother would have taken both the children along with her to Karnataka and would not have left them in the house.
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8. Learned counsel further argued that according to P.W.1, she went to Karnataka on 16.12.2009 and returned to Hyderabad after ten days. P.W.1's father/P.W.4 was operated. Even according to her admission, the appellant visited her father when he was in hospital and the appellant also went there. Thereafter, all of them returned to Hyderabad. In the said circumstances the question of committing rape does not arise. He relied on the judgment of the Hon'ble Division Bench of Punjab and Haryana High Court reported in the case of Avinash Kumar Sharma @ Avinish v. State of Haryana 1. The Division Bench of Punjab and Haryana High Court was dealing with the case wherein it was alleged that the accused there in who was a Maths teacher committed rape on the victim girl. In the facts and circumstances, the Hon'ble Division Bench found that when there was delay of six months in lodging the complaint and further medical examination did not reveal that there was any sexual assault by the appellant, benefit of doubt was extended. The Hon'ble Division Bench further found that the statement of the victim girl cannot be termed as gospel truth without any corroboration through medical evidence.
1 CRA-X-1833-DB-2014 (O&G), dated 09.08.2022 5
9. Learned counsel also relied on the judgment of the Hon'le Supreme Court in P.Yuvaprakash v. State, rep. by Inspector of Police 2 , the Hon'ble Supreme Court was dealing with a case wherein the victim's age was not proved. Learned counsel argued that though it was alleged that at the time of the incident, victims were aged 13 and 14 years, nothing was placed on record.
10. On the other hand, learned Additional Public Prosecutor supported the findings of the learned Sessions Judge and argued that delay is of no consequence since the victims are the daughters of the appellant. Since the appellant threatened both his daughters, they have not informed their mother and after revealing about the rape after persistent questioning by the mother/P.W.1, complaint was filed.
11. The case of the prosecution is that the appellant, who is the father of P.Ws.2 and 3 committed rape on minor daughters, who were aged 13 and 14 years. The appellant was convicted under Section 376 of IPC, as such, the argument of the learned counsel for the appellant that the age was not proved, is of no consequence. The appellant was not convicted for committing rape on minor girls, as such the judgment relied on by the 2 2023 SCC OnLine SC 846 6 learned counsel in P.Yuvaprakash's case (supra) is of no help to the appellant.
12. The main thrust of the argument of the counsel is that there was a delay of ten months in lodging the complaint. The said delay was in fact, explained by the victims themselves stating that the appellant had threatened to kill himself if at all the incidents were revealed by them to anyone. To the recollection of the victims, the rape was committed on them when their mother/P.W.1 went to her father's place in Karnataka. The exact dates were given, however, any discrepancy regarding date will be of no consequence since the victim girls had revealed the incident after ten months of the incident and the girls were continuously raped in the absence of P.W.1.
13. As seen from the evidence of the Doctor/P.W.8, she examined both P.W.2 and P.W.3. According to the Doctor, hymen was not intact for both girls and vagina was admitting two fingers for both the girls. According to P.W.8, the girls may be habituated to sexual intercourse.
14. It is the case of P.W.1 that after her daughters P.Ws.2 and 3 informed her, she confronted the same with the appellant. 7 Thereafter, panchayat was held, in which, several elders were present including P.Ws.4, 5 and 6. P.W.4, who is the father of P.W.1 stated that in the Panchayat, the appellant remained silent when questioned about his committing rape on the girls and it was decided that the appellant will not reside with P.Ws.1 to 3, as such, he left the house, however, he again came back. For the said reason, they have decided to lodge report.
15. The appellant was working as an attender, who had permanent job. P.W.1 gave divorce (khula). In Muslim community, Khula means divorce given by the wife to the husband. The reason given by P.W.1 is because the appellant committed such heinous crime on their children, she divorced the appellant. Though P.W.5/brother of appellant and P.W.6/brother-in-law of the appellant were declared hostile, however, they stated that they attended panchayat regarding disputes in between P.W.1 and the appellant. Both P.Ws.5 and 6 having admitted that there was panchayat, ought to have given details as to why a panchayat was held. The prosecution version as narrated by P.W.1 and P.W.4 that panchayat was held is corroborated by P.Ws.5 and 6. Evidence of P.Ws.5 and 6 lend corroboration and credibility to the version of P.W.1. 8
16. In such cases, where the father rapes his two daughters continuously over a period of time, it cannot be said that the events that transpired has to be given with mathematical precision. Both the victims/P.Ws.2 and 3 were living in the house and their father committed rape on them. Minor discrepancies in the evidence are bound to occur. Such discrepancies which do not go to the root of the case, cannot be considered. No reason is given as to why wife and two children of the appellant would speak against him on the allegation of committing rape. The evidence of both P.Ws.2 and 3 is believable which is supported by Doctor's evidence and nothing is placed on record to suggest even remotely that they were speaking false against the appellant.
17. The judgment in Avinash Kumar Sharma's case has no application to the present facts of the case. That case was a solitary instance of rape and the delay of six months mattered. As already discussed, the present case is one of rape of two daughters by the father over a period of time continuously.
18. In view of above facts and circumstances, there are no grounds to interfere with the findings of well reasoned judgment of the trial Court.
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19. Accordingly, Criminal Appeal is dismissed. However, keeping in view the age of the appellant and also that the minimum punishment is 10 years, the sentence of life imprisonment is altered to 15 years rigorous imprisonment.
__________________ K.SURENDER, J ____________________________________ ANIL KUMAR JUKANTI, J Date : 21.11.2024 kvs