Telangana High Court
Mydam Arun vs The State Of Telangana on 28 June, 2022
Bench: K.Surender
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.67 of 2021
JUDGMENT:
1. The appeal is filed questioning the conviction under
Section 376(2)(i) of IPC and sentenced to undergo rigorous
imprisonment for a period of ten years and to pay fine of
Rs.5,000/-, in default, to suffer simple imprisonment for a
period of two years by Judgment dated 11.02.2021 in
Spl.S.C.No.63 of 2018 passed by the Special Judge for the trial
of Cases under Protection of Children from Sexual Offences
Act-cum-IV Additional District and Sessions Judge at
Warangal (for short 'the Sessions Judge').
2. The Special Sessions Judge on the basis of the evidence
produced by the prosecution, who are witnesses P.Ws.1 to 14
and also relying upon Exs.P1 to P8, convicted the appellant as
stated above.
3. The case of the prosecution is that the father (P.W.3) of
victim (P.W.1) filed a complaint Ex.P1 on 18.07.2017 stating
that his daughter was aged 13 years and in the evening of
17.07.2017, she went in search of her mother, who was
2 KS, J
Crla_67_2021
working as a house-maid. She went and enquired in the house
of one Yellaiah and Premraj. When she was coming out of the
house of Premraj, the appellant/accused herein forcibly took
her inside and committed rape on her. The said incident was
reported by the victim for which reason, complaint was filed.
The said complaint was received on 18.07.2017 at 00.30 hours
and registered for the offence under Section 376(2)(i) of IPC
and Section 3(A) r/w 4 of the Protection of Children from
Sexual Offences Act, 2012 (for short 'the POCSO Act'). Having
concluded the investigation, charge sheet was filed and
charges were also framed for the said offences.
4. Further the case of the prosecution is that after filing of
the complaint, the victim (P.W.1) was examined by P.W.6
Doctor, who did not find any external injuries on the body, but
issued a final report Ex.P5 stating that there was recent
evidence of sexual intercourse. ExP5 was given on the basis of
Ex.P4 RFSL report, which report found that after testing the
vaginal swabs and slides collected during the medical
examination of P.W.1/victim girl, semen and spermatozoa
were found on her wearing apparel.
3 KS, J
Crla_67_2021
5. The learned counsel for the appellant submits that the
case is false one for the reason of Auto Drivers' Union
disputes. Both the accused and the father/PW3 of the victim
girl/P.W.1 are auto drivers. For the said reason of disputes,
the appellant was falsely implicated in the rape case. Further,
as seen from the complaint, there is no mention of P.W.2,
mother coming to the rescue of P.W.1 finding her daughter
was being raped by the appellant/accused. The said evidence
of P.W.2/mother is subsequent addition to the prosecution
case and for the reason of false statements being given, a
false case was made out by introducing the mother. For the
said reason, the entire case of the prosecution has to be
disbelieved and the appellant be acquitted.
6. The learned Assistant Public Prosecutor submits that the
evidence of P.Ws.1 and 2 is convincing and their evidence is
corroborated by the medical evidence under Ex.P5, whereby
the Doctor/P.W.6 has found that there was recent evidence of
sexual intercourse and the presence of semen and
spermatozoa on the wearing apparel of PW1 also conclusively
proves the allegation of rape against the appellant.
4 KS, J
Crla_67_2021
7. The complaint Ex.P1 was lodged by the father/P.W.3,
does not make a mention about the presence of P.W.2.
However, P.W.1 had given information regarding the rape
committed by the appellant/accused on the basis of which
Ex.P1 was lodged.
8. The statement of P.W.1/victim corroborates with the
initial complaint made under Ex.P1, wherein it is mentioned
that P.W.1 has informed that this appellant had raped her.
Subsequent to the compliant filed, the victim girl/P.W.1 was
examined by the Doctor/P.W.6. It was also found that the
vaginal swabs collected for the purpose of test proved positive
for the presence of spermatozoa and semen.
9. The evidence of P.W.1 regarding the rape committed on
her by the appellant/accused cannot be treated as false for the
reason of not mentioning the name of P.W.2 in the complaint.
Even if the evidence of P.W.2 is excluded from consideration,
the evidence of P.W.1 is convincing and as stated above,
corroborated by medical evidence.
5 KS, J
Crla_67_2021
10. The Hon'ble Supreme Court in the State Of U.P. vs M.K.
Anthony1 held at para 10 as follows:
"10. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed, it
is undoubtedly necessary for the court to scrutinise the evidence
more particularly keeping in view the deficiencies, draw-backs
and infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general tenor
of the evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not touching the core
of the case, hyper-technical approach by taking sentences torn
out of context here or there from the evidence, attaching
importance to some technical error committed by the investigating
officer not going to the : root of the matter would not ordinarily
permit rejection of the evidence as a whole. If the court before
whom the witness gives evidence had the opportunity to form the
opinion about the general tenor of evidence given by the witness,
the appellate court which had not this benefit will have to attach
due weight to the appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest and truthful
witnesses may differ in some details unrelated to the main
incident because power of observation, retention and
reproduction differ with individuals."
11. The statement of PW1, PW2 and the corroborating
medical evidence leave no reason to doubt the prosecution
case. The defence taken by the appellant is also not believable
as no father would make a complaint of rape thereby risking
social stigma and an indelible impression of his daughter
AIR 1985 SC 48
6 KS, J
Crla_67_2021
being a rape victim. In the said circumstances, there are no
grounds to interfere with the findings of the learned Sessions
Judge.
12. Accordingly, the criminal appeal is dismissed. As a
sequel thereto, miscellaneous applications, if any, shall stand
closed.
________________________
JUSTICE K.SURENDER
Date: 28.06.2022.
kvs
7 KS, J
Crla_67_2021
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.67 of 2021
Date: 28.06.2022
kvs
