Telangana High Court

Mohd. Basheer Basheer vs The State Of Telangana on 20 September, 2022

Bench: A.Santhosh Reddy

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                     CRL.A.No.343 OF 2019
JUDGMENT:

This criminal appeal under Section 374(2) Cr.P.C., is

directed against the judgment dated 16.04.2019 in S.C.No.354

of 2013, on the file of the Special Sessions Judge for Fast

Tracking Cases relating to Women-I-cum-X-Additional

Metropolitan Sessions Judge, Hyderabad, whereby and whereunder

the appellant-accused was convicted and sentenced to undergo

rigorous imprisonment for a period of ten years and to pay a fine of

Rs.2,000/- in default to undergo simple imprisonment for a period

of six months for the offence punishable under Section 376(2) (i)

IPC and was also sentenced to undergo rigorous imprisonment for

a period of seven years and to pay a fine of Rs.2,000/- in default to

undergo simple imprisonment for a period of six months for the

offence punishable under Section 363 IPC. The accused was found

not guilty for the offence punishable under Section 341 IPC and

was acquitted.

2. Heard the learned counsel for the appellant-accused and

learned counsel for the respondent-State. Perused the material on

record.

3. The case of the prosecution, in brief, is as follows:-

On 29.08.2012, P.W.1 lodged a complaint stating that on

28.08.2012 at about 09:00 pm., his daughter P.W.2, aged about

7 years, left the house to kirana shop to buy chocolate and did not

return. After half an hour, the wife of P.W.1 started searching for

her daughter and when she could not trace her, she informed the

same to P.W.1 and he started searching for P.W.2 till midnight and

about 01:00 pm., when P.W.2 came back to the house, P.W.1 and

his wife enquired with the victim girl, who stated that when she

was going to kirana shop, two persons came on bike and took her

somewhere and attempted to commit rape on her. Later, P.W.1

went to police station and lodged a complaint-Ex.P-1.

4. Based on the said complaint, P.W.9, Sub-Inspector of Police,

registered a case in Cr.No.204 of 2012 under Section 363, 376

read with 511 IPC and took up investigation. During the course of

investigation, he examined P.Ws.1 to 4 and two others and

recorded their statements and later sent the victim girl to the

hospital for medical examination. P.W.9 visited the scene of

offence and there he examined and recorded the statements of

circumstantial witnesses i.e., P.Ws.3, 4 and another. P.W.2 was

examined by the doctor P.W.7 and she collected the material

objects and forwarded the same to FSL for scientific analysis

and basing on FSL report-Ex.P-4, P.W.7 gave opinion Ex.P-5

stating that sexual assault on the victim girl cannot be ruled out.

P.W.9 along with his staff apprehended the accused on 05.09.2012

and produced him before P.W.10.

5. Later, P.W.10, the then Inspector of Police, examined and

recorded the statements of P.W.5 and another and also the

confessional statement of accused and pursuant thereto, he seized

one motor cycle-M.O.5. Thereafter, the accused led them to scene

of offence and there he seized beer bottle-M.O.1, voter identity

card-M.O.3 and Grass-M.O.4 and also seized one glass-M.O.2

under seizure report-Ex.P-8 in the presence of P.W.5 and effected

arrest of the accused and sent him to Osmania General Hospital

for potency test. L.W.13, Dr.K.V.Ramesh examined the accused

and issued potency certificate-Ex.P-9. Later, the accused was

remanded to judicial custody. P.W.8, the I-Additional Chief

Metropolitan Magistrate, conducted test identification parade and

recorded the statement of the victim giril-P.W.2 under Section

164 Cr.P.C. After completion of investigation and after collecting

all the relevant documents, P.W.10 filed charge sheet against the

accused for the offences punishable under Section 363, 341 and

376 IPC. The jurisdictional Magistrate has committed the case to

the court of sessions.

6. The accused appeared before the trial court and pleaded not

guilty to the charges framed under Sections 363, 341 and 376(2) (f)

IPC and claimed to be tried.

7. To bring home the guilt of the accused, the prosecution

examined P.Ws.1 to 10 and marked Exs.P-1 to P-9. None was

examined on behalf of the defence, but Ex.D-1 was marked.

8. On a consideration of the evidence available on record, the

learned Sessions Judge found the accused guilty of the above

offences and convicted him for the same and imposed sentences as

stated supra. Aggrieved by the said conviction and sentence, the

present appeal is filed by the accused.

9. The learned counsel for the appellant submits that the victim

girl P.W.2 did not identify the accused and she stated that she

identified the accused at the request of police and she also stated

that one person took per on a motorcycle and another person

dropped her and when the victim girl stated two versions and

identifying the accused for the first time, her evidence cannot be

believed. The evidence of P.W.1 also involves improvements

and contradictions and his evidence also cannot be believed.

The prosecution failed to connect the accused with the alleged

offence and the conviction and sentence imposed by the trial court

is not sustainable in law and prayed to set aside the judgment of the

trial court and acquit the accused.

10. Learned Assistant Public Prosecutor submits that the

evidence of the victim girl-P.W.2 is cogent and convincing and

she identified the accused who committed sexual assault on her and

her evidence is corroborated by the medical evidence of P.W.7 and

the prosecution has proved the guilt of the accused for the offences

charged and the trial court has rightly convicted the accused.

11. Having regard to the respective submissions of the learned

counsel for the parties, the point that arises for consideration is -

whether the judgment of the trial court is sustainable?

12. It is the evidence of the victim girl P.W.2 that on the day of

incident, her mother gave her money to purchase chocolates and

she went to kirana shop around 08:00 pm. The accused came near

to her and offered her chocolates and took her on his motorcycle to

a place which was like forest, there the accused removed her

clothes and laid down on her. Thereafter, he took her on

motorcycle and left her at her house and went away. She informed

the same to her parents. On the next date morning, her parents

lodged a complaint to the police and she was referred to hospital

for medical examination. Interestingly, in the cross-examination,

she stated that one person took her on motorcycle and another

person took her on motorcycle and another person dropped her

on motorcycle. She identified the accused in the presence of

the learned Magistrate and her statement was also recorded

by police. She also stated that she could not identify him in the

police station, but she identified him at the jail, and after six years

she again identified the accused.

13. P.W.1 is the father of the victim girl and he deposed that

on the day of incident, his daughter went to kirana shop to purchase

chocolate at 07:30 pm and did not return and when he along with

his wife were sitting in front of the house, one person dropped

their daughter on a motorbike in their street and went away.

His daughter disclosed about the sexual assault on her body and

the injuries were bleeding. Ex.P-1 is the complaint given by him

to police. The evidence of P.W.1 is relevant only to the extent of

what the victim girl has furnished information. It appears from the

evidence of P.Ws.1 and 2 that she was aged between 6 to 7 years at

the time of incident.

14. P.W.7 is the doctor who examined the victim girl P.W.2 and

she gave preliminary examination certificate- Ex.P-3 and final

opinion-ExP-5. She deposed about the contents of Ex.P-5 stating

that she examined P.W.2 and found abrasions all over back, waist,

shoulder and wrist. On her local examination, she found

that hymen was not in tact and her introitus was congested, raw

and inflamed. There was no evidence of tears and bleeding.

She collected smears and swabs of the victim girl and handed over

them to police for the purpose of chemical analysis. After

receiving the FSL report, she issued final opinion stating that

sexual assault on P.W.2 cannot be ruled out.

15. P.Ws.3 and 4 are the circumstantial witnesses and according

to P.W.3 on 28.08.2012, around 08:30 pm, he went to kirana shop

and noticed the accused giving one rose flower and Rs.20/- to his

granddaughter and took her close to him and she came to him

crying and the accused had disclosed his identity and stated that he

is staying in the same basti and he asked him to leave the place.

On the next day, he came to know that the accused kidnapped the

victim girl. Similarly, P.W.4 also deposed that he saw the accused

giving chocolates, flowers and money to small children who were

present in the baraath at about 09:00 pm on the day of incident.

Then he along with L.W.6 enquired with the accused, who showed

his identity proof and informed them that he lives in the same basti

and on the next day morning, they came to know that the accused

kidnapped P.W.2 and committed rape on her. The evidence of

P.Ws.3 and 4 do not specifically show that the accused

kidnapped P.W.2 at the time when they interacted with the

accused. It only shows the presence of the accused near kirana

shop, offering chocolates to the children.

16. The prosecution case is that the accused called P.W.5 on

the date of incident around 02:30 pm and both of them went to

Madhura Bar and had beer and P.W.5 also called his friend Naresh.

Around 07:10 pm, they came out from the bar and dropped

the accused at Kishnbagh and he and Naresh went to their house.

The evidence of P.W.5 shows that he has got acquaintance with the

accused, but nothing material is stated about the alleged incident.

17. The crucial point to be considered is regarding the identity

of the accused by the victim girl. It appears from the evidence of

P.W.2 that she identified the accused in the jail, but in the police

station, she did not identify him. It is not in dispute that the

prosecution has got conducted the test identification parade

through the I-Additional Chief Metropolitan Magistrate-P.W.8.

The TI parade proceedings and the evidence of P.W.8 prove the

fact that P.W.2 identified the accused in the presence of the learned

Magistrate. Though P.W.2 in her cross examination stated that one

person took her on motorcycle and another person dropped her on

motorcycle, but her evidence is to the effect that she identified the

accused only in the jail and she specifically stated that after six

years again she identified the accused. Keeping in view the fact

that the victim girl was aged 7 years at the time of offence and her

identifying the accused in the presence of the learned Magistrate in

the TI parade and the subsequent identification in the court is

sufficient to believe that the accused is the person who had

committed sexual assault on her.

18. The trial court, after taking into consideration the evidence

of P.W.2 and the medical evidence of P.W.7, found that the

accused had committed sexual assault on P.W.2. The learned

counsel for the appellant-accused submits that the accused has not

committed any offence, as alleged by the prosecution and the

evidence of the medical officer, who examined the victim girl in

cross-examination, stated that rupture of hymen will not always

happen by sexual intercourse, however, from the opinion of

P.W.7, based on FSL report, concluded that the accused did

commit rape on the victim girl-P.W.2.

19. Coming to the evidence of the victim girl (P.W.2), she

deposed that when she went to kirana shop, there the accused

offered her chocolates and took her on his motorcycle to a place

which was like forest. There, the accused removed her clothes

and laid down on her. When she started crying, he beat and

threatened her and later dropped in her street on a motorcycle.

However, the evidence of P.W.7 shows that she found abrasions

all over back, waist, shoulder and wrist of the victim girl and she

found that her hymen was not in tact and her introitus was

congested, raw and inflamed. In cross-examination, P.W.7 stated

that the rupture of hymen will not always happened by sexual

intercourse.

20. Ex.P-4-FSL report shows that semen and spermatozoa are

not detected. As per the explanation to Section 375 IPC, mere

penetration constitutes the offence of rape. The crucial point to be

considered is whether there is cogent evidence to believe the

possibility of penetration in this case. The accused was referred to

doctor for examination and Ex.P-9 is the medical certificate issued

by Dr.K.V.Ramesh, Assistant Professor, Department of Forensic

Medicine, Osmania Medical College, Hyderabad. The age of the

accused is shown as 31 years and the doctor gave opinion that there

is nothing to suggest that the individual examined is not capable of

performing the act of sexual intercourse, whereas the victim girl-

P.W.2 was a child aged 6 to 7 years as per the evidence of her

father, P.W.1.

21. P.W.7, the doctor who examined the victim girl-P.W.2,

stated that there was no evidence of tears and bleeding and she

admitted that rupture of hymen will not happen always by sexual

intercourse. In case of penetration, P.W.2 would have sustained

more ruptures on her genitalia. In the absence of violent injuries

on the genitalia of P.W.2, I am of the opinion that no penetration

had taken place. P.W.7 was not examined on the aspect whether

P.W.2's vagina admits even a finger. If really there was any

penetration, there would have been profused bleeding from

P.W.2's introitus. P.W.7 stated that she found abrasions all over

back, waist, shoulder and wrist of the victim girl and the same

shows that an attempt was made by the accused, but penetration did

not take place and as a result there were no violent injuries on

P.W.2's genitalia and in the absence of the same, this court has

to necessarily conclude that there was only an attempt on the

part of the accused to commit rape on P.W.2 by lying on her and

made attempts for penetration and as such there were abrasions on

the body of P.W.2.

22. The trial court did not examine the medical evidence Exs.P-3

to P-5 thoroughly and based on its findings on the superficial

evidence of P.W.7, medical officer. The medical officer is not

expected to give a finding whether there was rape or not; but the

medical officer has to give opinion whether there was sexual

intercourse or whether there was possibility of sexual intercourse.

Ultimately, basing on such evidence of the medical officer, it is for

the court to give a finding whether there was any 'rape' as defined

in Section 375 IPC, after considering the oral, circumstantial and

medical evidence on record.

23. In view of the above discussion, I am of the opinion

that there was no accomplished rape and the evidence of the

prosecution can be safely accepted that it is a clear case of

attempt to commit rape on P.W.2 by the accused. Therefore, I find

the appellant-accused though not guilty of the offence under

Section 376 (2)(i) IPC, but he is found guilty of the offence under

Section 376(2)(i) read with Section 511 IPC, which is proved

beyond reasonable doubt.

24. Coming to the offence under Section 366 IPC, the evidence

of P.W.2 is cogent and trustworthy that the accused had taken

P.W.2 on his motorcycle to an isolated place and committed

the alleged offence and the ingredients of offence of kidnapping

are also proved by the prosecution beyond all reasonable doubt.

The offence under Section 376(2) (i) IPC is punishment with

rigorous imprisonment which shall not be less than for a term of

10 years, but which may also extend for life and shall also be liable

to fine. The proviso to Section 376 IPC indicates that the court

may, for adequate and special reasons to be mentioned in the

judgment, impose a sentence of rigorous imprisonment of either

description for a term which shall not be less than 10 years.

25. Section 511 IPC reads as follows:

Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

According to the above section, half of the punishment prescribed

for the offence under Section 376 IPC can be imposed.

26. On a careful scrutiny of prosecution evidence, as discussed

above, I am of the opinion that the ends of justice would be met

if the accused is sentenced to undergo rigorous imprisonment for a

period of five years in addition to payment of fine of Rs.2,000/-

imposed by the trial court. Apart from that, the conviction of the

accused for the offence under Section 366 IPC and sentence of

rigorous imprisonment for a period of seven years is modified to

that of five years in addition to the fine already imposed.

27. In the result, the appeal is allowed-in-part. The conviction

of the appellant-accused for the offence under Section 376 (2) (i)