Telangana High Court
Sk. Mypasha, Karimnagar vs State Of Telangana, Hyd on 16 July, 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 No. 964 of 2014
JUDGMENT:
(Per the Hon'ble Sri Justice P.SAM KOSHY)
The instant is an appeal Section 374(2) of Cr.P.C challenging
the judgment of conviction dated 11.06.2014 passed in S.C.No.5 of
2014 by the Court of the I Addl. Sessions Judge, Karimnagar.
2. Heard Mrs. T.Bala Jayasree (Legal Aid), learned counsel for
appellant and Mrs. Shalini Saxena, learned Additional Public
Prosecutor appearing for the Respondent- State.
3. Vide the impugned judgment, the appellant has been found
guilty for the offences punishable under Section 376 (2)(f)(i)(n) and
Section 506 of Indian Penal Code, 1860 (for short, 'IPC') and under
Section 4 of the Prevention of Children from Sexual Offences Act,
2012 (for short, the 'POCSO Act') and has been sentenced to
undergo rigorous imprisonment for life with fine of Rs.1,000/- and
in default of payment of fine to under to suffer simple
imprisonment for a period of one (01) month. Further, the appellant
has been ordered to undergo rigorous imprisonment for a period of
seven (07) years and to pay a fine of Rs.1000/- for the offence
under Section 506 of IPC and in default to undergo simple
imprisonment for a period of one month. The sentences shall run
concurrently and the period of imprisonment undergone by the
appellant as under Trial prisoner is set-off under Section 428 of
Cr.P.C.
4. As could be seen from the impugned judgment, the appellant
herein is the husband of the SK Sada (hereinafter, the PW.1 and
defacto-Complainant) and they are resident of Korivi, Warangal.
The prosecution had alleged that the appellant had committed rape
repeatedly on PW.2 (Daughter of PW.1) since seven (07) months in
the absence of PW.1 and made impregnate to PW.2.
5. The case of the prosecution, in brief, as is reflected from the
charge-sheet is that on 29.12.2013 at 7:30 PM, PW.1 lodged a
complaint stating that about fourteen (14) years back her marriage
was performed with one SK Saidulu and she was blessed with two
children by name SK Reshma, aged twelve (12) years, (hereinafter
PW.2) and SK Subani, aged ten (10) years. After the birth of
children, her husband deserted her. Thereafter, about nine (09)
years back, one SK Mypasha (the appellant) married her and it was
the second marriage to the PW.1 with him and she was living with
him. PW.1 was working as a Sweeper in Vemulawada temple. One
day, her daughter SK Reshma complained to her about stomach
pain. When she took her to Padmavathi Nursing Home, the Doctor
declared that her daughter was carrying five (05) month's
pregnancy. On enquiry, her daughter revealed that her father, SK
Mypasha (the appellant) had been committing an offense upon her
for the last seven (07) months i.e., after PW.1 left for the temple at
5:00 AM to attend her duty. He used to threaten PW.2 with dire
consequences to kill her and used to commit the act of offense
upon her. Due to fear she did not reveal the matter to PW.1. Hence,
she lodged the complaint to take necessary action against the
appellant.
6. The said complaint was registered and investigated into and
during the course of the investigation PW.10 (Ch Deva Reddy,
Inspector of Police, Vemulawada) examined PWs.1 to 3 with the
help of PW.9 (B. Sarojana, Women Police, Vemulawada) and
recorded their statements. Thereafter, he referred PW.2, the victim
girl to the Government Area Hospital, Sircilla for medical
examination. He visited the scene of offense, observed the scene
and sketched the scene in the presence of the mediators.
Thereafter, PW.10 collected the Date of Birth Certificate of PW.2
from Head Master. On 06.01.2013, PW.10 rushed to the Tollgate of
Vemulawada and apprehended the appellant herein and secured
the presence of mediators. He interrogated the appellant and at
that time, the appellant voluntarily confessed to having committed
this offense. Then he recorded the confession of the appellant,
affected the arrest of the appellant and sent him to Court for
remand. Prior to being produced before the Trail Court, he was
referred to medical examination. The matter was finally put to trial
before the Court of I Additional Sessions Judge, Karimnagar where
the matter was registered as Session Case No.5 of 2014. The
prosecution examined as many as ten (10) witnesses. No witnesses
were examined in defence and later on after recording the
statement of the appellant under Section 313 of Cr.P.C, the Trail
Court finally passed the impugned judgment of conviction which is
under challenge in the instant appeal.
7. Opposing the judgment of conviction, the learned counsel for
the appellant contended that from plain reading of the complaint
and the entire case of prosecution it appears to be highly
improbable. The appellant has been wrongfully convicted based on
insufficient and unreliable evidence and prosecution's case relies
heavily on assumptions, presumptions and the testimony of
interested witnesses without any substantial corroborative
evidence. It was further contended that the validity of the date of
birth certificate and the entries in the school records suggest that
the prosecution does not seem to have proved its case beyond all
reasonable doubts.
8. According to the learned counsel for the appellant, the
appellant has been wrongfully convicted based on insufficient and
unreliable evidence. It was argued that the prosecution's case relies
heavily on assumptions, presumptions and the testimony of
interested witnesses without any substantial corroborative
evidence. The learned counsel for the appellant pointed out that the
evidence presented by the prosecution is not only weak but also
lacks the necessary support to establish the appellant's guilt
beyond a reasonable doubt. Additionally, the learned counsel for
the appellant highlighted the prosecution's failure to examine key
witnesses such as the immediate neighbours of the appellant who
were in a position to provide crucial insights into the case. This
omission is significant because these witnesses could have offered
perspectives that might have contradicted the prosecution's claim.
The learned counsel for the appellant further contends that there is
an unexplained delay of 24 hours in filing the FIR after PW.1 took
PW.2 to the hospital, which casts doubt on the veracity of the
present case. By not including these testimonies, the prosecution
has failed to present a comprehensive and balanced view of the
events in question.
9. It was further contention of the learned counsel for the
appellant that the validity of the date of birth certificate (Ex.P6) and
the entries in the school records suggesting they were tailored to fit
the prosecution's narrative, suggests that these documents were
manipulated or selectively presented to create a misleading picture.
Thus, undermining the credibility of the prosecution's case which
ascertains their authenticity and relevance to the case.
10. Per contra, the learned Additional Public Prosecutor
contended that perusal of the paper book is sufficient itself to
establish commission of the offence by the appellant. She 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 further referred to the
school certificate which was collected by the investigating agency
wherein the date of birth of PW.2 in school certificate was reflected
as 05.03.2002. Accordingly, as on the date of incident i.e. on
29.12.2013, PW.2 was aged around twelve (12) years which
admittedly establish her being a minor.
11. According to the learned Additional Public Prosecutor from
the deposition of PW.2, who is the victim girl, her deposition gives a
clear capability of providing rational and coherent statement, thus,
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 the statement of PW.2, particularly when there was no
animosity between the victim and the appellant and for these
reasons prayed for rejection of the appeal.
12. Having heard the contentions put forth on either side and on
perusal of records, certain facts which need to be taken note of, is
the testimony of PW.2 which is not only consistent but also
remarkably detailed providing a comprehensive account of the
event that took place. PW.2 has explicitly confirmed that the
appellant as the perpetrator and has vividly described the ongoing
sexual abuse and threats she endured over a significant period. Her
statement paints a clear picture of the traumatic experiences she
faced including specific times and circumstances under which the
sexual abuse occurred. The medical examination conducted by the
Doctors, who confirmed PW.2's pregnancy serves as a crucial
corroborative evidence supporting her claim. This medical
confirmation aligns with PW.2's timeline of events and
substantiates her allegations against the appellant. The medical
report adds a layer of objective evidence that reinforces the
credibility of her testimony.
13. Furthermore, the testimony of PW.1, who is PW.2's mother,
plays a significant role in corroborating PW.2's statement. PW.1
confirmed the details surrounding the revelation of the sexual
abuse including the circumstances that led to the discovery of
PW.2's pregnancy and the subsequent police report. PW.1's
statement is consistent with PW.2's testimony providing additional
validation of the narrative presented by P.W.2.
14. According to the contention of the appellant that PW.1 first
sought medical attention for PW.2 which is then after twenty-four
(24) hours she lodged FIR with the police. Then taking into the
normal circumstances surrounding the delay in lodging the FIR,
this Court finds that the complainant's delay of twenty-four (24)
hours after consulting the Doctor is reasonable. It is not
uncommon for individuals to take some time to process distressing
information and decide on the appropriate course of action. This
Court thus finds that the delay does not sufficiently undermine the
credibility of the PW.1's actions or the seriousness of the
allegations.
15. This Court had also taken into account the behaviour and the
actions of the appellant as described by PW.2 and PW.1. The
appellant's pattern of arriving home in a drunken state, his
frequent quarrels with PW.1 and his violent behaviour towards
both PWs.1 and 2 also contribute to a context that supports PW.2's
allegations. The threats made by the appellant to kill PW.2 and her
family members further underscore the gravity of the situation and
the fear under which PW.2 was living. The police investigation,
which included the examination and recording of statements from
PW.2 as well as visit to their home, also supports the credibility of
PW.2's claim. The timely actions taken by PW.1 to report the abuse
and the subsequent involvement of the police demonstrate a
consistent and serious approach to addressing the allegations.
16. When this Court put a specific query as to why DNA test was
not conducted to establish paternity, the learned Additional Public
Prosecutor stated that PW.2 was carrying a pregnancy of five (05)
months duration during which time a DNA test could not be
performed. It is pertinent to note that while non-invasive prenatal
tests (NIPTs) capable of determining fetal sex can be conducted as
early as seven (07) to nine (09) weeks into pregnancy. The decision
was made to avoid any potential risk to the life of PW.2 and the
unborn child. This explanation is found to be reasonable under the
circumstances to ensure the safety and well-being of both the
victim and the fetus.
17. In the result, this Criminal Appeal is dismissed confirming
the conviction recorded by the Trial Court dated 11.06.2014 in
S.C.No.5 of 2014 for offence under Section 376 (2)(f)(i)(n) and
section 506 of IPC and under Section 4 of the POCSO Act. This
Bench finds that the prosecution has been able to prove its case
against the appellant beyond all the reasonable doubts. No costs.
18. As a sequel, miscellaneous applications pending if any, shall
stand closed.
__________________
P.SAM KOSHY, J
___________________________
SAMBASIVARAO NAIDU, J
Date: 16.07.2024
GSD
