Telangana High Court
Jerpula Devender, Warangal Dt., vs The State Of Telangana, Rep Pp., on 7 June, 2024
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.155 of 2017
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha)
This criminal appeal is filed against the judgment of the
trial Court in Special Sessions Case No.33 of 2014 (Crime
No.39 of 2014 of PS Ghanapur Mandal dated 05.08.2015).
2. Jarpula Devender aged 22 years/accused found guilty
for the offences under Sections 452, 376-D of the Indian
Penal Code (for short 'IPC'), Section 5(g) r/w. Section 6 of
Protection of Children from Sexual Offences Act (for short
'POCSO Act') and convicted for life imprisonment and
convicted for fine. Against the said order, he preferred the
appeal.
3. In the appeal it is mainly contended that at the time of
incident, victim girl has not raised any cries and the incident
occurred at her house and it was also contended that
victim/P.W.1 has not sustained any injuries to her private
parts and there is no deposit of semen and spermatozoa.
P.W.9/Doctor clearly stated that he collected two swabs and
two slides from her vagina and also sent to FSL but nothing
was detected on the said swaps as per the medical evidence
there was no recent sexual intercourse. It was further
contended that incident took place on 07.03.2014 and
complaint was made on 09.03.2014 i.e., with a gap of 48
hours and there is no explanation about lodging complaint in
delay though accused along with three persons participated
in committing the offence but their names were not shown in
FIR and it shows that it is a created and false case and
requested this Court to suspend and set aside the judgment
passed by the trial Court.
4. Heard arguments of both sides and perused the entire
evidence on record.
5. Father of the victim gave complaint on 09.03.2014 and
stated that on 06.03.2014 he went to Madhukar Reddy
Hospital at Parkal and got operated to his leg for injury and
was admitted in the said hospital and also stated that his
wife is staying with him in the hospital. On 07.03.2014 his
son came to Parkal Hospital and brought food for them and
her daughter aged 16 years, Inter 2nd year alone stayed at
their house and at that time i.e., on 07.03.2014 at about 12
noon two persons of their village Nerella Narender, aged 18
years and Jarupula Devendar, aged 19 years tress passed
into their house and sexually assaulted her daughter one
after the another and also threatened her if she informs the
same to anybody she will be killed. As his daughter felt
humiliated tried to commit suicide by consuming pesticide
which was available in their house. After that she said the
same to Kannuri Vijender and Kannuri Puja who stay at the
backyard of their house where upon they shifted his daughter
to RMP Doctor wherein he said that her condition was serious
upon which again they took his daughter to Lalitha Nursing
Home and got her admitted in the said hospital, the said facts
were informed by Vijender to him through phone upon which
he rushed to the hospital and saw his daughter. His
daughter stated him about the entire incident. Later on
08.03.2014 evening at 4 P.M doctor informed him that his
daughter condition is serious and advised him to take her to
Warangal and on the same day evening he shifted his
daughter to Max Care Hospital at Hanamkonda and got
admitted her at about 5 P.M and she underwent treatment
and therefore, in the complaint he requested to take
necessary action against the persons who committed rape
against her daughter. The complaint is registered as Crime
No.39 of 2014 under Section 376-D of the IPC, Criminal
Amendment Act, 2013, Section 5(g) r/w Section 6 of POCSO
Act-2012 and FIR was issued.
6. In order to prove the case, the prosecution in all
examined P.Ws.1 to 17 and Exs.P.1 to P.10 and M.Os.1 and 2
are marked.
7. P.W.1 is the victim admitted that her date of birth is
14.03.1996. On 06.03.2014, her father was admitted in the
hospital of Madhukar Reddy, Parkal for the operation of his
legs and her mother was attending on him. On 07.03.2014,
at about 10.00 A.M her mother called her brother and
informed him to bring meals to them. Accordingly her
brother left the home by carrying meals carrier. As such, she
was alone in the house and preparing for the examinations.
At about 12.00 noon, the Juvenile and the accused entered
into the house and the accused caught hold of her hands and
gagged her chunni in her mouth. The Juvenile removed her
clothes and committed rape on her against her wish. They
closed her mouth with chunni. Thereafter, the accused also
forcibly committed rape on her against her consent. After
committing rape, while leaving the house, both of them
threatened her with dire consequences of killing her if the
same is revealed. After the incident, she felt insulted and
humiliated. As such, she consumed pesticide immediately
after the said incident. Thereafter, she came out of the house
and went to the back side of the house and informed the
same to P.W.3 and his wife i.e., P.W.4 that she consumed
pesticides and when they enquired the reasons, she narrated
the incident. She was shifted to RMP doctor at Gollapally.
As her condition was serious, he advised to shift to a big
hospital at Parkal. As such, she was shifted to Soundarya
Hospital, Parkal, from there, she was shifted to Lalitha Devi
Hospital, Parkal. It was further stated that her parents also
came to Lalitha Devi Hospital when her father questioned
her, she informed the rape committed on her by the Juvenile
and the accused. Thereafter, she lost consciousness. She
was shifted to Max Care Hospital, Hanamkonda on
20.03.2014 and her statement was recorded by Magistrate
wherein she stated that actually juvenile is her classmate in
High School and also stated that accused committed rape on
her for 15 minutes by each of them and at the time of
incident she was wearing Punjabi Dress but she did not
handed over dress to the police too. She stated that she
regained consciousness after ten days and Magistrate
recorded her statement after regaining consciousness as such
she do not know as to when lady Doctor examined her. She
further stated that her marriage took place about two months
back. P.W.1 was examined on 23.03.2015 two months after
her marriage.
8. P.W.2 is father of the victim and he reiterated the
contents of the complaint. He stated that by the time victim
was brought to the Hospital, victim was not in a position to
speak and she was not coherent. P.W.1 regained
consciousness after eight or nine days. He scribed complaint
through a known person, but he do not remember his name.
P.W.1 was admitted in the hospital for about 13 to 14 days.
9. P.W.3 is K.Vijender to whom victim girl informed about
the incident immediately. He shifted her to RMP Doctor. He
stated that Doctor himself came to his house along with the
victim and got vomited P.W.1 and advised to shift the victim
to any big hospital. Then he along with his wife shifted P.W.1
to Soundarya Hospital, Parkal. But the doctors advised to
shift her to any other big hospital. Then they shifter her to
Lalitha Hospital. In the meanwhile, P.W.2 and his wife came
to Lalitha Nursing home and he admitted the victim in Max
Care Hospital at Hanamkonda. Even in the cross-
examination he stated that RMP Doctor brought to his house
and got her vomited.
10. P.W.4 stated that he took P.W.1 along with P.W.3 to on
motor cycle to RMP Doctor and RMP Doctor got vomited and
advised to shift her to any big hospital. Later she was shifted
to another hospital at Parkal. It was stated that P.W.3
informed P.W.4 about cause of victim consuming poison.
11. P.W.5 is an auto driver who shifted her to Soundarya
Hospital, Parkal and from there to Lalitha Hospital and he
also stated that through P.W.3, he came to know about the
cause of consuming poison by the victim.
12. P.W.6 is the RMP Doctor who got her vomited as her
condition was serious advised her to shift her to any big
hospital. He stated that after seeing her at his house he went
to their house and got washed her stomach.
13. P.W.7 is Physician in Lalitha Nursing Home, Parkal. He
stated that P.W.1 brought to the Hospital with a complaint of
consuming unknown pesticide. They again washed stomach
and provided treatment as her condition became worsen
advised to shift another hospital. He stated that she was
unconscious and mentioned in the case sheet as per the
information furnished by the attendants that P.W.1 had
consumed poisonous pesticides.
14. P.W.8 is the panch witness who recovered Ex.P.2 and
also recovered M.Os.1 and 2.
15. P.W.9 is the Assistant Professor in CKM Maternity
Hospital, Warangal. He stated that P.W.1 was admitted in
their hospital on 12.03.2014 and also stated that she was not
in conscious state of mind on 08.03.2014 due to poisoning.
After taking consent of her mother, he examined her private
parts and found that hymen was ruptured. He found
emanating foul smell and blood stained discharge. He
collected two swabs and two slides from her vagina to send
them to the FSL. After receipt of the FSL Report, he gave
final opinion that there was no medical evidence of recent
sexual intercourse held on P.W.1. Ex.P.3 is the preliminary
report. Ex.P.4 is the final opinion. Ex.P.5 is the FSL report.
In the cross-examination he stated that patient was
conscious and responding to the examination. He further
stated that patient was conscious and was responding to her
examination. It is mentioned against the mental status of the
victim as "patient on ventilator". When the patient is on
ventilator, she will be kept on ET Tube covering mouth to
lungs and the patient may not speak, but she can respond to
the treatment and examination. He mentioned in his report
that the Hymen was not intact and also stated that there is
no difference between the writings of brief history and other
report, but they are in different inks.
16. P.W.10 is the Principal of Siddhartha Junior College,
Bhupalpally. He stated that P.W.1 was studying Intermediate
in CEC group in their college and her date of birth is
03.06.1996 and he stated that the said date of birth entered
in their admission register as per the date of birth mentioned
in SSC certificate.
17. P.W.11 is the Principal, Sanghamitra Degree College,
Bhupalpally. He stated that accused is student and studying
degree and born on 08.05.1995. He stated that accused was
admitted in their college on 06.06.2013 for academic year
2013-2016.
18. P.W.12 is the Assistant Professor, FMD, KMC,
Warangal. He conducted the potency test under Ex.P.8 on
the accused.
19. P.W.13 is the WHC, P.S, Mattewada. On 09.03.2014
she received complaint from P.W.2, registered Crime No.39 of
2014 and issued F.I.R under Ex.P.9.
20. P.W.14 is the Compounder, Soundarya Nursing Home,
Parkal. He got her stomach washed. It was stated that when
the doctor was not available he will send the patients back
without attending and he has not handed over the vomited
substances to the police.
21. P.W.15 is the Woman Head Constable, P.S, Venkatapur
who recorded statement of P.W.1. As per the instructions of
DSP, Probationary, she stated that P.W.1 did not specifically
stated that accused No.1 gagged her mouth with chunni and
caught hold her hands.
22. P.W.16 is the ACP, Abids, Hyderabad. He stated that
earlier he workded as SDPO, Incharge, Muglugu. On
09.03.2014, received intimation about gang rape through
P.W.13 immediately rushed to the P.S, Ghanapur Mandal
and received express FIR from P.W.13. He examined P.W.2
and recorded his statement and conducted scene of
panchnama. The doctors informed that P.W.1 was
unconscious and under treatment. Therefore, he could not
record her statement. He gave requisition to the doctors for
conducting medical examination to find out whether any rape
took place on the victim. On 10.03.2018, he gave requisition
for recording the dying declaration of P.W.1 and accordingly,
the dying declaration was recorded. On 16.03.2014 he
arrested both the accused and dying declaration was
recorded on 17.03.2014. He collected material objects from
Max Care hospital and forwarded them to RFSL through
SDPO, Mulugu on 22.03.2014 and filed requisition before the
Court for recording the 164 Cr.P.C. He did not collect any
case sheet from the hospital at Parkal and Max Care hospital.
23. P.W.17 recorded the statement of P.W.1 under Section
164 Cr.P.C at JFCM, Parkal. On completion of the
investigation he filed charge sheet. It was suggested that he
is not aware of any circular issued by the DGP and that
investigation under POCSO Act shall be done by SDPO's only.
24. A copy of the judgment in J.C.C.No.14 of 2015 dated
21.01.2022 filed before the Court in which the Juvenile who
is conflict with law is found guilty for the offences punishable
under Sections 450, 376-D IPC and Section 5 (g) R/w.6 of
POCSO Act (Criminal Law Amendment Act-2013).
Accordingly he is convicted under Section 255(2) of Cr.P.C
and also sentenced for four months, one month and three
months respectively and all the sentences shall run
concurrently.
25. Now it is for this Court to see whether the judgment of
the trial Court is on proper appreciation of the facts or not.
The offence took place on 07.03.2014, whereas, the complaint
was lodged on 09.03.2014 i.e., two days after the alleged
incident and the inordinate delay in filing the appeal is not
explained anywhere. P.W.2 in the complaint stated that he
came to know about the incident through P.W.3 and his wife
when his daughter was shifted to Lalitha Nursing home
though she was undergoing treatment he gave complaint.
This is a peculiar case in which the victim girl immediately
after commission of the offence attempted to commit suicide
by consuming poison and she requested the neighbors i.e.,
P.W.3 and his wife to inform her parents about the
consuming poison. When they questioned the reasons hen
she stated that juvenile and present accused in this case
committed sexual assault on her.
26. P.W.3 tried his best to save her as such immediately
took her to RMP Doctor and he got her vomited and advised
to shift to better hospital as such initially she was shifted to
Parkal and Soundarya Hospital and again to Lalitha Nursing
Home as such unless and until she was admitted in Lalitha
Nursing Home.
27. P.W.2/father of the victim who was admitted in hospital
on 06.03.2014, for operation of legs could not reach there as
such he came there on 09.03.2014. Therefore, the argument
of the defence counsel that there was inordinate delay and it
was not explained properly is not tenable.
28. In this case, the trial Court based conviction on the
solitary testimony of the prosecutrix and now it is for the
Court to see whether it can be relied upon or not. As per the
medical evidence there was no recent sexual intercourse but
her hymen was ruptured and it was not intact. When P.W.1
is alone in the house at about 12.00 noon juvenile who was
her classmate and another trespassed into the house
committed sexual assault on her one after another and
threatened with dire consequences as such she was insulted
and humiliated and intended to commit suicide by
consuming pesticide poison and informed the same to her
neighbors i.e., P.W.3 and his wife.
29. There is no suggestion at any point of time the eye of
the witnesses that there was enmity between accused and
P.W.1 or their families as such there is no reason for her to
depose falsely against the accused. It was also not elicited
from P.W.1 that there was any love affair between accused
and P.W.1 as such they came to her house in the absence of
her parents.
30. As per the case of prosecution, juvenile is only her
classmate and nothing else. Both the accused taking
advantage of loneliness of the victim trespassed into her
house while she was alone and committed sexual assault. If
at all no such incident happened on her there is no reason for
her to commit suicide and immediately after the offence, she
informed the cause of the suicide to P.W.3. She was not in
consciousness for 12 or 13 days period. P.W.3 in turn
informed about the incident to her father immediately
through cell phone as such it cannot be said that P.W.2 and
P.W.1 foisted a false case against the accused. There no
motive for them to implicate the accused falsely at the cost of
reputation of their family and thus the solitary testimony of
the prosecutrix can be relied upon. Though, in the medical
evidence it was stated that there are no traces of semen on
her private parts and there is no evidence of recent sexual
intercourse. Her hymen was ruptured and thus the said
medical evidence can be taken as corroborative piece of
evidence to the testimony of P.W.1.
31. The counsel for the defence argued that P.W.1 ought to
have raised her voice but she stated that they gagged her
mouth with chunni and committed offence one after another.
One of the accused caught hold her legs as such there is no
possibility to her to run out of the house or raise cries and
also no chance to escape from the accused from sexual
assault.
32. Though, it was stated that her dying declaration was
recorded by Magistrate it was not placed on record and 164
Cr.P.C statement was not available on record. P.Ws.4 and 5
who shifted her came to know about the incident through
P.W.3 only.
33. The trial Court rightly considered the entire evidence on
record and convicted the accused but the accused was also
aged 19 years as on the date of incident and victim was aged
18 years and the victim girl marriage was performed on
23.01.2015 itself. Accused in jail from 05.08.2018 onwards
i.e., for nearly 9 years.
34. The counsel for the accused relied upon the citation in
"Manoj Mishra Alias Chhotkau Vs. State of Uttar
Pradesh" 1 wherein it was held that:
"the evidence of the prosecutrix and the
medical evidence would establish the charge of
rape."
35. Considering the age of the accused at the time of
commission of offence and the period of his detention along
with the gravity of the offence, this Court finds that it is just
and reasonable to modify the sentence to the period already
undergone by the accused and is liable to be convicted under
Section 376 IPC and not under Section 376 D IPC.
2021 (SCC) 763
36. In the result, the Criminal Appeal is allowed in part.
The conviction and sentence of imprisonment in Special
Sessions Case No.33 of 2014 (Crime No.39 of 2014 of PS
Ghanapur Mandal dated 05.08.2015), imposed against the
accused for the offences under Sections 452, 376-D of IPC, is
modified to that of Section 376 of IPC and is reduced to the
period already undergone by him. The appellant/accused
shall be set at liberty forthwith, if he is not required in any
other case. M.Os.1 to 2 shall be destroyed after the expiry of
appeal time.
Pending miscellaneous petitions, if any, shall stand
closed.
________________________
JUSTICE K.LAKSHMAN
_________________________
JUSTICE P.SREE SUDHA
DATE:07.06.2024
Bw
