Telangana High Court
Shaik Mohammed Khasim ,Khashu vs State Of Ap., on 19 June, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 914 OF 2011
Between:
Shaik Mohammed Khasim @ Khashu
... Appellant/
Accused Officer
And
The State of A.P. rep. by the Public Prosecutor,
High Court of A.P.,
Hyderabad.
... Respondent/
Complainant
DATE OF JUDGMENT PRONOUNCED: 19.06.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 914 OF 2011
% Dated 19.06.2024
# Shaik Mohammed Khasim @ Khashu
... Appellant/
Accused Officer
And
$ The State of A.P. rep. by the Public Prosecutor,
High Court of A.P.,
Hyderabad.
... Respondent/
Complainant
! Counsel for the Appellant: Sri J.K.Ranjit Kumar
^ Counsel for the Respondents: Sri Suresh Goud
Assistant Public Prosecutor
>HEAD NOTE:
? Cases referred
1
2016 (4) SCC 140
2
2014 (2) SCC 395
3
2013 (4) SCC 206
4
2016 (1) SCC 696
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.914 OF 2011
ORDER:
1. This appeal is filed by the appellant/Accused, questioning the
conviction recorded by the Special Sessions Judge for SC&ST (POA)
Act -cum- Additional District and Sessions Judge, R.R.District, in
S.C.No.73/2009 vide Judgement dated 18.07.2011, and sentencing
him to undergo Rigorous Imprisonment for a period of eight years and
also to pay a fine of Rs.1,000/- for the offence under Section 376 of
the Indian Penal Code and to undergo Rigorous Imprisonment for a
period of two months for the offence under Section 323 of the Indian
Penal Code.
2. Heard.
3. Briefly, the case of the Victim-PW1 is that she was residing at
Mythri Nagar, L.B.Nagar, Hyderabad, when the incident had taken
place and that she was studying X class and aged 15 years. The
appellant/accused was a tailor by profession and neighbour of the
victim.
4. On 30.01.2009, at 6.00 a.m., victim-PW1 went to school and
while returning home around 7.45 a.m., the accused forced her inside
the shop and held her chunni asking her to lie down. Since PW1
refused, accused slapped her and when she tried to flee, the accused
pulled down the shutter and forcibly committed rape on her.
5. According to PW1 "The accused forcibly committed rape on me by
inserting his male organ into my vagina. The accused while committing
rape against me he also uttered the words as "Naa daggara padukove
mala lanjadana".
6. The victim received injuries on her lips and also other parts of
the body and she became unconscious. Around evening, PW1 was
taken in an Auto by accused and left at L.B.Nagar, instructing her to
go home. PW1 went home and narrated the incident to the maternal
uncle and parents, the next day. PW1 was taken to Police Station
and Ex.P1-complaint was filed. The Police referred her to medical
examination and age determination. After completion of medical
examination, Police took her to the scene of offence. Investigation was
conducted and wearing apparel of PW1 was also seized.
7. Having concluded investigation, the Police filed Charge Sheet for
the offence under Section 376, 323 and 342 of the Indian penal
code and Section 3 (i)(xii) of SC/ST (POA) Act, 1989.
8. In support of the prosecution case, PW1-victim and PW2 to PW8
were examined and Exs.P1 to P13 were marked. M.O.1 and 2 which
are wearing apparel of the victim were also brought on record by the
prosecution.
9. Learned Sessions Judge found favour with the version of the
victim girl and convicted the accused for the offences punishable
under Sections 376 and 323 of the Indian Penal Code.
10. Learned Counsel appearing for the appellant submits that
according to the version of PW1, she was a school student, however,
she was wearing coloured apparel at the time of incident, which is
doubtful. There is a delay of one day in lodging the complaint and on
account of disputes between the family members, a false complaint
has been filed deliberately. The prosecution ought to have examined
the neighbours near the tailor shop. Since it is a busy area and it is
highly improbable that the victim would have been dragged into the
shop and kept inside the shop till evening hours. Further, counsel
argued that the prosecution has failed to prove the age of victim girl
as 15 years when the incident had taken place. On account of the
discrepancies and lacunae in the prosecution case as stated above,
the learned counsel sought reversal of the conviction.
11. Learned Counsel for the appellant relied on the Judgment of the
Honourable Supreme Court in Tilak Raj v. State of Himachal
Pradesh 1 wherein a lady of 40 years was having relationship with the
accused. In the said circumstances, the Honourable Supreme Court
upheld the verdict of acquittal by the trial Court.
12. He relied on the Judgment of Honourable Supreme Court in
Hem Raj v. State of Haryana 2 wherein the Honourable Supreme
Court directed acquittal of the accused in the background of there
being letters addressed to the accused by victim and further the
alleged rape happened in the verandah when both of her brothers
were sleeping in the house. The allegation was that the accused who
is a neighbour, jumped the wall and raped her. In the said
circumstances, the Honourable Supreme Court acquitted the
accused.
13. He also relied on the Judgment of Honourable Supreme Court in
State of Rajasthan v. Babu Meena 3 wherein the Honourable
Supreme Court while dealing with the acquittal recorded by the trial
Court for the offence of rape, refused to interfere with the order of the
trial Court.
14. Learned Counsel for the appellant also relied on the Judgments
of Honourable Supreme Court in State of Madhya Pradesh v.
2016 (4) SCC 140
2014 (2) SCC 395
2013 (4) SCC 206
Munna @ Shambhoo Nath 4 and also the Judgment rendered by the
Honourable Supreme Court in State of Karnataka v. F.Nataraj in
Criminal Appeal No.1439 of 2011, dated 07.10.2015. Both the cases
have no bearing on the present facts of the case.
15. Learned Public Prosecutor on the other hand would submit that
there is no requirement of any corroboration to the evidence of victim
in a rape case when the evidence of the victim girl is convincing. In
such cases, the evidence of PW1 would suffice and no grounds are
raised by the defence to discredit the evidence of victim girl.
16. PW1 had specifically narrated regarding the incident of rape
that was committed on her by using physical force. The victim was
sent to the hospital for the purpose of medical examination. The
doctor found that there is an injury which is an abrasion of both lips.
Vaginal smears were also taken, placed on glass slides and sent for
examination. Human semen and spermatozoa were detected.
17. The evidence of PW1 is convincing. She was subjected to rape on
30.01.2009 and in the evening she was taken to L.B.Nagar bus stand
in an Auto and asked to go home. According to PW1, she was
traumatised and she informed about the incident on the next day to
her maternal uncle and also her parents. In the said background, the
2016 (1) SCC 696
delay of one day is clearly explained. Further, when the evidence of
PW1 is convincing and medical evidence is corroborating with the
version given by PW1 regarding the physical assault and also
commission of rape, there is no necessity to seek corroboration from
any independent witnesses as argued by the counsel for the
appellant. Even accepting that the shop was in a busy place,
according to the victim she was assaulted and she lost consciousness
for some time. In the said circumstances, when it is not the case of
the accused that at the time when the alleged assault or dragging the
victim into the shop, there were any neighbours or anyone else
present, the argument that independent witnesses were not examined
by the Police during the investigation, does not hold water. Court
cannot assume that people were present and that they were not
examined, unless stated by witnesses.
18. The Judgments that are relied on by the learned counsel for the
appellant though were passed in the allegations of rape, every case
differs on facts. The facts that were dealt with by the Honourable
Supreme Court in all the cases cited are totally different from the
facts on hand. On the peculiar facts of those cases, the Honourable
Supreme Court had dealt with the same and passed orders.
19. Accordingly, there are no grounds to interfere with the
conviction and finding of the trial Court for the offence of rape and
assault punishable under Sections 376 and 323 of the Indian Penal
Code which oral evidence is supported by medical evidence.
20. Accordingly, the Criminal Appeal fails and dismissed. The
conviction recorded by the trial Court is confirmed. The trial Court is
directed to cause appearance of the appellant/accused and send him
to prison to serve out the remaining part of the sentence.
As a sequel, miscellaneous applications, if any, pending shall
stand closed.
___________________
K.SURENDER, J
Date: 19.06.2024
Note: L.R.copy to be marked
tk
