Vodapelly Naresh, Warangal vs State Of Telangana, Rep. By P.P., Hyd
2024 Latest Caselaw 2304 Tel

Telangana High Court

Vodapelly Naresh, Warangal vs State Of Telangana, Rep. By P.P., Hyd on 20 June, 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 Nos.189, 211 and 339 of 2015

COMMON JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY)

These appeals are preferred by the three appellants - accused

under Section 374(2) of the Cr.P.C. The challenge in these three

appeals is to the common judgment of conviction dated 30.02.2014

passed by the Special Judge for Trial of Cases under Protection of

Children from Sexual Offences Act-cum-I Additional Sessions Judge,

Warangal in Special Case No.15 of 2014.

2. Heard Mr. Nazeer Khan, learned counsel for the appellants and

Ms. Shalini Saxena, learned Additional Public Prosecutor appearing

for the respondent - State.

3. Vide the impugned judgment, the three appellants have been

found guilty for the offences punishable under Section 342, 366,

376D, 506 read with Section 34 of the Indian Penal Code, 1860 (for

short, 'IPC') and Section 5(g) read with 6 of the Protection of Children

from Sexual Offences Act, 2012 (for short, the 'POCSO Act'). Upon

being convicted for the aforesaid offences, the three appellants stand

sentenced to undergo rigorous imprisonment for one year with fine of

Rs.1000/- each for the offence under Section 342. Likewise, they

have also been convicted and sentenced to suffer rigorous

imprisonment for three years with fine of Rs.1000/- for the offence

under Section 366, 506 read with 34 of IPC. Similarly, all the three

appellants have also been convicted and sentenced to suffer rigorous

imprisonment for life for the offence punishable under Section 376D

of IPC and Section 5(g) read with Section 6 of the POCSO Act with

fine of Rs.25,000/- each with default stipulation as well.

4. The case of the prosecution in brief, as is reflected, from the

charge-sheet is that on 31.12.2013 at around 11:15 hours PW.1, the

victim aged around 16½ years lodged a complaint at Raghunathpura

Police Station stating that on the previous day when she was

travelling from Hanamkonda to Bhongir along with PW.2, the cousin

the PW.1, enroute they stopped at M.G.M. Hospital, Warangal to visit

her cousin who was hospitalized at the said hospital. Later they went

to Hanamkonda in an auto and caught an auto so that they could be

dropped at Ghanpur. The fare fixed for dropping them at Ghanpur

was Rs.30/- and from there they went to Bhongir. In the auto that

they had caught, apart from the driver there were two more persons

sitting in front side along with the driver presuming the two persons

also to be passengers on the said auto, PWs.1 and 2 decided to go

along with them so that they could reach Ghanpur at the earliest

and from there to Bhongir. Midway, however, the three persons i.e.

the driver of the auto and two other accompanies took a different

route and took PWs.1 and 2 to an isolated dark area which was

bushy as well. Forcefully they took PW.1 to the nearby field and the

appellants one by one committed rape with PW.1 and did the act

three times through the period between 10:00 PM to around 4:00 AM

in the morning. Subsequently, they brought PW.1 back to the auto

and were proceeding to drop her at Ghanpur. Enroute the appellants

again planned to have commit rape with PW.1 which PW.1 heard

sitting back side of the auto and in order escape their clutches she

jumped from the auto, on account of which she fell on the road and

suffered some injuries and was later on assisted by some passersby

on the road and enroute they also met a police personnel who

assisted them in going to the Government Hospital.

5. The said Government Hospital provided medical assistance to

PW.1 and later on PW.1, the complainant, reported the matter to the

police authorities on account of which Crime No.321 of 2013 for the

offence under Section 342, 366, 376D, 506 read with 34 of IPC and

Section 5(g) read with 6 of the POCSO Act was registered.

Subsequently, the three appellants were apprehended and sent to

judicial custody and the entire prosecution case started. The matter

was finally put to trial before the Court of the Special Judge for Trial

of Cases under Protection of Children from Sexual Offences Act-cum-

I Additional Sessions Judge, Warangal where the matter was

registered as Special Case No.15 of 2014. The prosecution in all

examined as many as eighteen witnesses. No witnesses were

examined in defence and later on after recording the statement of the

appellants under Section 313 of Cr.P.C, the Trial Court finally

passed the impugned judgment of conviction which is under

challenge in the instant three appeals.

6. Opposing the judgment of conviction, the learned counsel for

the appellants contended that from plain reading of the complaint

and the statements recorded during the course of investigation, the

entire case of the prosecution appears to be highly improbable. It

was further contended that even otherwise from the material

evidences which have been collected then also the prosecution does

not seem to have proved its case beyond all reasonable doubts.

7. According to the learned counsel for the appellants the

deposition of PW.1 itself is highly doubtful and is unreliable as at

one stage it was contended that on the previous time they had

travelled on the same route by bus and at another stage they say

that since she was allergic to travel on bus they intended to go by an

auto. This according to the learned counsel for the appellants makes

the deposition of PW.1 not worthy accepting. It was also the

contention that when compared the statement of PWs.1 and 2 it

would give an indication that there was sufficient time available with

PW.1 and PW.2 to raise an alarm and seek help while they were

travelling on road, particularly, when they sensed that the appellants

were taking them to a different direction and further had also

diverted from the main road. The non-raising of any human cry by

PWs.1 and 2 makes the prosecution case more vulnerable and the

judgment of conviction needs to be interfered.

8. It was the further contention of the learned counsel for the

appellants that PWs.1 and 2 both have stated the appellants to have

stopped the auto enroute for the purpose of liquor. Even at that

point of time they did not think it proper for escaping from the

clutches of these people and also by raising an alarm seeking for

help. It was also the contention that even the independent witness

PW.15 has not supported the case of the prosecution which further

weakens its case and the benefit of which should go in favour of the

appellants.

9. According to the learned counsel for the appellants, the

prosecution has also not convincingly proved that the victim, PW.1

was a minor. The documents which have been produced are also

unreliable as those have been obtained only for the purpose of

lodging of the complaint showing her to be a minor. Other than this,

the complainant has not been able to show any authentic document

to establish her age and also prove the fact that she was a minor.

10. Lastly, it was contended by the learned counsel for the

appellant that considering the fact that even if the prosecution case

is accepted in its toto, it would reflect that the appellants enroute

had purchased liquor and condom and used those condoms in the

course of committing the offence which therefore should be given its

due weightage and the offence should not be treated as an

aggravated penetrative offence and considering these aspects the

sentence may be reduced for a fixed tenure rather than the life

imprisonment awarded by the Trial Court.

11. Per contra, the learned Additional Public Prosecutor contends

that perusal of the paper book is sufficient itself to establish

commission of the offence by the three appellants. The learned

Additional Public Prosecutor 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 also referred to the school certificate which was collected

by the investigating agency wherein the date of birth of PW.1 in

school certificate was reflected as 06.05.1997. Accordingly, as on the

date of incident i.e. on 30.12.2013, PW.1 was aged around sixteen

years and few months which admittedly establish her being a minor.

12. According to the learned Additional Public Prosecutor from the

deposition of PW.1 which stands corroborated from the deposition of

PW.2 and which further gets substantiated from the evidence of

PW.15 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 PW.1 of PW.2 particularly when there was no

animosity between the victim and the appellants and for these

reasons prayed for rejection of the appeals.

13. Having heard the contentions put forth on either side and on

perusal of records, certain facts which needs to be appreciated is,

first the deposition of the victim itself wherein she has categorically

narrated the entire incident that transpired right from the time she

stepped the auto of the appellants. Secondly, the said statement of

PW.1 stands duly corroborated from the evidence of PW.2 who also

has practically stated the same that which have been narrated by

PW.1. As such, there does not seem to be any contradiction or

omissions in the evidence of PW.2 as compared to the statement of

PW.1. Further what is also reflected is the date of birth of PW.1

reflecting it to be 06.05.1997. The same has been issued from

ZPPSS, Perikaid which has been accepted before the Trial Court as

Ex.P3 and which has also been proved by PW.4 who is the

headmaster of ZPSS School, Perikavidu. The evidence of PW.4 so far

as the proving date of birth has got unchallenged as the appellants

did not cross-examine the said witness which is Ex.P3 and the

evidence of PW.4 establishes convincingly the fact that the victim

being a minor. There is no strong material available on record to

even doubt the document Ex.P3 or the deposition of PW.4 as regards

PW.1's actual age is concerned.

14. From the evidence which has come on record, what is also

apparent is the fact that from the statement under Section 313

Cr.P.C that was recorded in respect of the three appellants, nowhere

have they denied the fact that they were not travelling in the said

auto on the fateful day. Likewise, nowhere have these three

appellants also disputed the fact that PW.1 and PW.2 having

travelled along with them on the auto on the fateful day. This further

strengthens the case of the prosecution of PWs.1 and 2 having

travelled in the auto where the three appellants were already sitting

in it. The statement of PW.15 further strengthens the case of the

prosecution who also testifies that on the fateful day, he had seen

PWs.1 and 2 being taken in the auto of the appellants.

15. To make things worse for the appellants, there is not even a

whisper on their part to state that they have been falsely implicated

in the case, there was no enmity between PWs.1 and 2 with that of

the appellants so as to falsely implicate them or even having

acquaintance with PWs.1 and 2. In the absence of such materials,

this Bench also finds it difficult to disbelieve the version of PWs.1

and 2 who have specifically identified these persons.

16. Yet another fact which goes against the appellants is the spot

inspection done in presence of the mediators and upon visiting the

spot the collection of certain incriminating materials further proves

the case against the appellants. The medical report of PW.1 who was

examined immediately upon her report to the police on the early

hours of 31.12.2013 shows that the Doctor has opined of PW.1 to

have been subjected to sexual intercourse. In addition, the Doctor

who conducted the medical examination also found certain injuries

on the lower end of the upper arm, so also the abrasions on the left

side of the back and also abrasions on the left knee, all of which

further proves the case of the prosecution.

17. It would be trite at this juncture to refer to a few decisions of

the Hon'ble Supreme Court on this subject matter. The Hon'ble

Supreme Court in the case of State of Punjab vs. Gurmit Singh and

Others 1 held at paragraph No.21 as under:

"...If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration

(1996) 2 Supreme Court Cases 384

required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

18. Similarly, the Hon'ble Supreme Court in the case of Sadashiv

Ramrao Hadbe v. State of Maharashtra 2 held as under:

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."

19. Further, the Hon'ble Supreme Court relying upon the case of

Gurmit Singh (supra) in Raju vs. State of Madhya Pradesh 3

decided the conviction based on sole testimony of the prosecutrix

and held as under:

"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no

(2006) 10 SCC 92

(2008) 15 SCC 133

corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

20. In yet another case of similar nature, relying upon the above

three judgments, the Hon'ble Supreme Court recently in Manak

Chand alias Mani vs. State of Haryana 4 held at paragraph Nos.7

and 9 as under:

"7. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the

2023 SCC OnLine SC 1397

prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh (1996) 2 SCC 384.

9. Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence."

21. For all the aforesaid reasons and the judicial precedents

referred above, we do not find any strong case made out by the

appellants calling for an interference with the impugned judgment of

conviction. The appeals sans merit and are accordingly dismissed.

No costs.

22. As a sequel, miscellaneous applications pending if any, shall

stand closed.

__________________ P.SAM KOSHY, J

___________________________ SAMBASIVARAO NAIDU, J

Date: 20.06.2024 GSD