Telangana High Court
Syed Khaleem, Chakpally Village vs State Of A.P.Rep. By P.P.,High Court, ... on 11 March, 2024
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE Ms. JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.47 of 2013
J U D G M E N T :
[ Per the Hon'ble Sri Justice C.Praveen Kumar]
The sole accused in S.C.No.598 of 2011, on the file of the III
Additional District and Sessions Judge, Kakinada, is the appellant. He
was tried for the offences punishable under Sections 376 (2)(f) and 302
IPC. Vide judgment dated 27.06.2012, the learned Sessions Judge
convicted the accused and sentenced him to suffer rigorous
imprisonment for ten years and to pay fine of Rs.500/- in default to
suffer rigorous imprisonment for one month under Section 376 (2) (f)
IPC and to suffer imprisonment for life and to pay fine of Rs.500/- in
default to suffer imprisonment for one month under Section 302 IPC.
2. The graveman of the charge against the accused is that on
20.09.2009, at about 1230 hours, under a cashew nut tree situated in
the cashew nut tope of one Shirisha Raju, nearby a fount pit in
Konapapapeta village, hamlet of Ponnada, U.Kothapalli Mandal, he is
said to have committed rape on one Kare Jyothi, a minor girl and
thereafter caused her death by forcefully hitting her head to the branch
of a cashew nut tree.
3. The facts in issue are as under:
(i) PW1 is the Village Revenue Officer, who set the law in motion
by lodging his report. PW2 is the grandfather of the deceased, who also
knew the accused, as he was residing in the same village. PW3 is the wife
of PW2 and she claims to know the accused. PW4 is the teacher of a
deaf and dumb school, Sambamurthy Nagar, Kakinada. PW5 is the
resident of Konapapapeta Village of U.Kothapalli Mandal, who knew
the accused and the deceased and also PWs.2 and 3. PW6 was working
as watchman in the cashew nut tope of one Raju, which was situated in
the outskirts of the said village. He knows PWs.2, 3, the deceased and
also the accused.
(ii) On 20.09.2010 at about 03.00 p.m., PW4 along with two
girls is said to have gone into the forest, to collect fire wood. While she
was returning with a load of fire wood sticks from the garden, she
noticed the accused taking the deceased. It is her version that by keeping
the children at a particular place, she went inside the garden and by the
time she returned with fire wood sticks load, the children were not
there. At about 02.00 p.m., PW4 returned to the house of PW2 and by
gestures, informed that one person took away Kare Jyothi and she could
not do anything. On receipt of the said information, PWs.2, 3 and 4
went to the garden and approached PW6, who was a watchman of the
said garden. On enquiry, PW6 told them that the accused took the said
Kare Jyothi by showing hundred rupee note. While they were talking
with PW6, they found the accused taking bath at a bore, situated
nearby. Then PWs.2, 3 and 4 went to the said place and questioned the
accused about Kare Jyothi, the deceased. Meanwhile, PW5 joined
them. When questioned, the accused replied that he left her at her
house. As his version was doubtful and since PWs.2, 3 and 4 did not
believe the same, they questioned the accused again, for which the
accused threatened them and escaped from the place. While searching
for the deceased in the said garden, they found her near a water pit. At
that time, the deceased was without clothes and there were injuries on
her body. They also noticed blood oozing from her vagina and mouth.
They brought the body to the makam of PW6 and kept her there. Later,
she was taken to Government General Hospital, Kakinada. PW2 went
and informed PW1 about the incident and also about the body of the
deceased in a cashew nut tope of one Sirisha Raju. PW1, the VRO,
went to the said place to confirm about the information and noticed
blood stained blouse, skirt and towel and also a pair of chappals nearby
a water pit. After seeing the said place and said object, PW1 prepared a
report and sent the same to U.Kothapalli Police Station, who registered
a case in Crime No.112 of 2010 under Section 376 (ii)(f) of IPC. and
issued FIR Ex.P22. On 20.09.2010 at about 04.30 p.m., the Sub-
Inspector of Police, U.Kothapalli Police Station informed PW12 about
the registration of crime, who accordingly collected the copy of the FIR.
He along with his staff proceeded to the scene of offence. By the time
they reached the scene of offence, it was about 05.30 p.m. and the
exact place was about 300 yards away from the tar road. He got
prepared an observation report, which is placed on record as Ex.P25. He
also took photographs of the scene of offence, which are placed on
record as Exs.P6 to P12 are bunch of photographs. He also seized MOs.1
to 4 from the scene of offence. On the same day, at about 08.30 p.m.,
he went to the Government hospital and issued a requisition to the
medical officer for determination of age of the victim and also to
preserve the material objects collected, if any, from the victim. On
25.09.2010, PW11 received the death intimation from the Government
General Hospital, Kakinada. Ex.P23 is the said death intimation. Basing
on the said death intimation, the section of law was altered to Section
302 I.P.C. Ex.P24 is the altered FIR. On 21.09.2010 at about 03.00
p.m., while PW12 was in the office, he received information about the
accused and accordingly, he along with mediators and staff proceeded
to Ambedkar statue centre, Matchavaripalem, and arrested the accused.
On interrogation, the accused is said to have confessed about the
commission of offence. Pursuant to the said confession, clothes worn by
him were recovered. Ex.P3 is the admissible portion stated by the
accused. MOs.5 to 7 were also seized, basing on the confession of the
accused. He then conducted inquest over the body of the deceased in
the presence of blood relative and mediators and prepared inquest
report. Ex.P5 is the inquest report. After inquest, the body was sent
for post mortem examination. PW9 the Assistant Professor, Department
of Forensic Medicine, Rangaraya Medical College, Kakinada, conducted
post mortem examination. According to him, the cause of death was
due to injury to the brain along with fracture of skull bones which might
have caused by hitting with a hard and blunt object or weapon. He
also opined that the deceased underwent forced sexual intercourse with
injuries of sexual assault on the body and the serologist, F.S.L.,
Hyderabad detected human sperm and speramatozoa in the preserved
vaginal smear, vaginal swab and vaginal washings of the deceased.
Ex.P19 is the post mortem report. It is to be noted here that after the
arrest of the accused, he was sent to Government hospital, Pithapuram
for potency test. PW10 conducted potency test and issued potency
certificate Ex.P21.
(iii) After completion of investigation and after collecting all the
necessary documents, a charge sheet came to be filed which was taken
on file as PRC No.4 of 2011, on the file of the Court of Judicial
Magistrate of First Class, Pithapuram. On committal to the Court of III
Additional Sessions Judge, Kakinada, the same came to be numbered as
S.C.No.598 of 2011.
(iv) On appearance, charges under Sections 376(2)(f) and 302
IPC were framed, read over and explained to the accused, to which the
accused pleaded not guilty and claimed to be tried.
(v) In support of its case, the prosecution examined PWs.1 to 13
and got marked Exs.P-1 to P-28 and MOs.1 to 7. No oral or
documentary evidence is let in on behalf of the defence.
(vi) After the closure of prosecution evidence, the accused was
examined under Section 313 Cr.P.C., with reference to the incriminating
circumstances appearing against him in the evidence of the prosecution
witnesses, to which he denied.
(vii) Basing on the material on record, the trial Court convicted
the accused. Challenging the same, the present appeal came to be filed.
4. Learned counsel for the appellant mainly submits that there are
no eye witnesses to the incident and the circumstances relied upon by
the prosecution are not proved by any evidence, and even if proved,
the same do not form chain of events to connect the accused with the
crime. He submits that PW6 has implicated the accused in the false case,
since he was having disputes with the accused earlier. He would further
submit that the evidence of the prosecution witnesses does not inspire
confidence. It is argued that though the death was not immediate and
that the deceased survived by nearly five days after the incident, no
effort was made to get the statement recorded. In view of the above
circumstances, learned counsel for the appellant would content that the
prosecution failed to prove the links in the chain to connect the accused
with the crime.
5. On the other hand, learned public prosecutor would contend
that there is absolutely no material to show that PW6 has any motive to
foist a false case against the accused. It is not even suggested to PW6 as
to the existence of any motive, to implicate the accused in the crime.
He would further submit that the evidence of PWs.2 to 4 coupled with
the evidence of PW6 amply establish the events connecting the accused
with the crime. He also lays much stress on the conduct of the accused
and the recoveries made pursuant to the confession of the accused.
6. The point for consideration is :
" Whether the accused was responsible for the death
of the deceased ? "
7. As seen from the record, the entire case rests on the
circumstantial evidence. Therefore, we have to see whether the
evidence adduced by the prosecution stands established and whether the
said circumstances form a chain of events connecting the accused with
the crime.
8. The prosecution is mainly relying on the evidence of PW-1 and
PW-4 coupled with the evidence of PW-2, PW-3, PWs 5 and 6 holding
the appellant/accused responsible for committing rape on the girl. In
order to appreciate the same, it will be useful to examine the evidence
placed on record. PW-6 was examined to prove that appellant/accused
taking away the deceased. PW-6 in his evidence deposed that he knows
the appellant/accused, PWs 1 to 3 and the deceased Kare Jyothi. On the
date of incident, PW-4 along with her daughter Bangaramma, aged
about 5 years and Kare Jyothi, aged about 7 years came to the garden
where he was working as watchman. PW-4 went inside the garden to
collect fire wood sticks. At that point of time, the appellant/accused
took away the deceased Kare Jyothi stating that he would purchase
sweets to her. When PW-6 questioned the appellant/accused as to why
he is taking the deceased, he replied that the deceased is his elder
brother's daughter and he is taking her to his house. Thereafter, PW-6
kept quiet and went inside the garden for attending his work.
9. PW-4 in her evidence deposed that on the date of incident,
while she was returning with load of fire wood sticks from the garden,
the appellant/accused took away the child daughter. PW-4 states that
herself and two children went there to fetch fire wood sticks. PW-4 in
her evidence deposed that by keeping the children, she went inside the
garden and by the time she returned with fire wood sticks load, the
children were missing. Since PW-4 was a dumb witness, her evidence
was recorded by the trial Court with the assistance of interpreter and
acknowledged by her to be correct. When PW-4 came to know about
the said information, she returned to the village and informed PW-2 and
PW-3 about the appellant/accused taking away the grandchildren of
PW-2, when she went inside the garden to fetch fire wood. The said
information was furnished to PW-2 at about 02:00 p.m. On receipt of
the said information, PW-2 his wife Kare Sathyamma [PW-3] and PW-4
went inside the garden and approached PW-6. When PW-2 asked him
about his grand daughter Kare Jyothi, he told him that the
appellant/accused took the deceased by showing hundred rupee note.
While they were talking with PW-6, they found the appellant/accused
taking bath, which is nearby at the bore. The appellant/accused
explained that he left Kare Jyothi at his house. Unable to believe the
same, they questioned the appellant/accused and insisted him to show
the deceased. Then the accused took them inside the garden and while
they were going inside the garden, the appellant/accused picked up a
stick, threatened them and escaped from the said place. While searching
in the garden, they found the deceased near a water-pit without any
clothes on her body. The clothes of deceased were found nearby her
body. They found blood oozing from the vagina and mouth. They
brought the body of deceased and kept her there.PW-2 was cross-
examined at length but nothing useful was elicited to discredit his
testimony. To a suggestion that PW-6, who was working as watchman
in the garden, bore grudge since he stopped working there and due that
grudge has falsely implicated in the case was denied by PW-2. The
evidence of PW-3 is similar and a suggestion was given to her for
involving the accused in the crime but the same was denied. The
evidence of PW-4 came to be recorded with the help of an interpreter,
as she is a dumb lady. She categorically speaks about the involvement of
the appellant/accused. She categorically showed signs, which are
interpreted and lead to a conclusion that it was the appellant/accused
alone, who took the deceased in the garden and then committed the
offence. She also refers to the threat made by the appellant/accused and
then ran away from the scene of offence. Taking advantage of some
inconsistent answers pursuant to the interpretation, the counsel for the
appellant/accused would contend that PW-4's evidence cannot be relied
upon. PW-6 is another witness, who saw the appellant/accused and the
deceased together and immediately thereafter on a search made they
could trace the body of the deceased in the garden. From the evidence
of this witness, it is clear that PW-4 while she was returning with load of
fire wood sticks from the garden, the appellant/accused who is the
relative of the deceased came there and took away the deceased.
Immediately PW-6 informed PW-4, who in turn informed PW-2 and
PW-3 about the appellant/accused taking away the deceased and then
all of them went and searched for the deceased and questioned the
appellant/accused initially and later the appellant/accused gave wrong
answers but later took inside the garden and at a particular point of time
he took a stick and threatened PW-2, PW-3, PW-4 and escaped from the
scene. On search, the dead body was traced out near a water-pit. From
the above circumstances, it is clear that the appellant/accused was last
seen in the company of the deceased and in order to escape himself, the
appellant/accused gave wrong answers stating that he dropped the
deceased at her house and when insisted upon he took them inside the
garden to show the deceased. While going towards the said garden, the
appellant/accused threatened PW-2, PW-3 and PW-4. At this stage, the
counsel for the appellant/accused tried to demonstrate the evidence of
PW-4 on the ground that the answers given by PW-4, which are
inconsistent. But the same in our view based to correct. Though an
argument was advanced to the effect that PW-6 is responsible for the
incident but except suggestion nothing incriminating was placed on
record to show that PW-6 was responsible for the incident. Due to
rivalry with PW-6 if the appellant/accused has been falsely implicated,
he has not chosen to take any steps either to summon the landlord of
garden lands of Hyderabad Raju or the garden lands of Sirish Raju or the
watchman Anandam of Sirisha Raju garden lands or anybody else or
examine them in prima facie support of the version of the
appellant/accused that he worked as watchman in the garden lands of
Hyderabad Raju and that differences between the appellant/accused and
PW-6 had arisen and due to that PW-6 had every reason to have grouse
to falsely implicate the appellant/accused. On the other hand, the
evidence of PW-2, PW-3, PW-4 and PW-6 amply establish that it was
the appellant/accused, who took the deceased into garden. While
answering to the questions put by interpreter, PW-4, who is a dumb
witness stated in her evidence that the appellant/accused had taken
away the deceased and she volunteered that the appellant/accused by
threatening them all including herself and PW-2, escaped from the place.
PW-4 further stated in her evidence that the grand daughter of PW-2
was found without clothes and also found with bleeding injuries on her
head and vagina. She volunteered that the appellant/accused was found
drinking water at a hand pump. When the interpreter asked the question
with signs by placing his hand in hand suggesting relationship as to
whether the deceased Jyothi is related to her ? PW-4 nods her head
from right to left in affirmation indicating answer 'yes'.
10. It is not a case where the prosecution is relying on the theory
of missing, there is enough incriminating evidence on record and the
confession made by the appellant/accused connecting the
appellant/accused with the crime. The evidence on record would show
that PW-11 the Inspector of Police, Pithapuram Circle deposed in his
evidence that on 21/09/2010 at about 03:00 p.m., he proceeded
towards Ambedkar statue centre, Matchavaripalem and apprehended
the appellant/accused while he was trying to escape. On interrogation,
the appellant/accused confessed the commission of offence, took to the
garden land of Hyderabad Raju and the appellant/accused had shown
the bushes where there are date trees and cashew nut topes in the
garden land of Hyderabad Raju stating that he secreted his clothes. The
appellant/accused brought out a lungi, shirt from the said bushes and
seized the same under the cover of mediators report and also found
Rs.100/- denomination currency note in the shirt pocket. MOs t o 7 i.e.,
blood stained lungi of the accused, white colour full hands cotton shirt
of the accused and hundred rupee note bearing No.JAT-100 906.
Thereafter, MOs 5 to 7 were sent to forensic laboratory. Ex.P-17 is the
F.S.L. report. A perusal of Ex.P-17 shows the presence of human semen
and spermatozoa with blood group "B". MOs 1 to 3 which were seized
are blood stained sky coloured skirt of the deceased, blood stained sky
coloured blouse of the deceased and Light wheat coloured towel. In
Ex.P-17 it was stated that the blood found on MOs 1 to 3 also belongs to
"B" group. Since two pairs of clothes of appellant/accused belongs to
the same group of the deceased. Therefore, it can be inferred that
definitely it can be treated as one of the incriminating circumstances
connected the appellant/accused with the crime and all the links in the
chain of circumstances relied on by the prosecution is beyond all
reasonable doubt. The evidence on record ensures all the circumstances
on which the prosecution placed reliance are wholly consistent with the
sole hypothesis of the guilt of the appellant/accused rules out the
possibility of the appellant/accused is found guilty for the offence under
section 376 [2] [f] I.P.C. and section 302 of I.P.C.
10. In the result, this Criminal Appeal is dismissed and the
conviction and sentence inflicted by the III-Additional District and
Sessions Judge, Kakinada, vide judgment in S.C.No. 598 of 2011, dated
27/06/2012 for the offences punishable under section 376 [2] (f) and
section 302 I.P.C. is hereby confirmed.
11. As a sequel, miscellaneous petitions if any, pending in this
Criminal Appeal shall stand closed.
____________________
JUSTICE C. PRAVEEN KUMAR.
_______________
JUSTICE J. UMA DEVI
31/01/2018
VHB - I s L
HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HONOURABLE MISS. JUSTICE J. UMA DEVI
CRIMINAL APPEAL NO. 47 OF 2013
[ Per the Hon'ble Sri Justice C. Praveen Kumar ]
Date: 31/01/2018
Circulation No.
Court Master : VHB - I s L
