Telangana High Court
Mohd Raheem, Hyd vs Sho, Punjagutta P.S., Hyd on 21 November, 2024
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.125 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant was convicted for the offence under Section
376 IPC and sentenced to undergo imprisonment for life vide
judgment in S.C.No.412 of 2012 dated 25.01.2016 passed by the
V Additional Metropolitan Sessions Judge(Mahila Court),
Hyderabad. Aggrieved by the same, present Appeal is filed.
2. Heard Sri P.Prabhakar Reddy, learned Senior Counsel for
the appellant and Sri Arun Kumar Dodla, learned Additional
Public Prosecutor for the State.
3. Briefly, the case of the prosecution is that the appellant was
working as an Attender in the Rajbhavan. His marriage with
P.W.1/complainant had taken place in the year 1994 and she
has two daughters, who are the victims, examined as P.Ws.2 and
3. All of them were staying in the quarters in the Raj Bhavan.
4. On 09.10.2010, P.W.1 went to the Osmania Hospital at 9.00
a.m and returned at 1.00 p.m. When she came back, P.W.2
opened the door and second daughter/P.W.3 was in the bath
room. P.W.1 questioned as to what happened and why were they
scared, they did not state anything. However, on repeated
questioning by P.W.1, P.W.3 informed that his father was
chasing, she went inside the bathroom and closed the door. On
further questioning, both P.Ws.2 and3 informed that when P.W.1
went to Karnataka to visit her father in the third week of
December, 2009, the appellant raped both P.W.2 and P.W.3,
daughters repeatedly, during the said time. Both P.Ws.2 and 3
further informed that the appellant threatened to die if they
reveal his acts to anyone. On the same day, the appellant,
returned home and when questioned, he fell on their feet. P.W.1
then went to her parents in Karnataka and brought them from
Karnataka. Panchayat was held in the presence of P.W.4/father
of P.W.1, P.W.5/brother of the appellant, P.W.6, who is brother-
in-law of the appellant and other elders. It was decided by the
elders that according to Islamic law, if the father rapes the
daughter, he should not be allowed to stay in the house, as such,
the appellant left the house. Again four or five days thereafter, he
came to the house on the ground that there were some articles in
the house. Thereafter, complaint was filed with the police on
02.11.2010.
5. The police conducted investigation and filed charge sheet
against the appellant. Learned Sessions Judge found favour with
the version of P.Ws.1 to 3 and convicted the appellant.
6. Learned counsel appearing on behalf of the appellant would
submit that there is delay of nearly ten months in lodging the
complaint. According to P.Ws.2 and 3, the date of committing
rape on them was on 18.12.2009 and 20.12.2009, however, the
incident was disclosed on 09.10.2010 to P.W.1. There is a delay
of ten months in disclosing the incident to P.W.1. The complaint
was filed on 02.11.2010 again with the delay of 22 days after
P.W.1 being informed. It is not in dispute that P.W.1 gave divorce
(khula) to the appellant on 14.10.2010. Since Khula divorce was
not accepted, false complaint was filed on 02.11.2010.
7. Learned counsel further submitted that the conduct of
P.W.1 is abnormal and unnatural since P.W.1 left both the
children in the house and went to Karnataka to meet her parents
after they complained of rape. If at all the daughters complained
that their father raped them, the mother would have taken both
the children along with her to Karnataka and would not have left
them in the house.
8. Learned counsel further argued that according to P.W.1, she
went to Karnataka on 16.12.2009 and returned to Hyderabad
after ten days. P.W.1's father/P.W.4 was operated. Even
according to her admission, the appellant visited her father when
he was in hospital and the appellant also went there. Thereafter,
all of them returned to Hyderabad. In the said circumstances the
question of committing rape does not arise. He relied on the
judgment of the Hon'ble Division Bench of Punjab and Haryana
High Court reported in the case of Avinash Kumar Sharma @
Avinish v. State of Haryana 1. The Division Bench of Punjab and
Haryana High Court was dealing with the case wherein it was
alleged that the accused there in who was a Maths teacher
committed rape on the victim girl. In the facts and
circumstances, the Hon'ble Division Bench found that when
there was delay of six months in lodging the complaint and
further medical examination did not reveal that there was any
sexual assault by the appellant, benefit of doubt was extended.
The Hon'ble Division Bench further found that the statement of
the victim girl cannot be termed as gospel truth without any
corroboration through medical evidence.
CRA-X-1833-DB-2014 (O&G), dated 09.08.2022
9. Learned counsel also relied on the judgment of the Hon'le
Supreme Court in P.Yuvaprakash v. State, rep. by Inspector of
Police 2 , the Hon'ble Supreme Court was dealing with a case
wherein the victim's age was not proved. Learned counsel argued
that though it was alleged that at the time of the incident, victims
were aged 13 and 14 years, nothing was placed on record.
10. On the other hand, learned Additional Public Prosecutor
supported the findings of the learned Sessions Judge and argued
that delay is of no consequence since the victims are the
daughters of the appellant. Since the appellant threatened both
his daughters, they have not informed their mother and after
revealing about the rape after persistent questioning by the
mother/P.W.1, complaint was filed.
11. The case of the prosecution is that the appellant, who is the
father of P.Ws.2 and 3 committed rape on minor daughters, who
were aged 13 and 14 years. The appellant was convicted under
Section 376 of IPC, as such, the argument of the learned counsel
for the appellant that the age was not proved, is of no
consequence. The appellant was not convicted for committing
rape on minor girls, as such the judgment relied on by the
2023 SCC OnLine SC 846
learned counsel in P.Yuvaprakash's case (supra) is of no help to
the appellant.
12. The main thrust of the argument of the counsel is that there
was a delay of ten months in lodging the complaint. The said
delay was in fact, explained by the victims themselves stating
that the appellant had threatened to kill himself if at all the
incidents were revealed by them to anyone. To the recollection of
the victims, the rape was committed on them when their
mother/P.W.1 went to her father's place in Karnataka. The exact
dates were given, however, any discrepancy regarding date will be
of no consequence since the victim girls had revealed the incident
after ten months of the incident and the girls were continuously
raped in the absence of P.W.1.
13. As seen from the evidence of the Doctor/P.W.8, she
examined both P.W.2 and P.W.3. According to the Doctor, hymen
was not intact for both girls and vagina was admitting two fingers
for both the girls. According to P.W.8, the girls may be habituated
to sexual intercourse.
14. It is the case of P.W.1 that after her daughters P.Ws.2 and 3
informed her, she confronted the same with the appellant.
Thereafter, panchayat was held, in which, several elders were
present including P.Ws.4, 5 and 6. P.W.4, who is the father of
P.W.1 stated that in the Panchayat, the appellant remained silent
when questioned about his committing rape on the girls and it
was decided that the appellant will not reside with P.Ws.1 to 3, as
such, he left the house, however, he again came back. For the
said reason, they have decided to lodge report.
15. The appellant was working as an attender, who had
permanent job. P.W.1 gave divorce (khula). In Muslim
community, Khula means divorce given by the wife to the
husband. The reason given by P.W.1 is because the appellant
committed such heinous crime on their children, she divorced
the appellant. Though P.W.5/brother of appellant and
P.W.6/brother-in-law of the appellant were declared hostile,
however, they stated that they attended panchayat regarding
disputes in between P.W.1 and the appellant. Both P.Ws.5 and 6
having admitted that there was panchayat, ought to have given
details as to why a panchayat was held. The prosecution version
as narrated by P.W.1 and P.W.4 that panchayat was held is
corroborated by P.Ws.5 and 6. Evidence of P.Ws.5 and 6 lend
corroboration and credibility to the version of P.W.1.
16. In such cases, where the father rapes his two daughters
continuously over a period of time, it cannot be said that the
events that transpired has to be given with mathematical
precision. Both the victims/P.Ws.2 and 3 were living in the house
and their father committed rape on them. Minor discrepancies in
the evidence are bound to occur. Such discrepancies which do
not go to the root of the case, cannot be considered. No reason is
given as to why wife and two children of the appellant would
speak against him on the allegation of committing rape. The
evidence of both P.Ws.2 and 3 is believable which is supported by
Doctor's evidence and nothing is placed on record to suggest even
remotely that they were speaking false against the appellant.
17. The judgment in Avinash Kumar Sharma's case has no
application to the present facts of the case. That case was a
solitary instance of rape and the delay of six months mattered. As
already discussed, the present case is one of rape of two
daughters by the father over a period of time continuously.
18. In view of above facts and circumstances, there are no
grounds to interfere with the findings of well reasoned judgment
of the trial Court.
19. Accordingly, Criminal Appeal is dismissed. However,
keeping in view the age of the appellant and also that the
minimum punishment is 10 years, the sentence of life
imprisonment is altered to 15 years rigorous imprisonment.
__________________
K.SURENDER, J
____________________________________
ANIL KUMAR JUKANTI, J
Date : 21.11.2024
kvs
