Telangana High Court
Mohd Salman, Hyderabad., vs The State Of Telangana, Rep Pp., on 3 January, 2025
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1097 OF 2015
JUDGMENT:
The appellant/Accused filed this appeal questioning the
conviction recorded by the I Additional Metropolitan Sessions
Judge-cum-Special Judge for Trial of Cases under Protection of
Children from Sexual Offences Act, Hyderabad, in PCS Sessions
Case No.10 of 2014, dated 25.03.2015, for the offences under
Section 6 of Protection of Children from Sexual offences Act and
sentenced to undergo Rigorous Imprisonment for a period of ten
years and to pay a fine of Rs.1,000/-.
2. Heard Ms.Mudumba Lakshmi, learned counsel for the
appellant and learned Assistant Public Prosecutor for the
respondent State.
3. The case of the prosecution is that on 15.12.2013, at 11:30
am, a complaint was lodged by PW1-Fathima Begum, stating that
on 14.12.2013, at 1:00 pm, her daughter, Ayesha Bano-victim girl
(PW.2), aged about 14 years, left home, informing them that she was
heading to a beauty parlour near the Fire Station, Moghalpura,
where PW1's 4th daughter works as a beautician. Upon visiting the
beauty parlour, PW1 discovered that her daughter had not arrived
there. PW1, along with family members, searched extensively but
could not find her daughter. PW1 suspected that unknown
individuals might have kidnapped her.
4. Based on the complaint of PW.1, LW.28 registered a case vide
Crime No.187/2013, under Section 363 IPC, and PW.14 commenced
further investigation.
5. While efforts to locate the victim were ongoing, on 18.12.2013,
at 8:00 am, PW1, accompanied by her daughter (the victim/PW2)
and PW3 (the father of PW2), visited P.S Bhavani Nagar. They
informed PW.14 that PW2 had been sexually assaulted by certain
individuals near Pahadi Shareef and subsequently in a room at
Fathedarwaza. Following this, PW.14 presented them to PW.15, who
took over the investigation.
6. PW.15 recorded detailed statements of PWs. 1 to 3 and
arranged for woman S.I-PW.18 to examine and record PW.2's
statement under Sec.161 of Cr.P.C, which was also video-recorded.
Based on the statements of PWs.1 to 3, the applicable sections of
law were amended from Section 363 IPC to Sections 366, 376 IPC,
the Criminal Law Amendment Act, 2013, and Section 6 of POCSO,
read with Section 34 IPC.
7. During Investigation PW.15 conducted an enquiry with PW.2
regarding the locations of the offences at Pahadi Shareef and
Fathedarwaza. PW.15 proceeded to Scene of Offence-I, an open area
at Pahadi Shareef, where an observation panchanama was
conducted. A rough sketch was prepared, photographs of the
location were taken, and the process was carried out in the
presence of mediators, PWs. 7 and 8. PW15 then visited Scene of
Offence-II, located at H. No. 20-7-429, Fathedarwaza, Hyderabad,
along with the panchas and PW.2. During the observation, PW15
discovered an old bed sheet and PW.2's clothes allegedly worn and
used during the commission of the offence. An observation
panchanama was conducted, and the following items were seized in
the presence of PWs. 7 and 8 : One black-colored pyjama (lower),
One multi-colored kurta (top), One grey-colored blanket. Statements
of PWs.5 and 6, who were circumstantial witnesses, were also
recorded. PW.2 was subsequently sent to the Government Maternity
Hospital for medical examination under the escort of PW.13, where
PW.11 conducted the examination. PW.2 was also referred to
Osmania General Hospital for age determination. PW.16 examined
PW.2 and issued a certificate determining her age as 14-15 years.
On 18.12.2013, at 7:00 pm, PW.15, along with PW14 and other staff
members, acted on credible information and proceeded to the
accused's residence, where the accused was apprehended. His
confession was recorded in the presence of PWs.9 and 10. Based on
the accused's confession, the following items were seized from his
room: One red-colored shirt, one white pant, one chocolate-colored
drawer. The accused was subsequently arrested and sent to
Osmania General Hospital (OGH) for a potency test, where PW.17
conducted the test and provided an opinion. Following this, JICL.1
(Juvenile in Conflict with Law)-Mohd Ali Abbas Ahmed @ Imran,
JICL.2-Azan Bin Abdullah, and JICL.3-Shaik Imran were
apprehended. Their confessions were recorded, their arrests were
executed, and their clothes were seized in the presence of panchas.
LW7 (Mosin Ali), the owner of the motorcycle, was examined by
PW15. His statement was recorded in Part II of the Case Diary. In
the presence of LWs.16 and 17, the motorcycle bearing registration
number AP 12P 1851, which was used in the commission of the
offence, was seized. On requisition by PW.15, PW.19 the Hon'ble IX
ACMM Court recorded PW2's statement under Section 164 Cr.P.C
and conducted a Test Identification Parade (TIP) of the accused and
juvenile boys 1 to 3. The seized materials, including smears from
vaginal introits, Pubic hair and blood sample for grouping were
collected from PW.2 by PW.11. Clothes of PW2 and blanket used
during the commission of the offence, and Clothes of the accused
and JICLs. 1 to 3, were sent by PW.15 for Forensic Science
Laboratory (FSL) examination. LW.22 conducted the examination
and furnished an opinion on the submitted material. PW.15 also
referred the accused and JICLs.1 to 3 for DNA examination. PW.12
conducted the DNA analysis and provided the results. Upon the
transfer of PW.15, PW.20 took over the investigation. PW.20
collected all relevant documents and evidence pertaining to the case
to complete the investigation.
8. The charge sheet was filed against the appellant herein under
Section 366, 376 of Indian Penal Code and also under Section 6 of
the Protection of Children from Sexual Offences Act, 2012. JICL.1
(Juvenile in Conflict with Law), 2 and 3 were charge sheeted before
the Juvenile court.
9. Learned Sessions Judge examined PW.1-mother of the victim
girl, PW.2-victim girl and also PW.3 to PW.20. Exs.P1 to P21 were
also brought on record including MOs.1 to 6 by the prosecution.
10. The victim-PW.2 stated during her examination in Court that
she was raped on 14.12.2013 by JICL and thereafter by the
appellant till 17.12.2013. After the sexual assault by JICL and his
friends on 14.12.2013, PW.2 was dropped on the road and Rs.20/-
was given asking her to board a share auto to Chandrayangutta. At
Chandrayangutta, PW.2 went into the auto of one Imran and
informed that she was assaulted sexually at Pahadi Shareef. Imran
then took PW.2 to his sister's room at Fathedarwaza in an Auto
where he sexually assaulted her on the night of 14.12.2013. The
next day the appellant fought with Imran and his sister and they
went away. Appellant sexually assaulted PW.2 and promised to
marry her. The appellant continued to have sexual intercourse with
PW.2 until 17.12.2013. Then the appellant provided a new dress to
PW.2 and dropped her at her residence at Tallabkatta and fled.
11. PW.1 is the mother of the victim. She narrated about her
daughter missing from 14.12.2013. Though, PW.1 and others made
efforts to trace the victim girl, she was not found. PW.2 then came
back to the house on the evening of 17.12.2013 and informed about
the sexual assault by JICLs.1 to 3 and also the appellant. Further,
PW.2 informed that the appellant had promised to marry her and
dropped PW.2 at her home and then escaped.
12. PW.2 in her cross-examination admitted that she went to
Barkas area on her own after receiving a call from JICL.1. PW.2
further admitted in the cross-examination that she did not change
her clothes including her inner garments from the time she left
home till she returned. PW.2 went to the Police station on
17.12.2013 and her statement was recorded by the Police. The
Police were shown the appellant's house at Fathedarwaza where
panchanama was prepared. On the next day i.e. on 18.12.2013, the
victim girl took the appellants to Pahadi Shareef where she was
assaulted by JICL.1 and his two friends.
13. Learned counsel pointed out the contradictions that crept into
the evidence of PWs.1 and 2. Though, PW.2 stated that her mother-
PW.1 took her to the Police station on the next day i.e. 18.12.2013,
however, PWs.2 and 3 stated about going to the police station on
17.12.2013 itself. PW.2 stated in her cross examination that she
did not change her clothes from the day she left home and returned
on 17.12.2013. However, on 18.12.2013 panchanama was
conducted in the house of the appellant and PW.2's dress i.e.
pyjama, frock and bed sheet were seized. The said contradiction
goes to the root of the case and the Police have deliberately planted
the clothes in the house of the appellant.
14. The items that were seized at Fathedarwaza and also at
Pahadi Shareef were sent for FSL Examination. After FSL
examination and DNA analysis, seminal stains found on the pyjama
of the victim was analyzed as that of JICL.3 namely Shaik Imran,
vide Ex.P14-FSL report.
15. PW.11 is the doctor who examined PW.2. According to PW.11
on the basis of FSL report-Ex.P13, she opined that the hymen was
not intact, vagina admitted one finger, semen and spermatozoa were
detected in the two glass slides and accordingly concluded that
sexual intercourse could not be ruled out.
16. PW.16 is the Assistant Professor working in the Department of
Forensic Science in Osmania Medical College. He examined victim
girl on 18.12.2013 and gave opinion that the victim girl was aged 14
to 15 years and accordingly issued Ex.P18-certificate.
17. The main defence of the appellant is that the conduct of the
victim girl is improbable and her evidence cannot be accepted. The
Police at Fathe Darwaza found that there was no attached bath
room and she was going outside the house. In the said
circumstances it cannot be said that there was any kind of force
used on the appellant or that she was forcibly detained.
18. The defence of the appellant is one of false implication and
that the incident never happned. Admittedly, the appellant is a
stranger to the victim girl-PW.2. After the victim girl was missing on
14.12.2013, she was dropped back home by the appellant on
17.12.2013. The victim girl had taken the Police and identified the
room where rape was committed on her by the appellant at Fathe
Darwaza. In the house, the clothes of the victim were found and
seized. The version of the appellant that he was falsely implicated
cannot be believed. PW.2 has taken the Police to the house of the
appellant and the Police identified the appellant as the person who
had committed rape on the victim girl on 15th, 16th and 17th. There
is no reason as to why PW.2 would falsely implicate the appellant
who in fact was a stranger and no reason is given as to why PW.2
had implicated the appellant. The fact that PW.2 had specifically
identified the place where rape was committed on her on those three
days by the appellant and the clothes being found in the premises
gives credibility to the version of PW.2. PW.2's evidence that she has
not changed clothes would be a minor contradiction in the present
facts of the case. Further, the seminal stain of JICL.3 found on the
wearing apparel of the victim girl reflects the truthful version of
PW.2 and her narration of incidents from 14th to 17th.
19. Even according to the prosecution case, PW.2 knew only
JICL.1 on whose phone call she went and met him and had
undergone the trauma of being sexually assaulted from 14.12.2013
to 17.12.2013.
20. The appellant was also identified during the course of Test
Identification Parade conducted by PW.19. The age of the victim girl
was determined as 14-15 years by PW.16. Even considering margin
of error of '+' or '-' two years, the victim would still be less than 18
years.
21. The version of the accused of false implication is wholly
unconvincing in the background of the medical evidence,
identification of the appellant by PW.2 and also the place of offence.
Further the seizure of the clothes from the residence of the
appellant reflect that sexual assault was committed by the appellant
and others.
22. There are no compelling reasons to interfere with the finding of
the learned Sessions Judge, which are reasonable, probable and
based on record. In the said circumstances, I do not find any
infirmity with the finding of the learned Sessions Judge in
convicting the appellant.
23. Accordingly, the appeal fails and dismissed.
__________________
K.SURENDER, J
Date: 03.01.2025
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HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1097 OF 2015
Date: 03.01.2025
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