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2023 DIGILAW 295 (TS)

Vadde Narshimuluvs v. State of Telangana

2023-04-12

G.ANUPAMA CHAKRAVARTHY

body2023
JUDGMENT : This appeal is preferred against the judgment in S.C.No.35 of 2015 on the file of I-Additional District and Sessions Judge, Medak at Sanga Reddy, dated 18.06.2019, whereby, the accused was found guilty for the offence punishable under Section 376(2)(F) of IPC and accordingly he was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of three months. However, the accused was not found guilty for the offence punishable under Section 6 of POCSO Act. 2. The case of the prosecution in nutshell is that the accused has committed rape on the victim girl. PW-1/father of the victim, preferred a report, basing on which, a case was registered against the accused in Crime No.87 of 2015 of P.S. Sanga Reddy (Rural), for the offence punishable under Section 376(2)(F) of IPC and also under Section 6 of POCSO Act. 3. Heard learned counsel for the appellant as well as Sri S.Ganesh, the learned Assistant Public Prosecutor appearing for respondent No.1-State. 4. PW-1 is the father of the victim girl; PW-2 is the victim; PW-3 is the mother of the victim girl; PW-4 is the sister of the victim; PW-5 is the Nephew of PWs.1 and 3; PW-6 is the brother-in-law of PW-1, who turned hostile and Ex.P-2 is marked through him; PW-7 is the panch witness to the scene of offence and Ex.P-3 is the scene observation report and seizures are made as per Ex.P-4; PW-8 is the person who acted as panch witness for the arrest of accused and seizure of the motorcycle; PW-9 is the woman Inspector of Police, who recorded the statement of victim girl and seized the dress of the victim girl under Ex.P-4; PW-10 is the Doctor who examined the victim and opined that the incident might have occurred and Ex.P-6 is the report given by her; PW-11 is the Sub-Inspector of Police who registered the case and issued Ex.P-7/FIR; PW-12 is the investigating officer, who investigated the case and filed charge sheet against the accused for the aforesaid offences. 5. The case of the prosecution is that 19 days prior to the incident, the marriage of the accused was performed with PW-4, who is the elder daughter of PWs.1 and 3. 5. The case of the prosecution is that 19 days prior to the incident, the marriage of the accused was performed with PW-4, who is the elder daughter of PWs.1 and 3. Whenever the accused used to come to the house of PW-1, he used to comment on the victim stating that she was looking good. On 26.03.2015 at about 3 p.m., the accused came to the house of PW-1 and informed that PW-4 was suffering from ill-health and asked her to take to hospital. On that, PW-1 along with PW-3, her two daughters and the accused came to Sanga Reddy. As there was scarcity of money, they went to local pawn-broker’s shop to mortgage the ear-tops of PW-4. In the meanwhile, the accused took the victim girl/PW-2 on his motorcycle from the old bus stand stating that she will be given fruit juice. After an hour, while PW-1 and the family members were waiting, the accused dropped the victim girl and fled away. PW-1 and others noticed the victim crying and her clothes were torn. When confronted, she told that the accused took her to a newly developed venture on his motorcycle, threatened her to listen to him, otherwise he will kill PW-4, took her forcibly by holding hands into the bushes, pushed her on to the ground and forcibly committed rape on her. PWs.1 and 3 went home, seriously thought about the future of PW-4 and finally on the night of 27.03.2015, went to the Police Station and preferred a report. Basing on it, PW-11/the Sub-Inspector of Police registered the case. PW-12 took up investigation and during the course of investigation, he recorded the statement of PW-1, basing on the information given by the Woman Sub-Inspector of Police/ PW-9. On 28.03.2015, they visited the house of the complainant/ PW-1, inquired with PW-2, recorded her statement and further seized the clothes of the victim, which were alleged to have been washed by her mother i.e. PW-3, recorded the statements of witnesses. Later observed the scene of offence, prepared the scene observation panchanama, caught hold of the accused, got the accused as well as the victim examined by the medical officers and after receiving the reports, laid charge sheet against the accused. It is pertinent to mention that the statements of PWs.1, 2 and 4 were also got recorded under Section 164 of Cr.P.C. by the Junior Civil Judge, Narsapur. It is pertinent to mention that the statements of PWs.1, 2 and 4 were also got recorded under Section 164 of Cr.P.C. by the Junior Civil Judge, Narsapur. 6. It is the contention of the learned counsel for the appellant that a false case has been lodged against the appellant and the defence taken by the accused was that PW-4, who is his wife, was not interested to live with him and as such, at the instance of PW-2, she filed the false complaint in order to get rid of him. Further, it is contended that there is delay of 36 hours in filing the report. Even as per the evidence of PWs.1 to 4, though the victim has reported about the incident immediately after the offence, as to why PWs.1 to 4 kept silent for 36 hours, is not at all explained by the prosecution. Therefore, prayed to set aside the judgment of the trial court. 7. On the other hand, the learned Public Prosecutor contended that the prosecution is able to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section 376(2)(F) of IPC, and therefore, prayed to confirm the judgment of the trial Court. 8. Now, the point for consideration in this appeal is; “Whether the trial Court is right in convicting the appellant and whether any interference is required with the judgment of the trial Court ?” 9. It is evident that the charges were framed against the appellant for the offence punishable under Section 376(2)(F) of the Criminal Law (Amendment) Act, 2013 and under Section 6 of the POCSO Act, 2012. As per Charge No.1, on 26.03.2015 between 4.00 and 6.00 p.m., the appellant/accused, being the close relative of the victim aged about 17 years, has committed forcible rape on her, beside the bushes near the road from Pothireddipally to Kothlapur. 10. It is relevant to mention that Section 376(2)(F) of the Criminal Law (Amendment) Act, 2013 clearly disclose that whoever being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, shall be punishable. 11. Admittedly, the accused is the husband of PW-4, who is none other than the sister of the victim i.e. PW-2. 11. Admittedly, the accused is the husband of PW-4, who is none other than the sister of the victim i.e. PW-2. It is important to note that the age of the victim was mentioned as 17 years but the trial Court has come to the conclusion that she was about 18 years, and therefore, acquitted the accused for the offence under Section 6 of POCSO Act, but as alternate charge has been framed under Section 376 (2)(F) of IPC, the accused was convicted and sentenced to suffer imprisonment for a period of ten years. 12. The evidence on record is that of PWs.1 to 3 in order to prove the guilt of the accused. PW-1 is testified that the marriage of the accused with PW-4 took place only 15 to 20 days prior to the incident. One day prior to the incident, PWs.1 to 3 visited the house of the accused to attend a Jatara, which is a local festival of the village on the invitation of PW-4 and after the festival, they returned to their village. He further testified that on the next day at about 3 p.m., the accused came to their village on a motorcycle and informed that PW-4 was suffering with fever. On that, they all went to the hospital at Sanga Reddy and as they are in need of money, the accused went to pledge gold ear-studs of PW-4 and that they all accompanied the accused to the pawn-broker’s shop. Later, the accused took the victim girl on the motorcycle on the pretext of providing fruit juice and after some time, PW-2 was brought on the motorcycle and was handed over to them. They all noticed PW-2 weeping and her clothes were torn. On inquiry, PW-2 informed about the incident (i.e. the accused committing rape on her beside the bushes). Further, PW-2 also informed them that accused threatened to kill PW-4 if she informs about the incident to any one. On that, they all returned home and his wife washed the clothes of PW-2 and on the next day, they preferred Ex.P-1/report. In the cross-examination, he deposed that he does not know as to who was the scribe of Ex.P-1 and that they performed the marriage of their elder daughter with the accused against her will and that PW-4 was not willing to join accused after marriage. In the cross-examination, he deposed that he does not know as to who was the scribe of Ex.P-1 and that they performed the marriage of their elder daughter with the accused against her will and that PW-4 was not willing to join accused after marriage. But they sent PW-4 forcibly to the house of the accused against her will. 13. The evidence of victim/PW-2 is also on the same lines as that of PW-1, but she has specifically stated that after pledging the gold ornaments of PW-4, the accused informed her parents that he would purchase artificial ear-studs to PW-4 and also provide fruit juice to her and took her on his bike and stated to the victim girl that she is beautiful than her sister and he wants to marry her, but she refused his proposal. On that, the accused forcibly took her towards the bushes adjacent to the newly constructed house, beat her, forcibly committed rape and threatened not to disclose it to anybody and later dropped her near her parents at bus stand. As the parents found her clothes torn, they inquired and she informed the acts of the accused of committing rape on her. She also admitted that the complaint was filed after a lapse of 36 hours and M.Os.1 to 3 are her clothes, M.O.4 is the leather wallet and M.O.5 is the Aadhar card of accused. In the cross-examination, PW-2 admitted that she got married in the month of August 2016 and was residing with her husband, namely, Sai Kiran and that PW-1 performed the marriage of her elder sister/PW-4 with the accused against her will and PW-4 was not willing to join the company of accused even after the marriage. Further, PW-4 got married with one Yadagiri belonging to Kandi village. Further, PW-2 admitted in the cross-examination that whatever she stated in the chief-examination is false and gave evidence against the accused at the instance of PWs.1 and 4, which clearly disclose that PW-2 has resiled from her statement recorded under Section 161 Cr.P.C. including the evidence before the Court. But, for the reasons best known to the prosecution, even at that stage, she was not declared as hostile. 14. The evidence of PWs.3 and 4 is on the same lines as that of PWs.1 and 2. Admittedly, PWs.1, 3 and 4 are not eye witnesses to the incident. 15. But, for the reasons best known to the prosecution, even at that stage, she was not declared as hostile. 14. The evidence of PWs.3 and 4 is on the same lines as that of PWs.1 and 2. Admittedly, PWs.1, 3 and 4 are not eye witnesses to the incident. 15. PWs.5 and 7 are said to be the relatives of PWs.1 and 2, but their evidence is in no way helpful for the prosecution to prove the incident. As stated supra, PW-6 has turned hostile and Ex.P-2 is his statement recorded under Section 161 Cr.P.C. The other witnesses in this case are official witnesses. The trial Court has relied on the medical report and oral evidence of the prosecution witness i.e. PW-10 and came to the conclusion that as the vagina is admitting two fingers freely, and therefore, the rape might have occurred. 16. The place of incident as stated by the victim is not corroborated by PWs.7 and 12, which is near the bushes. There is no evidence on record to show that the Police have gone to the scene of offence i.e. the place where the victim was allegedly raped. The crime detail report is also not on record. The scene of offence is shown as that of the house of PW-1 and clothes were recovered under the cover of Exs.P-3 and P-4/panchanamas, for recovery of clothes. Ex.P-5 is the confession and recovery panchanama. Admittedly, the confession of the accused is hit by Section 25 of the Indian Evidence Act. It is the case of the prosecution that the motorcycle on which the victim has been taken, has been recovered. As there is no question of hiding the motorcycle, the confession leading to its recovery cannot be taken into consideration. Ex.P-8 is the potency certificate of the accused, but it is not helpful to the case of the prosecution, as it is specifically mentioned by PWs.1 to 3 that the clothes of the victim were washed, therefore, there were no spermatozoa on the clothes. The bona fide certificate of PW-2 is marked as Ex.P-7 and as per the said certificate, the date of birth of the victim/PW-2 is 15.01.2000. The date of offence is 26.03.2015. However, the prosecution has not examined the Headmaster of the school or the person who has issued the bona fide certificate, so as to consider the same. The bona fide certificate of PW-2 is marked as Ex.P-7 and as per the said certificate, the date of birth of the victim/PW-2 is 15.01.2000. The date of offence is 26.03.2015. However, the prosecution has not examined the Headmaster of the school or the person who has issued the bona fide certificate, so as to consider the same. Even if this bona fide certificate is taken into consideration, the age of the victim as on the date of offence would be only 15 years, but it is the specific contention of the learned counsel for the appellant/accused that the age of the victim was 17 years as on the date of offence. As already stated supra, the trial Court has acquitted the accused of the charge under Section 6 of the POCSO Act, as such, there is no necessity to discuss on that aspect. 17. Coming to the delay in lodging of complaint, none of the prosecution witnesses have deposed before the Court as to why there is delay in preferring the report. Moreover, they all in one tone, stated that PW-1 has performed the marriage of PW-4 with the accused, but, PW-4 was not willing to join the matrimonial house of the accused, but she was forcibly sent to the house of the accused. Therefore, there is every possibility for them to file a false complaint against the accused in order to get rid of him. Further, the evidence of PW-4 herself discloses that she got married with one Yadagiri in the year 2016 itself and is residing with him in Kandi village i.e. after the accused was remanded to judicial custody. None of the witnesses have spoken whether divorce took place between the accused and PW-4 or not. On the other hand, the victim herself deposed that she got married with another person and is living happily. No proper explanation was given by the prosecution witnesses/PWs.1 to 4 as to why there was delay of 36 hours in filing report, which is fatal to the case of prosecution. In the absence of corroborating evidence, it is not safe to rely on or believe the evidence of PWs.1 to 4, as they are not trustworthy. There is no incriminating material against the accused. Even the scene of offence is not proved by the prosecution. In the absence of corroborating evidence, it is not safe to rely on or believe the evidence of PWs.1 to 4, as they are not trustworthy. There is no incriminating material against the accused. Even the scene of offence is not proved by the prosecution. The evidence of the Doctor only suggests that rape might have occurred, even she did not spell the word that the victim might have been assaulted sexually, and therefore, the medical evidence also does not support the incident. Merely filing of the document will not prove its contents. The age of the victim was also not proved. Therefore, it can be construed that the prosecution has miserably failed to prove the guilt of the accused for the offences for which he was charged and the judgment of the trial Court is liable to be set aside. 18. In the result, this appeal is allowed, setting aside the judgment dated 18.06.2019 in S.C.No.35 of 2015 on the file of I-Additional District and Sessions Judge, Medak at Sanga Reddy. The appellant shall be released forthwith, if not required in any other case. M.Os.1 to 4 shall be destroyed after appeal time is over and M.O.5/Aadhar card and M.O.6/Motorcycle of appellant/accused shall be returned to him. Pending miscellaneous applications, if any, shall stand closed.