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2025 DIGILAW 333 (TS)

L. Vickey, Secunderabad v. State Of Telangana

2025-04-16

N.TUKARAMJI, P.SAM KOSHY

body2025
JUDGMENT : N. TUKARAMJI, J. 1. This appeal is filed by the sole accused/convict/appellant (hereinafter, ‘the accused’) challenging the judgment of conviction and sentence dated 09.06.2014 in S.C.No.688 of 2013 passed by the V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad. 2. In the impugned judgment, the accused was convicted for the offences under Sections 376 and 324 of the Indian Penal Code, 1860 (for short, the ‘IPC’) and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.1,000/- in default simple imprisonment for one year for the offence under Section 376 IPC, and rigorous imprisonment for two years and pay a fine of Rs.500/- in default simple imprisonment for six months for the offence under Section 324 IPC. 3. We have heard Mrs. T. Bala Jayasree, learned Legal Aid Counsel for the appellant, and Mr. Syed Yasin Mamoon, learned Additional Public Prosecutor for the respondent-State. 4. The prosecution case, in brief, is that on 17.04.2012 in the evening at about 5:45 p.m., when the victim girl/PW-2 went to a shop in her residential locality to purchase some stationery items, i.e., a scale, pencil, and rubber, and while returning, a person/accused introduced himself. After a brief talk, he took her to the rock side bushes situated at Chinna Kamela, gave her Rs.200/-, removed her clothes, bite on her chest and lips, closed her mouth to stop her cries, pushed her down, laid over her, and forcibly tried to have intercourse, however, he left her. Thereafter, the victim girl/PW-2 returned home and informed her mother/the de facto complainant/PW-1 about the incident. After a short search to trace the accused, a police report was lodged. 5. Thereupon, Crime No.53 of 2012 was registered by the Police Station, Thirumalaghery, and after due investigation, the charge sheet was laid against the accused under Sections 376 and 324 IPC. 6. The XI Additional Chief Metropolitan Magistrate, Secunderabad, took cognizance of the offences under Sections 376 and 324 IPC and committed the matter to the Sessions Division under P.R.C.No.32 of 2013. 7. Thereafter, the Sessions Case was registered and made over to the trial Court. In the trial, the prosecution examined PWs.1 to 15 and marked Exs:P-1 to P-13. 8. The incriminating material was confronted to the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short, the ‘Cr.P.C.’). 7. Thereafter, the Sessions Case was registered and made over to the trial Court. In the trial, the prosecution examined PWs.1 to 15 and marked Exs:P-1 to P-13. 8. The incriminating material was confronted to the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short, the ‘Cr.P.C.’). Though the accused denied the material evidence against him, he did not choose to put up any defence evidence. 9. The learned Sessions Judge, after analyzing the evidence, concluded that the accused was found guilty of the offences under Sections 376 and 324 IPC, recorded the conviction, and sentenced him as mentioned above. 10. Aggrieved by the impugned judgment of conviction and sentence, the accused preferred this appeal. 11. Learned counsel for the accused contended that the Court below ought to have observed the variance in the versions of the material witnesses as to the time of occurrence. The contradictions and omissions in the statements of the witnesses under Section 164 of the Cr.P.C. and in the evidence before the Court should have been taken into account. Particularly, with regard to the identity of the accused, the victim had referred to one Ramesh as the assailant, but the name of the accused is quite distinct, and the identification of the victim in the test identification parade could have been by tutoring. Howsoever fairly admitted that the medical evidence points to some occurrence, the evidence on record falls short in proving the involvement of the accused. The evidence of the shopkeeper/PW-8 discloses that he had previous acquaintance with the accused, whereas in his statement under Section 164 of the Cr.P.C., he mentioned the accused as a stranger. Further, the evidence of PW-3 to connect the accused’s visit to the shop and purchase of a gutka packet is apparently artificial. On the other hand, the Court below failed to consider and disregarded the defence that this false case has been foisted to get the accused vacated from his rental premises. The improvements and discrepancies in the evidence of the witnesses and their interestedness are giving rise to a significant amount of doubt on the prosecution case; hence, the accused should have been acquitted, at least on the benefit of the doubt. Thus, interference was prayed for. 12. The improvements and discrepancies in the evidence of the witnesses and their interestedness are giving rise to a significant amount of doubt on the prosecution case; hence, the accused should have been acquitted, at least on the benefit of the doubt. Thus, interference was prayed for. 12. Learned Additional Public Prosecutor pleaded that the Sessions Court had done a thorough assessment of the evidence and rightly passed the impugned judgment of conviction and sentence. He highlighted that the victim girl named the accused as he introduced himself with a name and the victim referring to that name cannot be considered a discrepancy, particularly as the victim girl identified the accused in the test identification parade. The medical evidence further supports the manner of the occurrence narrated by the victim. Therefore, the prosecution evidence is corroborating on material particulars, establishing the charges of the heinous offence against the accused beyond a reasonable doubt. Hence, the appeal is liable to be dismissed. 13. We have considered the submissions of the learned counsel and perused the materials on record. 14. Now, the aspect that arises for determination is: “Whether the prosecution was successful in proving the guilt of the accused for the charges under Sections 376 and 324 IPC?” 15. The evidence of the victim girl/PW-2 is that on the relevant day, she returned home from school in the afternoon and thereafter went to a shop to purchase a pencil and rubber. The mother of the victim/de facto complainant/PW-1 deposed that on the relevant date, the victim girl/PW-2 informed her that she went to the shop at about 5:30 to 5:45 p.m. The shopkeeper/PW-8 has deposed that in the month of April, at about 5:30 or 6:00 p.m., the victim girl came to his shop to purchase a scale, pencil, and rubber. However, in the statement/Ex.P-7 recorded under Section 164 of the Cr.P.C., the victim girl has not specifically referred to the time at which she visited the shop. 16. By the above-read evidence, the victim girl's statement is about returning from school in the afternoon and then going to the shop. Thus, it is clear that the afternoon has been referred to only in regard to her returning from school. Further, the versions given by the mother of the victim girl/PW.1 and the shopkeeper/PW.8 consistently establish that the victim girl went to the shop only in the evening. Thus, it is clear that the afternoon has been referred to only in regard to her returning from school. Further, the versions given by the mother of the victim girl/PW.1 and the shopkeeper/PW.8 consistently establish that the victim girl went to the shop only in the evening. Though there is a slight variance in the referred time, the material aspects, i.e., the victim girl visiting the shop for purchasing stationery items, the presence of the accused, and the presence of PW.8, are consistent and unrebutted. Therefore, the contention that there is an inconsistency in the time is not persuasive enough to hold that there is a material discrepancy. 17. In regard to the occurrence, the victim girl has narrated the manner of occurrence. The medical evidence of the doctor/PW-11 is clear that on medical examination, he found congestion of the sub-urethral area, but the hymen was intact, along with swelling on the forehead, a clot on the upper lip, bruises around both nipples, and a fresh scratch mark on the left foot. Further, based on the FSL report, the final report/Ex.P-10 was issued, opining that the victim was sexually assaulted and rape could not be ruled out. Thus, the statement of the victim girl corroborates the medical evidence. 18. It is a settled proposition that the evidence of a prosecutrix, being more reliable than that of an injured witness, carries significant weight and shall not be lightly suspected; corroborative evidence is not imperative unless there are compelling reasons. Above all, a conviction can be founded on the sole testimony of the prosecutrix if it is of sterling quality. In the case at hand, as there is no other reason for the victim to speak falsehood, and in view of the corroborating materials as noted about the occurrence, it shall be taken as established. Pertinently, the accused has not disputed the occurrence but has contested his involvement. 19. To prove the identity of the accused, the prosecution relied on the statements of the victim girl/PW-2, the shopkeeper/PW-8, and the test identification parade conducted by the Magistrate/PW-10. The accused, in defence, attempted to highlight the version given by the victim girl. 20. The victim girl mentioned that one Ramesh called and took her with him. However, before the Court, the victim pointed to the accused alone. 21. The shopkeeper/PW-8 did not mention the name of the accused. The accused, in defence, attempted to highlight the version given by the victim girl. 20. The victim girl mentioned that one Ramesh called and took her with him. However, before the Court, the victim pointed to the accused alone. 21. The shopkeeper/PW-8 did not mention the name of the accused. In the statement of the shopkeeper/PW-8 recorded under Section 164 CrPC, the items said to have been purchased by the accused were detailed, and only the extent to which the accused had taken the victim girl was mentioned. But before the Court, the shopkeeper stated about witnessing the victim coming from the bushes while weeping. 22. The other factor is the identification of the accused by the victim in the test identification parade before the Magistrate. 23. When these materials are carefully analyzed, the versions of the victim and the shopkeeper/PW-8 regarding the presence of the accused at the scene and his taking away the victim girl are consistent. Further, considering the age of the victim girl, physically identifying the accused in the test identification parade holds more weight than the name referred to, which was informed by the accused himself. 24. The contention of the accused that this false case is foisted against him only to evict him from his rental accommodation is not convincing, for the reason that there is no material indicating that the victim girl or her family has any connection with the so-called accused's accommodation to create a false case to this extent of sparing the actual assailant. Further, the version given by PW-9 regarding the investigation conducted through the dog squad refers to it going up to Edward Compound, which is the residential location of the accused, and this is also another circumstance against the accused. 25. In addition, the statement of the victim girl as to the sexual assault and causing hurt corroborates the medical evidence and has remained undisturbed, except for the suggestion. 26. At this juncture, we would clarify that although we have referred to the versions of the witnesses recorded under Section 164 Cr.P.C., these cannot be substantive evidence. At best, when the deponent is in the witness box, their earlier statement recorded under Section 164 Cr.P.C. can be used for contradiction or corroboration under Section 145 or 157 of the Indian Evidence Act. In the instant matter, such elicitation has not been done by the defence. 27. At best, when the deponent is in the witness box, their earlier statement recorded under Section 164 Cr.P.C. can be used for contradiction or corroboration under Section 145 or 157 of the Indian Evidence Act. In the instant matter, such elicitation has not been done by the defence. 27. Further, it is also well settled that witnesses, based on their understanding and comprehension, have every likelihood of variance and improving or exaggerating the witnessed events. In a similar context, the Hon’ble Supreme Court in Subal Ghore v. State of West Bengal, (2013) 4 SCC 607 held in para 38 that experience shows that witnesses do exaggerate; however, on account of such embellishments, the evidence of witnesses need not be discarded if it is corroborated on material aspects by the other evidence on record. 28. On the touchstone of the above dictum, as the evidence of the witnesses is clinching and consistent in pointing to the involvement of the accused in the offence, it would be improper or unreasonable to discard the prosecution case based on certain differences in peripheral aspects. 29. In this view, we are of the considered opinion that the conviction recorded against the accused in the impugned judgment for the offence under Sections 376 & 324 of IPC deserves to be and is accordingly confirmed. 30. Nonetheless, having regard to the manner of occurrence and considering the gravity, we find that the imposition of the maximum sentence of life would be disproportionate. Having regard to the age of the appellant, imposing the minimum prescribed sentence in place of life imprisonment would subserve the ends of justice. Accordingly, the substantive sentence under Section 376 IPC is modified to rigorous imprisonment for TEN YEARS, while maintaining the fine, default sentence, and the sentence imposed under Section 324 IPC. 31. In the result, the appeal is allowed in part. While confirming the conviction under Sections 376 and 324 IPC, the sentence imposed under Section 376 IPC is modified to a sentence of TEN YEARS, by maintaining the other portions of the sentence imposed under Sections 376 and 324 of IPC in the impugned judgment. Both the sentences shall run concurrently. As a sequel, pending miscellaneous petitions, if any, shall stand closed.