Telangana High Court
Vedicherla Satish And Anothers vs The State Of Telangana, Rep By Its P.P on 9 June, 2023
Author: N. Tukaramji
Bench: N. Tukaramji
THE HONOURABLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.585 OF 2014
JUDGMENT:
Heard Mrs. Balla Ravindranath Savithri Devi and Mr. A Dasarath, learned counsel for the appellants and Mrs. Shalini Saxena, learned Assistant Public Prosecutor for the State.
2. Assailing the judgment of conviction and sentence dated 14.05.2014 in S.C.No.51 of 2014 passed by the Metropolitan Sessions Judge, Cyberabad, the appellant/1st and 2nd accused/convicts preferred this appeal.
3. In the impugned judgment the 1st and 2nd appellants/1st and 2nd accused (hereinafter, 'the accused') were found guilty for the offences under Sections 366, 342 and 376(D) of the Indian Penal Code, 1860 (for short 'the IPC') and sentenced to undergo rigorous imprisonment for a period of twenty years and to pay fine of Rs.1,000/- each, in default simple imprisonment for one month, for the offence punishable under Section 376(D) of the NTR,J 2 CRLA_585_2014 IPC. They were also sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1000/- in default simple imprisonment for one month for the offence punishable under Section 366 of the IPC. Further sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 342 of the IPC. The sentences were ordered to run concurrently.
4.1. The prosecution case in brief is that on 18.10.2013 at about 10.50 p.m. one Chaitanya Srinivas/PW-1 filed police report/Ex.P.1 stating that his friend/victim girl/Gori Sharmila/PW-2 (hereinafter 'the victim girl') who has been working as Assistant System Engineer in Tata Consultancy Services (TCS) went to Inorbit Mall for shopping after 5 p.m. At about 07.30 P.M she came out and waited for about 45 minutes for a bus. In the meantime, she informed the situation to her friend/Bharath Kumar/PW-19 and at about 8.30 p.m. she boarded a cab to go to Wipro Circle wherein apart from driver another person were present. As the cab was being taken in wrong NTR,J 3 CRLA_585_2014 direction, the victim girl/PW-2 informed the PW-19 over phone and on his advice, raised screams to stop the vehicle. However, at about 09.12 p.m. the victim girl's phone was switched off. On information from Bharat Kumar/PW-19, the PW-1 along with his friend rushed to the Police Station to lodge the report/Ex.P.1 for necessary action.
4.2. Basing on the report/Ex.P.1, a case in Crime No.914 of 2013 was registered under Section 363 of the IPC and issued First Information Report/Ex.P.24.
4.3 Immediately, Mr.P.Venkateshwarlu, Additional Inspector of Police/PW-20 flashed the information and after recording the statement of the PW-1, visited the hostel of the victim girl/PW-2 for enquiry. In the circumstances, at about 03.00 a.m, the victim girl/P.W.2 reached hostel. As the victim girl suffered bleeding and the same has been continued, in the early hours she was taken to Himagiri Hospital, from there to Continental Hospital, for treatment.
NTR,J 4 CRLA_585_2014 4.4. The victim girl was in shock. However, after arrival of her friend/PW-19 and on persuasion she narrated the incident and as it is a case of sexual assault, the same was entrusted to the Inspector of Police/Smt.K.Madhulatha/PW-18 to record the statements of the victim girl.
4.5. The victim girl/PW-2 made a statement that after shopping she came out from Inorbit mall at about 7.40 p.m. and after waiting for about 15 minutes she boarded one bus to Mind Space Center. From there she informed her friend/PW-19 over phone and on his advice to take cab to go to hostel, she walked towards Mind Space Quality Inn junction where one cab came and on enquiry by its driver, she informed her hostel address and after agreement to pay fare of Rs. 40/-, boarded the vehicle. In that car, apart from the driver, there was another person in the front seat, beside the driver. After some time, by observing that the cab was proceeding in a wrong direction, when questioned she was informed that they are proceeding in a short cut route. On suspicion she called her friend/PW-19 and on his advice she NTR,J 5 CRLA_585_2014 enquired the other person in the car, who informed that they were on correct route. However, as per her friend's/PW-19 advice, she screamed and shouted to stop the car. The other person who was sitting beside the driver, snatched her cell phone and switched it off. The driver locked the windows with central locking system and taken her towards Narsingi Police Academy, from there to unknown place at Kolluru village road, and stopped the car near a school. There both the accused one after the another committed rape on her in the rear seat of the car and threatened her with dire consequences. Later they brought her in the same car and stopped at a distance to her hostel, returned her cell phone and sped away. Thereupon, due to fear, she rushed to room and as she suffered heavy bleeding her clothes were blood stained, washed her clothes and took bath. Later, she was taken to the hospital for treatment. 4.6. On the statement of the victim girl/P.W.2, the section of law registered in the crime was modified and added the Sections 342 and 376(D) of the IPC.
NTR,J 6 CRLA_585_2014 4.7. On 21.10.2013, the PW-20 along with mediators visited the first scene of offence at Mind Space and conducted panchanama as in Ex.P-2, from there proceeded to the outskirts of Kollur village recorded proceedings under panchanama/Ex.P-4 and also prepared rough sketch/Ex.P-3, thereafter went to the hostel of the victim girl and seized blood stained clothes of victim M.Os.5 and 6.
4.8. The victim girl/P.W.2 was sent to Maternity Hospital, Hyderabad for clinical examination where Dr.Aruna Kumari/PW- 16 examined the victim girl and collected biological samples, which in turn were forwarded to the Forensic Science Laboratory for examination. Further, the CCTV footage near Birla Open Mind School, Kollur was collected from Mr.Hariprasad, Adminstrative Officer/PW-5 in a Kingston Pen Drive/M.O.9. The security manager/Sameer/PW-7 of the Inorbit Mall had furnished the CCTV footage of Inorbit Mall in a Compact Disc/M.O.10. The Sub-Inspector of Police, National Investigation Agency/KVB Prasad/PW-8 analysed the CCTV NTR,J 7 CRLA_585_2014 footage and found the car proceeding towards Osman Nagar via Birla Open Mind School at about 00.40 hours and its return at about 0108 hours and with the help of Assistant Sales Manager Mr.Syed Riaz the car was identified to be Volvo S.60 Model/M.O.4.
4.9. On 22.10.2013 at about 8 a.m. the PW-20/investigating officer apprehended the 1st accused near Malasian Township along with the car and produced before the Inspector of Police/PW-21. After interrogation, his statement/Ex.P-9 was recorded in the presence of mediators viz. G.Satyanarana and Bantu Surender/PW-12. In pursuance of the statement, the car which was used in the commission of offence was seized along with his mobile phone/M.O.18, driving licence/M.O.17 and blood stained cloth with which he had cleaned the blood stains on the back seat of the car/M.O.19. Thereafter, the 1st accused led them to his house and produced clothes worn by him at the time of offence/M.O.11-cream colour pant, M.O.12-sky blue colour shirt, NTR,J 8 CRLA_585_2014 M.O.13-blood stained banian and M.O.14-jockey underwear and they were seized under mediator's report/Ex.P-10. 4.10. Following this, they proceeded to the house of 2nd accused. There the 2nd accused was apprehended and after enquiry the statement made by him was recorded and on production, the clothes i.e. black colour pant/M.O.15 and banian/M.O.16 worn at the time of commission of offence by him were seized in the presence of mediators under panchanama/Ex.P.5. Whereupon both the accused were arrested.
4.11. Further the experts of the A.P. Forensic Science Laboratory examined the car/M.O.4 and nine (9) materials were seized in the presence of mediators under mediator's report/Ex.P-9. 4.12. Later as the victim girl wanted to give some more details, her additional statement was recorded by the P.W.18. In the statement, the victim girl/P.W.2 revealed that her black purse, hand kerchief and bank card were lost in the car during the incident. Thereupon the accused were taken into custody by the NTR,J 9 CRLA_585_2014 police for further investigation. On enquiry, the 1st accused made statement in the presence of mediators P.Rajamallaiah/PW-13 and another and in pursuance thereof, at the 1st accused's instance purse/M.O.1, debit card/M.O.2, kerchief of victim girl/M.O.3 were recovered from his home. In the meanwhile, the investigating officer got recorded the victim girl's statement/Ex.P- 22 under Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C) and also got conducted test identification parade. 4.13. The accused were put to potency test and Dr.K.Laxman/PW-17 issued potency certificates/Exs:P-16 and P-
17. That apart, the victim girl and the accused were sent for DNA test (genetic testing) at Forensic Science Laboratory, Hyderabad (FSL) and all other related material objects were sent for forensic examination through the Court. The FSL report/Ex.P-15 revealed that seminal stains on red colour top and green colour legging of the victim girl/P.W.2 belongs to the 2nd accused; blood stains of the victim girl are found on white colour banian of 1st NTR,J 10 CRLA_585_2014 accused. Thereafter, on completion of the investigation, the charge sheet was laid.
5. During trial, the prosecution examined PWs.1 to 21 and marked Exs:P-1 to P-24 and M.Os.1 to 20. The incriminating materials confronted to the accused under Section 313 of the Cr.P.C were denied and except pleading that the evidence of the witnesses are false, did not choose to place any defence evidence.
6. In the impugned judgment, the learned Sessions Judge held that the testimony of the victim girl/PW-2 and the circumstantial, medical and forensic evidence are constantly established the identity of the accused as the perpetrators of the crime. Thus concluded that the prosecution had proved that both the accused deceitfully taken the victim girl away and by wrongfully confining committed sexual offence on her. Thus concluded the guilt of the accused for the charged offences under Sections 366, 342 and 376(D) of the IPC. Accordingly, convicted and sentenced as mentioned above.
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7. In appeal, the learned counsel for the appellants vehemently pleaded that the trial Court had gravely erred in appreciating the testimonies of the witnesses though there are material omissions and inconsistencies. The trial Court ought not have given much credence to the evidence of victim girl/PW-2 without corroboration, as her earlier statements and the evidence are full of contradictions. The trial Court should have observed that even as per the evidence of the victim girl/PW-2 while she was being taken away the car stopped at the toll plaza and the driver of the car enquired the person in the toll plaza. However, there was no effort from the victim girl/P.W.2 to communicate her distress to that person, which is clearly against the natural conduct. The evidence of KVB Prasad/PW-8 who analyzed the CCTV footage, is not clear as to how the car was identified. Furthermore, the victim girl/PW-2 in her earlier statement did not give discreption of physical features of the accused and about missing articles in the car. However, on 23.10.2013 an improved version of the victim girl/PW-2 was recorded only to connect the vehicle and the accused in the alleged offence, this aspect is giving rise to NTR,J 12 CRLA_585_2014 doubt the veracity of the statements of the victim girl/P.W.2. The Court below should have observed that the test identification parade was conducted after the accused were produced before the Court and their photographs were published in the print and electronic media, thus the identification by the victim girl/PW-2 is not of any credence. Furthermore the absence of external injuries on the body of the victim is indicating that the allegation as to the occurrence was against the will and consent of the victim girl/P.W.2 is doubtful. Ignoring these aspects concluding the guilt of the accused is unjustified and in any case the sentence of twenty years of rigorous imprisonment is disproportionate. Thus prayed to reconsider the evidence and to acquit the accused for want of cogent evidence or by extending benefit of doubt.
8. Learned Assistant Public Prosecutor pleaded in support of the reasoning given in the impugned judgment. Further submitted that the victim girl's evidence in identifying the accused and the manner in which the accused committed offence is in tune with the other circumstantial evidence and medical evidence.
NTR,J 13 CRLA_585_2014 The trial Court had rightly considered the materials in concluding the guilt of the accused. Further, the defence pleaded by the accused in appeal was urged and negatived by the trial Court after careful consideration. Thus the conviction and sentence needs no interference.
9. The pleadings put-forth by the learned counsel and the materials on record are carefully considered.
10. To prove the charges against the accused the prosecution must establish that the victim girl was wrongfully confined and abducted by the accused with an intention to force or seduce her to intercourse and they have committed rape on her.
11. A careful analysis of the evidence on record is revealing that the testimony of victim girl/PW-2 in regard to happenings before and after boarding the car, manner of occurrence and dropping her at the hostel remained unshaken. In cross examination, except the suggestions no material fact or circumstance has been elicited. The evidence of friend of victim girl/PW-19 who was in touch NTR,J 14 CRLA_585_2014 with her before and just after boarding the crime vehicle, and the evidence of the de facto-complainant/P.W.1 who is friend of PW- 19 about the distress situation of victim girl/PW-2 is confirming the version of the P.W.1 immediately prior to occurrence.
12. The post occurrence happenings explained by victim girl/PW-2 are corroborating with the evidence of the manager of the hostel/PW-3 and the hostel-mate/PW-4. The bleeding suffered by the victim girl/PW-2 was witnessed by PWs.3 and 4. On admission of the victim girl/PW-2 into hospital, the treatment given was explained by the doctors/PWs.14 and 15 is in confirmation with each other. The evidence of Dr.Aruna Kumari/PW-16 is indicating that after the incident the victim girl/PW-2 suffered heavy bleeding. Further, the clinical examination by the doctor/PW-16 revealed that the victim girl/PW-2 had not suffered any external injuries but there was congestion vulva, small tear at right lateral wall and hymen was not intact is undeniably indicating sexual assault. Therefore, the evidence of PWs.2 to 4 and 14 to 16 coupled with the entries in NTR,J 15 CRLA_585_2014 medical certificates/Exs:P-11 and P-12 the fact that in the night of 18.10.2013 the victim girl/PW-2 boarding a car and in the same night at about 01.00 a.m. reached her hostel with bleeding and suffering sexual assault can be taken as established.
13. The testimony of victim girl/PW-2 is the only source as to the happenings after boarding the crime car and the occurrence.
14. At the out set, the accused contended that the testimony of victim girl is without corroboration and full of contradictions and the same cannot be relied on.
15. In this context, in an authority between Bharwada Bhoginbhai Hirjibhai v. State of Gujarath1 the Hon'ble Supreme Court observed that the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, as such, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration is notwithstanding. And while corroboration in 1 AIR 1983 SC 753 NTR,J 16 CRLA_585_2014 the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World.
16. Further held that, if the evidence of the victim does not suffer from any basic infirmity and the probabilities-factor does not render it unworth of credence, as a general rule, there is no reason to insist for corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is surprised in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the 'probabilities-factor' is found to be out of tune.
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17. In the light of the above settled proposition, the evidence and the materials placed by the prosecution has to be examined.
18. In regard to the evidence against the accused, in addition to the evidence of victim girl/PW-2, the evidence of PWs.5 and 8 in regard to identifying the crime vehicle, the evidence of PWs.9 and 10 about the ownership of the crime car and allotment of crime car along with the 1st accused as driver are on record. The evidence of PWs.5 and 8 about analysing the CCTV footage under M.Os.9 and 10 coupled with the evidence of owner of the crime car/PW-9 and the PW-10 who hired the vehicle are essentially establishing the facts of ownership and the 1st accused being the driver of that crime car and his possession of the crime vehicle and its keys since 17.10.2013.
19. In regard to the material evidence against the accused, the victim girl in her testimony categorically deposed that she can identify the driver and other person was sitting by the side of the driver of the crime car. In the earlier statement, she described the driver to be short and the other was height person. During NTR,J 18 CRLA_585_2014 evidence, she identified that the 1st accused as the driver and the 2nd accused as the other person in the car at relevant time. She specifically stated that after the occurrence the second person/2nd accused asked the person sitting in the driver's seat/1st accused that "EERA SATISH MALLI VELATHAVA". In cross examination, the victim girl/PW-2 asservatively stated that while boarding the car at TCS office, as there was full illumination, she had clearly seen both the accused and later in test identification parade she had identified them. Furthermore, the FSL examination report of the materials seized from the crime car and the wearing apparel and 1st and 2nd accused that the seminal stains on the red colour top and green colour legging/M.Os. 5 & 6 belongs to the 2nd accused and blood stains found on the banian of the 1st accused/M.O.13 are biological origin of victim girl/P.W.2. That apart seizure of purse/M.O.1, debit card/M.O.2 and the kerchief of the victim girl/PW-2 from the house of the 1st accused, at his instance are strengthening the evidence of the victim girl/P.W.2 in regard to the identity of the accused in the offence. Though it is contended that the victim girl/ NTR,J 19 CRLA_585_2014 PW-2 had identified the accused in the test identification parade as the photographs of the accused were already published in print media, no material had been placed to substantiate or any fact or circumstance is elicited from any witness in this regard. That apart, though in the appeal false implication has been pleaded, no reason is made out from any witness to probabalize the contention of the false implication of the accused. In the cross examination neither previous acquaintance nor any animosity was suggested to the victim girl/PW-2. In addition, there is nothing on record at least to infer any possibility of any false implication of the accused by the victim girl/PW-2 by leaving the actual assailants.
20. The other contended aspects are that the material to prove the involvement of the crime vehicle is insufficient and the prosecution planted material objects to connect the accused with the offence is also found inconsequential, as there is no fact or circumstance supporting this aspect and at any stretch merely NTR,J 20 CRLA_585_2014 recording oral statement of victim girl on two different dates, per se would not give a trace to discern planting of material objects.
21. Further, the disputation regarding recording of the statement of the victim girl/PW-2 on two days and on the second occasion, the victim girl referred to her belongings and this is indicating that the investigating agency had planted the material objects to connect the accused with the crime. Nonetheless, except denials the accused did not at least suggested any explanation much less placed any material to consider this contention. Added to this, as noted above the materials collected from the crime car, and the forensic exertion of the biological residue of the 2nd accused on the clothing of the victim girl and the victim girl's blood stains on the banian of 1st accused are clinchingly pointing the presence and involvement of the accused in the offence. This evidence is substantiating the offence committed by the accused as narrated by the victim girl/PW-2.
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22. Though the identification of the crime car through CCTV footage by the PW-8 was not technically proved the facts deposed by PWs.8 and 9 about the crime car and its possession by the 1st accused at relevant time and the materials found in the forensic examination of the car and other seized materials and the medical evidence of the doctor/PW-16 that there was congestion of vulva, small tear at right lateral wall and hymen was not intact is indicating sexual assault are reassuring and confirming the evidence of victim girl/PW-2 about the occurrence and involvement of the accused.
23. Thus, the tried and tested evidence of the victim girl/P.W.2 and strong medical and cogent circumstantial evidence, short of any plausible view favouring the accused are conclusively establishing the guilt of the accused beyond reasonable doubt. In effect, the conviction of the accused for the offences under Sections 376-D, 366 and 342 of the IPC is found appropriate. Further as the sentence imposed is the minimum period prescribed by the statute, the same stands sustained. In NTR,J 22 CRLA_585_2014 consequence, the impugned judgment of conviction and sentence deserves affirmation.
24. In the result, the appeal is dismissed. The judgment of conviction and sentence dated 14.05.2014 in S.C.No.51 of 2014 passed by the Metropolitan Sessions Judge, Cyberabad against the appellants/1st and 2nd accused/convicts is hereby confirmed.
Consequently, miscellaneous petitions pending if any, stands closed.
_______________________ JUSTICE N.TUKARAMJI Date:09.06.2023 ccm NTR,J 23 CRLA_585_2014 THE HONOURABLE SRI JUSTICE N. TUKARAMJI CRIMINAL APPEAL No.585 OF 2014 DATE:09.06.2023 CCM