Telangana High Court
Mohd. Khader Mohiuddin vs Faiyaz Mehmood Ansari And 2 Others on 1 May, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL Nos.363, 429, 478 of 2020 & 146 of 2021
COMMON JUDGMENT:(per The Hon'ble Sri Justice K.SURENDER)
1. Criminal Appeal 363 of 2020 is filed by Accused No.2. Criminal Appeal No.478 of 2020 is filed by A1. Criminal Appeal 429 of 2020 is filed by the defacto Complainant/PW.1. Criminal Appeal 146 of 2021 is filed by the State.
2. Heard learned counsel appearing on behalf of the appellants, the complainant and also learned Assistant Public Prosecutor, Sri M.Vivekananda Reddy, representing the State.
3. Briefly, the facts of the case are that PW.1 is the defacto complainant, who is the father of the victim boy-PW.2. PW.1 married Accused No.2 in the year 2006 and had three children. Both PW.1 and A2 went to Kuwait, where all three children were born. They stayed in Kuwait until 2013, and during the year 2013, PW.1 sent back Accused No.2 and all the three children to India, where they were living separately in Khilwat area in a rented premises. 2 Thereafter, they shifted to Shaheen Nagar area. Both areas are in Hyderabad.
4. On 09.09.2016, PW.1 called Accused No.2 and informed her that he was coming to India. On 11.09.2016, PW.1 came to India and celebrated Bakrid festival in his parents house. On 18.09.2016, PW.1 asked Accused No.2 to take back the children to their rented premises in Shaheen Nagar, since their exams were starting on 22.09.2016. PW.2 was found shivering and weeping. He requested PW.1 not to send him with Accused No.2.
5. PW.1 questioned the boy (PW.2) about his behavior. PW.2 informed PW.1 that A2, with the help of A1 (a thantrik), inflicted several injuries on his body. PW.1 found several injuries on PW.2's buttocks and other parts of his body. PW.2 did not allow PW.1 to check his anus and was suffering from pain. PW.2 also informed PW.1 that the entire activity of inflicting injuries, cutting him with blades, and pouring hot water on him was photographed on a cell phone. Accused No.2 left the house, and on further enquiry,PW.2disclosed that Accused No.1 used to come to their house and that A1 and A2 were having illicit intimacy. PW.2 3 informed PW.1 that A2 also threatened the children whenever A1 came to the house.
6. PW.1 then went to the Police and lodged an English-typed complaint on 26.09.2016. The Police registered the case under Sections 120 (B), 307, 341, 342, and 506 of the Indian Penal Code, Sections 4, 6, and 10 of the POCSO Act, Sections 2 (C) and 7 of the Drugs and Magic Remedies Act, 1954 (for short "the Act"),and Section 23 of the Juvenile Justice Act.
7. During the course of investigation, PW.2 was taken to PW.7- Doctor. PW.7 examined PW.2 on 27.09.2016 and found the following injuries:
i) Injury on the left big toe
ii) Injury on the right big toe
iii) Blade marks all over the body.
8. According to PW.7, the injuries were caused with a blade. During the course of investigation, Ex.P6-the bonafide certificate of PW.2 was collected from PW.4. Ex.P3-photographs and Ex.P4- CD/DVD showing the injuries caused to the boy/PW.2 were video- graphed.
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9. During the course of trial, the learned Sessions Judge examined PWs.1 to 11 and marked Exs.P1 to P21 and MOs.1 to 7. The learned Sessions Judge found Accused Nos.1 and 2 guilty of the following offences:
Conviction for the offence Punishment
under Section
Accused No.1 Section 6 of Protection of Rigorous Life Imprisonment
Children from Sexual
and to pay a fine of
Offences Act, 2012. Rs.10,000/-.
Section 377 of Indian Penal Rigorous Life Imprisonment Code. and to pay a fine of Rs.10,000/-.
Section 307 of Indian Penal Rigorous Imprisonment for Code. a period of Ten Years and to pay a fine of Rs.10,000/-
Section 342 of Indian Penal Rigorous Imprisonment for Code. a period of one year and to pay a fine of Rs.1,000/-.
Section 497 of Indian Penal Rigorous Imprisonment for Code a period of five years and to pay a fine of Rs.5,000/-.
Section 506 of Indian penal Rigorous imprisonment for Code a period of two years and to pay a fine of Rs.4,000/-.
Conviction for the offence Punishment
under Section
Accused No.2 Section 307 of the Indian Rigorous Imprisonment for
Penal Code a period of Ten years and to
pay a fine of Rs.20,000/-
Section 342 of the Indian Rigorous Imprisonment for Penal Code. a period of one year and to pay a fine of Rs.1,000/-.
Section 506 of the Indian Rigorous Imprisonment for penal Code a period of Two years and to pay a fine of Rs.4,000/-.
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10. Learned Counsel appearing on behalf of A1 and A2 would submit that the injuries on PW.2 do not suggest any kind of unnatural sex or any injuries to his private parts. In the absence of any such injuries, the question of convicting Accused No.1 under Section 377 of IPC and Section 6 of POCSO Act is incorrect. There was no DNA test conducted on PW.2, and the injuries were found to be simple in nature. In fact, PW.7 admitted that injuries (i) and (ii) were simple in nature and the third injury could have been caused by a fall.
11. There were disputes between A2 and PW.1. For the reason of the said disputes, a false complaint was filed by PW.1 alleging illicit intimacy between A1 and A2. Further, causing pain to PW.2, in the absence of any medical evidence, would not suggest that the boy was subjected to unnatural sex. Only on the basis of a tutored version given by PW.2 in the Court below, conviction cannot be recorded.
12. Learned Counsel further submitted that there were disputes between PW.1 and A2 in Kuwait, and A2 had lodged complaints against PW.1 in Kuwait, which were being investigated. To overcome the criminal investigation, PW.1 sent back A2 and the three children 6 to Hyderabad, where they were staying. The complaint is in the form of retaliation to the complaint filed by A2 against PW.1 in Kuwait.
13. Learned Counsel further argued that when the injuries are simple in nature and caused on the toes or legs, it cannot be said that it is an offence under Section 307 of the Indian Penal Code. The Court below has failed to consider the background of the case and the differences between PW.1 and A2, which were documented. There was no medical evidence to support the claim of unnatural sex with PW.2, or that such injuries were inflicted with an intent to commit murder of PW.2.
14. Learned Counsel appearing on behalf of the complainant and also the learned Assistant Public Prosecutor would submit that Exs.P3 and P4 would clearly go to show that A1's acts are punishable under Section 7 of the Drugs and Magic Remedies Act, 1954. Further, the acts of A1 and A2 were also punishable under the provisions of the Juvenile Justice Act, for inflicting injuries on PW.2, who was aged less than 12 years.
15. PW.1 filed a complaint before the Police on 26.09.2016 alleging that A1 and A2 were having sex in the house by sending the 7 childrenaway. A1 had inflicted injuries on PW.2 along with A2. A2 used to abuse PW.2, who is the victim.
16. PW.2 stated that A1 used to visit their house and crack jokes with his mother/A2. A1 was touching A2 on her private parts and also kissing her. When PW.2 questioned A1 as to why he was inappropriately touching A2, A2 beat PW.2 with a rod and pipe. During the night, PW.2 and his two sisters were kept in a room separately, and PW.2 also found A1 and A2 in a nude position. When questioned, PW.2 was beaten up and kicked by A1 and A2. Some white powder was being given to PW.2, due to which he suffered from blood motions. A1 used to undress PW.2, apply oil, and put his penis into the Anus of PW.2, for which PW.2 cried in pain. A1 and A2 used to give injections to PW.2. Whenever PW.1 called PW.2 on the phone, A2 used to threaten PW.2 not to reveal anything to PW.1. Due to fear of A1 and A2, he did not inform anyone.
17. PW.2 further stated that after PW.1 arrived in Hyderabad, he informed him about the injuries inflicted by A1 and A2 on his body.
18. The doctor did not find any injuries on the private parts of PW.2 when examined. According to PW.1, PW.2 complained of 8 injuries on 18.09.2016. However, PW.1 came to India on 11.09.2016. There was no complaint of PW.2 on 11.09.2016. According to PW.1, for the first time, PW.2 complained about pain in the anus and injuries on 22.09.2016, i.e., 11 days after PW.1 arrived in Hyderabad. From 11.09.2016, PW.1, A2, and others were staying in the house of PW.1's parents, and they also celebrated 'Bakrid'.
19. It is difficult to understand why, if the boy was suffering from such severe pain, PW.1 did not take him to a doctor. This raises a doubt as to whether injuries were inflicted on PW.2 just prior to lodging of the complaint. Admittedly, from 11.09.2016 till 22.09.2016, all of them stayed together, and therefore, the question of any injuries being inflicted on PW.2 during those ten days does not arise.
20. The doctor who examined PW.2 stated that Injury No. (iii), which appeared to be caused by a blade, could indeed have been inflicted with such a weapon. However, all three injuries were described as simple in nature.
21. The victim, PW.2, disclosed the harassment only when PW.1 advised A2 to take the children back to the rented house. PW.2 was 9 scared and was very frightened. PW.2 revealed that he had seen A1 and A2 nude and that A2 was moving closely with A1. Since that day, PW.2 had observed A1 and A2 touching and kissing each other, after which the infliction of injuries began. According to PW.2, both A1 and A2 began beating him indiscriminately and also started kicking him from the day after he discovered A1 and A2 in one room, engaged in intimate acts. PW.2 also stated that some white powder was given to him, which caused him to suffer from bloody motions. A1 used to apply oil on his body and insert his penis into PW.2's Anus, due to which he screamed. Both A1 and A2 also gave some injections to PW.2. When PW.1 called PW.2 on the phone, A1 would threaten PW.2 by cutting a doll with a knife and showing him that he would cut him in the same manner if he disclosed anything to his father. In July 2016, A1 and A2 took the boy to the house of A1, where they confined him in a dark room. A1 would cut the boy with a blade and suck his blood. A1 and A2 also poured boiling water on PW.2. PW.2 further stated that when PW.2 refused to allow A1 to insert his penis into his Anus, A2 poured hot wax on his scrotum. The said acts continued over a period of three months. 10
22. PW.4 is the Admin Incharge of VIP International School. He issued the Attendance record of PW.2, which is marked as Ex.P7. Ex.P7 shows that PW.2 was absent from the school during the months of June, July, August, and September. Though in the cross- examination PW.4 stated that PW.2 attended classes for about 2 or 3 months, however, the said statement is contrary to the attendance record-Ex.P7. PW.4 was working as the Admin Incharge, and on the basis of the record, he issued Ex.P7, reflecting the absence of PW.2 from school for four months. His statement in the cross-examination that the boy attended school cannot be accepted, since there were 15 to 20 buses being run and several hundred students in the school, according to PW.4.
23. The two daughters of PW.1 and A2 were not examined in the Court; however, their non-examination is of no consequence. According to PW.2, the entire harassment over a period of three months occurred when he was kept in the house of A1.
24. The Test Identification Parade was also conducted. PW.6 was the Chief Metropolitan Magistrate who conducted the Test Identification Parade on 10.11.2016. PW.2 narrated to PW.6 the horrific treatment meted out to him over a period of three months. 11 PW.2 correctly identified A1. According to PW.2, the ill-treatment by A1 and A2 stopped two days prior to PW.1's arrival in India on 11.9.2016.
25. The evidence of PW.2 is convincing and cannot be said to be the outcome of tutoring by PW.1. PW.2 narrated the acts committed by A1 and A2 to PW.1 at the first instance, thereafter to the police, and also in the 164 Cr.P.C. statement. The same version was also given to PW.6-the Magistrate who conducted the Test Identification parade. PW.2 withstood probing and extensive cross-examination by both the counsel for A1 and A2. Nothing was elicited to discredit the evidence of PW.2 in the extensive cross-examination, running into nearly four pages, by both the counsel for A1 and A2. The version given by PW.2 was consistent even during cross-examination, and nowhere did PW.2 falter. PW.2 sticking to his version and giving minute details about what transpired would go to show that PW.2 was speaking the truth the entire time.
26. PW.7 is the doctor who examined PW.2 and found three injuries. No injuries were found near the anus, nor were there any signs of recent intercourse. However, the injuries had been inflicted over a period of three months. According to the narration given by 12 PW.2, the injuries on the body, such as, being cut with blades, having hot water poured on him, and injuries to the toes, were all observed during the medical examination. The scars from cuts made with blades would be visible for a long time. However, anal intercourse, as alleged by PW.2, would not necessarily leave long- lasting scars or injuries on the anus. The presence of semen, faeces, or similar evidence would only be expected if the anal intercourse had occurred recently. The alleged harassment occurred prior to 11.09.2016, and PW.2 was examined by PW.7 on 27.09.2016, which is a gap of more than 16 days. The absence of injuries must be considered in the context of the facts of this case. Ex.P3 and Ex.P4 are the photographs and the CD that show hot water being poured on the boy's legs while some Arabic recitation is heard in the background. The Court can assess the reliability of the version given by PW.2. As already discussed, the boy withstood cross-examination on various aspects. It does not appear that the boy was tutored to speak against A1 or A2. Such straightforward answers and a consistent account of harassment are only possible when PW.2 has actually undergone the trauma he described. In the present facts of the case, the absence of injuries on the anus of PW.2 will not affect 13 the credibility of his evidence regarding the unnatural sex committed by A1.
27. Both A1 and A2 had inflicted injuries on PW.2 after PW.2 saw them in intimate positions. To attract an offence of criminal conspiracy, one or more persons should have agreed to do an illegal act or an act which is not illegal by illegal means. The infliction of injuries by A1 and A2 was on account of PW.2 witnessing A1 and A2 having sex and questioning them. It cannot be said that they had entered into a criminal conspiracy to inflict injuries on him.
28. Further, the allegation of practicing witchcraft or doing any Tantrik acts of inflicting injuries on PW.2 would attract penal consequences for causing bodily injury. In the State of Telangana, there is no enactment punishing people practicing witchcraft/black magic or any such practices.
29. The charge sheet was filed alleging offence under Section 2(c) r/w.Section 7 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.
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30. Section 2 (c) of the Act reads as follows:
"(c) "magic remedy" includes a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals;"
31. Section 7 of the Act reads as follows:
"7. Penalty.--Whoever contravenes any of the provisions of this Act 3 [or the rules made there under] shall, on conviction, be punishable--
(a) in the case of the first conviction, with imprisonment which may extend to six months, or with fine, or with both;
(b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both."
32. Section 2(c) is the definition of a magic remedy. The enactment is intended to punish any false claims of magic remedies for practicing witchcraft or any such acts of black magic or similar practices. There is no punishment prescribed in the Drugs and Magic Remedies (objectionable advertisements) Act, 1954. 15
33. As seen from the injuries that were inflicted on PW.2, the intent was to threaten PW.2 and prevent him from informing either PW.1 or anyone else about the intimacy between A1 and A2, which was seen by PW.2. Injuries were inflicted over a period of three months by A1 and A2 by pouring hot water on the body of PW.2, burning him with wax, beating with rods, etc. The injuries found by the doctor were not on any of the vital parts of the body and were not life- threatening. All the injuries were simple in nature. For the said reason, Section 307 of IPC is not attracted. However, A1 and A2 are convicted under Section 326 of IPC.
34. Accordingly, the conviction of A1 under Section 377 of IPC and Section 6 of the POCSO Act is upheld. The sentence of imprisonment under Section 377 and also under Section 6 of the POCSO Act is reduced to 15 years. The conviction under Section 307 of IPC is set aside; however, A1 is convicted for the offence under Section 326 of IPC and sentenced to undergo 10 years of rigorous imprisonment.
35. The conviction of A2 under Section 307 of IPC is set aside; however, A2 is convicted for the offence under Section 326 of IPC and sentenced to 8 years imprisonment.
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36. All the remaining sentences of A1 and A2 under the other penal provisions are upheld.
37. Accordingly, Criminal Appeal Nos.363 of 2020 filed by A2 and Criminal Appeal No.478 of 2020 filed by A1 are partly allowed. Criminal Appeal No.429 of 2020 filed by the defacto complainant and Criminal Appeal No.146 of 2021 filed by the State are dismissed.
__________________ K.SURENDER, J _____________________ E.V.VENUGOPAL, J Date: 01.05.2025 tk 17 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL Nos.363, 429, 478 of 2020 & 146 of 2021 Date: 01.05.2025 tk