THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.643 OF 2005 and 1513 OF 2006 12-12-2014 BETWEEN:
CRIMINAL APPEAL No.643 of 2005 Mohd. Basith And others.
…..Appellants/A.2 and A.3 AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad for The State of Telangana and the State of A.P., …..Respondent CRIMINAL APPEAL No.1513 of 2006 Barla Mallesh …..Appellant/A.1 AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad for The State of Telangana and the State of A.P., …..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.643 OF 2005 and 1513 OF 2006 COMMON JUDGMENT :
The Criminal Appeal No.643 of 2005 is preferred by appellants/A.2 and A.3 and Criminal Appeal No.1513 of 2006 is preferred by appellant No.1/A.1 against the Judgment dated 29.03.2005 passed in S.C. No.337 of 2003, by the Court of the II Additional Sessions Judge, Mahaboobnagar, whereby the learned Judge convicted the appellants/A.1 to A.3 for the offence under Sections 376(2)(g) IPC and 392 IPC and accordingly sentenced them to suffer rigorous imprisonment for a period of ten years each for each offence.
The case of the prosecution is as follows:
P.Ws. 1 and 2 were the victims in this case. On 21.12.2001, while returning from attending construction work, an auto was stopped and the driver asked P.Ws.1 and 2 to get into it. PWs.1 and 2 refused and continued walking. However, the same auto with the same driver and two other persons again stopped and asked them to board it. P.Ws.1 and 2 boarded the auto. The auto proceeded further and stopped at open place. P.Ws.1 and 2 were taken to the open place opposite to a hostel by the driver and others and were raped under threat. The third person was near the auto when the incident took place. After the rape, P.Ws.1 and 2 were robbed of their ornaments. The clothes of P.W.1 were also removed and three persons went away. P.W.1 went near a hostel, where a woman provided clothing to her. Basing on the complaint lodged by P.W.1, a case was registered and was investigated into. After completion of investigation, charge sheet was filed.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 15 were examined and Exs.P.1 to P.29 and M.Os.1 to 14 were marked. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court found the appellants/A.1 to A.3 guilty for the offence under Sections 376(2)(g) and 392 IPC and convicted and sentenced them as stated above. Aggrieved by the same, the present appeals are preferred by the appellants/A.1 to A.3.
Heard and perused the material available on record.
The case of the prosecution is that the accused raped P.Ws.1 and 2 and made P.W.1 nude and made her in search of clothes to cover up her body. It is in the evidence of P.Ws.1 and 2 that they travelled along with the accused in an auto and they had sexual intercourse forcibly and that later, they were thrown out. But, on perusing the evidence of P.Ws.1 and 2, and the way in which they deposed, clearly indicates that they are the consenting parties to the sexual intercourse with the appellants. But at the same time, on a careful perusal of the remaining evidence of P.Ws.1 and 2, which is supported by other witnesses, especially P.W.5, the attender working in social welfare high school-cum-hostel, this Court is of the view that it is clearly established that P.W.1 went nude to the nearby hostel for getting clothes to cover up her body. Hence, the act of the accused in taking away the clothes of P.W.1 and made her nude, is certainly an act of outraging the modesty of woman. Hence, the conviction imposed by the Court below against the appellants/A.1 to A.3 for the offence under Section 376(2)(g) IPC is hereby modified to the offence under Section 354 IPC.
Insofar the offence under Section 392 IPC is concerned, this Court is of the view that though there is some exaggeration in the evidence of P.Ws.1 and 2, with regard to robbing of their silver ornaments by the appellants/A.1 to A.3, there is cogent and convincing evidence on record to show that the appellants/A.1 to A.3 have committed the offence of robbery and as such, the conviction imposed by the Court below against the appellants/A.1 to A.3 for the offence under Section 392 IPC is hereby confirmed.
In the result, the conviction recorded by the Court below against the appellants/A.1 to A.3 for the offence under Section 392 IPC is hereby confirmed. Insofar as the offence under Section 376 IPC is concerned, the conviction imposed by the Court below against the appellants/A.1 to A.3 is modified to that of Section 354 IPC, and the conviction, as modified to under Section 354 IPC, is hereby confirmed. However, the sentence of imprisonment against appellants/A.1 to A.3 for the offences under Sections 392 IPC and 354 IPC is modified and reduced to five years rigorous imprisonment each. The amount of fine and default condition, imposed by the Court below, is not interfered with. Both the sentences shall run concurrently.
The period already undergone by the appellants/A.1 to A.3 shall be given setoff under Section 428 of Code of Criminal Procedure.
The appellants/A.1 to A.3 are directed to surrender before the Court concerned on or before 30th January, 2015 to serve the remaining sentence. On their failure to surrender, the Court below is at liberty to take coercive steps to secure them in order to serve the remaining sentence.
Accordingly, the Criminal Appeals are partly allowed. Miscellaneous applications, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 12.12.2014 pln