THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.618 of 2008 02-12-2014 BETWEEN:
Iqbal Khan …..Appellant/accused 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 No.618 of 2008 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 02.05.2008 passed in S.C.No.241 of 2004 by the learned V Additional Metropolitan Sessions Judge (Mahila Court), at Hyderabad, whereby the learned Judge convicted the appellant/accused for the offence under Sections 363, 376(2)(g) and 417 IPC; and accordingly, sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- (Rupees five thousand only), in default, to suffer rigorous imprisonment for four months for the offence under Section 376(2)(g) IPC;
to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to suffer rigorous imprisonment for two months for the offence under Section 363 IPC, and further to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer rigorous imprisonment for a period of one month for the offence under Section 417 IPC.
The case of the prosecution, as recorded by the Court below, is as follows.
On 1-7-2000 at about 13-30 hours, the complainant came to the police station stating that she belongs to Palakollu town of West Godavari District. Her father is a Paster. She wrote her first year inter exams and the results were declared. She secured less marks, for which her father scolded. She fell ashamed and decided to study in any Christian College at Hyderabad. As such she sold her ear rings in Palakollu and came to Hyderabad on 20-06-2000. She went to Manna Bible College and requested Mr. Pal Reddy to give admission into the college. The said Pal Reddy asked her to get her T.C., and marks memo. Her mother telephoned to Pal Reddy and requested her to come back to native place. She had Rs.100/- only. She took an auto and went to the Railway Station, Nampally in the evening on 30-06-2000. She enquired in the railway enquiry and came to know that the charges would be Rs.104/-. She came outside to telephone to her relatives for money, but there was no response to her call. She again tried. At about 9.30 p.m., while she was waiting near the telephone booth, two persons came to her and enquired about her. She informed about her urgency for money. They promised to arrange money and they took her into a train, standing at Nampally Railway Station. They went to Secunderabad Railway Station and they got down the train saying that they will arrange the railway ticket. They told her that there were no trains during that night. One person revealed his name as Iqbal and told that she is like her daughter and requested her to come along with him to his residence. He promised to get her into a train or bus on the next day. She believed his version. The said two persons engaged an auto and took her to Teegalakunta, at about 11.30 p.m. They gave some food to her and asked her to sleep. Those persons also slept in the same room. At about 1.00 a.m., they woke up the complainant, and threatened her with dire consequences. One person caught her hands and another person slapped her when she tried to shout for help. They committed rape on her, one after another, due to which she became unconscious. At about 5.00 a.m., they brought her to Nampally Railway Station and dropped her there and due to fear she did not speak anything. She was waiting for any known person. Again one of the accused by name Waheed came there and demanded her to come to the lodge, she got frightened. Then she slipped off from the station and came to the police station and reported the matter.
Based on the above report, a case was registered in Crime No.101/2000 under Section 376(2)(g), 506 and 417 IPC. During course of investigation, the victim was sent to medical examination. The accused were apprehended on 4-7-2000 and were subjected to potency test and after concluding the investigation, charge sheet was laid against both the accused for the same offences.
On appearance of the accused before the committal court, committal court complied with all required legal formalities and committed the case to the Metropolitan Sessions Division, Hyderabad, by virtue of its order, dated 3-12-2007 in P.R.C.No.42/2001. The learned Metropolitan Sessions Judge in turn made over to the case to this Court for trial and disposal. On appearance of the accused before this Court, this Court after complying with all the required formalities and based on the material framed charges against the accused for the offences punishable under Sections 363, 376(2)(g), 506 and 417 IPC. The charges were denied by the accused when they were read over and explained to him and on his claiming for trial.
The case against this accused was split up as he absconded during the trial. During course of trial, P.Ws.1 to 7 were examined and Exs.P.1 to P.9 are marked on behalf of the prosecution.
This Court perused the records and heard the arguments.
The point for consideration is whether the evidence of P.W.1, the victim girl, which is marked as Ex.P.9, alone can be considered and whether the said evidence inspires the confidence of this Court?
Even though the victim girl was not examined in the trial Court since her whereabouts were not known at the time of examination of the appellant/accused, the learned trial Judge rightly relied on the evidence adduced by her in S.C.No.325 of 2001, which is marked as Ex.P.9, as the requirements of Section 33 of the Indian Evidence Act are satisfied in this case as the proceeding is between the same parties. The learned trial Judge considering the said evidence of P.W.1, who categorically stated the manner in which she was subjected to sexual assault by the appellant along with another person and also narrated that she was threatened by the appellant and another person and also the manner in which they acted on the fateful day, i.e., 30.06.2000, found guilty the appellant/accused for the offence under Sections 363, 376(2)(g) and 417 IPC, and accordingly convicted and sentenced as stated above. The other accused was tried in S.C.No.325 of 2001 and was convicted and sentenced to undergo life imprisonment. The said conviction was set aside by the Division Bench of this Court on 11.06.2007 in Criminal Appeal No.142 of 2005. While passing the said Judgment, the Division Bench observed that the trial against the appellant/accused can be proceeded with independently without being influenced by the said Judgment. Accordingly, the trial was proceeded with and the evidence of P.W.1 was marked as Ex.P.9.
It is to be observed that the victim girl accompanied two unknown persons, i.e., the appellant and another person, since they informed her that they would also accompany her native place and on that, she had taken food along with them and also stayed in the room, where the appellant and another person stayed. In the midnight, she was raped forcibly by the appellant and the other person.
The above evidence of the victim girl is highly unbelievable since she, being aged about nineteen years and was studying Intermediate at that point of time, can be able to understand the consequences of accompanying the unknown persons during the night. It is also highly unbelievable that she accompanied with the unknown persons and stayed and slept with them in an unknown place. It is her further case that on the next day morning, the appellant and the other person dropped her at the Nampally Railway Station in order to send her to her village and that when she was waiting at the Waiting Room, they again came and asked her to accompany them to stay in the lodge. Thereafter, as per the case of the victim girl, she lodged a complaint. If it is the case of the victim girl that she was threatened and was subjected to sexual assault by the accused and another person, certainly they would not have dropped her at the Nampally Railway Station and asked her to accompany them to a lodge for their sexual desire. Further, according to the victim girl, the occurrence took place on 30.06.2000, whereas in the complaint, the said date is inserted later. She stated in the said complaint that she reached Hyderabad and met the Principle of “Manna Bible College” on 20.06.2000. Hence, there is a serious contradiction with regard to date of occurrence. Apart from that, she stated the names of the accused as ‘Iqbal’ and ‘Waheed’ and further she admitted in her cross-examination that after the said incident, she identified the accused persons for the first time in the Court. She further admitted that she did mention the age and descriptive particulars of the culprits to the police. In such a case, it is highly unbelievable that without therebeing any descriptive particulars and also not having any other information regarding the accused, the police secured the real persons, who involved in the crime.
In view of the above discussion, this Court is of the view that the evidence of the victim girl does not inspire the confidence of this Court and as such, it can be held that the prosecution has miserably failed to prove the guilt of the appellant/accused, and as such, the conviction and sentence imposed by the Court below against the appellant/accused for the offences under Sections 363, 376(2)(g) and 417 IPC is liable to be set aside and is accordingly set aside. The appellant/accused is entitled for acquittal of the charges levelled against him.
In the result, the Judgment of the Court below in convicting and sentencing the appellant/accused for the offence under Sections 363, 376(2)(g) and 417 IPC is set aside. The bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellant/accused shall be refunded to him.
The Criminal Appeal is accordingly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 02.12.2014 pln