Telangana High Court
L.Vickey, Secunderabad., vs State Of Telangana, Rep Pp., on 16 April, 2025
Author: N. Tukaramji
Bench: P.Sam Koshy, N.Tukaramji
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
CRIMINAL APPEAL NO. 1392 OF 2014
JUDGMENT:
(Per Hon’ble Sri Justice N. Tukaramji)
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.
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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.
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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
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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. Learned Additional Public Prosecutor pleaded that the
Sessions Court had done a thorough assessment of the evidence
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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
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Crl.A.No.1392_2014
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. 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-
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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.
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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.
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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.
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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
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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.
________________
P. SAM KOSHY, J
_______________
N.TUKARAMJI, J
Date:16.04.2025
ccm
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