S.C.No.129 of 2012
IN THE COURT OF THE SPECIAL SESSIONS COURT FOR FAST
TRACKING THE CASES RELATING TO ATROCITIES AGAINST WOMEN-
I CUM-X ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD.
Present: Sri.B.Sai Kalyan Chakravarthi, VII Addl. Metropolitan Sessions Judge For Trial of Communal Offence Cases, Hyderabad. FAC Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-I cum X Addl. Metropolitan Sessions Judge, Hyderabad.
Dated this the 3rd day of February, 2017
SESSIONS CASE NO.129 of 2012
(PRC No.68 of 2009 on the file of XVI Additional Chief Metropolitan
Magistrate, Hyderabad.)
Committed by:Sri M.V.Bhaskar Rao, XVI Additional Chief Metropolitan
Magistrate,
Hyderabad
Crime No. and P.S.Crime No.165/2005 of Falaknuma Police Station
Name of the complainantThe State through, Inspector of Police, Falaknuma Police station, Hyderabad
Name and Description of the Omer Khan, S/o Late Asghar Khan, accusedAged 55 years, Occ : Rickshaw Puller, R/o H.No.19.3.263/C/3, Achi Reddy Nagar, Hyderabad
Prosecution conducted byAdditional Public Prosecutor
Defence conducted bySri Mustafa Ali, Legal Aid Counsel for accused
OffencesUnder Section 376 and 506 of IPC
Plea of the accusedPleaded not guilty
Finding of the courtGuilty
Sentence/OrderIn the result, Accused is found guilty for the offence under Sections 376 and 506 of IPC and hence, he is convicted under section 235(2) of Cr.P.C.
The accused is sentenced to undergo simple imprisonment for a period of seven (7) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only) for the offence punishable under section 376 of IPC, in default of payment of fine tosufferonemonthsimple imprisonment, and sentenced for a period of six months for the offence punishable under section 506 of IPC. Both the sentences shall run concurrently. The remand period undergone by the accused if any, shall be set off under section 428 of Cr.P.C.
J U D G E M E N T
1. The Inspector of Police, police station,Falaknuma, Hyderbad filed charge sheet against accused for the offence punishable under section 376 and 506 of
IPC.
2(a). The breif facts of the case are that on 28-9-2005 at 15.15 hours the complainant along with her mother lodged a written report in Urdu that since last one year her father Omer Khan used to commit rape on her without her consent forcibly and threatened her to kill, if she discloses before her mother or anybody else. On 27-9-2005 her father came to the house in a drunken state and forcibly tried to commit rape and he mixed liquor in a cooked rice bowl and forced the complainant to eat, but she refused to do so and informed to her co- tenant woman by name Shajahan about the incident and she requested to take necessary action against her father (accused).
(b). Basing on the above complaint, LW16 Inspector of police, Falaknuma registered a case in Cr.No. 165/2005 under section 376 and 506 IPC and investigated into.
(c). During the course of investigation, LW16 examined and recorded the statements of LW1 to LW6. He visited the scene of offence and drafted rough sketch and conducted observation panchanama in the presence of LW7 and LW8 and seized 1) Aluminium Bowl containing cooked rice smelling something similar to liquor, 2) One dark rani colour shalwar with light pink on waist portion torned from the frontal side middle portion about one feet, 3) One atin shalwar light blue colour with dark portion on waist torned from the frontal side middle portion about one feet, 4) One kitchen knife 7 1/2 feet wooden handle portion 3 1/2 inches and sharp edge portion one side 4 inches and took the photographs of the scene. The victim girl was sent for medical examination through WPC 8492 on 28-9-2005. LW10 conducted medical examination of the victim girl and obtained samples and forwarded to FSL for analysis and report. He took the custody of the accused at his residence on 28-9-2005 and remanded him to judicial custody. LW18 took up further investigation. Lw13 issued opinion on the report of Forensic science Laboratory. After completion of investigation
LW18 Inspector of police, PS, Falaknuma filed the charge sheet.
3. The learned XVI Additional Chief Metropolitan Magistrate, Hyderabad took cognizance of the offence under section 376, 506 of IPC against the accused and registered the same as PRC. 68 of 2009. On production of accused, copies of the documents as required u/s.207 Cr.P.C were furnished. Since the offence under section 376 of IPC is exclusively triable by a Court of Sessions, the learned
Magistrate committed the case to the Sessions Court and the Hon'ble
Metropolitan Sessions Judge, made over the case to the Hon'ble VII Additional
Metropolitan Sessions Judge, Hyderabad court for disposal according to law.
4. After receipt of the record from the Hon'ble Metropolitan Sessions Judge,
Hyderabad, and on production of the accused, after hearing the learned Addl.
Public Prosecutor and the defence counsel , and on satisfying of the prima facie allegations, charges were framed by VII Additional Metropolitan Sessions Judge,
Hyderabad against the Accused for the offence under section 376 and 506 of
IPC, read over and explained to him in his vernacular language, for which he pleaded not guilty and claimed to be tried.
5. Later the case was transferred to V Additional Metropolitan Sessions Judge
Court as per the orders of the Hon'ble Metropolitan Sessions Judge, Hyderabad
Vide Dis. No. 800/2013 dt: 15-2-2013. Again the case was transferred to this court as per the orders of the Hon'ble Metropolitan Sessions Judge, Hyderabad
Vide Dis.No. 4210 /MSJ.OP Cell/2016 Dt: 12-8-2016 for disposal according to law.
6. During the course of trial, in order to prove their case, prosecution examined PW's.1 to 6 and got marked Ex.P.1 to P9. After closure of the prosecution evidence, accused was examined u/s.313 Cr.P.C explaining the incriminating material appearing against him, the accused denied the same and reported no defence evidence.
7. Heard the arguments of both sides.
8. Now the point for consideration is whether the prosecution proved the guilt of the accused for the offence under sections 376, 506 of IPC beyond all reasonablde doubts?
9. point :
Prosecution in order to prove its case got examined Pws 1 to 6 and got marked Ex.P.1 to P.9.
10. PW1 Faheem Begum is the victim. She stated that accused is her father and she has (2) brothers and (3) sisters. About (11) years back one day she was having physical relationship with one Mohammed and on coming to know about the same her father beat her and she went to the police station. Police obtained her thumb impressions on white paper. She was not examined by the police.
She turned hostile to the prosecution and did not support the version of the prosecution.
11. In her 161 Cr.P.C. statement she stated that she is residing along with her father Omer Khan, mother Farzana Begum, two brothers and three sisters. Her mother is working as daily wage worker in a zarda factory and used to clean the empty bottles at Zarda factory. Since last one year her father is committing rape on her forcefully without her consent and threatened her to kill if she discloses before her mother or anybody else. On 27-9-2005 her father came to the house in a drunken state and forcefully tried to commit rape on her and mixed the liquor in the cooked rice bowl and forced her to eat but she refused to do so and informed to her co-tenant by name Shajahan about the incident and she requested to take necessary action against her father.
12. PW.2 Dr M.Narayana Reddy is the professor of Forensic science Medicine,
Osmania Medical College, Hyderabad and he deposed that on 29-9-2005 at the request of the Inspector of police Falaknuma he examined Faheem Begum (victim) daughter of Md Omer khan with her consent along with the consent of her mother in the presence of Assistant Sub Inspector of police Basanna and
WPC No. 8492 to determine the age of the victim. She was subjected to physical, dental, radiological examination and on the basis of the examination he opined that the victim is aged about 16 to 18 years as on that date and issued age certificate Ex.P.2. on the same day at the request of the police he examined omer Khan at 11.30 a.m. to determine the status of his sexual potency in the presence of Assistant sub Inspector of police Basanna of PS
Falaknuma and on examination he did not find anything suggesting that the accused is sexually impotent and issued Ex.P.3 potency certificate.
13. During his cross examination he stated that minimum variation that can occur in determination of the age of the person below 21 years on medical examination plus or minus one year, it may extend to plus or minus two years in some cases.
14. Pw3 Dr. P.Vijaya, Assistant professor, MGMH, Petlaburj, Hyderabad deposed that on 28-9-2005 she received requisition from police Falaknuma and on that she examined Faheem Begum, aged about (15) years at 4.55 p.m.
daughter of Omer Khan and on her examination she found that Hymen was intact and vagina admits two fingers easily, uterus bulky, AV, cervix is long, OS closed. He collected the slides from the victim girl and pubic hair clipping and blood for testing and advised the patient for scan and after scan report she came to know that the victim girl was pregant.MPT was done by DR Vijaya and foetus was collected and sent for analysis. She enquired with the victim and she stated that her father Omer Khan has committed intercourse with her forcefully since two years by threatening her and beating her and not to tell the same to her mother or anybody. Ex.P.4 is the medical certificate. Ex.P.5 is the
FSL report. Ex.P.6 is another FSL report. Ex.P.7 is the DNA report. As per Ex.P.5 to P.7 witness gave opinion Ex.P.4 medical certificate and it is proved that the father of the victim Omer Khan is the biological father of the male foetus.
15. During the cross examination she stated that woman constable accompained the victim when she was brought to the hospital and she further admitted that if the victim is minor before going to examine the victim she should take the consent of the guardian. Witness stated that her mother is present and also stated that case sheet does not contain the signature of the guardian. She denied the suggestion that she has given Ex.P.4 medical certificate at the instance of the police, did not examine the victim physically and the victim girl has not stated anything before her.
16. PW4 Mohd Taher Ali is one of the Investigating Officer. He stated that on 28-9-2005 he received written complaint in urdu from PW1 Faheem Begum, aged about (15) years. Ex.P.8 is the complaint given by PW1. Basing on the complaint he registered a case in Cr.No. 165/2005 under section 376 and 506 of IPC and issued express First Information Report Ex.P.9 and he took up investigation, visited scene of offence and took the photographs of scene of offence and drafted rough sketch and observation panchanama in the presence of LW7 and Lw8 and seized aluminum bowl containing cooked rice smelling something similar to liquor and dark colour shalwar and he seized one dark rani colour shalwar torned on waist portion. One kitchen knife 7 1/2 inches 3 1/2 inches wooden grip of knife. He took the photographs of scene of offence.
After seizure of the material the same was sent to FSL. Victim girl was sent to medical examination through woman police constable LW.9. She was examined by LW10 Assistant Professor and further the victim girl was sent for age determination to PW2. Later the accused was sent for potency test. On 28-9- 2005 he arrested the accused after informing the grounds of arrest, he was produced before the concerned Magistrate and remanded to judicial custody.
On 25-10-2005 he produced the victim girl for DNA test and LW14 Sceintific
Officer conducted medical examination of the victim girl and also the accused and preserved the sample for analysis and issued opinion and report EX.P.7.
17. During his cross examination he deined the following suggestions PW1 was not started before him as in EX.P.1. He deined the suggestions that PW1 was illiterate and false complaint has been foisted against the accused. Ex.P.7 is the false report and the person who issued is not an authorizied person to give report and the procedure adopted is not according to the Law under the medical jurisprudence. The victim girl was major at the time of the incident.
The victim girl came to the police station to lodge complaint for the alleged beating by her father and not visted the scene of offence and not seized the material objects and not taken the photographs and drafted the rough sketch and that he tried to manage PW2 and PW3 for getting favourable reports in favour of the prosecution and not done the investigation properly. He further started that he do not know whether the victim girl was in affair with one
Mohammed of her locality and that she was physical relationship with him and he do not know whether the accused admonished and beat her and that he has not done any investigation with the aspect having physical relationship between the victim and Mohammed.
18. PW5 P. Sudhakar is another Investigating Officer who stated that he took up investigation from LW17 Shiva Rama Krishna, verified the investigation done by PW4 and found it on correct lines. While the witness was questioned with regard to the destruction of property, the witness replied that the property has been destroyed as it is more than five years and witness pleaded ignorance as to how the property was destroyed and witness also pleased ignorance of collecting relevant material and records for the purpose of this case and when the court asked for as to who passed orders for destruction of the property, witness replied that ACP mohammed Bari issued instructions for destroying the property, while the case is pending. He filed charge sheet against the accused for the offence under sectuions 376 and 509 of IPC.
19. Pw6 Dr G. Pandu is the Scientific Officer deposed that on 14-10-2005
DNA Division received requisition in CR.No. 165/2005 along with one GCP and produced two persons for blood collection dt: 25-10-2005. Blood samples were collected from two persons vide DNA 211/2005A. Blood samples collected from
Faheem Begum is marked as Item No.1. Blood sample is collected from Omer
Khan is marked as Item No.2 and he received sealed gauge glass cloth parcel in file No. DNA.211/2005A. The sealed gauze glass contained aborted foetus marked as Item No. 3 and the result of the examination – DNA extracted from item No. 1 to 3 and subjected to autosomal STR by using identifiler kit. DNA profiles obtained from item No.3 is compared with DNA profiles obtained from
Item NO. 1 and 2. The allelic pattern of Item No.3 matches with Item No. 1 and 2 and concluded that the Omer Khan (accused) (source of Item No.2) is the biological father of the male child of source of Item No.3 (Foetus) whose biological mother is Faheem Begum (source of Item No.1).
20. During his cross examination he stated that the DNA of the person matches with his close relatives, witness added that in case of relation he gives opinion that the DNA is the close relative, but here in this case he opined that the biological father of the foetus is the accused and he admitted that in Ex.P.5 to P.7 there is no mention that who has collected the blood samples and what precautions were taken while collecting the blood samples. Witness denied the suggestions that he has not taken the blood samples and witness further added that he conducted the test and reports bears his signature. The witness denied the suggestion, at the instance of the police he issued Ex.P.5 to P.7 and that he has not conducted the test. He admitted that in Ex.P.5 to P.7 there is no mention that he had obtained certification and declaration from the parties to the examination prior to the date of taking the samples within three months there is no blood transfusion within the parties and he also admitted that he has not sent the slips attached to the samples. Witness further added as the matter of practice they signed on the slips attached to the samples and after conducting the examination he sent the report to the court but not the sample chits and he is not aware that the samples are to be collected from the parties in the presence of the judicial officer and further admitted that the allelic pattern of the disputed chain should match within the ratio of 50:50 percent and there is no mention of percentage of matching in Ex.P.5 to P.7. The
Scientific Officer examination should be done strictly as per procedure or else the conclusion will differ. As per the procedure he has to first examine the samples taken from the child, later the samples taken from the mother and later samples taken from the father. As per Ex.P.7 the sample of the mother is examined first and thereafter the sample of the father and after that the sample of the child is examined. He deined the suggestion that he has not followed the procedure while conducting the examination and also denied that at the instance of the police he has given the report.
21. Coming to the documentary evidence Ex.P.1 is the 161 Cr.P.C. statement of Pw1, Ex.P.2 is the age certificate of PW2. Ex.P.3 is the potency certificate,
Ex.P.4 is the medical certificate, Ex.P5, Ex.P.6, Ex.P.7 are FSL reports, Ex.P.8 is the complaint and Ex.P.9 is the First Information report.
22. Now it is to be seen from the oral and documentary evidence on record that prosecution successfully proved its case in bringing home the guilt of the accused for the offence under section 376 and 506 of IPC.
23. For better appreciation of evidence it is better to look into section 375 of
IPC.
Section 375 IPC :
Rape :
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Firstly:- Against her will.
Secondly:- Withiout her consent.
Thirdly:- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly:- With her consent, when the man knows that he is not her husband, and that her consent is given because she belives that he is another man to whom she is or believes herself to be lawfully married.
Fifthly:- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly:- With or without her consent, when she is under sixteen years of age.
24. In this case the victim happens to be the daughter of the accused and there is no dispute with regard to the relationship. The victim girl got examined herself as PW1 and she completely turned hostile to the case of the prosecution and she stated that as she was having physical relationship with one
Mohammed her father beat her and she went to the police station and police obtained her thumb impresssions. But coming to her 161 Cr.P.C. statement, she deposed that for the past two years her father committed sexual intercourse with her forcefully without her consent. It is obvious that PW1 turned hostile is only because of her relationship with her father and also because of the cultural, financial background.
25. Now it is to be seen whether the evidence of PW1 shall be discarded in toto as she stated in her 161 Cr.P.C. statement with regard to the acts committed by her father. At this stage this court relies upon the judgement of the Hon'ble Apex Court reported in 2011(6) SCC 396 Bhagwan Das Vs. State of
Delhi, wherein the Hon'ble Apex Court has laid down the following ratio
The mother of the accused, Smt.Dhillo Devi state before the police that her son (the accused) had told her that he had killed Seema. No doubt a statment to the police is ordinarily not admissible in evidence in view of section 162(1) Cr.P.C., but as police mentioned, in the proviso to section 162(1) Cr.P.C. it can be used to contradict the testimony of a witness. Smt Dhillo Devi also appeared as a witness before the trial court, and in her cross examination, she was confronted with her statement to the police to whom she has stated that her son (the accused) had told her that he had killed Seema. On being so confronted with her statement to the police she deined that she had made such a statement.
We are of the opinion that the statement of Smt Dhillo Devi to the police can be taken into consideration in view of the proviso to section 162(1) Cr.P.C., and her subsequent denial in the court is not believable because she obviously has after thoughts and wanted to save her son (the accused) from punishment.
Infact in her statement to the police she stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in court she deined that she has made such a statement
before the police. We are of the opinion that her statement to the police can be
taken into considerations in view of the proviso to section 162(1) Cr.P.C.
26. The Hon'ble Apex Court has taken into consideration the 161 Cr.P.C.
statement by taking the aid of proviso of section 162(1) Cr.P.C. The facts of the above case are similar to that of the facts of this present case. In that case the mother tried to save her son and resiled from her 161 Cr.P.C. statement and became hostile to the prosecution and did not state anything against the accused, but the Hon'ble Apex court, taking into considerations the relationship has discarded the evidence of the mother and taken into consideration the 161
Cr.P.C. statement and found the accused guilty of the offence.
27. In the present case also the daughter happens to be victim has stated in her 161 Cr.P.C. statement before the police that her father has committed sexual intercourse on her forcefully for a period of two years without her consent.
Though ordinarily the 161 Cr.P.C. statement made before the police is not admissible but in view of the circumstances, taking into consideration the relationship between the parities the evidence given by the victim is not believable as the accused happens to be his father and following the judgement of the Hon'ble Apex court in Bhagwan Das Vs. State Delhi, this court is inclined to take into consideration the 161 Cr.P.C statement of the victim. But the sole testimony of the victim cannot form the basis for conviction unless it is corroborated by the other circumstantial and scientific evidence.
28. The prosecution in order to establish its case got examined PW3 who is the
Doctor who examined the victim and gave medical certificate Ex.P.4 wherein she categorically stated that the victim was sexually asssualted by her father since two years and her Hymen was not intact and the vagina admits two fingers freely and FSL report shows that aborted foetus was sent for analysis and proved that the accused is the biological father of the male foetus.
29. In support of its case prosecution got examined PW6 the Scientific Officer who stated that he had collected the blood samples from the accused, victim and also received the guage glass containing aborterd foetus material, he examined the same and concluded that DNA profile obtained from Item No.3 is compared with DNA profiles obtained from Item No.1 and 2. The allelic pattern of Item No.3 matches with Item No.1 and 2 and concluded that the Omer Khan (accused) (source of Item No.2) is the biological father of the male child of source of Item No.3 (Foetus) whose biological mother is Faheen Begum (source of Item No.1) and Ex.P.7 is the report and it is already marked by PW3 who happens to be the Doctor who examined the victim.
30. During the cross examination of PW6 the counsel for the accused elicited certain discrepancies, irregualrities in the examination done by PW6 and the counsel for the accused mainly focused on the Scientific examination done by
PW6 and he tried to point out the irregularities in examining the samples. As per Ex.P.7 he concluded that Item No.3 the foetus taken from the victim matches with the DNA of the accused which is examined as Item No.2. But the counsel for the accused made an endeavour to demolish the evidence of Ex.P.7, the FSL report by bringing into light that the tests were not conducted as per the procedure contemplated under Law. But PW6 has clearly stated that he has conducted the examination as per rules and the biological father of the foetus i.e, Item No.3 is the accused. Though there are minor discrepancies in the procedure adopted in the examination of the DNA, the evidence of the FSL report cannot be discarded in total for the reason that the counsel for the accused even though elicited some discrepancies which are irregularities committed by Pw6. But the counsel for the accused failed to establish that the entire report given by Pw6 shall not be taken into consideration if the said irregularities crept in. Hence this court is not inclined to accept the version of counsel for the accused, that Ex.P.7 issued by PW6 shall be discarded. The evidence of PW6 is in tune with the evidence of PW3 who is the Doctor who examined the victim physically and issued Ex.P.4 medical certificate.
31. Coming to the evidence of PW2 who issued certificate of age of Pw1 stated that the girl at the time of examination is (15) years or (16) years and the said certificate is marked as Ex.P.2 and also conducted potency test for the accused and issued Ex.P.3 certificate and as per Ex.P.3 the accused is not an impotent.
32. Hence on appreciation and taking into consideration the 161 Cr.P.C.
statement of PW1 that the accused had sexual intercourse forcefully without her consent for the past two years is corroborated by the evidence of PW2 who issued potency certificate and Pw3 Doctor who examined the victim physically and issued Ex.P.4 medical certificate showing that the victim had sexual intercourse and opined that the accused is the biological father of the male foetus and further substantiated by the evidence of Pw6 Scientific Officer who issued Ex.P.5 to P.7 and Ex.P.7 DNA report certified that the biological father of the foetus is the accused.
33. Now coming to the other evidence, PW4 is the Investigating Officer who stated that on receiving the complaint-Ex.P.8 he registered a case in
Cr.No.165/2005 under section 376 and 506 of IPC and issued FIR Ex.P.9, visited scene of offence and took photographs of the scene of offence and drafted rough sketch and observation panchanama and seized aluminum bowl containing cooked rice smelling liquor, one dark colour shalwar and light pink colour shalwar torn at waist and kitchen knife 7 1/2 inches 3 1/2 inches wooden grip of knife and took the photographs.
34. PW5 is the another Investigating Officer who verified the Investigating done by PW4 and when asked about the property, he replied that the property has been destroyed as it is more than (5) years and gave evasive answers as to how the property is destroyed without trial being conducted and he also stated that ACP Bari has passed the orders for destruction of the property. After completion of the investigation he filed the charge sheet under section 376 and 509 of IPC. Ex.P.5 and P.6 are the FSL reports pertaining to the property seized by PW4. Ex.P.5 and P.6 FSL reports states that the Human blood is detected in
Item No. 1 and 2 but their blood group could not be determined. Ex.P.6 is the sealed parcel containing one aluminium vessel with lid marked as Item No.1.
Item No.1 is analyzed and Ethyl Alchol is found in it and no others poisonous substance is available.
35. The said reports Ex.P.5 and P.6 issued by Pw4 cannot be taken into consideration for the reason that the property which was seized by PW4 has been destroyed even before conducting trial and PW5 who was incharge of said property gave evasive answers. But non marking of the property or the seized material is not fatal to the case of the prosecution for the reason that the main foetus which is sent to FSL has been examined by the expert and gave opinion with regard to the foetus and blood samples are collected. There is no ambiguity with regard to the evidence of PW3 who issued medical certificate.
PW2 is the Doctor who issued age certificate of the victim and PW6 Assistant
Director, DNA FSL gave DNA report pertaining to DNA of the victim and the accused coupled with Ex.P.4 medical certificate and Ex.P.7 is the DNA FSL report.
36. It is pertinent here to mention that the way in which PW5 has conducted the investigation is very much condemned and PW5 has not taken the minimum care to protect the seized material as the trial is not conducted and the behaviour and attitude of PW5 is very much evasive and the acts of Pw5 sheerly amounts to dereliction of his duties deliberately. There is every need to enquire into the conduct, behaviour and the way in which PW5 is discharging his duties by looking the above negligence of PW5 in handling such a henious crime. The officer did not even try to take steps for keeping the property in safe custody till the trial is completed.
37. Apart from the seized material the other evidence is conclusively proving that the accused had sexual inter course with the victim forcefully without her consent and the counsel for the accused relied upon the judgement of the
Hon'ble High Court of Madhya Pradesh in AKEEL Vs.STATE OF MADHYA
PRADESH reported in 1998 CRI. L.J. 4530, wherein their lordship have categorically held that “Variation in age by 3 years either way, possible, Osification test showing age as 16 to 17 years, accused is entitled to advantage of marginal error based on osification test”
The said judgement of Hon'ble High Court of Madhya Pradesh is no way helpful to the case of the accused because the age in this case is immaterial and in this case it is to be seen whether the accused had sexual intercourse with the victim or not and the said allegation is proved by the prosecution.
38. The counsel for the accused further relied upon the judgement of the
Hon'ble Apex Court in KESHAV DUTT VS. STATE OF HARYANA reported in
2011(1) ALT (CRI.) 15(SC), wherein their lordship have categorically held that “In the instant case, it is only the report of the handwriting expert, Ex.P.Y, which connects the Appellant with the offence on count of Ex.P.R which is said to be in his handwriting. Since the Appellant had neither received the money nor was he present at the spot from where the other accused were apprehended, his case has to treated on a different footing an since his complicity has basis of Ex.P.Y. he must be given the benefit of doubt”.
But the said facts of the case are different. But in the present case in order to prove Ex.P.7 DNA report though it is marked by PW3. Pw6 Scientific
Officer was subsequently examined. Hence the said case cannot be applied in the present case.
39. The counsel for the accused further relied upon the judgement of the
Hon'ble High Court of Gujarat in PREMJIBHAI BACHUBHAI KHAIYA Vs. STATE
OF GUJARAT reported in 2009 (4) Crimes 281 (Guj.) wherein their lordships have categorically held that “We appreciate the action on the part of the Investigating police Officer to opt for collection of Scientific evidence in form of DNA report. DNA report plays and important role and its need and usefulness cannot be under estimated. It is useful to any Investigating police Officer to assess as to whether his Investigation of crime is on right tract or not. It would save people from facing unwarranted prosecutions. But when the question of appreciation of evidence such report arises before a criminal court, especially when such report is positive, it shall look for other evidence, particularly when such other evidence does not fall in line with the result in the positive DNA report or when such other evidence is in direct conflict with the opinion expressed in such positive report. Such report can be used as corroborative evidence i.e., an evidence to substantiate other evidence. A positive DNA report cannot be the sole and conclusive evidence to record conviction in a criminal case”.
But the said judgement cannot be applied in the present case for the reason that apart from the DNA test, the evidence of PW3 the Doctor who issued medical certificate and PW2 who issued potency certificate are also present and moreover in this case the other evidence is supporting the evidence of DNA report. Hence the said case cannot be applied in the present case.
40. The counsel for the accused further relied upon the judgement of the
Hon'ble High Court of Uttarakhand in DEEPAK ARYA Vs. STATE OF
UTTARAKHAND reported in 2016 Cri. L.J.98, wherein their lordships have categorically held that “As discussed herein before, at the risk of repetition, we would like to state that from the DNA profiling report the only conclusion which can be drawn is that accused was in contact with the body of Sanjana alias Nanu, but in the present case, it could not be roved that the accused was in contact with the body of Sanjana alias Nanu before her death rather contrary is proved that the body of accused was in touch with the dead body of Sanjana alias Nanu after the incident has taken place. When the dead body was being carried from the agricultural field to the house of PW1. Therefore, the probability that dead cells of the accused might have mixed with the vaginal wash/swabs cannot be ruled out completely
The present case falls on the same lines as that of the judgement in
Gujarat High court. The above said judgements are not applicable to the facts of the present case and is of no avail to the case of the accused.
41. Now on the appreciation of oral and documentary evidence on record it could be observed that the accused had sexually assaulted the victim or continuous period of two years as per the testimony of PW1 and it is further corroborated by the evidence of PW2 the Doctor who gave the potency certificate of the accused and Pw3 the Doctor who issued Ex.P.4 medical certificate and Pw6 who conducted DNA test and issued Ex.P.7 FSL report.
42. From the above evidence, this court has no hesitation to come to conclusion that the prosecution is able to prove the guilt of the accused for the offence punishable under section 376 of Indian Penal Code as the essential ingredients of Section 376 of IPC, that the accused (father of the victim) had sexually intercourse with victim forcefully is clearly satisfied by the evidence of the prosecution. In the course of committing sexual intercourse forcefully, the victim girl has been intimidated by the accused. Hence this court found that the prosecution is able to prove the guilt of the accused for the offence punishable under section 376 and 506 of IPC beyond all reasonable doubt and he is accordingly convicted.
43. In the result, the accused is found guilty for the offence under sections 376 and 506 of IPC and hence, he is convicted u/Sec.235(2) of Cr.P.C.
Dictated to Stenographer, transcribed by her, corrected and pronounced
by me in the open court on this the 3rd day of February, 2017.
VII ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD
FAC SPECIAL SESSIONS COURT FOR FAST TRACKING THE
CASES RELATING TO ATROCITIES AGAINST WOMEN-I
CUM X ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD
44. Heard the accused with regard to the quantum of sentence. The accused submitted that he is innocent and pleaded mercy and he is aged about 65 years and sufferings with several ailments.
45. Having regard to the facts and circumstances of the case and serious nature of the offence, this court feels that it is not a fit case to take lenient view.
46. In the result, the accused is convicted under section 235(2) of Cr.P.C., and sentenced to undergo simple imprisonment for a period of seven (7) years and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence punishable under section 376 of IPC, in default of payment of fine amount to suffer one month simple imprisonment, and sentenced to undergo simple imprisonment for a period of six months for the offence punishable under section 506 of IPC. Both the sentences shall run concurrently. The remand period undergone by the accused if any, shall be set off under section 428 of
Cr.P.C.
Dictated to Stenographer, transcribed by her, corrected and pronounced
by me in the open court on this 3rd day of February, 2017.
VII ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD
FAC SPECIAL SESSIONS COURT FOR FAST TRACKING THE
CASES RELATING TO ATROCITIES AGAINST WOMEN-I
CUM X ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD
: : APPENDIX OF EVIDENCE::
WITNESS EXAMINED FOR PROSECUTION
P.W.1 : Faheem Begum, Complaint and victim P.W.2 : Dr.M.Narayana Reddy, examined the victim and the accused P.W.3 : Dr.P.Vijaya, examined the victim and gave report P.W.4 : Mohd Taher Ali, Inspector of Police, Investigating Officer, issued first information report P.W.5 : P.Sudhakar, Inspector of Police, filed charge sheet P.W.6 : Dr. G.Pandu, issued Ex.P7
WITNESS EXAMINED FOR DEFENCE : NIL
EXHIBITS MARKED FOR PROSECUTION : Ex.P.1 : 161 Cr.P.C STATEMENT OF PW1 Ex.P.2 : AGE CERTIFICATE Ex.P.3 : POTENCY CERTIFICATE Ex.P.4 : MEDICAL CERTIFICATE Ex.P.5 AND Ex.P.6 : FSL REPORT Ex.P.7 : FSL DNA REPORT Ex.P.8 : COMPLAINT Ex.P.9 : FIRST INFORMATION REPORT EXHIBITS MARKED FOR DEFENCE : NIL MATERIAL OBJECTS MARKED : NIL
VII ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD
FAC SPECIAL SESSIONS COURT FOR FAST TRACKING THE
CASES RELATING TO ATROCITIES AGAINST WOMEN-I
CUM X ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD
R.B. C.B.