1
IN THE COURT OF THE SPECIAL SESSION JUDGE FOR FAST TRACK
COURT TO ATROCITIES AGAINST WOMEN -II-CUM-XI
ADDL.METROPOLITAN SESSIONS JUDGE, HYDERABAD
Present: Sri B Srinivas Rao,
Special Sessions Judge for Fast Tracking the
Cases Relating to Atrocities Against Women-I
cum X Addl. Metropolitan Sessions Judge,
Hyderabad.
FAC XI Addl. Metropolitan Sessions Judge,
Hyderabad.
Dated this the 6 th day of August, 2021
SESSIONS CASE NO. 410 of 2014
( PRC No.36 Of 2013 )
Committed by
Sir.P.Bhaskara Rao VI.Addl. CMM, Hyderabad.
Crime Number and PoliceCrime No. 170/2012 of Langer House Police Sta-
Stationtion, Hyderabad.
A1. Syed Mazahir S/o.Late Syed Abid Ali
Age.23yrs Occ:Student R/o. H.No. 9-1-2, Hasham
nagar, Langer House, Hyderabad.
A2. Maqbool Fatima W/o Late.Syed Abid Ali,
age.56 yrs, r/o.H.No. 9-1-2, Hasham nagar,
Name and description of
Langer House, Hyderabad.
the accused person
A3. Syed Medhi Ali, S/o. Late Syed Abid Ali,
Aged about 36 yrs, H.No. 9-1-2, Hasham nagar,
Langer House, Hyderabad.
A4. Syed Hadhi Ali, S/o. Late Syed Abid Ali,
Age:about 36 yrs, H.No. 9-1-2, Hasham nagar,
Langer House, Hyderabad.
Name and description of The State represented by the Sub-Inspector of
the complainantPolice, Langer House, Hyderabad.
Prosecution conducted bySri G Narayana, Additional Public Prosecutor.
Defence conducted bySri.Wazeed Counsel for Accused
Offences chargedUnder Section 417, 376 IPC and Sec.4 of D.P.Act.
Plea of the accusedPleaded not guilty.
Finding of the CourtFound not guilty
RESULT:-In the result, the accused No.1 is found not guilty for the offence under Sections 376, 417 IPC and Accused No. 2 to 4 are found not guilty for the offence under Section 417 IPC and Sec. 4 of DP Act and they are accordingly acquitted under section 235 (1) Cr.P.C for the said offences. The bail bonds of accused No.1 2 to 4 shall stand cancelled after expiry of appeal period. Unmarked case property, if any, shall be destroyed after expiry of appeal period.
J U D G M E N T
1.The Inspector of Police, Langerhouse P.S., has filed this charge sheet against the accused No.1 to 4 for the offences under Section 417, 376 of I.P.C r/w
Sec. 4 of D.P.Act vide charge sheet No. 160/2013 in Cr.No. 170/2012 dated 24.04.2012.
2.The contents of the case as per charge sheet are that :
On 24-04-2012 at 11.00 hours, LW.1/complainant came to police station and lodged a complaint stating that on 24.02.2012 her aunt by name
Maqbool Fatima visited their house and requested her for coming to her house for a small function at Langerhouse and after attending the function, her aunty asked to stay at her house and on next day, Syed Mazahir Ali called her and said that he is going to marry with her and asked not to worry and believing his words, and he participated in intercourse with her and when she was coming out of the house,
Syed Hadi Ali asked her what happened why she is crying and then when she told to the said Hadi Ali, he said not to worry and they will solve it by performing the marriage. She stated that the family members accepted the shameful act of said
Syed Mazahir Ali and their elders talked to each other for the marriage.
Subsequently, on 15-03-2012, in the evening hours they came to her house and demanded for Rs. 5.00 lakhs as a dowry to perform the marriage since he is an
Engineer and her father is a daily wage earner and cannot able to afford and requested for action.
3.Basing on the above complaint, LW.11/P. Mahesh Goud, SI of police, registered a case in Cr.No. 170/2012 under Section 417, 376 IPC and Sec. 4 of
D.P.Act and LW.12/N.B. Ratnam, Inspector of police took up the investigation and recorded statements of complainant and her parents I.e LW.2/Ruquiya Begum and 3
LW.3/Syed Ahmed Ali and LW.12 visited scene of offence and drafted rough sketch of scene and conducted scene of observation panchanama in the presence of
LW.4/R. Ashok and LW.5/Shaik Azher and did not find any incriminating material at the scene. He referred LW.1 to Niloufer hospital for medical examination and
LW.9/Dr. G. Sharmila conducted medical examination of LW.1 and issued report basing on FSL report issued by LW.10/Dr. Arun Jyothi who is Assistant Director of
FSL. He observed that scene of offence is three floored building facing North with a big gate. When the efforts are in progress, on 27-04-2012 at 9.00 AM, an information is received that A1 is at his house and LW.12 and staff proceeded to the place of accused and served notice under Section 41 (1) Cr.P.C, but accused did not give any proper explanation, as such he was brought to Police station and on interrogation he confessed the guilt of committing rape of LW.1 and the confession proceedings were recorded in the presence of LW.6/G. Nitin Reddy and
LW.7/Ch. Shekhar Babu @ Ramu thereafter A1 was sent to Osmania Medical college for potency test where LW.8/Dr. P. Hari Krishna examined the A1 and gave opinion that A1 is capable of performing intercourse. A1 was arrested and sent to judicial custody. During investigation, it is revealed that A1, A3 and A4 are cousins of victim and A2 is the aunt and due to close relationship LW.1 used to visit the house of accused persons and on 24-02-2012, A2 requested to send LW.1 to house of accused and after function when LW.1 and A2 were in a room in 1st floor the A1 called LW.1 to 2nd floor and expressed his love and promise to marry and had sexual intercourse in a room and A2 to A4 promised to perform their marriage and convinced LW.1 to LW.3 and thereafter demanded Rs.5.00 lakhs in the form of dowry. Since A2 to A4 were absconding, the charge sheet was filed by the
Investigating Officer showing A2 to A4 as absconding.
4.Cognizance of the case was taken against the accused No.1 for the offences punishable under sections 417, 376 IPC and Sec. 4 of DP Act and
Sections 417 of IPC and Sec. 4 of DP Act against A2 to A4 and registered it as PRC 36/2013 on the file of VI Additional Chief Metropolitan Magistrate, Hyderabad. On 4 appearance of the accused No.1 to 4, copies of the case documents were furnished to them as contemplated under section 207 Cr.P.C before the trial court.
Since the offence under section 376 IPC is exclusively triable by the court of
Sessions, the learned Magistrate has committed the case to the Hon’ble
Metropolitan Sessions Judge, Hyderabad, vide his orders dated 21-08-2014 by following the due procedure as contemplated under section 209 Cr.P.C.
5.The case was registered as SC 410/2014 by the Hon’ble Metropolitan
Sessions Judge, Hyderabad and made over the same to the court of V Additional
Metropolitan Sessions Judge, Hyderabad for disposal according to law. On appearance of the accused No.1 to 4 and upon hearing both sides, charges under section 417, 376 of IPC were framed against the accused No.1 and charge under section 417 of IPC and Sec. 4 of DP Act were framed against the accused No. 2 to 4, read over and explained to them, wherein the accused persons denied the charge, and pleaded not guilty and claimed to be tried.
6.During the course of trial, the prosecution has examined Pws. 1 to 9 and marked Ex.P1 to P13. The accused persons examined DW.1 and marked Ex.D1 to D6 on their behalf.
7.After the closure of prosecution evidence, accused No.1 to 4 were examined under section 313 Cr.P.C by explaining the contents of incriminating evidence adduced against them by the prosecution witnesses, for which they denied the same and reported defence evidence and examined DW.1 on their behalf.
8.Heard the arguments on both sides and perused the entire material on record.
9.Now the point for determination is:
“Whether the prosecution is able to establish the guilt of the accused No.1 for the offences punishable under sections 376, 417 of IPC and for the offences punishable under sections 417 of IPC and 5
Sec. 4 of DP Act against accused No.2 to 4 beyond all reasonable doubt?”
Point:
10.It is seen that the prosecution has examined PW.1 to PW.9 and marked
Ex.P1 to P13 and the accused persons examined DW.1 and marked Ex.D1 to D6 on their behalf. PW.1 is the victim and PW.2 is the father of victim, PW.3 is panch witness of confession, PW.4 is also panch for confession, PW.5 is the Medical officer who examined PW.1, PW.6 is panch witness for scene of offence, PW.7 is
Medical officer who conducted potency test, PW.8 is Investigating Officer and PW.9 is the Doctor who was said to have treated DW.1.
11.On perusal of evidence of PW.1, it is seen that she has introduced several new facts in the chief which she did not state either in the complaint or in 161 Cr.P.C statement. It is seen that in the chief, the PW.1 deposed that in the year 2012, she was studying Intermediate at Vani Womens College,
Mehadipatnam and used to go to college by bus as her house is far away from college, sometimes A2 and her daughter used to call her to their house as it was near to her college and used to go to their house now and then and daughter of
A2 Amreen Fathima also used to come to their house now and then and they all used to go out. She stated that on 24-02-2012, A2 invited her to attend the function at her house and took her to the house and A2 and A1 also came for inviting and she attending the function and as it was late night, she requested A4 for dropping to house and at that time A2 asked her to stay back in their house so that she can go to college directly from her house and A2 also informed to her parents. She stated that A1 called her for getting some water to his room in the 2nd floor and she went to upstairs and A1 closed the doors and expressed his love for her and touched her here and there and asked her for intercourse, for which she refused and stated that A1 had forcible intercourse with her. She stated that after that she came down to 1st floor and A4 saw her as she was crying and on questioning she disclosed the entire incident to A4 for which A4 called A2 and A3 6 and told about the entire incident and they called the A1 and questioned him and he accepted infront of A2 that he had forcible intercourse with her, on that A2 to
A4 told that they will perform marriage of PW.1 and A1 soon and thereafter in the next morning, A2 asked her to take bath and wash her cloths since they are going to call her parents and A2 explained about the incident to her parents and they were in shock but still her father accepted to perform the marriage. Thereafter she went back to the home and her parents waited for 15 to 20 days and the family members of A2 did not respond though her father called her.
12.She stated that they went to the elders and placed matter before them and their elders tried to convince A2 and her family and A2 requested for certain more time and thereafter on 15-03-2012, A2 to A4 came to their house and spoke their father and demanded Rs. 5.00 lakhs to perform the marriage with
A1 since A1 is Engineer and her father expressed inability to pay the amount and reminded the shameful act of A1 for which A2 to A4 refused to perform the marriage. She stated that thereafter on 04-04-2012 she went to police station for lodging the complaint and there was curfew in old city and none of the police was available and thereafter she went to police station and lodged complaint on 24- 04-2012 under Ex.P1.
13.During the cross, PW.1 deposed that police recorded her statement twice and admitted that she went to police station for first time with a written complaint and the 2nd complaint was in hand writing and stated that she have complaint against the police that they did not reduce her oral statement into writing properly and also about her written complaint that it was not corrected and stated that police has no enmity with her and she did not complain before any forum in this past 7 years that police did not reduce her oral statement into writing properly and that her written complaint was not corrected and stated that she cannot say why she did not lodge any complaint. It is seen that she has denied all the suggestions with regarding to the contradictions and additions in 7 her chief whichever she made in her chief and which were not mentioned by her in her 161 Cr.P.C statement.
14.She further deposed in the cross that her entire education was in
English medium and stated that she knows the difference between daily wage earner and a businessman and admitted that she mentioned in the complaint that her father is a daily wage earner and stated before police that her father is a businessman and doing old parts business at Afzalgunj and admitted that she stated all the facts in complaint and statement on 24-04-2012. she further stated that during February, 2012 she was studying Intermediate and denied that as per
Ex.D1 she was studying B.Com 1st year. She further stated that she was in 9th standard she learned about anatomy of male and female and stated that nobody thought her about good touch and bad touch and stated that on 24-02-2012 she realized for the first time about good and bad touch and admitted that the incident occurred on 24-02-2012 is important for her and stated that she know the difference between agree and disagree and stated that she will not do anything which she disagree and denied the contention in her statement under Ex.D2 that believing his word she agreed.
15.She further stated that she know the difference between day and night and stated that she went to the room of A1 at 12.30 AM when it was night and stated that she went to room of A1 at 12.30 AM and denied part of her statement under Ex.D3 that she mentioned before police that on next day A1 called her. She further admitted that bed room of A2 was to the left of hall in the first floor and the staircase leading to 2nd floor passes through the hall of 1st floor and the distance between staircase and bedroom is 30 to 40 meters and there are two rooms in the 2nd floor which is store room and room of A1 and admitted that if she raised voice from the room of A2, it will not reach the rooms in the 2nd floor.
She further stated that Amreen Fathima was pregnant and function was performed and stated that in the year 2012 she did not have any mobile phone 8 and she did not carry any mobile phone and her father and mother had cellphones and communication relating to any matter will be communicated to their phones and admitted that she do not have any photographs which would have been taken in mobile phone and admitted that she do not have any invitation or photograph of the function of Amreen Fathima and admitted that she was present in the photograph shown to her in the court hall and those pictures were captured at
Lonawala, Mumbai, Ocean park of Hyderabad and all boys present in the photographs are her brothers and close relatives and do not know whether said photographs were prior to incident or after the incident.
16.She further stated that the alleged function was concluded at 11.30
PM and she took one spare dress along with her and the function occurred on 23- 02-2012 I.e on Thursday and before the incident she went to 2nd floor many times and never went alone to 2nd floor in night hours and stated that in the 1st floor there was kitchen in between bedroom and hall and admitted that if anybody wants to take water, they can directly go to the kitchen without going into bedroom of A2 and stated that she was awake in the room of A2 after the function and at that time A1 asked her to get the water and stated that distance between the place where she was present and the fridge was about 15 to 20 feet and A1 was present at a distance of 6 feet from her and stated that A1 was not having any physical disability on that day and stated that she felt like telling him to take water on his own and the witness added that she could not refuse as he is the elder brother. She stated that she has gone through her medical reports in this case but the same was not proper and she realized it 4 to 5 years ago and did not complain to any authority about her medical reports and cannot tell the reasons.
17.She further stated that she was present in 2nd floor for more than half an hour and stated that she definitely want to see that one who misbehaves with her must be convicted and stated that when A1 asked her to get water, nobody were present in 1st floor hall and when came down from 2nd floor A4 was only 9 present and admitted that she was in state of shock and disgusted when she came down from 2nd floor and stated that no one prevented her for leaving the house after the incident and stated that she did not think about her marriage at that time. She admitted that at that time of alleged incident, her focus was on her studies and carrier and marriage was last one and stated that after the alleged incident, it did not come into her mind that she should go to Police Station without talking to A2 to A4 and stated that if she is in a state of shock, she would call her parents and stated that her parents phone numbers were available with A2 as on the date of the incident and she did not feel like asking A2 to call her parents through phone.
18.During the further cross examination, she stated that A1 is having three brothers and two sisters and except A1, all others were married as on that date and A1 and his brothers are living in a joint family with their families and the third brother of A1 stays in the bed room in the 1st floor which was drawing room earlier and the roof of 2nd floor is asbestos roof and stated that she do not know as to how many pregnancy, Amreen Fathima was carrying at that time and it was her first pregnancy. She stated that 20 members of their family attended the function and Amreen and her husband were garlanded and she do not remember at what time function started and the family members of A1 took photographs of the function. She stated that she got facebook account by name Syeda Nikanth
Fathima since 2012 and do not remember whether she started her facebook account prior to the alleged incident or after that and stated that she use her facebook account in desktop and at present she is using facebook account in her mobile from 2013.
19.She further stated that after incident she do not know any information about family of A1 and at the time of function she was wearing Salwar and shirt and stated that at the time when A1 called her to his room, she was wearing orange colour shirt and legging. She further stated that she resisted when A1 tried 10 to undress her but did not raise any shouts at that time and stated that the matter was placed before her paternal grandfather and maternal aunty and police did not record their statements and stated that since 2013, she is doing part-time jobs in hospitals. She denied all other suggestions given to her during the cross.
20.PW.2 is the father of PW.1 who deposed that in the year 2012, PW.1 was studying Inter at Vani College, Mehadipatnam and at that time A2 and her daughter frequently used to call PW.1 to their house and they also used to come to their house. He stated that in the year 2012, A1 and A2 came to their house and invited her for a function and took PW.1 to their place and after function A2 informed that PW.1 will stay at their house since it was late night. He stated that next day A2 called them to their house and informed about the incident and A2 told that its a family issue and will settle the issue within the family and asked for sometime to perform marriage of PW.1 with A1 and thereafter there was no response from A2. He stated that they approached the elders and placed the matter before them and A1 and A2 and A4 came to their house and told that they will perform marriage of PW.1 with A1 if they gave Rs. 5.00 lakhs as dowry and stated that he discussed with his wife and arranged the amount and informed to
A2 and A2 refused to perform the marriage as such they lodged the complaint.
21.During the cross, PW.2 stated that in the year 2012, he used to work in old spare parts shop and his father expired 35 to 40 years back and father of A1 who is the elder brother got Government job of his father and stated that function was related to the delivery of daughter of A2 and he cannot tell the name of function since it is ladies function and stated that police did not examine him after lodging the complaint. He stated that he was called to house of A1 to A4 and they informed the matter to him and stated that after the incident, A2 to A4 came to his house on 15th March and panchayath was held in the presence of one Abed Ali who is no more and stated that he mentioned his phone number in the FIR which 11 was used at that time. He denied all other suggestions given to him during the cross.
22.PW.3 is the panch witness for confession who deposed that on 27-04- 2012 he went to police station at request of LW.7 and A1 was present at the police station and there are also some other people and at the request of police, they acted as panch witnesses and he enquired the A1 and he confessed the guilt of committing the offence in their presence and himself and LW.7 signed on confession panchanama. During the cross, PW.3 stated that as per panchanama, police summoned him as panchayathdar.
23.PW.4 is another panch witness who deposed that in April, 2012 he was called to police station along with PW.3 and by that time A1 was present at police station and on enquiry he confessed that he had intercourse with PW.1 who is said to be his cousin and agreed before the elders that he will marry her and at that time A2 to A4 were also present and thereafter he refused and arrested and stated that police recorded his confession statement and he identified his signature and accused No.1. During the cross, PW.4 stated that police called him when he was standing at home and on request of one Constable Mohan Reddy he alone went to police station.
24.PW.5 is the Medical officer who examined the PW.1 and stated that on 24-04-2012, the police Langerhouse referred PW.1 with a requisition for medical examination of PW.1 and on clinical examination collected two smears and swabs and those were preserved and handed over to police for sending to FSL and basing on clinical and FSL reports, she gave opinion that recent intercourse cannot be ruled out and marked her report under Ex.P3. During the cross she stated that at that time she was working at Niloufer hospital and admitted that victim was examined at Niloufer hospital and admitted that she did not find any external or internal injuries.
12
25.PW.6 is the panch witness for scene of offence who turned hostile and only identified his signatures under Ex.P4 and P5 and though he was cross- examined by learned Public Prosecutor after declaring hostile, nothing was elicited from him.
26.PW.7 is the Medical Officer who gave potency certificate of accused and deposed that on 27-04-2012, on the requisition of Inspector of police,
Langerhouse, he conducted physical examination and also genetical and neurological test of one Syed Mazahir Ali and gave opinion that the said Syed
Mazahir Ali is capable of performing intercourse and gave report and marked the same under Ex.P6.
27.PW.8 is the Investigating Officer who deposed that on 24-04-2012, at 11.00 AM, Pw.1 came to police station and lodged report under Ex.P1 and LW.11 registered a case in Cr.No. 170/2012 under Section 417, 376 IPC and Sec. 24 of
D.P.Act and issued FIR under Ex.P7 and thereafter he took over file from LW.11 and recorded statements of PW.1, LW.2 and PW.2 and sent the victim to Niloufer hospital, Nampally and PW.5 examined the victim and issued preliminary examination report and collected material objects and forwarded to FSL through
ACP, Asifnagar and marked FSL report under Ex.P9. He stated that he visited scene of offence and prepared panchanama and rough sketch under Ex.P10 and
P11 and stated that on 27-04-2012 at 9.00 AM apprehended A1 at his residence and brought him to police station and recorded confession statement in the presence of PW.3 and PW.4 under Ex.P2 and got conducted potency test through
PW.7 and after receiving FSL report from PW.5 he filed the charge sheet showing other accused persons absconding.
28.During the cross PW.8 stated that he got recorded statement of PW.1 at police station in the presence of two lady Officers Sharada and Swaroopa who are not shown as witnesses and whose presence is not recorded in the statement 13 and stated that he recorded everything whatever PW.1 stated before him and it took 30 to 45 minutes to record statement. He admitted regarding the contents that were not stated by PW.1 in her statement during his cross. He further stated that in the statement, PW.1 mentioned that when she went to his room in the 2nd floor, then A1 closed the door and expressed his lust towards her and promised to marry her and she further mentioned in the statement that believing A1, she agreed for intercourse and also mentioned that all the family members of A1 promised to perform marriage with A1.
29.He further deposed that he did not record statements of other independent witnesses and did not examine any community elder and further admitted that there was delay of two months from the date of alleged incident and in the FIR no reasons are mentioned for delay and stated that he do not remember whether there was a curfew in the month of April,2012 for three weeks and added that there was no such curfew. He further stated that he did not mention the name of alleged function in the charge sheet said to have held on the alleged incident date and did not collect photographs of that function and did not collect list of guests who attended the function and also did not ascertain the tower location of victim cellphone on that day and the witness added that PW.1 did not mention about carrying of cellphone on that day and stated that there is a mention of cell number in the complaint and did not ascertain to whom it belongs and did not ascertain any call data record of any witness to verify communications on the alleged date of incident.
30. He further stated that the scene of offence building is three floored
RCC roof and admitted that in the scene of offence panchanama, he mentioned the scene of offence place as if appearing as a store room and did not find any incriminating evidence and he did not record the statements of family elders of accused and stated that there is no mention in the statement of PW.1 regarding the demand of any dowry by A2 to A4. He further admitted that though PW.1 did 14 not state in her statement that A1 had forcible intercourse with her but still A1 was registered under Section 376 IPC and the witness added that since A1 refused to marry subsequently as such Sec. 376 IPC is added and stated that he did not record statements of other occupants in the building and stated that there are houses and two roads adjacent to scene of offence and further stated that he do not know what PW.1 stated in her cross. He further stated that he did not verify with the college management of PW.1 whether she was studying in that college at that time. He denied all other suggestions given to him during the cross- examination.
31.It is seen that subsequently the prosecution has summoned and examined PW.9 on 12-04-2021 after the accused has adduced defence evidence by examining one Amreen Fathima as DW.1 on 04-02-2021. The PW.9 is one Dr. N.
Shashikala who deposed that she is Director and Gynecologist of Kosaraju hospital, Langerhouse and DW.1 was treated by her and as per their hospital records, she had last menstrual period on 05-01-2012 and delivered female baby on 10-11-2012 and the weight of baby was 3.20 Kgs who was a post matured baby and stated that it is impossible for a new born baby for being 3.20 Kgs if it is premature delivery and admitted that if DW.1 would have got conceived on 05-03- 2012 then it would be impossible for giving birth in November, 2012, and stated that she brought the records pertaining to delivery of DW.1 which is attested copy of inpatient register under Ex.P12 and copy of case sheet of DW.1 under Ex.P13 and as per Ex.P13 the address of DW.1 is at Langerhouse.
32.During the cross, PW.9 stated that the Constable of Police Station came and served summons on her for giving evidence in this case on the 6th date of the month and she personally do not know the PW.1 in this case and stated that she is maintaining the records of the hospital since 1999 and stated that she never share the confidential reports of the patients with the strangers and do not remember the date of first visit of DW.1 to her hospital and it is not mentioned in 15 the hospital records and stated that she did not conduct any pregnancy test of
DW.1 and witness added that radiologist conducted scanning of DW.1 on 6th June, 2012, which shows that she was running the ending of 5th month and in their report they did not mention whether DW.1 was having regular periods or irregular periods. She further stated that since DW.1 herself revealed that she lost periods after January, 2012, as such could mention pregnancy conceive time and stated that it takes two to four weeks or earlier to conceive after jumping of period and stated that every patient need not have symptoms of pregnancy and only by conducting self test or blood test after jumping of period within three days, an woman can know about confirming of pregnancy.
33.She stated that she do not remember whether DW.1 told her that she got conducted any test during January, 2012, and she added that DW.1 had period in January, 2012 and after that she missed as such she can go for a test only in
February, 2012 and if a woman delivers after 39 to 40 weeks, then it can be called as post-mature delivery and stated that Ex.D6 is issued by their hospital which is bearing hand writing of her Assistant and as per Ex.D6, the patient first approached their hospital on 03-11-2012 and before that she might have took treatment and might have got tested pregnancy at other hospital and as per
Ex.D6, DW.1 completed 8th month when she approached their hospital and as per
Ex.D6 she conducted Cesarean to DW.1 on 10-11-2012 and it endorsed that it was 37th week of pregnancy and she added that it was on clinical examination by seeing height of uterus height, they estimate the pregnancy age and on scanning
dated 16-10-2012 it was showing as 37 weeks as such the date of delivery can be
taken as 39 to 40 weeks of pregnancy and stated that age of pregnancy can be accurately determined only by scanning. She further stated that as per Ex.D6, there could be possibility of DW.1 either getting conceived during January last week or February 1st week and stated that she do not have any idea as to when the baby shower functions will be conducted in Muslim community and further stated that from 5 to 6 weeks of pregnancy, the heart beat of the fetus can be 16 recorded by scanning. She denied all other suggestions given to her during the cross-examination.
34.During the course of re-examination by Public Prosecutor, PW.9 deposed that usually the menstrual cycle in the women will occur once in four weeks and it can be irregular in some women and stated that if DW.1 would not have conceived she might have got her menstrual cycle in February on or before 05-02-2012 and admitted that missing of menstrual cycle in an woman would presuppose conceiving and in this case DW.1 lastly got pregnancy on 05-01-2012 and according to scanning report, pregnancy should be of 2nd week of February, 2012.
35.The accused examined one Amreen Fathima as DW.1 who deposed that on 24-04-2012 no pregnancy function pertaining to her was performed as she was not pregnant during that time and stated that she got conceived in March, 2012 and delivered a baby in November, 2012 and during 24-02-2012 she was present at Bidar only and she filed copy of birth certificate and marriage certificate under Ex.D4 and D5. During the cross by Public Prosecutor she stated that she know PW.1 who is her cousin and denied all other suggestions given during the course of cross-examination.
36.From the above discussed evidence, it is seen that the PW.1 in her chief evidence has made several additions than what she has stated in her complaint and further there are many omissions and additions in the chief evidence while compare to 161 Cr.P.C statement. It is seen that during her cross, she has denied all the contradictions whichever she has committed in her chief evidence when suggested to her by accused counsel. It is seen that the PW.1 in her cross stated that her entire education took place in English medium and she stated that she learned about anatomy of male and female in 9th standard and stated that nobody taught her about good touch and bad touch and on 24-02- 2012 she realized for first time about good touch and bad touch. It is seen that 17 admittedly in the complaint or in 161 Cr.P.C statement, the PW.1 did not mention about disagreeing the proposal of A1 when he expressed his intention for having intercourse with her. Admittedly, PW.1 and A3 and A4 are within close relation and as per cross of PW.1, there were said to be regular ingress and outgress in between members of both the families to the house of each other and PW.1 further stated that the daughter of A2 Amreen Fathima used to come to her house now and then and further stated that since her house was far away from her college sometimes A2 and her daughter used to call her to the house as it was near to her college and she further stated that she used to go out along with A2 and her daughter.
37. It is seen that she further stated in the cross while some photographs were confronted to her by defence counsel stating that she is present in those photographs which were captured at Lonawala, Mumbai, Ocean park, Hyderabad and all the boys in the photographs are his brothers and close relatives and the said photographs are pertaining to the period prior to the incident. The above discussed contention of PW.1 tends to show that the family of PW.1 and the accused used to go for outing now and then. It is seen that during the cross- examination the PW.1 also denied her contention in 161 Cr.P.C statement under
Ex.D2 wherein she mentioned that believing in A1 she agreed for intercourse.
Even otherwise, on perusal of the complaint under Ex.P1 it is seen that it is a small hand written complaint comprising of only one page.
38.It is seen that in the complaint it is mentioned as if on next day the incident occurred and in the complaint it is only mentioned that A1 called her on the next day and stated that he is going marry her and not to worry and believing in his words the A1 had intercourse with her and in the complaint there is no mention of all the narrations made by PW.1 by way of additions that A1 came and asked her to bring water to his room in the 2nd floor and when she went to the 2nd floor to his room, he closed the doors and proposed for marriage and that she 18 opposed for intercourse and admittedly in the complaint or 161 Cr.P.C statement, the PW.1 has nowhere mentioned that she has opposed the A1 for intercourse or that A1 had intercourse with her forcibly against her will or consent.
39.It is seen that admittedly there is delay of two months in lodging the complaint and no proper reasons are assigned in the FIR for the alleged delay. It is also important to see that the PW.1 also stated in the cross that she had gone through her medical reports in this case and they are not proper which she realized four to five years ago and stated that she did not make any complaint to any authority about her medical reports and cannot say the reasons. She further stated in the cross that no one prevented her from leaving that house after the alleged incident and she did not think about her marriage at that time and admitted that at the time of alleged incident her focus was on her studies and carrier and marriage was last priority and after the alleged incident it has not come to her mind that she should go to police station without talking to A2 to A4.
40.It is important to see that though she mentioned that if she is in a state of shock she would call her parents and stated that her parents phone number was available with A2 as on the date of alleged incident, but still she did not feel like asking A2 for calling her parents which is also very astonishing and it is not understood if PW.1 was really disturbed with the alleged incident and if A1 has participated in intercourse with her against her will, in such circumstances, why she kept quite and why did not call her parents immediately or why did not approach the police immediately within reasonable time is also not explained. It is seen that though panchayaths were occurred among both the elders subsequent to the alleged incident for performing marriage of PW.1 with A1, but none of the alleged elders are examined by Investigating Officer.
41.PW.2 is father of PW.1. Now coming to PW.3 and PW.4 they are only panch witnesses for confession and though PW.3 and PW.4 have deposed that A1 19 confessed about guilt of commission of offence in their presence and they singed over the panchanama, but it is seen that the alleged confession has not led to any recovery of the crime object, as such the evidence of the PW.3 and PW.4 regarding mere confession of offence by A1 cannot be taken into consideration since that was said to be made in the police custody. It is well settled law that any confession made by an individual while being in police custody is irrelevant and cannot be taken into consideration as such confessions are hit by the provisions of
Sec.25 of Indian Evidence Act.
42.Admittedly, A1 was in custody of police at that time and admittedly both PW.3 and PW.4 in their evidence mentioned that A1 was in custody of police at the time of confession,as such the said confession is hit by the provisions of
Sec. 25 of Indian Evidence Act. When the confession itself is irrelevant for being made while being in police custody, in such circumstance the evidence of PW.3 and PW.4 that A1 confessed regarding commission of offence while being in police custody is also not admissible in evidence regarding any commission of alleged offence.
43.As far as the evidence of PW.5 is concerned, she is the lady doctor who examined the PW.1 and gave opinion and admittedly PW.6 who is panch witness for scene of offence did not support the case and though he was cross- examined by learned Public Prosecutor, nothing was elicited from him and PW.7 is the doctor who conducted potency test of A1 and gave report.
44.Now it is important to see the contents of cross of PW.8 who is the
Investigating Officer at certain junctures. It is seen that the PW.8 in his cross deposed that he recorded everything whatever PW.1 stated before him and in the statement, PW.1 did not state that A1 asked her to bring water to his room in the 2nd floor and then A1 closed the doors and expressed his lust towards her and promised to marry her and stated that she did not mention in her statement that 20 she refused his request. He further deposed that PW.1 did not state in her statement that A1 forcibly had sexual intercourse with her and in her statement she mentioned that believing A1, she agreed for intercourse. He further stated that in her statement PW.1 mentioned that all the family members of A1 promised to perform marriage with A1 and stated that he did not either record statements of any independent witnesses or also community elders.
45.He further admitted that there is no mention in the statement of PW.1 regarding demand of dowry by A2 to A4 and admitted that though PW.1 did not state that A1 had forcible intercourse with her but still A1 was registered under
Section 376 IPC. He further stated that as per scene of offence panchanama, he mentioned the place of scene of offence as if appearing like a store room and he did not find any incriminating evidence and he did not mention the name of alleged function in the charge sheet said to have held on the alleged date of incident and did not collect any photographs or list of guests who attended the function. He further stated in the cross that he do not know what PW.1 stated in her cross and admittedly the Investigating Officer did not examine any family elders of the accused and also did not record statements of other occupants in the said building.
46.It is also important to note that the Investigating Officer in the cross- examination admitted that there was a delay of two months from the date of alleged incident and no reasons of delay are mentioned in the FIR. The above discussed contents of cross of the Investigating Officer has projected the major contradictions in the evidence of the complainant and the omissions and the contradictions made by her and it is also elicited that the PW.1 with her own willing has participated in intercourse with the A1 without any protest. It is important to see that even the PW.5 who examined the victim in her cross stated that she did not find any internal or external injuries over the body of PW.1.
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47.It is seen that from the evidence of DW.1 the accused tried to project
before the court as if no pregnancy function was performed on 24.02.2012 and
she mentioned that she was conceived in March, 2012 and delivered baby in
November, 2012 and stated that on 24.02.2012 she was present at Bidar only and marked birth certificate and marriage certificate under Ex.D4 and Ex.D5.
Admittedly as per birth certificate under Ex.D4 the place of birth of the baby of
DW.1 is showing as Kosaraju hospital, Langerhouse, Hyderabad on 10-11-2012 and the PW.9 who is summoned and examined at the instance of PW.1 is the doctor who was said to have treated DW.1 and in her evidence she mentioned that DW.1 delivered a female baby on 03-11-2012 who is post matured baby with a weight of 3.20 kgs. In her evidence PW.9 stated that DW.1 had her last menstrual period on 05-01-2012 and if DW.1 would have got conceived on 05-03- 2012 then it would be impossible for giving birth in November, 2012 and further stated that it is impossible for a new born baby for being 3.20 kgs if it is premature delivery. In the cross, she stated that if a women delivers after 39 or 40 weeks then it would be called as post matured delivery and stated that as per
Ex.D1, the patient first approached their hospital on 03-11-2012 and at that time as per Ex.D6, DW.1 completed 8th month and as per Ex.D6 she conducted cesarean to Dw.1 on 10-11-2012 and it is endorsed as if 37th week of pregnancy and the witness added that it was an estimation and on the date of scanning on 16-10-2012 it was showing as 37th week. She further stated that as per Ex.D6 there could be possibility of DW.1 either conceiving during January last week or
February 1st week.
48. Even during re-examination by Public Prosecutor,PW9 stated that
DW.1 has got pregnancy on 05-01-2012 and as per scanning report, pregnancy should be in 2nd week of February, 2012. All the evidence of PW.9 tends to show that the DW.1 got pregnancy in February, 2012 itself and not during March, 2012 and the accused through the evidence of DW.1 has tried their best to project
before the court as if DW.1 was not a pregnant during February, 2012 and that no
22 baby shower function was performed in February, 2012. But, from the evidence of
PW.9 the prosecution could establish that the Dw.1 might have pregnancy in between January,2012 to February, 2012.
49.Anyhow, the date of conceiving of DW.1 is not a controversy for adjudication in the present case and the controversy is whether there had been some activity in between PW.1 and A1 at the house of A2 during the alleged occasion. Since it is the narration of PW.1 that when she went to house of A2 on her request for attending function of Dw.1, the alleged incident took place as such the accused persons endeavor to establish before the court by examining DW.1 as if no such baby shower function took place in their house at that time I.e in
February, 2012. But, the prosecution from the evidence of PW.9 has established that PW.1 was pregnant in February, 2012 and it is for the prosecution to establish that there is a custom of performing baby shower function in the first month of pregnancy itself as per the customary practice under Islamic law.
50.It is seen that the doctor who treated the PW.1 is examined as PW.5 who deposed that on 24-04-2012, she examined the victim in this case and basing on FSL report she gave opinion that recent sexual intercourse cannot be ruled out and the report is also marked as Ex.P3. It is seen that even the statement of PW.1
dated 24-04-2012 is also containing exaggerated contents which are not stated in
the complaint. As far as the function of baby showering is concerned, it is important to see that in the confession panchanama under Ex.P2 the A1 has stated that PW.1 came to their house on 24-02-2012 for attending a function though he did not mention the nature of function.
51.It is seen that the prosecution has filed written arguments by repeating the contents of complaint and referring the documents marked. He stated that the prosecution has examined PW.1 and referred the contents of chief of PW.1 and stated that the evidence of PW.1 was not discredited during cross 23 though she was subjected to lengthy cross-examination. He stated that the omissions are not confronted to Investigating Officer and cross-examination of
PW.1 is not effected and referred a judgment of Hon’ble High Court referred in
Ganipisetty Madhu -Vs- State of A.P., reported in 2004 (2) ALD (Crl.) 452
wherein it was held that a delay of 10 days in lodging FIR cannot be seriously viewed when the delay is explained. He also referred the case of Harpal Singh wherein it was held that as the honour of family was involved the members of family have to decide whether to take the matter to court or not and the delay of 10 days explanation was held to be reasonable.
52.Undoubtedly, the delay in lodging of FIR can be viewed with a lenient eye provided if there is proper explanation for delay. But in the present case, the delay is for more than two months and as already discussed there is no proper explanation submitted for occurrence of alleged delay in the FIR which is even admitted by the Investigating Officer also during the cross-examination. As such the above referred rulings referred by prosecution are not helpful to their case.
53.The prosecution has also relied on another ruling laid down in Kallem
Shanker Reddy -Vs- State of AP reported in 2004 (1) ALD (Crl.)901
wherein it was held that the approach required to be adopted by the courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying the accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies, which are not of substantial character. The evidence required to be appreciated having regard to the background of the entire case and not in isolation.
54. It is seen that herein in the present case, the contradictions and additions in the evidence are voluminous when compared to contents of 24 complaint and as already observed many improvements are made in the evidence for which there is no proper answer and the contradictions committed by the complainant in this case are not mere minor contradictions and the element of forcible intercourse is not at all established, as such the above said ruling relied by prosecution is not applicable to the present case.
55.The prosecution has also relied on another rulings laid down in
Mukhtayar Ahmed -Vs- State of UP decided by Hon’ble Allahabad High
Court in Crl.Appeal No. 5633 of 2009 wherein it was held that ‘evidence of the prosecutrix or woman, who has been raped, is very crucial piece of testimony to prove the case against the accused. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix. If it is found to be natural, trustworthy and worthy, being reliable in the case of rape, the onus at behest on prosecution to prove firmly each ingredients of evidence it seeks established and such onus never shifts.
56.The prosecution also relied on another ruling laid down in Mohd.
Imran Khan -Vs- State decided by Hon’ble Supreme Court in Crl.Appeal
No. 1516 of 2010 wherein it was held that ‘it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian
Evidence Act, 1872, nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. It is important to see that in the present case, as already discussed there are several material contradictions and improvements in the evidence of PW.1 compared to complaint and the prosecution has failed to prove the element of forcible intercourse which was not existing in the written complaint as such the above discussed rulings are not applicable to the facts of this case.
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57.They also relied in another ruling reported in State of Rajasthan -Vs- Noor Khan 2000 (3) SC 70 wherein it was held that a mere delay of 4 days in lodging complaint due to attempt of elders for settlement of dispute in the panchayath is not fatal. It is seen that in the present case there is delay of almost two months in lodging the complaint and the medical evidence is also not supporting the case of prosecution as there were no injuries said to be found over the body of victim, as such the above ruling is also not applicable to this case facts.
58.The prosecution also relied on another ruling laid down in Ramesh
Bhai Mohan Bhai Koli and others -Vs- State of Gujarat reported in 2010
(7) Supreme 859 wherein it was held that evidence of public servant can be prima faciely taken as honest and if the evidence of Investigation Officer is convincing, it cannot be discarded because seizure witness did not support the case. Herein the present case, even the Investigating Officer in the cross- examination has admitted all the contradictions and improvements made by the complainant in the evidence, as such the above ruling is also not helpful to the case of the prosecution.
59.He further stated that both accused persons and victim belongs to same family and soon after the incident, the A2 and the PW.2 took the matter
before the elders and the elders of the accused No.1 promised to perform
marriage, as such parents of PW.1 kept quite and accused persons dragged the matter and finally demanded Rs. 5.00 lakhs dowry, as such the complaint was lodged after lapse of two months. But, it is important to note that all the said explanations are not mentioned in the delay column of FIR.
60.The prosecution also referred the contents of chief of PW.2 and stated that his evidence was also not discredited in the cross and stated that police also 26 sent PW.1 for medical examination and PW.5 after conducting examination of the victim issued Ex.P3 medical report in which she gave opinion that recent intercourse cannot be ruled out. It is important to note that as already discussed, the PW.1 either in the chief or in her 161 Cr.P.C statement did not make a whisper that A1 has forcibly committed any sexual assault or that he forcibly had any intercourse with her against her willing, but she stated that believing him she agreed.
61.The prosecution also discussed about contents of evidence of confession panch witnesses. As already discussed, since the said confession of
PW.3 or PW.4 has not for any recovery of any crime object, as such a mere evidence of confession of the accused cannot be taken into consideration since the alleged confession is hit by the provisions of Sec. 25 of Indian Evidence Act for the reasons of alleged to have being made while in police custody.
62.The prosecution further contended that the accused has examined his sister as DW.1 and marked Ex.D4 and D5 and her evidence is looking false from truth and the evidence of Dw.1 is adduced by the accused as an after thought which is false and concocted. He stated that DW.1 marked birth certificate of daughter under Ex.D4 and marriage certificate of DW.1 under Ex.D5 claiming that her pregnancy function was not performed on 24-02-2012 and to establish that she was not pregnant at that time, but under Ex.D4 the date of birth of child of
DW.1 is shown as 10-11-2012 which is about 8 month 16 days from the day of pregnancy function and date of incident and stated that it takes 10 to 15 days for an women to know about her pregnancy and DW.1 was a pregnant in February, 2012 as such pregnancy function was celebrated. He stated that accused filed
Ex.D4 to mislead the court and Ex.D4 is supporting the case of prosecution and
Ex.D5 is no way relevant to the case of accused.
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63. They further stated that the accused took a plea that father of accused got government job on the ground of compassionate appointment in the place of grandfather and since the father of victim having grudge upon father of
A1 as such accused is falsely implicated. The prosecution stated that no woman will put her honour at stake by making false allegation of a rape and referred a ruling laid down in Rajender @ Raju -Vs- State of HP reported in 2009 (2)
ACR (SC) 2250 wherein Hon’ble Supreme Court held that victim of sexual aggression would rather suffer silently than to falsely implicate somebody and in the context of Indian culture any statement of rape is extremely humiliating for a woman and until she is a victim of sex crime, she would not blame any one but the real culprit and no self respecting woman would put her honour at stake by falsely alleging commission of rape on her.
64.He referred provisions of Sec. 114-A of Indian Evidence Act and he referred a ruling laid down in Prakashnath -Vs- State of Assam reported in 2006 Supreme (Gau) 525 wherein it was held that ‘when sexual intercourse by an accused is proved and the question is as to whether such intercourse was without consent of the woman alleged to have been subjected to rape, the court shall, under the provisions of Sec. 114-A of the Evidence Act, presume that the woman did not consent if she states, in her evidence before the court, that she did not consent. ‘
65.He further stated that the medical evidence of PW.5 and report of seizure panchanama and scene of observation are also corroborating and contended that the prosecution has proved the case beyond reasonable doubt and evidence of witnesses is not shaken in the cross-examination and stated that delay in FIR is properly explained and PW.1 established that she was subject to rape by A1 and stated that prosecution has proved all essential ingredients of the offence beyond reasonable doubt.
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66.The accused has also filed written arguments stating that initially the case was filed only against A1 in the year 2012 under Section 376 IPC and thereafter A2 to A4 were implicated by adding Sec. 417 IPC and Sec. 4 of D.P.Act.
They further stated that the testimony of rape survivor is crucial in this case and the nature of sole testimony is clearly explained in Bhimapa Chandappa
Hosamani and others -Vs- State of Karnataka reported in 2006 (11) SCC
323 wherein it was held that the court must test the credibility of the witness by reference to the quality of his evidence and the evidence must be free of any blemish or suspicion and must impress the court as wholly truthful and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of testimony of a single witness.
67.They stated that as per the complaint contents it is mentioned that prosecutrix was invited by A2 on 24-02-2012 to their house for a small function following which the next day she was approached by A1 who allegedly obtained her consent on a false promise of marriage and the complaint is in the own hand writing of the complainant, but PW.1 in the chief both A1 and A2 visited to her house for taking to their house and the said statement drastically changed when
PW.1 was asked to record her statement during the chief and the time of offence is changed from next day of function to intervening night. They stated that PW.1 in the cross-examination stated that alleged function was completed at 11.30 PM on 23-02-2012 which was Thursday, but as per FIR and her complaint A2 has invited PW.1 to her house for alleged event on 24-02-2012. They stated that PW.1 mentioned in her cross that the day and time of the alleged crime is important to her and she was well aware of days and nights but within a month of alleged crime, PW.1 seems to have forgotten about the time of alleged occurrence which proves that its a false case.
68.They contended that PW.1 also made a statement that after alleged offence, PW.1 was leaving the house of the accused when she was confronted by 29
A4 outside the house and in the chief dated 02-07-2019 the place of alleged confrontation is changed to 1st floor and the alleged incident rolled out into 2nd floor. They further stated that the PW.1 in the FIR stated that A1 induced her to believe that he would marry her due to which she consented for intercourse and even in the complaint of PW.1 it is mentioned that PW.1 by believing A1 allowed for intercourse and even in 161 Cr.P.C statement she mentioned that A1 expressed his love and promised to marry and expressed his lust and believing his words she has agreed.
69. They further stated that PW.1 in the chief changed the narration stating that A1 closed the doors and expressed his love and when asked for intercourse she has refused for which he forcibly had intercourse. They mentioned that the prosecution has failed to establish the alleged chain of incidents after the alleged incidents. It is seen that the PW.1 was alleged to have mentioned in the chief that after the alleged incident she came to 1st floor where she was confronted by A4 and was later asked by A2 to sleep with her during the night.
But in the cross she stated that she was in a state of shock and disgusted when she came down and stated that nobody prevented her from leaving the house after alleged incidents and she did not think about her marriage at that time and stated that her parents phone number was available with A2 as on date of alleged incident and she did not feel like asking A2 to call her parents and stated that contention of PW.1 in chief and cross-examination are totally contradictory.
70.They further stated that there are also contradictions in the evidence of PW.1, PW.2 and LW.2 and stated that the parents of PW.1 despite of being present in the house of accused as per altered subsequent depositions were not provoked after hearing the news and agreed to perform marriage of their daughter with A1 which is unnatural conduct and the nature of unnatural conduct is highlighted in Malhotra Pandey -Vs- Ram Ruchia Tiwari 11 WR 482. He further stated that in Murali Lal -Vs- State 23 (1983) DLT 410, wherein it was 30 held that entrusting a huge amount of money to a driver who was only appointed one month back and who was a stranger prior is not a natural course of conduct.
He stated that the father of victim/PW.2 in his evidence stated that he was invited for the alleged function and he sent his daughter and in the cross he has deposed that he did not even know the name of function as the same was lady function and PW.2 stated that function was regarding delivery of A1 sister who was pregnant at that time and PW.2 deposed that A1, A2 and A4 who visited his house on 15-03-2012 to demand dowry and the statement was changed in the cross of
PW.2 where he stated A2, A3 and A4 visited his house on 15-03-2012. They further stated that PW.2 in the chief stated that he discussed with his wife and arranged the amount demanded by A2 which is contrary to the deposition of PW.1 and LW.2 who stated that they refused due to their financial capacity.
71.They further stated that though PW.1 stated that panchayath took place before the elders who included paternal grandfather and maternal aunty, but PW.2 stated that paternal grandfather of PW.1 and A1 passed away 35 to 40 years back. They further stated that PW.2 in the chief mentioned that police recorded his statement, but in the cross he stated that police did not examine him after lodging of complaint. They stated that evidence of PW.2 is with full of contradictions which cannot be relied upon. They also contended that the delay is not properly explained in FIR and they discussed a case law of State of AP -Vs-
M. Madhusudhan Rao 2008 (15) SCC 582. They stated that in the deposition,
PW.1 brought date of filing the FIR on the very next day of cause of action and altered subsequently and other witnesses stated that they were persuading A2 for the marriage and PW.1 stated that she went to police station 04-04-2012 but due to curfew she could not lodge complaint and no proper explanation is given for delay in FIR and the Investigating Officer stated that there was no curfew in old city.
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72.They stated that a false deposition is adduced regarding alleged event in the house of A2. They stated that in hand written complaint and FIR and statement under 161 Cr.P.C and cross of PW.1 are contradictory about nature of function and in the cross PW.1 stated that it was a party regarding pregnancy of
A1 sister but whereas birth certificate filed by DW.1 shows that baby girl was born on 10-11-2012. They stated that even DW.1 is examined who stated that she was conceived in the month of March and PW.1 failed to explain about performing of alleged function.
73.They stated that case of prosecution was altered at various stages and a narration is made that A1 called PW.1 to his room at midnight and expressed his lust which she refused and also discussed certain contentions of PW.1 in the cross.
They stated that PW.1 was well aware what was happening at the alleged time and being an adult she could have fight back and created a scuffle but PW.1 did not raise her voice and though PW.1 has aware of her rights she did not agitate and she stated that she washed her clothes at the instance of A2 which shows that there was no application of force.
74.They stated that complaint is lodged in the own hand writing of PW.1 and discussed her contentions of cross against the police regarding not reducing the statement properly and stated that statement of PW.1 defeats her entire case and investigation of police. They have also discussed the contents of cross of
Investigating Officer in the written arguments and stated that though PW.8 stated that two lady officers were present while recording statement, but they were not shown as witnesses and agreed that reasons of delay are not mentioned and admitted that PW.1 in her statement did not state regarding demand of any dowry by A2 to A4 and stated that no independent witnesses or occupants of building are examined. They further stated that though PW.1 stated that issue was placed
before her paternal grandfather and her maternal aunty, but it is established that
paternal grandfather was passed away 40 years back. They further stated that 32 even medical report is inconclusive which is taken after two months of alleged incident and there is a tampering of the report with over writing by changing the name of the hospital from Gandhi to Niloufer and there are also contradictions in the evidence of panch witnesses. They stated that the prosecution has failed to establish the guilt of the accused and it is lodged only for taking a revenge and
PW.2 used his daughter and discussed the contents of Ashok Narang -Vs- State
Crl.Appeal No. 932 of 2009, wherein it was held that ‘the instant case being serious nature; however the testimony of the victim in such a case is very vital and should be without inconsistence and should not be improbable unless there are compelling circumstances, which necessitated corroboration of her statement and the court finds it difficult to act on the sole testimony of victim of sexual assault to convict the accused.
75.They stated that a prima facie breakdown of the case points towards several inconsistencies in the statement of PW.1 and he has discussed the contradictions in the version of PW.1 in the complaint, chief and cross-examination at various junctures in a tabular form. They stated that in a case of Narendar
Kumar -Vs- NCT Crl.Appeal No. 2066-67 of 2009, the Hon’ble Supreme Court held that when the evidence of complainant suffers with serious infirmities and inconsistencies with deliberate improvement in material points to rule out the consent on her part and when there is no injury on her person in such circumstances no reliance can be placed on her evidence and accused is entitled for benefit of doubt.
76.He also discussed the various rulings of Hon’ble Supreme Court passed in Baldev Singh -Vs- State of Punjab (1979 2 SCC 145), Idris Bhai
Daudbhai -Vs- State of Gujarat (2005 3 SCC 277) and Anil Prakash Shukla
-Vs- Arvind Shukla (2007 3 SCC (crl) 159), wherein it has clearly been established that statements of witnesses with improvements and contradictions 33 cannot be relied upon which dealing with serious allegations. They stated that there is no case on part of prosecution and prayed to acquit the accused persons.
77.It is seen that the accused persons have also filed a reply to the written arguments of prosecution as a counter stating that the case of prosecution has utterly failed in proving its case with total contradictions. They stated that prosecution cleverly tried to suppress the fact that PW.1 in her own hand writing scribed the complaint on which FIR is issued and in the complaint she clearly stated that she believed words of A1 and agreed for intercourse and in the evidence she made material improvements stating that she is raped from changing the word consent and it cannot be believed that a girl could not understand the consequences of the act.
78.They discussed a ruling of Suresh. N Bhusare and others -VS- state of Maharashtra 1999 (1) SCC (220), wherein the Hon’ble Supreme court held that when the evidence of witness is inconsistence with FIR lodged by her and when there is no injury found on her person and when there is delay in lodging FIR. They stated that admittedly PW.1 and A1 were cousins and prosecution failed in providing correct sequence of facts and stated that statements of PW.1 relate to material aspects of the case are grossly inconsistent since from the beginning and the evidence of PW.2 disputed the version of PW.1 in various aspects and they also discussed a case in Aannaso Shripal Bukade -VS- State of Maharashtra in Crl.Appeal 771/2007, where court refused to rely on contradictory statements of the complainant. They stated that contents of the complaint and chief evidence are contradictory and they mislead the court and discussed the evidence of Investigating Officer and the contradictions admitted by him and stated that case of prosecution is with complete of contradictions and stated that prosecution made use of medical report to prove allegation of rape and the delayed medical reports does not establish the case when there are no injuries. He discussed a ruling of Mohd. Habib -Vs- State 34 1989 Crl.L.J 137, wherein it was held that when medical reports of the victim do not corroborate with the eye witness evidence, then accused is entitled to benefit of doubt and the evidence of PW.3 and PW.4 are contradictory. They stated that though PW.1 stated that she is good friend of DW.1 and it was her pregnancy function for which she was invited but the evidence of DW.1 is contradictory.
79.They stated that prosecution witnesses contradicted their own statements regarding the function and its name and PW.1 broken her case down on her accord with contradictions. They relied on a ruling laid down in
Raghunath -Vs- State reported in 44 (1991) DLT 631, wherein it was held that prosecution cannot built its case on the alleged omissions of the defence.
They further stated that the presumption under Sec. 114-A of Evidence Act arises after prosecution establishes its case without any doubt and relied on a ruling of
Rajoo and others -Vs- State of MP (Crl.Appeal Nos. 1094-1098 of 2000),
wherein it was held that ‘it is however significant that Secs. 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Sec. 114-A is extremely restricted in its applicability.
80.They further stated that prosecution has conveniently relied on medical report and the medical report was with over writings and medical test was conducted after gap of two months from the date of alleged incident. They further stated that there was no incriminating evidence to the prosecution from
Ex.P3. They stated that prosecution tried to make a mockery of entire institution of evidence though panch witness for scene turned hostile and failed to explain regarding non explanation of guests who attended the said function and about non-collecting of photographs. They stated that prosecution failed to prove its case beyond reasonable doubt and the evidence of witnesses is not reliable and 35 delay in lodging complaint is not explained and there is no presumption under
Section 114-A Evidence Act and that evidence of PW.1 is with full of contradictions and prosecution failed to establish organization of function on the alleged date and failed to establish the guilt of the accused and prayed to acquit the accused persons.
81.Subsequently, the accused has also filed additional written arguments stating that prosecution totally failed in proving alleged pregnancy of DW.1 and
PW.9 has come to court with an intention to depose in a biased fashion which cannot be looked into and since beginning PW.9 attempted to project that she was being consulted by DW.1 and they have discussed certain contentions of PW.9 in her chief and stated that after PW.9 was confronted with pregnancy records I.e
Ex.D6, PW.9 renewed her submissions stating that DW.1 first visit was on 03-11- 2012 which is before her delivery and further stated that new born baby was 37 weeks and stated that PW.9 and complainant are professional friends since complainant stated that she was been working in hospitals since 2003 and she also worked for part-time in the hospital where PW.9 was working.
82.They stated that subject of human pregnancy varies from case to case and Ex.D6 was brought before PW.9 when she was confronted with her own writing and PW.9 was guessing age of DW.1 pregnancy and she was trying to prove the pregnancy of DW.1 was post-matured. They further stated that post- matured baby is scientifically used for the babies born after 42 weeks and PW.9 in the cross-examination admitted that it takes 2-4 weeks after the end of last menstrual cycle for a woman to conceive and implied that DW.1 could have conceived her baby during the end of 2nd week of February. They further stated that the symptoms of such concept will not be clearly detectable by simple home tests before 3 ½ of weeks and stated that human pregnancy is not a matter of precise signs and it is not possible for PW.9 to assume and comment on probabilities of what might have happened.
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83.They stated that irregularities in the admissions of PW.9 can be made out from the fact that on presentation of Ex.D6 and stated that there are many irregularities in the evidence of PW.9 in guessing the pregnancy age of DW.1 or age of baby of DW.1. They stated that statements of PW.9 were built on heavy assumptions and presumptions. They stated that complainant is placing reliance on alleged pregnancy of DW.1 and in her own complaint she did not mention about DW.1 or pregnancy function and in the evidence the said plea is brought forward and she could not establish the performance of such function.
84.They relied on a ruling laid down in S. Gopal Reddy -Vs- State of
AP reported in AIR 1996 SC2184 wherein it was held that ‘there is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law’.
85.They have also discussed the contradictions of evidence of PW.9 in chief, cross and re-examination in a tabular form. They stated that there are no merits in the case of the prosecution and prayed to acquit the accused. They have also relied on a ruling laid down in Roy Sandeep @ Deepu -Vs- State reported in 2012 (8) SCC 21 wherein it was held that when the evidence of complainant is totally on contradictory versions when compared to the contents of complaint in such case conviction is not maintainable.
86.They also relied on another ruling laid down in Uday -Vs- State of
Karnataka reported in 2003 (4) SCC 46 wherein it was held that there is no straight jacket formula for determining whether consent given by prosecutrix to the intercourse is voluntary or under misconception of fact and held that the burden of proof is preliminarily on the prosecution to establish that there was no consent on the part of prosecutrix for intercourse.
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87.Therefore, in view of above held discussions and also in the light of the above discussed contents of written arguments filed by both prosecution and accused and also under the light of the rulings relied upon by prosecution and accused and in view of the gist of the rulings relied upon by accused, it is held that the prosecution has failed to establish the guilt of the accused for the charged offences under Section 376, 417 IPC and Sec. 4 of DP Act beyond the reasonable doubt and since the prosecution has also failed to establish the allegation of forcible intercourse or any forcible rape by the accused No.1, as such the accused No.1 entitled for benefit of doubt and entitled for acquittal under
Section 235 (1) Cr.P.C and since the contents of charges under Section 417 IPC and Sec. 4 of DP Act are not established against A2 to A4 by the prosecution, as such they are also entitled for acquittal under section 235 (1) Cr.P.C. Point is held accordingly.
88.In the result, the accused No.1 is found not guilty for the offence under Sections 376, 417 IPC and Accused No. 2 to 4 are found not guilty for the offence under Section 417 IPC and Sec. 4 of DP Act and they are accordingly acquitted under section 235 (1) Cr.P.C for the said offences. The bail bonds of accused No.1 to 4 shall stand cancelled after expiry of appeal period. Unmarked case property, if any, shall be destroyed after expiry of appeal period.
Directly typed to my dictation by the Stenographer of this court, corrected, on this the 6 th day of August, 2021.
FAC XI ADDL. METROPOLITAN SESSIONS JUDGE ,
HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION:
PW.1 : Kum. Syeda Nikhath Fatima PW.2 : Sri. Syed.Ahmed Ali PW.3 : Sri. G.Nitin Reddy PW.4 : Sri. Ch.Shekhar Babu@ Ramu 38
PW.5 : Dr. Sharmila PW.6 : Sri. R.Ashok PW.7 : Dr. P.Hari Krishna PW.8 : Sri. N.B.Ratnam PW.9 : Dr.N. Sasikala
FOR DEFENCE:
DW1 : Amrin Fathima
EXHIBITS MARKED
FOR PROSECUTION:
Ex.P.1: Complaint of PW1 Ex.P.2: Confession statement of A1 Ex.P.3: FSL Report Ex.P.4: Signatures of PW6 on Scene of offence observation cum Seizure Panchanama Ex.P.5: Signatures of PW6 on rough sketch Ex.P.6 : Potency test report of Syed Mazhar Ali issued by PW7(Dr.P.Hari Krishna). Ex.P.7 : Express FIR . Ex.P.8 : Preliminary examination report Ex.P.9 : FSL Report Ex.P.10: Offence panchanama Ex.P.11: Rough sketch Ex.P.12: Attested copy of inpatient register Ex.P.13: Copy of case sheet of DW1
FOR DEFENCE:
Ex.D1:Relevant portion in 161 Cr.P.C. of PW1(Kum.Syed Nikhath Fatima) Ex.D2 :Relevant portion in 161 Cr.P.C of PW1 (Kum.Syed Nikhath Fatima) Ex.D3:Relevant portion in Complaint of PW1(Kum.Syed Nikhath Fatima) Ex.D4:Birth certificate Ex.D5:Marriage certificate Ex.D6:Antenatal Card issued by Kosaraju Hospital,Langer House of PW9(Dr.N.Sasikala)
MATERIAL OBJECTS MARKED - NIL
FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD
39
IN THE COURT OF THE SPECIAL SESSION JUDGE FOR FAST TRACK
COURT TO ATROCITIES AGAINST WOMEN -II-CUM-XI
ADDL.METROPOLITAN SESSIONS JUDGE, HYDERABAD
Present: Sri B Srinivas Rao,
Special Sessions Judge for Fast Tracking the
Cases Relating to Atrocities Against Women-I
Cum X Addl. Metropolitan Sessions Judge,
Hyderabad.
FAC XI Addl. Metropolitan Sessions Judge,
Hyderabad.
Dated this the 6 th day of August, 2021
SESSIONS CASE NO. 410 of 2014
( in PRC No. 36 Of 2013 on the file of XI Addl.Chief Metropolitan Magistrate , Secbad.
Committed bySir.P.Bhaskara Rao VI.Addl. CMM, Hyderabad.
Crime No. and P.S. Crime No. 170/2012 of Langer House Police Sta-
tion, Hyderabad.
Name of the ComplainantThe State through, Inspector of Police, P.S. Langer House, Hyderabad. Name and description of the A1. Syed Mazahir S/o.Late Syed Abid Ali Age.23 Accused
yrs Occ:Student R/o. H.No. 9-1-2, Hasham nagar,
Langer House, Hyderabad.
A2. Maqbool Fatima W/o Late.Syed Abid Ali,
age.56 yrs, r/o.H.No. 9-1-2, Hasham nagar, Langer
House, Hyderabad.
A3. Syed Medhi Ali, S/o. Late Syed Abid Ali, Aged
about 36 yrs, H.No. 9-1-2, Hasham nagar, Langer
House, Hyderabad.
A4. Syed Hadhi Ali, S/o. Late Syed Abid Ali,
Age:about 36 yrs, H.No. 9-1-2, Hasham nagar,
Langer House, Hyderabad.
Prosecution conducted byA.P.P.
Defence conducted bySri.Wazeed Counsel for Accused
OffencesUnder Section 417, 376 IPC and Sec.4 of D.P.Act.
Plea of the accusedPleading not guilty
Finding of the courtNot guilty
Sentence/OrderIn the result, the accused No.1 is found not guilty for the offence under Sections 376, 417
IPC and Accused No. 2 to 4 are found not guilty 40 for the offence under Section 417 IPC and Sec.
4 of DP Act and they are accordingly acquitted under section 235 (1) Cr.P.C for the said of- fences. The bail bonds of accused No.1 to 4 shall stand cancelled after expiry of appeal pe- riod. Unmarked case property, if any, shall be destroyed after expiry of appeal period.
FAC XI ADDL. METROPOLITAN SESSIONS JUDGE,
HYDERABAD.