Sri Dr D Nagarjun

Judgment in SC 325/2019 1 of 34 Dt : 11-10-2021.

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 Dr.Nagarjun, Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-I cum XI Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 11 th day of OCTOBER, 2021

SESSIONS CASE NO. 325 of 2019

( PRC No.17 Of 2018 )

Committed by Sri.K.Venkatesh XXII ACMM, Secunderabad. Crime Number and Police Crime No. 28/2018 of PS.Lallaguda . Station

Pallapu Ranga Swamy, s/o. P.Rangaiah, aged 26 Name and description of years, occ: Car driver, r/o.H.No.8-201, Chilkanagar the accused person X Roads, Uppal Medchal District.

Name and description of The State represented by the Sub-Inspector of the complainantPolice, PS.Lallaguda, Hyderabad.

Prosecution conducted bySri G Narayana, Additional Public Prosecutor.

Defence conducted bySri.O.L.Narsimham Counsels for Accused

Offences chargedUnder Section 376(2)(n), 417, 509 IPC.

Plea of the accusedPleaded not guilty.

Finding of the CourtFound guilty

RESULT:-In the result, accused is acquitted u/s.235(1)

Cr.P.C for the offence under section 509 IPC.

The accused is convicted u/s.235(2)

Cr.P.C for the offences under section 376(2)(n) and 417 of IPC and sentenced to undergo rigorous imprisonment for a period of ten years and shall pay a fne of Rs.1,000/-. In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the offence under section 376(2)(n) IPC.

He is also sentenced to suffer

Judgment in SC 325/2019 2 of 34 Dt : 11-10-2021.

imprisonment for a period of one year for the offence under section 417 of IPC.

All the sentences shall run concurrently.

The accused is explained about his right to appeal. MO.1 is ordered to be destroyed after expiry of appeal time.he undergone period if any is ordered to be set off u/s.428

Cr.P.CRemand period, if any shall be given set off.

Judgment in SC 325/2019 3 of 34 Dt : 11-10-2021.

JUDGMENT

1.The Inspector of Police, Lalaguda Police Station, Hyderabad, has fled this charge sheet alleging that the accused has committed the offences punishable under 376(2)(n), 417 and 509 of IPC.

2.The facts leading to fling of the charge sheet by Inspector of

Police Lalaguda are summarized as under :

(a) Victim/PW1 married to one Ramesh and during their wedlock she has given birth to one male and one female child. On account of some misunderstandings she has taken customary divorce with her husband

Ramesh and started living along with her children at Lalapet, Hyderabad. She joined as an Event Executive and developed friendship with her colleague

Smt.Uma Maheshwari. The said Uma Maheshwari lived for about one month in her house as there were disputes between herself and her husband. The accused is no other than younger brother of her husband Srinivas. When Uma

Maheshwari was staying in the house of victim /PW.1 the accused used to visit the said house to speak to Uma Maheshwari, during that time he got acquaintance with victim/PW.1 and during the process, he has taken her mobile number. Even after vacating the house by his sister-in-law Uma

Maheshwari, the accused continued to speak to the victim/PW.1 and also started visiting her house. He has expressed that he is in love with her and also said that he would marry her. In the month of November 2016 accused went to the house of victim PW.1 along with language stating that he has quarreled with his brother and other members and they sent him out and requested victim/PW.1 to permit him to stay there, for which victim/PW.1

Judgment in SC 325/2019 4 of 34 Dt : 11-10-2021.

permitted. During his stay in the said house he has committed rape on her repeatedly and fnally on questioning he refused to marry her.

(b) On 03.02.2018 at about 9:00 PM Victim/PW.1 fled a Telugu

Typed written complaint before Inspector of Police, Lalaguda Police Station and the said complaint was registered as Crime No.28/2018 under section 376(2)(n) and 509 IPC and issued FIR. During the course of investigation

Inspector of Police has examined victim, three other circumstantial witnesses as LW.2 to 4 and recorded their statements. He has visited scene of offence situated at Lalapet, Secunderabad and in the presence of LW.5 and 6 conducted scene observation panchanama in crime detail form and also drawn rough sketch of scene of offence. The victim was sent to Bharosa

Centre wherein Women Inspector of Police has again recorded the statement of victim/PW.1. The victim was later sent to Gandhi Hospital for medical examination wherein the Assistant Professor Gynecology has examined her collected vaginal swab, smear, nail clippings etc. and sent them to Forensic

Science Laboratory (FSL) through concerned police for further analysis. On 21.02.2018 accused was apprehended and on interrogation the accused has made confessional statement in the presence of mediators LW.7 and LW.8 and from him a mobile phone of Vivo make was also seized under the cover of seizure panchanama. Accused was formally arrested and produced before the court. The statement of the victim was also recorded under section 164

Cr.P.C. LW.13 Superintendent of the Gandhi Hospital has certifed potency certifcate which was issued by the Medical Board. After collecting entire material the Inspector of police has fled a charge sheet concluding that the accused has committed the offence punishable under section 376(2)(n) and 509 IPC.

Judgment in SC 325/2019 5 of 34 Dt : 11-10-2021.

3.Cognizance of the case was taken against the accused for the offences punishable under Sections 376(2)(n), 417 and 509 of IPC and numbered the same as PRC No.17/2018 on the fle of the XXII Addl.chief

Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the case documents were furnished to him as mandated under Section 207 of

Cr.P.C in the trial court. Since the offence under Section 376(2)(n) of IPC is exclusively triable by the Court of Sessions, the XXII Addl.chief Metropolitan

Magistrate, Hyderabad has committed the case to the Metropolitan Sessions

Judge, Hyderabad, by following the due procedure.

4.The case was registered as S.C No.325/2019 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad, and made over the same to this court for disposal according to law. On appearance of the accused and upon hearing both sides, charges under Sections 376(2)(n), 417 and 509 of IPC are framed against the accused, read over and explained to him by predecessor in ofce, wherein the accused while denying the charges, pleaded not guilty and claimed to be tried.

5.During the course of trial, out of the 17 witnesses cited the prosecution has examined 9 witnesses as PWs 1 to 9 and exhibited Exs.P1 to

P10. After the closure of prosecution evidence, Accused was examined under

Section 313 Cr.P.C by explaining the incriminating material appearing against him from the prosecution evidence and he denied the same. The accused has reported that he has no defence evidence, however a copy of a private complaint fled against the accused by the victim/PW.1 is marked as Ex.D1.

6.Heard arguments on both sides and perused entire material on record.

Judgment in SC 325/2019 6 of 34 Dt : 11-10-2021.

7.Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused for the offences punishable under Sections 376(2)

(n), 417 and 509 of IPC, beyond all reasonable doubts?”

8.POINT :-

To prove the charges against the accused, the prosecution has examined victim as PW1, two circumstantial witnesses were examined as

PW.2 and 3, one of the mediators for scene of offence panchanama and rough sketch is examined as PW.4, one of the panch witnesses for confession and seizure panchanama is examined as PW.5, the Inspector who has recorded the statement of the victim at Bharosa Centre is examined as PW.6, the

Superintendent of Gandhi Hospital is examined as PW.7, Assistant Professor of

Obstetrics and Gynecology is examined as PW.8, fnally Inspector of police who has conducted entire investigation is examined as PW.9. On behalf of the prosecution the complaint dated 03.02.2018 fled by victim/PW.1 is marked as

Ex.P1, Crime detail form is marked as Ex.P2, rough sketch of scene of offence is marked as Ex.P3, the confessional and seizure panchanama of accused is marked as Ex.P4, the potency certifcate of the accused dated 02.07.2018 is marked as Ex.P5, the preliminary medical report of the victim dated 04.02.2018 is marked as Ex.P6, FSL report dated 03.04.2018 is marked as

Ex.P7, fnal medical opinion is marked as Ex.P8, FIR is marked as Ex.P9 and fnally 164 Cr.P.C. statement of the victim recorded by X ACMM,

Secunderabad is marked as Ex.P10. The copy of private complaint fled by victim against the accused is marked as Ex.D1.

9.The learned Addl. Public Prosecutor submitted that the accused

Judgment in SC 325/2019 7 of 34 Dt : 11-10-2021.

who has developed friendship with the victim/PW.1 with ill intention has started speaking to her taking advantage of the fact that she is a single parent having divorced her husband and entered the house of the victim by informing that her family members were sent him out and stayed few days in the said house and that during the said period he made the victim/PW.1 believe that he is in love with her and he will take care of his children, and promised that he would marry her and then had sexual intercourse multiple times. It is submitted that after sometime the accused has shown his true colours and left the house and did not turn up and when victim/PW.1 called him he came once and abused her sexually and fnally he has threatened her with dire consequences and informed that he will never marry her. While referring the prosecution evidence, learned APP has submitted that prosecution has made out that accused has committed rape on the victim/PW.1 by deceiving that he would marry her otherwise the victim could not have permitted him to have sexual intercourse with her and therefore prayed the court to punish the accused.

10.On the other hand learned Counsel for the accused has submitted vehemently that a false case has been foisted against the accused, he is innocent and he never stayed in her house at any time the evidence of prosecutrix is not trustworthy cannot be believed, LW.2 is a prime witness and non-examination of her is a fatal to the prosecution and the evidence of circumstantial witnesses is also not helpful to the prosecution and prayed the court to acquit the accused.

11.In order to see whether prosecution has succeeded in proving the charges leveled against the accused, the evidence of victim/PW.1 is very vital.

It is a case where the victim/PW.1 and accused are adults. Further the victim/

Judgment in SC 325/2019 8 of 34 Dt : 11-10-2021.

PW.1 is already married and she is having two children. Consensual sex between two adults is no offence. The victim has not made complaint either to the police or to anybody when he had sexual intercourse for the frst time.

It is alleged by the prosecution that accused had sexual intercourse multiple times making her believe that he would marry her. In the context of above, the complaint under Ex.P1, the evidence of the victim/PW.1 have to be carefully analyzed to see whether the evidence of PW.1 is trustworthy and can be accepted. This is because there are no eye witnesses as already observed the offence took place inside the house and since it is alleged that on believing the false promise of the accused she has accepted for intercourse and thereby there is no much resistance, hence the evidence of victim/PW.1 is very very crucial.

12.Ex.P1 is the Telugu typed written complaint dated 03.02.2018 which was fled before the police concerned at 9:00 PM. The contents of the said complaint which are relevant are that one Uma (LW.2) who is her colleague in her event management work has joined her house stating that she has got some dispute with her husband and through him the accused came into contact with the victim as he used to visit their house to talk to

Uma (LW.2). Accused has taken her mobile number while Uma was leaving her house, later she started calling her everyday stating that he is in love with her and he is prepared to be father of children of victim/PW.1. He used to visit her house and used to play with the children of victim/PW.1. Finally in the month of November 2016 he came along with his luggage stating that he has quarreled with his mother and sister and requested her to permit her to stay.

On permitting he used to stay in the said house and also attending the household works like cleaning the house and helping children while taking

Judgment in SC 325/2019 9 of 34 Dt : 11-10-2021.

bath and told her that he would marry her in November or December.

13.The Telugu Type written complaint under Ex.P1 further reads that on 05.01.2017 the accused who normally used to sleep in a corner of a room came on top of her for which the victim warned him stating that until marriage she is not interested, however he has told her that he would certainly marry her. While saying he has held her hands tightly and over powered her and had sexual intercourse. The complaint further reads that he had sexual intercourse in all 23 times forcefully and later he left the house on the pretext that his mother eyes were getting operated. Later when she stopped coming the victim has telephoned him on which he has come to the house of the victim and on that day he laid down on the foor sat on her chest and opened his pant zip and penis and inserted in the mouth of the victim and pushed the head of the victim up and down and asked her to swallow the spermatozoa otherwise he will kill her and then he went to the washroom on which victim to the kitchen and washed her mouth. Later he left the house and not responded and fnally he said that he will not marry her and abused her in flthy language.

14.On going through the contents of Ex.P1 complaint it is clear that accused is aware of the fact that the victim is married and having two children and is a divorcee, taking advantage of her loneliness made her to belief that he would marry and take of her children as their father and behaved in such a manner in the house of the victim that she will not get any doubt about credentials of the accused and after realizing that she has believed him he has committed sexual intercourse multiple times and later left her to her fate.

Judgment in SC 325/2019 10 of 34 Dt : 11-10-2021.

15.It has to be examined how far she has maintained her stand in her evidence before the court as PW.1. As a PW.1 she has mentioned clearly in her chief examination that she has taken customary divorce with her husband

Ramesh in the year 2012. LW.2 who is sister-in-law of the accused started residing in her house when she quarreled with her husband and accused used to come there to meet Lw.2 and during that acquaintance accused has taken the mobile number of the victim. She has further deposed that even after her fridne LW.2 left the house, he used to make calls and developed friendship with her and proposed her to marry for which she has agreed. In the month of

November 2016 he has suddenly came to her room with luggage stating that he quarreled with his family members and sought for shelter. She has further deposed that on 04.01.2017 he forcefully had intercourse with her and she was in shock and thereby could not shocked and he continued to have sex now and then until December 17th and in all nearly 23 times.

16.She has further deposed that he left the house on the pretext that his mother eye was getting operated and could not returned. When she has contacted over phone he came back on 01.01.20418 and at about 9:00 PM he sat on her chest pressed her both the shoulders with his knees, opened the zip, caught hold of her hair with his left hand and kept his private part into her mouth and asked her to swallow it and if he swallows he will be treated as her husband. Later she went to kitchen and spit and washed her mouth. She has further deposed that thereafter he refused to come when she called her and abused her in flthy language, refused to marry on which she fled a complaint under Ex.P1.

Judgment in SC 325/2019 11 of 34 Dt : 11-10-2021.

17.It is to be examined that how far accused is successful in getting the evidence of the PW.1 discarded in the cross-examination. The learned counsel for the accused has elicited in the cross-examination that her husband had illegal affair with another women thereby they were separated.

She has not taken divorce from through the court and it was a customary divorce at her in-laws village Janagaon. Number of questions were asked about her customary divorce and not taking divorce through court. However the questions whether she has taken a customary divorce or a divorce through court is a little important in the context of allegations leveled against the accused because the accused has totally denied all the allegations in blanket. In whatever manner she has taken divorce the question to be considered is whether there is a material to show that accused has committed sexual intercourse against the will and consent of the victim/W.1.

18.In respect of Ex.P1 complaint she has explained that she got the complaint typed in a private job centre and it was typed to her dictation and explained to her subsequently and after going through that it was correctly typed she has put her signature and gave in the police station. She has also deposed in the cross-examination that she cannot give the specifc dates from 2015 to 2016 as to how many times accused came to her place. It is to be noted that for any normal human being in a situation where she is placed it is not expected to count as to how many number of times a person visits their house. It was elicited from her in the cross-examination even prior to accused came to her house with luggage he used to visit her house and speak with her hours together and she did not record their conversation and that there was no third person when they were talking to each other. It was also deposed by

Judgment in SC 325/2019 12 of 34 Dt : 11-10-2021.

her in the cross-examination that since accused has assured to marry he has permitted her to stay in her house. However she did not enquired his antecedents. It is suggested to PW.1 by learned counsel that accused never stayed in her house at any time which she has refused. It is also suggested that accused is no way connected to LW.2.

19.It was further deposed by PW.1 in the cross-examination that accused had forceful intercourse on 04.01.2017 until December he continued the same, but she cannot give the specifc dates. She has admitted that she did not informed about the acts of the accused either to the house owner or her parents also and did not shout when accused was having forceful intercourse. Therefore the question is whether not complaining either to the police or to the landlord or anybody would lead to an inference that since no offence has took place she has not either to informed to anybody or made a complaint to the police. It is to be noted that the accused gained entrance into her house and had intercourse after making her to belief that he would marry her at any cost. The objection raised by her for sexual intercourse for the frst time was that she resisted not to have such things until they get married. In the cross-examination victim/PW.1 volunteered to say that she could not withstand before his energy to resist him and that she was under belief that he would marry her, thereby she did not fle any complaint initially.

Therefore the voluntary explanation of the victim in the cross-examination itself speaks volumes as to why she could not complaint against the accused initially either to the police or others.

20.It is further elicited in the cross-examination of PW.1 that she got married the accused in the year 2019 at Hanuman Temple in the presence of

Judgment in SC 325/2019 13 of 34 Dt : 11-10-2021.

elders of accused and her ex-husband when she assured that she will withdraw all her complaints and as of now accused is her husband. The learned counsel for the accused has confronted copy of the private complaint fled by her against the accused and same is marked before the court as

Ex.D1. While referring to the said Ex.D1 she has deposed that she cannot depose exact contents of Ex.P1 and whether there is any mention about her marriage with accused in Ex.D1. She also deposed that accused was also married subsequently with one Vishnu Priya though she has pleaded ignorance about the documentary proof. Finally it is suggested that she doesn’t know the accused and he never came to her house, never had intercourse with her and for her illegal gains a false case has been foisted, but the said suggestions were denied by the victim/PW.1.

21.On perusal of above cross-examination of the victim/PW.1, it is clear that the victim/PW.1 has strengthen her version when compare to her chief examination. She has maintained consistency in respect of accused entering the house, making false promise to marry her and she has believed the said version later accused committed sexual intercourse and after the lust is over refusing to marry and also deposed about abusing her in flthy language and also performing an indecent act with his private organs. The accused has not put up any formidable defence as to why the victim has fled a false case against him. The victim has deposed in such a manner that the accused could not point out any contradictions or omissions in her evidence when compared to her previous statement given to the police under section 161 Cr.P.C. statement.

22.On analyzing the evidence of PW1 it is crystal clear that PW1 has

Judgment in SC 325/2019 14 of 34 Dt : 11-10-2021.

consistently deposed what all she has mentioned in her complaint under

Ex.P1 stating that he made the victim believe that he is in love with her and will marry her and will be father to her children then accused came to her house, started residing in her house, and committed sexual intercourse many times and also abused her while refusing to marry after.

23.Above all three suggestions given to PW.1 by the accused would go fatal to the accused. The said suggestions are extracted here under; “It is not true to say that myself and accused were staying in

living relationship. It is not true to say that I have participated in

intercourse with the accused voluntarily. It is not true to say that

with my consent only accused participated in intercourse.”

24.On going through above suggestions, it is clear that accused was living with the victim and he has participated with the sexual intercourse with the victim, however with consent of the victim. On going through the earlier cross-examination the accused has maintained he does not know who the victim was and that accused never stayed in the victim house and that accused never had sexual intercourse. This court by taking the evidence of

PW.1 and contents of Ex.P1 and also on considering the suggestions given by the accused to the PW.1 comes to the conclusion that the accused lived in the house of victim and had sexual intercourse with her.

25. Apart from the evidence of PW1 prosecution has examined PW2 to PW9. PW1 is the land lord of the house where victim/PW1 has stayed along with his children. He is circumstantial witness produced to speak about accused visiting the house of the victim/PW1. He deposed as PW2 that, victim/ pw1 has stayed in his house as tenant from 2015 to 2017 and during that

Judgment in SC 325/2019 15 of 34 Dt : 11-10-2021.

time accused to visit PW1 occasionally, he has also identifed the accused standing in the court. He further deposed that he told the police that on 26- 01-2018 he heard accused was crying and on his enquiry she informed that accused has cheated her under the guise of marriage. However, it did not fnd place in 161 crpc statement of this witness. When investigating ofcer is examined as PW9 he has stated that PW2 did not state him that when PW1 was crying on his enquiry PW1 has informed that that she was cheated by accused. Hence this part of the statement of PW2 is an improvement hence cannot be accepted. In the cross examination he has deposed that he does not remember which month she joined and vacated in his portion as tenant, he used to visit the building once in 15 days, it is situated half kilometer from his house.

26. So far as identify of the accused is concerned it is elicited in the cross examination that he does not remember the date of accused visiting the victim/Pw1, that he did not enquire his name, he had only facial acquaintance, he did not enquire his relation with PW1. These aspects in respect of identity of the accused are not going to effect the case of prosecution, as accused has admitted in the cross examination that accused used to reside in the said house as live-in relation with victim/Pw1. Even otherwise it is to be seen that nothing is elicited in the cross examination which created a doubt in respect of veracity of the evidence this PW2. In normal course it is not expected to note down and remember the dates as to on what date accused has visited the victim/Pw1. Not remembering the date of visit of the accused to the house of the victim/Pw1 is normal, had he been deposed the dates this court would have doubted his interest. Further nothing is attributed to him as to why he should speak false against the accused. Hence, the evidence of PW2

Judgment in SC 325/2019 16 of 34 Dt : 11-10-2021.

can be trusted and accepted that PW1 used to stay in his house as tenant and that accused used to visit her house, and that she told him that accused cheated her under the guise of marriage. These statements of the accused are corroborating with the evidence of PW1.

27. Similarly PW3 is also circumstantial witness. PW2 has deposed that he has four portions of which he let out one portion to PW1/victim. PW3 is no other than one of the tenants of four portions of belonging to PW2 who has rented them to various persons including PW1 and PW3. He has deposed that accused used to come to the house of PW1 now and then during the years 2015 and 2016, he has identifed the accused standing in the court with his name, he has further deposed that PW1 has told him that she is going to marry the accused. In the cross examination PW3 has deposed in that he was residing in the portion adjacent to the portion of PW1/victim. This witness has denied all the suggestions that accused never used to visit the PW1, and he has no acquaintance with the accused. In the cross examination either contradiction or omission is recorded. Nothing is on record to show that this witness is a interested witness or made improvements to his previous statement, was not residing in one of the portions as tenant and fnally there is nothing to disbelieve his evidence. Therefore, prosecution with the evidence of this witness also established that accused used to visit her house now and then, there by the contention of the accused that he is no way concerned with the case and that he never visited the accused cannot be appreciated.

28.PW4 is one of the mediators to the scene of offence panchanama in crime detail form and rough sketch under Ex.P2 and Ex.P3 respectively.

Judgment in SC 325/2019 17 of 34 Dt : 11-10-2021.

According to his evidence in the chief examination that on 4-2-2018 morning time police conducted scene of offence panchanama in his presence and drawn rough sketch under Ex.P2 and Ex.P3 respectively on which he signed.

In the cross examination it is elicited that his house is at a distance of less than half kilometer and there were other people at the spot. The witness has explained about the topography of the building and that he was taken to second foor of the house and does not know other portions. It is to be noted that the prosecution has to establish before the court that the mediator is not interested and independent one. Admittedly he resides about half kilometer away from the scene of offence. Though prosecution has not explained as to why they could not secure mediators who are of that locality, still merely because the mediator is from far away place his testimony cannot be doubted as long as he gives satisfactory replies in respect of scene of offence which he allegedly visited at the time of drawing of scene of offence panchanama and rough sketch. Further in the cross examination he has not deposed any thing which creates doubt as to his presence at the scene of offence at the time of drawing of Ex.P2 and Ex.P3 respectively. Hence the contention of the accused that his evidence has to be discarded cannot be accepted.

29.PW5 is mediator for confessional statement of accused. He has deposed that when he was going to Malkajifri area police took him to act as a mediator and in his presence accused has confessed the offence and one mobile phone of VIVO Company was sized from his possession and same is marked as MO1. It is to be noted that though entire confessional statement of the accused is marked as ExP4 this court can take into consideration of only relevant part of the statement where under recovery of the MO1 is recorded.

Judgment in SC 325/2019 18 of 34 Dt : 11-10-2021.

Number of questions were asked by the leaned counsel for the accused in the cross examination to create doubt in respect of presence of the witness at that relevant time. However, as observed above except the part of the statement of recovery of MO1 mobile phone nothing can be considered.

Further, even in respect of mobile phone Mo1 also prosecution has failed to explain what it sought to prove before the court. May be according to prosecution the accused has used the MO1 mobile phone to talk to victim/PW1, but there is no such effort made by the prosecution. No call data record of the accused is fled to prove the same and no person is examined form the service provider to speak about the same. Hence, considering the same the evidence of this witness is not useful to the prosecution.

30. PW8 is the Asst. Professor Obstetrics and Gynecology of Gandhi

Hospital. She has examined PW1 and collected vaginal swabs and smears pubic hairs and nail clippings and sent to Forensic Science Laboratory FSL for further analysis. She gave preliminary report under Ex P6 and after receipt of report from FSL under Ex P7 she has given fnal opinion under Ex P8 stating that sexual assault could not be ruled out. In the cross examination witness admitted that in preliminary report signature of PW8 is not found, and that in sexual assault cases there will be injuries on the private parts and in sexual intercourse no such injuries will be found. Witness admitted that according to her opinion “sexual assault cannot be ruled out” indicates the incident may or may not happen. She has also deposed that in married women Hyman will not be intact.

31.The learned counsel has elicited material facts in the cross

Judgment in SC 325/2019 19 of 34 Dt : 11-10-2021.

examination with regard to interpretation of her medical reports, still it is required to be noted here, that victim is married and having two children so hymen will not be intact. Further, there will not be injuries on the person of the victim including on her private parts as she has initially though stated to have resisted later she has cooperated as he promised to marry her. Hence there will not any injuries. Further the accused stated to have sexual inter course with victim during the years 2016 and 2017 but she gave complaint to police on 2nd March 2018 and was sent for medical examination on 4-2-2018.

By that time she gave complaint the alleged offence took place long prior to that and she was trying to ask him to marry him. Hence unless the sexual assault took place just prior to the medical examination the medical ofcers will not be in a position to give certifcate abut injuries if any on the person of the victim on account of sexual assault or sexual intercourse.

32.Further, prosecution has sent the victim for medical examination to prove that the she was subjected to sexual intercourse. But as mentioned in the discussion above, the accused himself admitted that he had sexual intercourse with victim, but with consent. Hence no medical evidence is required to prove that accused had sexual intercourse.

33.PW7 is Head of department of Gastroenterology of Gandhi

Hospital. According to his evidence a team of doctors have examined accused and gave a certifcate under Ex P5 to the affect that there is nothing to suggest that the accused in not a potent. He has further deposed that he has counter signed the said certifcate. In the cross examination it is elicited that his signature is not found on Ex P5. Once he has not signed and once he has not examined the accused he is no way concerned with Ex P5. Even otherwise

Judgment in SC 325/2019 20 of 34 Dt : 11-10-2021.

it is not the case of the accused that he is not potent and hence entire case of the prosecution is required to be discarded. Hence as long as there is not dispute about his potency the evidence of PW7 and certifcate under Ex P5 are in any way helpful to the accused to discredit the prosecution case.

34.PW9 is the inspector of Police who has registered FIR and completed investigation. According to his evidence on 3-2-2018 PW1 has fled

Ex P1 complaint alleging that accused has committed rape on her and basing on the contents he registered as FIR under ExP9 in crime no 28of 2018, he has sent her to Bharosa Centre after recording her statement. He deposed further he visited scene of offence and in the presence of mediators drawn crime detailed form and rough sketch, under Ex.P2 and Ex.P3 respectively. He also recorded the statements of PW2 and 3, that the victim was examined by medical ofcer PW8 who has sent the samples of virginal swab, smears etc to the FSL. He further deposed that the accused was apprehended and he got recorded the confessional and seizer panchanama under, P4 and seized VIVO mobile phone MO1, and that he got conducted potency test of the accused and collected the same under Ex P5, he also collected preliminary report, FSL report, and Final opinion of medical ofcers in respect of victim/PW1 under

Ex.P6, ExP7 and Ex.P8 respectively and fled charge sheet after completion of investigation.

35In the cross examination of this witness number of questions were posed to the witness to prove that PW4 and another, the mediators for scene of offence are not form the vicinity of the place and they were stock witnesses and that they were planted. In fact even if the prosecution fails to prove the scene of offence still the case of prosecution will not get weaken.

Judgment in SC 325/2019 21 of 34 Dt : 11-10-2021.

Because, the accused has not disputed the scene of offence. His contention is that scene of offence panchanama in the form of crime detail form and rough sketch were not drawn in the presence of mediators including PW4. The evidence of mediators and CDR and Rough sketch will be signifcant when scene of offence it self is in disputes, which arises in some cases. So far as this case is concerned since accused has not denied the location and topography of house of victim. At one stage the accused simply denied the case of prosecution stating that accused is innocent and is in no way concerned with the offence. On the other hand he has suggested to PW1 that he was staying in the house of victim, which is scene of offence, and was in live-in relationship with the victim. Hence taking both the views it is clear that accused has not disputed the scene of offence. Thereby the cross examination of the accused in respect of mediators and scene of offence will not in any way help the accused.

36.Similarly in respect of recording of confessional statement of accused and recovery of MO1 mobile phone is concerned this court has already observed that the confessional statement under Ex P4 and MO1 will not be help full to the prosecution to prove the case against the accused, as there is no record to show that MO1 was used by accused, call data of said mobile phone is not placed before the court, and that ofcer concerned of the service provider also not examined. Hence the part of the cross examination of PW9 in respect of ExP4 and MO1 will be helpful to the accused. Prosecution cannot prove the offence with the help of Ex P4 confessional panchanama,

MO1 and the evidence of mediator PW5.

37.The evidence produced by the prosecution in the form of PW2 to

Judgment in SC 325/2019 22 of 34 Dt : 11-10-2021.

PW9 also go to show that PW2 and PW3 have corroborated the evidence of

PW1 in respect of accused visiting her house and that the medical evidence go to show that accused is not impotent and that sexual assault of the victim cannot be ruled out.

38. Learned counsel for the accused has submitted that non examination of LA2 is fatal to the prosecution. According to prosecution version PW2 is the colleague of PW1 in event management, and the accused is no other than younger brother of husband of PW2. It is the case of prosecution that PW2 has stayed for sometime in the house of PW1 and during that time accused who is closely related to PW2 used to come to the house of PW1 and develop friendship which resulted in committing the offence. As rightly submitted LW2 is a prime witness to the incident. PW2 if produced should have deposed about her friendship with PW1 and accused visiting her house and that he has developing friendship with her. But she failed to appear before court. She would have been a good witness to the prosecution. However, in the light of the fact that accused has suggested to

PW1 that accused used to live with victim in live-in relation and though he had sexual inter course he never intended to marry her.

39. Therefore considering the evidence of PW1 to PW9 as discussed above this court comes to the conclusion that the accused came in to contact with victim through LW2 his sister in law and took her phone number, started talking to her and informed that he is in love with her and proposed to marry her and that accused also gained entrance in to the house of victim and started living there and during his stay he committed sexual intercourse on the victim.

Judgment in SC 325/2019 23 of 34 Dt : 11-10-2021.

40.According to learned counsel for the accused both victim and accused are adult persons and that the victim has given consent for the accused to have sex hence, accused has committed no offence. It is the case of the prosecution that accused has induced her to marry only on believing the accused the victim had intercourse with her.

41.It is settled legal position that, even if accused had sexual intercourse with the victim after making promise to marry her but subsequently fails to marry her , it will not attract offence under 375 IPC. In order to attract offence of Rape the prosecution has to prove that while making such promise the accused must have prior ill intention of marrying the victim and that knowingly induce her falsely that he marry the victim. On the other hand the victim must have given consent on such false promise of accused not knowing that the accused was making false promise.

42.ExP1 is the complaint fled by the victim. The contents of it go to show that accused used to call her over phone every day and inform her that he had been loving her and even though her husband has left her he will marry her and expressed that he will act like father to her children. After he started living in her house also he behaved very closely and attend all household works and made the victim believe what he said. He also stated her that he was having some debts and after discharging them he will marry her in the month of November or December. Complaint further speaks that on 5th January 2017 accused came on top of her and she warned not to have such thing until marriage is done. But the accused assured that under all circumstances he will marry her and committed sexual intercourse. The sequences narrated by victim in her complaint clearly establishes that victim

Judgment in SC 325/2019 24 of 34 Dt : 11-10-2021.

has permitted to stay in her house as he expressed that he would marry her and resisted him not to have sex but he assured her that he will certainly marry her and had sexual intercourse. Therefore it is clear that she had permitted sexual intercourse only after assurance of marrying her.

43.Victim has also deposed in similar lines as PW1 stating that the accused has assured her that he will marry her and he made her to believe his words and fnally had sexual intercourse. Most of the cross examination of

PW1 is in respect of total denial, which could not be established. But accused has given suggestion that victim has sexual intercourse only after giving the consent, but this suggestion was denied by her emphatically. On scanning through the evidence of PW1 there is nothing to suggest that the victim has given free consent on the other hand there is ample evidence that she has permitted the accused to have intercourse only after accused promising that he will marry her. Further it is the evidence before the court that the accused induced her to marry and later refused. Accused has not given any explanation or reasons as to why he could not marry her. Once this court believes that only under promise of marriage she pemitted to have sex with her, the accused must explain the reasons for not marrying on account of certain reasons, to establish that he never had ill intention of not marrying her and that on account of some reasons he could not marry. As no such explanation is coming forward, there is no option for this court to conclude that the accused had ill intention not marry even from inception of making promise to marry her on account of which victim consented to have sex with her.

44.Considering the discussion made above prosecution has proved

Judgment in SC 325/2019 25 of 34 Dt : 11-10-2021.

that the accused has committed rape on the victim number of times and hence accused has committed offence punishable for the offence under section 376(2)(n) IPC. Similarly accused made false promise to marry the victim and had sexual inter course with her and fnally refused to marry, thereby committed the offence punishable under section 417 IPC

45.The accused is also charged for the offence punishable under section 509 IPC the charge framed is extracted as under, “That you the accused on the same day, time and place as mentioned in 1st charge supra, passed indecent gestures and exhibited objects to the victim ( name of the victim known and informed to you) intending to insult the her modesty and that you the accused thereby committed the offence punishable under section 509 of IPC”

On going through the charge it is not clear as to on what date what sort of indecent gesture has passed by accused or exhibited any gesture or object towards the victim. Unless the act of the accused which attracts the offence under 509 it is difcult for the court to appreciate.

Further, prosecution has also not mentioned any specifc overt acts of the accused so as to see whether the accused has made such indecent gestures or exhibited objects to the victim intending to insult her modesty. Even otherwise the accused allegedly committed sexual intercourse on the victim punishable for the offence of Rape. This court is of the opinion that offence of

Rape is an aggravated form of insulting the modesty of the women. Hence, considering that the prosecution has not specifcally not alleged the acts of accused intending to insult the modesty of victim and hence the charge against the accused for the offence under section 509 IPC is not proved.

Judgment in SC 325/2019 26 of 34 Dt : 11-10-2021.

46.The learned counsel for the accused has fled authorities decided by the Hon’ble Apex Court in support of his contention. He has cited an authority decided between Maheshwar Tigga Vs. The State of

Jharkhand wherein the Hon’ble Apex Court held as follows:

“Under section 90 of IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest.”

The facts of the case referred above by the learned counsel are not applicable to the case on hand. In the authorities cited, both accused and the prosecutrix were in love and had sex, out of their love. Though there was a promise, reasons for not marrying is also stated that both belong to different communities.

Here, in the case on hand, the victim is a married woman having two children, accused has developed friendship with her and expressed that he is in love with her and proposed marriage. Only after the victim has made sure that he was willing to marry, then permitted him to have sexual intercourse with her. Therefore, the authority cited is not applicable to this case and will not come to the rescue of the accused.

47.The learned counsel for the accused has cited an authority

Judgment in SC 325/2019 27 of 34 Dt : 11-10-2021.

decided between Parkash Chand Vs. State of Himachal Pradesh wherein the Hon’ble Apex Court held as follows:

“The accused-appellant was alleged to have been told that she need not worry as he will marry her. She did not give any complaint either to her parents and police in view of the promise. She became pregnant and while she was carrying a child of 7 months, she requested the accused to marry her. The accused declined. Thereafter a complaint was fled after 7 months. On these facts this court noted that no complaint or grievance was made either to the police or the parents thereto.

The explanation for delay in lodging the FIR was noted namely that the accused promised to marry her and therefore the FIR was not fled”.

The Hon’ble Apex Court has further held as follows:

“14. There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape. If the case is reported immediately apart from the inherent strength of the case fowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance. It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted. Possibly, a medical examination may have revealed signs of any resistance or injuries. In this case, the High Court has proceeded on the basis of testimony of the prosecutrix and sought to fortify it by the extra judicial confession made before PW.4 and PW.5”.

In the case cited by the learned counsel for the accused, the complaint was made to the police by the victim 7 months after alleged commission of rape. The age of the victim was above 16 years and the delay in fling complaint was considered by the Hon’ble Supreme Court. The victim in the said case has not made complaint either to her parents or to the police in view of the promise made by the accused that he will marry the victim.

Judgment in SC 325/2019 28 of 34 Dt : 11-10-2021.

After she became pregnant, accused declined.

In the case on hand, the cause of action for the victim to fle complaint was the refusal by the accused to marry the victim. According the prosecution version, accused has told her that he is in love with her and proposed to marry. He started living in the house and taking care of the children and household activities and made the victim believe that he would marry her. And after that the accused had sexual intercourse and the victim has accepted as the accused is any way going to marry her. Once he has started not coming to the house and started dodging the matter and fnally when the accused has told her that he will not marry her, then the victim made a complaint to the police. Therefore, in the case on hand, there is no delay in the complaint made by the victim to the police.

48.The learned counsel for the accused has cited an authority decided between Deepak Gulati Vs. State of Haryana wherein the

Hon’ble Apex Court held as follows:

“24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of false promise of marriage has been raised by the prosecutrix.

We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation”.

In the case cited above, the facts reveal that the accused in that case was intending to marry the victim and was going to Ambala to marry the victim, that means the promise to marriage made by the accused was not with an intention to deceive the victim, even after the alleged offence, the accused was still intending to marry, that itself shows that accused was

Judgment in SC 325/2019 29 of 34 Dt : 11-10-2021.

bonafde.

In the case on hand, the accused though made the victim believe that he would marry her, later he has gone on record to say that he will not marry, after having sex multiple times. He has not explained any reason for not marrying her. There was no proposal to marry her subsequent to offence, etc., Therefore, the intention of the accused can be gathered clearly that he never wanted to marry the victim and he proposed to the victim that he would marry only to have sex with the victim. Therefore, this authority also not applicable to the case on hand.

49.The learned counsel for the accused has cited an authority decided between Uday Vs. State of Karnataka wherein the Hon’ble Apex

Court held as follows:

“Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record.

In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the frst time. She had sufcient intelligence to under set and the signifcance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent

Judgment in SC 325/2019 30 of 34 Dt : 11-10-2021.

was not in consequence of any misconception of fact”.

In the case cited by the learned counsel above, both victim and accused were in love and she is aware that marriage will not take place, the victim has made a choice to have sexual intercourse with the accused even though the marriage may not take place. Therefore, while giving consent for sexual intercourse she was aware that the marriage may not take place, therefore she cannot say that she has not given consent.

But in the case on hand, as already discussed, the victim was a married woman, having two children, and a divorcee. The accused has made friendship with her stating that he is in love and will marry her and he is prepared to act as a father to her children. Believing his words, the victim has permitted him to have sexual intercourse and after that he has changed his version and refused to marry and therefore the facts of the case are totally different to the case on hand.

50.The learned counsel for the accused has cited an authority decided between Kaini Rajan Vs. State of Kerala wherein the Hon’ble

Apex Court held as follows:

“We may indicate that from the reading of the judgments of the

Trial court as well as the High Court, it becomes clear that even as per the version of the prosecutrix, on few occasions there were sexual encounters between the parties, after the frst alleged incident in 1997. She accepted that they were consensual and she was a willing party, though she did so on the promise of the appellant that he would marry her. IN respect of these subsequent acts between the parties, the appellant was charged with the offence under section 417 IPC but exonerated by the trial court itself. The conviction is related to the frst incident which is treated as rape, believing the prosecution version that it was forcible and without the consent of the prosecutrix. Entire case is to be

Judgment in SC 325/2019 31 of 34 Dt : 11-10-2021.

examined on this limited aspect”.

In the case cited above, the trial court has framed charges against the accused for the offences under section 417 IPC. When once the charges under section 417 IPC were dropped, there is no case against the accused that he has cheated the victim with a false promise of marriage. Therefore, the facts of the case cited are altogether different than the facts on hand.

51.The learned counsel for the accused has cited an authority decided between Tilak Raj Vs. State of Himachal Pradesh wherein the

Hon’ble Apex Court held as follows:

“We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code. In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at their residence. After a perusal of copy of FIR and evidence on record the case setup by the prosecutrix seems to be highly unrealistic and unbelievable.

23.If the story setup by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction.

Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bedroom at night.

Judgment in SC 325/2019 32 of 34 Dt : 11-10-2021.

The facts mentioned in the above citation indicate that there was a clear consent of the prosecutrix. In the case on hand, the consent of the victim is not established. Therefore, the facts of the case cited are altogether different than the facts on hand.

52.Considering the facts and the circumstances explained above, the prosecution has made out the case that accused has committed the offence punishable under section 376(2)(n) IPC and also committed the offence of cheating punishable under section 417 of IPC. However, the accused is found not guilty for the offence under section 509 of IPC. Hence, accused is liable for conviction for the offences under section 376(2)(n) of IPC and section 417 of

IPC.

53.In the result, the accused is found not guilty for the offence under section 509 of IPC and he is acquitted under section 235(1) Cr.P.C. The accused is found guilty for the offences under section 376(2)(n) of IPC and section 417 of IPC and convicted under section 235(2) Cr.P.C.

Partly Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by her, partly typed to my dictation, corrected and pronounced by me in the open court, on this the 11th day of October, 2021

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-CUM-

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

54.When the Court questioned the accused with regard to the sentence to be imposed, he has submitted that he has wife and small child and prayed to take a lenient view. His wife and small baby also

Judgment in SC 325/2019 33 of 34 Dt : 11-10-2021.

came to the court while judgment is being pronounced. Considering the circumstances, this court is of the opinion that linient view can be taken and minimum sentence can be imposed.

55.In the result, accused is acquitted u/s.235(1) Cr.P.C for the offence under section 509 IPC. The accused is convicted u/s.235(2)

Cr.P.C for the offences under section 376(2)(n) and 417 of IPC and sentenced to undergo rigorous imprisonment for a period of ten years and shall pay a fne of Rs.1,000/-. In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the offence under section 376(2)(n) IPC.

He is also sentenced to suffer imprisonment for a period of one year for the offence under section 417 of IPC.

All the sentences shall run concurrently. The accused is explained about his right to appeal. MO.1 is ordered to be destroyed after expiry of appeal time. The undergone period if any is ordered to be set off u/s.428 Cr.P.CRemand period, if any shall be given set off.

Partly Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by her, partly typed to my dictation, corrected and pronounced by me in the open court, on this the 11th day of October, 2021

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-CUM-

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION :

PW1 - V.Swetha -Complainant

PW2 - Prakash Goud – circumstantial witness

PW3 -D.Baswaraj – Circumstantial witness

PW4 -R.Vikram, panch for scene of offence panchanama

Judgment in SC 325/2019 34 of 34 Dt : 11-10-2021.

PW5 -S.Narsing Rao, panch for confession cum seizure panchanam

PW.6 -P.Rukmini, WSI

PW7 -Dr.O.Sravan Kumar, issued potency test.

PW8 -Dr.Santha Latha, Asst. Professor.

PW9 - M.Rama Krishna, Investigating Ofcer

DEFENCE : NIL

NO. OF EXHIBITS MARKED ON BEHALF OF

Ex.P1 – complaint given by the PW.1

Ex.P2- Crime Detail form

Ex.P3 -Rough sketch

Ex.P4 - Confessional and seizure panchanama of the accused.

Ex.P5 -Potency certifcate

Ex.P6-Preliminary report of the victim.

Ex.P7 -FSL report.

Ex.P8 - Final Opinion

Ex.P9 - First Information Report.

Ex.P10 – Statement of the victim U/s.164 Cr.P.C

DEFENCE :

Ex.D1 – Copy of private complaint against the accused.

NO. OF MATERIAL OBJECTS MARKED

MO.1 is the Cell phone Vivo make

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-CUM-

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Judgment in SC 304/2017 1 of 25 Dt : 11-10-2021.

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 Dr.Nagarjun, Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-I cum XI Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 11 th day of OCTOBER, 2021

SESSIONS CASE NO. 304 of 2017

( PRC No.63 Of 2016 )

Committed by Sri.M.Johnson, IX.Addl.CMM, FAC CMM, Hyderabad. Crime Number and Police Crime No.384/2016 of PS.CHatrinaka, Hyderabad. Station

Bellamkonda Suman, S/o. B.Prakash, aged 29 Name and description of years, occ: Cloth business, r/o.H.No.18-7-658/62, the accused person Ayodhya nagar colony, Chatrinaka, Hyderabad.

Name and description of The State represented by the Sub-Inspector of Po- the complainantlice, PS.Chatrinaka, Hyderabad.

Prosecution conducted bySri G Narayana, Additional Public Prosecutor.

Defence conducted bySri.G.Kulkarni,Counsel for Accused

Ofences chargedUnder Section 376(2)(n), 417, 506 IPC.

Plea of the accusedPleaded not guilty.

Finding of the CourtFound guilty

RESULT:-In the result, accused is convicted u/s.235(2)

Cr.P.C and sentenced to undergo rigorous imprisonment for a period of ten years and shall pay a fne of Rs.1,000/-. In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the ofence under section 376(2)(n) IPC.

He is also sentenced to sufer imprisonment for a period of seven years and shall pay a fne of Rs.1,000/- In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the ofence under section 420 of IPC.

Further the accused is sentenced to undergo simple imprisonment for a period of

Judgment in SC 304/2017 2 of 25 Dt : 11-10-2021.

two years for the ofence under section 506 of IPC.

Total fne is Rs.2,000/- (Rupees two thousands only) All the sentences shall run concurrently. The accused is explained about his right to appeal.

JUDGMENT

1.The Inspector of Police, Chatrinaka Police Station, Hyderabad, has fled this charge sheet alleging that the accused has committed the ofences punishable under 376(2)(n), 417, 506 of IPC in Cr.No.384/2016.

2.The facts leading to fling of the charge sheet against the accused are as under :

(a)On 08-08-2016 at about 6.00 p.m. the victim fled a complaint in the police station stating that she has got acquaintance with one Suman who followed her stating that he is in love with her and will marry her.

Believing his words she also fell in love, He has pressurized her to participate in sexual intercourse on a promise that he will marry her at any cost and both had sexual intercourse for about 4 to 5 times. He started postponing the marriage on one pretext or the other. Later, he has refused to marry her asking her do whatever she likes, while threatening her with dire consequences of killing her.

(b) On the strength of the contents of the said complaint, police has registered a case in Cr.No.384 of 2016 under Section 420, 417, 354-A and 506 of IPC and issued FIR. The S.I of Police, examined the victim and recorded her statement, which was scribed by Woman Head Constable. The victim was sent to Government Maternity Hospital, Petlaburz, Hyderabad for

Judgment in SC 304/2017 3 of 25 Dt : 11-10-2021.

medical examination where The Medical Ofcer/LW14 has collected the vaginal swabs, and handed over the same to the police for onward transmission to the Forensic Science Laboratory for examination and report.

The S.I of Police has also fled a requisition before concerned learned

Magistrate and got 164 Cr.P.C statement of the victim recorded. On basis of

the contents of 164 Cr.P.C statement, the S.I of Police has altered the Section of law from 420, 417, 354-A and 506 of IPC to 376(2)(n), 417 and 506 of IPC.

Further investigation was taken over by the Inspector of Police. He has again examined the victim and recorded her statement and was sent to Bharosa

Center, Hyderabad, for recording of her statement and for counselling. The

Inspector of Police along with the victim visited the scene of ofence bearing

No.18-7-466/28/A, Hanuman Nagar, Hyderabad, in the presence of mediators/LWs 18 and 19 and drawn rough sketch of scene of ofence.

However, scene of ofence observation panchanama could not be recorded as the victim has resided in the said house as tenant long ago. The statement of the owner of the said house was recorded by the Inspector of

Police.

(c) The victim has taken the Inspector to another house in the same locality bearing Door No.18-7-614/79/A and Inspector has drawn the rough sketch in the presence of mediators, however, observation panchanama of scene of ofence could not be recorded as the victim stayed there as tenant few years ago. Victim has again taken him to Ayodhya Nagar, a house bearing Door No.18-7-658/18, which was located close to the house of the accused. Inspector of Police has drawn the rough sketch in the presence of mediators and has not drafted the observation panchanama. The Inspector of

Police has recorded the statement of the owner of the said house. The victim again has taken the Inspector to another house bearing Door No.18-7-455/22/

Judgment in SC 304/2017 4 of 25 Dt : 11-10-2021.

A and the Inspector has recorded the statement of the owner of the house, who has stated that victim has resided there for about fve months and vacated. The Inspector of Police has recorded the statements of children of the victim’s sister as Lws 3 and 4. During the course of further investigation, the accused was apprehended on 13-08-2016 at 10.00 a.m. and was interrogated and in the presence of Lws 20 and 21 and the accused has confessed the ofence. After receipt of FSL Report the Medical Ofcer has given Final Opinion stating that “sexual intercourse cannot be ruled out”. The accused was produced before the Medical Ofcer, he was examined and a certifcate was given stating that “there is nothing to suggest that the individual is not capable of performing the act of sexual intercourse”.

(d) Considering the entire material, the Inspector of Police has concluded that the victim has worked as a maid servant inthe house of the accused and later she joined as a sales girl in a cloth showroom and the accused used to follow her by sitting in a shop opposite to the cloth showroom where the victim was working. One day accused gave his mobile number to the victim and asked her to call him. The accused himself has called the victim and informed that he is in love with her and intending to marry her.

However, the accused has continued his eforts, he has also taken the victim to a movie in a cinema theatre. Finally on one day, when victim was alone the accused entered her house, closed the doors of the house and inserted a piece of cloth in the mouth of the victim tied her hands back and forcibly committed rape on the victim. The victim has informed about the same to her mother on her return back and she called the accused and questioend him on which, the accused went to her house and touched her mother and pleaded not to inform to the police and promised that he would marry the victim at any cost. The victim has got pregnancy on which, she informed the accused about the

Judgment in SC 304/2017 5 of 25 Dt : 11-10-2021.

pregnancy and insisted him to marry her, the accused has asked her to terminate the pregnancy and gave three capsules and accordingly the pregnancy got aborted. The accused continued to make false promises and used to have sexual intercourse regularly. Later, he started giving reckless answers and on which suspecting that the accused may not marry her, the victim has consumed some capsules and she was shifted to hospital. Finally, when the victim has realized that the accused is preparing to marry another girl, she has questioned the accused to marry for which he has refused, there fore the victim has fled a complaint.

(e)On conclusion of investigation, the police has fled charge sheet alleging that the accused has committed the ofence.

3.Cognizance of the case was taken against the accused for the ofences punishable under Sections 376(2)(n), 417 and 506 of IPC and numbered the same as PRC No.63/2016 on the fle of the IX Additional Chief

Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the case documents were furnished to him as contemplated under Section 207 of Cr.P.C before the trial court. Since the ofence under Section 376 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Metropolitan Sessions Judge, Hyderabad, by following the due procedure as contemplated under Section 209 Cr.P.C.

4.The case was registered as S.C No.304/2017 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad, and made over the same to this court for disposal according to law. On appearance of the accused and upon hearing both sides, charges under Sections 376(2)(n), 420 and 506 of IPC are framed against the accused, read over and explained to him, wherein the accused denied the charges, pleaded not guilty and claimed to be tried.

Judgment in SC 304/2017 6 of 25 Dt : 11-10-2021.

5.During the course of trial, the prosecution has examined PWs 1 to 22 and exhibited Exs.P1 to P25. After the closure of prosecution evidence,

Accused was examined under Section 313 Cr.P.C by explaining the incriminating material appearing against him from the prosecution evidence and he denied the same and reported no defence evidence. No document is marked on behalf of his defence.

6.Heard arguments on both sides and perused entire material on record.

7.Now the point for determination is:

“Whether the prosecution is able to establish the guilt of the accused for the ofences punishable under Sections 376(2)(n), 420 and 506 of IPC, as alleged beyond reasonable doubts?”

8. POINT :-

To prove the charges against the accused, the prosecution has cited 26 witnesses including Investigating Ofcers, of which the victim was examined as PW1, mother of the victim was examined as PW2 and the son of the elder sister of the victim was examined as PW3, owner of the houses where the victim has stayed were examined as PWs 4, 5 and 8 respectively.

According to prosecution version, when the victim was staying in these houses, the accused used to visit and had intercourse with her. The accused has maintained two mobile phones through which he used to chat and speak to the victim. Those two mobile phones were registered in the names of two persons and they are examiend before the court as Pws 6 and 7. Similarly,

Bharathi Airtel Nodal Ofcer and Tata tele services Nodal ofcer are examined as PW9 and PW10 to speak about the call data details of the accused to show that the accused was talking to the victim.

Judgment in SC 304/2017 7 of 25 Dt : 11-10-2021.

9.Woman S.I of Police, who has recorded the statement of the victim was examined as PW11 and the Medical Ofcer who has examined the victim, received the FSL Report and gave Final Opinion was examined as PW16. The

Medical Ofcer who has examined the accused, conducted Potency Test and issued Certifcate was examined as PW17. The Asst. Director of FSL who has examined the samples taken out of the victim person is examined as PW12.

The mediators for rough sketch of scene of ofence were examined as PWs 13 and 14. The mediator who was present when the accused was allegedly confessed the ofence is examined as PW15. Finally, the Woman Head

Constable who has scribed the statement of the victim is examined as PW19 and Police Constable who video graphed while statement of the victim was being recorded is examined as PW18 and both the S.I of Police of Chatrinaka were examined as PWs 20 and 21, who have received the complaint and issued FIR and recorded the statement of the victim and fnally Inspector of

Police who has done major investigation in this case is examined as PW22.

Apart from the above oral evidence, the prosecution has also relied upon the following documentary evidence under Exs.P1 to P25.

10.It is the contention of the learned Public Prosecutor that the accused who is no other than son of the owner where the victim was working as maid servant has developed ill-intention against the victim to have a sexual intercourse and thereby started pretending that he is in love with her and would marry her. He made her believe that he would marry her and thereby believing the same, the victim accepted for sexual intercourse. Accused has continued to have the sexual intercourse with victim many a times by giving continuous false promises that he would marry her. It is further submitted by the learned Public Prosecutor that the evidence produced by the prosecution

Judgment in SC 304/2017 8 of 25 Dt : 11-10-2021.

before the court in the form of PW1 and other circumstantial evidence,

medical evidence put together go to show that the accused has committed the ofence under Sections 376(2)(n), 420 and 506 of IPC and thereby prayed the court to punish the accused.

11.On the other hand, learned counsel for the accused has submitted vehemently that except the sole testimony of prosecutrix which is not trustworthy, there is no other material placed before the court to show that the accused has committed the ofence. He has submitted further that the entire evidence of the victim is full of improvements when compared to her earlier statements and there is no corroborative evidence, hence her evidence has to be disbelieved. It is further argued that even if the prosecution version is accepted the accused cannot be found guilty because the victim is also an adult and she herself has voluntarily consented for the sexual intercourse thereby the accused has not committed any ofence. Hence, prayed the court to acquit the accused.

12.The victim has fled the complaint before the police under Ex.P.1 which was reduced into writing by a woman constable. The contents of the said complaint in brief are that for the last three years she has developed acquaintance with the accused and he has been after her stating that he is in love with her and would marry her. He has made her to believe that he would marry her and had sexual intercourse, about 4 or 5 times. Whenever she asked him for marriage, he started dodging the same and fnally when she has forced him to marry her, he refused and said that let her to do whatever she feels.

13.The evidence of PW1 go to show in her chief examination that she

Judgment in SC 304/2017 9 of 25 Dt : 11-10-2021.

used to work as a maid servant in the house of the accused and she also worked as a maid servant in the house of relatives of the accused and after stopping the work as the maid servant in the residence of the accused and his family members, the victim started working as a helper in a cloth store.

During that time accused used to watch her and one day gave his mobile number to her on a slip of paper and asked her to call him but the victim told him not to follow her.

14.She has further deposed in her chief examination that when her parents were away from her house, the accused came to her house and bolted the door, tied her hands, she raised cries, called the neighbors, there was no response, he has closed the mouth with a cloth and had sex with her.

After return of her mother, the victim has informed about the incident mother of the victim called the accused, on which he rushed to her house, touched the feet of mother of the victim and convinced her not to disclose the matter to anybody as it pertains to his reputation and assured that he will defnitely marry the victim. Later, the accused continued to talk with her and used to come to her house and used to have sexual intercourse with her. He also used to take her to movies now and then. When she got the pregnancy, she informed him that she was carrying 4 months pregnancy he has forcibly gave some tablets to her and got the pregnancy terminated. Later, when she felt that the accused was ignoring her, she has consumed some tablets on which she was taken to hospital. Subsequently, the accused met her and gave another phone number and started talking to her. Once the victim has realized that the marriage of the accused is likely to be performed with another girl, she immediately questioned him on which the accused has threatened her to kill.

Judgment in SC 304/2017 10 of 25 Dt : 11-10-2021.

15.In the cross-examination, the learned counsel for the accused has elicited from her as to as to when she reached the police station, on how many papers her signatures were obtained, who has interacted with her with regard to the complaint in the police station and who has accompanied her, etc.

Suggestions were given that she doesn't know what was written in the complaint and her signature was obtained on a blank paper but she has denied that. This part of cross examination did not create any doubt about victim fling the Ex.P.1, complaint before the police. Hence, prosecution contention that the victim has fled a compliant and Ex.p.1 has been registered under FIR cannot be disbelieved.

16.The learned counsel for the accused has pointed with all force of his command that PW1 evidence cannot be believed as her statement before the court is full of omissions and made lot of improvements when compared to her earlier statement given to the police under 161 Cr.P.C and also when compared to Ex.P1complaint. It is true as seen from the evidence of victim

PW1 and evidence of I.O PW22, it is clear that the learned counsel for the accused got recorded certain parts of the statement of the evidence of PW1 in her chief examination and pointed out that the victim has not stated those parts to the police when she has given her statement under section 161

Cr.P.C. However, when those facts were confronted to the Investigating

Ofcer who was examined as PW22, he has deposed that PW1 has not stated those aspects to him when her statement under 161 Cr.P.C was recorded. By taking the evidence of PWs 1 and 22, the learned counsel for the accused submitted that PW1 has made certain improvements in respect of accused coming into contact with her, having sexual intercourse, promising to marry

Judgment in SC 304/2017 11 of 25 Dt : 11-10-2021.

and later refusing to marry, etc. It is to be examined whether how far these omissions are relevant and if so non stating of those facts by the victim in her 161 Cr.P.C statement to the police and making improvements when she deposed before the court will efect case of the prosecution.

17.On careful reading of 2nd paragraph of page 3 in the cross- examination of PW1, it is clear that learned counsel for the accused has pointed out the part of chief examination wherein she has deposed that she used to work in the house of the accused, they have sent her to work in their relatives house, after some time she again started working in the house of the accused, alter she joined as helper in cloth store, accused used to watch her from the shop of his friend, one day he came motorcycle, gave his phone number and that he told her that he likes her and wanted to marry her, etc. In the cross examination learned counsel for the accused questioned the victim as to whether she has stated those facts to IO when, her st6astement was recorded. When same was confronted to IO/PW22 he deposited that PW.1 did not state those facts to him. On going through the said ommission, it is clear that these facts are not mentioned for the frst time in the court by the victim.

If Ex.P1 is looked into and 161 Cr.P.C statement of the victim is seen, she has stated that she has got acquaintance with the accused and he has promised her to marry and he was talking to her over mobile phone by saying that he is in love with her. The witness/PW1 has deposed in her chief examination clearly and elaborately as to how he developed friendship and at what places she worked, she has elaborated what she has already mentioned in Ex.P.1 complaint or in 161 Cr.P.C statement.

18.The part of the omission pointed out in the cross-examination of

PW1 at 2nd para of Page 4 is that when she was alone at her house, accused

Judgment in SC 304/2017 12 of 25 Dt : 11-10-2021.

came, bolted the door, tied her hands, raised cries, as there was no response, the accused has committed sexual intercourse and she has informed about the same to her mother who spoke to the accused and he has convinced her mother not to disclose the same to anybody and that he would marry her.

The victim has narrated in her chief examination about the accused committing forcible sexual intercourse on her when her mother was not there.

In fact, victim has stated to the police in her 161 Cr.P.C statement that the accused came to her house, tied her hands and committed forcible sexual intercourse., she has also stated in her 161 Cr.P.C statement that she has informed the same to her mother. Therefore, the learned counsel for the accused cannot say that PW1 has made, some improvements by deposing the incident that happened at her house.

19.The other omission got recorded by the learned counsel for the accused in the evidence of PW1 is in last para of Page 4 of cross-examination of PW1 wherein PW1 deposed that accused used to take her to movies and when she informed that she missed her periods, has abused her in flthy language stating that she was moving with others also and also when she was carrying 4 months pregnancy also, he told her that he will marry her and that when her family members were looking for marriage alliance to her, she has informed the same to the accused, accused neglected her thereby she consumed tablets and others have rescued. So far as this part of evidence is concerned, PW1 has stated in her complaint and also in her 161 Cr.P.C statement that she became pregnant and accused continued to make her believe that he would marry her. Therefore, whatever pointed out by the learned counsel, for the accused as omissions are not new facts.

Judgment in SC 304/2017 13 of 25 Dt : 11-10-2021.

20.The learned counsel has also pointed out another omission which was recorded by this court at 2 para of Page 5 of cross-examination of PW1 wherein she stated that she has informed to one Devika who is related to the accused about accused having sexual intercourse with her in the name of marriage and the same was informed to the family members of the accused by the said Devika and that mother of the accused abused her about her afair with the accused and also beat her and they did not allow her to speak with the accused for one year and after that again accused gave one more phone number and started talking to her and taking her to movies and later she came to know that accused is likely to marry one pinky, when she has asked about the same, accused did not respond and has disconnected her phone and fnally accused has refused to marry her. In fact all these aspects are found place in her 161 Cr.P.C statement stating that one Sumitra has informed about their issue with the mother of the accused as the victim has informed the said

Sumitra about her relationship with the accused on which the accused stopped talking to her and accused mother also beat her. Therefore, it cannot be said that PW1 has made improvements in her evidence in respect of giving information to the mother of the accused, abusing and beating her and fnally refusing to marry her when she has demanded about his proposed marriage with one Pinky.

21.PW1 is an illiterate. In fact, the contents of her complaint and statement under 161 Cr.P.C before the police were scribed through Woman

Police constable in the Police Station. Further there is no necessity that all the facts in detail, very muinutely, without leaving anything shall be mentioned in the complaint under Ex.P1. The complaint is a frst information to be given to the police for rolling the criminal law into motion. In the 161 Cr.P.C statement,

Judgment in SC 304/2017 14 of 25 Dt : 11-10-2021.

however, the witness require to give details. It is to be noted that if a person is asked to narrate about one incident on two occasions, the way he explained will be diferent. It is not possible for any person to give exact statement what he has stated earlier. On analyzing the 161 Cr.P.C statement of PW1 and her evidence in chief examination, this court is of the considered opinion that both of them are narrating all the relevant facts though, there are certain minute improvements which are not recorded by the court though further 161 Cr.P.C statement is recorded by the police on the narration given by the victim, whereas her evidence was recorded by the court in English on her narration.

The 161 Cr.P.C statement is in Telugu, whereas the evidence recorded by the court is in English. Therefore, slight discrepancies, alterations and omissions bound to occur, depending upon the capabilities of the person who has recorded the statements. Therefore, considering all the above, it is clear that the presentation, language and sentence construction may be diferent but the content of 161 Cr.P.C statement and evidence before the court in respect of material evidence are one and the same. Therefore, this court is not convinced with the learned counsel for the accused that there are lot of improvements in the evidence of PW1, therefore her evidence is to be discarded. Considering the discussion made above, the evidence of PW1 is very clear on the aspect that accused has developed friendship with her, informed that he is in love with her, made her to believe that he would marry her and by giving such false promise he has committed sexual intercourse with her.

22.Apart from the evidence of PW1, prosecution has also produced 21 other witnesses. Mother of the victim is produced before the court to speak that her daughter PW1 informing about the ofence committed by the accused.

Judgment in SC 304/2017 15 of 25 Dt : 11-10-2021.

She deposed before the court that she knows the accused and he had sexual intercourse with PW1 in her absence and when she has questioned as to why he was torturing PW1, for that he has replied that he would marry her. The cross-examination of this witness is mere denial of the statement made by her in chief examination. Accused failed to give any suggestion as to why either

PW1 or PW2 speaks falsehood against the accused. Infact there is no motive even according to accused for framing the accused falsely.

23.PW3 is the son of elder sister of PW1 and he has deposed that he knew the accused and accused used to come to their house when PW1 was there. He used to take her into house and lock the door and this witness was also given a suggestion by the counsel for the accused, whatever he has stated in chief examination is false and that the same was denied. The signifcant of evidence of this witness is to know accused and the victim are known to each other.

24.PWs 4, 5 and 8 are the owners of the houses where victim and her family stayed as tenants. Both of them did not support the prosecution. They were declared hostile. The learned Public Prosecutor could not elicit anything.

Therefore, prosecution could not bring through these witnesses that accused used to come to meet the victim when the victim was residing in their houses as tenant.

25.PWs 6 and 7 are the persons whose sim cards stated to have been used by the accused for talking to the victim. These two witnesses were also declared hostile and were permitted to cross examine by the learned Public

Prosecutor has they did not support the prosecution. PWs 9 and 10 the Nodal

Judgment in SC 304/2017 16 of 25 Dt : 11-10-2021.

Ofcers of Airtel and Tata Tele Services and they deposed that on the request of the police, they have given call data records of the accused. ‘Nil’ cross- examination was reported by the learned counsel for the accused. It is to be noted that the evidence of these witnesses and also the evidence of PWs 6 and 7 is relevant to the prosecution as the accused did not dispute at all the contention of the prosecution that accused has used two mobile phones and through them he used to speak and chat with the victim. There is not even a suggestion given by the accused that those two mobile phones were not used by the accused and that call data records are not relevant.

26.PWs 13 and 14 are the mediators for scene of ofence panchanamas and that in their presence rough sketch under Exs.P12 to P14 were drawn in respect of three houses where PW.1 has resided, over which they signed. These two witnesses did not support the prosecution. However, the accused has not contested the fact that no such incident ever happened in the respective places.

27.PW15 is a mediator for alleged confessional statement which is marked as Ex.P19. In fact there is no signifcant of this witness as nothing has been recovered at the instance of the accused in his confessional statement.

In fact confessional statement should not even marked as there is no recovery at the instance of the accused. Therefore, his evidence is not useful to the prosecution.

28.PW16 is the Medical Ofcer who has collected smears and swabs of the victim after her examination and sent them through police to FSL and she is the person who has given Final Report under Ex.P20. PW12 is the Joint

Judgment in SC 304/2017 17 of 25 Dt : 11-10-2021.

Director working in FSL. He has deposed about how he has conducted examination of the material objects sent by PW16 and gave a report under

Ex.P10. PW17 is the Associate Professor who has conducted Potency Test of the accused and gave certifcate under Ex.P21. All the Medical Ofcers and the expert of FSL were not cross-examined by the leaned counsel and hence the cross examination is recorded ‘Nil’. Therefore, the accused has not denied the scientifc evidence produced to show that accused is capable of performing sexual intercourse and that recent sexual assault noted and that sexual intercourse cannot be ruled out.

29.PW20 is the S.I. of Police who has received Ex.P1 complaint on 08- 08-2016 and issued FIR under Ex.P23 for the ofences under Section 417, 420, 354-A and 506 of IPC against the accused. PW19 is the S.I of Police who has recorded the statement of the victim and PW18 has videographed while statement of PW1 was recorded.

30.PW11 is the WSI of Police, who has recorded the statement of the victim at Bharosa Center. She deposed about her recording statement of the victim at Bharosa Center on 13-08-2016 at the request of police under Ex.P9.

In the cross-examination certain omissions were elicited that victim did not mention that she took her brother’s help to get her work at cloth store and that she did not mention that her parents went to village for pension and that she did not mention that she missed periods after one month and it is also mentioned that she did not state that the victim has consumed tablets, etc.

These omissions are minor omissions which are not efecting the case of the prosecution. PW21 has deposed that he got recorded the 164 Cr.P.C statement of the victim/PW1 under Ex.P24.

Judgment in SC 304/2017 18 of 25 Dt : 11-10-2021.

31.Finally, PW22 is the Inspector of Police who has conducted rest of the investigation and fled charge sheet. According to him after receipt of copy of 164 Cr.P.C statement, he has made alterations, he has sent memo for altering section of law and deposed about recording the statement of the victim, visiting the scenes of ofences, drawing rough sketches, sending the victim to Bharosa and for medical examination, collected all other documentary evidence and fling of charge sheet. This witness was cross examined mainly on the omissions in the evidence of PW1 and other part of cross examination is favour in nature in respect of examination of other witnesses. This witness admitted that he could not secure the presence of

Padma, Pinky, Srinu, Kanthamma, Devika, Hanumanthu, Bhagyalakshmi and

Sumitra, whose names are found at various places of investigation.

32.Considering the evidence as discussed above, the evidence of PW1 is crucial, which is clear to the fact that the accused has developed friendship and encouraged the he is in love with her and committed intercourse by inducing that he will marry her. The evidence of PW2 corroborating with the evidence of PW1 in respect of scientifc evidence and evidence of Investigating

Ofcers is also in favour of the prosecution and though the witnesses to prove the scene of ofence did not support the prosecution, there is no dispute from the accused side about the scene of ofence and mobile phones alleged to have been used by the accused. Therefore, the prosecution succeeded in proving the case against the accused that he has committed the ofences.

33.The learned counsel for the accused has submitted that even if whatever prosecution contended his accepted to be true without admitting, still accused has not committed any ofence since the sexual intercourse between the accused and victim are consensual as both of them are adults.

Judgment in SC 304/2017 19 of 25 Dt : 11-10-2021.

He has also submitted that in order to constitute an ofence under section 376

IPC the consent given by the victim shall be under misconception of facts and in the case on hand it is submitted by him that the victim has given consent voluntarily and therefore accused is liable to be acquitted.

34.In support of his contention he has submitted an authority decided in a case between Deepak Gulati Vs. State of Haryana reported in (2013) 7 Supreme Court Cases 675 wherein it is held by the Hon’ble Supreme

Court that, “ Hence, the sole question involved herein is whether the prosecutrix’s consent had been obtained on the false promise of marriage. Thus, sections 417, 375 and 376 IPC have to be taken into consideration, along with section 90 IPC. Section 90 of IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape. Where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submit to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the ofence of the accused is concerned.”

35.He has also submitted another authority decided between Ankit and others Vs. State of U.P. reported in 2019 SCC online All 3203 wherein it is held at para 24 stating that:

“ Hence, it is relevant that there must be adequate evidence to show that at the relevant time, i.e., at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owning to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come

Judgment in SC 304/2017 20 of 25 Dt : 11-10-2021.

within the meaning of the term “misconception of fact”, the fact must be have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

36.The learned counsel has also cited another authority decided by the Hon’ble Supreme Court in Criminal Appeal No.1165/2019 in support of his contention.

There is a slight distinction between rape and consensual sex, therefore it is required to be examined whether at the time of giving the promise itself accused was of the clear view and understanding that he will not keep up the promise and that he will not marry her and giving the promise falsely in order to have the sexual favors. On the other hand if the accused was having honest intention of marrying the victim and by believing his words if the victim agrees for sexual intercourse and if on account of the circumstances which are beyond the control of the accused if he fail to marry her still it may not amount to ofence of rape.

In the case on hand the accused has started speaking to victim while saying that he is in love with her and intending to marry her. He has committed sexual intercourse while promising that he would suddenly marry her. When mother of the victim also questioned the accused he touched her feet and asked her not to disclose it to anybody and assured her that he would defnitely marry the victim. While continuously giving false promises he has continued to have sexual intercourse with the victim. Finally when the victim was pregnant also he has promised her that he would marry her and gave the tablets and terminated the pregnancy. Ultimately the accused has refused to marry her and threatened her with dire consequences. It is not the case of the accused that he could not marry the victim because the social status both the

Judgment in SC 304/2017 21 of 25 Dt : 11-10-2021.

families are diferent, fnancial conditions of the both the families are diferent, castes of both the families were diferent, there is a huge disparity in the age between them, parents of the accused threatened him not to marry or any other reason. In fact the accused has not given any reason as to why he could not marry her. There is evidence before the court that accused has promised to marry her had sexual intercourse and failed to keep up the promise.

Whether the accused was having prior intention not to marry the victim will have to be gathered by the circumstances. As narrated above accused has given all sorts of promise until he has been exploiting her sexually and when she started questioning about the marriage he has changed his attitude. When there is no valid reason for not marrying the victim and when the sequence of events indicate that the accused was with the ill intention of giving a false- promise and not fulflling it, it is a clear case which squarely falls within the ambit of ofence of rape.

37.So far as the ofence of cheating is concerned, it is th submisssion of the learned Public prosecutor that the accused has deliberately gained en- trance ointo the house of the victim by giving false hope that he has been lov- ing the victim and false promised that he wouldm arry her and gained conf- dence of the victim after gaining confdence, accused has implemented his scheme of exploiting the victim sexually. Accordingly, even though the victim has called the accused and accused has convinced again that he would cer- tainly marry her and committed sexual intercourse. These facts have already been proved as discussed in the foregoing paras. This court has already con- cluded that accused has committed the ofence punishable u/s.376(2)(n) of

IPC, in fact unless cheating is proved, the accused cannot be found fault for the ofence under section 376(2)(n) IPC because both the victim and accused

Judgment in SC 304/2017 22 of 25 Dt : 11-10-2021.

are adults and that mere giving a promise and not fulflling it will not itself be- come an ofence and unless the prosecution makes it that the accused was having prior intention to not marrying the victim even before and at the time of making such promise of the victim. Therefore once ofence under section 376(2)(n) IPC is proved, the ofence u/s.420 is also deemed to have been proved.

38.In order to prove the ofence under section 506 IPC, prosecution is expected to prove that the acused has criminally intimidated the victim. It is the case of the prosecution that the accused though initially was talking to the victim politely, during the later part, he has started abusing the victim in flthy language and threatened her with dire consequences. On fnal occasion, when the victim spoke to the accused and requested to marry her, accused has told her whatever he feels like and also threatened to kill her. So far as these as- pects are concerned, the victim PW.1 has clearly mentioned even in the Ex.p.1 complaint that accused has threatened her with dire consequences to kill her.

The witness deposed as PW.1 before the court has also stated that accused abused and scolded and quarrelled with her and she has also deposed that when she called the accused over phone, he threatened her that he will kill her. Though this witness was cross examined, nothing was elicited to show that allegations levelled by the victim about the criminal intimidation is incor- rect. Therefore the accused is also found guilty for the ofence of criminal in- timidation.

39.Considering the facts and the circumstances explained above, the prosecution has made out the case that accused has committed the ofence punishable under section 376(2)(n) IPC and also committed the ofence of

Judgment in SC 304/2017 23 of 25 Dt : 11-10-2021.

cheating punishable under section 420 of IPC and further the accused is found not guilty for the ofence under section 506 of IPC. Hence, accused is liable for conviction for the ofences under section 376(2)(n), 420 and 506 of IPC .

40.In the result, the accused is found guilty for the ofences under section 376(2)(n), 420 and 506 of IPC and he is convicted under section 235(2) Cr.P.C.

Partly Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by her, partly typed to my dictation, corrected and pronounced by me in the open court, on this the 11th day of October, 2021

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-

CUM-XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

41.When the Court questioned the accused with regard to the sentence to be imposed, he has submitted that he is the only bread winner of the family, he has a family consisting of his parents and sister and prayed to show mercy and take a lenient view,

42.In the result, accused is convicted u/s.235(2) Cr.P.C and sentenced to undergo rigorous imprisonment for a period of ten years and shall pay a fne of Rs.1,000/-. In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the ofence under section 376(2)

(n) IPC.

He is also sentenced to sufer imprisonment for a period of seven years and shall pay a fne of Rs.1,000/- In default of payment of fne, he shall undergo simple imprisonment for a period of six months for the ofence under section 420 of IPC.

Judgment in SC 304/2017 24 of 25 Dt : 11-10-2021.

Further the accused is sentenced to undergo simple imprisonment for a period of two years for the ofence under section 506 of IPC.

Total fne is Rs.2,000/- (Rupees two thousands only) All the sentences shall run concurrently. The accused is explained about his right to appeal.

Partly Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by her, partly typed to my dictation, corrected and pronounced by me in the open court, on this the 11th day of October, 2021

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-CUM-

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION : PW1 - Kum.Momidolla Prathyusha @ Padma – Complainant

PW2 - Smt.M.Chandramma – mother of victim Pw.1

PW3 - Master Shiva Kumar – nephew of PW.1

PW4 -A.Hanumanthu- Circumstantial witness

PW5 -R.Dayanand – circumstantial witness

PW6 -K.Arvind Kumar- circumstantial witness

PW7 -Thota Prashand – circumstantial witness

PW8 -G.Ramesh – Circumstantial witness

PW9 -S.Deepak Kumar – Nodal ofcer

PW10 -Srinivas Rowthula – Nodal ofcer

PW11 -P.Venkata Laxmi, WSI

PW12 -K.Arun Jyothi – Asst.Director FSL

PW13-R.Ram Reddy – Panch witness for rough sketch

PW14 -G.Narender – Panch witness for rough sketch

PW15- Mohd. Irfan – Panch witness for confession statement

PW16 -Dr.Damayanthi, Asst. Professor, Govt. Maternity Hospital

PW17 -Dr.Devraj, Asst.Professor, Osmania Forensic Medicine.

PW18 -B.Vinay Kumar, Police constable.

PW19 -K.J.Gouri, WHC

PW20 -N.Chandra Shekar, Investigating Ofcer,

Judgment in SC 304/2017 25 of 25 Dt : 11-10-2021.

PW21 -Mohd.Thakiuddin, Investigating Ofcer,

PW22 -K.Manoj Kumar, Investigating Ofcer.

DEFENCE : NIL

NO. OF EXHIBITS MARKED ON BEHALF OF

PROSECUTION:

Ex.P1 - Complaint

Ex.P2- 161 Cr.P.C statement of PW4

Ex.P3 -161 Cr.P.C statement of pw5

Ex.P4 -161 Cr.P.C statement of PW6

Ex.P5 -161 Cr.P.C statement of PW7

Ex.P6-Covering letter of PW.9

Ex.P7 -covering letter of PW.10

Ex.P8 65 B certifcate

Ex.p9 requisition of PS.Chatrinaka to record the statement of the victim

Ex.P10FSL Report

Ex.P11Rough sketch

Ex.P12 to P.14 signatures of PW.13 on rough sketch

Ex.P.15 to P.18 signatures of PW.14 on rough sketch

Ex.P.19 signature of PW.15 on confession statement

Ex.P.20fnal opinion

Ex.P.21Potency certifcate

Ex.P.22video recording of recording of statement of the victim

Ex.P.23First Information Report

Ex.P24164 Cr.P.C statement of the PW.1

Ex.P.25alteration memo

Ex.P.26, 27, 28, 29 are the rough sketches

DEFENCE : Nil

NO. OF MATERIAL OBJECTS MARKED

Nil

SESSION JUDGE FOR FAST TRACKING THE CASES

RELATING TO ATROCITIES AGAINST WOMEN-II-CUM-

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

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 Dr.D.Nagarjun, Special Ses~ions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-II cum XI Addi. Metropolitan Sessions Judge, Hyderabad.

th day of September, 2021 Dated this the 27

SESSIONS CASE NO. 17 of 2018

Lf..RC No.39 Of 2017)

I

Sri.Gotte Ravinder, VII.Addi. CMM, Hyderabad. I

Committed by • I Crime Number and Police Crime No.103/2017 of Kanchanbagh, Hyderabad. I I Station Borrath Jahangir, S/o. Late B.Setram, aged about 34 years, 0cc: Parrot Astrologer, R/o. H.No.9-5-47, Name and description of Chilakala e.asti, Sultan Alawa, Champapet, the accused person Hyderabad. The State represented by the Sub-Inspector of Name and description of Police, Kanchanbagh PS, Hyderabad. the complainant Sri G Narayana, Additional Public Prosecutor. Prosecution conducted by Sri. G.Chandra Mohan Counsel for Accused Defence conducted by Under Section 420, 376(2)(n) of IPC. Offences charged

Pleaded not guilty. Plea of the accused

Found not guilty Finding of the Court In the result,the accused is found not guilty for the offences under sections 420 & 376(2)(n) of IPC and he is accordingly acquitted under section 235 (1) Cr.P.C. The bail bonds of the accused shall stand canceled after expiry of appeal period.

,!\;

2

J I

JU]1GMENT

The Inspec~or of Police, PS Kanchanbagh has filed this charge sheet 1. I against the sole accused alleging that he has committed offence under sections . I 420 & 376(2) (n) of IPC vide charge sheet in Cr.No.73/2017 dated 06.06.2017.

The facts as narrated in the charge sheet in the brief go to show that the 2. about one year prior to the alleged offe'nce victim marriage was performed with • I one Ashok. Two months after the marriage disputes arose between the victim and her husband and started living separately. Later she started living with her paternal aunt by name Subbamma. The accused is no other than husband of

. , f

victim's paternal aunt. The accused has made the victim to believe that he would l f marry her and made her to accept for ?e~ual intercourse. < At 5.30 PM on 06.06.2017 the victim has filed a complaint before the P.S 3. I Kanchanbagh stating that the accused has participated in sexual intercourse for three times in the absence of her aunt in her house due to which she got ' The complaint of the victim is registered as Cr.No. 73/2017 under • l pregnancy.

. .

sections 420 & 376 (~) (n) of IPC. During the course of investigation LW16/PW2 ' has issued FIR, victim was sent to Bharosa Center where women SI as a recorded l , her statement and she was sent to medical officer where victim vaginal swabs I I were collected and sent to FSL for examination. The statements of LW2 to 5 were examined and In the presence of mediators Panchanama of scene of offence was conducted. On 10.06.2017 accused was ~rrested and produced before the court and on completion of investigation, police filed a charge sheet. I I I ~ • ance of the case was taken against the accused . for ~h~. off_ence

. .

\ • • , • '·. •f I ,JI ., I O A the file of VII Addlt;onal Chief Metr'o~_olitan. M~~i5t•i, ~-: . er sections 420, 376(2) (n) of IPC and r~gist€0red ·, it' .a·s PRC

~~~/

~ -~~ , • ~ .• :! • ., \ t t • appearance of the accused, copies of thJ • case- ,document~:,,/f.· ___ -_·

-·· .

; ~ ..

~

l7

,, 3

; furnished to him 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 Metropolitan

Sessions Judge, Hyderabad, by following the due procedure as contemplated

under section 209 Cr.P.C.

The case was registered as SC 17 /2018 by the Hon'ble Metropolitan 5.

Sessions Judge, Hyderabad and made over the same to this court for disposal

according to law. On appearance of the accused and upon hearing both sides, charges under section 420 & 376(2) (n) of IPC were framed against the accused, read over and explained to him in Telugu, wherein the accused denied the charge, and pleaded not guilty and claimed to be tried.

During the course of trial, the prosecution has examined Pws. 1 to 3 6. and marked Ex.Pl to 10. The accused did not examine any witnesses and did not mark any documents on his behalf.

After the closure of prosecution evidence, accused was examined 7. under section 313 Cr.P.C by explaining the contents of incriminating evidence adduced against him by the prosecution witnesses, for which he denied the same and reported no defence evidence.

Heard the arguments on both sides and perused the entire material 8.

on record.

Now the point for determination is: 9. " Whether the prosecution is able to establish the guilt of the

accused for the offences punishable under section 363, 376,

341, 506 of IPC beJlOnd all reasonable doubt?"

,,. ..

. ~ .... .. _ •. : .~ &) Jt. !f. •;., • . •. tit . . ... " ' • ' . <- "') •

-\ '

. '' , ion is expected to prove that the accused beil')g· :Hfe' husband· of

t/\(

·---~ ',) ',~ ,: . ,. . . • ,of the victim has induced her, made her to belleite that he· woul? 11 ~;~tn~I : • r, • r . committed sexual intercourse three times in th_e .absence of he~;· arry • , . ..- .1/'/ .. 1/ ,,,, t ·"

·\;

4 aunt. In order to prove the charges leveled against the accused, the prosecution examined victim as PWl. LWlS sub Inspector of Police as PW2 and Inspector of

Police is as PW3. Rest of the witness were given up by the learned Public

Prosecutor.

Now, the question to the determined is the whether prosecution has proved 11. the charges level against the accused beyond all reasonable doubts ?

The contents of complaint given to the Police by the victim and the 12. statement of victim recorded under 164 of Cr.P.C go to show that the accused had intercourse with her 3 times by making her to believe that he would marry her.

When victim appeared before the court she deposed that she has not given the complaint to the police against the accused. This witness was declared hostile by the prosecution and learned public prosecutor has cross examined the victim, but could not elicit anything about the accused in respect of charges framed against

She has even denied the contents of her statement given to the police him. under 161 Cr.P.C and thereby the statement of victim under 161 Cr.P.C is marked as Ex.Pl.

PW2 who is the than SI of Police who has registered the complaint of the 13. victim as FIR. He has deposed stating that b?~ing on the complai~~:giv~~ ,t),Y. PV'fJ,,· . : . .• ... ' . ( he has registered a case in Cr.No. 73/202·1 ·for the offences against the ~ccus~p· under sections 420, 376(2) (n) of IPC and' issued FIR. The complaint given by .. . • . . ·'. .. • PWl is marked Ex.P2 and FIR as Ex.P3. - ,\· •.'"•I• •• f ~ ..... . .;:,✓ •• \, .,.... .: The Inspector of Police who taken up further investigation from PW2 has 14. PW.3 a·bout the investigation done by him. He has deposed that he ene of offen&e, recorded statements of LW2 to 5, conducted to • l•.·1', ~ • • nchanama in the presence LW6 and 7 under Ex.P4 on 07.06.2017.

epo~ed that a rough sketch was prepared at the time and the same •

. .

5 '< ~ is marked as Ex.PS and victim was seno to Bharosa Center, where her statement I was recorded by women SI, medical officer has collected the swab and sent to

FSL and that the doctor has given preliminary report and later he has collected and on completion of FSL, report under Ex.P7 and final report under Ex.PB, investigation charge sheet is filed.

On perusal of the evidence of PWl it is clear that, she has not deposed 15. anything against the accused. The evidence of PW.1 is not at all useful to the

PW2 and 3 are not eye prosecution to prove the charges against the accused. witness to the alleged offence. Both of them are investigation officers. Basing on the evidence of victim who has not supported prosecution and on the strength of observation Panchanama and other documentary evidence it cannot be said that accused has committed the offences charged. Therefore in the absence of any incriminating evidence to show that the accused has committed the offences alleged he cannot be found guilty of charges.

In the result, the accused is found not guilty for the offence under 16. sections 417 & 376(2) (n) of IPC and he is accordingly acquitted under section

P.C. The bail bonds of the accused shall stand canceled after expiry of ('> ,.,.. :.',?,/ ·(" Ci) ~•_; .. -..,; Cl llJ to Stenographer • of this court, transcribed and typed by her, -Q .,., ,,,. • (0 ~t '\-\ Di ~ ~ pronounced by me in the open court, on this the 27th day of

rrect cf

~--

mb 21.

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

SPECIAL SESSIONS JUDGE .• for Fast Tracking the Cases Relating to Atrocities .i!Jainst Women-II at Hyderabad:, C' ••

I .. •

, . ,,

,4 '"

6 ~ £• .,1

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF

WITNESSES EXAMINED FOR PROSECUTION:

PWI - P.Sreedevi

PW2 - P.Pramod Kumar Reddy

PW3 - N.Shankar

WITNESSES EXAMINED FOR DEFENCE: -Nil-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.Pl- 161 Cr.P.C. statement of PW.I

Ex.P2 - Complaint

Ex.P3 - FIR in Crime No.103/20171

Ex.P4 - Observation panchanama

Ex.PS - Rough sketch

Ex.P6 - Preliminary Report

Ex.P7-FSL.

Ex.P8 - Final Opinion

ency Report

r.P.C statement of Victim/PW. I.

BJECTS MARKED : Nil

~--

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

SPECIAL srr~~"'"~5 JUDGE

fer Fast Trac~i:~· .:,i..- ~.t~~s Relattng to Atroc .. -:.···.- ·,r,:1::1st Women-II at Hyu,Habad.

I •' )

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 Dr.Nagarjun, Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-I cum XI Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 24 th day of September, 2021

SESSIONS CASE NO. 340 of 2018

( PRC No.01 Of 2018 )

Committed by Sri.A.Veeraiah, XVI.Addl. CMM, Hyderabad. Crime Number and Police Crime No.221/2016 of Habeebnagar P.S, Hyder- Stationabad.

Ponnuswamy Vijaya Raju, S/o.P.Krishnam Raju, Age: Name and description of 34 yrs, Occ: Car Driver, R/o.H.no.12-1-346/3, the accused person Dattatreya Colony, Asifnagar, Hyderabad.

Name and description of The State represented by the Sub-Inspector of the complainantPolice, Habeebnagar PS, Hyderabad.

Prosecution conducted bySri G Narayana, Additional Public Prosecutor.

Defence conducted bySri. Mohammed Jani Counsel for Accused

Offences chargedUnder Section 376, 417 and 420 of IPC.

Plea of the accusedPleaded not guilty.

Finding of the CourtFound not guilty

In the result,the accused is found not guilty for the offences under sections 376, 420 and 417 of IPC and he is acquitted under 235 (1) Cr.P.C for the

RESULT:- said offences. The bail bonds of the accused, if any shall be in force for a period of six months. The

MO’s 1 to 3 shall be destroyed after expiry appeal period.

J U D G M E N T

1.The Inspector of Police, Habeebnagar Police Station, Hyderabad, has filed this charge sheet against the sole accused in Crime No.221/2016 stating that the accused has developed friendship with the victim when she was working in her tailoring shop and subsequently both of them started loving each other. Even though accused was married he has misrepresented the victim that he is unmarried and that he would marry her. He used to take her in the evening and used to roam around until midnight. About eight months prior to complaint, he has taken her to his house at Balapur and forcibly committed sexual assault inspite of her resisting by making false promise that he would marry her. The neighbors also enquired the accused on which he told in the presence of victim that he is going to marry her. He used to take her regularly to his house and exploited her sexually. Later, victim and her family members realized that the accused was already married and having two children and that accused has denied to marry the victim again. On 11-11-2016 victim made an attempt to commit suicide, later filed a complaint before the police.

2.Police registered a case in Cr.No.221/2016 for the offences under Sections 376, 417 and 420 of IPC and in the course of investigation, police have recorded the statement of the victim, her mother, brother, neighbors of the accused’s house, the victim and the accused were taken to the hospital for medical examinations, the material was collected from the victim and sent to FSL, 164 Cr.P.C statement of the victim was also recorded, panchanama of scene of offence was conducted, after collecting the reports from FSL, Final Report was also given by the concerned Medical Officer on which charge sheet is filed by the police.

3.Cognizance of the case was taken against the accused for the offences punishable under Sections 376, 417 and 420 of IPC and numbered the same as PRC

No.01/2018 on the file of the XVI Additional Chief Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the case documents were furnished to him as contemplated under Section 207 of Cr.P.C before the trial court. Since the offence under

Section 376 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Metropolitan Sessions Judge, Hyderabad, by following the due procedure as contemplated under Section 209 Cr.P.C.

4.The case was registered as S.C No.340/2018 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad, and made over the same to this court for disposal according to law. On appearance of the accused and upon hearing both sides, charges under Sections 376, 420 and 417 of IPC are framed against the accused, read over and explained to him, wherein the accused denied the charges, pleaded not guilty and claimed to be tried.

5.During the course of trial, the prosecution has examined PWs 1 and 2 and exhibited Exs.P1 to P10 and marked MOs 1 to 3. After the closure of prosecution evidence, Accused was examined under Section 313 Cr.P.C by explaining the incriminating material appearing against him from the prosecution evidence and he denied the same and reported no defence evidence. No document is marked on behalf of his defence.

6.Heard arguments on both sides and perused entire material on record.

7.Now the point for determination is:

“Whether the prosecution is able to establish the guilt of the

accused for the offences punishable under Sections 376, 420

and 417 of IPC, as alleged beyond reasonable doubts?”

POINT :-

8.The accused was charged for the offences under Sections 376, 420 and 417 of IPC. As seen from the memo of evidence, the prosecution has in all cited 15 witnesses. The victim was examined as PW1 and Inspector of Police was examined as

PW2. After recording the evidence of PW1, the learned Public Prosecutor felt it not required to examine LWs 2 to 14 and all of them were given up.

9.PW1 is the victim in this case, prime witness who has stated to the police under Section 161 Cr.P.C and also under Section 164 Cr.P.C about the offences committed by the accused. She also filed complaint before the police under Ex.P1. However, when she has appeared before the court she has deposed against the prosecution version stating that though she lodged the complaint before the police against the accused it was under a mistake notion on the wrong advise of third person. She has gone to the extent of denying the contents of Ex.P1 and stated that except her signature she cannot identify anything in Ex.P1. She has also asserted positively that accused has not committed any offence and she has no grievance against him. She also further deposed that police never examined her.

10.Considering the nature of evidence of PW1 in her chief examination, the learned Additional Public Prosecutor sought permission of the court to cross-examine the witness after declaring the witness hostile to the prosecution. On giving the permission, the learned Public Prosecutor tried his level best to elicit incriminating evidence against the accused but in vain. A suggestion was given that her statement was recorded by the police as in Ex.P2 but she denied. Considering the evidence of PW1, it is clear that PW1 being victim who was supposed to speak about the offence of sexual assault allegedly made by the accused on the false promise of getting her married could not depose anything against the accused to prove the charges framed against the accused.

Therefore, the evidence of PW1 will not in any way help to the prosecution.

11.PW2 is no other than the Investigating Officer. He has deposed about the line of investigation right from filing of complaint by PW1 before LW14, S.I of Police by name Vijay Krishna, sending the victim to Niloufer Hospital for examination and also sending the victim to Bharosa Center where Woman S.I of Police/LW6 has recorded the statement of the victim, also deposed about visiting the scene of offence at Nadergul village wherein in the presence of Lws 10 and 11, seized the chunni of the victim which is marked as MO.1 and another chunni under MO.2 and T-Shirt as MO.3. He also deposed about apprehending the accused, sending him for medical examination and producing him before the court. His evidence further go to show with regard to getting 164 Cr.P.C statement of the victim recorded, getting Potency Test conducted, drawing of seizure panchanama under Ex.P7, rouch sketch under Ex.P8, FSL Report under Ex.P10 and Final

Opinion under Ex.P9. Finally he spoke about filing of charge sheet on completion of investigation.

12.In the cross-examination of PW2, the learned counsel for the accused has suggested that he never visited the scene of offence and accused is innocent, all the documentary evidence and material objects were planted to fix the accused in this case but all the suggestions of the accused were denied by the Inspector of Police.

13.On analysis even the evidence of Inspector of Police/PW2 also will not rescue the prosecution from getting the accused out of charges. PW2 cannot be found fault as

PW1 herself has not supported the prosecution. Similarly the prosecution has not made an attempt to prove the charges through circumstantial witnesses and through scientific evidence. Therefore, nothing remains for this court to go against the accused.

14.In the result, Accused is found not guilty for the offences punishable under

Sections 376, 420 and 417 of IPC and he is acquitted under 235(1) of Cr.P.C. for the said offences. The bail bonds of the accused, if any, shall be in force for a period of six months. The MOs 1 to 3 shall be destroyed after expiry of appeal period.

Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by

her, corrected and pronounced by me in the open court, on this the 24th day of September, 2021.

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF

WITNESSES EXAMINED FOR PROSECUTION:

PW1- Shalini PW2 - M.Suman Kumar

WITNESSES EXAMINED FOR DEFENCE:

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1 - Complaint Ex.P2 – Signature of victim on the statement recorded Ex.P3 – FIR Ex.P4 - Complaint given by PW1 Ex.P5 – 164 Cr.P.C statement of PW1 Ex.P6 – Potency Report Ex.P7 – Seizure of Panchanama dated 15.11.2016. Ex.P8 – Rough Sketch Ex.P9 – Final Opinion Ex.P10 – FSL Report.

MATERIAL OBJECTS MARKED :

M.O.1 – Mixed Colour Chunni. M.O.2 – Sky Blue colour chunni M.O.3 – Brown Colour T-shirt

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

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 Dr.Nagarjun, Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-I cum XI Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 24 th day of September, 2021

SESSIONS CASE NO. 340 of 2018

( PRC No.01 Of 2018 )

Committed by Sri.A.Veeraiah, XVI.Addl. CMM, Hyderabad. Crime Number and Police Crime No.221/2016 of Habeebnagar P.S, Hyder- Stationabad.

Ponnuswamy Vijaya Raju, S/o.P.Krishnam Raju, Age: Name and description of 34 yrs, Occ: Car Driver, R/o.H.no.12-1-346/3, the accused person Dattatreya Colony, Asifnagar, Hyderabad.

Name and description of The State represented by the Sub-Inspector of the complainantPolice, Habeebnagar PS, Hyderabad.

Prosecution conducted bySri G Narayana, Additional Public Prosecutor.

Defence conducted bySri. Mohammed Jani Counsel for Accused

Offences chargedUnder Section 376, 417 and 420 of IPC.

Plea of the accusedPleaded not guilty.

Finding of the CourtFound not guilty

In the result,the accused is found not guilty for the offences under sections 376, 420 and 417 of IPC and he is acquitted under 235 (1) Cr.P.C for the

RESULT:- said offences. The bail bonds of the accused, if any shall be in force for a period of six months. The

MO’s 1 to 3 shall be destroyed after expiry appeal period.

J U D G M E N T

1.The Inspector of Police, Habeebnagar Police Station, Hyderabad, has filed this charge sheet against the sole accused in Crime No.221/2016 stating that the accused has developed friendship with the victim when she was working in her tailoring shop and subsequently both of them started loving each other. Even though accused was married he has misrepresented the victim that he is unmarried and that he would marry her. He used to take her in the evening and used to roam around until midnight. About eight months prior to complaint, he has taken her to his house at Balapur and forcibly committed sexual assault inspite of her resisting by making false promise that he would marry her. The neighbors also enquired the accused on which he told in the presence of victim that he is going to marry her. He used to take her regularly to his house and exploited her sexually. Later, victim and her family members realized that the accused was already married and having two children and that accused has denied to marry the victim again. On 11-11-2016 victim made an attempt to commit suicide, later filed a complaint before the police.

2.Police registered a case in Cr.No.221/2016 for the offences under Sections 376, 417 and 420 of IPC and in the course of investigation, police have recorded the statement of the victim, her mother, brother, neighbors of the accused’s house, the victim and the accused were taken to the hospital for medical examinations, the material was collected from the victim and sent to FSL, 164 Cr.P.C statement of the victim was also recorded, panchanama of scene of offence was conducted, after collecting the reports from FSL, Final Report was also given by the concerned Medical Officer on which charge sheet is filed by the police.

3.Cognizance of the case was taken against the accused for the offences punishable under Sections 376, 417 and 420 of IPC and numbered the same as PRC

No.01/2018 on the file of the XVI Additional Chief Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the case documents were furnished to him as contemplated under Section 207 of Cr.P.C before the trial court. Since the offence under

Section 376 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Metropolitan Sessions Judge, Hyderabad, by following the due procedure as contemplated under Section 209 Cr.P.C.

4.The case was registered as S.C No.340/2018 by the Hon'ble

Metropolitan Sessions Judge, Hyderabad, and made over the same to this court for disposal according to law. On appearance of the accused and upon hearing both sides, charges under Sections 376, 420 and 417 of IPC are framed against the accused, read over and explained to him, wherein the accused denied the charges, pleaded not guilty and claimed to be tried.

5.During the course of trial, the prosecution has examined PWs 1 and 2 and exhibited Exs.P1 to P10 and marked MOs 1 to 3. After the closure of prosecution evidence, Accused was examined under Section 313 Cr.P.C by explaining the incriminating material appearing against him from the prosecution evidence and he denied the same and reported no defence evidence. No document is marked on behalf of his defence.

6.Heard arguments on both sides and perused entire material on record.

7.Now the point for determination is:

“Whether the prosecution is able to establish the guilt of the

accused for the offences punishable under Sections 376, 420

and 417 of IPC, as alleged beyond reasonable doubts?”

POINT :-

8.The accused was charged for the offences under Sections 376, 420 and 417 of IPC. As seen from the memo of evidence, the prosecution has in all cited 15 witnesses. The victim was examined as PW1 and Inspector of Police was examined as

PW2. After recording the evidence of PW1, the learned Public Prosecutor felt it not required to examine LWs 2 to 14 and all of them were given up.

9.PW1 is the victim in this case, prime witness who has stated to the police under Section 161 Cr.P.C and also under Section 164 Cr.P.C about the offences committed by the accused. She also filed complaint before the police under Ex.P1. However, when she has appeared before the court she has deposed against the prosecution version stating that though she lodged the complaint before the police against the accused it was under a mistake notion on the wrong advise of third person. She has gone to the extent of denying the contents of Ex.P1 and stated that except her signature she cannot identify anything in Ex.P1. She has also asserted positively that accused has not committed any offence and she has no grievance against him. She also further deposed that police never examined her.

10.Considering the nature of evidence of PW1 in her chief examination, the learned Additional Public Prosecutor sought permission of the court to cross-examine the witness after declaring the witness hostile to the prosecution. On giving the permission, the learned Public Prosecutor tried his level best to elicit incriminating evidence against the accused but in vain. A suggestion was given that her statement was recorded by the police as in Ex.P2 but she denied. Considering the evidence of PW1, it is clear that PW1 being victim who was supposed to speak about the offence of sexual assault allegedly made by the accused on the false promise of getting her married could not depose anything against the accused to prove the charges framed against the accused.

Therefore, the evidence of PW1 will not in any way help to the prosecution.

11.PW2 is no other than the Investigating Officer. He has deposed about the line of investigation right from filing of complaint by PW1 before LW14, S.I of Police by name Vijay Krishna, sending the victim to Niloufer Hospital for examination and also sending the victim to Bharosa Center where Woman S.I of Police/LW6 has recorded the statement of the victim, also deposed about visiting the scene of offence at Nadergul village wherein in the presence of Lws 10 and 11, seized the chunni of the victim which is marked as MO.1 and another chunni under MO.2 and T-Shirt as MO.3. He also deposed about apprehending the accused, sending him for medical examination and producing him before the court. His evidence further go to show with regard to getting 164 Cr.P.C statement of the victim recorded, getting Potency Test conducted, drawing of seizure panchanama under Ex.P7, rouch sketch under Ex.P8, FSL Report under Ex.P10 and Final

Opinion under Ex.P9. Finally he spoke about filing of charge sheet on completion of investigation.

12.In the cross-examination of PW2, the learned counsel for the accused has suggested that he never visited the scene of offence and accused is innocent, all the documentary evidence and material objects were planted to fix the accused in this case but all the suggestions of the accused were denied by the Inspector of Police.

13.On analysis even the evidence of Inspector of Police/PW2 also will not rescue the prosecution from getting the accused out of charges. PW2 cannot be found fault as

PW1 herself has not supported the prosecution. Similarly the prosecution has not made an attempt to prove the charges through circumstantial witnesses and through scientific evidence. Therefore, nothing remains for this court to go against the accused.

14.In the result, Accused is found not guilty for the offences punishable under

Sections 376, 420 and 417 of IPC and he is acquitted under 235(1) of Cr.P.C. for the said offences. The bail bonds of the accused, if any, shall be in force for a period of six months. The MOs 1 to 3 shall be destroyed after expiry of appeal period.

Dictated to Gr-I Stenographer of XII AMSJ Court, transcribed and typed by

her, corrected and pronounced by me in the open court, on this the 24th day of September, 2021.

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF

WITNESSES EXAMINED FOR PROSECUTION:

PW1- Shalini PW2 - M.Suman Kumar

WITNESSES EXAMINED FOR DEFENCE:

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1 - Complaint Ex.P2 – Signature of victim on the statement recorded Ex.P3 – FIR Ex.P4 - Complaint given by PW1 Ex.P5 – 164 Cr.P.C statement of PW1 Ex.P6 – Potency Report Ex.P7 – Seizure of Panchanama dated 15.11.2016. Ex.P8 – Rough Sketch Ex.P9 – Final Opinion Ex.P10 – FSL Report.

MATERIAL OBJECTS MARKED :

M.O.1 – Mixed Colour Chunni. M.O.2 – Sky Blue colour chunni M.O.3 – Brown Colour T-shirt

XI ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.