Dr. Ajaaz Habib Qureshi vs State Of Telangana

This appeal is filed against the Judgment dated 20.01.2014 in S.C.No.57 of 2010, passed by the learned V – Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad.

The case of the prosecution is that accused alleged to have committed sexual assault against the victim girl, aged about 7 years. To prove the guilt of the accused, prosecution examined P.Ws.1 to 21 and marked Exs.P1 to P22 on their behalf and also marked M.Os.1 to 19. Exs.D1, D.2 and X1 were marked on behalf of the accused. The trial Court after considering the oral and documentary evidence on record, found accused guilty and convicted him under Section 235(2) of Cr.P.C and sentenced him to undergo R.I for 7 years and to pay a fine of Rs.2,000/-, in default to suffer S.I for 1 year for the offence under Section 363 of IPC, and sentenced to undergo R.I for 10 years and to pay Rs.2,000/-, in default to suffer S.I for 1 year for the offence under Section 307 of IPC and sentenced him to undergo R.I for life and also to pay fine of Rs.2,000/-, in default to suffer S.I for 1 year for the offence under Section 376 of IPC and all the offences should run concurrently. Aggrieved by the said Judgment, accused preferred the present appeal.

The learned Counsel for the appellant/accused mainly contended that the motive for the said offence is not proved by the prosecution. The trial Court failed to see that the material available on record disproves the alleged offence. The child witness cannot be believed to base conviction without any corroborating evidence and there is no legally acceptable evidence. The prosecution failed to prove the guilt of the accused beyond reasonable doubt. P.Ws.1 and 2 did not disclose that appellant kidnapped the victim girl from her house or from their lawful custody. He also contended that P.Ws.1 to 3 and P.Ws.5 to 9 are circumstantial witnesses. Therefore, requested the Court to set aside the Judgment and decree passed by the trial Court.

P.Ws.1 and 2 are the parents of the victim girl. They stated that at the time of incident, their daughter was aged about 7 years and she was studying 2nd class. On 10.03.2008, at about 12:00 noon, they sent their daughter to Sabji Mandi to purchase Mirchi Bajji, but she did not return till 2:00 PM, as such P.W.1 gave complaint under Ex.P1 for missing of her daughter. On the next day at about 6:00 AM, neighbours told that some girl was found in Erukala basthi. They went there and came to know that she was shifted to Police Station and thus they went to Police Station and found their daughter with bleeding injuries on the forehead and ligature mark on the neck. There was no Pyjama and Chappals. They also found bleeding from Genital organ, as such P.W.2 enquired the victim girl. She stated that one boy took her to Mill and committed rape on her and also stated that he throttled her neck and beat her with a stone and thus he again gave complaint under Ex.P2.

P.W.3 is the boy aged about 12 years as on the date of evidence. He had seen the victim girl going along with somebody else on 10.03.2008.When he called her, she stated that she will return in short time. He clearly stated that he could not identify the boy with whom she went on that day. P.W.4 is the victim girl. The learned Judge, after posing preliminary questions to her, she was examined in-chief. She stated that she was having three brothers and one sister. On 10.03.2008, when she went to Sabji Mandi she found a person. He stated that her father instructed her to purchase books and chocolate for her and asked her to accompany with him. She found P.W.3 when she was proceeding along with him. He took her to a mill and compelled to drink alcohol. When she refused, he beat her with a stone on the left side of her forehead and also tried to strangulate her with her ribbon. He inserted stick in her private parts. When she became unconscious, he committed sexual assault and later left the place of offence. She regained consciousness and came out of the mill by jumping over the wall. Then she found a person and requested him to drop her at Sabji Mandi and accordingly, he dropped her at Erukala Basthi. The Police took her from there and her parents came to Police Station and took her to Osmania General Hospital. She also stated that she can identify the person who had sexually assaulted her and she identified the witness in the Court. Some of the contradictions were elicited in the Cross-examination. She has not stated the name of the person with whom she went to the mill as Mohd.Shahid, but she stated his name as Abdulla. She stated that when he received a phone call, he replied ‘Abdulla bath kar raha hu’. She has not given any descriptive details of the offender and she has no prior acquaintance with him. She has seen him in the Court on 17.10.2012. When she came to the Court with her mother, her mother showed the accused to her.

P.W.5 is the person, who noticed the victim with bleeding injuries. P.W.6 on noticing her with bleeding injuries, informed to the police. P.W.7 at the request of victim girl, dropped her near Erukala basthi. P.W.8 was running Kirana Shop. He stated that accused came to his shop at about 3:00 PM on 10.03.2008 and purchased one water bottle and an oil bottle from his shop. He also stated that he has no acquaintance with the accused prior to that. P.W.9 stated that he had seen the accused going along with one girl aged about 7 years. On the next day, when he had seen the news item, he went to the hospital, but it was elicited in the Cross-examination that news item was published in the ‘Munsif’ paper dated 15.03.2008. P.W.10 is the panch witness for scene of offence panchanama and it was marked under Ex.P3. He stated that Ex.P4 is the rough sketch and M.Os.1 to 19 were marked in his presence. In the Cross-examination, he stated that Exs.P3 and P4 were prepared in Police Station and his signature was obtained there. P.W.11 is the panch witness for confession panchanama under Exs.P5 and Ex.P6 seizure report was also marked through him. He stated that M.Os.15 to 19 were marked at the instance of the accused, but in the Cross-examination he stated that Exs.P5 and P6 were prepared in the Police Station and obtained his signature there. P.W.12 is the Scientific Officer, who assisted the police and collected material objects from the scene of offence. P.W.13 is the nodal officer through whom Exs.P7 and P8 were marked. As per the call details, there was incoming call to the cell phone of the accused at about 3:44 PM. P.W.14 is the Assistant Professor, who conducted medical examination and she opined that all the injuries are suggestive of severe sexual assault. She issued medical certificate under Ex.P9 and also stated that victim girl undergone colostomy (major surgery). She also stated that entire posterial wall of the veginas and perineum and anterior wall of rectum shattered with local slough formation. Anal sphincter muscles could not identified totally lost. P.W.4 stated that she was in hospital for 4 or 5 months.

P.W.15 is the learned Family Court Judge, Khammam, who was called to record Dying Declaration, as she was not in fit state of mind and drowsy, he could not record her statement. The proceedings of recording the statement was commenced at 3:40 PM and concluded at 4:10 PM. Ex.P12 is the Dying Declaration proceedings. P.W.16 is the Head Constable, who received information that 7 years girl was in unconscious state of mind in Erukal basthi. On such information, he deputed other police and they went to the spot and shifted the said victim girl to the Police Station. P.W.17 is the constable, who went to the spot and found the girl in unconscious state with bleeding injuries on her neck and other parts of the body and shifted the injured in rakshak vahan. P.W.18 is the Associate Professor, who treated the accused for 15 days as he was admitted in the mental care hospital and the accused was found with antisocial personality disorder with no evidence of major mental illness, but initially he was dull, as such he was given medication and subsequently it was reduced. He does not require any inpatient treatment or medication.

P.W.19 is the Assistant Professor, who examined P.W.4 as she sustained head injury and gave neurological opinion after complete evaluation under Ex.P14. P.W.20 is the Inspector of Police, who registered complaint on 10.03.2008, and issued FIR under Ex.P15. He had also received another complaint from P.W.1 and altered the section of law from girl missing to Section 361, 307 and 376 of IPC and filed alteration memo, which was marked under Ex.P16. Ex.P17 is the English translation of Ex.P2 as it is in Urdu language. P.W.21 is the Deputy Superintendent of Police, who conducted investigation, examined the witnesses and filed charge sheet. In his Cross-examination, it was found that there are contradictions in the evidence of P.Ws1 and 4.

The learned Counsel for the accused argued that there was no identification parade. The victim girl had seen the accused on 10.03.2008 and again she identified him in the Court after four years. She has not given any descriptive particulars. She has identified the accused at the instance of her mother. Moreover, she has stated the name of the accused as Abdullah, though his actual name was Shahed. She has no prior acquaintance with him. Prosecution failed to prove the identity of the accused. No doubt, the test identification parade was not conducted in this case, but the victim was aged about 7 years at the time of incident. The accused took her from Sabji Mandi to Apco mill in the afternoon and committed offence at about 3:00 PM and thus she has ample opportunity to see him. Merely because she identified him in the Court after four years, it cannot be said that she identified the accused at the instance of her mother. She had seen him in a broad day light for sufficiently longer period, as such there is no difficulty for her to identify him in the Court and the argument of the learned Counsel for the accused cannot be accepted. No doubt, the learned Counsel for the accused elicited certain contradictions in the evidence of P.W.1. There are certain omissions and contradictions in the evidence of P.W.4 and also in the evidence of P.Ws.1 and 2, but they will not go into the root of the offence.

The main allegation made by P.W.1 against the accused is that he took her daughter to Apco mills, beat her on forehead and also on the neck with stone and committed sexual assault on her. Several circumstantial witnesses were examined to establish the chain of circumstances. When he committed offence, the victim girl became unconscious and when he left the place, later she came out of the mill and asked a person to drop her in Erukal basthi and accordingly P.W.7 dropped her in Erukal basthi, but P.W.7 in his evidence stated that he dropped her at her parent’s house near Brahmamgari Temple in Erukal basthi. The said Erukal basthi is nearer to her house, as such he might have stated that he dropped at her parent’s house. In fact, from Erukal basthi she was taken to the Police Station, her parents met there and found her with bleeding injuries and shifted her to hospital. As per the evidence of P.W.18, accused was found with antisocial personality disorder and there was no evidence of major mental illness. He lured the child aged about 7 years and took her to a mill, where there was no other person and committed sexual assault on her and left the place. It was also brought in evidence that accused purchased water bottle and oil bottle prior to the incident from P.W.8.

No doubt, the Panch witness for confessional panchanama and scene of offence panchanama turned hostile. P.W.4 stated the name of accused as Abdulla as he answered the phone call with the said name. The nodal officer was also examined to prove the incoming call to the cell phone of the accused at that time. The accused had taken away the minor child from the lawful custody of the parents without their consent and knowledge and thus it attracts Section 363 of IPC. He beat her on her forehead with a stone and strangled her neck with her ribbon and thus he committed offence under Section 307 of IPC. As she became unconscious, he thought that she died and left the place. Of course, he also committed sexual offence brutally against the minor child. He even inserted a stick in her private parts; as a result, there was much damage to her private parts, and she was hospitalized for 4 to 5 months and compelled to undergo colostomy surgery. P.W.14 stated that injuries sustained by P.W.4 are suggestive of severe sexual assault, as such the offence under Section 376 of IPC was also proved against the accused. The trial Court considering the evidence on record rightly convicted the accused for the offences kidnap, attempt murder and also sexual assault under Section 376 of IPC, but accused was in jail from 20.01.2014. Therefore, this Court finds that it is just and reasonable to modify the sentence of life imprisonment given under Section 376 of IPC to 10 years and all the sentences shall run concurrently.

In the result, the Criminal Appeal is partly allowed, modifying the conviction and sentence passed by the learned V - Additional Metropolitan Sessions Judge (Mahila Court), against the appellant/accused for the offence punishable under Section 376 of IPC, by judgment dated 20.01.2014 in S.C.No.57 of 2010, from life imprisonment to 10 years and all the sentences shall run concurrently. M.Os.1 to 17 shall be destroyed after the expiry of appeal time and M.Os.18 and 19 shall be confiscated to the State.

Pending miscellaneous petitions, if any, shall stand closed.