Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
As per the evidence of P.W. 19 Scientific Officer, who issued Ex. P-31 opinion, there is no morphing. Hence, the contention of the learned counsel for the accused that there is morphing in the C.D., in the light of evidence of P.W. 19 and in the absence of any motive on the part of P.W. 1 to implicate them, is liable to be rejected.
40. Further the contention of the learned counsel for the accused A-1 to A-10 is that the evidence of C.D. and the evidence of P.W. 19 are inadmissible in evidence under the provisions of Section 65-B of the Indian Evidence Act. He further contended that as there is no voice evidence on record to prove M.O. 7 is used by A-1 calling the other accused and further there is no material on record to show that M.O. 7 cell phone belongs to A-1, they cannot be convicted. In the present case, as noted above, the crime C.Ds. were sent to FSL and after scientific examination by P.W. 19 with the assistance of other officers, opined that there is no morphing and issued Ex. P-31 and this circumstance corroborates the oral testimony of P.W. 1. The seizure of M.O. 7 from A-1 was made as per his confession in the presence of panch witness P.W. 13, who supported the case of the prosecution. Apart from confession, the other circumstances, particularly the evidence of P.W. 19, who issued Ex. P-31 report based on scientific examination and the consistence evidence of P.W. 1, which is inspiring confidence and in the absence of any motive for P.W. 1 to implicate the accused, the contention of the learned counsel for these accused, merits for rejection.
Equivalent Citation: 2015 (3) ALT (Crl.) 91 (A.P.),2015(4)crimes343 AP
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Crl. A. Nos. 576, 586 and 588 of 2010
Decided On: 08.04.2015
Peddi Phani Kumar and Ors.
Vs.
State of A.P.
Coram:G. Chandraiah and M.S.K. Jaiswal, JJ.
1. The accused are A-1 to A-14. A-1 to A-9 were charged for the offence punishable under Sections 366, 376(2)(g), 294(b), 292 I.P.C. and Section 66 of the Information Technology Act, 2000. A-10 was charged for the offence punishable under Sections 366, 376(2)(g) read with 109 of I.P.C. and A-11 to A-14 were charged for the offence punishable under Sections 66 and 67 of the Information Technology Act, 2000 and Section 6 of Indecent Representation of Women (Prohibition) Act, 1986. The trial court - II Additional Sessions Judge (FTC) Khammam, in S.C. No. 483 of 2009, by judgment dated 15.4.2010, found A-1 to A-9 guilty for the offence punishable under Sections 366, 376(2)(g) and 292 I.P.C. and Section 66 of the information Technology Act, 2000. For the offence punishable under Section 366 I.P.C., A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of ` 1,000/- and in default to suffer simple imprisonment for one month each. For the offence punishable under Section 376(2)(g) IPC, A-1 to A-9 were sentenced to suffer imprisonment for life and to pay a fine of ` 2,000/- and in default to suffer imprisonment for a period of two months each. For the offence punishable under Section 292 IPC, A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of `1,000/- and in default to suffer simple imprisonment for one month each. For the offence punishable under Section 66 of the Information Technology Act, A-1 to A-9 were sentenced to suffer rigorous imprisonment for a period of three years each. For the offence punishable under Section 366 IPC, A-10 was sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of ` 1,000/- and in default to suffer simple imprisonment for one month. For the offence punishable under Section 376(2)(g) read with 109 IPC, A-10 was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of ` 2,000/-, in default to suffer simple imprisonment for two months. For the offence punishable under Section 66 of the Information Technology Act, 2000, A-11 to A-14 were sentenced to suffer rigorous imprisonment for a period of three years each. For the offence punishable under Section 67 of the Information Technology Act, 2000 A-11 to A-14 were sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of ` 5,000/- and in default to suffer simple imprisonment for a period of five months each. For the offence punishable under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, A-11 to A-14 were-sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 1,000/- and in default to suffer simple imprisonment for a period of month. All the sentences imposed on the accused A-1 to A-14 were made to run concurrent and the accused A-11 to A-14 were given the benefit of set off under Section 428 I.P.C. Aggrieved by the conviction and sentence, A-1 to A-9 filed Crl. A. No. 588 of 2010. A-10 filed Crl. A. No. 586 of 2010 and A-11 to A-14 filed Crl. A. No. 576 of 2010.
2. The gravamen of the charge is that on 17.2.2007 at about 11-00 hours, A-1 to A-10, forcibly taken the de facto complainant in the auto to a forest area, and A-1 to A-9 committed rape on the de facto complainant P.W. 1 forcibly, one after the other and behaved in an inhuman manner and A-10, having the knowledge that the other accused are going to commit the offence, abetted them by facilitating the other accused and further accused photographed the offence with the help of sony ericsson cell phone being used by A-1. The accused threatened the de facto complainant with dire consequences of repeating the offence and killing her, if she informs the incident to any one and out of fear she kept quiet. Subsequently over a period of about two years from the date of incident on 4.1.2009, when the de fact complainant was going to her friends house, the accused A-1 to A-9 required the de facto complainant to fulfill their sexual lust and threatened her that if she failed to do so, they will distribute the rape scenes video graphed by them during committing the offence, to the public and so saying, they threw one C.D. at her and went away. The de facto complainant on watching the said C.D., at her house, having found the offence committed on her, felt humiliated and informed to her parents, which lead to the filing of the complaint. A-11 to A-14 converted the obscene photographs of the victim girl into CDs and were circulating the same to the public and hence they were charged for the offences under Information Technology Act and Indecent Representation of Women (Prohibition) Act, 1986. The trial court, as noted above, convicted and sentenced them.
3. Since all the appeals arise out of the judgment dated 15.4.2010 in S.C. No. 483 of 2009 on the file of II Additional Sessions Judge (FTC), Khammam, they are heard together and are being disposed of by this common judgment.
4. The case of the prosecution is that the victim girl/de facto complainant (P.W. 1) was minor at the time of offence and she was studying intermediate lst year. She got acquaintance with A-1, as she used to travel in his auto frequently to attend the college. About two years back i.e., on 17.2.2007, she left the college at about 11-00 hours as she was not feeling well and boarded the auto of A-1 near her college at Laxmidevipally, to go to her home. A-10 accompanied A-1 by sitting beside him at the driver's seat. When the auto reached at Ganesh Temple, A-3 boarded into the auto. A-1 drove the auto slowly making phone calls to the friends. A-8 boarded the auto when the auto reached near bridge. When she tried to get down the auto at her destination at S.C.C.L., Head Office, the accused persons gagged her mouth and A-1 drove the auto in high speed and proceeded towards Ramavaram outskirts, near the hillock of Gareebpet. A-10 gave his rug (woolen blanket) from the auto to A-1 and went away. After sometime, the friends of A-1, who were A-2, A-4, A-5, A-6, A-7 and A-9 came there on receiving phone calls from A-1 and all of them removed the clothes of victim girl and committed rape on her one after other. While committing rape, the accused had photographed the rape scene with the mobile phone of A-1 and threatened her with dire consequences to commit rape on her again and kill her, if she would reveal the incident to police or her parents and left her there at about 15-00 hours. After completion of committing the offence, A-10 came to the scene of offence on being called by A-1 and he took A-1, A-2, A-3 and A-8 in his auto and dropped them at their destinations. Though A-10 very much knew that the accused were going to commit the sexual assault on P.W. 1, abetted the accused in committing the offence, by facilitating them. Later P.W. 1 went to her house in another auto and did not disclose the incident to anybody due to fear of the accused.
5. On 4-1-2009 P.W. 1 had been to Ramavaram to meet her friend. On the way, A-1 to A-9 approached her and demanded her to follow them stating that they had taken her photographs while committing the sexual assault on her, with the help of cell phone and converted the same obscene photos into the C.D. Further, they threatened her stating that they would circulate the same obscene photos in the CDs to the public and threw a CD at her person. She took the CD to her house and watched the obscene photographs of the incident, which occurred two years ago. Due to humiliation of the accused, she narrated the incident to her parents. A-11 to A-14 converted the obscene photographs of the victim girl into CDs and were circulating the same to the public.
6. On receipt of the petition from P.W. 1, the de facto complainant, M. Ramesh (L.W. 22), SI of Police, Kothagudem II Town Police Station, registered a case in Cr. No. 2/2009 under Sections 366(A), 376(2)(g) I.P.C. and issued express FIRs to all the concerned officers and took up investigation of the case. During the course of investigation, the SI (L.W. 22) examined P.Ws. 1, 2, Vavilala Shiva Rama Krishna Shastri (L.W. 3), Salaka Maruthi Ram (L.W. 4) and P.Ws. 3 and 4 and recorded their statements, drafted crime details form depicting rough sketch of offence in the presence of mediators P.Ws. 10 and 11, referred the victim to Government Area Hospital, Kothagudem, for medical examination and report, as the Circle Inspector was on other duty. Based on the facts of the case, Section 67 of Information Technology Act and Section 6 of Indecent Representation of Women (Prohibition) Act, 1986, were added and sent the additional memo to the concerned. On receiving the copy of additional memo from S.I. (L.W. 22), Sub Divisional Police Officer (SDPO), Kothagudem - P.W. 18, took up the investigation of the case after returning from Bhadrachalam Mukkoti Bandobust duty. During the course of investigation, he verified the investigation of S.I. and found it on correct lines. P.W. 18 examined P.Ws. 1, 2, L.Ws. 3 and 4 and P.Ws. 3 and 4 and they stated the same facts as recorded by L.W. 22 and as such, their statements were not reduced into writing. P.W. 18 subsequently examined Vavilala Satyavani (L.W. 7), P.Ws. 5, 6, 7, 8 and 9 and recorded their statements. Visited the scene of offence. Arrested A-1 to A-10 on 7.1.2009 and A-11 to A-14 on 13.1.2009. Seized cell phone from A-1, which was containing obscene photographs of the victim, which were taken while committing the rape on the victim. At the instance of A-1, P.W. 18 seized, one CD each from A-7 to A-9, which were containing obscene photographs of victim and the accused, which were taken using mobile phone camera while committing rape on the victim, one CD containing obscene photos of the victim during the offence from A-12, one CD containing obscene photos of the victim during offence. P.W. 18 also seized, computer hard disk from A-13, one CD containing obscene photos of the victim during offence, computer, hard disk from A-14 under a cover of confession and seizure panchanama and remanded them to judicial custody. Further seized the crime vehicle i.e., auto bearing No. AP 20 U 7262 which was used in the commission of offence in the house of P.W. 9 under a cover of seizure panchanama.
7. The Lady Medical Officer Dr. K. Bindu Jyothi (L.W. 21), examined the victim and issued report stating that "there is no evidence of sexual intercourse at the time of the examination of the individual". The First Additional Judicial Magistrate of First Class, Kothagudem recorded the statement of the victim P.W. 1 under Section 164 Cr.P.C. The VI Additional Junior Civil Judge, Warangal conducted test identification parade of A-1 to A-9 with P.W. 1, in which she has identified A-1 to A-9. The seized material objects were sent to FSL, Hyderabad for analysis and report. Thus, it is alleged that A-1 to A-9 committed an offence punishable under Sections 366, 376(2)(g), 294(b), 292 IPC, Section 66 of the Information Technology Act, 2000, A-10 committed an offence punishable under Sections 366, 376(2)(g) read with 109 I.P.C. and A-11 to A-14 committed an offence punishable under Sections 366, 376(2)(g) read with 109 I.P.C. and A-11 to A-14 committed an offence punishable under Sections 66 and 67 of the Information Technology Act, 2000 and Section 6 of Indecent Representation of Women (Prohibition) Act, 1986. After completion of investigation, the Sub-Divisional Police Officer, Kothagudem laid the charge sheet.
8. The plea of the accused is of total denial.
9. To prove its case, the prosecution examined P.Ws. 1 to 19 and Exs. P-1 to P-36 and M.Os. 1 to 14 were got marked and on behalf of the defence, no witness was examined, but Exs. D-1 and D-2 were marked.
10. After closure of the prosecution evidence, the accused A-1 to A-14 were examined under Section 313 Cr.P.C. All the incriminating material in the evidence of the prosecution witnesses was put to the accused and they denied the same and pleaded that one Purna by showing the photos black mailed them. A-3 had taken the plea of alibi stating that he was at Hyderabad doing job and further A-11 to A-14 stated that no recoveries were made from them, but police filed false case against them.
11. At this stage, it is to be noticed that it is brought to the notice of this court that against Udara Purna Chander Rao @ Purna, Cr. No. 2/2009 on the file of II Town Police Station Kothagudem, was filed and registered as C.C. No. 130/2009 on the file of II Additional Judicial Magistrate of I Class, Kothagudem, for the offence punishable under 384 I.P.C. The allegations against the said Purna was that he had taken the photographs of the present de facto complainant in an obscene manner and converted them into CDs and showing the said CD, he has demanded an mount of ` 50,000/- from the de facto complainant in Cr. No. 2/2009, who is the brother of Shravanti/victim, and threatened that if the said amount is not paid, he would circulate the CD in the public. The II Additional Judicial Magistrate of I class, Kothagudem, by judgment dated 1.12.2010 in C.C. No. 139/2009 found the accused therein not guilty for the offence punishable under Section 384 I.P.C. and acquitted him of the said charge.
12. In the present case, the trial court based on the above material on record, famed the following issue for consideration:
"Whether the prosecution established the guilt for the offence u/s. 366, 376(2)(g), 294(b), 292 I.P.C. and Section 66 of the Information Technology Act, 2000 against A-1 to A-9, u/sec. 366, 376(2)(g) read with 109 I.P.C. against A-10 u/sec. 66 and 67 of the Information Technology Act, 2000 and Section 6 of Indecent Representation of Women (Prohibition) Act, 1986 against A-11 to A-14, beyond all reasonable doubt?"
13. Holding the accused guilty, as stated above, the trial court convicted and sentenced them. Aggrieved by the same, the present appeals are filed.
14. The learned counsel appearing for the appellants accused A-1 to A-10 Sri Nazeerkhan submitted that absolutely there is no legal evidence on record to convict the accused and the trial court relying on inadmissible portion of evidence, convicted the accused. He submitted that as per the version of the prosecution, the incident was alleged to have taken place on 17.2.2007 between 11-00 a.m. to 15-00 hours as per Ex. P-1 complaint. But the complaint was filed on 5.1.2009 and the explanation given was not convincing and hence the delay in lodging FIR is fatal to the case of the prosecution, since the delay may lead to introduction of exaggerated account or concocted story as a result of deliberations and consultations. In support of this contention, the learned counsel relied on the judgments reported in Ronald Kiprono Ramkat v. State of Haryana MANU/SC/0483/2001 : 2001 (2) ALT (Crl.) 234 (SC) : (2001) 6 SCC 423, Thummala Lova Raju v. State of A.P. 2009 (2) ALT (Crl.) 135 (DB)(A.P.) and State of A.P. v. M. Madhusudhan Rao MANU/SC/8160/2008 : 2009 (2) ALT (Crl.) 271 (SC) : 2009 (4) SCJ 354 : (2009) 4 SCC 354. He contended that as per the case of the prosecution A-10 had given the blanket to A-1, but the said blanket was not seized. Further, in the cross-examination of P.W. 1, she stated that A-3 is not there in the C.D. and that she has no acquaintance with A-3. This circumstances shows that A-3 is entitled for benefit of doubt. Further the photos of A-7 to A-9 are also not seen in the CD, which is admitted by P.W. 1. Therefore, they are entitled for benefit of doubt. With these submissions, the learned counsel sought to set aside the impugned judgment of the trial court.
15. The learned counsel Sri Narasimha Rao Gudiseva, appearing for A-11 to A-14 submitted that except the alleged confessions and the recoveries, which are not in fact recovered at the instance of these accused, there is no legal evidence on record to convict these accused. With these submissions, he sought to set aside the conviction and sentence imposed against A-11 to A-14.
16. On the other hand, the learned public prosecutor supporting the impugned judgment sought to dismiss the appeals.
17. To appreciate the rival contentions and to find whether the prosecution could prove the guilt of the accused, it is necessary to note the evidence available on record.
18. To prove the case of the prosecution, the de facto complainant-victim girl, was examined as P.W. 1. She deposed that she is a resident of Kothagudem, but at present residing at Hyderabad; during the year 2006-07, she joined intermediate I year at Margadarsi Junior College, Kothagudem; that every day, she used to attend the college in an auto; that her father was working in printing press in Main Office, Singareni Collieries, Kothagudem; on 17.2.2007 at 8-00 a.m., she went to attend the college; as she was suffering with ill health, came out of the college at 11 a.m. to go home; that the road is in front of the college and she came on the road; that at that time, the auto driven by Amar i.e., A-1 came on the road at 11-00 a.m.; that she boarded the said auto of A-1; that at that time, in the said auto Ramjan i.e., A-10 was also there in the auto; that immediately, she boarded the auto and the auto was started; that after they reached Ganesh temple, A-3 Vamsi boarded the auto; that again the auto reached near under bridge, sultan i.e., A-8 boarded the auto; that they sat by her side in the back seat of the auto; that when the auto reached near head office, Singareni collieries, she" asked the auto driver A-1, to stop the auto, as she want to get down from the auto, but he did not stop the auto; that at that time A-3 closed her mouth with his hands, then A-8 caught hold of her head and bent her head towards her front side; then the auto proceeded towards Ramavaram side; the auto was taken towards Garibpeta where Peddamma temple is there and it is a forest area; that after the auto was stopped, A-1, A-3 and A-8 dragged her.
