THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI CRIMINAL APPEAL NO. 1392 OF 2014 JUDGMENT: (Per Hon’ble Sri Justice N. Tukaramji)

This appeal is filed by the sole accused/convict/appellant (hereinafter, ‘the accused’) challenging the judgment of conviction and sentence dated 09.06.2014 in S.C.No.688 of 2013 passed by the V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad.

2. In the impugned judgment, the accused was convicted for the offences under Sections 376 and 324 of the Indian Penal Code, 1860 (for short, the ‘IPC’) and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.1,000/- in default simple imprisonment for one year for the offence under Section 376 IPC, and rigorous imprisonment for two years and pay a fine of Rs.500/- in default simple imprisonment for six months for the offence under Section 324 IPC.

3. We have heard Mrs. T. Bala Jayasree, learned Legal Aid Counsel for the appellant, and Mr. Syed Yasin Mamoon, learned Additional Public Prosecutor for the respondent-State.

4. The prosecution case, in brief, is that on 17.04.2012 in the evening at about 5:45 p.m., when the victim girl/PW-2 went to a shop in her residential locality to purchase some stationery items, i.e., a scale, pencil, and rubber, and while returning, a person/accused introduced himself. After a brief talk, he took her to the rock side bushes situated at Chinna Kamela, gave her Rs.200/-, removed her clothes, bite on her chest and lips, closed her mouth to stop her cries, pushed her down, laid over her, and forcibly tried to have intercourse, however, he left her. Thereafter, the victim girl/PW-2 returned home and informed her mother/the de facto complainant/PW-1 about the incident. After a short search to trace the accused, a police report was lodged.

5. Thereupon, Crime No.53 of 2012 was registered by the Police Station, Thirumalaghery, and after due investigation, the charge sheet was laid against the accused under Sections 376 and 324 IPC.

6. The XI Additional Chief Metropolitan Magistrate, Secunderabad, took cognizance of the offences under Sections 376 and 324 IPC and committed the matter to the Sessions Division under P.R.C.No.32 of 2013.

7. Thereafter, the Sessions Case was registered and made over to the trial Court. In the trial, the prosecution examined PWs.1 to 15 and marked Exs:P-1 to P-13.

8. The incriminating material was confronted to the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short, the ‘Cr.P.C.’). Though the accused denied the material evidence against him, he did not choose to put up any defence evidence.

9. The learned Sessions Judge, after analyzing the evidence, concluded that the accused was found guilty of the offences under Sections 376 and 324 IPC, recorded the conviction, and sentenced him as mentioned above.

10. Aggrieved by the impugned judgment of conviction and sentence, the accused preferred this appeal.

11. Learned counsel for the accused contended that the Court below ought to have observed the variance in the versions of the material witnesses as to the time of occurrence. The contradictions and omissions in the statements of the witnesses under Section 164 of the Cr.P.C. and in the evidence before the Court should have been taken into account. Particularly, with regard to the identity of the accused, the victim had referred to one Ramesh as the assailant, but the name of the accused is quite distinct, and the identification of the victim in the test identification parade could have been by tutoring. Howsoever fairly admitted that the medical evidence points to some occurrence, the evidence on record falls short in proving the involvement of the accused. The evidence of the shopkeeper/PW-8 discloses that he had previous acquaintance with the accused, whereas in his statement under Section 164 of the Cr.P.C., he mentioned the accused as a stranger. Further, the evidence of PW-3 to connect the accused’s visit to the shop