HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.408 OF 2009 Between:
Voora Lingaiah @ China Lingaiah. ... Appellant And State of Andhra Pradesh, rep. by its Public Prosecutor. ... Respondent DATE OF JUDGMENT PRONOUNCED: 23.08.2022 Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No.408 of 2009
% Dated 23.08.2022
# Voora Lingaiah @ China Lingaiah. ... Appellant
And
$ State of Andhra Pradesh, rep. by
its Public Prosecutor. ...Respondent
! Counsel for the Appellant: Sri G.M.Ravi Kumar. ^ Counsel for the Respondent: Public Prosecutor >HEAD NOTE:
? Cases referred 1995 (1) ALD 20 (D.B) 3 HON'BLE SRI JUSTICE K.SURENDER Criminal Appeal No.408 of 2009
1. The appellant was convicted for the offence under Section 376(2)(f) of IPC and sentenced to undergo rigorous imprisonment for a period of ten years vide judgment in S.C.No.210 of 2008 dated 20.01.2009 passed by the Assistant Sessions Judge at Nalgonda. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that on 22.08.2007, P.W.1 who is the mother of the victim girl-P.W.2, lodged complaint stating that the victim was six years old and the appellant had committed rape on 19.08.2007. The police investigated the case and filed charge sheet accordingly.
3. P.W.1, the mother of the victim girl stated that on the date of the incident all the family members went to coolie work and P.W.2 was in her house. They returned home in the evening around 5.00 p.m. and when P.W.1 was preparing P.W.2 for bath as usual, P.W.2 complained of stomach pain. On enquiry, P.W.2 informed that the appellant took her to his 4 house removed her underwear and laid her on a cot and slept on her. P.W.2 and others questioned the appellant regarding the said act of the appellant, on which the appellant threatened P.W.1 and others. The caste elders were informed and when the appellant was summoned, he threatened all of them, for which reason, P.W.1 lodged the complaint. P.W.1 denied the suggestion that due to family disputes, a false case was filed.
4. P.W.2 is the victim girl, who stated that on the date of incident, the appellant gave one rupee, caught hold of her hand and took her into his room and thereafter removed her underwear and laid her on the cot and he also laid on her. When P.W.2 requested the appellant not to do anything, the appellant promised to give one more rupee if P.W.2 slept there. Immediately P.W.2 came out of the house, ran towards her friends. The appellant threatened P.W.2 not to inform to anyone. Thereafter, P.W.1 took P.W.2 to the hospital.
5. Learned counsel for the appellant submits that the appellant was juvenile at the time of the incident. He referred 5 to the complaint given by PW1, in which, she mentioned the age of the appellant as 17 years. The appellant filed I.A.No.1 of 2022 under Section 391 of Cr.P.C requesting this Court to receive the age certificate issued by the Doctor as additional evidence. The certificate was issued on 06.08.2022 by the Doctor on the basis of Aadhar card as 15.07.1990. When questioned, the learned counsel for the appellant submits that there are no hospital records or municipal records which are provided at the time of birth to confirm the exact date of birth.
6. The date of birth mentioned in the Aadhar card would be on the basis of the declaration made by the appellant or his parents. In the said circumstances, it cannot be conclusively said that the date mentioned in the Aadhar card is the correct date of birth. For the said reason, the certificate provided by the learned counsel for the appellant cannot be looked into to adjudicate upon the age of the appellant.
7. Alternately, learned counsel for the appellant submits that appellant should be sent for ossification test to determine the age of the appellant. He also relied upon the judgment of 6 this Court in the case of Bandela Ailaiah v. The State of Andhra Pradesh1, wherein this Court found that if a person is a juvenile, the competent court to try the offence would be the juvenile court and not regular court. In the said case, the appellant was aged 13 years when he was taken before the Magistrate and completed 14 years of age when the trial commenced. Even when the matter was heard by this Court, the appellant was 16 years and three months. Accordingly, this Court quashed all the proceedings before the regular court and directed that the appellant therein has to be tried in accordance with the Juvenile Justice Act, 1986 before the Court constituted for the said purpose.
8. The aforesaid judgment is not applicable to the facts of the present case. It was the complainant/P.W.1 who mentioned the age of the appellant as 17 years in the complaint. When the appellant was taken before the Magistrate, no such claim was made regarding the age of the appellant. It was stated in the charge sheet that he was aged 1 1995 (1) ALD 20 (D.B) 7 18 years and when he was tried before the Special Court also, there was never any claim by the defence or the appellant before the Court that he was aged less than 18 years. In the said circumstances of the case, the request made by the learned counsel for the appellant to send him for ossification test at this juncture is of no use to determine the age of the appellant. Even according to the learned counsel for the appellant, the appellant was aged around 17 years and one month, which age is based upon the declaration and not based upon the certificate issued by the Doctor or the municipal authorities. In case of ossification test, the Hon'ble Supreme Court held that the exact age cannot be determined by ossification test and the age can be assessed as(+) or (-) two years of the assessed age. For the said reasons, no useful purpose would be served even if this appellant is sent for ossification test as prayed for. The claim that the appellant was a juvenile is made for the first time after 15 years of the incident during appeal. No such ground was raised when the appeal was filed in the year 2009.
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9. P.W.2 victim has stated that the appellant took her to his house and removed her cut drawer and the appellant also removed his underwear and laid on her. The final opinion issued by the Doctor is as follows:
"Final opinion: As per my preliminary report & RFSL report SER/856/2007, dated 06.11.2007, the accused might have been tried to do sexual intercourse on victim girl."
10. Medical examination was conducted on 22.08.2007 and the alleged incident took place on 19.08.2007. The evidence of the Doctor suggests that the appellant might have tried to have sexual intercourse with the victim girl. However, no specific signs and no evidence of either penetration is given by the victim girl nor the Doctor, who examined the victim girl stated that there was any penetration attempt made on the victim girl. In the said circumstances, when the evidence is only to the effect that the victim girl's cut drawer was removed and the appellant also removed his drawer and laid on her, without there being any evidence of partial penetration except stating that the appellant had laid on her, the offence is one of attempt to rape, punishable under section 376(2)(f) R/W 511 of IPC.
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11. The alleged incident is of the year 2007 and nearly 15 years have lapsed. The appellant has parents, who are dependent on him. In the said circumstances, the appellant is sentenced to undergo rigorous imprisonment for a period of five years under Section 376(2)(f) R/W 511 of IPC. The period of judicial custody shall be set off under Section 428 of Cr.P.C.
12. Accordingly, the Criminal Appeal is partly allowed.
__________________ K.SURENDER, J Date: 23.08.2022 Note: LR copy to be marked.
kvs 10 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.408 OF 2009 Date: 23.08.2022 kvs