Maloth Rajesh vs The State Of Telangana
2021 Latest Caselaw 2396 Tel

              HONOURABLE JUSTICE G.SRI DEVI

                CRIMINAL APPEAL No.190 of 2019

JUDGMENT:

This appeal is directed against the judgment of the

learned Special Sessions Judge for Trial of Cases under Protection of

Children from Sexual Offences Act-cum-I-Additional Sessions

Judge, Khammam, in S.C.No.51 of 2015, dated 28.02.2019, whereby

the appellant/accused was found guilty of the offences punishable

under Section 6 of the Protection of Children from Sexual Offences

Act, 2012 and Section 366 of I.P.C. and accordingly convicted and

sentenced to undergo rigorous imprisonment for a period of Ten

years and to pay a fine of Rs.5,000/- in default, to suffer simple

imprisonment for a period of one year for the offence punishable

under Section 6 of the Protection of Children from Sexual Offences

Act, 2012 (for short "the POCSO Act") and also sentenced to

undergo rigorous imprisonment for a period of Ten years and to pay

a fine of Rs.5,000/- in default, to suffer simple imprisonment for a

period of one year for the offence punishable under Section 366 of

I.P.C. Both the sentences were directed to be run concurrently.

2. The case of the prosecution, in brief, is that on 26.07.2014

P.W.1 lodged a complaint with the police stating that his younger

daughter i.e., victim girl, aged about 16 years, studying Intermediate

1st year, went to college on 08.07.2014 at about 9.30 A.M., but she did

not return to house till the evening and that he searched for his

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daughter in every nook and corner and as such there was delay in

lodging the complaint. Basing on the said complaint (Ex.P1),

P.W.14-the then Head Constable, Kothagudem, registered a case in

Crime No.342 of 2014 under the head of 'girl missing' and issued

Ex.P11-F.I.R. Later, basing on the statement of P.W.3/victim girl,

P.W.13-the then Sub Inspector of Police, Kothagudem, altered the

Section of law by adding Sections 366, 376 (2) of I.P.C. and Section 6

of the POCSO Act. Ex.P10 is the alteration memo. On receipt of

Ex.P10, P.W.15-Inspector of Police, Kothagudem, recorded the

statements of P.Ws.1 and 2; P.W.3 was examined by P.W.11, which

was videographed by P.W.4; thereafter recorded the statements of

P.Ws.3, 4 and 11; collected Ex.P5-Study and Conduct certificate of

the victim girl; sent P.W.3 for medical examination; arrested the

accused at his house and sent requisition for conducting potency test

of the accused and collected the potency certificate. Thereafter,

P.W.15 visited the second scene of offence at Venkiryala Village,

prepared Crime Detail Form and rough sketch in the presence of

P.W.8 and another; sent P.W.3 for recording her statement under

Section 164 of Cr.P.C. and thereafter he handed over the case file to

P.W.16. After completion of investigation and collecting all the

material papers, P.W.16-the then Deputy Superintendent of Police,

Kothagudem, filed a charge sheet, which was taken cognizance as

S.C. No.51 of 2015.

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3. On appearance of the accused, charges under Section 6 of the

Protection of Children from Sexual Offences Act, 2012 and Section

366 of I.P.C. were framed against the accused, read over and

explained to him in Telugu, for which he pleaded not guilty and

claimed to be tried.

4. To substantiate its case, the prosecution examined P.Ws.1 to

16 and got marked Exs.P1 to P12. After closure of evidence, the

accused was examined under Section 313 Cr.P.C., with reference to

the incriminating circumstances appearing against him in the

evidence of the prosecution witnesses, to which he denied. No oral

evidence was adduced on behalf of the accused, but Ex.D1 was

marked.

5. After considering the oral and documentary evidence on

record, the learned trial Judge found the accused guilty of the

offences with which he was charged and accordingly convicted and

sentenced the accused as stated supra. Challenging the same, the

present appeal is filed.

6. Learned Counsel for the appellant/accused would submit that

if the accused kidnapped the victim girl, she could have raised alarm

or resisted the accused and none of the witnesses have stated that

the victim girl raised alarm or shown her resistance. She further

submits that there are serious contradictions in the statements of the

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victim girl recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and

also in her evidence. She further submits that the victim girl did not

state in her chief-examination that she was subjected to repeated

penetrative sexual assault by the accused. She further submits that

none of the prosecution witnesses stated that the accused committed

aggravated penetrative sexual assault on the victim girl and as such

the conviction under Section 6 of the POCSO Act is liable to be set

aside. She further submits that the trial Court has miserably failed

to appreciate the evidence-in-chief of the victim girl and her

statements recorded by the police and Magistrate, which are overall

embellishments and improvements and that the testimony of the

prosecutrix is totally unreliable. She further submits that during the

course of investigation, the prosecution did not examine the

important witnesses to prove the commission of offence under

Sections 366 of I.P.C. and Section 6 of the POCSO Act as well, but

only examined the witnesses in pick and choose method. She

further submits that the Court below seriously erred in convicting

the accused basing on the evidence of interested witnesses i.e.

P.Ws.1 and 2, who are the parents of the victim girl, which invites

interference of this Court in order to meet the ends of justice. She

further submits that P.Ws.1 and 2 have stated that since the accused

got married the victim girl, they have participated in sexual

intercourse. She further submits that the reason for the inordinate

delay of 18 days in lodging the complaint by the father of the victim

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is not reliable and trust worthy. She further submits that no

Ossification Test or any Radiological test has been subjected to the

victim girl to determine her correct age and that the trial Court has

erroneously considered the age of the victim girl basing on the Study

and Conduct certificate issued by the Head Master of the High

School, which did not give any reliance to prove the correct age.

Therefore, in the absence of age proof, the victim girl is not a child

under the definition of Section 2 (1) (d) of the POCSO Act, 2012 and,

therefore, the conviction and sentence imposed against the appellant

under Section 6 of the POCSO Act itself is not maintainable and the

same is liable to be set aside. It is further submitted that the

prosecution has failed to establish its case in proper perspective in

all the ways. The trial Court has failed to consider the videograph

through which the statement of victim under Section 161 of Cr.P.C.

was recorded by P.W.4 in the presence of P.W.11. The evidence of

the prosecutrix suffers from serious infirmities and inconsistencies,

but, the trial Court failed to appreciate the same while convicting the

accused. It is further submitted that the trial Court erred in

appreciating the cross-examination of P.W.3, wherein she has stated

that herself and the accused led marital life for 5 days at Jangaon. It

is further submitted that as per Ex.P7-report, P.W.9-Doctor, opined

that the victim girl's secondary sexual characters are well developed

and her Last Menstrual Period was on 09.07.2014 and that the victim

girl informed that her last intercourse was one week ago; the doctor

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opined that the victim is not virgin, she has underwent sexual

assault and whether she is pregnant or not cannot be confirmed now

and, therefore, P.W.9-Doctor has not supported the case of the

prosecution either by medically or scientifically and no medical

evidence has proved that the accused committed the offence under

Section 6 of the POCSO Act and that the absence of injuries will

inevitably discredit the version of the prosecution. It is also

submitted that the prosecution has failed to establish its case beyond

all reasonable doubt that sexual act committed by the appellant was

either by inducement or by putting threat.

7. Per contra, the learned Assistant Public Prosecutor would

submit that as per Ex.P5-Study and Conduct Certificate, it has been

clearly established that P.W.3 is less than 18 years of age as on the

date of occurrence. He further submits that the accused had

forcibly kidnapped the victim/minor girl (P.W.3) from the lawful

custody of the parents under the pretext of marrying her and had

aggravated penetrative sexual assault on the victim girl. Therefore,

the accused has committed the offence under Section 366 of I.P.C.

and Section 6 of the POCSO Act. He further submits that the

evidence of P.Ws.1 to 3 is corroborated by the evidence of formal

witnesses. He further submits that there is sufficient material to

show that the appellant/accused is responsible for the commission

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of offence and, therefore, the conviction and sentence passed by the

trial Court is justified and is not liable to be set aside.

8. In order to prove its case, the prosecution examined as many

as 16 witnesses. P.W.3 is the victim girl; P.Ws.1 and 2 are her

parents. P.W.4 is the photographer, who videographed the

statement of P.W.3 recorded by P.W.11. P.Ws.5 and 6 are the panch

witnesses for Ex.P4-Crime Details Form. P.W.7 is the Head Master,

who issued Ex.P5-Study and Conduct Certificate of the victim girl.

P.W.8 is the panch witness for Ex.P6-C.D.F. dated 12.08.2014. P.W.9

is the doctor, who examined the victim girl and issued Ex.P7 medical

certificate. P.W.10 is the doctor, who examined the accused and

issued Ex.P8-Potency Certificate of accused. P.W.11 is the Supervisor

of I.C.D.S., who recorded the statement of P.W.3 (victim girl).

P.W.12 is the person, who sent the accused to attend the work at the

house of P.W.1. P.Ws.13 to 16 are the Investigating Officers.

9. This Court, being an Appellate Court, is a fact finding Court

and it has to give its finding independently after appreciating the

entire evidence. Accordingly, this Court has re-appreciated the

entire evidence.

10. P.W.1, who is the father of the victim girl (P.W.3), deposed in

his evidence that he lodged a complaint with the police with regard

to missing of his daughter since few days prior to the date of

complaint. He further deposed that after one week of lodging the

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complaint, his daughter returned home and informed that the

accused has taken her away by inducing her under the pretext of

love and marriage to Bhuvanagiri, where he kept her in a room and

participated in sexual intercourse with her.

11. P.W.2, who is the mother of the victim girl (P.W.3), deposed in

her evidence that P.W.3 was studying Intermediate 1st year at

Government Junior College, Kothagudem. On 08.07.2014, P.W.3

went to college and did not return home and they have searched for

her in their surroundings and relatives houses, but they could not

trace her. She also deposed that since the date of missing of her

daughter, they have not seen the accused, who was working as

mason in their house; that on 10.08.2014, her daughter returned

home and informed that the accused took her to Jangaon, married

her in a temple, kept her in a room and participated in sexual

intercourse with her.

12. P.W.3, who is the victim girl, deposed in her evidence that her

date of birth is 01.01.1998; that the accused, who used to do mason

work at her house, used to talk with her when her parents were not

at home and used to say that he is loving her and he cannot live

without her; that she was studying intermediate 1st year at

Government Junior College, Kothagudem; that on 08.07.2014, the

accused took her to Kothagudem bus stand, from where he took her

to Jangaon, and stayed at the Railway Station on that day; that on

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the next day, the accused took her to Ramalayam temple and

married her and kept her in a vacant house behind the Jangaon

Railway Station and participated in sexual intercourse with her

saying that since they have got married, there is no mistake and that

their parents will also agree for their marriage. She further stated

that on 10.08.2014 when the accused went to work, she came back to

her parents' house; that her parents lodged the complaint with the

police and the police examined her and recorded her statement; that

her statement was recorded by the ICDS Supervisor, which was also

videographed and later her 164 Cr.P.C. statement was recorded by a

Magistrate.

13. P.W.4, who is a photographer, deposed in his evidence that he

is running a photo studio in Kothagudem since 30 years and on

10.08.2014, Police I Town, Kothagudem, called him to videograph

the statement of P.W.3 at ICDS Office and accordingly, he went there

and videographed the statement of P.W.3 recorded by P.W.11.

14. P.W.5, who is the panch witness for Ex.P4-Crime Details

Form, deposed in his evidence that on 26.07.2014 police called him to

the house of P.W.3 at Seshagiri Colony, Kothagudem, where Crime

Detail Form was prepared and rough sketch was drawn in his

presence.

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15. P.W.6, who is another panch witness for Ex.P4-Crime Details

Form, deposed in his evidence that he signed on Ex.P4, which was

drafted in his presence at the house of P.W.3.

16. P.W.7, deposed in his evidence that earlier he worked as Head

Master, Chunchupally High School, from 2009 to 2015; that he has

issued Study and Conduct Certificate of P.W.3 and according to

which the date of birth of P.W.3 is 10.02.1998 with admission

No.6430, dated 16.06.2008. P.W.3 studied in their school from 2008

to 2013 from Class 6th to 10th. Ex.P5 is the Study and Conduct

Certificate.

17. P.W.8, deposed in his evidence that he signed on C.D.F., dated

12.08.2014 as first attesting witness. Since P.W.8 did not support the

case of the prosecution, he was declared as hostile.

18. P.W.9-Doctor, who examined the victim girl, and issued

Ex.P7-medical examination report, deposed in her evidence that on

10.08.2014, she has examined the victim girl, who was brought to

Area Hospital, Kothagudem by WHC No.453 and found that her

secondary sexual characters are well developed and her LMP (Last

Menstrual Period) is 09.07.2014 and the victim girl informed that her

last intercourse was one week ago. She further deposed that on

examination of the private parts of the victim girl, her external

genitalia were healthy, no injuries were found on the genitalia,

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hymen was ruptured and her vagina was admitting one finger

easily. P.W.9 opined that the victim girl was not virgin and she

underwent sexual assault and she could not say whether P.W.3 was

carrying with pregnancy.

19. P.W.10, deposed in his evidence that on 10.08.2014, he

examined the accused and found that the accused is capable of

performing sexual act and that he issued Ex.P8-Potency Certificate

of accused.

20. P.W.11, the then Supervisor, ICDS, Kothagudem, deposed in

her evidence that, on 10.08.2014, she recorded the statement of P.W.3

and at the time of recording her statement, P.Ws.1 to 3 along with

one women P.C. were present; that P.W.3 stated to her that the

accused was doing mason work at her house since 15 days prior to

the incident and used to say that he loves her; that on 08.07.2014,

while she was going to college, the accused came to her and took her

to Kothagudem Bus Station, from where he took her to Jangaon,

where they stayed on that day and thereafter the accused took her to

Venkiryala village, where he tied nuptial thread in a temple, and

thereafter they stayed in a vacant room and the accused used to go

to mason work and during the night time he used to participate in

sexual intercourse with her stating that they were married and

nobody can separate them if they participate in sexual intercourse;

that after one week P.W.3 came to know that her parents lodged a

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complaint at the Police Station and as such she left the place to her

parents house after the accused left her work. P.W.11 also deposed

that the statement of P.W.3 was videographed by P.W.4.

21. P.W.12, who is a circumstantial witness, deposed in his

evidence that he knew the accused since two years prior to the date

of incident as he was working as Coolie under him and he used to

allot the work to the accused; that about four years back, he sent the

accused to work at the house of P.W.1 and thereafter, P.Ws.1 and 2

informed him that the accused has taken away their daughter and

married her.

22. Before venturing into scan the available material evidence on

record, it is necessary to mention the very definition of offence

under Section 366 of I.P.C.

23. Section 366 of IPC defines that:

"Kidnapping, abducting or inducing woman to compel her marriage, etc-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority to any other method of compulsion, induces any woman to go from any place with

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intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

24. On a careful reading of the evidence of the victim girl (P.W.3),

it is seen that she has narrated the entire events. P.W.1, who is the

father of the victim girl, stated in his evidence that his daughter was

missing during the relevant point of time and as such he lodged the

complaint before the police and thereafter his daughter returned

home and informed that the accused has taken her away by

inducing her under the pretext of love, married her and participated

in sexual intercourse with her. P.W.2, who is the mother of the

victim girl, supported the version of the victim girl and deposed that

the victim girl returned home on 10.08.2014 and informed that the

accused has married her and participated in sexual intercourse with

her.

25. P.W.3-Victim girl was produced before the learned Judicial

Magistrate of First Class, Yellandu, for recording her statement

under Section 164 of Cr.P.C. The said statement was marked as

Ex.P2. In the said statement, the victim girl has stated that the

accused took her to Jangoan Railway Station and they stayed in the

house of one Ramesh, who is the brother-in-law of the accused, and

that the accused had forcible sexual intercourse with her. Though

the statement recorded under Section 164 Cr.P.C. is not substantive

evidence, the victim girl was examined before the Court as P.W.3,

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during trial, and she has deposed that the accused participated in

sexual intercourse saying that they got married and that there is no

mistake. Therefore, the statement under Section 164 Cr.P.C.

corroborates with the evidence of the victim girl (P.W.3). Though

there are minor contradictions in the statement of victim girl, but the

fact that the victim girl stayed with the accused and the accused

participated in sexual intercourse with her is well established, which

fact was corroborated by the evidence of P.W.9-Doctor, who

examined the victim girl. P.W.9-Doctor deposed that on

examination of the victim girl, she found the hymen ruptured with

congestion around the orifice and vagina admitting one finger easily

and that she opined that the victim girl is not virgin and she

underwent sexual assault.

26. Admittedly, at the time of occurrence, the victim girl had not

completed 18 years of age, and therefore, she is a child under Section

2 (1) (d) of the POCSO Act. In order to prove the age of the victim

girl, the study and conduct certificate of the victim girl was marked

as Ex.P5, through P.W.7, who is the Head Master, Chunchupally

High School and issued the said certificate. As per Ex.P5, the date of

birth of the victim girl is 10.02.1998. The date of occurrence is

between 08.07.2014 to 10.08.2014, and therefore, at the time of

occurrence, the age of the victim was only 16 years and she had not

completed 18 years. Therefore, it is clear that, at the time of

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occurrence, the age of the victim girl was only 16 years, and

therefore, she is a 'child' under Section 2 (1) (d) of the POCSO Act. It

is not in dispute that the accused was aged about 22 years at the time

of occurrence.

27. From the evidence of P.W.3-victim girl, P.W.1-father of the

victim girl, P.W.2-Mother of the victim girl, Ex.P11-F.I.R. registered

on 26.07.2014 under "Girl missing" and Ex.P10-alteration memo, it is

clear that the accused has removed the victim girl from the lawful

custody of P.Ws.1 and 2, without their consent, and therefore, he has

committed the offence punishable under Section 366 of I.P.C., and

since the minor victim girl, who was a child under POCSO Act, was

subjected to sexual assault, the accused has also committed the

offence punishable under Section 6 of the POCSO Act.

28. Though there is no independent witness, in cases like this,

conviction can be made solely based on the evidence of the

prosecutrix. In this case, the victim is a child and her custody was

removed from her lawful guardians without their consent. Even

assuming that the accused took the victim girl with her consent,

since the victim girl had not completed the age of 18 years, her

consent cannot be taken as a lawful consent. Further, from the

evidence of P.W.9-Doctor, it is seen that there were no external

injuries on the girl, but she was not virgin and she underwent sexual

assault. Even assuming that the victim girl had not objected to the

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sexual intercourse and had given her consent, such consent of a

child is not legally valid. Once the victim is a child, falling under

Section 2 (1) (d) of the POCSO Act, her consent is immaterial.

29. Insofar as the delay in lodging the complaint is concerned, the

offence is stated to have taken place on 08.07.2014 and the complaint

was lodged on 26.07.2014 by the father of the victim (PW.1). P.W.1

has deposed about the circumstances that drove him to lodge the

complaint. In his evidence, he has specifically stated that he searched

the victim in the houses of the relatives and having failed to trace

her, he reported the matter to the police. Therefore, the delay in

lodging the complaint in my opinion is suitably explained by the

prosecution and on that count, the case of the prosecution cannot be

doubted.

30. From the oral and documentary evidence, the prosecution has

proved that the accused has taken away the victim girl from the

lawful custody of her parents without their consent, and

subsequently, had forcible sexual intercourse with her, and

therefore, the accused has committed the offences punishable under

Section 366 of I.P.C. and Section 6 of the POCSO Act. Though there

are some minor contradictions in the evidence of the prosecution

witnesses, such contradictions are not material contradictions, which

will go to the root of the case of the prosecution. This Court does not

find any reason to discard the evidence of the victim girl (P.W.3).

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On a careful reading of the evidence of P.Ws.1 to 12 and also the

documents Exs.P1 to P12, this Court also finds that the accused has

committed the offences punishable under Section 366 of I.P.C. and

Section 6 of the POCSO Act. The trial Court has appreciated the

entire oral and documentary evidence in a proper perspective and

has rightly found the guilt of the accused and convicted him as

stated above. Therefore, this Court has no hesitation to hold that the

judgment passed by the trial Court, is just and proper and therefore,

it does not require any interference by this Court.

31. Accordingly, this Criminal Appeal is dismissed and the

judgment of conviction and sentence passed by the learned Special

Sessions Judge for Trial of Cases under Protection of Children from

Sexual Offences Act-cum-I-Additional Sessions Judge, Khammam,

in S.C.No.51 of 2015, dated 28.02.2019, against the appellant/accused

are hereby confirmed.

32. Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_____________________ JUSTICE G.SRI DEVI

17.08.2021 Gsn/gkv