Tandu Gopi vs The State Of Telangana
2022 Latest Caselaw 2096 Tel

      HIGH COURT FOR THE STATE OF TELANGANA
                      AT HYDERABAD
                              *****

             Criminal Appeal No.271 OF 2021

Between:

Tandu Gopi                            ... Petitioner/Accused

                              And

The State of Telangana
through SHO, PS Kethepally,
rep. by Public Prosecutor             .... Respondent.



DATE OF JUDGMENT PRONOUNCED: 22.04.2022

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?
                                  2


           * THE HON'BLE SRI JUSTICE K.SURENDER


                      + CRL.A. No.271 of 2021


% Dated 22.04.2022




# Tandu Gopi                           ... Petitioner/Accused

                               And

$ The State of Telangana
through SHO, PS Kethepally,
rep. by Public Prosecutor                   ..Respondent.




! Counsel for the Petitioner: Sri M.Vijay Kanth


^ Counsel for the Respondent: Learned Public Prosecutor



>HEAD NOTE:



? Cases referred
                                 3


         HONOURABLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No. 271 OF 2021


JUDGMENT:

1. This Criminal Appeal is preferred against conviction of

the trial Court for the offences under Section 376(1) IPC;

Section 3 r/w 4 of the Protection of Children from Sexual

Offences Act, 2012 (for short 'the Act') and Section 3(1)(w)(i) of

the SCs/STs (POA) Act.

2. The case of the prosecution is that P.W.1, who is the

father of the victim P.W.3, filed a complaint stating that P.W.3

was aged 17 years and on 03.03.2016, when she did not

return from coolie work, P.W.2, his wife went in search of

P.W.3. One Gaddapati Janamma informed that the appellant

took P.W.3 to his house. As soon as P.W.2 went to the house

of the appellant, the door was locked and she tried to forcibly

open the door, then the appellant opened the door and ran

away. On questioning, P.W.3 stated that the appellant used to

take her to his house and rape her. After arrival of P.W.1 from

work, a complaint was lodged in the night at 00.30 hours i.e.,

early hours of 04.03.2016.

3. After completion of investigation, the Police, Kethepally

Police Station, filed charge sheet and after trial, the appellant

was convicted as stated supra.

4. Heard Sri M.Vijaya Kanth, learned counsel for the

appellant and Sri Sudarshan, learned Assistant Public

Prosecutor appearing for the respondent-State.

5. The main ground argued by the learned counsel for the

appellant is that P.Ws.1 and 2, who are the parents of the

victim P.W.3, turned hostile and did not support the

prosecution case. P.W.3, who entered into the witness box

stated in chief examination that the accused committed rape

on her. However, in the cross-examination conducted

immediately after the chief examination resiled from her

statement. P.W.3-victim, deposed as follows in cross-

examination.

"My father installs water taps and he is plumber. I don not attend any work. I stay at home. I can identify the police. I cannot say the colour of the uniform worn by the police. The police who was out side told me to depose before the

court. It is true a quarrel took place between my father and the accused with regard to non installation of water taps. It is true after the said quarrel my father threatened the accused and went to the Police Station and gave report. I am not in the habit of going towards the house of the accused. It is true the accused never troubled me. Except the quarrel with regard to the taps there are no other disputes between us and the accused. I was not examined by the police, SDPO or by any Magistrate. I do not remember what I deposed in my chief examination. The accused did not commit rape against me. All the questions were posed to me in Telugu. I answered after understanding the question and after thinking. It is true I am deposing at the instance of the police. The alleged incident never took place. I was not examined by the medical officer."

6. As seen from the record, P.W.3 is a self-condemned

witness, totally contradicting her own evidence. In her chief

examination, at one breath, implicated the accused and

immediately during the cross-examination, she totally resiled

from what is stated in the chief examination.

7. The trial Court has found at para 25 of the impugned

judgment that the victim is not mentally disabled. When the

trial Court has the benefit of interacting with P.W.3 and

finding that P.W.3 was not a mentally disabled girl, her

contradictory versions in chief and cross-examination has to

be viewed cautiously.

8. The parents, P.Ws.1 and 2 did not support the

prosecution and P.W.1 disowned the complaint and only

identified his signature on the complaint, which was marked

as Ex.P1. The scribe of the complaint was examined as P.W.7,

who stated that the contents were written on the information

provided by a person. He did not mention that it was P.W.1, on

whose information Ex.P1 was drafted.

9. The trial court, on the basis of the chief examination and

also on the basis of the seized cloths of the victim showing the

presence of human semen, recorded conviction.

10. The trial Court, in the absence of the reliable evidence,

cannot convict a person. Higher the punishment, the Court

has to be more cautious and insist upon reliable evidence to

conclude guilt. Ignoring the fact that the complaint is not

proved and parents, P.Ws.1 and 2 turned hostile, the trial

Court erred in recording the conviction only on the basis of the

chief examination and inconclusive medical evidence. The

medical evidence does not conclude that the semen and

spermatozoa found on the vaginal swabs and pyzama of the

victim is that of the appellant. During the investigation, the

semen should have been subjected to DNA testing to pin point

that the semen and spermatozoa found was that of the

accused. In the present situation of hostility of P.Ws.1 and 2

and unreliable evidence of P.W.3, it is not safe to convict the

appellant.

11. Accordingly, the conviction of the appellant under

Section 376(1) IPC; Section 3 r/w 4 of the Protection of

Children from Sexual Offences Act, 2012 (for short 'the Act')

and Section 3(1)(w)(i) of the SCs/STs (POA) Act recorded by the

trial Court, is set aside.

12. In the result, the Criminal Appeal is allowed setting

aside the judgment of the trial Court in SC No.67 of 2016,

dated 02.07.2021. Bail bonds of the appellant shall stand

cancelled. As a sequel thereto, miscellaneous applications, if

any, shall stand closed.

________________

K.SURENDER,J Date:22.04.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No. 271 OF 2021

Date: 22.04.2021

kvs