Telangana High Court

Voora Lingaiah China Lingaiah, vs State Of A.P., Rep By Pp., on 23 August, 2022

Bench: K.Surender

      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



           * 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)

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

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

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

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

1995 (1) ALD 20 (D.B)

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.

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