Telangana High Court
R. Rajesh Kumar vs The State Of Telangana on 14 June, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.351 OF 2021
Between:
R. Rajesh Kumar ... Appellant/Accused
And
The State of Telangana,
rep. by its Public Prosecutor,
High Court of Telangana, Hyderabad. .... Respondent.
DATE OF JUDGMENT PRONOUNCED: 14.06.2022
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 KS, J
Crla_351_2021
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No.351 of 2021
% Dated 14.06.2022
# R.Rajesh Kumar ... Appellant/Accused
And
$ The State of Telangana,
rep. by its Public Prosecutor,
High Court of Telangana at Hyderabad. ..Respondent.
! Counsel for the Appellant: Sri T.Anirudh Reddy
^ Counsel for the Respondent: Learned Public Prosecutor
>HEAD NOTE:
? Cases referred
1
(1983) 2 Supreme Court Cases 14
2 Appeal No.838 of 2019, dated 26.08.2021
3 (2020 SCC OnLineDel 1938
4 2013 (2) ACR 1212
5 AIR 2018 SC 4529
3 KS, J
Crla_351_2021
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.351 OF 2021
JUDGMENT:
1. The present appeal is filed questioning the conviction of the
appellant for the offence under Section 6 of the POCSO Act and
sentenced to Rigorous Imprisonment for a period of 25 years and to
pay fine of Rs.20,000/-, in default SI for one year. Further
compensation amount of Rs.4,00,000/- to be paid to the victim girl.
2. The case of the prosecution is that on 09.01.2021, the Police
Saifabad received a complaint Ex.P1 from P.W.1, Dr.Kiranmai of
Niloufer Hospital informing the police that the victim girl P.W.2 was
admitted in the hospital with 'battered baby syndrome' and
suspected that P.W.2 child was subjected to sexual abuse.
Accordingly, a crime was registered for the offence under Section
376-AB and Section 5 of r/w section 6 of the POCSO Act and
investigation handed over to P.W.15.
3. The victim/P.W.2 was initially brought to Niloufer Hospital by
her father D.W.1 on 07.1.2021. On finding that the child must
have been subjected to sexual abuse, P.W.1 referred the child to
4 KS, J
Crla_351_2021
P.W.4, Dr.Prithvini for examination, diagnosis and treatment. P.W.4
examined the victim/P.W.1 and noticed multiple bruises on her
body, bruised areas over the right side of the neck, orbital
echymosis, contusions over the cheeks, bruised areas of the chest
abdomen, legs and hands. Further, P.W.4 noticed that the child
was unable to sit comfortably due to scratch marks over her
buttocks. She also noticed 'mons pubis contusion and
tenderedness, on left labia majora healed abrasion wound, right
sided labia was swollen to minimum extend, contusion and
congestion over the vulval outlet, periurethral congestion. Her hymen
was not intact.' Due to her condition, it was found that the said
injuries found were signs of sexual assault and accordingly swabs
and smears and nail clipping of the victim/P.W.2 were collected for
the purpose of FSL examination. After receipt of FSL report, P.W.4
dated 15.02.2021 gave opinion that "possibility of sexual assault
could not ruled out".
4. On the basis of the complaint filed by P.W.1 on 09.01.2021
after the initial assessment by P.W.4, the crime was registered
5 KS, J
Crla_351_2021
under Section 376-AB of IPC, Section 6 read with Section 5 of
POCSO Act against unknown accused on 09.01.2021.
5. It is the case of the prosecution that the child was also
examined at Bharosa Centre by P.W.13 on 01.02.2021, Section164
Cr.P.C statement of PW2 was recorded on 16.02.2021. Thereafter,
the appellant was arrested on 20.02.2021. The trial Court
examined witnesses P.Ws.1 to 15 and marked Exs.P1 to P9. The
father of the victim girl examined himself as D.W.1 and also Exs.D1
to D11 were marked on behalf of defence. Exs.D1 to D6 were
marked through P.W.8, Ex.D7 was marked through P.W.9 and
Exs.D10 and D11 were marked during the evidence of D.W.1. After
consideration of the entire evidence, the Sessions Court convicted
as stated above.
6. Sri Pradyumnakumar Reddy, learned Senior Counsel
appearing on behalf of Sri Anirudh Reddy, learned counsel for the
appellant argued that i) the entire evidence of the prosecution is
belied by the evidence of P.Ws.8 and 9 who initially examined PW2
but stated nothing about any sexual assault and whose evidence is
6 KS, J
Crla_351_2021
neither disputed nor the witnesses were declared hostile; ii) the
reason for false implication of the appellant is apparent from the
ongoing disputes between the mother-P.W.3 and father-D.W.1; iii)
in view of the disputes, P.W.3-mother has tutored and has
fabricated the entire case against the appellant; iv) the tutoring is
apparent for the reason of the appellant being arrested for the first
time on 20.02.2021 and this delay is not explained since the FIR
was registered on 09.01.2021 against unknown and even prior to
that the victim child was alleged to have been subjected to sexual
abuse; v) the statement recorded by P.W.13 at Bharosa Centre, case
sheet of the treatment of the child and also Section 164 statement
are suppressed by the prosecution; vi) the evidence of D.W.1 father
of the victim girl, who was examined in defence has to be given
equal weight as that of the prosecution witness; vii) it is unsafe to
place reliance upon the uncorroborated solitary testimony of P.W.2,
who is a child; viii) when the prosecution failed to prove its case
beyond reasonable doubt against the appellant, the Court has no
other alternative except to acquit the appellant.
7 KS, J
Crla_351_2021
7. The learned Senior Counsel relied upon the judgment in the
case of State of Assam v. Mafizuddin Ahmed1 and drawn the
attention of this Court to paras 14 and 15 argued that when the
evidence is of vacillating nature in the case of the child, the
possibility tutoring cannot be ruled out. He also relied upon the
judgment of High Court of Bombay in the case of Janardan
Pandurang Kapse v. The State of Maharashtra2 , which judgment
also cautions about the nature of the statement of a five year old
being amenable to tutoring and should be scrutinized with extreme
care and caution. The other two judgments relied upon i.e., Altaf
Ahmed v. State (GNCTD of Delhi3 and Tejinder Singh v. State of
Punjab4 are not applicable to the facts and circumstances of the
present case.
8. On the other hand, learned Assistant Public Prosecutor
submits that the case is heinous crime perpetrated on a child aged
(1983) 2 Supreme Court Cases 14
Appeal No.838 of 2019, dated 26.08.2021
(2020 SCC OnLineDel 1938
2013 (2) ACR 1212
8 KS, J
Crla_351_2021
four years. As seen from the evidence, there is no necessity to
falsely implicate the appellant and further after a thorough
preliminary enquiry and having been satisfied that the appellant
was the person responsible for commission of the sexual abuse on
the child, he was arrested. The trial Court had given cogent and
convincing reasons at paras 37, 38 and 39 of the judgment and the
said findings cannot be interfered with as the same are supported
by cogent evidence on record. Except saying that the child was
tutored into giving false evidence, no evidence is placed on record to
substantiate such false implication and the reasons for doing so.
Section 29 of the POCSO Act, shifts the burden on to the appellant
and when the prosecution was able to prove that it is the appellant
who has committed the offence, the court shall presume such
assertion of sexual assault on the child as stated by the witnesses.
9. The learned Assistant Public Prosecutor relied upon the
judgment in Shamim v. State (GNCT of Delhi)5 and relied upon
para 13 of the judgment, wherein their Lordships have found on the
AIR 2018 SC 4529
9 KS, J
Crla_351_2021
facts of the said case that the victim's evidence stood unshaken in
spite of prolonged cross-examination and though there are
inconsistencies in the evidence. If the said inconsistencies are
minor and trivial, they should be ignored.
10. The witness P.W.8 examined the child in the month of
January, 2021 and after examination P.W.8 found that she was
suffering with puffy eyes. Basic treatment was given to her and
after six or seven days, the victim was brought by D.W.1 and as she
was suffering with body pains and pain in the limbs. Acting on the
complaint, P.W.8 referred the victim girl to P.W.9. P.W.9 examined
the victim girl on 07.01.2021 and suggested admission of the victim
girl for further investigations. However, D.W.1 refused the
treatment suggested by P.W.9 and took the victim/P.W.2 to Niloufer
Hospital on the same day, where she was examined by P.W.1 and
then referred to P.W.4 as narrated in the preceding paras. The
learned Senior Counsel submits that P.Ws.8 and 9 did not find any
such injuries as stated by P.W.4, for which reason, it has to be
inferred that the injuries were either inflicted or received after
10 KS, J
Crla_351_2021
07.01.2021. Further in the background of no specific dates being
given regarding the alleged assault by the appellant, the
prosecution case fails.
11. The fact that the child P.W.2 was living with D.W.1 father is
not disputed. In the said house, the grandparents of the victim girl
and the appellant were also staying. The victim was taken to the
hospital admittedly on more than one occasion for treatment by
DW1 father to P.W.8 and P.W.9 doctors. P.W.1 examined the victim
girl on 07.01.2021 when she was brought to Niloufer Hospital after
being seen by PW.9 and D.W.1 refusing treatment in the hospital of
P.W.9. Apparently the father having seen the condition of the child
was of the opinion that the suggestion made by P.W.9 for treatment
was not correct or acceptable and for the said reason took the child
to Niloufer hospital on the same day, i.e., 07.01.2021. In the said
circumstances, it cannot be said that the injuries found by P.W.1
and P.W.4 were received after the examination by P.W.9. For the
said reason, when the injuries on PW2 as ascertained by P.W.4
were result of physical and sexual abuse, the burden shifts on to
11 KS, J
Crla_351_2021
D.W.1 to explain as to how the diagnosis and findings of P.W.4 are
incorrect in the background of the victim/PW2 being under his
custody, in his house. D.W.1 in his evidence except narrating the
differences between his wife and himself has not come up with any
reasonable version for false implication of the appellant.
12. The ground of tutoring as argued by the learned Senior
Counsel appearing for the appellant is not convincing for the reason
of D.W.1 taking the victim to Niloufer hospital on 07.01.2021 and
on the same day and the next day, the Doctors P.Ws.1 and 4 after
examination suspected that the injuries and the state of the victim
girl/PW2 was result of physical and sexual abuse. After the
compliant was lodged on 09.01.2021 and treatment, the victim girl
was kept at Sishu Vihar. In the said circumstances, it cannot be
said that P.W.3 who is the mother of the victim has in fact tutored
P.W.2/victim girl to make such allegations of sexual abuse against
the appellant. Even during the course of Section 313 Cr.P.C
examination, the appellant only stated that he was implicated for
the reason of matrimonial disputes in between P.W.3 and D.W.1.
12 KS, J
Crla_351_2021
Neither P.W.1 has come up with any reasoning to convince the
Court as to why P.W.3 would have any grouse to grind against the
appellant nor the appellant has given any statement during Section
313 Cr.P.C nor during his cross-examination has suggested any
motive for false implication.
13. Learned Senior Counsel has drawn the attention of the Court
to the chief examination of P.W.2 and argued that the evidence of
the child has to be looked into with care and caution. Neither the
victim nor the prosecution has given the exact date of occurrence of
crime. From the evidence of P.W.2, it is apparent that the child was
calling everyone as 'kaka' and 'kaka' referred to in the chief
examination was about the appellant only and none else. The said
argument fails for the reason of the specific identification of the
appellant by the victim during trial.
14. The argument that the mother has in fact tutored P.W.2 to
depose against the appellant also fails for the reason of the specific
denial by P.W.2 that P.W.3 did not ask P.W.2 to state any specific
13 KS, J
Crla_351_2021
act against the appellant. Extract from cross-examination of PW2,
which reads:
"Before coming to the Court, my mummy ask me to tell about kaka.
Mummy did not tell me to say that kaka put his finger in my
private part. No one tutored me to tell about kaka. Mummy did
not tutor me to tell about daddy and grandmother."
The child P.W.2, who is around 4 to 5 years at the time of
examination by the Court, withstood the cross-examination and in
clear terms stated that her evidence was not result of any tutoring
but on account of the actual happening.
15. In the chief examination, the victim P.W.2 stated as follows:
"On one day my Kaka kept his finger in my private part(Victim girl
has shown her finger pointing on her private part). When I went to
bathroom, Kaka came into the bathroom, beat me, pinched me on my
both hands and put his finger in my private part. He also kept his
hand on my chest and told me "MARJAO". In the morning also Kaka
told me "MARJAO". My father used to go to duty and my mother to
go to office. At that time myself, Kaka, my father and my
grandmother were in the house of Kaka. While Kaka is doing this to
me, my father and my grandmother told Kaka "AUR KARO AUR
KARO". My father and my grand mother asked me to stay calm
(Chup Chap Bato Boley). They used to made me to sleep near the
wall."
Drawing attention to the above chief examination, learned
counsel for the appellant argued that whatever she stated was
highly improbable regarding "AUR KARO AUR KARO" about father
14 KS, J
Crla_351_2021
and grandmother and "MARJAO" by the appellant. Further, when
such is the case it amounts to abetment and the prosecution
should have implicated D.W.1-father and also the grandmother as
abettors of the crime but no such steps were taken, which itself
indicates that the prosecution version as stated by P.W.2 cannot be
believed.
16. The evidence of 4-5 year old child has to be looked into and
treated with caution. In the present case as per the prosecution, the
injuries on the victim girl were over a period of time as seen from
the evidence of P.W.8, who has given treatment. In the said
circumstances of a battered child over a period of time as stated by
the prosecution, it is only natural that the child would recollect
several incidents and state them. However, the evidence of the
appellant committing penetrative sexual assault was stated by the
child and also identified that it was the appellant who was the
perpetrator of the said assault.
17. As already discussed the evidence of P.W.2, the sequence of
events from 07.01.2021 till the arrest of appellant on 20.02.2021
15 KS, J
Crla_351_2021
are convincing and leave no element of doubt regarding the
prosecution case being incorrect. For the said reason, the
conviction recorded by the learned Sessions Judge requires no
interference.
18. However, the sentence of imprisonment of 25 years is reduced
to 20 years which is the minimum punishment prescribed under
Section 6 of POCSO Act. The quantum of fine and compensation
remain unaltered.
19. The appeal is accordingly dismissed, except the reduction of
sentence of rigorous imprisonment to 20 years. As a sequel thereto,
miscellaneous petitions, if any, pending, shall stand closed.
__________________
K.SURENDER, J
Date: 14.06.2022
kvs
16 KS, J
Crla_351_2021
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.351 OF 2021
Date: 14.06.2022
kvs
17 KS, J
Crla_351_2021
