Kadamanda Balaiah vs The State Of Telangana
2022 Latest Caselaw 2681 Tel

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

              Criminal Appeal No.295 OF 2020

Between:

Kadamanda Balaiah                          ... Appellant/Accused

                              And

The State of Telangana, through
SHO, Mandamarri Police Station,
Adilabad, rep. by its Public Prosecutor,
High Court, 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




                 * THE HON'BLE SRI JUSTICE K.SURENDER


                         + CRL.A. No.295 of 2020


% Dated 14.06.2022




#Kadamanda Balaiah                             ... Appellant/Accused

                                  And

$ The State of Telangana, through
SHO, Mandamarri Police Station,
Adilabad, rep. by its Public Prosecutor,
High Court, Hyderabad.                              ..Respondent.




! Counsel for the Appellant: Sri Gajanand Chakravarthy


^ Counsel for the Respondent: Learned Public Prosecutor



>HEAD NOTE:

? Cases referred
1
    AIR 2022 SC 222
                                  3


             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.295 OF 2020
JUDGMENT:

1. Questioning the correctness of the conviction recorded by

the Special Judge for Trial of Cases under Protection of

Children from Sexual Offences Act-cum-I Additional Sessions

Judge, Adilabad (for short 'the Sessions Judge') in

Spl.S.C.No.86 of 2016, the present appeal is filed.

2. Learned Sessions Judge convicted the appellant for the

offences punishable under Section 376(2) of IPC and

sentenced to undergo rigorous imprisonment for a period of

Ten years and to pay a fine of Rs.500/- in default of fine, he

shall undergo simple imprisonment for a period of One month.

The appellant is further sentenced to undergo rigorous

imprisonment for a period of six months for the offence

punishable under Section 506 of IPC. No separate sentence is

imposed for the offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 ( for

short 'the Act') in view of Section 42 of the Act, which provides

for alternate punishment.

3. Briefly, the facts of the case are that P.W.2 is the mother

of P.W.1/victim. On 02.06.2016, the appellant went to the

house of P.W.1/victim and talked to her father. The appellant

left the house and thereafter, the father of P.W.1 also went

away. The accused came back and having entered the house,

caught hold of hand of P.W.1 and took her inside, laid her on

bed sheet and committed rape of P.W.1. P.W.1 resisted and

raised hue and cry. In the process, her bangles were broken.

After committing the rape, the accused threatened not to

disclose the incident to anyone. However, when P.W.2, mother

returned to the house, P.W.1 informed her, who in turn

informed the same to her husband. However the husband

though examined by police was not examined in Court. All

three of them went to the police station and P.W.1/victim girl

filed complaint Ex.P1, which was scribed by her neighbor to

her dictation. The police registered the case, conducted

investigation and filed charge sheet against the appellant for

the offences punishable under Sections 376(2) and 506 of IPC

and Section 4 of the POCSO Act of 2012.

4. Heard Sri Gajanand Chakravarthy, learned counsel for

the appellant and Sri Sudershan, learned Assistant Public

Prosecutor for the respondent/State.

5. The mother of P.W.1/victim was examined as P.W.2, who

corroborated the statement of P.W.1. The main argument of

the learned counsel for the appellant is that a false complaint

was filed for the reason of there being monetary transactions

and differences between father of PW1 and appellant, for

which reason the relations were strained. The said factum of

strained relationship between the appellant and husband of

P.W.2 was admitted by P.W.2 in her cross-examination.

Further, the victim girl is not a minor and the bonafide

certificate issued by the Headmaster of the school is at the

instance of police. There is a delay of 10 ½ hours in lodging

the complaint and further 13 ½ hours delay in dispatching the

First Information Report. In the background of the said

strained relationship, false implication cannot be ruled out, as

such, benefit of doubt has to be extended in favour of the

appellant and the appellant has to be acquitted of the charges,

for which he was convicted.

6. On the other hand, learned Assistant Public Prosecutor

submits that there is nothing in the cross-examination of

either P.W.1 or P.W.2 to discredit their testimony. Though

suggestions regarding their relation are made, there is no

specific evidence forthcoming to say that there was any

strained relationship leading to the present complaint.

Further, the police have visited the scene of offence and found

broken bangles. The evidence of P.W.9, who is an independent

witness goes to show that white colour bangle pieces-M.O2

and MOs.4 to 7 wearing apparels of the victim were seized.

The delay caused in filing the complaint is explained by P.Ws.1

and 2 themselves stating that they have waited for the

husband of P.W.2 to come and thereafter, went to the police

station. P.w.12, who is the officer registering the crime

explained that since the police station is situated in extremist

area, the delay of 13 ½ hours occurred in dispatching the First

Information Report. He relied upon the judgment of Hon'ble

Supreme Court in the case of Phool Singh v. The State of

Madhya Pradesh1, wherein the facts and circumstances of the

case, the Hon'ble Supreme Court did not find delay of three

days in lodging the FIR as fatal when the case of the

prosecutrix was consistent and believable.

7. During the course of trial, except for stating that false

compliant was lodged for the reason of there being strained

relationship between the appellant and the husband of P.W.2,

no evidence is produced in defence or the details are suggested

to the witnesses as such the same cannot be accepted. No

father would involve his teenage daughter and make such

grave allegations of rape, which would have a societal impact

for life. Further there is no explanation in Section 313 Cr.P.C

examination or during the course of cross-examination of

P.Ws.1 and 2. Unless specific reasons are stated regarding

any such strained relationship, the Court cannot consider

whether strained relations had in fact resulted in false

complaint being given. Secondly, broken bangles were found at

AIR 2022 SC 222

the scene of offence and further, as seen from the FSL report

Ex.P6, semen and spermatozoa are detected on wearing

apparel seized vide M.Os.4 to 7. Further, vaginal swabs also

contained semen and spermatozoa. Though there is no DNA

testing to link the semen spermatozoa found on the wearing

apparel and vaginal swabs of P.W.1/victim girl. However in the

back ground of convicting evidence of P.W.1 and also the other

corroborating factors of seizures, complaint and medical

evidence of recent sexual assault, there is enough evidence to

convict the appellant.

8. The argument of the learned counsel for the appellant is

that as admitted by P.W.1, she is not in the habit of wearing

bangles or tilak, for which reason, the very seizure of bangles

becomes doubtful. On the date of examination in the court

also the victim did not wear bangles or tilak.

9. The said argument is not convincing and there is nothing

on record to dispute that P.W.1/victim girl did not wear

bangles on the day of incident. It cannot be accepted that

P.W.1 had stage managed the scene of offence by placing

broken bangles when the police arrived for investigation.

10. Learned Sessions Judge convicted the appellant for the

offence under Section 376(2) of Cr.P.C and sentenced to

undergo rigorous imprisonment for a period of ten years.

However, the case is one under Section 376(1) of IPC as the

appellant forcibly entered the house when the victim was alone

and committed rape on her and left. The appellant does not

fall under the description of the person mentioned under

Section 376(2) or the circumstances stated from clauses (a) to

(n) of sub-section 2 of Section 376 of IPC.

11. The punishment for the offence under Section 376(1) of

IPC is a minimum of ten years as substituted Act 22 of 2018

with effect from 21.04.2018. The offence is of the year 2016

as such the minimum imprisonment is seven years prior to

the substitution. In criminal cases, any substitution of an

enactment is prospective in nature. For the said reason, the

minimum punishment which can be inflicted on the appellant

is seven years, which is prior to the substitution of the

quantum of punishment. Accordingly, the appellant is

sentenced to undergo seven years for the offence under

Section 376 (1) of IPC and the fine and the conviction under

Section 506 of IPC remain unaltered.

Accordingly, the appeal is disposed off. As a sequel

thereto, miscellaneous petitions, if any, pending, shall stand

closed.

__________________ K.SURENDER, J Date: 14.06.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.295 OF 2020

Date: 14.06.2022

kvs