Vanka Rajesh Raju, vs The State Of Telangana,
2022 Latest Caselaw 3166 Tel

       HONOURABLE SRI JUSTICE K.SURENDER

           CRIMINAL APPEAL No.294 of 2020
JUDGMENT:

1. The appellant is convicted for the offence under

Section 5(1) r/w 6 of the Protection of Children from Sexual

Offences Act, 2012 ( for short 'the POCSO Act') and

sentenced to undergo rigorous imprisonment for a period of

ten years and to pay fine of Rs.2,000/-, in default of

payment of fine amount, to undergo simple imprisonment

for a period of six months, and further sentenced to undergo

rigorous imprisonment for a period of two years and to pay a

fine of Rs.1,000/- and in default of payment of fine amount,

to undergo simple imprisonment for a period of three

months for the offence under Section 506 of IPC and no

separate sentence under Section 376(2)(i)(n) of IPC by

judgment dated 19.09.2019 in S.C.PCS No.91 of 2017

passed by the I Additional Metropolitan Sessions Judge-

cum-Special Judge for trial of Cases under Protection of

Children From Sexual Offences Act, 2012, Hyderabad (for

short 'learned Sessions Judge').

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

mother of P.W.2/victim girl lodged a complaint on

14.12.2016 stating that the P.W.2/victim girl was studying

IX Class and her date of birth is 07.02.2003 and the son of

P.W.1 who was aged 5 ½ year, both were commuting to

school in the auto of the appellant/accused. On

14.12.2016, P.W.2 informed P.W.1 that she does not want

to attend school for which reason, P.W.1 persistently

questioned. P.W.2 informed that the appellant/accused was

misbehaving with her and committing wrong actions.

Further, on enquiry, P.W.2 informed that since August,

2016, he used to take children in the auto to the near open

places and asked them to play and P.W.2 was taken into

nearby vacant quarters and appellant committed rape on

her several times. After receiving the complaint, police

referred P.W.2/victim girl to Gandhi Hospital for medical

examination and the Doctor-P.W.7 confirmed that the victim

was pregnant by 16 to 18 weeks.

3. P.W.2 during her examination before the Court stated

that since August, 2016, the appellant committed rape on 3 KS, J

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her regularly by taking her to open places in vacant

quarters. Further, he threatened P.W.2 with dire

consequences if the matter is disclosed to any one. The

foetus of P.W.2 was aborted and later subjected to DNA

examination to know about the biological father. However,

after FSL examination, no opinion of DNA result could be

given, for the reason of there being no amplifiable DNA yield

from foetus. The said report is Ex.P19.

4. After concluding investigation, charge sheet was laid

for the offences under Section 5(1) r/w Section 6 of the

POCSO Act and Sections 376((i)(n) of IPC and Section 506 of

IPC and charges were accordingly framed.

5. Learned counsel for the appellant would submit that;

firstly, the age of P.W.2/victim girl was not proved and no

reliance can be placed upon the school certificate Ex.P6

issued by P.W.9 as it cannot be conclusive proof of the date

of birth, for which reason, it cannot be said that P.W.2 is

less than 18 years to attract the provisions of POCSO Act.

She relied upon the judgment in C.R.A.No.269 of 2019

between Prasanta Das v. State of West Bengal, dated 4 KS, J

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10.03.2022, delivered by High Court of Calcutta. In the said

judgment, neither certificate that was colleted by the

prosecution to determine the age nor the victim girl was

sent to the medical board for ascertaining the age. Under

the said circumstances, it was held that POCSO Act would

not be attracted for the reason of the prosecution failing to

prove the age of the victim to be less than 18 years.

6. Secondly, learned counsel for the appellant submits

that the P.W.2/victim's evidence does not qualify as a

"sterling witness" and for the reason of several

contradictions and omissions which are apparent from the

evidence on record. Further, she relied upon the judgment

of High Court of Delhi in the case of Hari Mohan Sharma v.

State of NCT of Delhi1, and drawn the attention of the Court

to paras 20 and 21 and argued that the testimony of victim

girl cannot be presumed to be gospel truth and unless the

quality of the sole testimony of the victim cannot be made

basis, unless the quality of "sterling witness" has been

satisfied.

    2016 LawSuit(Del)54
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7. Learned Counsel also relied upon the judgment of the

Hon'ble Supreme Court in the case of State of Assam v.

Mafizudddin Ahmed2, wherein it was held that evidence of

child witness is always dangerous unless it is available

immediately after the occurrence and before there were any

possibility of coaching and tutoring. Further arguing on the

same lines, learned counsel would submit that there is no

corroboration from any independent evidence to the

evidence of P.W.2 and the evidence of P.W.2 cannot be

looked into as she failed the test of being "sterling witness"

and the prosecution case fails and the accused is entitled to

acquittal.

8. The case was instituted when P.W.2/victim girl refused

to attend the school and on persistent questioning by

P.W.1/mother, the victim girl/P.W.2 informed that she was

subjected to rape continuously over a period of time. It was

for the first time that P.W.1/mother came to know about the

state of P.W.2/victim girl and that she was also threatened

(1983) 2 SCC 14 6 KS, J

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by the appellant/accused not to disclose such information

to any one.

9. The evidence of P.W.2/victim girl cannot be disbelieved

only for the reason of there being no independent

corroboration. The circumstances in the present case would

clearly go to show that it was the appellant who in fact had

indulged in committing rape on the victim girl/P.W.2. The

circumstances, apart from the testimony of P.W.2/victim

girl, which, in fact corroborate the testimony of P.W.2 are: i)

The appellant being auto driver commuting P.W.2 to her

school everyday is not disputed; ii) the defence of the

appellant is that it was P.W.2 who was calling the appellant

and demanding pocket money; iii) it is the case of the

accused that P.W.2 was never forced to the abandoned

quarters and it was P.W.2 herself who accompanied the

appellant/accused on her own. Though denied suggestions,

cannot be considered as evidence, however, the suggestions

put forth during the course of cross-examination, in fact,

suggests the defence of an accused in a criminal trial.

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                                                   Crla_294_2020

10. In this case, the specific defence of the appellant is

that P.W.2 was in fact accompanying the appellant to the

quarters independently and it was with the consent of P.W.2

that appellant accompanied her. In the said background of

the defence taken, it cannot be said that the accused was

falsely implicated when the accused himself admits taking

P.W.2 to the abandoned quarters. However, the sole ground

urged is that it was with the consent of P.W.2.

11. The prosecution to prove the age of the victim

girl/P.W.2 produced Ex.P6, which was marked through

P.W.9. As seen from the cross-examination of

P.W.1/mother, P.W.2/victim girl and also P.W.9, Principal of

the school, who issued Ex.P6 bonafide certificate, it was not

even suggested to the said witnesses that the age of the

victim girl/P.W.2 is above 18 years and the date of birth is

07.02.2003 as claimed by P.Ws.1, 2 and 9 is incorrect. For

the said reason, at the stage of appeal, it cannot be urged

that the age of the victim girl/P.W.2 is not what is claimed

and that she was above 18 years. The judgment relied upon

by the learned counsel for the appellant is of no use for the 8 KS, J

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reason it was never the defence of the appellant during the

course of trial that the age of the victim girl is above 18

years.

12. The evidence of P.Ws.1 and 2 is totally reliable and in

fact, their evidence qualifies as 'sterling witness' in the facts

and circumstances of the case and corroborated by medical

evidence. Further the defence taken by the appellant

claiming that the acts of physical relationship with P.W.2

was consensual, cannot be considered for the reason of the

age of the girl.

13. For the aforementioned reasons, the Criminal Appeal is

devoid of merits and accordingly, the same is dismissed. As

a sequel thereto, miscellaneous applications, if any, shall

stand closed.

                                             __________________
                                              K.SURENDER, J
Date: 30.6.2022
kvs
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      HONOURABLE SRI JUSTICE K.SURENDER




          Criminal Appeal No.294 of 2020




                 Date:30.06.2022




kvs
 10            KS, J

     Crla_294_2020