Guda Mahender vs The State Of Telangana
2022 Latest Caselaw 3170 Tel

            HONOURABLE SRI JUSTICE K.SURENDER

                  CRIMINAL APPEAL No.219 of 2021


JUDGMENT:

1. The appellant/accused convicted for the offence under

Section 366-A and sentenced to undergo rigorous

imprisonment for a period of five years and to pay fine of

Rs.1,000/-, in default, to undergo simple imprisonment for

six months, and also sentenced to undergo rigorous

imprisonment for a period of ten years and to pay fine of

Rs.1,000/-, in default, to undergo simple imprisonment for

a period of six months for the offence under Section

376(2)(n) of IPC and also to pay fine of Rs.500/-, in default,

to undergo simple imprisonment for a period of one month

for the offence under Section 342 of IPC by judgment dated

20.04.2021 in S.C.No.578 of 2017 passed by the Special

Judge for Trial of cases under POCSO Act-cum-IX

Additional District & Sessions Judge (FTC), Ranga Reddy

District at L.B.Nagar. Aggrieved by the same, present appeal

is filed.

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

father of the victim/P.W.2 filed a complaint on 20.02.2017 2 KS,J

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stating that his daughter was missing from 12.02.2017

morning hours after she left for school, she did not return

and suspected the appellant herein. Accordingly, the

appellant was shown as accused in the FIR registered under

Section 366 of IPC. On 24.02.2017, the police informed

P.W.1 that the victim girl/P.W.2 came to the police station.

When questioned, P.W.2/victim girl stated that the accused

had taken her by force stating that he would marry her.

They went to Udemgadda and stayed in a room and she was

continuously raped during the said period. On the basis of

the said statement by P.W.2, section of law was altered and

Sections 342, 376 (2)(f)(i)(n) of IPC and Section 3(a) r/w

Section 4 of POCSO Act were added. Accordingly, the

appellant was charged and tried for the said offences.

3. Learned counsel for the appellant was continuously

absent, for which reason, the learned Assistant Public

Prosecutor was heard and reserved for the judgment.

4. P.W.2 stated in her chief examination that her date of

birth is 17.12.2000 and she is acquainted with the

appellant. The appellant used to follow her on the way to

school and stated that he was interested in her and would 3 KS,J

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marry her. On 12.07.2017 at 8.30 a.m, while she was going

to school, the appellant told her that he has taken a room at

Udemgadda and wanted her to accompany him. However,

P.W.2 refused, as such, the appellant threatened her.

Thereafter, both of them went to Udemgadda by bus. On

24.02.2017, the appellant left the room and forgot to bolt

outside, for which reason, P.W.2 escaped from the said

place and one woman constable saw P.W.2 and took her to

the police station. Thereafter, the father P.W.1 called.

5. The Police, during investigation also recorded the

statement of P.W.2 under Section 164 of Cr.P.C, and a

portion was marked as Ex.D1.

6. The medical examination of P.W.2 was done by P.W.5

and found that hymen of P.W.2 was ruptured. P.W.5

collected two slides of smear, pubic hair and nail clippings

and sent them to FSL for examination. However, no semen

was detected. On the said basis, P.W.5 issued Ex.P5 final

opinion stating that possibility of sexual intercourse could

not be ruled out.

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7. The date of birth of P .W.2, according to the

prosecution case is 17.12.2000. Ex.P8 dated 15.10.2014 is

the bonafide certificate that is filed certifying that P.W.2 was

studying 8th class during the year 2014-15. However, no one

was examined from the school. P.W.11, the Investigating

Officer marked Ex.P8, which is the bonafide certificate of

P.W.2.

8. P.W.2 has not explained the delay of 9 days in filing

the complaint Ex.P1 though according to Ex.P1, he

suspected the appellant herein. No reasons are given as to

why there is a delay of nearly 9 days in lodging Ex.P1

complaint.

9. P.W.2 during the course of cross-examination stated

that they stayed in a room for 12 days. Sometimes P.W.2

cooked food and sometimes appellant cooked food. However,

they were not married. She further stated that there is no

attached toilet or bathroom in the room and there is a

compound wall. A toilet was situated outside the room

inside the compound wall, where there were many houses

and for the 12 days. She used the bath room by going out of

the room for taking bath and washing clothes. Further it 5 KS,J

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was elicited during cross-examination under Ex.D1 that she

stated before the Magistrate that on 13.02.2017, she

approached the appellant herein and requested to marry

her. But the appellant denied stating that P.W.2 did not

attain majority. However, P.W.2 pleaded with him and

finally having been convinced, they have taken decision to

live separately and accordingly, they have taken room at

Udemgadda on rent basis.

10. As seen from the admissions of P.W.2, there was never

any force by the appellant in any manner either to

accompany him or staying at room in Udemgadda. The

admission by P.W.2 that they stayed together and she was

cooking sometimes and appellant was cooking when she

was not cooking and she was using the bathroom outside

the house where there were several houses would speak

volumes of her stay on her own volition without any force.

In the said circumstances, it cannot be said that P.W.2 was

not voluntarily staying with the appellant.

11. The main reason for convicting the appellant is age of

P.W.2 and the date of birth of P.W.2 is stated as 17.12.2000

on the date of incident she was about 17 years and less 6 KS,J

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than 18 years. Though P.W.1 did not mention the date of

birth of his daughter, however, he stated that she was

studying 10th class in Government School at Shamshabad.

12. The prosecution did not file any proof from the said

school where P.W.2 was studying that is Government High

School, Shamshabad, but the certificate under Ex.P8 was

collected by P.W.11, which is from Zillaparishad High

School. No person issuing the said certificate was

examined. The prosecution failed to explain as to why

certificate was not collected from the school where she was

studying at the time of incident. Further, the certificate

Ex.P8 is not proved through the person issuing it or any one

from the said school to identify the correctness or

genuineness of the certificate Ex.P8. For the said reason of

the father not ascertaining the date of birth of P.W.2 and

also in the absence of any certificate issued by the hospital

or municipal authorities, certifying the date of birth at the

time of birth of P.W.2, no reliance can be placed upon Ex.P8

to infer that the age mentioned therein is correct. Merely

marking Ex.P8 will not dispense with the proof and the 7 KS,J

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contents, date of birth mentioned therein cannot be taken

into consideration.

13. It is not out of place to mention that the date of birth

of children is normally informed by the parents depending

upon the class they are joining their children. Unless there

is evidence authentic enough to substantiate the date of

birth of P.W.2 as 17.12.2000, it cannot be said that the date

of birth as claimed by the prosecution is correct. It is further

doubtful for the reason of P.W.2 stating that she was 17

years age whereas she was studying 10th class. However, in

the normal circumstances, student of 10th class are aged

around 15 years. For the said reason when the age of

P.W.2/victim whose age as projected by the prosecution is

suspicious and not proved, under the said circumstances,

when the conviction is based upon the fact that she was

below 18 years, the conviction cannot be sustained and

benefit of doubt has to be extended to the accused herein.

14. For the aforesaid mentioned reasons, the Criminal

Appeal is allowed by setting aside the impugned judgment 8 KS,J

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dated 20.04.2021 in SC No.578 of 2017. His Bail bonds

stand cancelled. As a sequel thereto, miscellaneous

applications, if any, shall stand closed.

                                            __________________
                                             K.SURENDER, J
Date: 30.6.2022
kvs
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                                           Crla_219_2021



      HONOURABLE SRI JUSTICE K.SURENDER




          Criminal Appeal No.219 of 2021




                 Date:30.06.2022




kvs
 10            KS,J

     Crla_219_2021