Kanukuntla Shekar vs The State Of Telangana
2023 Latest Caselaw 1588 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

               CRIMINAL APPEAL No.212 of 2021

JUDGMENT :

This appeal is filed challenging the judgment dated

20.04.2021 in Spl.S.C.No.1 of 2016 on the file of IV Additional

District and Sessions Judge (FTC)-cum-Special Court for POCSO

Act cases, Karimnagar, whereby, the appellant was found guilty for

the offences under Sections 366, 420 of IPC and Section 376 of

IPC alternatively Section 4 of POCSO Act and Section 3(1)(x) of

SCs. and STs. (POA) Act. Accordingly, he was convicted and

sentenced to undergo imprisonments of different counts, the

maximum being rigorous imprisonment for a period of Seven years

and to pay a fine of Rs.2,000/-, in default of payment of fine, to

suffer simple imprisonment for three months for the offence under

Section 376 of IPC alternatively Section 4 of POCSO Act.

2. The facts as culled out from the prosecution case are that on

05.01.2015 at 2.40 p.m., a report was preferred by the mother of

the victim girl i.e. PW-1, stating that the accused induced her

younger daughter aged 17 years, with a promise that he will marry

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her after attaining majority and took her from the house on

04.06.2013 to Desharajpalli, kept her in a house, used her sexually

and when the victim asked him to marry her, he dodged it from

time to time. It is further complained that about three months prior

to lodging of complaint, when the victim asked the accused about

their marriage, the accused abused her in filthy language saying,

"Kulam Thakkuva Mala Lanjevi" and drove her out of the house,

upon which, the victim returned to her parents' house. Therefore,

they waited for the accused to come for talks and later preferred the

report.

3. Basing on the report of PW-1, the Sub-Inspector of Police,

LMD Colony P.S. has registered a case in Crime No.1 of 2015 for

the offences punishable under Sections 376, 366, 417 and 420 of

IPC, Section 3 r/w. 4 of POCSO Act and Section 3(1)(x) of SCs.

and STs. (POA) Act, 1989. During the course of investigation, the

investigating officer went to the scene of offence, observed the

scene, prepared the crime detail report, recorded the statements of

witnesses. On 06.02.2015, in order to effect the arrest of the

accused, served Notice under Section 41-A Cr.P.C. asking him to

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appear before them on 07.02.2015. As the accused failed to do so,

he apprehended the accused and on interrogation, the accused

voluntarily confessed the guilt and later, the accused was produced

before the Court for judicial remand. After completion of

investigation, charge sheet was filed against the accused for the

aforesaid offences.

4. The trial Court framed aforesaid charges against the accused,

read over and explained to him. The accused pleaded not guilty

and claimed to be tried. On completion of prosecution evidence,

the accused was examined under Section 313 Cr.P.C. with

reference to the incriminating evidence against him. The accused

denied the evidence and reported no evidence in defence.

5. The trial Court framed the following points for

consideration:

"1. Whether the prosecution has established that the victim was a minor as on the date of offence?

2. Whether the prosecution has established the guilt of the accused for the offence punishable under Sections 417, 420, 366, 376 of IPC, Sec. 3 r/w. 4 of Protection of Children from Sexual

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Offences Act, 2012 and Sec. 3 (1) (x) of SCs./STs.(POA) Act beyond all reasonable doubt ?"

6. On behalf of prosecution, PWs.1 to 16 were examined and

got marked Exs.P-1 to P-21. There was no defence evidence.

7. Heard learned counsel for the appellant and the learned

Public Prosecutor appearing for respondent-State.

8. The points for consideration in this appeal are:

1. Whether the judgment of trial Court needs to be interfered ?

2. Whether the prosecution is able to prove the guilt of the accused ?

9. It is the contention of the learned counsel for the appellant

that the judgment of the trial Court needs to be reversed, as the

prosecution has miserably failed to bring home the guilt of accused

for the offences charged. It is specifically contended by the

learned counsel for appellant that the age of the victim was not

established by proper document, though it is the contention that the

age of the victim was 17 years as on the date of the offence.

Except the victim and her mother, the rest of the prosecution

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witnesses have turned hostile and none of them have supported the

case of the prosecution. The date of the alleged offence was

05.01.2015 and the victim was examined by the Police on

09.01.2015 after a lapse of four days, and therefore, it is contended

by the learned counsel that the Police have managed and collected

evidence against the accused. Accordingly, he prayed to set aside

the judgment of the Sessions Court and to acquit the accused.

10. On the other hand, the learned Public Prosecutor contended

that the prosecution has successfully established the guilt of the

accused for the offences charged, and therefore, there is no error or

irregularity in the judgment of the Sessions Court and prayed to

dismiss the appeal.

11. On perusal of the record, it is evident that PW-1/complainant

is the mother of the victim, PW-2 is the victim, PWs.3 and 4 are

the brother and father of the victim, PWs.5 to 8 and 13 are the

witnesses to speak about the stay of accused along with the victim

at Desharajpalli, PW-9 is the panch witness for the first scene of

offence i.e. the house of one Mallesham in Renikunta village,

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where, the alleged victim and the accused lived together, PW-10 is

the panch witness for the second scene of offence i.e. the house of

PW-5 at Desharajpalli, who is supposed to speak about the stay of

accused and victim in the said house.

12. PWs.3 to 8 and 13 i.e. including the brother and father of the

victim, have turned hostile and did not support the case of the

prosecution. Their statements recorded under Section 161 Cr.P.C.

are marked as Exs.P-2 to P-7 and P-14 respectively. The first

crime detail form is Ex.P-8 and the second crime detail form is

Ex.P-9. Though PWs.9 and 10 are examined, nothing could be

established by the prosecution, as to the stay of the victim and the

accused in the said houses. Hence, it can be construed that none of

the witnesses supported the case of the prosecution about the stay

of victim and accused in the said houses.

13. PW-11 is the Doctor, who examined the victim girl and

deposed that the hymen of the victim girl is not intact and vagina is

admitting two fingers without pain. PW-11 sent the vaginal smears

and swabs of the victim to RFSL through Police. Later, basing on

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the report of the RFSL dated 27.02.2015, she has given her final

opinion that sexual assault might have occurred. Ex.P-10 is the

examination report of the victim girl, Ex.P-11 is the RFSL report

and Ex.P-12 is the final opinion given by PW-11.

It is pertinent to mention that PW-11 in her

cross-examination, has specifically deposed that the victim girl did

not disclose about the sexual assault.

14. PW-12 is the Tahsildar who furnished the caste proceedings

of PW-1 and the accused. As per Ex.P-13 i.e. the proceedings of

caste certificate, it is evident that PW-1 belongs to Scheduled Caste

(Mala) community, whereas, the accused belongs to 'BC'

(Padmashali) Community.

15. PW-14 is the Deputy Superintendent of Police, who testified

that on receiving Ex.P-1/report from PW-1, the S.I. of Police, LMD

Colony P.S. registered the crime. Later, he took up investigation.

During the course of investigation, he recorded the statements of

the prosecution witnesses, visited the crime scenes at Renikunta

and Desharajpalli villages, secured the presence of witnesses and

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prepared Ex.P-9/Crime Detail form and drawn rough sketch of

scene of offence, referred the victim girl to Government hospital,

Karimnagar for medical examination, obtained proceedings of

caste of the complainant and the accused and served notice under

Section 41-A of Cr.P.C. on the accused. As the accused confessed

the guilt of committing the offence, he referred him to Government

hospital for procuring potency certificate and later produced him

before the Court for judicial remand. Ex.P-17 is the potency

certificate. His evidence further disclose that he forwarded the

vaginal smears and swabs of the victim, preserved by the Medical

Officer, to RFSL, Karimnagar. Ex.P-18 is the forwarding letter.

Ex.P-19 is the letter of advice. He collected the date of birth

certificate of the victim/PW-2 from Zilla Parishad High School,

Renikunta village, which shows that the date of birth of victim is

10.04.1997. Ex.P-20 is the date of birth certificate of PW-2 and

Ex.P-21 is the requisition of PW-14 to the Court requesting to send

the accused for potency test.

16. PW-15 is the Headmaster of Zilla Parishad High School,

Renikunta. His evidence disclose that he issued Ex.P-20/the date

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of birth certificate of PW-2, who studied from 6th to 10th Class in

the said school. As per Ex.P-20, the date of birth of PW-2 is

10.04.1997. In the cross-examination, it is specifically deposed by

PW-15 that basing on the Transfer Certificate of the Primary

School, they have entered the date of birth in the admission register

and he cannot say basing on which document, the date of birth was

mentioned in the primary school records.

17. PW-16 is the Doctor, who examined the accused and issued

potency certificate/Ex.P-17, opining that there is nothing to suggest

that the accused cannot perform sexual act.

18. Out of the above evidence, the evidence of PWs.1 and 2 is

only crucial to see whether the ingredients of the offences charged

against the accused are attracted or not. The evidence of PW-1 can

be treated as a hearsay evidence. The basis for her lodging the

complaint as well as her deposition was entirely based on the

information alleged to have been given to her by PW-2/victim girl,

who is her daughter. PW-1, in her cross-examination, has

specifically deposed that PW-2 passed 10th Class prior to the

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incident and further deposed that her husband borrowed

Rs.50,000/- from the father of the accused, prior to the incident and

till date, they did not repay the said amount to the father of the

accused, and on the said issue, panchayats also took place. It is

also admitted by PW-1 that PW-2 possessed cell phone when she

was studying 9th Class and PW-2 was not on talking terms with her

during the stay of PW-2 at Desharajpalli, though she used to visit

the house of PW-1.

19. It is pertinent to mention that though the victim girl left the

house on 04.06.2013, neither PW-1 nor PW-4, who are the parents

of the victim girl, gave any report to the Police with regard to her

missing. Further, it is the victim girl/PW-2, who testified that on

04.06.2013, when her parents went to coolie work, she was

forcibly kidnapped from her house, in the evening hours by the

accused on the ground that he would marry her. Ex.P-1/report

was dated 05.01.2015. As to why the parents of the victim nor the

victim preferred the report till 05.01.2015 when the victim was

kidnapped on 04.06.2013, is not at all explained by the

prosecution. Furthermore, the evidence of PW-2 does not disclose

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that she made hue and cry at the time of kidnap though she

travelled all the way from Renikunta village to Desharajpalli

village along with the accused in a public transport. The complaint

was preferred after lapse of two years. It is the specific allegation

of the victim girl that she stayed with the accused in a rented house

at two places and the accused, made false promise of marrying her

and forcibly committed sexual intercourse with her. What made

the victim girl not to prefer a report for such long period, is not

at all explained by the prosecution.

20. The entire contents of Ex.P-1 disclose that as the accused

was not ready to marry the victim girl, filed the present complaint,

and the contents of Ex.P-1 does not attract the ingredients of any of

the offences charged against the accused. The evidence on record

shows that the victim had voluntarily stayed with the accused.

Furthermore, it is the evidence of PW-1 that prior to the incident,

the victim passed 10th Class. If at all the victim has passed 10th

Class, the SSC Certificate could have been produced before the

Court, but as to why such certificate is not filed before the Court, is

not explained by the prosecution. Moreover, Ex.P-20 is the

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bonafide/study certificate issued by PW-15, and as per the said

certificate, the date of birth of the victim is 10.04.1997 and it was

issued basing on the entry of date of birth in the admission register.

Ex.P-20 can be relied on by the prosecution, if the victim has not

passed SSC Board examination. But as per the evidence of PW-1,

the victim has passed SSC Board examination, and therefore, the

non-production of the Board Certificate before the Court is fatal to

the case of the prosecution. PWs.11, 12 and 14 to 16 are the

official witnesses in this case. Their evidence only disclose the

events, subsequent to the report given by PW-1. PW-11 is the

Medical Officer, who initially examined the victim girl and stated

that the hymen was not intact and vagina was admitting two fingers

without pain, which clearly disclose that the victim had sexual

intercourse. But the RFSL report clearly disclose that sperm and

spermatozoa were not detected on the vaginal swabs and smears. It

is relevant to mention that the victim was referred to medical

examination after four days of registration of the crime. Moreover,

the evidence of PW-1 disclose that they waited for the accused to

come for talking terms for a period of two months. Therefore,

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there is no possibility of having sperms or spermatozoa on the

samples collected by the Doctor. Though the prosecution

subjected the accused for potency test and filed the potency

certificate, in the absence of proper evidence on record, to connect

the accused with the crime, it is not at all useful. Except the

evidence of PW-2, there is no evidence on record to show that the

accused had kidnapped the victim from the house of PW-1, took

her to Desharajpalli village, stayed there with a promise of

marriage and forcibly had sexual intercourse with her. None of the

witnesses supported that the accused and victim stayed together

either at Renikunta or Desharajpalli. Further, as to why the parents

of the victim remained silent for a period of two years when the

victim was taken away from their house, is not at all explained by

the prosecution. Moreover, PWs.3 and 4 who are the brother and

father of the victim, also turned hostile and did not support the case

of the prosecution. The evidence of PW-1 also disclose that she

was not on talking terms with PW-2 when she was staying at

Desharajpalli. Hence, it can be construed that the present

complaint has been filed against the accused when he refused to

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marry the victim girl. Furthermore, the evidence of PW-1 also

disclose that PW-1 has taken an amount of Rs.50,000/- from the

parents of the accused, which was not repaid till the date of trial.

Though the charge was framed for the offence punishable under

Section 3(1)(x) of SCs. and STs. (POA) Act, there is no

corroborating evidence, except the evidence of PW-2.

21. In view of the aforesaid discussion, it can be concluded that

the prosecution has miserably failed to prove the guilt of the

accused beyond reasonable doubt and the trial Court has erred in

convicting the accused for the aforesaid charges. In the absence of

any corroboration as to the allegation of forcibly kidnapping the

victim girl and of committing rape on her, this Court is of the

considered view that the judgment of the trial Court needs to be set

aside.

22. In the result, this appeal is allowed, setting aside the

judgment dated 20.04.2021 in Spl.S.C.No.1 of 2016 on the file of

IV Additional District and Sessions Judge (FTC)-cum-Special

Court for POCSO Act cases, Karimnagar. The appellant shall be

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released forthwith, if not required in any other case. The bail

bonds of accused shall stand cancelled.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 12.04.2023

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