Neeli Krishnaiah, Rr.Dt., vs State Of Telangana, Hyd.,
2023 Latest Caselaw 4311 Tel

Telangana High Court

Neeli Krishnaiah, Rr.Dt., vs State Of Telangana, Hyd., on 13 December, 2023

Author: K.Lakshman

Bench: K.Lakshman

           THE HON'BLE SRI JUSTICE K.LAKSHMAN

                                AND

            THE HON'BLE SMT JUSTICE K. SUJANA


               CRIMINAL APPEAL NO.395 OF 2015

JUDGMENT:

(per Hon'ble Smt Justice K.Sujana)

This appeal is filed by the appellant/accused against the

judgment in S.C.No.65 of 2014 on the file of Special Sessions

Judge at Mahabubnagar, FAC Judge, Family Court-cum-VIII

Additional Sessions Judge, Mahabubnagar, wherein the appellant

is convicted for the offence punishable under Section 376 (2) (f) of

the Indian Penal Code (for short 'IPC') and sentenced to undergo

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

Rs.5000/- and in default of payment of fine to undergo simple

imprisonment for a period of one year. He is also convicted for the

offence punishable under Section 506 of the IPC and sentenced to

undergo rigorous imprisonment for a period of seven years and to

pay fine of Rs.2000/- and in default of payment of fine to undergo

simple imprisonment for a period of six months. The appellant is

also convicted for the offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act (for short 'POCSO

Act') and sentenced to undergo rigorous imprisonment for a period

of seven years and to pay fine of Rs.5000/-, and in default of KL,J &SKS,J

payment of fine to undergo simple imprisonment for a period of six

months and he is also convicted for the offence punishable under

Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act') and

to pay fine of Rs.5000/-, and in default of payment of fine to

undergo simple imprisonment for a period of one year and all the

sentences were directed to run concurrently.

2. The facts of the case as per the prosecution is that accused

is the driver of auto bearing No.AP 22 TA 2558 and he used to pick

up school children of Vivekananda English Medium School, Kosgi

and other school children from their homes in the morning and to

drop them at their homes after their school hours in the evening.

The victim in this case is aged about 8 years and daughter of

defacto complainant; she used to travel in the auto of

appellant/accused to go to school. On 17.07.2013 at about 17.00

hours, the accused picked up the victim girl along with other

school children from their school to drop them at their villages.

On the way he dropped other students for playing and took the

victim girl alone in the same auto towards bushes and committed

rape on her by threatening her with dire consequences, if she

disclosed about the incident to anybody and later dropped at her

house in the same auto. On 19.07.2013 as the victim girl was KL,J &SKS,J

seen weeping while urinating, on enquiry made by the defacto

complainant, she told about the incident occurred on 17.07.2013.

Later, the defacto complainant gave complaint to the police Kosgi,

the matter was investigated and charge sheet was filed for the said

offences.

3. To prove the case, prosecution examined Pws.1 to 8 and

Exs.P.1 to P.10 are marked. Basing on the said evidence and after

hearing both sides, the trial Court convicted the accused as stated

supra.

4. Heard Smt B.Vyjayanthi, learned counsel for the appellant

and Learned Assistant Public Prosecutor, appearing for the

respondent-State.

5. Learned counsel for the appellant would submit that the

trial Court without going into merits of the case wrongly convicted

the appellant and he is falsely implicated in this case as he

supported the school management in a dispute between school

authorities and defacto complainant. Therefore, the defacto

complainant bore grudge against him and filed a false case and

there is delay of three days in lodging Ex.P.8 FIR. He further

submits that Pw.3 is a minor girl, aged about 8 years and her

evidence cannot be believed in convicting the appellant. As such, KL,J &SKS,J

prayed the Court to set aside the judgment of trial Court by

acquitting the appellant.

6. On the other hand learned Public Prosecutor would submit

that the offence committed by the appellant is heinous offence on

a girl child aged about 8 years. The evidence of PWs.1 to 3 is

corroborating with each other and the judgment of trial Court is

well reasoned. As such, prayed the Court to dismiss the appeal.

7. To prove the case prosecution examined PWs. 1to 8 and

basing on the said evidence the trial Court convicted the appellant

8. Now, the point for consideration is whether the prosecution

proved the guilt of the accused for the offences under section 376

(2) (f) and 506 of IPC, Section 3 (2) (v) of the SC/STs (POA) Act,

1989 and under Section 4 of the POCSO Act.

POINT :

9. Pw.1 is the defacto complainant and mother of victim and

her evidence is that she joined her daughter-victim in 3rd class in a

private school at Kosgi and shed used to send her to school at

9.00 a.m. The appellant/accused is the driver of auto and he used

to take her daughter to school and drop her in the evening at 5.00

p.m. She deposed that about 13 months back, one day her

daughter complained that she is getting pain in vagina while KL,J &SKS,J

passing urine and on her enquiry, she revealed that two days prior

to that day, the accused while returning from the school took her

into the bushes and asked her to sit on him and removed her

clothes and by threatening her, committed rape on her and also

threatened not to disclose to anybody. Pw.1 further deposed that

as usual, one day, the accused took her daughter to the school in

the same auto, she along with her son followed him on bike upto

school and the accused dropped some of the children in their

respective schools. They waited at the school of her daughter and

after the accused dropping her daughter at school, her son

stopped the accused in front of the school, pulled him from auto

and bet him. Later the school authorities enquired her daughter

about the incident and she revealed the same to the school

authorities. Though the school authorities gave assurance that

they will enquire about the matter, they have not trusted them and

gave complaint to the police.

10. Pw.2 is the victim and she deposed that on the date of

incident at about 4.00 p.m., accused while bringing her to house

from school, on the way he took her into the bushes. On seeing

the bushes when she was weeping, he asked not to weep and

removed her clothes and made dirty acts against her. He also

threatened her not to reveal the same to anyone, otherwise to kill KL,J &SKS,J

her and at 4.30 p.m., he dropped her in her house in auto. After

that incident, she suffered with pain while passing urine and two

days after she informed the entire incident to her mother. On the

next day her mother and brother followed the auto and her brother

beat the accused and later they gave complaint to the police, police

sent her to hospital for treatment, and her statement was recorded

by the Judicial First Class Magistrate, Narayanpet.

11. Pw.3 is a panch for seizure panchanma. He deposed about

seizure of auto belonging to the accused. Pw.4 is the panch for

scene of offence panchanama and he deposed about panchanama

conducted by the police.

12. Pw.5 is the doctor who examined the victim. According to

her it can be a rape or an accidental injury. Pw.6 is the Deputy

Superintendent of Police, investigating officer and she deposed

about the investigation done by her and she arrested the accused

and sent him for potency test. Pw.7 is the doctor who conducted

potency test of the accused. According to Ex.P.10 there is nothing

to suggest that accused is not capable of performing sexual act.

Pw.8 is the S.I. of Police, who conducted seizure panchanama and

seized auto and apprehended the accused.

KL,J &SKS,J

13. The charges framed against the accused are under Sections

376 (2) (f), 506 of IPC, under Section 3 (2) (v) of SC/ST Act and

under section 4 of the POCSO Act.

14. To prove the offences against the accused, the evidence of

Pw.2 who is the victim and the evidence of defacto complainant are

corroborating with each other. Pw.2 victim deposed that on the

date of incident accused threatened her and took her into the

bushes and committed rape on her. The victim is a minor girl

aged about 8 years. Her statement under Section 161 Cr.P.C., and

the evidence on record is consistent and there are no

contradictions in her statement given to the police and before the

judicial officer and there is no ground to disbelieve her evidence.

15. Pw.1 is the mother of victim and her evidence is that victim

complained about pain while urinating, and when she enquired,

the victim disclosed about the incident, they went to school and

her son beat the accused. The defense of the accused is that when

a dispute arose between Pw.1 and school authorities, he stood on

behalf of school authorities, as such, Pw.1 bore grudge on him and

filed false case. To that extent there is no cross-examination of

deponent that disputes arose between school authorities and Pw.1

and the offence under Section 376 of IPC cannot be foisted falsely

at the cost of reputation of her minor daughter. Though Pws.1 KL,J &SKS,J

and 2 are cross-examined at length, nothing was elicited to

disprove the case of prosecution. The further contention of

learned counsel for the appellant is that there is delay in lodging

FIR. As the victim revealed about the incident two days after the

occurrence, the delay is not fatal to the case of prosecution and it

is quite natural in a case of this nature against a minor girl.

Learned counsel for the appellant also argued that the evidence of

Pw.5- medical officer is not supporting the prosecution to prove

the rape, whereas the evidence of Pw.5 is that as per the FSL

report smear and spermatozoa was not detected on the smears,

whereas she deposed that it can be a rape or an accidental injury.

Not detecting spermatozoa is not fatal to the prosecution case.

Further the injuries on the victim girl prove the incident, as such,

there is no force in the contention of learned counsel for the

appellant with regard to the evidence of medical officer.

16. The evidence of Pws.1 and 2 coupled with the evidence of

Pw.5 proves accusations against the appellant. Further the

evidence of victim reveals that accused threatened her not to

reveal the incident. Therefore there are no infirmities in the

judgment of the trial Court with regard to conviction of the

appellant for the offence under Section 376 (2) (f) of the IPC and

also under Section 4 of the POCSO Act. However, the accused was KL,J &SKS,J

also convicted for the offence under Section 3 (2) (v) of the SC/ST

Act, and sentenced him to undergo life imprisonment.

17. To prove the offence under Section 3 (2) (v) of the SC/ST Act

prosecution has to prove that accused committed rape on victim

on the ground of her community as the offence took place in the

year 2013, i.e., before Amendment of the Act, 2016. To prove that,

though prosecution relied on the evidence of Pws.1 and 2, none of

them deposed about the community nor the investigating officer

deposed that during her investigation both Pws.1 and 2 stated

about the same. In the evidence of Pw.6-Deputy Superintendent

of Police, she has not stated that while recording the statement of

Pws.1 and 2 under Section 161 Cr.P.C., they have stated that the

accused committed the offence knowing fully well that they belong

to SC/ST community. Therefore, Pw.6 evidence is also not useful

to the prosecution to prove the offence under Section 3 (2) (v) of

the SC/ST Act.

18. In this regard the Apex Court in Patan Jamal Vali Vs The

State of Andhra Pradesh 1 held as under :

"65. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution

1 2021 SCC Online Sc 343 KL,J &SKS,J

on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence - whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.

66. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:

"8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, KL,J &SKS,J

the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]"

67. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of gendered violence against women from SC & ST communities. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these."

68. However, since Section 3(2) (v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside."

KL,J &SKS,J

19. In the present case also going through the evidence on

record, neither Pw.1 nor Pw.3 deposed about their caste. Pw.1

also not deposed anything against the accused that on the ground

of community, accused committed the offence against the victim.

Therefore, there is no evidence on record to prove the offence

under Section 3 (2) (v) of the SC/ST Act, except in Ex.P.1

complaint. As such the conviction under Section 3 (2) (v) of the

SC/ST Act is without any evidence and therefore, the same is set

aside.

20. The parents of the victim engaged services of accused auto

driver, believed him and sent their girl child in his auto. The victim

girl who is aged about 8 years believed the words of accused, she

was taken by the accused under the guise of taking her to home,

taken her to secluded place and committed rape on her. Though,

defense of the accused that false case is filed against him, no

cogent reason is elicited in cross-examination to prove the same.

Therefore, there is no illegality in convicting the accused for the

offence under Section 376 (2) (f) of IPC and Section 4 of the POCSO

Act. Further, the accused threatened her not to reveal the

incident to anybody and threatened to kill her. As such, the

offence under Section 506 of IPC is also proved by the prosecution.

Accordingly, the point is answered.

KL,J &SKS,J

21. IN THE RESULT, the Criminal Appeal is partly allowed. The

conviction under Section 3 (2) (v) of the SC/ST Act, is hereby set

aside, whereas, the conviction and sentence imposed against the

appellant/accused for the offences under Sections 376 (2) (f) and

506 of IPC and under Section 4 of the POCSO Act, is hereby

confirmed. The accused is in jail from 20.08.2013 to till date. As

he has already undergone 10 years 3 months of sentence in jail

and as all the sentences were run concurrently, the sentences

imposed on him is reduced to the period already undergone by

him. The appellant/accused is set at liberty forthwith, if he is not

required in any other case or crime. The bail bonds of the accused

shall stand cancelled.

Miscellaneous applications, if any, pending in this Criminal

Appeal shall stand closed.

_________________ K.LAKSHMAN, J

______________ K. SUJANA, J Date :13.12.2023 Rds