Telangana High Court
Badak Pandey vs The State Of Telangana on 29 November, 2023
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.1 OF 2022
Between:
Badak Pandey ... Appellant
And
The State of Telangana,
rep. by Public Prosecutor,
High Court of Telangana.
..Respondent
DATE OF JUDGMENT PRONOUNCED :29.11.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No.1 of 2022
% Dated 29.11.2023
# Badak Pandey ... Appellant
And
$ The State of Telangana,
rep. by Public Prosecutor,
High Court of Telangana ... Respondent
! Counsel for the Appellant: Smt.Kathyaeni Ramshetty
^ Counsel for the Respondents: Public Prosecutor
>HEAD NOTE:
? Cases referred
3
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 1 of 2022
JUDGMENT:
1. This Criminal Appeal is filed aggrieved by the judgment in SC
No.249 of 2016 dated 16.10.2021 passed by the Metropolitan
Sessions Judge, Cyberabad at L.B.Nagar whereby, the appellant
was convicted and sentenced to undergo rigorous imprisonment for
a period of three years for the offence under Section 7 read with
Section 8 of the Protection of Children from Sexual Offences Act,
2012 (for short "the Act").
2. The case against the appellant, according to the victim girl is
that she was studying 6th class in St. Mary School. P.W.1 is her
mother. L.W.3 is her father. She knows the appellant. He used to
reside in the second floor of the building. They used to stay in the
first floor of the building. On 13.09.2015 after victim and her sister
came back from school, they left the bag at home and went out
opposite to their house for attending nature call in open place. After
that, the accused, who was residing in the second floor, lifted her
and took under the tree and removed her dress and slept on her.
Then, she shouted and called her mother (P.W.1), who came, lifted
the accused and slapped him. Thereafter, P.W.1 called the father of
the victim girl and also brother and both of them beat the appellant
and handed over to the police and lodged complaint. The victim girl
was examined by the police. Thereafter, she was taken to the
Magistrate Court wherein the learned Magistrate recorded her
statement.
3. On the basis of the complaint filed by P.W.1, the mother of the
victim girl/P.W.2 narrating the said facts, crime was registered.
After investigation, the police filed charge sheet.
4. Learned Sessions Judge examined P.Ws.1 to 8 and marked
Exs.P1 to P5 on behalf of the prosecution. The appellant examined
two witnesses in defence.
5. Learned Sessions Judge found the appellant guilty and
convicted as stated supra.
6. Learned counsel appearing for the appellant would submit
that the trial Court committed an error in convicting the appellant
when there are clear inconsistencies and improvements made
during the course of trial by the witnesses. There also discrepancies
in records regarding the way in which investigation had taken
place. In fact, at the earliest point of time, the evidence was that
one person (narrated as oka vyakthi, when translated into English,
is one person) committed the alleged offence. However, the mother
states that she knew the appellant six months. If that is the case, it
is highly improbable that at the initial stages, it was referred that 'a
person' had committed the offence and did not specify the name of
the appellant who was residing in the very same building.
P.W.2/victim girl statement cannot be believed since the date of the
alleged incident which is 13.09.2015 was a Sunday. The question of
going to school and coming back would not arise. The victim was
tutored to make a false statement against the appellant. During the
course of cross-examination of the victim girl, there are several
discrepancies, which go to the root of the case. The details of the
wearing apparel were not given.
7. Learned counsel further submits that the evidence does not
disclose that there was sexual intent on the part of the accused.
The witness did not establish the presence of the accused at the
scene. It was not firmly established as to where the incident
occurred. Different witnesses gave different versions on the scene of
offence. None of the witnesses had clearly stated about the scene as
to where the alleged incident had taken place. The alleged witness
P.W.3 was not present at the scene as claimed by him. It is evident
from the fact that there are discrepancies regarding apprehending
or assaulting the appellant. In the absence of any convincing
evidence, prosecution's failure to establish the case against the
appellant, the trial Court committed error in invoking the
presumption under Section 29 of the Act.
8. It was further argued that there is any amount of delay in
recording Section 164 Cr.P.C statement and the victim was never
sent for medical examination. The victim ought to have been
examined by a woman police officer, which was not done. The
roommates of the appellant were not examined and the
Investigating Officer did not know that the appellant was living
along with D.Ws.1 and 2.
9. Further D.Ws.1 and 2 entered into the witness box and spoke
about the father of the victim being an alcoholic and was constantly
fighting with the appellant. In fact on 13.09.2015, there was a
quarrel between the father of the victim girl namely Venkatesh
(LW3) regarding drinking water connection. In fact, he harassed the
appellant and lodged a false complaint. Though the father was
examined during the course of investigation and statement was
recorded, however, he was given up during the course of trial. There
are no criminal antecedents of the appellant and on account of
such clear discrepancies in investigation and also the statements of
witnesses, conviction has to be set aside.
10. The victim was aged around seven years when the alleged
incident had taken place. The incident occurred on 13.09.2015 and
complaint was also lodged on the same day. In the complaint, it was
stated that when the victim girl went to answer nature calls, the
appellant had misbehaved with her by lying on her. The appellant
was beaten with the help of neighbours and he was taken to the
police station.
11. The said version is consistent both in the statement made
during the course of investigation and also before the Court.
Though the witnesses were cross-examined extensively, the basic
version of the victim going to answer nature call and the appellant
lying on her is consistent. Though several contradictions were
brought on record regarding the statements made and also the
scene of offence, such minor discrepancies will not in any manner
affect the version of the victim girl. No parent would go to the extent
of falsely implicating a person stating that the 7 year old child was
abused. A seven year old girl would not speak with such clarity and
withstand cross examination, if the incident had not taken place.
In view of above facts and circumstances, there are no grounds to
interfere with the judgment of the trial Court.
12. The concerned Court shall cause appearance of the accused
and send him to prison to serve out the remaining part of the
sentence.
13. Criminal Appeal is dismissed. Consequently, miscellaneous
applications, if any, shall stand dismissed.
__________________
K.SURENDER, J
Date: 29.11.2023.
Note: LR copy to be marked.
B/o.kvs
HONOURABLE SRI JUSTICE K.SURENDER
Date:29.11.2023
kvs
