Telangana High Court

Enaganti Chennaiah vs The State Of Telangana on 22 September, 2023

Bench: K.Surender

         THE HONOURABLE SRI JUSTICE K.SURENDER


               CRIMINAL APPEAL No.222 OF 2021

JUDGMENT:

1. The appellant is questioning his conviction vide judgment in

Sessions Case PCS No.106 of 2021 dated 26.04.2021 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 'the Act of 2012') wherein he was

sentenced to undergo rigorous imprisonment for a period of twenty

years for the offence under Section 6 of the Act.

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

of the victim lodged written complaint on 11.12.2020 at 7.00 PM

stating that she has two daughters. Further on 11.12.2020, when

she came back from work, she did not find the victim girl. She went

out and found that she was looking scared. On enquiry, victim girl

stated that she went to the house of the appellant when he called

her. Thereafter, around 2.00 p.m, the victim girl was taken for toilet

and the girl started crying while urinating. On checking her private

part, she noticed reddish coloration of her private parts. Same was

informed to the husband and they went to the police station and

lodged the complaint.

3. The police, having investigated the case found that this

appellant has taken the victim girl/P.W.6 and given her a toy and

closed the door. He removed his lungi and thereafter slept on the

wooden bed. He put his index finger in the private part and rubbed

his penis on the victim girl. For the said reason, the appellant was

charge sheeted for the offences under Sections 376(A)(B), 363 of

IPC and Sections 6 r/w 5 (m) of the Act of 2012.

4. Learned Sessions Judge having examined the victim girl and

other witnesses found that this appellant was guilty of the offence

under Section 6 of the Act of 2012 and sentenced to 20 years

rigorous imprisonment. Compensation of Rs.50,000/- was also

directed to be paid to the victim girl by the MLSA and also imposed

fine of Rs.25,000/- directed to be paid by the appellant.

5. Learned counsel for the appellant would submit that

according to the evidence of victim girl and the medical evidence, it

would reflect that fourchette is not part of private part of the victim

girl. It cannot be said that offence would be attracted. The

definition under Section 5 of the Act of 2012 would be attracted. In

fact, in the complaint made by the mother, it was not stated that

the victim girl had complained about any sexual assault or rape. It

is mentioned that they suspected about this appellant and went to

his house and found that his house was locked. For the said

reason, in the complaint it is mentioned that the appellant must

have taken her and might have indulged in sexual intercourse.

Such assumptions cannot be made as basis for criminal

prosecution. The Doctor/P.W.10 stated regarding tear in the

fourchette region and except the said tear, he did not find any other

injuries on the private parts of the victim girl. Further, the Doctor

stated that there was no evidence of sexual intercourse on the

victim girl. Since there is no corroboration from the Doctor and

medical evidence, the appellant has to be acquitted.

6. On the other hand, learned Public Prosecutor would submit

that the victim girl has given evidence and there is no reason given

by the appellant as to why he would be falsely implicated. The

victim girl was aged around four years and the question of false

implication does not arise. Unless the incident has taken place, the

victim girl who is aged around 4 years would not have stated so.

7. As seen from the evidence of the victim girl, she stated that

the appellant had put his finger near her private part. In the Court

room, pictures of boy and girl were shown to the victim girl and it

was observed by the learned Sessions Judge that the victim girl put

her hand on the fingers of the boy picture and told that he put his

finger in the private part of the girl picture. She informed the Court

that the girl picture was of her. She cried and hearing her cries, the

mother came and the appellant opened the door and she went

outside and told the mother. Accordingly, she can identify the

picture of the appellant, which was shown in the Court hall.

8. The said version of the victim girl in the Court room that the

mother had come there and incident was narrated is falsified by the

complaint given by the mother in Ex.P1. In the complaint, it is

mentioned that when P.W.1 came back in the afternoon at 2.00

p.m, then the victim girl complained about pain while passing

urine. Having observed it was reddish, for which reason, she called

her husband. Thereafter, they went to the house of this appellant

and suspected that the appellant might have committed rape and

complaint was filed. The said version in the complaint is contrary

to the statement of the victim girl regarding informing her mother

when she went near the house of the appellant.

9. Even in the evidence of P.W.1, she stated that on enquiry,

victim girl stated that she went to the house of the appellant,

around 9.30 a.m. Thereafter, P.W.1 went to attend work and came

back at 2.00 p.m and thereafter, noticed that the private part of the

girl was reddish. Even in the deposition of P.W.1, it is not stated

that the victim girl narrated about any kind of sexual assault on

the victim girl in the morning. The mother PW1 did not state that

she went to the house of appellant. The question of narrating the

incident by victim girl in the morning at the house of the appellant

does not arise. The girl was taken to the Bharosa centre at 11.20

p.m after lodging the complaint with the police at 7.00 p.m on

11.12.2020. However, in the statement in Ex.P5, which is medico-

legal examination report of Sexual violence it is mentioned that the

mother of the victim narrated that the appellant had committed

sexual assault by inserting his finger in the victim girl's vaginal

area.

10. Though the evidence of P.w.1, complaint Ex.P1 and

deposition of the victim girl/PW.6 is discrepant regarding the state

of events that happened, however, from the evidence it is apparent

that the appellant had touched the private part of the victim girl.

Fourchette region is at the bottom of the vagina and above the

anus. The offence would fall within the definition of Section 7 of the

Act of 2012, which reads as follows:

"7. Sexual assault: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

11. Though several discrepancies were pointed out by the learned

counsel for the appellant, it can be safely inferred that the

appellant had touched the private part of the victim girl. The tear in

the fourchette area could not be attributed specifically to any act of

the appellant. The Doctor deposed that the hymen was in tact and

final opinion was that there was no evidence of sexual intercourse

on the victim girl.

12. In view of the above, the conviction under Section 6 of the Act

of 2012 is set aside. However, the appellant is convicted for the

offence under Section 8 of the Act of 2012 and sentenced to three

years rigorous imprisonment. Since the appellant is on bail, the

trial Court is directed to cause appearance of the appellant and