Telangana High Court
Golla Suresh , Suri vs The State Of Telangana on 3 April, 2024
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL No.510 of 2019
JUDGMENT:
This Criminal Appeal has been filed against the
Judgment, dated 24.01.2019 in S.C.PCS.No.97 of 2016,
passed by the learned I Additional Metropolitan Sessions
Judge-cum-Special Judge for Trial of Cases under Protection
of Children from Sexual Offences Act, 2012, Hyderabad,
convicting the appellant/accused and sentencing him to
undergo rigorous imprisonment for a period of ten years and
to pay a fine of Rs.2000/- in view of Section 42 of Protection
of Children from Sexual Offences Act, 2012 (hereinafter
referred to as "POCSO Act") and in default of payment of fine
amount, he has to further undergo simple imprisonment for a
period of three months for the offence under Section 5 of
POCSO Act, punishable under Section 6 of POCSO Act and
he was further sentenced to undergo rigorous imprisonment
for a period of seven years and to pay a fine of Rs.2000/- and
in default of payment of fine amount, he has to further
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undergo simple imprisonment for a period of three months for
the offence under Section 420 IPC.
2. The facts of the case are that on 18.08.2015 at 3:45
P.M., one Mr. Gattukadi Anjaiah lodged a complaint before
the Police stating that on knowing that his younger daughter,
who is aged 15 years, is pregnant of six months and the
appellant/accused is responsible for that, he called the
appellant/accused and his relatives and asked the
appellant/accused to marry his daughter but the
appellant/accused refused to marry her as she belongs to
Scheduled Caste. Based on the said complaint, the Police
investigated the case and filed charge sheet against the
appellant/accused for the offences punishable under Sections
376(2)(i), 376(ii)(m) and 420 I.P.C. and under Section 6 r/w
5(1) of POCSO Act and under Sections 3(i)(x), 3(ii)(v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as "the Act").
Thereupon, the trial Court took cognizance of the case for the
offences punishable under Sections 376(2)(i), 376(ii)(m) and
420 I.P.C. and under Section 6 r/w 5(1) of POCSO Act and
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framed the charges for the said offences but the
appellant/accused pleaded not guilty.
3. To prove their case, the prosecution examined PWs.1 to
14 and also got marked Exs.P1 to P13. There is no oral and
documentary evidence adduced on behalf of the defence.
4. The trial Court after examining the appellant/accused
under Section 313 Cr.P.C. had convicted the
appellant/accused as stated supra.
5. Learned counsel for the appellant/accused would
contend that the trial Court had erroneously convicted the
appellant/accused though the prosecution has failed to
establish that the victim girl is a minor at the time of alleged
offence. He further contended that the DNA test conducted
by the Doctor is not proper and therefore, he has prayed for
setting aside the judgment, dated 24.01.2019 passed in
S.C.PCS.No.97 of 2016 by the trial Court.
6. Learned Assistant Public Prosecutor would submit that
there is no illegality in the Judgment, dated 24.01.2019 of the
trial Court and prayed to dismiss the Criminal Appeal.
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7. Having heard the learned counsel for the
appellant/accused and the learned Assistant Public
Prosecutor, I have gone through the entire record.
8. In her deposition, PW2, who is the victim girl, has stated
that while she was studying 7th class in Mudford Government
High School, the appellant/accused who was running a
private garbage carrier used to come to the tea stall near her
house and her friend introduced the appellant/accused to
her; that with such acquaintance, the appellant/accused
came to her house around 10 to 20 times in the absence of
her parents and inmates and asked her to marry him; that
the appellant/accused had sexual intercourse with her about
10 to 15 times at her house in the absence of her parents and
she became pregnant because of the appellant/accused and
that she informed the same to her parents when she was
carrying pregnancy of six months and the appellant/accused
is responsible for her pregnancy and on that her parents got
conducted the panchayat in the presence of elders and in the
said panchayat, she asked the appellant/accused to marry
her but the appellant/accused refused to marry her by saying
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that she belongs to Scheduled Caste and he belongs to Golla
Caste and on that PW1, who is her father, lodged a complaint
before the police and the police referred her to Gandhi
Hospital for medical examination and after two months, she
delivered a female baby and after one month, the said baby
died due to pre-mature delivery and the DNA test was
conducted for the said female baby, herself and the
appellant/accused and that the appellant/accused had
committed the said offence. PW1 and PW3, who are the father
and sister of PW2, supported the case of PW2. PW4 deposed
that when he negotiated with the appellant/accused and his
family members with regard to marrying of PW2, the
appellant/accused refused to marry her. PW5, who is the
panch witness for the scene of offence panchanama and
rough sketch of the scene of offence, did not support the case
of the prosecution. PW6, who was in charge Head Master of
Government High School, Mudford, Kharkana, issued a
certificate stating that PW2 is studying in their school and
during 2015, she was studying 7th class. He also issued a
bona fide certificate mentioning the date of birth of PW2 as
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11.03.2001. PW7, who is the Inspector of Police, Women
Police Station, Begumpet, recorded the statement of PW2.
PW8, who is the Tahsildar, Khairtabad Mandal, issued
Community and Date of Birth certificate to PW2 stating that
she belongs to Scheduled Caste. PW9, who is a Professor and
Head of the Department in Urology and Andrology in Gandhi
Hospital, Secunderabad, examined the appellant/accused
and issued Potency Test Report. PW10, who is the Assistant
Director, FSL, Red Hills, Hyderabad, extracted DNA from bone
sample and blood samples of PW2 and the appellant/accused
and subjected them to autosomal STR analysis and issued a
report opining that the appellant/accused is the biological
father of bone sample and PW2 is the biological mother.
PW11 is the Inspector of Police Bhavani Nagar Police Station,
who conducted primary investigation. PW12, who is the
Assistant Professor, Gandhi Hospital, examined the victim girl
and found her as pregnant of seven months and after
receiving FSL report including DNA report, she issued her
final opinion stating that the appellant/accused is the
biological father of the baby. PW13, who is the Additional SP
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Vigilance, Warangal and who worked as ACP Mahankali
Division, conducted further investigation and on his transfer,
he handed over the case to his successor. PW14, who is the
Assistant Commissioner of Police, Mahankali Division,
received CD file from PW13 and completed the investigation
and filed charge sheet against the appellant/accused.
9. From the above, it is evident that the evidence of PWs.1
to 3 corroborates with each other. PW4 in his evidence clearly
stated that in the negotiations, the appellant/accused refused
to marry PW2.
10. It is to be seen that to prove the age of PW2, the
prosecution examined PW6, who issued the bona fide
certificate of PW2, and according to the said certificate, she is
aged about 15 years. The Supreme Court in P. Yuvaprakash
v. State 1 has held as under:-
13. It is evident from conjoint reading of the above provisions
that wherever the dispute with respect to the age of a person arises
in the context of her or him being a victim under the POCSO Act, the
courts have to take recourse to the steps indicated in Section 94 of
the JJ Act. The three documents in order of which the Juvenile
Justice Act requires consideration is that the concerned court has to
determine the age by considering the following documents:
2023 SCC OnLine SC 846
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"(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board".
As seen from the aforesaid judgment, when there is a
bona fide certificate issued by the Head Master of the school
concerned, there is no need to go for bone ossification test to
determine the age of PW2, as such, there is no merit in the
contention of the appellant/accused that the prosecution has
failed to prove that PW2 is minor as on the date of alleged
offence.
11. Further, insofar as the contention of the learned counsel
for the appellant/accused that the DNA test was not
conducted in a proper manner and YSTMR test has to be
conducted but the authorities concerned have conducted only
STR analysis which is not in accordance with the procedure
and there is no proof to say that the appellant/accused is the
biological father of the baby. According to the reports, profiles
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based on Autosomal STR analysis provide far stronger
statistical power than profiles based on Y-STRs. Further,
there is no cross examination on this aspect. The reports
issued by PWs.10 and 12 clearly show that the
appellant/accused is the biological father of the baby.
Therefore, the said contention also does not have any merit.
12. It is to be seen further that the evidence of PWs.1, 3, 4,
6 to 14 coupled with Exs.P1 to P13 proves that PW2 is a
minor as on the date of the alleged offence and the
appellant/accused had sexual intercourse with PW2 on the
pretext of marrying her and when she became pregnant, he
refused to marry her. Though the prosecution has alleged
that the appellant/accused refused to marry the victim as she
belongs to Scheduled Caste, PW4 did not support the case of
the prosecution. Therefore, the prosecution failed to prove the
offence punishable under Section 3(i)(x) and 3(ii)(v) of the Act.
As it is clear from the evidence that the appellant/accused
had sexual contact with PW2 on the pretext of marriage, it
can be said that the prosecution has proved that the
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appellant/accused committed the offence under Section 420
IPC.
13. Therefore, this Court is of the opinion that there is no
illegality in the judgment of the trial Court in convicting the
appellant/accused for the offences stated supra.
14. Accordingly, the Criminal Appeal is dismissed
confirming the judgment dated 24.01.2019 in S.C.PCS.No.97
of 2016 passed by the learned I Additional Metropolitan
Sessions Judge-cum-Special Judge for Trial of Cases under
Protection of Children from Sexual Offences Act, 2012,
Hyderabad.
As a sequel, miscellaneous petitions, pending if any,
shall stand closed.
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K.SUJANA, J
DATE:03.04.2024
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SKS,J
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL No.510 of 2019
Date: .04.2024
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