Telangana High Court

Pailla Anjaneyullu vs The State Of Telangana on 3 June, 2024

     THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI


               CRIMINAL APPEAL NO.509 OF 2021


                          JUDGMENT

This Criminal Appeal is filed against the judgment of the Court of

the Special Sessions Judge, Fast Track Special Court for Expeditious

Trial and Disposal of Rape and POCSO Act Cases at Gadwal,

Mahabubnagar Unit, T.S., dt.10.12.2021 in Spl.S.C.No.110 of 2016.

The appeal is filed by the accused against the punishment awarded to

him for the offence under Section 5(l) punishable under Section 6 of the

Protection of Children from Sexual Offences Act, 2012 (for short,

'POCSO Act') and for the offences under Sections 376 (2)(i) and (n),

420, 366 and 346 of Indian Penal Code (for short, 'IPC'). The

appellant/accused was sentenced for the said offences as under:

OFFENCE PUNISHMENT IMPOSED

Section 5(l) read with To undergo rigorous imprisonment for a period Section 6 of POCSO of ten (10) years and to pay a fine of Rs.2,000/-

Act (Rupees two thousand only) and in default of payment of said fine amount, to undergo simple imprisonment for a period of two (02) months.

Section 420 of IPC To undergo rigorous imprisonment for a period of five (05) years and to pay a fine of Rs.1,000/-

(Rupees one thousand only) and in default of payment of said fine amount, to undergo simple imprisonment for a period of one (01) month.

Section 366 of IPC To undergo rigorous imprisonment for a period of five (05) years and to pay a fine of Rs.1,000/-

(Rupees one thousand only) and in default of payment of said fine amount, to undergo simple imprisonment for a period of one (01) month.

Section 346 of IPC To undergo rigorous imprisonment for a period of one (01) year.

Section 376(2)(i) and Under Section 42 of POCSO Act, alternative

(n) of IPC punishment is invoked imposing the sentence prescribed under Section 5(l) read with Section 6 of POCSO Act, instead of convicting under Section 376(2)(i) and (n) of IPC.

(a) The trial Court also directed that the said four sentences imposed

against the accused shall run concurrently.

(b) It was observed that the accused was in judicial custody from

31.03.2016 to 05.05.2016 and the trial Court directed that the

remand period undergone by the accused during the period of

investigation, inquiry or trial shall be set off under Section 428 of

the Criminal Procedure Code (for short, 'Cr.P.C.').

Services Authority, Mahabubnagar District to award

compensation of Rs.1,50,000/- (Rupees one lakh and fifty

thousand only) to the victim under Section 33(8) of POCSO Act

read with Rule 9 of the Protection of Children from Sexual

Offences Rules, 2020.

2. Brief facts of the case of the prosecution and as considered by the

trial Court are that on 03.03.2016 at 19:40 hours, the de facto

complainant-cum-father of the victim girl/P.W.1 lodged a report at the

police station, Atmakur stating that his younger daughter/victim girl

(P.W.3) who was studying in 9th class at Government High School,

Atmakur went to the school in the auto of P.W.4/Govardhan at about

09:00 hours on 01.03.2016, but she did not return home in the evening.

P.W.1 further stated in the report that the accused Anjaneyulu of his

village was also found missing in the village and hence P.W.1 suspected

that the accused might have kidnapped P.W.3/victim girl. Hence, the

report.

3. On the basis of the said report, the S.I. of Police, Atmakur

registered a case in Crime No.39 of 2016 for the offence under Section

366 of IPC by issuing FIR and during the course of investigation, Sri

G.Naresh, S.I. of Police, Atmakur examined and recorded the statement

of P.W.1 and visited the scene of offence and recorded the panchanama

and also obtained the bonafide certificate of P.W.3/victim girl from

P.W.5/Head Master, Government Girls High School, Atmakur. Later,

on 30.03.2016, P.W.3/victim girl came to the police station, Atmakur

along with her parents and that the then S.I. of Police/P.W.18 got

recorded the statement of P.W.3/victim girl through P.W.16/Smt.

Sridevi, Woman Head Constable No.1753 of Kodandapur Police Station

and basing on the statement of P.W.3, Sections 376(2)(n), 376(2)(l), 420

of IPC and Sections 5(l) and 5(n) read with Section 6 of POCSO Act

were added to the existing Section 366 of IPC and the victim girl was

sent to the Government Hospital, Mahabubnagar for medical

examination as well as age determination. The lady medical

officer/P.W.15 examined the victim girl and sent her vaginal swabs to

the Forensic Science Laboratory, Hyderabad and Dr. Surya

Prakash/P.W.13 examined the victim girl and issued a medical

certificate mentioning the age of the victim to be around 17 to 18 years

and P.W.12/Dr. Srinivas Choudary, Government Civil Hospital,

Atmakur also examined the victim girl and issued age determination

certificate of P.W.3 mentioning that the victim girl was aged about 15

years.

4. Since the offence was grave in nature, P.W.19/C.I. of Police,

Atmakur took up further investigation and during the course of his

investigation, the statements of witnesses were recorded and the first,

second and third scene of offence panchanamas were conducted.

L.W.17/Judicial First Class Magistrate, Wanaparthy also recorded the

statement of P.W.3/victim girl under Section 164 Cr.P.C. and the

investigation revealed that since five months prior to lodging of the

complaint, the accused had induced P.W.3/victim girl to marry him and

used to go to the house of P.W.3 whenever she was alone and

participated in sexual intercourse with her and thereafter on 01.03.2016,

as per the advice of the accused, P.W.3/victim girl left her house to

elope with the accused and went in the auto of P.W.4/Katike Govardhan

to meet the accused at the bus stand, Atmakur from where, the accused

took P.W.3/victim girl to Devarkadra and kept her in a hut and by

promising to marry her at Mantralayam, participated in sexual

intercourse daily, but even after lapse of many days, when P.W.3/victim

girl demanded the accused to marry her, the accused refused to marry

her. After conclusion of investigation, P.W.19/C.I. of Police, Atmakur

filed the charge sheet against the accused for the offences under

Sections 366, 376(2)(n), 376(2)(i) and 420 of IPC and Section3 read

with Section 4 of the POCSO Act before the Special Court designated

under the POCSO Act, i.e., I Additional District and Sessions Judge's

Court, Mahabubnagar. Later, on the appearance of the accused, copies

of documents have been furnished to him as required under Section 207

Cr.P.C. and charges under Sections 366A, 346, 376(2)(i) and (n) and

420 of IPC and Section 5(l) read with Section 6 of POCSO Act were

framed and read over and explained to the accused. The accused denied

the charges, pleaded not guilty and sought to be tried.

5. After recording substantial evidence (PWs.1 to 17), as per orders

of the Principal District and Sessions Court, Mahabubnagar, vide

Dis.No.2819 dt.29.10.2020 and in view of the establishment of new Fast

Tract Special Court for Expeditious Trial and Disposal of Rape and

POCSO Act cases at Gadwal, the case was transferred to the said Court

for disposal. The remaining evidence was recorded by the said Court.

6. The trial Court framed the following points for determination:

(1) Whether the prosecution has proved beyond all reasonable doubt

that on 01.03.2016 P.W.3/victim girl was a child within the

meaning of Section 2(1)(d) of the POCSO Act ?

(2) Whether the prosecution has proved beyond all reasonable doubt

that during the period of keeping P.W.3 victim girl in wrongful

confinement in secret in a hut in Devarkadra from 01.03.2016 for

a period of few days, repeatedly and several times committed rape

on P.W.3 victim girl aged 14 years, punishable under Section

376(2)(i) and (n) of IPC ?

(3) Whether the prosecution has proved beyond all reasonable doubt

that from 01.03.2016 for a period of few days, while keeping

P.W.3 victim girl in wrongful confinement in secret in a hut in

Devarkadra, repeatedly and several times committed aggravated

penetrative sexual assault on the victim girl, punishable under

Section 5(l) read with Section 6 of the Protection of Children

from Sexual Offences Act, 2012 ?

(4) Whether the prosecution has proved beyond all reasonable doubt

that the accused while keeping P.W.3 victim girl in wrongful

confinement in secret from 01.03.2016 for a period of few days in

a hut at Devarkadra, by fraudulently and dishonestly induced

P.W.3 victim girl minor girl aged 14 years to deliver her chastity

to the accused on a false promise of marriage and later the

accused cheated P.W.3 victim girl by refusing to marry her,

punishable under Section 420 of IPC ?

(5) Whether the prosecution has proved beyond all reasonable doubt

that on 01.03.2016, the accused kidnapped P.W.3 victim girl aged

14 years from the lawful guardianship of her parents at

Devarpally Village, by making her come over to Atmakur and

took her to Devarkadra, with intent to procure her for illicit

intercourse, punishable under Section 366A of IPC ?

(6) Whether the prosecution has proved beyond all reasonable doubt

that from 01.03.2016 for a period of few days, the accused

wrongfully confined P.W.3 victim girl aged 14 years, in a secret

hut at Devarkadra, with intent to conceal her presence from the

knowledge of her parents, punishable under Section 346 of IPC ?

7. In respect of Point No.(1), the trial Court examined as to whether

the victim girl was a child on the date of commission of the alleged

offence under POCSO Act.

(a) It examined Ex.P.4 bonafide certificate issued by P.W.5 (Head

Master of Government High School, Atmakur) showing the date

of birth of P.W.3 as 10.01.2002. The trial Court further observed

that in the cross-examination of P.W.3/victim girl, the defence

counsel placed a suggestion before P.W.3 victim girl that she was

major in the year 2016, in which year the alleged offence has

taken place, but the same was denied by her. It also observed that

in the cross-examination of P.W.5/Head Master, a suggestion was

placed before him that the date of birth shown in Ex.P4 bonafide

certificate is not correct, but the said suggestion was denied by

P.W.5.

(b) The trial Court considered Ex.P11 medical certificate issued by

P.W.13 to the effect that the victim girl was aged between 17 and

18 years. The trial Court observed that in the cross-examination of

P.W.13/Medical Officer and P.W.19/Investigation Officer, it was

elicited that as per Ex.P11 medical certificate, the age of the

victim girl may be about 17 to 18 years on the date of her medical

examination by P.W.13.

P.W.12, i.e., Ex.P10, wherein the age of the victim girl was

mentioned as 15 years and in the cross-examination, P.W.12 has

denied the suggestion of the learned defence counsel that the age

of the victim girl was 19 years as on the date of offence.

The trial Court observed that there is inconsistency in the testimonies of

P.Ws.12 and 13 with regard to age determination of P.W.3/victim girl. It

observed that P.W.12 has testified that he found no evidence of third

molar in the oral cavity of the victim girl and according to him,

normally the third molar in the oral cavity starts at the age of 17 years

and therefore, he has come to the conclusion that the age of P.W.3 at the

time of his examination would be 15 years. The trial Court also

observed that from the evidence of P.W.13 that he has not conducted

any tests on the victim girl to say that the age of the victim girl would be

between 17 and 18 years as on the date of examination. In view of the

above, the trial Court considered the evidence of the Head Master of

Government High School, Atmakur (P.W.5) and also Ex.P4 certificate

as genuine and held that the victim girl was a child as defined under

Section 2(1)(d) of POCSO Act as on the date of commission of the

alleged offence upon her.

8. As regards Points No.(2) and (3) which were taken up together,

the trial Court has observed that in criminal jurisprudence, a person

accused of an offence is presumed to be innocent until his guilt is

proved. But under Section 29 of POCSO Act, the Special Court shall

presume that the accused has committed the offence under Sections 3, 5,

7 and 9 of POCSO Act unless the contrary is proved. The Court also

observed that the presumption is but rebuttable. The trial Court also

observed that the only defence taken by the accused was that due to land

disputes between the victim's father and the accused, a false case has

been foisted against him. The trial Court also observed that P.W.1, in his

cross-examination, admitted that the accused is the grandson of his

father's sister namely Buchamma, but existence of any disputes between

himself and the family of the accused have been denied. On examination

of evidence of P.W.3, the trial Court came to the conclusion that she

went with the accused on her own by believing the words of the accused

and that only when he refused to marry her in spite of participating in

sexual intercourse with her regularly, she has complained to the family

members. P.W.4 was an auto driver and he did not support the case of

the prosecution and turned hostile and therefore the Special Public

Prosecutor with the permission of the Court declared P.W.4 as hostile

and cross-examined him to elicit the truth but nothing has been elicited

in favour of the prosecution. P.W.5 being the Head Master of

Government High School, Atmakur has deposed about the age of the

victim girl as per the school admission register as 10.01.2002 and P.W.6

who is the uncle of the victim girl also deposed about the incident but he

pleaded ignorance whether there were any disputes between P.W.1 and

the family of the accused with regard to any land. P.Ws.7 and 8 being

the mediators for the first scene of offence panchanama turned hostile.

P.Ws.9 and 10, the mediators for the second scene of offence

panchanama, also turned hostile and P.Ws.11 and 17 being the

mediators for the third scene of offence panchanama also turned hostile.

Therefore, with the permission of the Court, the incharge Special Public

Prosecutor declared them as hostile and cross-examined them to elicit

the truth, but nothing in favour of the prosecution has been elicited.

9. P.W.12 who is the Dental Assistant Surgeon, after examining the

oral cavity of the victim girl had stated that she would be 15 years of age

and P.W.13 who is the Radiologist had stated that the girl may be

between 17 and 18 years of age on physical appearance. P.W.15 was the

former Civil Assistant Surgeon at District Hospital, Mahabubnagar, who

examined the victim girl and deposed that there was possibility of sexual

intercourse. The evidence of other witnesses was also considered by the

trial Court. The trial Court also considered that there was a delay of

more than two (2) days from the date of alleged missing of P.W.3 victim

girl in lodging the FIR and observed that after the missing of P.W.3

victim girl, P.W.1, being the father of unmarried minor daughter, might

have thought about the reputation of the family in the village and that he

might have searched for the missing girl for about two days and having

lost the hope, has rightly lodged the report with the concerned police

with a delay of two days. However, considering that the testimonies of

P.Ws.1, 2 and 6 are consistent with regard to the fact that soon after the

missing of P.W.3, all of them searched for P.W.3 and after their best

efforts only, they lodged the complaint on 03.03.2016, the trial Court

was satisfied that the delay in lodging the FIR is not fatal.

10. The trial Court also observed that P.W.3 is the only witness for

the alleged incident of sexual assault by the accused and also the

argument of the learned counsel for the accused is that P.W.3 victim girl

was a consenting party to all the alleged acts committed by the accused.

The trial Court, however, observed that since the victim girl was a

minor, i.e., under 18 years of age, the question of giving her consent is

immaterial to come to a just conclusion both under Section 375 of IPC

and also under Sections 29 and 30 of POCSO Act. Thus, the trial Court

held the accused guilty for the offences under Section 5(l) of POCSO

Act and punishable under Section 6 of the POCSO Act and also under

Section 376(2)(i) and (n) of IPC.

11. As regards Point No.(4) for the offence under Section 420 of IPC,

the trial Court observed that the testimonies of P.Ws.1 to 3 and 6 clearly

show that the accused, by making false promise to marry P.W.3, made

her to participate in sexual intercourse with the accused and later on,

refused to marry her and therefore, has committed the offence under

Section 420 of IPC.

12. For the very same reasons, the offence under Section 366A of IPC

dealt with under Point No.(5) was also held as proved.

13. As regards point No.(6) for the offence under Section 346 of IPC,

the trial Court relied upon the evidence of P.W.3 to hold the same as

proved.

14. Accordingly, the sentences were awarded as stated in the above

table.

15. Learned counsel for the appellant submitted that the accused is

not guilty for the offences alleged against him. She placed strong

reliance upon the evidence of P.W.13 who stated that the victim girl was

aged about 17 to 18 years at the time of the incident. She placed reliance

upon the judgment of the Hon'ble Supreme Court of India in the case of

P.Yuvaprakash Vs. State1 to submit that there was no ossification test

or any other latest medical age determination test to determine the age

of the victim girl. Therefore, according to her, benefit of doubt should

be given to the appellant/accused and the accused should be acquitted of

all the charges since it was proved that the victim girl was a major at the

2023 LawSuit(SC) 676

time of the incident and had consented to the act and it was a consensual

relationship and hence none of the alleged sections would apply to the

case.

16. Learned Public Prosecutor, however, supported the case of the

prosecution and relied upon the findings of the trial Court to

demonstrate that the victim girl was a child and therefore, the judgment

of the trial Court needs no interference.

17. After hearing both the parties and after going through the entire

record, this Court is of the opinion that the entire case hinges on the age

of the victim girl as on the date of the incident. According to the

prosecution, in the evidence collected by the prosecution, there are three

certificates issued in respect of the age of the victim girl. (1) Ex.P4

bonafide certificate issued by P.W.5/Head Master of Government High

School, Atmakur; (2) Ex.P10 medical certificate issued by P.W.12 and

(3) Ex.P11 medical certificate issued by P.W.13.

18. The Hon'ble Supreme Court of India in the case of

P.Yuvaprakash Vs. State (1 supra) was considering the case under

Section 366A of IPC and also under Juvenile Justice (Care and

Protection of Children) Act, 2015. The Hon'ble Supreme Court has laid

down a procedure in the case of determination of age of the person by

the Special Court. The Hon'ble Supreme Court has laid down the

following guidelines to be considered for determination of age:

(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.

In the case before this Court, the bonafide certificate (Ex.P4) issued by

the Government High School is available which shows the age of the

victim to be around 14 years, while the in the age certificate (Ex.P10)

given by the Assistant Dental Surgeon/P.W.12 on the basis of oral

examination, it is mentioned as 15 years. The medical certificate

(Ex.P11) given by the medical officer/P.W.13 is apparently not on the

basis of any test conducted by him. In view of the same, it is clear that

the certificate given by the Head Master, Government High School,

Atmakur is corroborated and supported by the evidence of the age

certificate given by P.W.12. Therefore, this Court is also satisfied that

the victim girl was under the age of 18 years at the time of commission

of the offence and therefore, the presumptions to be drawn are against