Telangana High Court
Amgothu Vinod vs The State Of Telangana on 8 November, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
CRIMINAL APPEAL No.403 OF 2024
Between:
Amgothu Vinod ... Appellant
And
The State of Telangana,
Rep. by its Public Prosecutor
... Respondent
DATE OF JUDGMENT PRONOUNCED: 08.11.2024
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 the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 403 of 2024
% Dated 08.11.2024
# Amgothu Vinod ... Appellant
And
$ The State of Telangana,
Rep. by its Public Prosecutor
... Respondent
! Counsel for the Petitioner: Sri Kiran Palakurthi
^ Counsel for the Respondents: Public Prosecutor
>HEAD NOTE:
? Cases referred
1
2024 SCC Online SC 260
2
2023 SCC OnLine SC 846
3
2017 (14) SCC 359
4
(2008) 16 SCC 417
5
(2019) 12 SCC 370
6
(2018) 17 SCC 627
7
(2010) 9 SCC 189
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.403 OF 2024
JUDGMENT:
The appellant/accused filed the present appeal aggrieved by
the conviction recorded by the trial Court for the offence under
Sections 363, 342, 376(2)(n), 376(2)(f), 376(3), 506 of the Indian
Penal Code and Section 5(l) read with Section 6 of the POCSO Act
by the trial Court.
2. The case of the prosecution is that the victim girl-PW.3 is the
daughter of PWs.1 and 2 who are father and mother, respectively.
The accused is the paternal uncle of PW.3. While PW.3 was
studying in IX standard she used to stay in a hostel. The appellant
used to go to the hostel and proposed to marry her. He asked her
to accompany him. After completion of her IX class, during
summer holidays, she went to her parents' house at Madigundla
Thanda.
3. On 03.06.2022 around 12:00 noon, the appellant went to her
house in a car and then took PW.3 in the car forcibly stating that
they would stay in Hyderabad. The accused kept PW.3 in
B.N.Reddy Colony in a room taken on rent from PW.6. He put a
chain around her neck stating that they were married and that
they are husband and wife. The appellant had sexual intercourse
with PW.3, several times and whenever he went outside the house,
he used to lock the door by keeping PW.3 inside. She stayed in the
room for eight months. On 20.02.2023, she escaped from the room
and went to her parents' house. There she informed the incident to
PW.2-mother. Then she was taken to the police station. PW.3
stated that her Date of Birth is 16.05.2007 and she was aged 15
years when the incident had taken place. The Police sent PW.3 to
the hospital for medical examination after her statement was
recorded at Bharosa Center.
4. PW.1 is the father of the victim who stated that that the
victim girl was aged 17 years in the year 2022, when she was found
missing. She was found missing from the house on 03.06.2022, as
such, PW.1 lodged complaint Ex.P1 with the Police on 07.06.2022.
On 20.02.2023, the victim returned and informed that the
appellant had detained her in a room and committed rape on her
for eight months. Further, hands and legs of the victim were tied
and she was confined in a room. PW.2 mother of PW.3 stated
similar to what PW.1-father has stated. However, the mother-PW.2
stated that PW.3 was aged 15 years when the incident had taken
place in the year 2022.
5. The Police collected Bonafide Certificate-Ex.P2 showing the
date of birth of PW.3 as 16.05.2007, which was provided by the
Head Master in Kasthuribaa Gandhi Balika Vidyalayam (KGBV),
Devarakonda, and filed charge sheet. During the course of trial, the
learned Sessions Judge having examined witnesses and placing
reliance on the evidence of victim-PW.3 and other corroborating
evidence including Ex.P2-Bonafide Certificate issued by PW.5,
found the appellant guilty. Further, reliance was also placed on the
medical evidence of the doctor-PW.9.
6. PW.2-mother stated that PW.3 was aged 15 years at the time
of incident. PW.3-victim girl has also stated that she was 15 years
when the incident had taken place. Reliance was placed on Ex.P2-
Bonafide Certificate which was issued by PW.5 who is the Special
Officer in KGBV, Devarakonda. The said certificate was issued on
23.02.2023 stating that PW.3 studied VII class in the year 2019 till
IX class in the year 2021. According to the school admission
register, the Date of Birth of PW.3 was 16.05.2007.
7. Learned Counsel appearing for the appellant mainly argued
on the ground that the age of the victim girl was not proved by the
prosecution to be 15 years. Further, the place of offence was not
specifically proved by the prosecution. The prosecution states that
she was detained in B.N.Reddy Colony. However, the place of
detention according to the prosecution was in the house of PW.6 at
Bonguluru gate and the distance between Bonguluru Gate and
B.N.Reddy Colony is 14 K.Ms. In fact, the charge was also framed
that she was detained in a residence at Bonguluru gate. Though,
PW.6-owner of the house was examined, she did not speak
anything about forcible detention. The main drawback in the case
of the prosecution is the unexplained delay of eight months in
lodging the complaint. Though, it is alleged that she was missing
from 3.06.2022 and found on 20.02.2023, what caused delay of
eight months in lodging complaint, is not explained.
8. The learned counsel relied on the following Judgments
rendered by the Honourable Supreme Court;
i) Nirmal Premkumar and another v. State 1 wherein it was held
at para-22 that
"22....the 'sterling witness' should be of a very high quality
and caliber whose version should, therefore, be
unassailable. The Court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such witness."
2024 SCC Online SC 260
ii) P.Yuvaprakash v. State 2 wherein conviction was set aside
holding that school Transfer Certificate is not acceptable for age
determination of victim.
iii) Anjan Kumar Sarma v. State of Assam 3 wherein it was held
that suspicion does not take place of proof. There is a difference
between may be true and must be true.
iv) Noor Aga v. State of Punjab and another 4 wherein it was held
that
"47. There is a paradox at the heart of all criminal procedure in
that the more serious the crime and the greater the public
interest in securing convictions of the guilty, the more
important do constitutional protections of the accused become.
"The superior Courts should not do something that would lead
to the impairment of basic fundamental and human rights of
an accused."
"57. It is also necessary to bear in mind that superficially a
case may have an ugly look and thereby, prima facie, shaking
the conscience of any court, but it is well settled that suspicion,
however high it may be, can under no circumstances, be held
to be a substitute for legal evidence."
v) Sanjeev Kumar Gupta v. State of U.P. 5 wherein it was held
that Section 94 of the Juvenile Justice Act contains the provisions
in regard to the determination of the age.
2023 SCC OnLine SC 846
2017 (14) SCC 359
(2008) 16 SCC 417
vi) Mohan Lal v. State of Punjab 6 wherein it was held that
burden of proof shall not shift to the accused under Special Act,
the moment FIR is registered, unless the prosecution proves the
foundational facts.
vii) Babu v. State of Kerala 7 wherein it was held that every
accused is presumed to be innocent until proven guilty. The Courts
must be on guard to see that merely on application of statutory
presumption, the same may not lead to injustice or mistaken
conviction.
9. On the other hand, learned Additional Public Prosecutor
argued that there is no reason as to why the girl would speak false
against the appellant. The appellant was closely related to the
victim girl and he has taken undue advantage of his relationship,
detained her and also subjected her to sexual assault for a period
of eight months. As such, detention and committing rape on a
minor girl is punishable and the learned Sessions Judge has
rightly concluded regarding the complicity of the appellant.
10. The version of PW.3-victim girl is that she was taken to the
house and detained for a period of eight months. During the
detention, her legs and hands were tied and she was subjected to
(2019) 12 SCC 370
(2018) 17 SCC 627
(2010) 9 SCC 189
rape all through. However, when the victim girl came back to their
parents' house and was sent for medical examination, the Doctor
did not find any signs or marks of either tying her hands and legs
with rope or that the condition of the victim girl was bad due to any
such prolonged detention. If the girl was detained for eight months
and her hands and legs are tied, the body would show signs of
detention and also her health would naturally deteriorate. Since
there are no such signs of forcible detention, the version of the
victim girl being forcibly kept in the house of PW.6, raises any
amount of suspicion. Even, PW.6 who is the owner of the house did
not state anything about the forcible detention of the girl in the
house. She never heard PW.3 cry for help or stated that there was
anything suspicious when the appellant was staying in the house
for eight months along with PW.3. PW.3 specifically stated in the
statement under Section 164 of Cr.P.C. and admitted by PW.3 that
she was detained in B.N.Reddy Colony, however the scene of
offence panchanama and according to evidence of PW.6, the scene
of offence is at Bonguloor, which is at a distance of nearly 14 K.Ms.
from B.N.Reddy Colony.
11. The other aspect which raises any amount of doubt and
suspicion is the fact that nothing was done by the parents or the
Police in the said eight months period when she was missing. Both
PWs.1, 2 and the Investigation Officers are silent about their efforts
or what was done to trace the victim girl for a period of eight
months. It is apparent that the actual version as to what transpired
during the said period is suppressed by the prosecution. The
absolute lull in between 03.06.2022 to 20.02.2023 would only
indicate that the prosecution witnesses are coming up with a
tainted version. Being in detention for eight months with her legs
and hands tied, how PW.3 escaped is not narrated. Nothing was
found during the scene of offence panchanama to suggest that
PW.3 was detained with chains/rope tied to her hands and legs.
12. The circumstances of the case point towards consensual stay
by the victim girl with the accused. However, the consent will be of
no consequence if she was less than 18 years. The father-PW.1
stated that PW.3 was aged 17 years in the year 2022. However, the
victim girl-PW.3 and her mother-PW.2 claimed that she was aged
15 years. Reliance was mainly placed on the bonafide certificate
issued by PW.5 which is Ex.P2. According to PW.5, PW.3 was
joined in VII class. At the time of joining, the date of birth of PW.3
would have been given by the parents or any guardian who had
joined her in school. Such declaration given while joining PW.3 in
the VII class cannot form basis to say that it is the actual date of
birth. No reasons are given as to why the certificate from the
Municipal Authorities or the hospital where she was born or the
record of the office of births and deaths were not produced. The
Police had not taken any steps to send the victim to PW.3 for the
purpose of ossification test. It is necessary for the prosecution to
prove the date of birth of the victim girl as minor and leave no
scope for any reasonable doubt to be entertained by the Court to
reject any kind of consent which would be apparent from the facts
of a case. In the present case, the version that the hands and legs
of PW.3 were tied over a period of eight months cannot be believed.
The father-PW.1 states that PW.3 was aged 17 years in the year
2022, however, the victim and her mother states otherwise.
13. Following the observation of the Honourable Supreme Court
in the Judgment of P.Yuvaprakash's case (supra 2), it cannot be
said that the prosecution has proved the age of the victim girl as a
minor.
14. The Police had collected call data records to show that there
was communication from the area at Bongulooru gate which is of
no use to the prosecution to prove the case of forcible rape.
15. PW.9-doctor was asked to examine PW.3-victim. She stated
that there were no external injuries and hymen was not intact.
According to her there was no evidence of recent sexual intercourse
but probability of sexual assault could not be ruled-out. She did
not find any signs of forcible intercourse or that the victim girl was
forcibly being raped by tying her legs and hands.
For the aforesaid reasons discussed, the finding of the Court
below cannot sustain and hereby set aside.
Accordingly, Criminal Appeal is allowed. Since the appellant
is in jail, he shall be set at liberty forthwith, if not required in any
other case.
__________________
K.SURENDER, J
Date: 08.11.2024
tk
