Telangana High Court
Pokala Shivudu , Shiva vs The State Of Telangana on 7 June, 2023
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.287 of 2020
JUDGMENT :
This appeal is filed against the judgment in S.C.No.480/2015 dated 24.02.2020, on the file of Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District, wherein the accused was found guilty for the offence punishable under Section 3 r/w. 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as 'the Act') and he was sentenced to undergo rigorous imprisonment for a period of seven (07) years and also sentenced to pay fine of Rs.10,000/- and in default of payment of fee, to undergo simple imprisonment for a period of six (6) months for the offence punishable under Section 4 of IPC.
2. The case of the prosecution is that on 04.11.2014 at about 8-00 a.m., the accused/appellant alleged to have committed penetrative sexual assault on the victim girl aged about 12 years on the pretext of taking her to bakery to provide eatables and made her sleep in a lane by the 2 side of the bakery and sexually assaulted her on both back and front side and forcibly had anal sex and left her at the house. On the same day, at about 2-00 a.m., the victim girl informed her mother that she was suffering with stomach pain and was bleeding and the mother of the victim/P.W.1 thought that her daughter has matured on attaining puberty and she performed the formalities as per their customs. But, on the next day, when the victim girl had heavy bleeding, she took her to the nearby Doctor/Latha Gowry, who prescribed some medicines. Later, after nine days she took her to another Doctor named Mrudhula at Vikarabad, who conducted scanning and advised her to take the victim to a specialist in Hyderabad. Immediately, she took the victim to Kailash Hospital, MJ Market, where the Doctor informed her that sexual assault took place on the victim. When she enquired about the same with her daughter/victim/P.W.2, the victim informed her that the accused took her to the bakery 10 days back and committed rape on her. On that, P.W.1 went to the police station and lodged a complaint and the Police took up investigation and registered a case 3 in Crime No.367 of 2014, on the file of Vikarabad Police Station and referred the victim girl to the hospital for medical examination.
3. During the course of investigation, the Police have visited the scene of offence at Gayatri Bakery, Vikarabad and conducted panchnama in the presence of mediators, drawn rough sketch, seized the clothes of the victim girl and also visited Arogya Hospital, Hyderabad, examined and recorded the statement of victim girl. On 22.11.2014 arrested the accused and recorded his confession and seized his motorcycle bearing No.AP-12-D-3390 and remanded him to judicial custody after subjecting him to potency examination. Thereafter, obtained the age proof of victim girl by sending her to the Government Hospital and recorded the statement of P.W.6. On completion of investigation, laid charge sheet.
4. The Court took cognizance and a charge is framed against the accused under Section 3 r/w. Section 4 of the Act, for which the accused denied all the charges and claimed to be tried.
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5. After conclusion of trial, P.Ws.1 to 15 were examined and Exs.P-1 to P-14 were got marked. The accused was examined under Section 313 Cr.P.C for incriminating evidence and he denied the same and did not choose to adduce any evidence in his defence.
6. The trial Court has framed the following points for determination:-
"1. Whether the victim girl would come within the meaning of the child as defined under Section 2(d) of the POCSO Act to attract the provisions of POCSO Act?
2. Whether the prosecution has proved the guilt of the accused beyond reasonable doubt?"
7. As stated supra, P.W.1 is the mother of the victim girl, who initially preferred complaint against the accused after 10 days of the sexual assault. Her evidence clearly discloses that on 04.11.2014, the accused came to their house and took the victim girl out on the pretext of providing bakery items and made her sleep in the lane by the side of the bakery and sexually assaulted her, both front and back side and forcibly had anal sex and dropped 5 her at her house by buying her an ice-cream. On the same day, at about 2.00 p.m. her daughter woke up and informed her that she was suffering with stomach pain and was bleeding. On that, she thought that her daughter has got matured on attaining puberty and accordingly performed formalities as per their customs. But, on the next day, on coming to know that her daughter was bleeding heavily, she took her to nearby Doctor Latha Gowry and the said Doctor, without examining the victim girl prescribed medicines. After nine days, she took her to another Doctor namely Mrudhula, who scanned her and advised her to take her daughter to a specialist in Hyderabad. Accordingly, they came to Hyderabad, where the Doctor informed her that there was sexual assault on her daughter. On enquiry, her daughter informed that the accused took her to the bakery about 10 days back and committed rape on her, for which she preferred a complaint.
8. P.W.1 was cross-examined at length but nothing was elicited in favour of the accused.
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9. P.W.2 is the victim girl who also deposed in the same lines as that of P.W.1. except some minute details. Further, she testified that the accused threatened her with dire consequences, if she informs about the incident to anyone.
10. In the cross-examination, it is specifically testified by the victim that she know the accused and his family members from childhood and their family members are acquainted with each other. She also testified that accused was running a kirana shop in their locality and used to be good with their family. She specifically testified that the accused took her to Gayathri bakery and committed rape on her. On the next day of the incident, her mother felt that she attained puberty and performed the formalities as per the traditions in their caste. She also testified that she was examined by lady Officer in the Government Hospital, Vikarabad. Even in the cross- examination, nothing could be elicited in favour of the appellant.
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11. P.W.3 is the Doctor. His evidence discloses that on 13.11.2014, P.W.1 along with P.W.2 came to his hospital and informed him that P.W.2 was suffering from uncontrollable bleeding and stomach pain. On examination, he found her urine bladder was full and it was not discharging. Then, he put catheter to discharge urine. He examined her vagina and found bleeding and blood clots and on examination of her anus, he found injuries on orifice of the anus. Then, he informed P.W.1 that something suspicious act has been done on P.W.2. On 15.11.2014, he examined P.W.2 again under the supervision of anesthetist. Later, P.W.2 informed that assault took place on her. He further testified that P.W.2 was aged about 12 years when he examined her.
12. In the cross-examination, it is specifically testified by P.W.3 that he is the Chairman of Arogya Hospital. He testified that he did not find any injuries on the body of P.W.2 except vagina and anus and learnt that the age of the victim was 12 years.
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13. P.W.4 is one of the neighbour of P.W.1. His evidence discloses that at about 4 years back, when the shop of P.W.2 was found closed, she enquired the mother of the victim and she informed him that her daughter was suffering with problem and was taken to hospital. He also testified that husband of P.W.1 informed him that the accused committed rape on his daughter.
14. P.W.5 is the Medical Practitioner at Vikarabad. She testified that P.W.1 and P.W.2 came to her hospital and P.W.1 informed that her daughter was bleeding and suspecting to attain puberty. Then, she prescribed some tablets. Thereafter, she came to know through public that rape has been committed on P.W.2.
15. P.W.6 is owner of the bakery who stated that he cannot identify P.Ws.1 and 2 and has no idea as to what happened in his kitchen bakery. Ex.P.2 is the statement of P.W.6 recorded under Section 161 Cr.P.C, which was marked during cross-examination.
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16. P.W.7 is the panch witness to the scene of offence who turned hostile. Exs.P.3, P.4 and P.5 are scene observation panchnama, crime detail form and seizure report.
17. P.W.8 is also one of the panch witness to the scene of offence. He also turned hostile. His signatures on scene observation panchnama, crime detail form and seizure report are marked as Exs.P.6, P.7 and P.8.
18. P.W.9 is the Doctor who examined victim girl on 27.11.2014 on receiving requisition from SHO, Vikarabad Police Station. Her evidence discloses that the victim girl was aged about 12 years and found an injury 1 x 1 cms on right thigh and found some ulcer in the anus of the victim, as such she could not insert any instrument for her examination. She also testified that she collected vaginal smears from introitus and sent to FSL. On receipt of FSL report, she gave final report. Ex.P.7 is her opinion and Ex.P.8 is FSL report.
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19. P.W.10 is the retired VRO of Vikarabad who acted as panch witness for the arrest of the accused. His evidence discloses that accused was arrested in their presence and the accused confessed about committing rape on the victim girl and the Police have seized motor cycle of the accused.
20. Admittedly, the confession given to the Police is hit by Section 25 of the Indian Evidence Act, which cannot be considered at all.
21. P.W.11 is the VRO of Vikarababad who also acted as panch witness to the confession and seizure of motor cycle. He too turned hostile. His signature on the confession is marked as Ex.P.9.
22. P.W.12 is the Women Constable. Her evidence discloses that on 16.11.2014 as per the instructions of Inspector, Vikarabad, she visited Arogya Hospital and recorded the statement of P.W.2.
23. P.W.13 is the Doctor who examined the accused and issued potency certificate.
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24. P.W.14 is the retired Assistant Professor, Forensic Medicine, Osmania Medical College. On the request of Inspector, he examined P.W.2 and issued age certificate informing that P.W.2 is aged between 11 to 12 years, which is marked as Ex.P.11.
25. P.W.15 is the Inspector of Police, Kodad, Rural P.S., who investigated the entire case and filed charge sheet before the Court. His evidence discloses that he conducted scene observation panchnama, prepared rough sketch, visited the house of the victim and seized her clothes and recorded the statement of the victim through Woman Police. Further, he examined prosecution witnesses and affected the arrest of the accused on 22.11.2014, recorded the confession statement of the accused and seized motor cycle under Ex.P.13 and 14 and later produced before the Court. His evidence further discloses that he has sent the victim to the Government Hospital for determination of her age and also sent the accused for potency examination.
26. On perusal of the entire evidence on record, it is evident that there are no eye-witnesses to the incident 12 except the victim girl who sustained physical injuries on the vagina and anus of her body. The evidence of the victim girl clearly discloses that the accused sexually assaulted her on both back and front side and forcibly had anal sex. P.W.4 and other witnesses turned hostile. There cannot be any eye-witness in the cases of sexual assualt to the rape.
27. Presumption under Section 114-A of the Indian Evidence Act has to be taken into consideration.
Section 114-A of the Indian Evidence Act envisages that:- Presumption as to absence of consent in certain prosecution for rape. -- In a prosecution for rape under clause (a), clause
(b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
28. Admittedly, the medical evidence as well as the version of P.W.2 clearly discloses that the victim girl was 13 sexually assaulted by the accused. The victim girl did not inform about the said incident to any one as the accused threatened her with dire consequences. The evidence of Doctors in this case is crucial which disclose that the victim girl was subjected to sexual assault.
29. It is the specific contention of the learned counsel for the appellant that there is a delay of 10 days in preferring the report. But, the same could not be considered, as the victim herself is a minor girl aged about 12 years as per the certificate issued by the concerned Doctor. The delay in this case is not fatal as the victim girl could not inform her mother about the incident immediately as she was threatened by the accused with dire consequences. Moreover, it is minor delay and the victim girl is aged about 12 years. Therefore, the provisions under Section 3 r/w. 4 of At are attracted to the facts and circumstances of the case. Hence, this Court finds no error or irregularity in convicting the accused by the Court below for the above said circumstances and the Criminal Appeal is liable to be dismissed.
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30. In the result, the Criminal Appeal is dismissed, as it is devoid of merits, confirming the judgment in S.C.No.480 of 2015 dated 24.02.2020, on the file of Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 07.06.2023 dv