Andhra Pradesh High Court - Amravati
M.Bhupathi, Chittoor Dt., vs The State Of Ap., Rep Pp., on 31 January, 2025
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.349 OF 2017 and 358 of 2017
COMMON JUDGMENT :
(per the Hon'ble Sri Justice K.Sreenivasa Reddy) These Criminal Appeals are preferred against the judgment dated 08.09.2016 in POCSO S.C.No.69 of 2015 on the file of the I Additional District and Sessions Judge, Chittoor (hereinafter referred to, as 'the Sessions Judge').
2. The appellant in Criminal Appeal No.349 of 2017 is A.2, and the appellant in Criminal Appeal No.358 of 2017 is A.1, in the said Sessions Case.
3. Vide the impugned judgment in the aforesaid Sessions Case, the learned Sessions Judge -found the appellants/A.1 and A.2 guilty of the offence punishable under Section 366A read with 34 IPC; found the appellant/A.1 guilty of the offences punishable under Section 496 IPC and 376 (2) (i) IPC read with Section 4 of the POCSO Act, 2012 and found appellant/A.2 guilty of the offence punishable under Section 17 of the POCSO Act, 2012, and accordingly convicted them of the respective charges and sentenced A.1 and A.2 to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.2,000/- each in default to suffer Page 2 of 18 simple imprisonment for two months each, for the offence punishable under Section 366A read with 34 IPC; sentenced A.1 to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for two months for the offence punishable under Section 496 IPC; sentenced A.1 to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for two months, for the offence punishable under Section 376 (2) (i) read with Section 4 of the POCSO Act, 2012; and sentenced A.2 to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for two months for the offence punishable under Section 17 of the POCSO Act, 2012. All the substantive sentences were directed to run concurrently.
4. Substance of charges framed against the appellants/A.1 and A.2 is -firstly, on 04.07.2015 in morning hours, A.1 and A.2, with a common intention, induced the victim girl (PW5), a minor girl under the age of 18 years, to go from Saraswathi Bai Municipal High School, Teluguganga Colony, Srikalahasti town, to Bangalore along with them with an intent, knowing that she is aged 15 years, she is likely to be forced to have illicit intercourse with A.1, and thereby A.1 and A.2 committed an offence punishable under Section 366A Page 3 of 18 read with 34 IPC; secondly, that on 05.07.2015 at 2.30 PM, A.1 forced the victim girl (PW5), took her to a temple at Bangalore of Karnataka State, dishonestly or fraudulently tied an yellow thread to her neck and went through the ceremony of being married her, knowing that he was not thereby lawfully married, and thereby committed an offence punishable under Section 496 IPC; thirdly, that on 05.07.2015 night hours, A.1 forcibly participated in sexual intercourse with the victim minor girl (PW5) and then shifted her to Sanjayaveri village, Tirupur District, Tamilnadu where in a factory quarters, A.1 forcibly participated in sexual intercourse with her several times till 11.07.2015 and thereby committed an offence punishable under Section 376 (2) (i) IPC; fourthly, on the same date, time and place mentioned in charges 2 and 3, A.1 caused penetrative sexual assault on the minor girl PW5 by forcible sexual intercourse with her and thereby A.1 committed an offence punishable under Section 4 of the POCSO Act, 2012; and lastly A.2, on the same date, time and place mentioned in charge No.1, committed an offence of abetment at Srikalahasti and that he abetted A.1 in commission of the said offence of procuration of minor girl which offence was committed in consequence of his abetment and thereby he committed an offence punishable under Section 17 of the POCSO Act, 2012.
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5. Case of the prosecution, in brief, is that P.W.1 is resident of Ward No.11, Rajeev Nagar, Srikalahasti and he was living by doing cooli work. P.W.2 is wife of P.W.1. P.W.5, victim girl, is daughter of P.Ws.1 and 2. She was studying 10th class in Government Saraswathi Bai High School, Teluguganga Colony, Srikalahasti. On 04.07.2015, she went to the school and at about 11.30 AM, P.W.4, who is friend of P.W.5, informed P.W.2 over phone that P.W.5 left the school by keeping her books outside the school. Later, P.Ws.1, 2 and their famly members caused enquiries about the victim girl P.W.5 and came to know that A.1 and A.2 kidnapped the victim girl forcibly by inducing her with deceitful words and eloped her. On a report lodged by P.W.1, a case in crime No.64 of 2015 of Srikalahasti II Town police station was registered. On 12.07.2015 at about 6.30 PM, police apprehended A.1 and A.2 at Bharatham mitta of Tirupati town along with the victim girl P.W.5. Her statement and the confessional statements of A.1 and A.2 were recorded by the IO. The statement of the victim girl disclosed that A.1 induced her with deceitful words and threatened her that he would die, if she refuses his love and do away her parents if she does not accept his proposal for love, and later A.1 and A.2 took her to Bangalore forcibly, and on 05.07.2015 at 2.30 PM, the accused took her to a temple and accused No.1 tied an yellow Page 5 of 18 thread around her neck and informed that her marriage was completed. On the same day night, A.1 forcibly participated in sexual intercourse with her and later he shifted her to Sanjayaveri, Tirupur district, Tamilnagadu and kept her in a factory quarters, participated in intercourse with her several times by threatening her from 06.07.2015 to 11.07.2015. Basing on the statement of the victim girl, Section 376 (2) (i) IPC and Sections 6 and 16 of the POCSO Act, 2012 were added. The Medical Officer who examined the victim girl, opined basing on RFSL report that there is no evidence of recent sexual intercourse. The Doctor who examined A.1 opined that there is nothing to suggest that A.1 cannot perform sexual act. Section 164 CrPC statement of the victim girl was got recorded. After receipt of relevant documents and completion of investigation, police laid the charge sheet.
6. In support of its case, prosecution examined P.Ws.1 to 9 and Ex.P.1 to Ex.P.11, besides case properties M.Os.1 to 3, were got marked, on behalf of prosecution. No oral or documentary evidence has been adduced on behalf of defence. Basing on the evidence on record, the learned Sessions Judge convicted and sentenced the appellants/A.1 and A.2, as stated supra. Challenging the same, the present Criminal Appeals are filed.
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7. Learned counsel appearing on behalf of appellant/A.1 submits that except the interested testimony of the victim, there is no independent evidence to connect the appellant/A.1 to the aforesaid charges. It is his submission that medical evidence does not corroborate the ocular testimony. Learned counsel further submits that there are serious inconsistencies and infirmities in the prosecution case and therefore, it is not safe to convict the appellant herein/A.1.
8. Learned counsel appearing on behalf of appellant/A.2 submits that there is no credible evidence to find A.2 guilty of the offences with which he was convicted and sentenced. The learned counsel submits that there is no substantive evidence to establish sharing of common intention by A.2, or abetment by A.2, in commission of the offences by A.1. Learned counsel submits that there are serious infirmities in the prosecution case and therefore, the conviction and sentence recorded against A.2 are liable to be set aside.
9. On the contrary, learned Additional Public Prosecutor appearing for the State contends that the evidence of the victim (P.W.5) is cogent and convincing; that the appellants, having knowledge that the victim girl is a minor at the time of the incident, Page 7 of 18 committed the offences, and the willingness, if any, on the part of the victim is not a valid one and the accused cannot take such defence; that from the ocular and medical evidence adduced by the prosecution, guilt of the appellants is established beyond reasonable doubt and the learned Sessions Judge rightly convicted and sentenced the appellants, and there are no grounds to interfere with the same.
10. Now the point for determination is:
Whether the prosecution is able to bring home the guilt of the appellants/A.1 and A.2 for the charges levelled against them beyond reasonable doubt and whether the convictions and sentences passed by the learned Sessions Judge against the appellants/A.1 and A.2 are sustainable or not?
POINT :
11. P.W.1 is father of the victim girl P.W.5. It is his evidence that he knew A.1 and A.2; that his daughter P.W.5 was aged about 14 years at the time of the incident and she was studying 10th class in Saraswathi Bai High School. He deposed that on 04.07.2015 at about 9.00 AM, P.W.5 went to school, but she did not return home; that P.W.4, who is her classmate, informed P.W.2, who is his wife, that P.W.5 did not attend the school; that later, though himself, his wife and relatives searched for her, they could not find her; that Page 8 of 18 P.W.4 informed P.W.2 that A.1 and A.2 took his daughter in an auto. He gave Ex.P1-police report. He deposed in cross- examination that A.1 and A.2 were residing in his house for the last six months. P.W.2, who is wife of P.W.1, also deposed in the same lines. She deposed in cross-examination that A.1 was in their house as a tenant for one month prior to the incident.
12. P.W.3 worked as Head Master of Saraswathi Bai Municipal High School, Srikalahasti at the relevant point of time of the incident. It is her evidence that P.W.5 was studying 10th class in the said School and she was aged about 14 years. Ex.P2 is birth certificate of P.W.5. According to Ex.P2, date of birth of P.W.5 is 13.11.2000. It is the evidence of P.W.3 that on 04.07.2015, P.Ws.1 and 2 came to school and enquired her whether P.W.5 came to school or not, and on that, she informed them that P.W.5 did not attend the school on that day. It is her further evidence that P.W.4 informed her that at about 9.00 AM, P.W.5 came to school, kept her bag at the steps and went away, and that she informed the same to P.Ws.1 and 2.
13. P.W.4 is classmate of P.W.5. She deposed that herself and P.W.5 were studying 10th class by the date of the incident. It is her evidence that on 04.07.2015 at about 9.00 AM, while she was Page 9 of 18 going to School from her hostel, P.W.5 came opposite to her, kept her bag outside the School and later A.1 and A.2 came there and on that P.W.5 informed her that A.1 is her neighbour and she would talk to him, and left the place. It is her further evidence that she informed the same to P.W.2. She deposed in cross-examination that she had seen A.1 and A.2 at the school for the first time.
14. P.W.7 was working as Associate Professor in SVRRGG Hospital, Tirupati. He deposed that he is one of the members of the committee constituted for conducting potency test to A.1 and issue opinion. According to his evidence, members of the committee conducted potency test to A.1 and the committee members opined that there is nothing to suggest that he cannot perform the sexual act. Ex.P5 is the certificate issued by the team of Doctors.
15. P.W.8 was working as Civil Assistant Surgeon, Area Hospital, Srikalahasti. It is her evidence that she examined P.W.5 on 12.07.2015 at about 9.30 PM and found no external injuries on her body. Ex.P6 is the wound certificate issued by her. On internal examination, she found that vagina admitted with two fingers; axillary hair and public hair developed. She sent specimens from lower and higher vagina and the posterior formix to RFSL, Tirupati and received report Ex.P7 wherein it is found that specimen No.4 to Page 10 of 18 9, sperms and spermatozoa not detected. Basing on the same, she gave opinion that there is no recent evidence of sexual intercourse i.e. 48 to 72 hours, for P.W.5. Ex.P8 is the final opinion. She deposed that prior to 48 hours of examination, the victim girl was subjected to sexual intercourse.
16. P.W.9 is the investigating officer. He registered the subject crime and conducted investigation in the subject crime. He deposed about examining and recording statements of witnesses, preparation of rough sketch Ex.P10 of the scene of offence, collecting date of birth certificate from P.W.3-Head Master of the School, and on information, rescuing the victim girl and arresting the accused, recording confessional statements of the accused, seizure of M.Os.1 to 3, getting the medical examination conducted to the victim, altering Section of law, getting the statement of the victim recorded under Section 164 CrPC, getting the potency test conducted to A.1 and filing of the charge sheet after receipt of relevant documents and completion of investigation.
17. P.W.5 is the victim girl. She deposed in her evidence that she was studying 10th class by the date of the incident; A.1 was a tenant of a portion of her house for the last six months of the date of the incident; in the absence of her parents, A.1 used to come to her Page 11 of 18 house and state that she was beautiful and he likes her; A.2 is brother-in-law of A.1. It is her further evidence that on 04.07.2015 at about 9.00 AM, A.1 and A.2 came to her in the absence of her father, while she was going to her school, and A.1 asked her to follow him, and stated that A.1 intended to marry her and if she did not follow him, he would commit suicide or kill her. A.2 also threatened her with dire consequences. It is her further evidence that later, she kept her books at the school gate and A.1 and A.2 took her in an auto forcibly without her consent; they took her to Peddagudi situated in Kalahasti and she was taken to a Bangalore temple where A.1 tied one yellow thread thali around her neck on 5.7.2015 without her consent, forcibly. It is her further evidence that later, A.1 took her to a room in Bangalore and A.2 was waiting outside the room. It is her evidence that A.1 hugged and kissed her, removed her clothes and sexually enjoyed her and she protested while committing rape on her. She categorically deposed that on the next day morning i.e. 6.7.2015, the accused took her to Cotton Mill in Tamilnadu, arranged a room in the Mill, and herself and A.1 were residing in the room and A.2 was residing in another room; that they were there till 11.7.2015; that A.1 used to work in the Cotton Mill and while going to work, A.1 used to keep her in the room and lock the room. It is her evidence that from 6.7.2015 to Page 12 of 18 11.7.2015, A.1 used to commit rape on her everyday without her consent; that she was crying daily that she was not interested to stay in the room, but A.1 abused her daily. It is her further evidence that later, A.1 and A.2 took her to Tirupati from Tamilnadu in a bus and kept her in the house of one Yasodamma, situated near Anjaneya Swamy temple, and later, police came there and rescued her. Ex.P3 is Section 164 CrPC statement of P.W.5 recorded by Magistrate. She deposed that she was examined by Doctor in Srikalahasti.
18. From the evidence of P.Ws.1 and 2-parents of the victim and P.W.3- school Head Master and the recitals in Ex.P2-Certificate, it is established that the victim P.W.5 was studying 10 th class and aged about 14 years, at the time of the incident. According to Ex.P2-Certificate issued by the School Head Master, date of birth of P.W.5 was 13.11.2000, as per the school records. The same is not disputed or denied by the defence. There is no dispute with regard to the fact that P.W.5 was a minor at the date of the incident. Admittedly, A.1 was tenant of house of the parents of the victim P.W.5. He was staying in the said portion for the last six months of the incident. A.2 is brother-in-law of A.1. The accused have Page 13 of 18 knowledge that the victim girl P.W.5 was aged about 14 years by the date of the incident.
19. From the evidence of P.Ws.1 and 2-parents of the victim, it is clear that the victim went to School on the fateful day 4.7.2015 at 9.00 AM, but did not return home. It is also clear from the evidence of P.W.4-classmate of the victim girl, that the victim P.W.5 kept the school bag outside the school and later A.1 and A.2 came there and took P.W.5. The evidence of P.W.5 is categorical that A.1 asked her to follow him as he intended to marry her, and threatened that if she does not follow him, he would commit suicide or kill her. A perusal of the evidence of material prosecution witness P.W.5 goes to show that it is A.1 who compelled her to follow him in the auto from School and later took her to a temple and tied yellow thread thali around neck. According to the evidence, A.2, being brother-in-law of A.1, accompanied A.1.
20. P.W.5 deposed that A.1 committed sexual assault on her though she protested the same and that A.1 committed rape on her from 6.7.2015 to 11.7.2015 in a room in a Cotton Mill in Tamilnadu. Coming to medical evidence, P.W.8 is the Civil Assistant Surgeon, Area Hospital, Srikalahasti, who examined the victim girl P.W.5 on 12.7.2015 at about 9.35 PM. It is the evidence of P.W.8 that she Page 14 of 18 sent specimens from lower and higher vagina and the posterior formix to RFSL, Tirupati, and from Ex.P7-report of the RFSL, it is clear that specimen No.4 to 9, the sperms and spermatozoa not detected. P.W.8 gave opinion Ex.P8 basing on the RFSL report that there was no recent evidence of sexual intercourse i.e. 48 to 72 hours, of her examination on P.W.5.
21. According to P.W.5, A.1 committed sexual assault on her from 6.7.2015 to 11.7.2015. According to evidence of P.W.8, Doctor, who examined P.W.5 on 12.7.2015 at 9.35 AM, there was no evidence of sexual intercourse on P.W.5 prior to 48 to 72 hours of her examination. Medical evidence rules out any sexual assault on P.W.5 prior to 48 to 72 hours from 12.7.2015. From the aforesaid evidence, it is clear that the ocular testimony of P.W.5 is not corroborated by medical evidence i.e. P.W.8 and Exs.P7 and P8. Therefore, in the circumstances of the case and in the absence of any corroboration from medical evidence, the solitary testimony of P.W.5 cannot be placed in the category of 'wholly reliable' and the same cannot be a basis to convict A.1 for the offences under Sections 376 (2) (i) IPC and 4 of the POCSO Act, 2012.
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22. However, it is established that A.1 took the victim girl P.W.5 to a temple, knowing that she was a minor girl and marriage with her is void ab initio, tied a yellow thread to her neck and went through ceremony of being married with her knowing that A.1 was not thereby lawfully married, which is punishable under Section 496 IPC.
23. There is no evidence to establish that A.2 abetted A.1 to commit an offence punishable under the provisions of the POCSO Act, 2012. The evidence adduced by the prosecution is not sufficient to establish ingredients of Section 17 of the POCSO Act, 2012 against A.2. Therefore, the conviction and sentence recorded by the learned Sessions Judge against A.2 for the offence punishable under Section 17 of the POCSO Act, 2012 are liable to be set aside.
24. From the aforesaid discussion, this Court has no hesitation to hold that the prosecution is able to bring home the guilt of A.1 of the offences punishable under Sections 366A and 496 IPC, but failed to establish the charges under Sections 376 (2) (i) IPC and 4 of the POCSO Act, 2012. The prosecution failed to establish the guilt of A.2 of the offence punishable under Section 366A read with 34 IPC Page 16 of 18 and 17 of the POCSO Act, 2012. Accordingly, A.2 is entitled for acquittal.
25. In the result, the conviction recorded by the learned Sessions Judge against A.1 for the offence punishable under Section 366A IPC is confirmed, however, the sentence imposed by the learned Sessions Judge is modified and A.1 is sentenced to undergo the period of imprisonment already undergone by him during investigation, trial and after conviction, while maintaining the fine amount and default sentence. The conviction and sentence recorded by the learned Sessions Judge against A.1 for the offence punishable under Section 496 IPC are confirmed. Both the substantive sentences of imprisonment imposed against A.1 shall run concurrently.
26. Insofar as A.2 is concerned, the conviction and sentence recorded by the learned Sessions Judge for the offences punishable under Section 366A IPC and 17 of the POCSO Act, 2012 are set aside. A.2 is found not guilty of the charges levelled against him and he is accordingly acquitted of the said charges. Fine amount, if any, paid by him shall be refunded to him. He shall be released forthwith, if he is not required in any other case. Page 17 of 18
27. Accordingly, Criminal Appeal No.349 of 2017 is allowed. Criminal Appeal No.358 of 2017 is partly allowed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
JUSTICE K. SURESH REDDY JUSTICE K. SREENIVASA REDDY 31.1.2025.
DRK Page 18 of 18 THE HONOURABLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT IN CRIMINAL APPEAL Nos.349 OF 2017 and 358 of 2017 (per the Hon'ble Sri Justice K.Sreenivasa Reddy) 31.1.2025 DRK