Telangana High Court
Choppari Kumar vs The State Of Telangana on 22 April, 2022
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.111 OF 2021
Between:
Choppari Kumar ... Petitioner/Accused
And
The State of Telangana
through Public Prosecutor,
High Court. .... Respondent.
DATE OF JUDGMENT PRONOUNCED: 22.04.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No.111 of 2021
% Dated 22.04.2022
#Choppari Kumar ... Petitioner/Accused
And
$ The State of Telangana
through Public Prosecutor,
High Court. ..Respondent.
! Counsel for the Petitioner: Sri K.M.Mahender Reddy
^ Counsel for the Respondent: Learned Public Prosecutor
>HEAD NOTE:
? Cases referred
1
2019(3) RCR (Criminal) 452: 2019(3) MLJ (Criminal) 110
2 2011 CRI.L.J 2591
3 (2013) 3 SCC 791
4 (2016) 1 Supreme Court Cases 696
3
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 111 OF 2021
JUDGMENT:
1. The appellant is questioning the judgment of the trial Court in SC No.127 of 2017 dated 23.02.2021 finding the appellant guilty for the offences under Section 376(2)(n) of IPC and sentenced to under go Rigorous Imprisonment for a period of ten years and also sentenced to undergo 2 years simple imprisonment for the offence under Section 366 of IPC.
2. The facts of the case are that P.W.1, who is the father of the victim, P.W.2, aged about 17 years, filed a complaint Ex.P1 dated 19.09.2016 stating that P.W.2 was missing. The said complaint is Ex.P1 registered as First Information Report Ex.P12. In Ex.P1, it is stated by P.W.1 that P.W.2 was missing from the evening of 17.09.2016 and suspected that the appellant might have taken his daughter. Two days after the complaint, the police called PW.1 to the police station as P.W.1 and appellant went to the police station. The Police recorded the statement of P.W.2 and altered section of law to Section 4 376 IPC, Section 3 r/w 4 of Protection of Children from Sexual Offences Act, 2012 (for brevity 'the Act of 2012').
3. The Police, Husnabad Police Station, charge sheeted the appellant for the said provisions and charges were framed for the offences under Section 366, 376(2)(j) IPC, Section 4 of the Act of 2012. After conclusion of trial, the appellant was convicted as stated supra.
4. When the victim P.W.2 was examined in the court, she stated that she loved the appellant. Both of them decided to marry and went to Peddamma Temple on 17.09.2016, where the appellant tied Thali (Thread tied to the bride as per custom). Thereafter, they went to Hyderabad and stated for three days, during which time, the appellant had intercourse with P.W.2.
5. The Police got the statement of P.W.2 recorded under Section 164 Cr.P.C before the Magistrate, which is marked as Ex.P2. She stated on oath as follows, as per translation made available.
"Q.No.4 What happened? Said?5
Ans: I liked one boy. His name is Kumar and I went with him to Samudrala village and both got married at Peddamma temple. On that day, my parents put kidnap case. But no one kidnapped me. With my willing I went to Hyderabad along with Kumar. We stayed there for (4) days. We came to here as after knowing my parents filed a case in this regard. But no one kidnapped me."
6. The practice adopted by the trial Court in marking Section 164 Cr.P.C statement is incorrect. Statement of a witness recorded under Section 164 Cr.P.C is a previous statement and can only be confronted in accordance with Section 145 of the Evidence Act and relevant portion should be made part of the deposition. It appears that for the reason of witness accepting his statement under Section 164 of Cr.P.C, it was marked, which procedure is incorrect. For the purpose of adjudicating the appeal, the statement of Ex.P12 is extracted above.
7. The learned counsel for the appellant submits that at the earliest point of time before the Magistrate, P.W.2 did not state that the appellant had intercourse and specifically stated that no one kidnapped her. In the said circumstance, the question of rape does not arise. Further, when she has voluntarily gone along with the appellant, it cannot be said that Section 366 is 6 attracted. In the said circumstances, the appellant has to be acquitted of the charges. In support of his contention, he relied on the judgment of Madras High Court in the case of Sabari @ Sabarinathan @ Sabarivasan v. Inspector of Police1 and drew the attention of this Court to para 28, which reads as follows:
"28. Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence."
8. On the other hand, though the learned Assistant Public Prosecutor accepted that P.W.2 had gone with consent, the said consent of a minor cannot be considered and the trial Court has given cogent reasons for convicting the appellant and the same cannot be interfered with.
9. The evidence of P.W.1 when examined in court would go to show that she went with the appellant on her own taking an 1 2019(3) RCR (Criminal) 452: 2019(3) MLJ (Criminal) 110 7 amount of Rs.2,000/-. There is no allegation of any forced intercourse, except saying that they participated in intercourse during their stay for three days in Hyderabad. However, when P.W.1 was examined before the Magistrate under Ex.P2, there is no mention of any intercourse or having any sexual relationship with the appellant. The evidence reveals that P.W.2 was sent for medical examination and semen and spermatozoa were detected on the Vaginal swabs taken from P.W.2.
10. The finding of the trial Court is mainly on the basis that P.W.2 is below 18 years and her consent would be immaterial and for the said reason the trial Court concluded that P.W.2 was kidnapped and she was taken to Hyderabad where the appellant committed sexual assault on her. For the aforesaid reasons, Section 29 of the Act of 2012 has to be invoked and the appellant failed to discharge his burden as required under Section 29 of the Act.
11. The prosecution filed Ex.P4, which reflects the date of birth of P.W.2 as 07.07.1999. As on the date of the alleged 8 incident, the P.W.2 was aged 17 years and two months. The decision of Hon'ble Supreme Court reported in the case of K.P.Thimmappa Gowda v. State of Karnataka2, the Hon'ble Supreme Court held as follows:
"5. In the trial court the appellant contended that Rathnamma was 20 years of age at the relevant time and she had admitted in her cross- examination that she had sexual intercourse with the appellant nearly 100 times. It was submitted that this showed that she was a consenting party and hence no case under Section 376 IPC is made out against the appellant. Rathnamma's mother Gowramma PW-11 stated in her evidence that Rathnamma was 18 years of age. Hence she was above 16 years of age and there could be no rape since there was consent."
12. In Rajesh Patel v. State of Jharkhand3 and State of Madhya Pradesh v. Munna alias Shambhoonath4, on facts, the Hon'ble Supreme Court acquitted the appellants therein when the case was of consensual sex with a girl aged above 16 years.
13. The proof of age of P.W.2 is the certificate provided by the Principal of the college, P.W.3. The date of birth given vide certificate Ex.P4 cannot be conclusive proof of the exact date 2 2011 CRI.L.J 2591 3 (2013) 3 SCC 791 4 (2016) 1 Supreme Court Cases 696 9 of birth of P.W.2 as the same is based upon a declaration given by the parents at the time of admission of P.W.2. If the certificate issued at the time of actual birth by the competent authorities like MRO, Sub-Registrar or hospital authorities is produced, it can be safely concluded that the date of birth is correct. There is a general tendency by the parents either to increase or decrease the date of birth depending upon the circumstances. When the father-P.w.1 was examined, he stated that P.W.2 was aged 13 years when the incident took place. That itself shows that the father-P.W.1 was not giving the correct details. In the said circumstances, when the exact age of P.W.2 could not be determined and the only basis for conviction is that P.W.2 was below 18 years, though her evidence on record would prove that she consented for going with the appellant to all the places and also for sexual intercourse with the appellant, the benefit of doubt has to be extended to the appellant.
14. In the said facts and circumstances, when the prosecution is not able to prove exact age of P.w.2, admittedly, p.W.2 had voluntarily on her consent, proceeded with the 10 appellant, to all the places including Hyderabad, the appellant is entitled to be acquitted of all the charges under Sections 376(2)(n) of IPC and Section 366 of IPC.
15. Accordingly, this Criminal Appeal is allowed setting aside the judgment of the trial Court in SC No.127 of 2017 dated 23.02.2021. The bail bonds of the appellant shall stands cancelled.
________________ K.SURENDER,J Date:22.04.2022 kvs 11 HONOURABLE SRI JUSTICE K.SURENDER Criminal Appeal No. 111 OF 2021 Date: 22.04.2021 kvs 12