Criminal Appeal No. 353 of 2018 · Hyderabad High Court · 2025

Judgment

1 Chattenge in this appeal is to the judgment dated 26.12.2017 passed in Sessions Case PCS No. 18 of 2016 on the fiter of the Court of the I Additiona[ Metropolitan Sessions Judge-cum-special Judge for Triat of Cases under Protection of chitdren from sexua[ offences Act, 2012, Hyderabari wherein and whereby the appettant herein was found guilty of the offences punishabte under Ser:tions 6 of the POCSO Acl, 376 (2) (n), 363 and 365 of IpC and was sentenced to undergo rigorous imprisonment for a pdriod of ten years and to pay fine of Rs.2,000/- for the offence under Section 6 of the pOCSO Act, rigorous imprisor:ment for ten years and to pay fine of Rs.2,000/- for the offence under Section 376 (7) (n) of lpC, rigorous imprisonment for five years each and to pay fine of Rs.2,000/-each for the offences punishabte under Sections 363 and 365 of lpC. 2 The facts irr brief that lead to the fiting of the prresent criminat appeal are that c,n 26.12.2O14 P.W.1 todged a comptaint stating that her grand daughter P.W.5 was found missing. Basing on the said ( 2 complaint a case in Cr.No.518 of 7014 under Sections 363 and 365 of IPC was registered by P.W.10-ASl of Potice and [ater on P.W.1'l took up further investigation in this case. During the course of investigation on 07.01 .2015 the missing girt P.W.5 was traced and was brought to P.S. On examination P.W.5 stated that on 09'3.2012 she came into contact with one G.Vijay Kumar (the appeltant herein) through Facebook and they both fett in love with each other. On

09.3.7012 at about 11.00 am they got married at Peddamma tempte, Banjara Hitts and they took photographs atso. The appettant used to come and meet her at her coLtege. On 76.12.20'14 at about 7.00 am, the appetLant took her to Secunderabad and from there to Vijayawada. They went to Durga temple, tater had lunch and from there the appeLtant took her to Visakhapatnam and kept her in his friend's room and went away and since then she was in Visakhapatnam. The 164 Cr.P.C. statement of P.W.5 was atso got recorded by the Xl AClr A , Secunderabad. Basing on the statement of P.W.5, P.W.14-lnspector of Potice added the Section 376 IPC and Sections 3 and 4 of POCSO Act, 2017 and took further investigation during which the victim was sent to Gandhi Hospital' for medical ?- 'a 3 examination wherre P.W.8 examined the victim and preserved the virginal smears. According to the schoo[ records, the victim was determined 17 years being the date of birth as 14.8.1997. Hence the charge. 3 Cognizance was taken under Sections 363, 365 and 376 of lpC and under Section 6 of the POCSO Act, Z01Z. Charges under Sections 6 of the POC50 Act,2012 and Sections 363, 365 and :|76 of lpC were framed, read over and exptained to him in Tetugu, to which the appe[tant pleaded not guitty and ctaimed to be tried. During the course of triat, the prosecution examined p.Ws.1 to 14 and got marked EXs.P.1 tc P.11. The appettant was examinect under Section 313 Cr.P.C. for the incriminating evidence avaitabte against him in the testimony of the prosecution witnesses which he denied. 4 The [earned Additionat Metropol.itan Sessions Judge, on appreciation of the oral and documentary evidence avaitabte on record and on hearing the learned Public prosecutor and the learned counsel for the appettant found the appettant guitty of the offences punishabte under Sections 6 of the POCSO Act,376 (2:) (n), 363 and 4 365 of IPC and was sentenced as stated supra. Aggrieved, the present appeal by the accused.

5 Heard Sri K.V.Simhadri, learned senior counsel appearing on behatf of Sri M.Srinivsa Rao, learned counsel for the appettant and Sri E.Ganesh, learned Assistant Pubtic Prosecutor appearing for the respondent - State and perused the record. 6 Now the point that arises for consideration in this appeat is whether the prosecution proved the guitt of the accused for the charged offences beyond reasonable doubt or not? And whether the conviction and sentences recorded by the learned triaI Court withstand the scrutiny of [aw? 7 The learned counsel for the appettant contended that the triat Court erred in convicting the appettant under Section 6 of the POCSO Act and under Section 376 (7\ (n) and 363 and 365 of IPC even though there is no sufficient material avaitable on record. He further submitted that the learned trial Court recorded the conviction sotety on the basis of the interested witnesses. He further submitted that the prosecution faited to prove that the victim is a minor and thereby ;ry /... /'t.r 5 the offence under the POCSO Act woutd appty. The l.earned counsel for the appettarrt further retied on the decision r:f the Hon'bte Supreme Court in P.Yuvaprakash vs. State rep. by lnspector of Policel wherein atso the apex Court hetd that school transfer certificate is not acceptabte for the determination of 'rictim' 8 On the other hand the learned Assistant Pubtic Prosecutor submitted that the [earned trial Court had given a cat.egorica[ finding that the appel.l.art is guitty of the offences with which he was charged by appreciating the evidence avaitabte on record both oral and documentary and hence the wetL reasoned judgment rendered by the trial Court does rtot warrant interference. The entire :ase of the prosecution revotves around the evidence 9 of P.W.5, the prosecutrix. According to her, her date of birth is 14.8.1997. Whert she was studying lntermediate I year, she got acquaintance with the appellant through Facebook in the year 201 2. She was chatting with the appeLtant under the impression that the appettant was a femate. But after one month she carne to know that 1 2023 SCC Online SC 846 i I l I i I l I I t i I I I ! I I I I I I I : I i i l , I I ; I 6 the appettant was male person. ln the month of January, 2013 the appettant came to her cotlege and proposed that he is in love with her and coutd not survive without her to which P.w.5 stated that her parents witl. not agree for the marriage and convinced him' Again in the month of March, 201 3, the appetLant brought his parents and took her from her cottege to Peddamma templ.e and married her and also took photographs of their marriage at Peddamma tempte. Since then the appel.tant started btackmaiting her and threatened her saying that he witt post the photographs in Whatsapp if she does not come to Visakhapatnam to his house. On 77.17-7014 when P'W.5 went to the house of P.W.1 (her grandmother) the appettant came there on

76.12.2014 when she was atone in the house and took her to Secunderabad and by train they went to Vijayawada. From there the appettant took her to Visakhapatnam by train and kept her in the house of one Revathi for about one week. There the appetlant committed rape against P.W.5 for a period of one week. Therefore, P.W.5 consumed nait potish and asked the appettant to send her to her house, but the appeltant did not send her. The mother of the appethnt" handed over P.W.5 to P.W.2 (mother of P.W'5) and her 1\ .--. .}ti.#:l ,,.:y' l. -.y 7 maternal uncte (P.W.3) when they came atong with the poLice in the month of January, 2015. From there p.W.5 was brought to Hyderabad and her statement was recorded in Gandhi Nagar potice station. Later she was sent to Gandhi Hospitat for treatment and medical examination and her statement under Section 164 Lr.p.C. was got recorded by the Magistrate. 10 Section 2(d) of the POCSO Act, ZO|Z defines tl-re word ,chitd'. The evidence of P.W.2 as we[[ as the victim atso goes to show that the date of birth of the victim as 14.g.1997. ln order to prove the same, the prosec:ution fited Ex.p.z rransfer certificate to show the date of birth of P.W.5, the victim, as 14.g.1997. But p.W..14, the investigating off'cer, deposed that he did not cotlect the ssc certificate and date of birth certificate of the victim to ascertain the age of the victim. But he further deposed that he, cor.tected the Xerox copy of the Transfer certificate and originar. bona fide and that he atso did not got conduct the age determination test of the victim girt. rt is matter of record that none of the school officials are examined and the prosecution has relied only upon the photostat 8 copy of the transfer certificate issued by the school authorities. Nowhere it is mentioned that the school where the prosecutrix has studied was in session at the time of securing the transfer certificate of the prosecutrix by the prosecution. 11 ln the instant case the appettant disputes the age of the victim. According to him the victim is major by the date of offence. ln order to put a quietus to the issue, this court reties on the observations made by the Hon'ble Supreme Court in p.yuvaprakash case (1 supra) wherein the Hon'ble Supreme Court hetd as fotlows:

13. lt is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the pOCSO Act, the courts have to take recourse to ihe steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenite Justice Act requires consideration is that the concerned court has to determine the age by considering the fottowing documents: "(i) the date of birth certificate from the schoot, or the matricutation or equivatent certificate from the concerned examination Board, if avaitable; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipa[ authority or a panchayat; (iii) and on[y in the absence of (i) and (ii) above, age shatl be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board ". i F-riw ,,/ I t i I' I I I I ! I I I I I I I I , 9 17 At the cost of repetition, it is the evidence of P.W.14, the investigating off,cer who deposed that he did not cottect the SSC certificate and date of birth certificate of the victim to ascertain the age of the victirn. But he further deposed that h,: collected the Xerox copy of thr: Transfer Certificate and original bona fide and that he atso did not got conduct the age determination test of the victim girt. ln order to estabtish the genuineness or othenvise of the bona fide certificate, none was examined before the Court. Moreover, the victim was atso not subjected to ossification test or ;any other latest medical age determination test conducted on the orders of the Committee or tlte Board. ln the very same judgmernt the Hon'bte Supreme Court heLd that schoo[ transfer certificate is not acceptabte for age determination of a victim. ln those circum:stances a doubt arises with regard to the age of the victim. Though the victim and her mother deposed that she was aged 17 years and odd, there is no corroboration to their evidence in the form of any documentary evidence. The'refore, I am of the considered view that the prosecution faited to bring home the guitt of the appe[tant for the ( 10 offence under section 6 of the Pocso Act beyond atl reasonable doubt by adducing cogent and convincing evidence' 13 Coming to the other offences, under which the appetlant was found guiLty, the evidence of P.W.8 Dr.Swaroopa Rani who examined the victim shows that she examined the victim on 01 '7'2015 and basing on the FSL report and on her examination she opined that sexua[ intercourse cannot be ruted out. However, as seen from the record, the victim was traced out at Visakhapatnam and was brought to Hyderabad in the month of January, 2Q1 5, whereas the victim was subjected to medical test in Juty,201 5. There was a gap of six months. The doctor who examined the victim gave statement that sexual intercourse cannot be ruLed out, but, she did not emphaticalty state that the victim P.W.5 was subjected to intercourse by the appettant onl.y and that the appel.Lant atone was responsibte for such an act. Moreover, in the instant case the age of the victim is not ctear to treat her as minor. when there is suspicion with regard to her age, she cannot be termed or treated as minor' ln the preceding paragraph this court has already hetd that the prosecution faited to ?,.sfry L: a/ I 11 prove the guitt of the appellant for the offence under the pOCSO Act. Hence she has to be treated as major. ln such circurnstances taking into consideration the aspect of consent does not aris;e at atl. ln the tight of the foreqoing discussion, I am of the opinion that there is a ctoud spreading rver the case of the prosecution with regard to the offence under Section 376 IPC atso. Hence the appettant is entitted to benefit of doubt for the said offence also. 14 Coming to:he offence under Section 363 lpc, since p.W.5 was not proved to be a minor, this Section does not attract and consequently Section 365 IPC atso in the tight of the r:vidence of the interested witnesses onty. There is no corroboration from any independent witnesses. 15 For the ovr:ra[[ discussion made above, this c.ourt is of the opinion that the prosecution failed to prove the guiLt c,f the appettant for the offences for which he was found guitty of the offences beyond reasonable doubt and the appel[ant is entitted to benefit of doubt. 16 ln the result, the appea[ is a[[owed, setting aside the judgment dated 26.12.2017 passed in Sessions Case pCS No.1g r:f 2016 on the t2 fite of the court of the I Additional, Metropotitan sessions Judge-cum- special. Judge for Tria[ of Cases under Protection of chitdren from Sexual Offences Act, 20'12. The appettant is acquitted of the said offences. Bail. bonds of the appettant sha[[ stand cancetted' Miscetlaneous petitions if any pending in this appeal shatl stand closed. //TRUE COPY// Sd/- I. NAGA LAKSHMI JOINT REGISTRAR SECTI FFICER To,

1. The r Additionar Metroporitan sessions Judge'cum speciar Judge for Triar of cases under protection of ChitOren from Sexual OffLnces Acl2O12' Hyderabad' 2. The Station House otticei' G;"dhi;;g" Police Station' Secunderabad '3. iii; il;;;l;ienoent, chanchalsuda Jail' Hvderabad 4 one CC to Sri rvrerapotntii Sii"nivasa naohdvoc{e (OPUC) 5. Two CCs to Public p,o."lJt"'i,"uidn'to"t'toi tn" Staie of Telangana at 6. Two CD CoPies Ks/gh Hvderabad.(OUT) i I ! 1 I I { I I I I I i I I I i l / .\\ 'o L' t r'- t-' sEH1 I 1ri JUL zffi 2 * * HIGH COURT DATED:09104t2025 ORDER CRL.A.No.353 of 2018 Allowing the Crl.A. ?r 4 , ! I i I I ! I ' i i I I 1 i I I I I I I I I I I I i , i 1 I i I I I i