The High Court · 2025

The State of Telangana, rep by its Public Prosecutor' High Court for the State of Telangana ...RESPONDENT/COMPLAINANT IAN O:1 oF 2024 PetitionunderSection43o(1)ofBNSSprayingthatinthec|rcumstances stated in the affidavit filed in support of the petition' the High Court may be pleased to suspend the.iudgment d1'26 07 2023 passed in SC'No 651 ol 2021 on the file of on the file of Metropolitan Sessions Judge' Cyberabad' L B'Nagar' Ranga Reddy District and release the petitioner on bail' pending disposal of above Crl.A.No.943 ol 2023' Counsel for the Appellant: Sri Vuppalapati Sreenivasa Rao Counsel for the Respondent: Sri D' Arun Kumar' Additional Public Prosecutor The Court made the following: ORDER ( THE HON'BLE SRI WSTICE K.SURENDER CRIMINAL APPEAL No.943 0F 2o23 JUDGMENT: The a1;peal is filed by the appellant/accused challenging the conviction recorded by the learned Metropolitan Sessions Judge, Ranga Reddy l)istrict at L.B.Nagar, in S.C.No.65 1 of 2O2t, dt. 26.07.2023, for the offence under Section 326_A8 of the Indian Penal code a,d section 5 r/w.6 0f the pocso Act, 2072 and. sentenced to undergo Rigorous Imprisonment for a period of twenty years and to pay a fine of Rs.lO,OOO/_. 2. Heard Sri r,/. Srinivasa Rao, learned counsel for the appellant and Sri D.Anrn Kumar, learned Additional public prosecutor for respondent-St ate.

3. The case of the prosecution agajnst the appellant is that on 28.09.2O2O in the evening hours around 6.OO p.m., the victim girl PW.2 was alone in the house. The appellant went into the house and forcibly removed her underwear and a-lso put his hand underneath. The same was informed by the victim girl to pW. 1 who is the paterned grand mother of the victim girl. The appellant is related. The materna,l grald_father ald grand_mother of the victim girl and PW. 1 (paternal gra,d-mother of victim) were a, z residing in one house' The mother of the victim girl died' as such' the victim girl was livrng with her matemal grand-mother (PW'i)' 4. On the basis of the information given by PW'2-victim' PW'1 todged a Telugu written complaint Ex'Pl' On the basis of the complaint, the Police investigated the case and filed charge sheet under sections 376 (AB) of the Indian Penal Code and Section 5 r/w.6 of the POCSO Act' 5. The learned Sessions Judge examined PW'2-victim' PW'1- paternal grand-mother of victim' PWs'3 and 4 who were living in the same locality and related' to PWs' 1 arrd 2' 6. On the basis of evidence of the victim girl that the appellant inserted his finger into the vagina of the victim girl-PW'2' conviction was recorded' 7. Learned Counsel appearing for the appellant would submit that the appellant was falsely implicated' The version of PW'2- victim and other witnesses regarding insertion of rrnger into the private part of the victirn is negatived by the evidence of doctor- PW.6, who stated that she examined the victim girl and did not find any external injuries or redness or tenderness' There is no evidence of insertion of finger into the vagrna of the victim girl' 3

8. On the other hand, learned Additiona_l public prosecutor would subr:rit that pW.2_victim and three others have specifically stated about the act committed by the appellant. 9. As seen from Ex.pl which is the complaint grven on the basis of the information given by the victim girr. The statement made by pW 1 before the police is as follows; "Nenu uelli Meenakshini Emi Jarigindi ani adigtthe, Meenak:;hi e dchukuntu Malte sh Thatha naa battalu uippi kinda cheg,i pettindu ani chupinchindi. (Translation bg me:- When questioned Meenakshi as to what happened, Meenakshi was crying and. stated that Mallesh grand- father remoued_ her clothes and kept his hand underneath.)t"

10. Thereafter, while being examined by the doctor, it was written in trx.p4_medical examination note that a complaint was received that the accused inserted his finger into the vagina of the victim girl on 28.O9.2020 at 6.OO p.m.

11. The evidence of the doctor pW.6 would be relevant which is as follows; "Accordin1tl14, I examined. her and found no extemal injuries, no redness and. no tend.erness. I also found no euidence of ttng insertions into uagina. To that effect I issued the' medical exqmination report. It is marked. as 4 :'i Ex.P4. The possibilitg of complaint of uictim cannot be ruled out, merelg because no external injuries' redness' tendemess etc."

12. As seen from the complaint' at the earliest point of time it was stated that the appellant had touched the private part of the victim girl and it was not specifrcally mentioned that his frngers were inserted into the private part'

13. Section 7 of tlrre POCSO Act reads as follows; *7. Sental assault.-Whoeuer, uith sental intent touches the uagina, penis, anus or breast of the child or makes the childtouchtheuagina,penis'anusorbreastofsuch person or aruA other person, or d'oes ang other oct with sexual intent uthich inuolues phgsical contctct uithout penetrationis said to commit sental assault'"

14. Section 3 of the POCSO Act reads as follows; o3. Penetratiue sexual assault'-A person is said to commit " penetratiue sental assault" if- (a) he penetrates his penis, to ang ertent' into the uagina' mouth, urethra or rLntts of a chitd or makes the child to do so rpith him or ang otlrcr Person; or (b) he inserts, b ang extent, anA object or a part of the bodg, not being the peruis, into the uagina' the urethra or anus of the child or makes th'e chitd to do so tuith him or arug otler Persorl; or 5 (c) he manipulates ang part of the bodg of the child so as to can,se penetration into the uagrina, urethra, ant-s or ang part o.f bodg of the child or makes tLte child to d.o so with him or ang other person; or (d) he applies his mouth to the penis, uagina, anus, urethro o-f the child or makes the chitd. to d.o so to such person or anA other person.,, 15 Sectiorr 3lz5 of IpC reads as follows; '375. fr,ape.--A man is said_ to commit ,,rape,, uho, except in the case hereinajler excepted., has sexual intercourse utith a Luoman under ctrcumstances falling und.er ang of the six follotuin g d e s ciptio n s : _ First. -Against her wilt. Se co ndl q. - Wit hout he r co nse nt. Thirdlg. With her consent, uthen her consent has been obtainea' b11 putting her or ang person in whom she ls interested Wrcn questioned. in fear of d.eath or of hurt. Fourthlg. -With her consent, uhen the man knows that he is not her husband, and that her consent is giuen because she belieues. that he is another man to whom she is or belieues herself to be lawfullg married.. Fifthlg.-With her consent, uh.en, at the time of giuing such consent, Ltg reason of unsound.ness of mind or intoication or the administration bg him personallg or through another of ong stupefging or unuholesome substance, s/re is 6 unable to understand the nature and consequences of that to which she giues consent' Sixthlg.-With or uithout her consent' uhen she is under sixteen gears of age. . Explanation.-Penetration is sufficient to constitute the serual intercourse necessary to the offence of rape' Exceptton--sental intercourse bg a man taith his oun uife' the uife ruot being under fifieen gears of age' is ruot rape'" 16. The requirement to convict a person under Section 376-AIl and Section 6 of the POCSO Act, would be insertion of any object or hands into the vagina' L7 . At the earliest point of time, in the complaint, it was mentioned that her private parts were touched' The doctor-PW'6 stated that she did not find any evidence of insertion into the vagina. The evidence of the victim girl is the only evidence to infer the acts committed by the appellant' At the earliest point of time when questioned by PW'1, the victim-PW'2 stated that the appellant put his hand underneath after removing her clothes' Inserting finger is a subsequent improvement made during examination by doctor and also in 164 Cr'P'C statement' The doctor did not give any specific opinion on inserting hnger into the 7 vagina of the gi.rl. However, the fact remains that the private parts of the victim u,ere touched by the appellant.

18. Accordingly, the conviction under Section 376_4B and Section 6 of the POCSO Act is set aside. However, the appellant is convicted under Section 9 (m) r/w.Section 10 of pOCSO Act. Accordingly, the appellant is sentenced to undergo flve years lmpnsonment.

19. crimineLl Appear is partly allowed. Since it is stated that the appellant is on. bail, the court below is directed to cause appea_rarce of the appellant/accused and send him to prison to serve out the remaining part of sentence. //TRUE COPYII Sd/. K. SRINIVASA RAO JOINT EGISTRAR ( SECfION OFFICER Sessions Judge, Cyberibad, L.B.Nagar, Ranga Reddy I[ir,|."uooo,,,an If ,:rfflitfi :3::lif:i,ra, Prison, cherrapaily, Medchar Markajsiri District The S_tation House Ofricdr, Miyapur police Station, Hyderabad Pubric Prosebdtor, High-coi;-i;,' iil; state or reransana at Iff":r?:J:,$S One CC to S.i Vuioalaoati Sreenivasa Rao, Advocate IOPUCI ' ' Two CD Copres To 1

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5. 6. VI{/PR i I HIGH COURT DATED: 03101t2025 ORDER CRLA.No.943 of 2OZ3 a q J c 1o -1 .lE I;r4 :'4: z o +? 0Il Ji t: rl{ 2025 *^ \----_1" ,'..' -;- -t 4 ALLOWING THE APPEAL