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2022 DIGILAW 422 (TS)

Mekala Shiva v. State of Telangana

2022-06-30

K.SURENDER

body2022
JUDGMENT : K. SURENDER, J. 1. The present appeal is filed questioning the conviction of the appellant for the offences under Section 5(1) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced to undergo rigorous imprisonment for a period of 20 years and also to pay fine of Rs. 2,000/- in default, to undergo simple imprisonment for a period of six months and also sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 1,000/- in default, to undergo simple imprisonment for a period of three months for the offence under Section 363 of IPC vide judgment dated 23.02.2022 in P/Sessions Case No. 135 of 2019 passed by the Special Judge for Trial of Cases under POCSO Act-cum-II Additional District and Sessions Judge, Nizamabad. 2. The case of the prosecution is that PW-1, the father of the victim girl (PW-5) filed a complaint under Ex.P1 on 27.12.2018 stating that on 25.12.2018 when they woke up, they did not find PW-5 and she was missing, for which reason, police registered a crime for girl missing. Thereafter, on 15.02.2019, PW-5/victim girl was rescued and on seeing the police, the appellant/accused managed to escape. However on 17.02.2019, the appellant was apprehended by the police. 3. After examination of the victim, PW-5, the section of law was altered to Section 366(A), 376(2)(i) IPC and Section 5(1) r/w Section 6 of POCSO Act, 2012. The accused was also charged for the said offences. 4. During the course of examination, the witnesses PW-1-father, PW-2-mother and PW-3-brother of PW-5 stated that PW-5/victim girl went out of their house by saying that she wanted to attend nature call, but she did not return, for which reason, they went to the police station and filed a complaint. 5. PW-5/victim girl during her examination in the court stated that she knew the accused, who is aged around 19 years doing mason work. She was acquainted with the accused for the past four years and they fell in love. They used to frequently chat with one another in the absence of their parents. As the parents of the accused started searching for marriage alliance, PW-5 and the appellant decided to elope and marry. She was acquainted with the accused for the past four years and they fell in love. They used to frequently chat with one another in the absence of their parents. As the parents of the accused started searching for marriage alliance, PW-5 and the appellant decided to elope and marry. Accordingly, on 25.12.2018, when the parents were asleep, PW-4 and the appellant went to Bus Stand of Bellal and stayed in Kotagiri bus stand till 6.00 a.m. and at 6.00 a.m. they boarded the bus to Deglur village and they have taken room on rent basis in the house of PW-7 and stayed there. On 27.12.2018, both got married in Anjaneya Swamy temple in Deglur village. It is further the statement of PW-4 that from the date of marriage, they participated in the sexual intercourse and daily routine was that the appellant/accused was attending to agricultural labour work and PW-5 used to stay at home. After one and half month, when the appellant/accused was attending to his labour work, he suffered a snake bite, for which reason, PW-5 called PWs. 1 and 2 on 14.02.2019 and informed about their staying at Deglur village. Thereafter, the police arrived and took PW-5 and her statement was recorded before the Magistrate. 6. PW-5 is aged around 17 years and in proof of the same, Ex.P3, bona-fide certificate is filed, which shows her date of birth as per record as 25.08.2001. On medical examination by PW-14/Doctor, PW-5 was found to be pregnant. PW-14 further stated that the pregnancy test of PW-5 was positive with six weeks gestation. PW-9/Doctor, who conducted dental examination and also radiological examination of PW-5, opined that PW-5 was aged more than 16 years, however less than 18 years. To that effect, Ex.P4, age determination certificate of the victim girl/PW.5 was given. PW-9 also examined the appellant and issued a certificate of potency. 7. Learned counsel for the appellant argues that by virtue of explanation 2 to Section 375 of IPC i.e. “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, as such, assuming that the age of the victim girl/PW-5 was 17 years, as stated by the witnesses still it would not amount to rape. The said ground cannot be considered in view of the judgment of the Hon’ble Supreme Court in Independent thought vs. Union of India and Another in Writ Petition (Civil No. 382 of 2013) dated 11.10.2017, wherein the Hon’ble Supreme Court has amended explanation-2 to Section 375 and the age which was 15 years was made as 18 years. However, the Hon’ble Supreme Court made it clear that the judgment would have prospective effect. The said Judgment is dated 11.10.2017 and the offence in the present case is in the year 2018, for which reason, the said ground raised is not available to the appellant/accused. 8. Learned Assistant Public Prosecutor submits that the age of the victim girl/PW-5 is less than 18 years, as proved through Ex.P3, bona-fide certificate. According to the certificate, the date of birth of PW-5/victim girl is 25.08.2001. Further, PW-9 conducted ossification test and gave an opinion that PW-5 was aged more than 16 years and less than 18 years, as such, even assuming that PW-5 has consented to live with the appellant/accused had sexual intercourse, the said consent has no legal sanctity and for the said reason, the finding of the trial Court that PW-5 was a minor, cannot be interfered with and conviction has to sustain. 9. It is an admitted fact that PW-5 has voluntarily gone with the appellant/accused, who was aged around 19 years. In the chief examination before the Court, PW-5 stated that since the parents of the appellant/accused were searching for bride to perform marriage of the appellant/accused, both the appellant and PW-5/victim girl have decided to marry and accordingly, without intimating PWs. 1 to 3, the family members of PW-5, PW-5 along with the appellant/accused got married on 27.12.2018 at Anjaneya Swamy Temple at Deglur village. Thereafter, even according to the admission of PW-5/victim girl, there was never any kind of force either to accompany the accused/appellant or to participate in the sexual intercourse with PW-5. The reason for informing the parents was after snake a bit the appellant/accused, and the villagers insisted that their parents should be informed. During the course of cross-examination, PW-5 admits that she was in deep love with the appellant/accused. 10. The entire case of the prosecution rests upon the age of PW-5/victim girl. The prosecution has relied upon Ex.P3, the bona-fide certificate, wherein the date of birth of PW-5 is given as 25.08.2001. During the course of cross-examination, PW-5 admits that she was in deep love with the appellant/accused. 10. The entire case of the prosecution rests upon the age of PW-5/victim girl. The prosecution has relied upon Ex.P3, the bona-fide certificate, wherein the date of birth of PW-5 is given as 25.08.2001. According to PW-3 and Ex.P3, the victim girl/PW-5 was studying X standard when the incident happened. In the normal course, the students of X class would be aged around 15 years. In the present case, neither the hospital records nor the municipal records are produced regarding the exact date of birth of PW-5. It is apparent that on the basis of the declaration given by the parents of PW-5/victim girl, the date of birth of PW-5 is stated as 25.08.2001. 11. The Doctor/PW-9, who conducted ossification test, formed an opinion that the victim girl/PW-5 was more than 16 years, but less than 18 years. The reason for giving such an opinion that she was less than 18 years is not specified in the age determination examination Ex.P4. Neither did the Doctor in the witness box substantiate as to how the Doctor can give such an opinion that PW-5 was more than 16 years and less than 18 years. 12. The Hon’ble Supreme Court in the case of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir, (1982) 2 SCC 538 has observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. The said judgment is not overruled. Further, the Doctor has not specified what is the meant by more than 16 years and if it is accepted that the victim as more than 16 years, applying the judgment of Hon’ble Supreme Court regarding the margin of error, adding two years to it, the age of the victim girl/PW-5 would be more than 18 years. 13. In the said circumstances, there is no conclusive proof regarding the age of the victim girl/PW-5 by producing hospital record or municipal record, which was taken at the time of birth. Ex.P3 is bona-fide certificate, it is not known on what basis or whose declaration date of birth is recorded as the parents are illiterates since thumb impression is put on deposition. Ex.P3 is bona-fide certificate, it is not known on what basis or whose declaration date of birth is recorded as the parents are illiterates since thumb impression is put on deposition. Ex.P4 is ossification test, which states that the victim/PW-5 is more than 16 years and taking judicial notice that the margin of error may be two years on either side, the age of PW-5/victim girl would be more than 18 years. PW-5 has voluntarily gone along with the appellant/accused, who is aged 19 years, married him and stayed together for nearly one and half month. Further, only for the reason of snake bite, the whereabouts of PW-5 were informed to her parents. In the said circumstances, the benefit of doubt has to be extended to the appellant/accused since the prosecution has failed to prove the age of the victim girl/PW-5 is less than 18 years. 14. For the aforementioned reasons, the appeal has to be allowed and accordingly allowed setting aside the impugned judgment dated 23.02.2022 in P/Sessions Case No. 135 of 2019. The appellant/accused is directed to be set at liberty forthwith, if he is no longer required in any other case. As a sequel thereto, miscellaneous applications, if any, shall stand closed.