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2023 DIGILAW 336 (TS)

Mala Anjaiah v. State of Telangana

2023-04-26

G.ANUPAMA CHAKRAVARTHY

body2023
JUDGMENT 1. This appeal is filed seeking to set aside the judgment dtd. 10/11/2021 in S.C.No.124 of 2017 on the file of Fast Track Special Judge for Trial of Cases Under POCSO Act -cum- IX Additional District and Sessions Judge (F.T.C.), Ranga Reddy District, L.B.Nagar, for the offences punishable under Ss. 376, 417 of I.P.C. and Sec. 3 read with Sec. 4 of POCSO Act. 2. Heard learned counsel for the appellant as well as Sri S.Ganesh, learned Assistant Public Prosecutor appearing for the respondent. 3. The case of the prosecution is that six months prior to lodging the complaint, on the occasion of holidays to the college, in the absence of the mother of the victim/PW-2, in the afternoon the accused forcibly took the girl to his room and committed rape upon her and told her that he will marry the victim girl. Due to the deceitful assurance made by the accused, the victim girl kept calm. Thereafter, the accused, frequently, participated in sexual intercourse with the victim girl, resulting the victim girl became three months pregnant by the time of registering the case against the accused. The de facto complainant/mother of the victim girl noticed the abdomen of the victim girl. On enquiry, victim girl informed to the mother that the accused forcibly raped her and subsequently, he had sexual intercourse with her. Basing on the complaint given by the mother of the victim/PW-2 a case was registered against the accused for the offences punishable under Ss. 376, 417 of the I.P.C and Sec. 3(1) r/w. Sec. 4 of the POCSO Act and was sentenced to undergo simple imprisonment for a period of seven years and to pay fine of Rs.5,000.00 and further he was convicted for the offences punishable under Ss. 5 and 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for a period of twenty years and to pay fine of Rs.5,000.00 and in view of the provisions of Sec. 6(2) of the POCSO Act, the accused was sentenced only to pay a fine of Rs.5,000.00 imposed for the offence under Sec. 6 of the POCSO Act and the same was directed to be paid to complainant/PW-1. 4. It is relevant to mention that the victim girl gave birth to male child on 26/8/2015, and after completion of D.N.A. test, the child died due to ill health on 29/2/2016. 5. 4. It is relevant to mention that the victim girl gave birth to male child on 26/8/2015, and after completion of D.N.A. test, the child died due to ill health on 29/2/2016. 5. It is the contention of the learned counsel for the appellant that the trial Court ought not to have accepted the version of the prosecution and ought to have seen that PW-1 was having illegal contact with the accused regularly but she has not given complaint to anyone nor informed to her mother/PW2 and that there was an abnormal delay in preferring the complaint/Ex.P1 before the Police. 6. It is further contended by the learned counsel for the appellant that the present complaint was given as the accused did not fulfill the promise of marrying the victim girl and Ex.P-7 bonafide certificate of PW-1 has been created by the prosecution to attract the said offence and prayed to set aside the conviction imposed by the trial Court. 7. On the other hand, the learned Assistant Public Prosecutor contended that the victim is a minor and aged 16 years as on the date of the incident and being the innocent girl, she has not even informed the facts to the mother and the fact has come into light when the girl became pregnant, which was being noticed by the de facto complainant and as the crime committed by the appellant is heinous one, therefore, prayed to confirm the judgment of the trial Court. 8. Perused the record. 9. Basing on the oral and documentary evidence on record, the trial Court has framed the following point for consideration:- "Whether the prosecution did prove the guilt of the accused, beyond all reasonable doubt, for the offence under Ss. 3 and 5 of the POCSO Act, punishable under Ss. 4 and 6 of the POCSO Act.?" 10. PW-2 is the de facto complainant who preferred report before the police. 3 and 5 of the POCSO Act, punishable under Ss. 4 and 6 of the POCSO Act.?" 10. PW-2 is the de facto complainant who preferred report before the police. PW-1 is the victim girl who stated in her evidence that when her mother went out for selling mirrors and combs, she was alone in the room at about 1:00 or 1:30 hours, the accused came to PW-1 room and stood at the entrance and accused asked her to come out of the room and when she refused to come out of the room, the accused took her to his house by force, bolted his house door from inside and removed her clothes and when PW-1 shouted, the accused threatened not to shout and not to reveal the same to her mother and committed rape upon her and promised to marry her. Likewise the accused took her to his house thrice and committed rape upon her and he did not marry her. On one day when the victim was taking bath, her mother noticed that the stomach is swollen and questioned her. On that, she informed her mother that accused raped four times and stated that he would marry her and on that the mother of the victim girl took her to the Doctor and Doctor informed that she was pregnant and on that PW-2 preferred a complaint against the accused. Her evidence further discloses that she was studying 4th class and aged 16 years at the time of incident. After giving complaint, she was taken for examination and she gave birth to a male child and the D.N.A. test reveals that the accused is the biological father of the child of the victim. Later the child died after 7 months due to illness. The victim was examined thrice and even she was referred to cross-examination of the accused but nothing could be hustle as to the non-commission of the offence or of her age. PW-2 is the mother of the victim girl; and her evidence is also in the same lines as that of PW-1 and PW-2 was cross-examined at length but nothing could be elicited in favour of the accused and Ex.P-1 is the report. PW-2 is the mother of the victim girl; and her evidence is also in the same lines as that of PW-1 and PW-2 was cross-examined at length but nothing could be elicited in favour of the accused and Ex.P-1 is the report. PW-3 is one of the panch witness to the scene of offence and his evidence discloses that the Police prepared the panchama for the offence of accused and Ex.P2 is the scene of offence panchanama. PW-4 is the panch witness to the contention of accused and his evidence disclose that one person who was in the Police custody was questioned by the Police and the said person revealed his name as Sri Mala Anjaiah and he also disclosed that accused enjoyed that victim girl in his room sexually and as a result she became pregnant. PW-5 is Woman Police Constable in Chevella Police Station and her evidence disclose that the victim informed to C.I. of Police that accused induced her and had sexual intercourse with her for three or four times by promising to marry her. Further her evidence disclose that on 6/4/2015, when PW-2 was giving bath to victim, PW-2 found stomach swelling and on confrontation she told the mother about the act committed by Sri Anjaiah on her and the statement was recorded and video graphed by a police constable. PW-6/Civil Assistant Surgeon, District Hospital, Tandur, examined the victim/PW-1 and found no external injuries. Hymen was ruptured and vagina admitted two fingers and found the victim girl to be pregnant of about 16 weeks. Ex.P3 is the said certificate issued by her. PW-7 is the Civil Assistant Surgeon, District Area Hospital, Chevella who examined the accused. On such examination, PW-7 concluded that there is nothing to suggest that the accused is incapable of performing the act of sexual intercourse. Ex.P4 is the potency certificate of the accused. PW-8 who is the Scientific Officer and Assistant Director, AP FSL, Hyderabad, deposed that on 17/10/2015 they received blood samples collected from three persons through escort PC 2789 (V.Laxman) of Chevella police station and the blood sample collected from Dasari Pochamma/PW-1 was marked as item No.1. Ex.P4 is the potency certificate of the accused. PW-8 who is the Scientific Officer and Assistant Director, AP FSL, Hyderabad, deposed that on 17/10/2015 they received blood samples collected from three persons through escort PC 2789 (V.Laxman) of Chevella police station and the blood sample collected from Dasari Pochamma/PW-1 was marked as item No.1. The blood sample collected from Male child of PW-1 was marked as item No.2 and the blood sample of the accused as item No.3 and DNA was extracted from all the three and the same was subjected to Autosomal STR analysis by using Promega power plex fusion primer kit. The DNA profile obtained from item No.2 was compared with the DNA profiles obtained from item Nos.1 and 3 and the same was matched with item Nos.1 and 3. Therefore, the accused is a biological father of the male child born to PW-1. Ex.P5 is the said DNA report. PW9 is the C.I. of Police, Chevella Police Station who registered a complaint based on the written complaint of PW-2 on 6/4/2015 at 04:00 PM, and registered a case in Crime No.75 of 2015 for the offence punishable under Sec. 376 of I.P.C. and Ss. 3 and 4 of the POCSO Act. Ex.P6 is the said FIR. PW-9's evidence further disclose that he recorded the statement of PWs 1 and 2 and referred PW-1 to Government Civil Hospital, Tandur for medical examination and PW-6 examined the victim/PW-1. Further he stated that he proceeded to the scene of offence and recorded the statement of the prosecution witness and also apprehended the accused and had interrogated him in the presence of PW4 and LW9 namely, Krishnaiah. The accused committed the offence as his evidence also disclose that he collected Bonafede certificate of victim/PW- 1 from the Mandal Parishad Primary School (Girls), Chevella and on conclusion of the entire investigation, laid charge sheet. Ex.P7 is the said document. 11. On perusal of the entire evidence of the prosecution witness, it can be construed that the mother and child DNA profile is being uploaded with that of the accused and the medical evidence clearly disclose that the accused is the biological father of the child born to the victim girl. Therefore, the prosecution was able to prove the offences in which the accused was charged by the Court. Therefore, the prosecution was able to prove the offences in which the accused was charged by the Court. Further more, the presumption can also be drawn in the case of rape under Sec. 114-A of the Indian Evidence Act, 1872. 12. Sec. 114-A of the Indian Evidence Act, 1872 reads as follows; "In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m), or clause (n) of sub-sec. (2) of Sec. 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 13. Admittedly, in the present case, the victim is aged 16 years as on the date of incident and assuming for a minute that the victim gave consent to the accused cannot be given any consideration. Moreover, it is specifically stated that the accused forcibly committed rape on her for three or four times. Therefore, the trial Court has properly appreciated the evidence on record and convicted the accused for the offences charged and the criminal appeal needs no interference. 14. In the result, the Criminal Appeal is dismissed confirming the trial Court judgment dtd. 10/11/2021 in S.C.No.124 of 2017 on the file of Fast Track Special Judge for Trial of Cases Under POCSO Act-cum-IX Additional District and Sessions Judge (F.T.C.), Ranga Reddy District, L.B.Nagar. Pending miscellaneous applications if any, shall stand closed.