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2025 DIGILAW 282 (TS)

G. Vijay Kumar , Vijay v. State Of Telangana

2025-04-09

E.V.VENUGOPAL

body2025
JUDGMENT : (E.V. VENUGOPAL, J.) 1 Challenge in this appeal is to the judgment dated 26.12.2017 passed in Sessions Case PCS No.18 of 2016 on the file of the Court of the I Additional Metropolitan Sessions Judge-cum-Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act, 2012, Hyderabad wherein and whereby the appellant herein was found guilty of the offences punishable under Sections 6 of the POCSO Act, 376 (2) (n), 363 and 365 of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.2,000/ - for the offence under Section 6 of the POCSO Act, rigorous imprisonment for ten years and to pay fine of Rs.2,000/ - for the offence under Section 376 (2) (n) of IPC, rigorous imprisonment for five years each and to pay fine of Rs.2,000/ - each for the offences punishable under Sections 363 and 365 of IPC. 2 The facts in brief that lead to the filing of the present criminal appeal are that on 26.12.2014 P.W.1 lodged a complaint stating that her grand daughter P.W.5 was found missing. Basing on the said complaint a case in Cr.No.518 of 2014 under Sections 363 and 365 of IPC was registered by P.W.10-ASI of Police and later on P.W.11 took up further investigation in this case. During the course of investigation on 07.01.2015 the missing girl 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 appellant herein) through Facebook and they both fell in love with each other. On 09.3.2012 at about 11.00 am they got married at Peddamma temple, Banjara Hills and they took photographs also. The appellant used to come and meet her at her college. On 26.12.2014 at about 7.00 am, the appellant took her to Secunderabad and from there to Vijayawada. They went to Durga temple, later had lunch and from there the appellant 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 also got recorded by the XI ACMM, Secunderabad. They went to Durga temple, later had lunch and from there the appellant 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 also got recorded by the XI ACMM, Secunderabad. Basing on the statement of P.W.5, P.W.14-Inspector of Police added the Section 376 IPC and Sections 3 and 4 of POCSO Act, 2012 and took further investigation during which the victim was sent to Gandhi Hospital for medical examination where P.W.8 examined the victim and preserved the virginal smears. According to the school 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 IPC and under Section 6 of the POCSO Act, 2012. Charges under Sections 6 of the POCSO Act, 2012 and Sections 363, 365 and 376 of IPC were framed, read over and explained to him in Telugu, to which the appellant pleaded not guilty and claimed to be tried. During the course of trial, the prosecution examined P.Ws.1 to 14 and got marked EXs.P.1 to P.11. The appellant was examined under Section 313 Cr.P.C. for the incriminating evidence available against him in the testimony of the prosecution witnesses which he denied. 4 The learned Additional Metropolitan Sessions Judge, on appreciation of the oral and documentary evidence available on record and on hearing the learned Public Prosecutor and the learned counsel for the appellant found the appellant guilty of the offences punishable under Sections 6 of the POCSO Act, 376 (2) (n), 363 and 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 behalf of Sri M.Srinivsa Rao, learned counsel for the appellant and Sri E.Ganesh, learned Assistant Public Prosecutor appearing for the respondent – State and perused the record. 6 Now the point that arises for consideration in this appeal is whether the prosecution proved the guilt of the accused for the charged offences beyond reasonable doubt or not? And whether the conviction and sentences recorded by the learned trial Court withstand the scrutiny of law? 6 Now the point that arises for consideration in this appeal is whether the prosecution proved the guilt of the accused for the charged offences beyond reasonable doubt or not? And whether the conviction and sentences recorded by the learned trial Court withstand the scrutiny of law? 7 The learned counsel for the appellant contended that the trial Court erred in convicting the appellant under Section 6 of the POCSO Act and under Section 376 (2) (n) and 363 and 365 of IPC even though there is no sufficient material available on record. He further submitted that the learned trial Court recorded the conviction solely on the basis of the interested witnesses. He further submitted that the prosecution failed to prove that the victim is a minor and thereby the offence under the POCSO Act would apply. The learned counsel for the appellant further relied on the decision of the Hon’ble Supreme Court in P.Yuvaprakash vs. State rep. by Inspector of Police , [2023 SCC OnLine SC 846] wherein also the apex Court held that school transfer certificate is not acceptable for the determination of victim. 8 On the other hand the learned Assistant Public Prosecutor submitted that the learned trial Court had given a categorical finding that the appellant is guilty of the offences with which he was charged by appreciating the evidence available on record both oral and documentary and hence the well reasoned judgment rendered by the trial Court does not warrant interference. 9 The entire case of the prosecution revolves around the evidence of P.W.5, the prosecutrix. According to her, her date of birth is 14.8.1997. When she was studying Intermediate I year, she got acquaintance with the appellant through Facebook in the year 2012. She was chatting with the appellant under the impression that the appellant was a female. But after one month she came to know that the appellant was male person. In the month of January, 2013 the appellant came to her college and proposed that he is in love with her and could not survive without her to which P.W.5 stated that her parents will not agree for the marriage and convinced him. Again in the month of March, 2013, the appellant brought his parents and took her from her college to Peddamma temple and married her and also took photographs of their marriage at Peddamma temple. Again in the month of March, 2013, the appellant brought his parents and took her from her college to Peddamma temple and married her and also took photographs of their marriage at Peddamma temple. Since then the appellant started blackmailing her and threatened her saying that he will post the photographs in Whatsapp if she does not come to Visakhapatnam to his house. On 22.12.2014 when P.W.5 went to the house of P.W.1 (her grandmother) the appellant came there on 26.12.2014 when she was alone in the house and took her to Secunderabad and by train they went to Vijayawada. From there the appellant took her to Visakhapatnam by train and kept her in the house of one Revathi for about one week. There the appellant committed rape against P.W.5 for a period of one week. Therefore, P.W.5 consumed nail polish and asked the appellant to send her to her house, but the appellant did not send her. The mother of the appellant handed over P.W.5 to P.W.2 (mother of P.W.5) and her maternal uncle (P.W.3) when they came along 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 police station. Later she was sent to Gandhi Hospital for treatment and medical examination and her statement under Section 164 Cr.P.C. was got recorded by the Magistrate. 10 Section 2(d) of the POCSO Act, 2012 defines the word ‘child’. The evidence of P.W.2 as well as the victim also goes to show that the date of birth of the victim as 14.8.1997. In order to prove the same, the prosecution filed Ex.P.2 Transfer Certificate to show the date of birth of P.W.5, the victim, as 14.8.1997. But P.W.14, the investigating officer, deposed that he did not collect the SSC certificate and date of birth certificate of the victim to ascertain the age of the victim. But he further deposed that he collected the Xerox copy of the Transfer Certificate and original bona fide and that he also did not got conduct the age determination test of the victim girl. It is matter of record that none of the school officials are examined and the prosecution has relied only upon the Photostat copy of the transfer certificate issued by the school authorities. It is matter of record that none of the school officials are examined and the prosecution has relied only upon the Photostat 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 In the instant case the appellant disputes the age of the victim. According to him the victim is major by the date of offence. In order to put a quietus to the issue, this court relies on the observations made by the Hon’ble Supreme Court in P.Yuvaprakash case (1 supra) wherein the Hon’ble Supreme Court held as follows: 13. It 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 the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 12 At the cost of repetition, it is the evidence of P.W.14, the investigating officer who deposed that he did not collect the SSC certificate and date of birth certificate of the victim to ascertain the age of the victim. But he further deposed that he collected the Xerox copy of the Transfer Certificate and original bona fide and that he also did not got conduct the age determination test of the victim girl. In order to establish the genuineness or otherwise of the bona fide certificate, none was examined before the Court. But he further deposed that he collected the Xerox copy of the Transfer Certificate and original bona fide and that he also did not got conduct the age determination test of the victim girl. In order to establish the genuineness or otherwise of the bona fide certificate, none was examined before the Court. Moreover, the victim was also not subjected to ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. In the very same judgment the Hon’ble Supreme Court held that school transfer certificate is not acceptable for age determination of a victim. In those circumstances 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. Therefore, I am of the considered view that the prosecution failed to bring home the guilt of the appellant for the offence under Section 6 of the POCSO Act beyond all reasonable doubt by adducing cogent and convincing evidence. 13 Coming to the other offences, under which the appellant 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 sexual intercourse cannot be ruled out. However, as seen from the record, the victim was traced out at Visakhapatnam and was brought to Hyderabad in the month of January, 2015, whereas the victim was subjected to medical test in July, 2015. 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 emphatically state that the victim P.W.5 was subjected to intercourse by the appellant only and that the appellant alone was responsible for such an act. Moreover, in the instant case the age of the victim is not clear to treat her as minor. When there is suspicion with regard to her age, she cannot be termed or treated as minor. In the preceding paragraph this court has already held that the prosecution failed to prove the guilt of the appellant for the offence under the POCSO Act. Hence she has to be treated as major. When there is suspicion with regard to her age, she cannot be termed or treated as minor. In the preceding paragraph this court has already held that the prosecution failed to prove the guilt of the appellant for the offence under the POCSO Act. Hence she has to be treated as major. In such circumstances taking into consideration the aspect of consent does not arise at all. In the light of the foregoing discussion, I am of the opinion that there is a cloud spreading over the case of the prosecution with regard to the offence under Section 376 IPC also. Hence the appellant is entitled to benefit of doubt for the said offence also. 14 Coming to the offence under Section 363 IPC, since P.W.5 was not proved to be a minor, this Section does not attract and consequently Section 365 IPC also in the light of the evidence of the interested witnesses only. There is no corroboration from any independent witnesses. 15 For the overall discussion made above, this court is of the opinion that the prosecution failed to prove the guilt of the appellant for the offences for which he was found guilty of the offences beyond reasonable doubt and the appellant is entitled to benefit of doubt. 16 In the result, the appeal is allowed, setting aside the judgment dated 26.12.2017 passed in Sessions Case PCS No.18 of 2016 on the file of the Court of the I Additional Metropolitan Sessions Judge-cum- Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act, 2012. The appellant is acquitted of the said offences. Bail bonds of the appellant shall stand cancelled. Miscellaneous petitions if any pending in this appeal shall stand closed.