PALLA VENKATESH, ADILABAD., v. THE STATE OF AP., REP PP.,

Court: High Court for State of Telangana

Bench: K.SURENDER,ANIL KUMAR JUKANTI

Judgment date: 2024-12-19

Case summary

High Court for State of Telangana judgment dated 2024-12-19. PALLA VENKATESH, ADILABAD., v. THE STATE OF AP., REP PP.,. Read the judgment and case details...

Judgment text

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSANDAND TWENry FOUR PRESENT THE HONOURABLE SRI JUSTICE K. SURENDER AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI CRIMINAL APPEAL NO: 561 OF 2017 Appeal under Section 374 (2) of Cr. P. C. against the Judgment dated 02-03- 2017 made in Spl. S. C. No. 1 I of 2014 on the file of the Court of the Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act-cum-l Additional Sessions Judge, Adilabad. Between: Pallavenkatesh, S/o. Bapu. Hindu, Aged about 40 years. O/c. Hamali, R/o Nennela Village and Mandal, Mancherial Zilla, Adilab;d ... Petltioner / Accused AND T. he State of A. P. , Represented by the Public Prosecutor, High Court, at Hyderabad ... Respondent / Complainant Counsel for the Appellant Sri Y. V. Chalapathi Rao Counsel for the Respondent Sri Arun Kumar Dodla Additional Public Proseci.

rtor The Court delivered the following Judgment: I THE HON'BLE SRI IUSTICE K. SURENDER AND THE HON'BLE SRI ANIL KUMAT{ JUSTICE JUKANTI CRIMINAL APPEAL No. 551 OF 20't7 (tr,,r IUDGME]\ T: Hon'btc Srilustict K. SURENDER) '[his criminal appeal IS preferred by the ap pellant-accuse,f qrrt:stioning the judgment datcd 02. 03 2017 passed by thc Specia. for ( hildrcn ]udge Trial of cases uncler Protcction of frorn Slcxtral Offences Act-curn-I Additional Sessions Judgc, Aclilabacl in Spl. S. C. No. 19 of 2014 2. IJc. arcl Sri Y. V. Chalapathy Rao, learned counscl for the appellant anc'l Sli Arun Kumar Dodla, learnr:ci Adrlitional Public Plo;e. cutor appearing {or Respondent Statr: 3. Ilrre;' facts of the prosccution case are th. rt, P\{ I is the defactc, conrplainant and mother of the victim girl who lgdged a complaint on 25. 08. 2013 at 19:30 hours. In the cornplaint PW1 stated that she; along with her husband, left frorn the house to attend cocli #ork Her minor daughter, who is a rr,.

entally unsound and partially durnb, remained rr the house ::a KS, J & ]AK,] CRLA. No. 561 of 2017 By the time she returned at 5:30 PM, the victim girl was crying and PW1 asked her as to what happened. PW2 is the uncle of the victim girl and an cycwitness. He stated that when he went t'o the house, hc noticcd that one Abbarla Chandu (A3) was guarding by standing in front of the house of the victim girl. A1 and A2 were insidc the house, and he heard the voice of the victim girl uttering words in pain. PW2 then went into the house asking who was there, and by that tirne, 41 and A2 opened the door, pushec'l him, and ran away along with A3. Immediately PW2 went into the house and found the victim girl crying, and as per the signs made by the victirn girl/PW3, he came to know that A1 and A2 committed sexual assault on the victim girl. Complaint was filed, narrating the incident On receipt of the said complaint, case in Crime No.

86 of 2013 was registered for the offences punishable under Sections 376 (2) (g) of IPC and 6 of the Protection of Children from Sexual Offences Act,201,2 4. The police sent the victim girl for rnedical examination PW8 examined the victim girl and observed that her hymen was not intact and there was redness and tenderness present, K. ;, J & JAK,J cRLA. No 5 i1 of 2017 and the a8e of the injury was one day. After rcccirring :he FSL rcpolt, PVt'li gave a final opinion stating that rccent sexual intercoulsr: ,:annot be ruled out 5. Since PWB was not competent to asse:is the mental conditiorr of the victim girl, she was examined Lry PW11, who is a psychialrst. Accorcling to PW11, the victinr girl \,,,as l10t totallv retarcled, ancl she can understancl to sorne e'xb. :nt and carl expless herself by way of signs. 6. . ,\ccordingly, a charge sheet was filed for the alorcsaid offences a{te,r completion of investigation. The evider-rc,: of the victim girl l'\{3 was recorded in the Court.

T}r,: Cour: found that th,: r,i:tirn girl was mentally unsound and partialll clurnb, and the a;sistance of the mother was taken r:; a tra nslator During thc' r:ourse of evidence in the Court, victinr criecl, stating that thc a1-. pellant had spoiled her. She con'rmunicatecl Ihrough sign langtrage and informed the Court that A-l toucl'Led her stomach an I other private parts of the body, ren-roving her skirt . ,.. ']il KS, J & JAK,J CRLA. No. 561 of 2017 7. On the basis of the evidence recorded by the learned Sessions fudge, the learned Judge convicted ,{1 for the offences punishable under Section 6 of thc POCSO Act and ,A2 and A3 for abetting the commission of the offence and convictcd them for the offence punishable under Section 17 of the POCSO Act 8. On account of the grant of remission ancl completion of imprisonment, lboth A2 and A3 were released frorn jail. Tlrey did not pursue their appeal on facts, and tl-reir appeals were closed on accorint of their release. 9.

Learned counsel for the appellant would submit that according to the age determination by PW13, the victim girl's age was 17 or 1,8 years when she was examined. Even considering the opinion of Doctor PW13, a margin of error of+ or - 2 years has to be considered in accordance with the judgment of the Hon'ble Supreme Court. Further, the learned counsel submits that even admitting that accused were Present at the scene, looking into the facts and circumstances of the case, the medical evidence, utmost the offence under Section lis,I & iAK,l :RLA. No. l;61 of 2017 376 r'ead rvith 511 of IPC is made out. There is no evir lence to attract the offcncc under Sections 5 and 6 of the POCSO Act 10. f-earred Public Prosccutor n'ould subrnit t['rat the appellant-A1 had pcrpetrated the act of raping a girl r'r,'ho is menta]11, re[arded.

Though duling the course,];: invcsligation, no senren or blood was found, however, in order to an Frove offcncr: under Section 6 of the POCSO Act, presence o: scmen and speln-iatozoa are not required 11. ,As lightly algued by the learned counsel for the aprpellant, i,r accorclance with PW13's evidencc, the m;rrgin of crror of + tr - 2 years should have been taken into accot urt after the vrctirn gill's age was determined as 17 or lE years l-asccl on the ag;r: dct,rrmination test. Furthermore, accorCing tr PW11, the victim girl u,as able to comprehend things, and ,,\ras not complc tc-h, rctarded 12 ,\s se,:n from the rnedical evidence, PW8, lhe victim girl, had redncss; and tenderness present on her private p. rrt The said irjury would indicate that the victim rvas l,exuallv assatrltcd, arnounting to rape KS, J & JAK,I CRLA. No. 551 of 2017 13. The argument of the learned counsel that admitting assault, it amounts to an attempt to rape, cannot be accepted.

The presence of sernen or spermatozoa is not essential to prove a case of rape. : 1. 4. Section 375 of the Indian Penal Code (IPC), 1860 reads as i l follows Rapei A mantis sttid to comntt "ropc" ( he l. pcnetrcttes hislenis, to anf e cnl, inlo the vdgind, mctuth, urcthnr ot onus rd a vonan or mbkes her lo do so ytith him or aqt other pcrson; or I 2. iu,crts, to anv? vcnt, nny ol,. jcct or a pnrt ofthe hodr, not hting tlrc ? cnis. itlto the ydgi d, lhe urelhro or dnus ofu woman or ntakc. g hcr to do . \o t1,ith him or onlt othbr person; or I J. ntnifulotts aiy port of thc hody of a woman so as lo c(utse penelmtion into the vagina, urdthra, truts or ony port olbctcly dsu<:h vrtmon or nak<t. s hr;r to tlo so t|ith him'or any other person; or i 4. applies his moLlh b the r'(Eino, ttnus, urethrct ofct wonttn or males hcr to tlo so t'ith him orlany olher person, under lhe circumslances follmg ntdcr anv of the [ollowing ]et'en de. tcriptions L: l. Against her wiU 2. lfirhout hcr cinsent.

3 ll:ith her cons) , when her consent has heefi ot tain(l hy plttting h(r'()r u y , pe$on in whotn r^he is tntere. tted, infear ofdeath or ofhurt. 4.. LVith her consent, \'llen the man knows tllot he is nol llcr lusbond and that her consent is gben because she believes that he is onother ntan to \thom she is or beheves herselfto be knfully married. 5 l[/ith her consintwhen, cn the time of git,ing sLtch consenl, by reoson of unsoundness of mind or intoxicotion or the atlministrotion by hin personally or through another ofany slupcfying or Lmv'ltolesome Subslance, she is uttoble to undirstand llte noture and conseqLtences of thot io wlu(:h :;h! gilcs consent. i 6. With or witho her conse t, when she is under eighteen l,cars qfoge- 7. llhcn sha is udablc to communicota d)nscnt. Dxplanations For the ptrrpotres of this section, "t'ogina". shttll nlso inclucle lttbkr nclorut a I1S, J & ]AK,J r:61 :RLA. No of 2017 2. Cttnsan!

t tLrtns n une qui'ocal yoluntur-v atgrcencnt then thr w)Dt(t h\ trortl;, . _! ttttrtes or ont fornt f'terbal ot- non-yerbql commun. ,catton, cotltlu,lit ate:i \rillingness to participdte in the speciJic Sexutti t ct, Ptot'irled tlin a \t:onlon vho does not physically resist to the d(:tof penetratt. n shall ot by the reason onlv ofthdt ftrct, be regarlcd aS u)n\cnLin! b lhe se\udl acti|il), Esceptious i l. . 7 ne,lica' lrocedure or i tenentioD sh1ll not constitute rope 2- Serual or sexu. tl acts b1,o mdn wilh his own wifc, te v,,ife no, 'ntera:furse hLrng unter. fifteen l,ears oJ age, is not rope_ 15. Secticn 3 of the Protection of Childrer fronr Sexual Ofiences 1'ct (POCSO), 2012 reads as follows PefielrulirL! ;crtal tssuufu. A parson is said to @mmit "? cnrtrati|e s,. \trul kt) Lc pe. ttrrotcs lis ! cn$, to dn). e,\te t, into thc vtgino, nrtIth, tr|cth,u or anu,; r'i t t hild or nlulics the (hild to (lo s() y,ith hin ot. onl t) t(t pct. \ol .

)t (b) l,e nsetts lo d y e\lent, on)) obie(:t or a p(fl of thc bcttlt,, 1ru1 6nr,r. , ,n" let1i. r, D to the \,ugi t! , the urathftt or ant6 of the child or ntl. c\ the child tt) o'tt '. tt ttirlt hinl or ont olhct person, or (c) he ntont,tttltlas dny Ftrt of tlrc hrxly of the chiltl so os to cttusc ? etlctr ttiol t agttttt. ,u'cthm, 4nu\ . )r . tnt, p4rt nl t,oJy of tlrc . -h il,l or n, tA, t the ch,td to oo 30 . tttlt ltim nr any,othct pervn; or (d) he upplies his nttu,lt . nt. \, o the L ja! l (! t ur, urathtu of tlrc cltiltl or molies the chiltl to tlo srt ,o such pt,r:ctn or 0nt otltar pe t. \(rl 1,6. Kecping in vier,v the assessment of age of vi<:tim by PW13 as 17. 18 years vidc Ex. P13 and applying thc rnargin of error of + or 2 years, the conviction under Section 6 of the POCSO A<'t is set aside. However, the appellant is convictecl undel Secti,rn 376 of lPC. He is sentenced. to u ndergo imprisorrrnc;rt of 10 years K5, J & JAK,. ] CRIA. No.

561 of 2017 77 Accordirigly, the appeal is partly allowed As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed. Sd/. K. SRINIVASA RAO JOINT REGISTRAR I //TRUE COPY// ECTION OFFICER To, 1 The soecial Judoe for Trial of cases under Protection of children from sexual ' (with records, if any) Offin-J". n. t-"ufr-t AaOitional Sessions Judge, Adilabad District 2. The Judicial Magistrate of First Class, Bellampally, Mancherial Legal Services Committee, High Court for 3- The Member Secretary, High Court the State of Telangana at Hyderabad [\4ancherial District 4. The Station House Officer, Bellampally PS, Reddy District 5. The Superintendent, Cherlpally Central Prison, Ranga 6. TwoCCstothePublicProsecutor,HighCourtfortheStateofTelangana, Hyderabad [OUT] 7. One CC to Sri Y. V. CHALAPATHI RAO, Advocate [OPUC] 8. Two CD CoPies VA/gh YY HIGH COURT DATED:1911212024 JUDGMENT 1 ttE S,14 7 ll ( CRLA. No. 56'f of 2017 ({' ( I .

a 24 fiti rus I l I PARTLY ALLOWING THE CRLA \\ 'f4 %*

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