G. Vijay Kumar , Vijay vs State Of Telangana on 9 April, 2025

Telangana High Court

G. Vijay Kumar , Vijay vs State Of Telangana on 9 April, 2025

            THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

                CRIMINAL APPEAL No.353 OF 2018

JUDGMENT:

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
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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. 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
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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
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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?

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
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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 1 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

1
2023 SCC OnLine SC 846
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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. 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
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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
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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”.

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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. 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
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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
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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
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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.

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E.V.VENUGOPAL, J.

Date: 09.04.2025
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