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TELANGANA HIGH COURT
G. Sri Devi, J.
Penukula Sadaiah Sadi – Petitioner
Versus
State of Telangana – Respondent
Criminal Appeal No.2965 of 2018
Decided on 30.4.2021
(A) Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Section 376 (2) (I) – Criminal Procedure Code, 1973 – Section 374(2) – Sexual assault on girl child – Conviction and sentence – Trial Court has in a perfunctory manner referred to evidence of prosecution witnesses without giving any cogent and legally sustainable reasons in arriving at conclusions, holding accused guilty of charged offences – Trial Court did not discuss issue of non-examination of father of victim girl to whom victim has disclosed about commission of crime by accused at first instance; non-examination of constable who recorded confessional statement of accused and non-identification of material objects – Trial Judge has erroneously came to conclusion that prosecution has established its case beyond all reasonable doubt – Except giving bald explanation that due to darkness on previous night, complaint was lodged on next day, there is nothing on record, as to why father of victim has not lodged complaint on same day – Genesis of so-called complaint lodged by victim itself is suspicious and doubtful – Investigating Officer has completed formalities of recording confessional statement, recovery of articles and arrest of accused etc., by sitting in police station and not at house of accused as alleged by prosecution – On account of fact that recovery and confessional statement made by accused, which is main linking factor in circumstantial evidence of prosecution version, being inadmissible as same cannot be proved against accused, prosecution’s case stands fully demolished – Victim is minor under age of 18 years and she is deaf and dumb and is also mentally retorted with 90% disability – Appellant-accused is entitled for acquittal of charges levelled against him – Conviction and sentence set aside and appellant acquitted. (Paras 17, 22, 31, 38, 40, 44, 48 and 49)
(B) Criminal Law – Circumstantial evidence – In criminal cases, burden of proof on prosecution is one of proof beyond reasonable doubt as opposed to principle of preponderance of probabilities – It is also a matter of accepted position that while appreciating circumstantial evidence, Court must adopt a very cautious approach to evaluate circumstantial evidence – Contents of First Information Report constitute factual depiction of an occurrence – This piece of evidence is of utmost importance – Evidence produced by prosecution during course of trial, will accordingly have to be evaluated to substantiate credibility of charges levelled against accused. (Paras 24 and 30)
Result: Criminal Appeal allowed.
JUDGMENT
G. Sri Devi, J.—This appeal is filed under Section 374 (2) of Cr.P.C. against the conviction and sentence imposed against the appellant/accused in S.C.No.27 of 2016 on the file of the I-Additional Sessions Judge, Karimnagar. The appellant/accused was tried for the offences punishable under Section 376 (2) (I) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act. The trial Court found the accused guilty of the said offences and since the punishment envisaged in both the offences is one and the same, the trial Court sentenced the appellant/accused to suffer rigorous imprisonment for a period of Ten years and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months.
2. In brief, the case of the prosecution is that on 04.08.2015 at about 10.00 A.M., P.W.1 lodged a complaint stating that on 03.08.2015 she went to coolie work by keeping her husband in their house to take care of their younger daughter, Bukkala Komalatha, (hereinafter referred to as “the victim”), who is deaf and dumb and also mentally challenged, and when she returned home at 6.30 P.M., she found the victim was sitting in front of the house of one Buchi Mallamma, who is her neighbour. P.W.1 went inside their house, attended routine works and went outside the house at about 7.00 P.M., and when she tried to see her daughter, she did not find in front of the house of the said Buchi Mallamma and she found the victim was coming out from the house of the accused without blouse and also noticed the injuries on the chest and backside of her body and also hayrick pieces on her tuft. P.W.1 came to know through signs that taking advantage of mental and physical disability of the victim, the accused had committed sexual assault on the victim in the hayrick yard. Basing on the said complaint (Ex.P1), P.W.13-S.I. of Police, registered a case in Crime No.85 of 2015 for the offences punishable under Section 376 (2) (L) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act and issued Ex.P10-First Information Report. On receipt of the F.I.R., P.W.14-C.I. of Police, visited the scene of offence, examined and recorded the statement of P.W.1. Thereafter, he observed the scene of offence in the presence of P.W.5 and one P.Rajesham, prepared Ex.P2-Crime Details Form and also drawn the rough sketch. Thereafter, he referred the victim to Government Hospital, Karimnagar, for medical examination. P.W.14 also gave a requisition to the Principal, Deaf and Dumb School, Karimnagar, to depute one female Teacher to assist the Investigating Officer in recording the statement of the victim and thereafter P.W.14 examined the victim girl with the help of P.W.2 and P.W.8, but he could not record the statement as the victim was not in a position to understand the signs given by P.W.2. P.W.14 also obtained date of birth certificate and Ex.P13- bonafide certificate of the victim from the concerned Schools. Later, he addressed a letter to the Superintendent, Government Head Quarters Hospital, Karimnagar, to examine the victim with a Psychiatrist doctor and thereafter P.W.12 examined the victim and found that she is suffering from severe mental retardation and that the disability is 90%. On 10.08.2015, P.W.14 apprehended the accused at his house and recorded the confessional statement of the accused in the presence of P.Ws.6 and 7. Ex.P3 is the confession-cum-recovery panchanama. Subsequently, P.W.11 examined the accused and issued Ex.P8 Potency Test Certificate. He got recorded the 164 Cr.P.C. statement of P.W.1. After obtaining all the material papers and after completion of investigation, he filed charge sheet before the Court of Judicial Magistrate of First Class, Sulthanabad, who in turn committed the case to the Court of Sessions Division. On committal, the same came to be numbered as S.C.No.27 of 2016.
3. On appearance of the accused, charges under Sections 376 (2) (I) of I.P.C. and Section 6 of the Protection
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