Point of law: Fact that the recovery and confessional statement made by the accused, which is the main linking factor in the circumstantial evidence of the prosecution version, being inadmissible as the same cannot be proved against the accused

JUDGMENT :

G. Sri Devi, J.

1. 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. an