THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.430 of 2019

JUDGMENT:

(Per Hon’ble Sri Justice K.Surender)

This Criminal Appeal is filed by the appellant/accused aggrieved by the judgment and sentence dated 07.06.2019 in S.C. PCS No.05 of 2017, on the file of the I Additional Metropolitan Sessions Judge-cum-Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act, 2012, Hyderabad, for the offences under Section 5 (k), (l) of the Protection of Children from Sexual Offences Act (POCSO Act), punishable under Section 6 of the POCSO Act, and Sections 376(2)(i),(l),(n) of IPC.

2. Heard learned counsel for the appellant and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for respondent – State. Perused the record.

3. PW.5 is the victim girl and her hearing and speaking capabilities were impaired. PW.4 is the mother of the victim girl. PW.4 narrated that she was working as a maid in the house of one P.V.V. Satyanarayana Murthy, who is examined as PW.6. On 11.08.2015, she went to the house of PW.6 along with PW.5. PW.4 was sick and left PW.5 in the house of PW.6 and then went to the hospital. She came back to the house and asked about the whereabouts of PW.5. PW.5 was not found. At about 05.30 P.M., PW.6 brought PW.5 to the house and stated that she was found at the Police gate. PW.5 was weeping at that time. On the next day, PW.4 went to the house of PW.6 and there she found the appellant was coming. PW.4 went out and she saw PW.5 weeping. On enquiry made by PW.4, PW.5 informed her mother in sign language that a person came and knocked on the door and opened it, and took her to Krishnakanth Park. Further, PW.5 was taken to Krishnakanth Park, where the security guard informed that one person brought PW.5 to the park and stayed there till 05.30 P.M. in the evening. PW.4 went to the house of PW.6 along with PW.5. PW.5 pointed at the appellant and informed in sign language that the appellant was the person who took her to the park on 11.08.2015. They immediately went to the Police Station and lodged a complaint. Based on the narration given by PW.4, a Telugu written complaint was lodged. Then, PW.5 was sent to a Doctor for examination.

4. PW.10 is the Doctor who examined PW.5. According to PW.10, he did not find any external injuries on her genital. However, the hymen of PW.5 was not intact. Swabs and smears were collected from her private part and sent for FSL examination. After receiving the FSL report, PW.10 opined that there was evidence of penetration of the vagina and possibly an attempt to rape, as the undergarments tested positive for semen and spermatozoa.

5. After the complaint was filed, the appellant was arrested on 18.08.2015. Then, the test identification parade was also conducted and the appellant was identified by PW.5 as the person who took her to Krishnakanth Park on

11.08.2015 at 05.30 P.M.

6. On the basis of the evidence collected during the course of the investigation, the Investigating Officer/PW.13 filed the charge-sheet for the offences punishable under Sections 376(2), 366, 342, and 506 of IPC, and Section 5 read with Section 6 of the POCSO Act.

7. The learned Sessions Judge, placing reliance on the evidence of PWs.4, 5, 6, 8, and also the corroborating testimony of the Doctor, convicted the appellant accordingly. 8. The learned counsel appearing for the appellant would submit that:

1) The prosecution has failed to prove that the age of PW.5 was less than 18 years;

2) Since the hearing and speaking capabilities of PW.5 were impaired, her evidence cannot be relied upon, as the identification of the appellant is doubtful;

3) The appellant, during the test identification parade, informed that he had taken PW.5 to her house, however, the mother/PW.4 falsely implicated him in a case.

4) During the test identification parade, the appellant stated that his semen was taken and put on the garments of PW.5, for which reason, the FSL repor