CRLA/853/2017 of BODDULA SHEKAR., Vs THE STATE OF TELANGANA, REP PP., on 3 February 2026

1. e.. Mandal

ii) The victirn girl is of tender age and mentalll' mmature. She was studying I't class and used to visit the house ol he accused for various reasor-rs along with some otlter children.

iii) lhc accused had an evil eye over the ' ictirn girl and waiting for an opportunity to fulfill his lust with her. r ccordingly, on 03.12.2012, the accused took the victim girl into his house b1' inducing hel lr"ith an offer of chocolate, removed her : othes and slept upon hcr and committed rape

iv) I']W-3 saw the accused taking the victim grr into his house and infonned thc sarrs to the parents of victim girl. fh :y enquired the victim girl and car.ne to know the act of the accused. ' Le said incident had brought to the notice of their caste elder (LW.5). fhel' also u'ent

Crl A No 851 ol20l7 to the house of the accused to enquire, but on seeing thcm, the accused flcd arvay.

v) Therefore, PW.1 gave report with PW.9, thc Head Constable ol Gudur Police Station, who in turn registered a case in Crime No.209 of 2013 and issued express FIR. He also referred the victim girl to the Govemment Hospital for examination. 'l hereafter. pW. l0 took up investigation. During the course of investigation, she visited thc scene ol offence, examined the rclevant witnesses and recorded thcir statemcnts. On receipt of medical examination rcport and FSI_ rcport, she filed charge sheet against the accused fbr the afbresaid off-enccs.

5. Since the offences are triable by the Court ol Scssions. leame<J Magistrate committed the same to the lcamed trial Courl which in turn had taken on file as S.S.C. No.4l of 2014 and procceded with trial.

6. The trial Court framed charges lor the ol-fences undcr Sectiorr - 376 (2) (f) of IPC and Sections - 3 (l) (xii) and 3 (2) (v) of the Act, 1989 against the accused.

) KL,.J & \RXR.J Crl A No.8il ol 20l7

7. During trial. PWs.1 to l0 were examined an I llxs.Pl to I'13 u,ere nrarked. No evidence, both oral and documentr y, uas let in by the accused

8. Alicr completion ol evidence on behall'o - he prosecutiort, the accused q,as exanrincd under Section - 313 of ('r. '.C. Thercafter, upon hearing both sides, leamed trial Court rcc: cled conviction against the appcllant hcrcin tbr the aforesaid charge; in the manncr stated ahoYc

9. Challcnging thc said conviction arr( sontence of imprisonment. the appellant herein prelerred the prcse rt appcal

10. l-eamcd counsel lor the appellant - accrs:d contended as follows i. '['[rere are uratcrial contradictions in the cr i lence of PW. l. PW3 and PW.4 and also I]x.Pl - report girer by PW. I r.vith police tt fhere rvas de laf in lodging Ex.P I rcport rvith I rlice The victinr girl is rnentalll" retarded ltt

iv. The medical evidence proves that there .,as no oflence comrnitted by thc accused. rnore parlicularly r,r e

KLJ & \TRKR,J crl.A No.85l of 2017 The Investigating Officer did not follow the procedure laid down under taw while conducting investigation in rape cases. Without considering alt the said aspects, the leamed trial Court erred in convicting the accused. Learned trial Court erred in convicting the accused for the charge uncler Section - 376 (2) (D read with 511 of IPC, while acquitting lor the off'ence under Seclion -376 (2) (f) of IPC' Evcn imposition of tile imprisonment for the offence under Scction - 3 (2) (v) of the Act, 1989 is against the Sentencing Policy. vt vll. vll t. With the aloresaid submissions, leamed counsel sought to set aside the conviction and sentence imposed on the appellant 1 I . on the other hand, leamed Additional Public Prosecutor would subnit as under:

i) I'here is tlirect evidence through PW.3 to prove the guilt of the accused.

ii) The delay in giving report to the police does not tilt the case of prosecution.

iii) There is ample evidence to prove the offences against the ,.- accused.

\,) KL,J & VRKRJ Crl A. No Ei3 ol20l7

iv) The contradictions/omissions, if any, ln th,r depositions of prosccution witnesses are minor in nature and u ould not tilt the case ol prosecution. Having considered all the afbresaid aspects the trial Courl convicted the appetlant and, therefore, there is I r enor in it. With ttre alorcsaid submissions, leamed Additional l'] Lblic Prosccutor sought to dismiss the appeal

12. In the view of above rival submissions, t1r point that falls for considcration by this Courl is Whether thc conviction and sentence of irl rrisonment recorded by the trial Court fbr the charges unc t - Section - 376 (2) (f) read with 511 of IPC and Sections 3 (1) (xii) and 3 (2) (r,) of the Act, 1989 against the appcll nt herein - accused are sustainable, both on facts and in lau I t3. Perusal of record rvottld reveal that P$r l, father of the victim girl, lodged Ex,Pl - report with police on 05 12.2012 stating that hc belongs to Koya (ST) Community. His daug:r er u'as l0 years old and is mentally retarded. The accused belongs t his villagc. A week ago. the accused committed rape upon his J rughtcr for one r.veek. He came to know about the same on 03.12.2{) 2 moming. On

KLJ & VRKR,J Crl A No 851of20l7 04.12.2012, he went to the house of the accused to enquire him, but the accused fled away. Therefore, he requested the police to take action against the accused.

14. In his deposition, PW.1 stated that the offence taken place about four (04) years ago. His neighbor - Ramamma informed him that the accused committed rape upon his daughter repeatedly for three (03) clays). They enquired with the victim girl as to what happened and she revealed that the accused took her to his house on the pretext of giving flowers and biscuits and committed rape upon her. When he was about to question the accused, he fled away from the village. They went to thc police and lodged a complaint (Ex.Pl) with the potice. On rcading the contents of Ex.Pl - report only, he has signed.

i) It is relevant to note that the accused is represented by a legal aid counsel, but unlortunately he did not cross-examine PW.1. There was no representation on 11.01.2016, the date on which PW I examination-in-chief was recorded.

15. PW.2 is the victim girl. She was 12 years as on the date of recording her deposition in Court i.e., 20.03.2017. She informed the triat Court that her rnother brought her for the putl evidence and also to speak the fact. She has deposed PW.3 and hc is her neighbor. She also knows LW 5 the accused. She belongs to Koya Comn'runity an belongs to Padmashali Communiry. 'fhe off-ence to' three (03) years ago. The accused by ollering chocola his house, removed her ctoths, slept upon her and < thrice in thrce days. Shc informed the samc to her prtt the case against the accused. She was refcrred to t examination. 'fhc police cxamined her.

i) Horvever, during cross-exanlination, she ha bcfore she was takeu to the house of accusod, she rv children near his house. She did not remember tlt children with u'hom she was ptaying on that day l I her to lay and oflered to give chocolate. She did not s the accused cornmitted rape. She used to attend her and informed the incident to her mother alter four (04 further admitted that the accused abused her father in t but she did not see the accused quarreling with her latl KL,] & VRKR,J Crl A No 851 of20l7 ose of giving lat she knows lammaiah and I the accused k place about es, took hcr to rmmilted rape :nts, rvho filed c Hospital for ; admitted that Ls playing with names of the r accused made rffet pain u'hen persoual works r days. She has reir caste name, er.

l0

Crl A No 851 of2OI7

ii) It is apt to note that the trial Court observed the demeanor of the witness and recorded as follor.vs: "Witness is not that much of worldlpvise. The witness some times smiles even when serious questions are posed by public prosecutor and defence counsel.

16. pW.3, neighbor of I,Ws. I and 2, deposed that the offence took place on 02.12.2012. At about I 1.00 A.M., while he was procceding to his house after attending agricultural works at his lands, the accused was taking pW.2 _ victim girt into his house. He peeped into his house and saw rhe accused committing rape upon pW.2 by removing her clothes. C)n seeing him, the accuscd fled away. Then, he covered pW.2 (wrongly typed as pW.1) with her clothes and took hcr to her house. pW.2 inFormed him that the accused was committing the offcnce of rape upon her since three (03) days. .l.he parents of PW.2 were not available at their house as they attended coolie works. Then, he left pW.2 at her house and he came back and went to his in_ laws house. He retumecl to his village on the following day at g.00 or 9.00 A.M. and then informed the incident to pW.l and LW.2, mother of the vicrim girl. When LW.5 (his father) tried to call the accused, he absconded. Then, pW.1 and LW.2 gave report with the police.

ll KI,,J & VRKR,J crl A No 8i3 l)1201 7

i) However, during cross-examination, he has : .lmitted that he, the accused and PW.l belonged to the same villagc. t here are houses in between ttre house of PW.l and the accused hous,: 'fhcrc mav bc possibility to see I'W.2 by the idrabitants of the local t , rvhile she was going to the house of the accused. He saw the accus )d taking PW.2 lnto his house on the day when he took her and drop I rl at hcr house He did not state before the police that when he tc r k PW.2 to her house, her parents were not in the housc as thcy rv,: r atrending the coolic works. After the accused took PW.2 into his I .ruse. the doors r'vere kept ajar. He did not try to catch the accusr:r whilc hc,uvas runnllts awav.

17. PW.4 is the panch r.vitness forsceneof of-t tce. Hou ever, during cross-examination, he has adr-nitted that he did ot inquire with the neighbors to the scene of oi'fence as to what happcr :d

18. PW.5 is thc Tahsildar, who issued Ex.P3 - ( astc Ccrtificate of PW.l, PW.2 and the accused.

19. PW.6 is the doctor, who treated PW.2 - r ictim girl. He deposed tlrat on 06.12.2012, he received requisiti: r frorn Gudur Police Station, to examine thc victim girl. Accordinl,l .. he examined t2 Kt-,J & \T.KR,J Crl A No 851ol20l7 her after taking due consent from the mother of victim girl and in the presence of Duty Staff Nurse. The victim was brought by the police constable and accompanied by her mother. 'Ihe victim had not attained puberty. She was not under the influence of drug or alcohol. Breast not developed. Pubic hair was absent. Hymen admits only tip of probe suggesting hymen is intact. There is small congestion (redness) at the introitus. I'Ie has collected swabs and slides with cotton probe, sent for analysis to Forensic Scicnce Laboratory (FSL), Hyderabad. By reserving final opinion, he has issued Ex.P5 - Medical Examination Certilicatc on 06.12.2012 ol PW.2. IIe received FSL report, and as per Ex.P6 report dated 25.04.2013, semen and spermatozoa were not lound on items sent. On the basis of Ex.P6 - FSL report, he issued Ex.P7 - final opinion, opining that there is no medical evidence of presence ol semcn i.e., recent sexual intercourse except for congestion at introitus. I.Ie further deposed that there may be possibility of causing redness/congestion due to pressure given by penis.

i) However, during cross-examination, he has admilted that as per his examination, there is no penetration into vagina. No other extekral injuries were foLrnd on PW.2. The congestion may be I

tl KI-.J & VRKR.J crt A No 8il oi20l7 possible due to other reasons, like bad hygicnc. i lection. scratch, insect bite etc

20. PW.7 is the doctor. '"vho conducted [)ote lcy tcst oYer thc accused

21. PW.8 is the doctor. who issued Ex.P9 - r :.c dotcnnitiation certificate. determining the age of PW.2 - r'ictirrr .:.irl about l2-13 ycars

22. l'W.9 is the IIcad Constable at Kazipct l' Iicc Statiorr. l{c dcposed thnt he received report datcd 05.12.2012 r t about 9.00 P.M fiour PW. I and registered Ex.Pl0 - IrlR. FIe rcli'rr d I)W.2 - r'ictinr eirl to the Govemrnent CKM Matcmity llospit r . \\'arangrl. lirr examination and sent an escort along with her moth: . lle has harrded or er C.D. flle to the SDPO, Narsanrpet

i) During cross-exam ination, he has adrrritt,:, that he ltas not recorded the statement of PW.2 and he has not asc( l aincd ttrc lcasou ibr delay

23. PW. l0 is the lnvestigating Olficcr In hcr chicf'- e.ramination, she has deposed that she is r.r r I p111g as SI)I'O, Narsampet fiom 21.1l.20l2 to 30. I1.2013. On o: 22012, slic has l4

Crl.A No.85l of20l7 taken up the CD file from PW.9 and shc verified the same On 06.12.2012, she has received Ex.Pl l - orders for conducting investigation from the Superintendent of police, Warangal and she took up investigation. She immediatety visited the scene of offence i.e., the house of the accused at Ayodhyapuram Village, Gudur Mandal. She examined PW.l, PW.2, PW'3, LW'3 and LW'5 and recorded their statements under Section - 161 olCr'P C l-ater, in the presence of PW.4, PW.7 and LW.6, she has prepared the rough sketch ofscene ofoffence and recorded the crime details lorm as in Ex'P2'

i) PW.l0 further deposed that she searched for the accused and lound that he was absconding. She instructed the Circle Inspector' Gudur Potice Station to apprehend the accused and produce before her and accordingly the accused was arrested on 15J22012 at about 11.00 hours. She has also obtained Ex'P8 - potency certificate and she received medical report from PW 6 on 26'12'2012 and sent letter ofadvicetotheDirector,FsLforanalysis'Ex'Pl3istherequisition' On 13.08.2013, she received copy ofFSL report' On ll 09'2013' she sent PW.2 for examination and PW'S examined PW'2 Thus' according to her, on completion of investigation, she has laid charge sheet against the accused on i1.10.2013 for the offences under t5

Crl A No 851 ot20l7 Sections - 376 (2) (f) and Sections - 3 (l ) (xii) and . (v) of the Act, 1989.

ii) I)uring cross-examination, she has admitte,l tJrat the specific descliptivc parliculars of the house where thc off'enc: ttlok placc u,erc not gii,en. Shc has not examined the other girls in the company of the victirrr girl. The report was given on the next dl y of the date of offence. No reasons were ascribed for the said t.e [ay. After due veriflcation of all the documents, she filed charge slrr et and on being satisfled rl,ith the medical reports. She has not scizel the garments of the victinr

24. On consideration of the said evidencc. r,ldru impugned judgurent, the trial Court having acquitted the accusc I lor thc charge under Section - 376 (2) (f) of IPC, convicted lrirn br tlre ollences under Section - 376 (2) (t) read with 511 of IPC an,l Sections - 3 (1)

(xii) and 3 (2) (v) of the Act, 1989 and imposed Le r (10) years. lif'e impn sonment and five (05) years, respectively

25. As discussed above, in Ex.Pl - rcport, ( i tcd 05.12.2012, PW. I specilically stated that PW.2 - victim girl was vears old. She was nrentallv retarded. On 03.12.2012 morning he cr ne k.r know that t6 KLJ & \RKR.J CrlA No 851oa20l7 the accused committed rape upon his daughter since last one week' In chief-examination he has stated that his neighbor - Ramamma informed him that the accused committed rape upon PW.2 repeatedly tbr three (03) days). Even then, the prosecution did not examine the said Ramamma. Thus, there is serious contradiction in the version of PW.1.

26. It is also apt to note that in Ex.Pl - report, PW.l has stated that the accused committed rape upon PW.2 for one week, whereas in his chief-examination, he has deposed that the accused committed rape upon PW.2 repeatedly for three (03) days and that he came to know about the same through his neighbour - Ramamma. Even PW.2 deposecl that the accused committed rape thrice in thrce days and the same was informed to her parents, whereas PW.3 deposed that rvhile he saw the accused committing rape upon PW.2 by removing her clothes. On seeing him, the accused fled away. Then he covered PW.2 with her clothes and took her to her house. PW.2 informed him that the accused was committing the offence of rape upon her since three days. On close perusal of evidence of PW.2 and PW'3, PW.3 deposed that PW.2 informed her about the accused committing rape up6i frEr, whereas PW.2 did not depose about informing the accused t7 KI-,I & VRKR,J Crl A No.85l ol20l7 committing rape upon her to PW.3 and on the other l:i nd she dcposed that s[re inlormed the same to her parents. On the saic aspcct, there is scrious contradiction in the depositior-rs of PW.2 and I' V.3

27. It is also apt to note that on coming to knr v about the said alleged rape upon his daughter on 03.12.2012 in thc r orning, instead of lodging rcport rvith thc police, PW.l - father ol he victim girl, went to the house ol the accused on 04.12.2012 1br the purposc of inquirl. and according to him, the accused fled awal

28. PW.3 in his evidcnce deposed that the o1f nce took place on 02.12.2012. At about I1.00 A.M., while he was pr cceeding to his housc altcr attclldillg agricultural works at his lands. lrc accused was taking PW.2 - r,ictim girl into his house. He peepcc into his house and sarv thc accused cornmitting rape upon PW.2 b rernoving her clothcs. On sccing him, the aocused fled away. -- en he covered PW.2 rvith hcr clothcs and took her to her house. P\.\'. ] infbnnccl him that the accused rvas committing the offence of rapr: upor.r hcr since three (03) da1.s

29. Committing rape is a serious offence. Ins < :d of reporling the samc to the parents of the victim or neighbour; or relatives or l8

Crl A. No 8il o[20l7 police, PW.3 went to his in-larvs house and returned to his village on the following day at 8.00 or 9.00 A.M. and then informed the incident to PW.t and LW.2, mother of the victim girl. However, during cross- examination, he has categorically admitted that the accused took the victim girl into his house doors of his house were kept ajar. He did not try to catch the accused while he was running away. Thus, the cvidence of PW.3 is highly impiobable and does not inspire confidcnce. Therefore, there are contradictions in the depositions of PWs. I to 3 and Ex.Pl with regard to the alleged rapc upon PW.2.

30. It is also apt to note that PW.6 - the doctor, who examined PW.2 - victim girl, specifically deposed that hymen admits only tip of probe strggesting hymen is intact. There is small congestion (redness) at the introitus. As per Ex.P6 - FSL report, semen and spermatozoa werc not fcrund on items sent. On the basis of Ex.P6 - FSL report, he issued Ex.P7 - final opinion, opining that there is no medical evidence of presence of semen i.e., recent sexual intercourse except for congestion at introitus. He further deposed that there may be possibility of causing redness/congestion due to pressure given by penis. During cross-examination, he has categorically admitted that as per his examination, there is no penetration into vagina, no other \

l9 KI-,J & VRKR,J Crl A. No.85l of20l7 external injurics were fbund on the person of PW.2 'fhe congestion may be possible due to other reasons, tike bad hI1ienc, infection, scratch, insect b ite etc. 3 I . On consideration of the said evidence, rno r particularly the evidence of PW.6 and Exs.P6 and 7, the trial Clt t rt acquitted the accused for the charge uuder Section - 376 (2) (1) ,1'IPC. Ilaving acquined thc accused for the said charge, the trial C,r .r1 convicted thc appellant - accused for thc charges under Section )76 (2) (l) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (1, (v) of the Act, 1989.

In thc light of the above, it is apt to note I at Section - 376 ol IPC deals with 'punishment lor rape'. Sectior - 376 (2) (f) is relcvant and thc sanre extractcd as sunder "376. Punishment for rape.-(l) Whoevcr, t tcept in the cascs provided tbr in sub-section (2), corntt its rape, shall be punished rvith rigorous imprisonmen lf either description lbr a tcrm which sha[[ not be lesi than ten years. but $,hich may extend to imprisonnrer.t for life, and shall alst-r hc Iiable to llnc.

(2) Whoever.-

(a) rxxxx

(b) xxxrx

(L.J & VRKR,J Crl. No 853 ol20l7

(c) rxxxx

(d) xxxxx

(e) xxxxx; or (Q bcing a rclative, guardian or teacher of,, or a person in a position of trust or authority towards the woman, commits rape on such woman; or xxxxxx"

33. l'herefore, the prosecution has to establish that the accused being a person in a position of trust or authority towards the victim girl committcd rapc upon her. Even as per prosecution, the accused is neighbor of the victim girl. She was only ten (10) years ar rhe time of alleged offencc. Except stating that the accused took the victim girl to his house offering flowers and chocolates, they have not established that the accused was in a position of trust or authority towards the victim girl (PW.2)

34. Section - 5 I I of IPC deals with 'punishment for attempting to commit oflcnces punishable with imprisonment for life or other imprisonment'. The same is relevant and extracted as under: "51l. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-Whoever attempts to commit an ,- _,offence punishable by this Code with [imprisonment fbr life] or imprisonment, or to cause such an olle committed, and in such attempt does any act t ) commission of the offence. shall, where r i provision is made by this Code for t[.rc pun s such atteurpt, be punished "vith 2[imprisonrn: description provided lor thc offence, lor a t: may cxtend to one-half of the imprisonment fb: the case may be. onc-hall ol the longcst irnprisonment provided fbr that offence], or' fine as is provided for thc ot'fence, or with bot[ .

35. As discussed abovc, the trial Court rvh accused for the chargc under Section - 376 (2) (1) t him for the charges utlder Section - 376 (2) (1) reaJ and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 198

36. As discusscd above. there are serious cc regard to the alleged off'ertce by tlie accused. As 1r the accused conrmitted the oflcrrce upon the victi whereas, as per the deposition ol I'W.l and P\ committed ofl'ence upor-r PW.2 repeatcdly lor three ( thc deposition ol PW.6, thc doctor, who examitrt:t pubic hair rvas absent, hyrnen admits only tip o1 hymen is intact. There is srnall congestion (rednc: s KL.J & VRKR.J Crl A No.85l of20l7 Lce to be sards the express uncnt of .t of any -n uhich ile or, as term of rith such le acquitting the f IPC, convicted with 5110f Il'c ). rtradictions with r Ex.P1 - repoft, l for one week, '.2, lhe accused )3) days. As per thc victim girl, rrobe suggesting )at the introitus. I

Crl.A No 853 ol20l7 Therefore, basing or-r Ilx.P6 - FSL report' PW'6 found that there was no medical evidence of presence of semen i e'' recent sexual intercourse except lbr congestion at introitus' Even according to him' there may be possibility of causing redness/congestion due to pressure given by penis. During cross-examination' he has admitted that there is no penetration into vagina, and no other extemal injuries were found on thc person of PW'2' The congestion may be possible due to other rcason, likc bad hygiene, infection' scratch and insect bite etc'

37. There is detay in lodging Ex'Pl - report As per Ex'P1 - report, PW.1 came to know about the alleged incident ort 03 '12 '2012 moming, he has lodged the report on 05 12'2012 at 9 00 P'M' PW'9' who registered llx.Pl0-FIR did not ascertain the reason for the delay' He has admitted the said fact in his cross-examination' PW' 10 - Investigating Officer also admitted' and no reasons were mentioned in Ex.Pll for the said detay' The only explanation offered by PW'l is thathewenttotheaccusedonthenextdayi.e.,04.l2.20l2toenquire. but the accused fled away The said explanation is unsatisfactory and not plausible. It is also apt to note that according to PW'3' hc informed the parents of PW'2 the next day' he has not mentioned the 2_3 KL,] & VRKR,J Cr A No.853 ol20l7 time at which he informed the parents of PW.2 rr i h regard to the alleged incident

38. It is also apt to note that in Ex.P 1 - r.e [ ]rt itsetf, PW. I categorically statcd that PW.2 - victim girl is mental I retardcd. Even the trial Court on observatidn of the demeanor r f the witness, recorded as follows: "Witness is not that rnuch of rvorldlyr.r i:ir . 'lhe witness somc times smiles even when serious questions are posed by public prosecutor arrtl Ielence counsel."

39. It is also apt to notc that though accordir e to PW.2, the accused committed rape upon her thrice in three da_v"t but she did not infonn the said fact to her parents. During cross-exa r ination, she has categorica[[y admitled that she did not suf-tbr pain rv I le the appellant committing rape upon her. Therefbre, the evidencr: of PW.2 is not reliable and does not inspire confldencc of this Court

In State of Rajasthan v. Chatrar the II ,n'ble Supreme Court while considering all the precedents, laid doq,rL ;ome principles ' zoz; tNsc:eo

KL,J & VRKR,J Crl.A No.653of20l? regarding testimonies given by child wilness, and the same are as follows: "14. The principles that can be adduced from an overview of lhe a[oresaid decisions. are:

a. No hard and last rule can be laid down qua lesting the competency of a child witness to testiff at tria[.

b. Whether or not a given child witness wilt testifr is a matter of the Triat Judge being satisfied as to the abitity and competence of said witness To determine the same the Judge is to look to the manner of the witness, intelligence, or lack thereof, as may be apparent; an understanding ol the distinction betwcen truth and lalsehood etc'

c. The non-administration of oath to a child witness will not render their testimony doubtful or unusable.

d. The trial Judge must be alive to the possibility of the child rvi[ness being srvayed, influenced and tutored, fbr in their innoccncc, such matters are of case lbr thosc who may r'vish to influence the outcome ol'the trial, in one direction or another'

e. Seeking corroboration, therefore, of the testimohy ol a itrilct witness, is rvell-placed practical wisdom.

f. Therc is no bar to cross-examination of a child witness. If said witness has withstood the cross examination, the prosecution would be entirely within their rights to seek conviction even solely relYing thereon."

41. As discussed above , the evidence of PW'3 is also not r&iable and does not inspire thc confidcnce of this Court' There is

z5 KI-,J & VRKR,J Crl A No 8,(3 of20l7 also delay in conducting investigation and arresting tl : accused The accused was amested ot 15.12.2012.

42. It is relevant to note that the Lrvestigatitl3 Ofhcer did not seize the clothes of the victirn girl. She has adtnittct he same during cross-examination. It is also apt to note that the allti:d ofl-encc took place on 02.12.2012, the investigation was entrustc I to PW.l0 on 06.12.2012, she recorded the statement of PW.2, ,\ tlo $'as sent to PW.6 for examinatiou-

43. In Ex.P6 - FSL report, it is specificalll n t ntioned that thc cloth parcel contained item Nos. I to 3. Item No. consists of two glass stides with dried smear; item No.2 consists of :'irl ootton slvabs and item No.3 consists of a cotton swab. A: examination of item Nos. 1, 2 and 3, it is opinecl spermatozoa were not found on them. ln ll examination certificate, PW.6 has specificalll' nrer.t was congestior/redness. The same is possible lor ar' stated by him. ln Ex.P7, there is specific mentiott medical evidence stating presence of semen ir' intercoursc except for congestion at introitus. Witho.l [:]x.P6, per on hat semen and . ['-i - medical oncd that there 0 ther reasorl as tlrat there is no recent sexual considering the i t

Crl A. No.85l of20l7 said aspects, leamed trial Court convicted thc accused for the charge under Section - 376 (2) (f) read u'ith 5l I of IPC holding that as per the available evidence on record, thc accused attempted to oommit rape upon PW.2. The said tinding of the trial Courl is contrary to the evidence on record, more particularly deposition of PW.2. PW.2 and PW.3 in one voice deposed that the accuscd committed rape upon PW.2, which is admittedty incorrect and contrary to the deposition of PW.6, the doctor, who examined the victim girl and medical reports - Exs.P5 to 7.

44. It is also apt to note that PW.2, the victim girl, was 10 years old at the time of incident, categorically deposed that she did not suffer pain when the accuscd committcd rape. Thc trial Court did not consider the said aspect while convicting the accused lor the aforesaid charge.

45. As discussed above, l'W.1 deposcd that he came to know about the commission of olfence through his neighbor - Ramamma. Even then, the prosecution did not examine hcr. In Ex.P1 - report and in his deposition, PW.1 did not mention that PW.3 informed him about the commission of offence by the accused. It is also apt to note

Crl A No 8il oi20l7 that the police did not examine LW.2, the rnother t'l the victim girl. 'l here is no cxplanation fbr the same by the prosecutir I

46. l'herefore, the trial Court erred in convi,: ing the accused for the charge under Section - 316 (2) (f) read .,vith .5 o1'lPC

47. It is also apt to note that the trial Curr I convicted the accuscd for the charges under Sections - 3 (1) (xii) arrr 3 (2) (v) olthe Act, I 989. Section - 3 of the Act. 1989 deals with ' runishments fbr olfcnces atrocities'. The same are rclevant ar.< a[c cxtracted hereunder: "3. Punishment for offences atrocities. {l) \\ h rcver. not being a member of a Scheduled Caste or a icheduled Tribe.

(i) to (xi) xxxxx

(xii) being in a position to dominate thc rvill ,r a wonran belonging to a Scheduled Caste or a icheduled 'l'ribe and uses that position to exploit l t ' sexually to which she would not have otherr.l ist .r: reed.

(2) Whoever, not being a member ol a Schedulcd l;rsl-e or a Schedulcd Tribe,

(i) xxxxx

(ii) xxxxx

(iii) xxxxx

(ir) xxxxx

KL.J &, VRKR,.I Crl A No t5l of 2017

(v) commits any offence under the Indian Penal Code (45 of 1860) punishablc ivith imprisonment lor a term of ten years or more against a person or property on thc ground that such pcrson is a member ol'a Scheduled Caste or a Scheduled Tribe or such propcrtl belongs to such member, shall be punishable with imprisonment for lifc and rvith fine "

48. It is apt to note that to convict the accuscd lbr the chargc under Section - 3 (l) (xii) of the Act' 1989' the prosecution has to establish that the accused being in a position to dolninate the rvill of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses ' that position to exploit her sexually to "vhich she rvould not have otherwise agreed. As discussed above' prosecution lailed to prove the same by adducing anY evidence-

49. To punish the accused for thc charge under Section - 3 (2)

(v) of the Act, 1989, the prosecution has to establish that the accused committed any offence under tPC and the sanlc rvas comnrittcd only on the ground that the victim was a member of a Scheduled Castc or a Scheduted Tribe. The trial Court did not recorcl any reason stating that theaccusedcommittedtheallegedoffenceontlregroundthatthe victim was Member of the Scheduled Caste' Thcre is no evidence to

KL J & VR\R.J Cl A No 8i l oi"0l? the said ell'cct and rrone of the witnesses spoke r.r i h regard to the sanre. Without recording any reason, leamed tr i I Court cannot convict thc accused lor the charges under the pror is ons of the Act. 1989. 'l'he said principle rvas also laid dor.vn by rl r .Apex (\rufl in Khuman Singh v. State of Madhya Pradeshr. Ihc rr.ial rvhile irnposing lilc imprisorrment upon the accused, f-ail: I to rccord an1, rcason that the accused committed the offence onlv r,r the ground that the victim was a Mcmber ol the Schedulcd Casrr Therc is no cvidcnce to the said cffect. Even then. the tr-ia Oourt intposed maximum sentetlce ol' life imprisonment upon thc Lccused [irr the charge undcr Scction 3 (2) (v) olthe Act, 1989. 'fh: efbre. rhc same is liablc to bc set asidc. .50. As discusscd above, there are serious lupr es in thc cntirc investigatiorr. P\\'.2 - victim girl u,as exarnined by l, V.6. rhe cloctor. r.r ho is a rrrale. Potency test was conducted by a I rnale Assistant I)rofbssor ol'Kakatiya Medical College. Warangal. |l .ithcr I)W.9 nor I)W.10 enquired u,ith regard to the delay in lodging i r.pl - report by PW. l. Thcrc are contradictions with regard to recei r oI infbnnation of alleged o fI-ence by the accused in the version ol' I W.l. f'here is '. ArR 20r9 S( J0r0

KL.J & VRKR.J Crl A No 853 oa20l7 delay in examination of prosecution witnesses and also arrest of the accused. Even as per evidence ol PW.3, the accused fled away on 02.12.2012, but according to PW.l, the accused fled away on 04.12.2012.It is apt to note that LW.5 is father olPW.3. Admittedly, the prosecution did not examine him. According to PW.3, he died two (02) years back. Even then, PW. 10 - Investigating Olficer apprehended the accused only on 15.12.2012 through Circle Inspector of Police, Gudur Police Station.

51. It is settled principle that however serious, grave or heinous the offence may be, prosecution has to prove the guilt ol the accused beyond reasonable doubt by producing cogcnt and relevant evidence. If two views are possible, the view which is beneflcial to thc accused has to be considered.

52. The accused was not in a position to engage a larvyer before the trial Court and, therefore, a legal aid counscl was appointed by the trial Court. Even in the present appeal also, legal aid counsel has appeared on his behalf. The legal aid counsel did not cross- examine PW.1, an important witness. It is apt to note that legal aid is ll

Crl A No 851 012017 not a charit),; it is a constitutional right guarantee ur ler Article _ 39A of the Constitution of India.

53. Ihe accused is in jail from 09.06.2017. il : was also in.jait from 15.12.2012 to07.05.2013 and from 16.12.2016t 1109.06.2011.

54. In the light of the aforesaid discussicr the impugned judgment does not stand the test of legal scrr.iny. Without considcring the aspects stated above, the trial Coll I convictcd the accused. Therelore, the impugned judgment is liable,< be set aside.

55. The presenr Criminat Appeal is accordingJy aside thc conviction recorded against the appellant imposition of sentences inclucling life imprisonmenr under Section - 376 (2) (f) read with 5ll of IpC and

(xii) and 3 (2) (v.) ol the Acr, 1989, by learned S1r SC/ST (POA) Cases-cum-Vll Adclitional. Disrrict .tru vide the judgurenr dated 09.06.2017 in S.S.C. No.4l appcllant - accused is acquifted of the aforesaid charge if any, fumishcd by him stand cancelled. Fine amount thc accused is aiso ordcred to bc retumed to him after tr time allowed setting

- accused and or the charges iections - 3 (l) cial Judgc tbr ge, Warangal, rl 2014. 'the ;. Bail bonds, 1'any, paid by piry ofappeal

KL,J & VRKR.J crl A No 8'] of l0ll As a sequel thereto, miscellaneous applications, if any. pending in this appeal shall stand closed //TRUE COPY// SD/- K. SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER To, kLrl/PSL 1 The spe.cial Judge for scisr (poA) cases -cum- Vll Additionar District Judge, Warangal . 2 The Judicial First crass Magistrate at Narsampet, warangar District.

3. The Station House Officer, Gudur police Station, Warangal District.

4. The Superintendent, Central prison, Warangal. (By Speed post )

5. Two CCs to Addr. pubric prosecutor, High court for the state of rerangana at Hyderabad. (OUT)

6. One CC to Smt. c JAYA REDDY, Advocate tOpUCl 7 rwo.rjll* ,1 U

HIGH COURT DATED:0310212026

JUDGMENT

CRL.APPEAL No.853 of 2017 ALLOWING TIIE CRIMINAL APPEAL ,-/lts )/"/,, ::4 ?. ,t\1E -stA I 4 rtB 2026 i \o o. ) {, ':j (-,