Dismissed

The State of Telangana v. Gadepaka Shekar

Telangana HC5 Jul 2022CRLA/499/2020

Case brief

AI extract

What is this about?

In a criminal appeal against acquittal for offences under Sections 354-I IPC, 506 IPC, and Section 8 POCSO, the High Court upheld the trial court's decision. The Court found the prosecution's version unreliable due to contradictions and the appellant's failure to explain how the accused, who was medically unable to run, could have fled the scene.

What did the court decide?

Criminal Appeal No. 499 of 2020 dismissed; miscellaneous applications closed.

The State of Telangana Vs Gadepaka Shekar — Child Sexual Offences (POCSO) | Telangana HC (2022)

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[32s1 ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY ,THE FIFTH DAY OF JULY TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEA NO: 499 OF 2020

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Appeal under Section 378 (3) & (1) of Crl.P.C against the Judgment dated 05.12.2019 in S.C.No.46 of 2016 on the file of the Court of the I Additional District and Sessions Judge, Nalgonda.

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Between:

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The State of Telangana, rep. by The Public Prosecutor, High Court for the State of Telangana.

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...APPELLANT/COM PLAINANT

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AND

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Gadepaka Shekar, S/o. Galaiah, Age 24^years, Occ. Degree Student, R/o. Chalmeda Village of Munugode Mandal.

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...RESPONDENT/ACCUSED

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Counsel for the Appellant: ASSISTANT PUBLIC PROSECUTOR

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Counsel forthe Respondent: NONE APPEARED

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The Court delivered the following: JUDGMENT

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HONOURABLE SRI JUSTICF] K. SURENDER

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CRIMINAL APPEAL No.4.99 of 2O2O

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JUDGITIENT:

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The State questions the acquitta-l recorded by the I Additional District & Sessions Judge, Nalgonda of the respondent for the offencer; under Sections 354-4, 506 of IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2Ol2 vide judgment dated 05. f.2.2019 in Sessions Case No.46 of 2016.

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The case of the prosecution is that on 29.02.2016 in the evening hours around 6.O0 p.m, when the victim girl/P.W.2 was returning home from Kirana store, the respondent/accused herein stopped her and told her that he was in love and intends to marry her. Thr: respondent caught hold of her hand and pulled her aside with an intention to outrage her modes$r. P.W.2 shouted for help and P.\trI.3 ca-rne to her rescue. On seeing PW3 the respondent fled away tLLe place. Thereafter P.W.2 went home and narrated the entire eyrisode to her father/P.W. 1. P.W. 1 approached P.W.4 to hold panchal'at in the village. However, the respondent did not heed to the advice of the elders to not follow the victim girl/P.W.2 as such the comr:laint Ex.P1 was lodged.

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Learned Sessions Judge having^{examined witnesses PWs.1 to} 8 and marking Exs.Pl to P7 and after consideration^{of the oral and} documentary evidence, fotrnd the respondent not^{guiitlz for the} charges under Section 354-4, 506 IPC and Section^{B of the POCSO} Act.

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Learned Assistant Public Prosecutor appearing^{for the State} submits that no further evidence is required apart from^the evidence of P.W.2, who is ttre victim^{girl. She specihcally statedthat} it was the respondent herein who had caught^{hold of her hand} initially and expressed his love and wanted to^{marry her, when} refused, he threatened her. Ex.P7 bonafide certificate^{of the victim} girl/P.W.2 would go to show that she was less than^{18 years, for} which reason, the offence under Section 8 of the^{POCSO Act is a-lso} proved as against tl e respondent. In the said circumstances, when the presumption under Set:tion 29 of the^{POCSO Act is available,} the respondent fajled to disrcharge his burden and^{he is entitled to} be convicted by reversing the order of acquittal.

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Before going into thr: facts of the case, it is admitted by^the prosecution witnesses inclrrding the Investigating Oflicer that the

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responclent was^{alfected with Polio in his lowerlimbs and he cannot} run. P.W. 1,^{the father of the victim girl, is not an eye witness,} however on the^{basis of the information given by P.W.2, his} daughter, approached^{P.W.4. Since the respondent did not heed to} any advice, the^{complaint was lodgedon O2.03.2013 videEx.P1.}

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Learned^{Judgefound that P.W. 1 stated that he went'tothe} police station on 01.03.2016^{whereas the complaint was endorsed} by P.W.8 Investigating^{Officer for having received it on 02.O3.2O16.} For the said reason of^{corr:ectionsand additions made in the} complaint Ex.Pl, it^{cannot be believed. Further,learnedSessions} Judge lbund that^{the alleged eye witnessP.W.3was relativeof} P.W. 1. P.W. 1 did not^{state beforethe Investigating Officer that after} he cam,: to know about^{the incident from his daughter/P'W-2,he} went and met P.W.4.^{It is the main contradictionfor the reason of} the prosecution relying^{upon the evidence of P.W.4 to state that the} alleged incident^{was informedto him as a village elder and} subseqLtently when^{the respondentdicl not heed to any advice,} complaint was lodged.^{The introductionof P.W.4 is for the reason} to explain the delay in^{lodging complaint. However,prosecution for}

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the reason of fabricating t-he evidence and^{introducing P.W.4to} explain the delay, cannot be considered.

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7 The prosecution also examined the Magistrate, who^recorded Section 164 Cr.P.C statement of the victim^{girllP.W.2.However,} the victim did not make any mention about the time of^{the alieged} incident, which was also found to be one of the^{circumstances to} disbelieve the evidence of the prosecution by the^{learned Sessions} Judge.

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B. Learned Sessions Judge has given cogent^reasons for^not believing the version of the prosecution regarding the^{allegedacts of} the respondent in catching hold of the hand of^{P.W.2and thereafter} running away. Specifica,lly it was admitted by^{the prosecution} witnesses that the respondent was affected with^polio in both^the lower limbs. When such is the case, the question of running^away on seeing other witnesses does not arise. In fact, when^{both the} lower limbs of the respondent being affected with^{polio, the} respondent would need help of crutches to walk and^{even if no such} help is used, admittedly Respondent could not run.

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\ \

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Tre Hon'ble Supreme Court in the case of Radhakrishna

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Nagesh v. State of Andhra Pradeshl an<l also in the case of Guru Dutt P;rthak v. State of Uttar Pradesh2 held that under the Indian criminril^{jurisprudence,} the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these fircets attain cven greater significance where the accused has a^judgrnent of acquittal in his favour. A^judgment of acquittal enha-nces the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record ofthe Court.

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In Guru Dutt Pathak's case (supra), the Hontrle Supreme Court held as follows:

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"15- ln Chondrnltpu v. State of Karnataka lChandrappa v- State of Karnatuka, (2007) 4 SCC 415 : (2001) 2 SCC (Cri) 3251 , this Court reiterated the legal position as under : (SCC p. 432, para 42)'42. ... (l) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order ofacquittal is founded.

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(2) The Code of Cnminal Procedure, 1973 puts no limitation, restriction or condition on exerciso of such power and an appellate court on the evidence before it nray reach its own conclusion, both on questions offact and of law.

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t 120131^{llsupremecourtCases688}

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'?(2021) 6 Supreme court cases 116

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(3) Various^{expressions,such as, "subsrantial and compelling reasons"' "goodand} circurnstarlccs""'distone^{d conclusious""'glaring} sufficient^{grountls"."u"ry} "ton-* il;;k;;;,^{";;. ;;;not intcndedti curtailextensive powers.of an appellate coutl in an} appeal^{against acquittal. S'"ft pn]"tiogi"tut" to'"in the natur€ of "flourishesof} oi an appellate^{court to interferewithacquittal} lansuace" to^{ernphasisetn"} '"fu"i'n"" ii"i,"t"t"r,i^{iilp""t rlrthe.court to reviewthe evidence and to conrcto its orvn} conclusion-

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(4) An appellate^{court, however, mustbearin Initrd tlnt in case of acquittal' thcrcis} aorUi"^{p."*rrrptiou in lavourof the accus"d Firstly' the prosumptionof innocetrce ts} ^r"il"if"^{i" lri,r-ruuder thcfundamentalprincipleof criminal jurisprudencc that every} ilo.n"si,;it^{u" i.".un,"ato bc-innocent unlesshe is proved guiltv bya oompetent court} of law. Secondly,^{tlle accused t'uuing t"""t"dhis acquittal'tl.represumption of his} i;;;;;i; i;iler reinforced,^{reaffirired and strengthenedbv tne trial court'} (5) If two reasonable^{conclusionsrtrepossible on the basiso.f the evidence on record'} rhe appella(e^{counshould not ;isiurbthe findingof acquittal rccorded by thetrial} court."

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The^{finding of the learnedSessionsJudge' on the basis of} omissionsandcontradictionsarnongstprosecutionwitnesses' whichgotothelootofthecaseSuggestthatthecaseprojectedby the^{prosecutionis not correct' It is apparent that the actua-l} happening^{is suppressed by the prosecution and has come up with} a tainted^{version, for which reason' the finding of the acquittal by} the learned^{Sessions Judgecannot be interfered with'}

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