Dismissed

Pokala Shivudu , Shiva v. The State of Telangana

Telangana HC7 Jun 2023CRLA/287/2020

Case brief

AI extract

What is this about?

This judgment dismissed a criminal appeal against a conviction and 8-year sentence for rape under POCSO. The court upheld the trial court's finding, ruling that the delay in reporting due to the minor's age and threats did not invalidate the evidence, and the presumption of non-consent was applicable.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence in S.C.No.480 of 2015 confirmed; pending miscellaneous applications stood closed.

Pokala Shivudu , Shiva Vs The State of… — Child Sexual Offences (POCSO) | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE SEVENTH DAY OF JUNE TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY

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CRIMINAL APPEAL NO: 287 OF 2020

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Criminal Appeal filed Under Section 374 (2) of Code of Criminal Procedure aggrieved by the Judgment dated.24 .022020 passed in S.C.No.480 of 2015 on the file of the Court of the Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District, at L. B. Nagar

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Between:

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Pokala Shivudu @ Shiva, S/o. Jagadeshwar, Aged about 39 Years, OccKirana Shop, R/o. H No. 4-4-115, Gandhi Colony Vikarabad Town, Ranga Reddy District

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...AppellanUAccused

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AND

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The State of Telangana, Represented by its Public Prosecutor, High Court, at Hyderabad.

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...RespondenURespondent

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lA NO: 1 OF 2022

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Petition under Section 389(1) of Cr.P.C., praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner/ accused on bail by suspending the execution of sentence daled. 24.02.2020 in S.C.No.480 of 2015 on the file of Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District at L.B.Nagar, pending before Crl.A.No.287 of'2020

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Counsel for the Appellant: SMT M. BHAGYASRI (LEGAL AID)

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Counsel for the Respondent: SRI S. GANESH ASSISTANTPUBLIC PROSECUTOR (TG)

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The Court made the following: JUDGMENT

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;)

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l I I I

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HON'BLE S VI'f. JUSTICE^{G. ANUPAMA CHAKR,\V]\RTHY} ( RIMINAL APPEAL No.287 of.2O2t)

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JUDGMENT^:

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ln Tlrrs rl,ll(r.rl is iilc'l against the^jr rl;3m :nt S.C.No.4Fil)/.2O15 datecl 24.O2.2O2O,⁽⁾ⁿ tlrc tile of Metropolit:u- Sessions ..ludge, Cytrerabad at^{l,.B Nagar,} Rarnga Rt:dt 1' District,^u'hcreir-t the acctrserd^u zrs found gr-rilt,1' frrr t hr offence punishabie under Section^.,7 r f w. 4 of the Prorectic n ol' Childrcn from Sexual Oflences^o,cl, 2012 (hereinrtftcr elerred as 'the Act') and he ',.t as s,:n tenced to undergo llg( r('us imprisonment for a^periocl o1^r evr:n (07) ycars ard al ;o sentencecl to pay fine of Rs. lO,OlXl /- and in dr:fault cf pa,zr51sn1 of fee, to undergo simple imp: isonment for a pr:ncd^{o -} six⁽⁶⁾ months for the offr:nce^prrnishable under Sectio r 1 of IPC.

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The c'a: e ol tht: prosecution is that on O4. 1 .21)14 at about B 00 r.:n the accused/ appellant alleg,:cl tc, have committed l)^{.)l rel} rative sexual assault on the '.,rcti rr girl aged about [^,2 1,ears on the pretext of taking he-^ro lrakery to provirie cr^t: Lbles and made her^{sleep ir1} a litr e lry the

X1":-' EF

sidc of the bakery and sexually assaulted^{her on both back} and front side and forciblv had anal^{sex and} left^{her at the} house. On the same day, at about^2-OO a.m.,the^victim girl informed her mother that she was suffering^with stomach pain and u,as bleeding and the mother^{of the} victim/P.W.1 thought that her daughter has^maturedon attaining puberty and she^{performedthe formalitiesas per} their customs. But, on the next^{day, when} the^{victim girl} had heary bleeding, she took her to^thenearby Doctor/Latha Gowry, who prescribed some^medicines. Later, after nine days she took her to another^Doctor named Mrudhula at Vikarabad, who conducted^scanning and advised her to take the victim to^{aspecialist in} Hyderabad. Immediately, she took the^{victim to Kailash} Hospital, MJ Market, where the^Doctor informed^{her that} sexual assault took place on the^{victim.Whenshe} enquired about the same with her daughter lvictirnlP.W.2, the victim informed her that the^accused. took^{her to the} bakery 1O days back ald committed^{rape on her. On that,} P.W.l went to the police station and^{lodgeda complaint} and the Police took up investigation^{and registered a case}

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it't^(-lrirnr: lt o.367 ol 11014. on the file of Vrkalr,rbad Pr>licc Station rrrL L rr.ferreital lor me(li('ir I c-: rrrinatiol.)

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I)r-rr irr 3 the corrrsc of investigation. the I:,oli:e havc r.isitccl thc' sc ene of offcnce at Ga-r.atri Baken, Vil<aral_rad and c<-,ndu< tr d pancl-rr-rama in the prese,lco cl mediators, dranvn ro u,p h sl<etch, seized the clothes of th : vic tim qirl and also vis tr:d AropX,a l-lospital, Hl.derabrrd, r:>:a-nirred and recordcd t[ e statcment of victim girl. On 22.11.2O14 arrestecl th r ar:cused and recorded his con le ;sion and seized hrs rnotorcycle bearing No.AP 12-D-:1390 and remancled l: inr to juclicial custody after subjer't_ing him to potenc\ cxa nr nation. Thereafter, obtainerl the zrrle proof of victim girl b,, sending her to the Government Flospi:al and recorderl th:: statement of P.W.6. On cornplelion of investigatior . )aid charge sheet.

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The Cr urt took cognizance and a chargr: is ramed against tll,: r 16^r""6 urtder Section 3 r/w. Secttorr 4 of the Act, lor u l'r: .;tr the accused deniecl all the cira rge ,s and claimed to br tried.

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{

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After conclusion of trial, P.Ws.1 to 15 "r'ere examined and Exs.P- 1 to P- 14 were got marked. The accused^was examined under Section 3 I 3 Cr. P. C for incriminating evidence and he dcnied the same and did not choose to adduce any evidence in his defence.

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The trial Court has framed the following^points for determination:^-

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"1. Whether the victim girl would come within the meaning of the child as defined^under Section 2(d) of the POCSO Act to attract^the provisions of POCSO Act?

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Whether the prosecution has proved the guilt of the accused beyond reasonable doubt?"

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7 . As stated supra, P.W. I is the mother^{of the victim} girl, who initially preferred complaint against the^accused after 1O days of the sexual assault. Her^{evidence clearly} discloses that on O4.lI .2014, the accused^came to^their house and took the victim girl out on the^{pretext of} providing bakery items and made her sleep in the^{lane by} the side of the bakery ald sexually assaulted^{her, both} front and back side and forcibly had anal^{sex and dropped}

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her at rt'r h lrse b-r, br-r_ving lrcr an ice crelrm.^(Jl tl e same dav, al .ib trt 2.00 p.m. her daughtcr u'oJi,:' rrlt ald ir-rformcd rr:^- t hilt shc u,as strllering s.ith stornac lr prrin and u'as blccrlirr r;.⁽⁾ⁿ that, she thourght that rer d:rr rg}-rter has got nrirtr.trt d or-r al taining puberty irn<l rt:r:ordinglv perforrne(l l rrlalities as per their cuslorts. Jr.rt, on the next d.rt, r n c:oming to l<non' that l-rer da,Lilhlr:r \'as bleedine hr: rvil)., shc took her to nearlrv Doc.or Latha Gowry ,rnrl^' h,: said Doctor, rvithout exaniining; the victim girl prescribld medicines. After nine days. she r.ooft 1'r". ,o another l)oc lor namely Mrudhula, r,r,ho scann,:cl h,:r and advised her o tal<e her daughter to a spe:iet ist 1n Hyderabad. Accordingly, they came to HvderatxLd, where the Doctor ir Lf<>rrned her that there vyas s(,xual a ssault on her daught.er. On er-rquiry, her daughter informec tL at the accused tcol her to the bakery about 10 dtrys lrerck artd committed r al)e on her, Ibr which slle prr:fer-ed a complaint

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P.\V. I v as cross-examined at length but n tt ning was elicited i n irv rtLr of the accused .

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P.W.2 is the victim girl rvho also dcposed in the^same lines as that of P.W.1. except some minute details. Further, she testified that the accused threatened her with dire consequences, if she informs about the incident to anyone.

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In the cross-examination, it is specifically^testified by the victim that she know the accused and his^family members from childhood and their family members are acquainted with each other. She also testified that accused was running a kirana shop in their locality^and used to be good with their family. She specifically^testified that the accused took her to Gayathri bakery^and committed rape on her. On the next day of the^incident, her mother felt that she attained^puberty and^performed the formalities as per the traditions in their caste.^{She also} testified that she was examined by lady Officer^{in the} Government Hospital, Vikarabad. Even in the^cross- examination, nothing could be elicited in favour^{of the} appellant.

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I I . I'.\L'..1 i; rhe Doctor. Ilis evidence clrsc.l rscs that on I 3. I 1 .201.t^r.W.l along u-itl'r P.W.2 canrc to -ris^-rospital and inlorr rccl I'rim that P.W.2 \ ras surfle:in1 from trncontro.la rl: bleeding and stomach piLrn On

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cxaminat.or, he for-rr-r d her urine bladder rvar; lull an<l it \,as not rlis clrarging. Then, l-re put cathett'r :,1 d i ;ch arge urine. He l:::arnined her vagina and for-rncL tleeding nnd bloocl :lots an<l on examinertion of her arru:;. Ite fourrd ir-rjurie:; on rrrifice of the anus. Then, ht' infbrlnecl P.W. 1 that somr:tl ing suspicious act has been donc on P.W.2 On 15.1 L,0 14, he examined P.W.2 again r rnder lhe supervision of anesthetist. Later, P.W.2 inlor me d that assault took lrlace on her. He further testified t hal P.W.2 rn as agt:d ilb rtrt 12 5.ears rvhen he examined her

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In the cr-oss-examination, it is specifically trrstified by P.W.3 that t is the Chairman of Arog,a Hcspital. He tcstified thzr lre did not find any injuries on r h : b ody of P.W.2 excr:p 'zagina and anlls and learnt ttrat Lhe age of tlre victim nl s l') years.

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ETTB

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P.W.4 is one of the neighbour of P.W. 1. His evidence discloses that at about 4 years back, u.hen the shop of P.W.2 was found closed, she enquired the mother of the was victim and she informed him that her daughter suffering with problem and was taken to hospital. He also testified that husband of P.W. 1 informed him that the accused committed rape on his daughter

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P.W.5 is the Medical Practitioner at Vikarabad. She testified that P.W. 1 and P.W.2 came to her hospital and P.W.1 informed that her daughter was bleeding and suspecting to attain puberty. Then, she prescribed some tablets. ThereaJter, she came to know through public that rape has been committed on P.W.2.

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P.W.6 is owner of the bakery who stated that he cannot identify P.Ws. I and 2 and has no idea as to what happened in his kitchen bakery. Ex.P.2 is the statement of P.W.6 recorded under Section 161 Cr.P.C, which was marked during cross-examination.

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--...-.-...:....

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1(r P.\V. is the pancl-r u ilness to th,] scerr, o- olTencc uho Lurnr C lrostilc. trxs.P.3, P.,1 arrd [).5i .1," =."rl" obser'''atior r panchnzrma, crime detaiI lorm zrnd seizurc report

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17 . ]).V/.{ is also one of tl'rc panch u,itne ss 1-( I hc scenc of offence. Il:r also turned hostile. His signatur( s⁽ n scene obserr-atior panchnama, crime detail lbrm rr nd seizure report are r^'rrrrked as Exs.P.6, P.7 and P.8

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I B. I)../.! . s the Doctor u.ho examin,:d vi:1im girl on 27.11.2O11 t,n receiving requisition frorr SH(), Vi <arabad Police Stiltl )r r. Her evidence discloses that tt r: r,i<:tim girl \vas a6lecl a rout 12 years and founci an iniury t .< 1 cms on right thigh rrLd found some ulcer in the anus of the victim, as sur:h s re could not insert any instrurnt:rrt for her examlnatior r She also testified that she coll€ cl ed \raginal smears lior r introitus and sent to FSL. On re <:t:ipt of FSL report, sl.tt: gar.'e final report. Ex.P.7 is her rl ,inion and Ex.P.B rs FS L report

) )

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lg. P.W.lO is the retired^VRO ol^{Vikarabadwho actcd as} panch witness for the arrest of the accused.^{His evidence} discloses that accused^{was arrested} in^{their presence and} the accused confessed about^{committing rape on the victim} girl and the Police have seized motor^{cycleof the accused.}

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Admittedly, the confession^{givento the Police is hit by} Section 25 of the Indian^{Evidence Act, whichcannotbe} considered at all.

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21 . P.W. I 1 is the VRO of^{Vikarababad whoalso acted as} panch witness to the confession and seizure^{of motor cycle.} He too turned hostile. His^{signature on the confession is} marked as Ex.P.9.

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P.W. 12 is the^{WomenConstable. Her evidence} discloses that on t6.ll.2)14^{as per the instructionsof} Inspector, Vikarabad, she visited^{Arorya Hospitaland} recorded the statement of P.W.2.

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2g. P.W.13 is the Doctor who examined^{the accusedand} issued potency certificate.

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'21 I'.! t + is the rctired Assistant^Pt oft:sst,t , Iir]rr.lttstc lr4erlr<'irrr'⁽ lsmaniil Medical Col1ege. On th,: re<lttcst^ol Inspct'1or. re t:xam ir.t c-cl P.W.2 and issued^zr11r: ccrtilicatc ir-rforn'rinl:^r, rat P.W.2 is aged between 11 lo^{12. ir.ar:;, u'[tich} is miu^r<<'rl r s Ex.P. 1 l

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t'.\. I^- is the Inspector of Police, Xodad, .Rurlal P.S., g,ho inve st qrrted the entire case and filerl thergc shr:ct beftrrc thc⁽ lourt. Ilis cvidence discloses lhat L e cortdu<:ted sccnc ol,,sr rr ation panchnama, prepared ro -r61h sketch, i,isited the louse of the victim and seizerl her clothes zrnd recorrl,'cl 1. 1e statemcnt of the victim throrrgh Woman Pohce. Ftt-ther, he examined prosecution witr-esr;es zrnd irffer:tcrl th( srrest of the accused on 22.'t l.2Ol,:', recorcled the co.tfi:ss o1 statelnent of the accused and^r;eize,1 motor cycle rrncler I)x,P. 13 zrnd 14 and later produce cl belore the Cotrrt. His e'riclence further discloses that he rtrs s;ent the victim to tl:: Government Hospital for delerrniltatior of her age anrl erls ) r;ent the accused for potency exauLirtat on

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26.⁽ )n p^,r'rsal of the entire evidence on^'e:ord, it is eviclcn l tl)a t there are no eve-witnesses to -he ir-rciclcnt

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except^{the victim girl r'vho sustaincd physical injurieson} Thc cvidcnce^{of the} tl-re vagina^{and anus of her bodY} victim girl^{clearly discloses that} the accused^sexuallY assaulted^{her ot-t both back and front side and forciblyhad} anal sex.^{P.W.4 and other witnesses turned hostileThere} cannot^{be any eye-witness in the cases of sexual assualt to} the raPe.

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27 . Presumption^{under Section1 14-A of the Indian} Evidence^{Act has to be taken into consideration'}

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Section^{114-A of the Indian Evidence Act} envisages^{that:- Presumption- as to absence of} consent in^{certainprosecutionfor rape' -- In} a pro""cutlon^{for rape under clause (aJ' clause} (c), clause^{(d)' clause (e)} '^{clause (f)'} [ii, "r.r"" itt -,".^{(g), 'clause (h)' clause (i)'} ,clause^fi)' .1.r".^{(k'i, clause(l)" c'tause(TL) or clause(n) of} sub-section^{(2) oisectio o376 of the Indian} P""rf Code^{(45 of1860)' where sexual} intercourse^{by the accusedis proved and the} q"..,i." is^{wirether it was withoutthe consent} of the^{womanallegedto have been rapedand} such woman^{state-s in her evidence beforethe} court that^{sf'e iianot consent'the courtshall} pi.: ,-" that^{she did not consent'"}

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Admittedly,^{the medicalevidence as well as the} verslon^{of P.W.2 clearlydisclosesthat the victim girl was}

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I I

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sL.-\Ltii11.. irss rrrltcd l^, rltc zrccused. Thc'ict,n) ll r_l ,licl .ot irrforrn al--,tu ht slrici inciclenl to any on(, ils rr: a:cused tlrreat.r ec I c-^.,r,ith rlirt: consequences. Thc rr iclc trce of Doctors irr h s casr. is crucial r,r,hich disclos(. thait tlte vtctim g r1 ni s strbjcctcrl to sexual assault

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[t rs thr sp<'cific r:ontention of the lear-ncd ,tounsel for_ the appr.llar-rt tlrat tht'r-r: is a delay of 1O da.ys in J:referring the repo rt. I_ u, the same could not be cor rsidcr.r:r,1, rrs the victim hc rsr:lI is a minor girl aged about 12 ,ears a;j p,:r the certificat- iss rr. d by thr: concerned Doctor TI-r ,. deiay ir_r this case is nr t latal as the victim girl could not inlonn her mother abolr tlre in<:ident rmmediately as s le was threatened b. the accused with dire ConS'lClUe ]CeS. Moreover, it is minor clclay and the victim girl is alJeC about 12 vears. TIte e bt.e, thc provisions under Sr.ctron 1.. rlv,. 4 of At are atlr.: cted to tl-re facts and circum:itanc:-. o1 the case. He'-rcr:, :hts Cor-rr1 finds no error or irref]rrlzrrity in convicting tl-le ar:cused b-y the Court below for lltc al>ove said circurns,a: ces and the Criminal Appeal is li:l rl: to be dism issed.

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In Lhe result, the Criminal Appeal is^{dismissed, as it} is devoid of merits, confirming the judgment in S.C.No.480 of 2075 dated 24.O2.2O2O, on the file of Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District

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Pending miscellaneous applications, if aly,^shall

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stand closed.

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//rRUE copy//^{,r".r%.1#giHi.A} qD

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TO,

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SECTTON OFFICER

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Judse' cvberabad, Ransa Reddv District, at L B.

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: i!!{",r1{,",1r%::,.::',,':ffi

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5 ii; Stl,,lirJtasisflg^{oiiirst crass,at chevela} Ransa Reddy District

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a rn" s,ooini#:il3ffi;"Yffi::r# [?i:T#ation, o. two CCs to Sri S. Gartwo CCs to Sri S. GarCCs to Sri S. GarSri S. GarS. GarGar

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o. two CCs to Sri S. Gartwo CCs to Sri S. GarCCs to Sri S. GarSri S. GarS. GarGar ;ii'rl;Assstant Public Prosecutor, Hish court ror the

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^^tl:":l*L;;;" i ,yff".r"Jllu/s^{M BHAGvAaR;,fi,ick"} ropucl MMK

{

HIGH COURT

GAC, J

DATED:07/06/20 i:3

JUDGMENT

CRLA.No.287 of 20;^'0

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DISMISSING T.IE CRIMINAL APPEAL

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Pokala Shivudu , Shiva v. The State of Telangana

Case brief

What is this about?

What did the court decide?

Pokala Shivudu , Shiva v. The State of Telangana

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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