Allowed

Kolipaka Ramesh, Warangal Dist. v. P.P., Hyd

Telangana HC29 Oct 2024CRLA/945/2015

Case brief

AI extract

What is this about?

The High Court set aside the conviction of the appellant for offences under Sections 366, 376(2)(i) IPC and POCSO Act, holding that the prosecution failed to conclusively prove the victim was a minor, relying on precedents that school transfer certificates are insufficient for age determination.

What did the court decide?

Criminal Appeal allowed; conviction set aside; bail bonds cancelled.

Kolipaka Ramesh, Warangal Dist. Vs P.P., Hyd — Child Sexual Offences (POCSO) | Telangana HC (2024)

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NOTE : The Petitioner/ Accused was directed to be released on bail by the order of the High Couft dated 24 01 2023 in LA.No. 1 of 2022 in Crl.A. No. 945 of 2015

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[³⁴¹⁹ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY,THE TWENTY NINTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND

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THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

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CRIMINAL APPEAL NO: 945 OF 201s

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Appeal filed under Section 374(2) of Cr.P.C., against the Judgment dated 28.08.2015^passed in Special S.C.No. 10 of 2015 on the file of the Court of the Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act - cum - I Additional Sessions Judge, Warangal

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Between:

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Kolipaka Ramesh, S/o. Venkataiah, Age: 31^years, Occ: Driver, Rl/o. Kyathampally Village, Dharmasagar Mandal, Warangal District, Telangana State

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...AppellanUAccused

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AND

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The State of Telangana, Rep. by the Public Prosecutor, Telangana, High Court of Judicature at Hyderabad, For the State of Telangana and the State of Andhra Pradesh

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...RespondenUComplainant

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lA NO: 1 OF 2020

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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^maybe pleased to grant bail for a period of two months by suspending the execution of sentence passed in S.C.No.1O ot 2015 dated 28-08-2015 on the file of the Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act cum I Additional Sessions Judge, at Warangal,^{pendingCriminal} Appeal No.945 of 2015.

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Counsel for the Appellant : Sri P. Prabhakar Reddy

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Counsel for the Respondent : Public Prosecutor

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The Court delivered the following: JUDGMENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTTCE J.ANIL KUMAR

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CRIMINAL APPEAL No.945 OF 2()15

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DGMENT:. (per Hon'ble Sri Justice K.Surender)

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l. This appeal is filed aggrieved by the judgment dated 28.08.2015 in S.C.No.t0 of 2015, passed by rhe Special Judge for Trial of Cases under protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge, Warangal, convicting the appellant/accused for the offences under Sections 366 and 376(21(il of IpC and 5(1) read with Section 6 of Protection of Children from Sexual Offences Act, 2Ol2 and sentenced to undergo life imprisonment.

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PWI is the victim. According to her, she knew the appellant while she was studying 7th class and she used to travel in bus from her village to school. and appellant is the Driver of the school bus. She developed friendship with the appellant and he used to give her chocolates and biscuits. PWI then gave phone number of her mother to appellant and they used to talk on phone regularly. During summer vacation, appellant used to go to PW 1^,s house and used to talk to her and a-lso promised that he would marry her. After school commenced in the 86 class, while pW1 was travelling

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After recording the statement of PWI and as on the date of incident, since PWl was aged nearly 14 years, charge sheet was filed for the above mentioned offences.

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Learned Sessions Judge having charged the appellant for the said offences examined PWs. I to 13 and marked Exs.Pl to PlO.

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Mainly, to conclude the date of birth of the victim, learned Sessions Judge placed reliance on the evidence of PWl and also on Ex.P3/Date of Birth Certificate and Ex.P4/Admission Register, which were issued by PW6, who is the Principal of Teja International High School.

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Learned counsel appearing on behalf of appellant would submit that firstly, the manner in which the incident as narrated by PWI would only go to show that she had accompanied the appellant on her own consent. Secondly, evidence produced by the prosecution regarding the age of PW1, cannot be relied on, since the Municipal Birth certificate and certificate from hospital where she was born were not produced. In the absence of proof of the age, the question of Sessions Court convicting the appellant does not arise.

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On the other hand, learned Public Prosecutor would submit that the findings of the learned Sessions Judge were proper, however, Iearned Public Prosecutor does not dispute doubt about the authenticity and correctness of Date of Birth mentioned in Exs.P3 and P4.

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The victim/PW1 was not sent for any ossilication test to determine her age. Though, it was stated that the age of victim was 14 years. PWI has narrated that for nearly 2 years i.e., from the year 2Ol3 and also during the year 2014, she was acquainted with the appellant. PWI talked to appellant on phone and also used to meet him regularly. Appellant was giving chocolates and biscuits to her and both met at Success Concept School, Madikonda and thereafter, she has joined in Teja International School at Hanmakonda in 8th class.

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9 . PW I further stated that she was forcibly taken on motorcycle and she started living with appellant for one month. During cross examination, PWI stated that she was above 18 years and there was no forcible rape on her.

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On' facts, one can logicalty conclude that PWI had accompanied the appellant on her own. The fact that has to be looked into is whether PWI was the minor as on the date

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)

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of incident or not. The school certificate/ Ex. p3 was relied on to show that date of birth of pWl was 04.05.2000. Even according to the prosecution, she was admitted in Teja International School, which has issued Ex.p3/certificate, in the year 2014 itself. No efforts were made by the prosecution to collect records from the earlier school which is Success Concept School, Madikonda. Further, neither municipal certificate nor the certificate from hospital was collected, during the course of investigation.

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I l. PW6 who is the principal, Teja International High School, Hanamkonda, issued certificate/ Ex. p3 which speaks about the date of birth of pWl. Adrnittedly, the said date of birth is on the basis of declaration given by the parents of PWl. No reasons are given as to why the birth records such as municipar certificate or the hospital certificate where she was born or the records from her earlier school were collected by the prosecution to substantiate their claim regarding date of birth of PW1.

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In the judgment of Hon,ble Supreme Court in P. Yuoaprakash u. State Rep. bg Inspector of policet, held that the age of victim has to be proved by prosecution and

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t 2023 SCC Online Sc 846

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school transfer certificate cannot be accepted for age determ ination.

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In the facts of the present case, when it is not proved that PWl was a minor and further, PWI staying with appellant for a period of one month, would only go to show that PWI was staying along with appellant on her own volition. Therefore, conviction recorded by the learned Sessions Judge deserves to be set aside.

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l4 For the above mentioned reasons, this Criminal Appeal

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is allowed. Bail bonds shall stand cancelled.

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//TRUE COPY'

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Sd/. K. SRINIVASA RAO JOINT REGISTRAR

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rfiv-. sEcfloft-oFFrcER

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To,

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1 . The Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act - cum - I Additional Sessions Judge, Warangal. (with records) 2. The Station House Officer, Dharmasagar Police-Station, Warangal. 3. The Superintendent, Central Prison, Cherlapally, Ranga Reddy District. 4. Two CCs to Public Prosecutor, High Court for ths State of Telangana at Hyderabad[OUT].

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