Allowed

Boddula Shekar., v. the State of Telangana, Rep Pp.

Telangana HC3 Feb 2026CRLA/853/2017

Case brief

AI extract

What is this about?

Appeal against conviction for attempted rape and SC/ST Act offences involving a minor tribal girl. The High Court found serious contradictions between witnesses, no penetration or semen per medical evidence, unexplained FIR delay, and no proof of caste-based motive, and set aside the conviction.

What did the court decide?

Conviction and sentences including life imprisonment set aside; appellant acquitted of all charges; bail bonds cancelled; fine, if paid, ordered refunded.

Boddula Shekar., Vs the State of Telangana, Rep Pp. — Caste Atrocities | Telangana HC (2026)

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IN THE HIGH COURT^{FOR THE STATEOF TELANGANA} AT THE HYDERABAD

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TUESDAY,THE THIRD DAY^{OF FEBRUARY} TWO THOUSAND AND^TWENTYSIX

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PRESENT

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THE HONOURABLE SRI^{JUSTICE K.LAKSHMAN} ANI)

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THE HONOURABLE SRI^{JUSTICEVAKITI RAMAKRISHNAREDDY}

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CRIMINAL APPEAL NO:^{853 OF 2017}

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Crl.Appeal Under Section^{374 (2) ttw Sec. 383 of Cr P C aggrievedby the} Judgment dated 09-06-2017^{in S S.C No. 41 of 2014 on the file of the court of the} spe"cial sessions Judge^{for sc/sT(POA) and Cases} -cum-^{Vll AdditionalDistrict} Judge, Warangal.

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Between:

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Boddula Shekar., S/o^{Gopal, aged 40 years,Now in CentralPrison,Warangal}

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... Petitioner/APPELLANT

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AND

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State of Telangana .,^{Rep. by Public Prosecutor,High court of Judicaturefor the} State of Telangana^{and State of AndhraPradesh.}

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...RES'ONDENT

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Counsel for the Appellant:^{Smt. G. JAYA REDDY}

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Counsel for the Respondent:^{SRI SYED YASAR MAMOON,}

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ADDITIONAL THE^{PUBLIC PROSECUTOR}

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The Court delivered the^{following Judgment:}

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IN THE HIGH COURT FOR THE STATE OF TIi^,AN(;ANA AT: HYDERABAD

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IION'BLT] SRI .IUSTICE K. LAKSHM \ \

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AND

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HON'BLI SRI JI.JSTICE VAKITI RAIV1AKRISI^{I] I,{} RIiDDY

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CRIMINAL APPEAL No.853 OF 2017

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DA'I'E: oz-02-2026

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Betrvccn

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lloddula Shckar S/o Gopal

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Ap1,r llant - Accuscd

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I'he Statc ol"l'clangana, rep.by its I'ublic l)rosecutur, IIigtr Coua at Hyd

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RcsponrlL r -^(lonrpla inant

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'l his C ourt delive red thc following:

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,IUDGMENT: (Per Ilon'blc Sri Justice K. Lakshman)

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Ileard Mrs. G. .la1'a Reddy, Iearned counsel f,r' hc lppcllant^- r.rccuscd and Mr. S1'ed. Yasar Mamoon, leamed z,1 litiorral ['uhlic I)rosecutor appearing on behalf of the respondent exterr: iveh

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l'his appcal is filed challenging the r dgnrcrrt tlatcd 09.0(r.2()17 in S.S.(1. No.4l of 2014 passed by learntt Special Judgc Ior S('/S-f (P{)A) Cascs-cunr-Vll Additional Districl rdge. Warangal (hereinafter rcf'errcd to' trial Court')

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KLJ & VRKR,J Crl A No 851 ot20t7

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Vide the aforesaid judgment, learned trial Court convicted

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the appellanl - accused for the charges under Scction - J76 (2) (l) rcad wilh 5 t t of IpC and Sections _ 3 (1) (xii) and 3 (2) (v) of rhe Scheduled Castes and the Scheduled Tribes (prevention oI Atrocities) Act, 1989 (fbr short^,Ao, I9g9.) and senrenced him to undergo rigorous imprisonment for a period of TEN ( I 0) YEARS and to pay fine of Rs.l ,000 (Rupees One Thousand Only) and in default to undergo simple imprisonment for a period of one (01) month lbr the charge under Section - 376 (2) (1) read with 5l l of IpC. IIe was sentenced to undergo rigorous life imprisonmcnl and to pay fine ol Rs.1,000 (Rupees One Thousand Only) and in delautt ro undcrgo simple imprisonment for a pcriod of onc (01) month fbr the charge under Section - 3 (2) (v) of the Act, r9g9. He was arso sentenced to undergo rigorgus imprisonment for a period of FIVE (05) ycars and to pay fine of Rs. 1000 (Rupees One Thousancl Only) and in de fau lt to undergo simple imprisonment for a period of one (01) month lor the charge under Section - 3 (l) (xii) of the Act, 19g9. However, learned trial Court acquitted the accused for the charge under Section _ 376 (2) (f) of IPC.

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KLJ & VRKRJ Crl A No 851ol20l7

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The case of the prosecution is as fo[[ows:

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i) PW.2 - Siddaboina Samatha (victim girt) is he daughter^of PW.1 and LW.2. She u.as 12^years old as on the date^c : incident.^She belongs to the Scheduled^{-l'ribes(Koya)} Communitl .^{rvhile accused} herein belongs to Backward (Padmashali) Commun ty. Both^are residents of same village 1.e.. Ayodhyapuram Vi[ rge of Gudur Mandal

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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.

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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

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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'^alsou'ent

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KL,J & VRKR,J Crl A No 851 ol20l7

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to the house of the accused to enquire, but on seeing thcm, the accused flcd arvay.

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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.

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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.

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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.

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)

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

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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

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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

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stated ahoYc

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Challcnging thc said conviction arr( sontence of

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imprisonment. the appellant herein prelerred the prcse rt appcal

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l-eamcd counsel lor the appellant - accrs:d contended as

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follows

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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

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tt fhere rvas de laf in lodging Ex.P I rcport rvith I rlice

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ltt The victinr girl is rnentalll" retarded

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

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KLJ & \TRKR,J crl.A No.85l of²⁰¹⁷

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The Investigating Officer^{did not followthe procedurelaid}

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down under taw^{while conducting investigation in rape cases.}

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vt Without considering alt the^{said aspects,the leamed trialCourt} erred in convicting the^accused.

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vll. Learned trial Court^{erred in convictingthe accusedfor 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'}

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vll t. Evcn imposition of tile^{imprisonmentfor the offence under} Scction - 3^{(2) (v) of the Act, 1989is against the Sentencing} Policy.

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With the aloresaid submissions,^{leamed counsel soughtto set aside} the conviction and^{sentence imposedon the appellant}

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1 I . on the other hand,^{leamed Additional Public Prosecutor}

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would subnit as under:

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

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ii) The delay in^{giving report to the police does not tilt thecase of} prosecution.

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iii) There is ample^{evidenceto prove the offences againstthe}

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,.-^accused.

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KL,J & VRKRJ Crl A. No Ei3 ol20l7

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iv) The contradictions/omissions, if^{any,lnth,r depositionsof}

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prosccution witnesses are minor in nature^{and u ould not tilt the} case ol prosecution.

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,) Having considered all the^{afbresaidaspects the trial Courl} convicted the appetlant and, therefore,^{thereis I r enor in it.}

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With ttre alorcsaid submissions, leamed^{Additionall'] Lblic Prosccutor} sought to dismiss the^appeal

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In the view of above rival submissions,^{t1r point that falls} for considcration by this Courl^is

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Whether thc conviction and sentence of^{irl rrisonment} recorded by the trial Court fbr the^{chargesunc 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 lauI}

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t3. Perusal of record rvottld reveal^{that P$r l, fatherof the} victim girl, lodged Ex,Pl - report^{with police on 05 12.2012stating} that hc belongs to Koya^(ST) Community.^{His daug:r er u'as l0 years} old and is mentally retarded. The accused^{belongs this villagc.A} week ago. the accused committed^{rapeupon his J rughtcrfor one} r.veek. He came to know about the^{sameon 03.12.2{) 2 moming. On}

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KLJ & VRKR,J Crl A No 851of20l7

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04.12.2012, he went to the^{houseof the accused to enquirehim, but} the accused fled away. Therefore,^{he requested the police to take} action against the accused.

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In his deposition, PW.1 stated^{that the offencetaken place} about four (04) years ago. His^{neighbor - Ramamma informed him} that the accused committed^{rape upon his daughterrepeatedly for} three (03) clays). They enquired^{with the victim girl as to what} happened and she revealed that^{the accusedtook her to his house on} the pretext of giving flowers and^{biscuits and committedrape upon} her. When he was about^{to question the accused, he fled awayfrom} the village. They went to thc^{policeand lodged a complaint (Ex.Pl)} with the potice. On rcading the^{contentsof Ex.Pl- report only, he has} signed.

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i) It is relevant to note that^{the accused is representedby a legal} aid counsel, but unlortunately^{he did not cross-examinePW.1. There} was no representation on^{11.01.2016,the date on whichPW I} examination-in-chief^{was recorded.}

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PW.2 is the^{victim girl. She was12 yearsas on the date of} recording her deposition in^{Court i.e., 20.03.2017.She informedthe}

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KL,] &^VRKR,J Crl A No⁸⁵¹ of20l7

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triat Court that^{her rnotherbrought her for the putl} ose of giving evidence and also^{to speak the fact.She has deposed} lat she knows PW.3 and hc is^{her neighbor.She also knows LW5} lammaiah^and I the accused the accused.^{She belongsto Koya Comn'runityan} belongs to Padmashali^{Communiry.'fheoff-enceto'} k place about three (03)^{yearsago. Theaccused by olleringchocola} es, took hcr^to his house, removed^{her ctoths,slept upon her and<} rmmilted^rape thrice in thrce days.^{Shc informed the samcto herprtt} :nts, rvho filed the case against^{the accused.She was refcrredto t} c Hospital for examination.^{'fhc police cxaminedher.}

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i) Horvever,^{during cross-exanlination, sheha} ; admitted that bcfore she^{was takeu to the house of accusod, sherv} Ls playing with names of the children near^{his house.She did not remember tlt} children with^{u'hom she was ptayingon that day l I} r accused made her to lay and oflered^{to give chocolate.She did nots} rffet pain u'hen the accused cornmitted^{rape. She used to attendher} persoual works and informed the^{incidentto hermotheralter four(04} r days. She has further admitted^{that theaccused abusedherfather in t} reir caste^name, but she did^{not seethe accusedquarrelingwith her latl} er.

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KL,J & VRKR,J Crl A No 851 of2OI7

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ii) It is apt to note that the trial Court observed the demeanor of the witness and recorded as follor.vs:

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"Witness is not that much of worldlpvise. The witness some times smiles even when serious questions are posed by public prosecutor and defence counsel.

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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.

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

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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.

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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

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

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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

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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.

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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

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KI-.J &^VRKR.J crt A No 8il oi20l7

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possible due to other reasons, like bad hygicnc. i lection. scratch,

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insect bite etc

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

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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

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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

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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

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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

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KL,J &^VRKR,J Crl.A No.85l of20l7

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taken up the CD file^{from PW.9 andshc verified the sameOn} 06.12.2012, she^{has received Ex.Pl l -orders for conducting} investigation from^{the Superintendentof police,Warangal andshe} 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'5and} recorded their statements^{under Section - 161 olCr'P Cl-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 lormas in Ex'P2'}

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i) PW.l0 further^{deposed that she searched for the accused and} lound that he^{was absconding.She instructed the CircleInspector'} Gudur Potice^{Stationto apprehend the accused andproduce before her} and accordingly^{the accusedwas arrested on 15J22012at about} 11.00 hours.^{She has also obtainedEx'P8 - potencycertificateand} she received^{medicalreport from PW 6 on 26'12'2012 and sentletter} ofadvicetotheDirector,FsLforanalysis'Ex'Pl3istherequisition' On 13.08.2013,^{she received copy ofFSL report'On ll09'2013'she} sent PW.2 for^{examinationand PW'SexaminedPW'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}

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Sections - 376 (2) (f) and Sections - 3 (l ) (xii) and .^(v) of the Act, 1989.

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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

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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

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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

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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^{rapeupon PW.2repeatedly} tbr three⁽⁰³⁾ days). Even^{then, the prosecutiondid not examinethe} said Ramamma. Thus, there^{is serious contradiction in the versionof} PW.1.

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It is also apt to note that^{in Ex.Pl - report,PW.lhas stated} that the accused committed rape^{upon PW.2 for one week, whereasin} his chief-examination, he^{has deposedthat the accused committed} rape upon PW.2 repeatedly^{for three(03) daysand 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 deposedthat rvhile} he saw the accused committing^{rape upon PW.2 by removingher} clothes. On seeing^{him, the accused fled away. Thenhe covered} PW.2 with her clothes^{and took her to herhouse. PW.2 informedhim} that the accused^{was committing the offence of rape upon her since} three days. On close^{perusalof evidenceof PW.2andPW'3,PW.3} deposed that PW.2 informed^{her about the accusedcommittingrape} up6i frEr, whereas PW.2^{did not deposeabout informing the accused}

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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

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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

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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

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

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KL,J & VRKR,J Crl A. No 8il o[20l7

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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 crossexamination, 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.

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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 \

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external injurics were fbund on the^{person of PW.2'fhecongestion} may be possible due to other reasons,^{tike bad hI1ienc, infection,} scratch, insect b ite etc.

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3 I . On consideration of the said evidence,^rno r^{particularlythe} evidence of PW.6 and Exs.P6 and 7, the^{trial Clt t rt acquittedthe} 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.

¶149

32 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

¶150

"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 thanten} 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

(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

¶160

xxxxxx"

¶161

l'herefore, the prosecution has to establish that the accused

¶162

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)

¶163

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:

¶164

"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

¶165

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KL.J & VRKR.J Crl A No.85l of20l7

¶167

life] or imprisonment, or to cause^{suchan olle} Lce to be committed, and in such^{attempt does any actt )} sards the commission of the offence. shall,^{wherer i} express provision is made by this Code for^t[.rcpuns uncnt of such atteurpt, be punished "vith^{2[imprisonrn:} .t of any description provided lor thc offence,^{lor a t:} -n uhich may cxtend to one-half of the imprisonment^fb: ile or, as the case may be. onc-hall ol the^longcst term of irnprisonment provided fbr that offence], or' rith such fine as is provided for thc ot'fence,^{or withbot[.}

¶168

As discussed abovc, the trial Court^rvh le acquitting the accused for the chargc under Section^- 376^{(2) (1)t} f IPC, convicted him for the charges utlder Section^- 376^{(2) (1) reaJ} with 5110f Il'c and Sections - 3 (1) (xii) and 3^{(2) (v)} of the^Act,198 ).

¶169

As discusscd above. there are serious^cc rtradictions with regard to the alleged off'ertce by tlie accused.^As 1r r Ex.P1 - repoft, the accused conrmitted the oflcrrce upon^{the victi} l for one week, whereas, as per the deposition ol I'W.l and^{P</sup> '.2,^{lhe accused} committed ofl'ence upor-r PW.2 repeatcdly^{lor three (} )3) days. As per thc deposition ol PW.6, thc doctor,^{who examitrt:t} thc victim girl, pubic hair rvas absent, hyrnen admits only tip^o1 rrobe suggesting hymen is intact. There is srnall congestion^(rednc:s )at the introitus.}

¶170

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KL,J &^VRKR,J Crl.A No^853ol20l7

¶173

Therefore,^{basing or-r Ilx.P6 - FSLreport' PW'6 found that therewas} no medical^{evidence of presence of semeni e'' recent sexual} intercourse^{except lbr congestion at introitus'Even according to him'} there may^{be possibilityof causing redness/congestiondueto pressure} given by^{penis. Duringcross-examination'he has admittedthat there} is no^{penetrationinto vagina, and no other extemal injurieswere} found on^{thc personof PW'2'The congestionmay be possible due to} other rcason,^{likc badhygiene,infection'scratch and insect bite etc'}

¶174

There^{is detayin lodging Ex'Pl - report As per Ex'P1-} report, PW.1^{came to know about the allegedincidentort 03 '12 '2012} moming,^{he haslodgedthe report on 05 12'2012 at 9 00 P'M' PW'9'} who registered^{llx.Pl0-FIRdid not ascertainthe reason for the delay'} He has^{admittedthe said fact in his cross-examination'PW' 10 -} Investigating^{Officer alsoadmitted'and no reasonswerementionedin} Ex.Pll for^{the said detay' The only explanation offered by PW'l is} thathewenttotheaccusedonthenextdayi.e.,04.l2.20l2toenquire. but the accused^{fled awayThesaid explanationis unsatisfactoryand} not^{plausible.It is alsoapt to notethat accordingto PW'3' hc} informed^{the parentsof PW'2 the next day' he has not mentionedthe}

¶175

2_3

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KL,] &^VRKR,J Cr A No.853 ol20l7

¶177

time at which he informed the parents of PW.2 rr i h regard to the

¶178

alleged incident

¶179

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:

¶180

"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."

¶181

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

¶182

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

¶183

'^{zoz; tNsc:eo}

¶184

KL,J &^VRKR,J Crl.A No.653of20l?

¶185

regarding testimonies^{given by child wilness, and the sameare as} follows:

¶186

"14. The principles^{that can be adducedfrom an}

¶187

overview of^{lhea[oresaid decisions.are:}

¶188

a. No hard^{and last rulecanbe laid down qua lesting} the competency^{of a child witness to testiff at} tria[.

¶189

b. Whether or^{not a givenchild witnesswilt testifr is} a matter of^{the Triat Judge being satisfiedas to the} abitity and^{competence ofsaid witnessTo} determine the^{same the Judge is to look to the} manner of the^{witness, intelligence, or lack} thereof, as may^{be apparent;an understandingol} the distinction^{betwcen truth andlalsehoodetc'}

¶190

c. The non-administration^{of oath to a childwitness} will not render^{their testimonydoubtful or} unusable.

¶191

d. The trial^{Judge must be aliveto the possibility of} the child rvi[ness^{beingsrvayed,influenced and} tutored, fbr^{in theirinnoccncc,suchmatters are of} case lbr thosc^{who may r'vish to influencethe} outcome ol'the^{trial, in one direction or another'}

¶192

e. Seeking corroboration,^{therefore,of the testimohy} ol a itrilct^{witness, isrvell-placedpractical} wisdom.

¶193

f. Therc is no^{bar to cross-examination of a child} witness. If said^{witness has withstoodthecross} examination, the^{prosecutionwould be entirely} within their rights^{to seek conviction even solely} relYing thereon."

¶194

As discussed^above ,^{the evidence of PW'3 is also not}

¶195

r&iable and does not^{inspire thc confidcnce of this Court'} There is

¶196

¶197

KI-,J & VRKR,J Crl A^No8,(3 of20l7

¶198

also delay in conducting investigation^{andarresting tl : accusedThe} accused was amested ot 15.12.2012.

¶199

It is relevant to note^{that the Lrvestigatitl3 Ofhcer did not} seize the clothes of the^{victirngirl.She has adtnittcthe sameduring} 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-

¶200

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 oottonslvabs} and item No.3 consists of a cotton swab.^A: per [:]x.P6, on examination of item^Nos. 1, 2^and 3,^{it is opinecl} hat semen and spermatozoa were not found on them.^{ln ll} . ['-i - medical examination certificate, PW.6^{has specificalll' nrer.t} oncd that there was congestior/redness. The same is^{possiblelor ar'} 0 ther reasorl as stated by him. ln Ex.P7, there^{is specific mentiott} tlrat there is no medical evidence stating^presence of^semenir' recent sexual intercoursc except for congestion^{at introitus.Witho.l} considering the

¶201

i t

¶202

¶203

KL,J & VRKR,J Crl A. No.85l of20l7

¶204

said aspects, leamed trial Court convicted^{thc accusedfor 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^{attemptedto 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.2and} PW.3 in one voice deposed that the accuscd^{committed rape upon} PW.2, which is admittedty incorrect and^{contraryto the depositionof} PW.6, the doctor, who examined the^{victimgirl andmedical reports -} Exs.P5 to 7.

¶205

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

¶206

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}

¶207

¶208

KL,J & VRKR,J Crl A No 8il oi20l7

¶209

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

¶210

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

¶211

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:

¶212

"3. Punishment for offences atrocities. {l) \ h rcver. not being a member of a Scheduled Caste or a icheduled Tribe.

¶213

(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.

¶214

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

¶215

(i) xxxxx (ii) xxxxx (iii) xxxxx (ir) xxxxx

¶216

¶217

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

¶218

(v) commits^{any offence under the IndianPenalCode (45} of 1860)^{punishablcivith imprisonment lor a term of} ten years^{or more againsta personor propertyon thc} ground that^{such pcrson is a member ol'a Scheduled} Caste or^{a ScheduledTribe or such propcrtlbelongs} to such^{member,shall be punishablewith} imprisonment^{for lifc and rvith fine "}

¶219

It is^{apt to note that to convict the accuscdlbr the chargc} under Section^{- 3 (l) (xii) of the Act' 1989'the prosecution hasto} establish^{that theaccusedbeing in a positionto dolninatethe rvill of a} woman belonging^{to a Scheduled Caste or a ScheduledTribe and uses '} that position^{to exploit her sexually to} "vhich^{she rvould not have} otherwise^{agreed.As discussedabove' prosecutionlailed to prove the} same by^{adducing anY evidence-}

¶220

To^{punish the accusedfor thc chargeunder Section - 3 (2)} (v) of the Act,^{1989, the prosecutionhas to establish that the accused} committed^{any offence undertPC and the sanlcrvascomnrittcd only} on the^{ground that the victim was a memberof a Scheduled Castc or a} Scheduted^{Tribe. The trial Courtdid not recorclany reason stating that} theaccusedcommittedtheallegedoffenceontlregroundthatthe victim^{was Member of the Scheduled Caste'Thcre is no evidenceto}

¶221

¶222

KL J & VR\R.J Cl A No 8i l oi"0l?

¶223

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.

¶224

.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

¶225

'. ArR 20r9 S( J0r0

¶226

¶227

KL.J & VRKR.J Crl A No 853 oa20l7

¶228

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.

¶229

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.

¶230

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, legalaid counsel} has appeared on his behalf. The legal aid^{counseldid not cross-} examine PW.1, an important witness.^{It is apt to note that legal aid is}

¶231

¶232

KL,J & VRKR,J Crl A No 851 012017

¶233

not a charit),; it is a constitutional right guarantee ur ler Article _ 39A of the Constitution of India.

¶234

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.

¶235

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.

¶236

The presenr Criminat Appeal is accordingJy allowed setting aside thc conviction recorded against the appellant - accused and imposition of sentences inclucling life imprisonmenr or the charges under Section - 376 (2) (f) read with 5ll of IpC and iections - 3 (l) (xii) and 3 (2) (v.) ol the Acr, 1989, by learned S1r cial Judgc tbr SC/ST (POA) Cases-cum-Vll Adclitional. Disrrict .tru ge, Warangal, vide the judgurenr dated 09.06.2017 in S.S.C. No.4l rl 2014.^'the appcllant - accused is acquifted of the aforesaid charge ;. Bail bonds, if any, fumishcd by him stand cancelled. Fine amount 1'any, paid by thc accused is aiso ordcred to bc retumed to him after tr piry ofappeal time

¶237

¶238

KL,J &^VRKR.J crl A No 8']^of l0ll

¶239

As a sequel thereto, miscellaneous applications,^{if any. pending}

¶240

in this appeal shall stand closed

¶241

SD/- K. SRINIVASA RAO JOINT REGISTRAR

¶242

,1 U

¶243