APHC010274922024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] WEDNESDAY, THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 33/2025 Between: GUDE KOTESWARA RAO @ KOTI, S/O. LATE APPARAO, AGED ABOUT 32 YEARS, NEYYALA BY CASTE, AUTO DRIVER, R/O. RAMASWAMYPETA VILLAGE, VEPADA MANDAL VIZIANAGARAM DISTRICT. ...APELLANT AND 1. THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, AT AMARAVATI. 2. M PREMAVANI, D/O MANGALAGIRI NARAYANA RAO AGED ABOUT 20 YEARS. RESIDING AT GANGUBUDI VILLAGE, LAKKAVARAPUKOTA MANDAL, VIZIANAGARAM DISTRICT ...RESPODENT(S): Counsel for the Appellant: 1. C V R RUDRA PRASAD 2. LEGAL AID Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR The Court made the following: JUDGMENT: The instant appeal is filed by the Appellant / Accused against the judgment of conviction and sentence dated 11.01.2024 passed against him, in POCSO Sessions Case No.101 / 2021 on the file of the Court of Special Judge for trial of cases under Protection of Children from Sexual Offences Act at Vizianagaram. 2 2. The case of the Prosecution, in epitome, is as follows: (i) P.W.1, who is the De facto complainant and the father of the victim, is a resident of Gangubudi Village of Lakkavarapu Kota Mandal. They belong to Relli caste. He has two daughters among which, the victim is his younger daughter. The victim studied upto 5th class and discontinued her studies. The Accused used to bring milk cans to the Heritage milk centre, which is near to Suri Tata Mill of L.Kota. Whenever the Accused came to the milk centre, he used to visit the house of the victim girl and chit chat with the De facto complainant. The Accused used to move closely with the victim girl by telling lies and had sexual intercourse with her and made her pregnant, though he is married and having two daughters. (ii) Based on the complaint given by P.W.1, a case in Crime No.4 of 2019 on the file of L.Kota Police Station, Vizianagaram District for the offences under Section 376 IPC, 3(1)(b) and 3(2)(va) of SCs and STs (Prevention of Atrocities) Act (for short 8SCST Act9), and Section 6 of POCSO Act, 2012, has been registered against the Accused. Police after completion of investigation, filed charge sheet against the Accused for the said offences. (iii) The learned trial Judge, after framing charges against the Accused for the offences under Section 376 IPC, Section 5(j)(ii) read with Section 6 of POCSO Act, 2012 and additional charge under Section 3(1) (w) (i) of SCST Act, completion of trial and on hearing both sides, passed the impugned judgment, convicting and sentencing the Accused to suffer rigorous imprisonment for 20 years and to pay fine of Rs.2,000/-, in default of payment 3 of fine amount, to suffer simple imprisonment for one month for the offence under Section 5(j)(ii) read with Section 6 of POCSO Act. He is also sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1,000/-, in default of payment of fine amount, to suffer simple imprisonment for one month for the offence under Section 3(1)(w)(i) of SCST Act. Both the substantive sentences of imprisonment were ordered to be run concurrently. 3. Aggrieved by the said conviction and sentence imposed against him, the Appellant / Accused preferred the present appeal. 4. Heard Sri C.V.R.Rudra Prasad, learned counsel for the Appellant / Accused and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent No.1/ State. Inspite of service of notice, none represented Respondent No.2. 5. Learned counsel for the Appellant would submit that there is no evidence on record to attract the offence under POCSO Act against the Appellant / Accused. Learned counsel would further submit that, Exs.P.7 and P.8 medical examination reports given by P.W.10 and Ex.P.9 RFSL report given by the Scientific Assistant P.W.11 do not disclose any sexual intercourse by the Accused. It is further submitted that there is no evidence of an independent witness supporting the case of the Prosecution. It is submitted that Ex.P.13 DNA Certificate refers the Accused as a biological father, without there being any corroboration. In support of his contention, learned counsel has placed reliance on the judgment of the High Court of Gujarat in Premjibhai Bachubhai Khasiya vs. State of Gujarat and 4 another1. Learned counsel would further submit that the Accused was falsely implicated in the present case. It is submitted that the impugned judgment of conviction was based on presumptions and assumptions, without there being any cogent evidence. Learned counsel would finally pray to set aside the judgment of conviction passed against the Appellant / Accused. 6. Per contra, learned Assistant Public Prosecutor would submit that the Accused is 32 years old person and is a married person having children. It is further submitted that the victim was 15 years old by the date of her pregnancy which was caused by the Accused. It is submitted that the Accused is the biological father of the child born to the victim. Learned Assistant Public Prosecutor would submit that the learned trial Judge on appreciation of the evidence placed on record in a proper perspective, has rightly convicted the Accused and there are no irregularities or infirmities in the judgment passed by the learned trial Judge. Learned Assistant Public Prosecutor finally prays for dismissal of the appeal. 7. Now the point that would arise for determination in this appeal is: Whether there are any tenable grounds to set aside the judgment of conviction dated 11.01.2024 passed against the Appellant / Accused by the learned trial Judge? POINT: 8. The Hon9ble Supreme Court of India in Jogi vs. The State of Madhya Pradesh2, while reiterating its observations in Majjal vs. State of Haryana3, 1 2009 SCC OnLine Guj 12076 2 LL 2021 SC 639 3 (2013) 6 SCC 798 5 about the appellate jurisdiction of the High Court in a criminal appeal held as follows: <9. The High Court was dealing with a substantive appeal under the provisions of Section 374 of the Code of Criminal Procedure 1973. In the exercise of its appellate jurisdiction, the High Court was required to evaluate the evidence on the record independently and to arrive at its own findings as regards the culpability or otherwise of the accused on the basis of the evidentiary material.......= 9. In view of the above judgments, while considering the criminal appeal under Section 374(2) of Cr.P.C., this Court is duty bound to consider the entirety of the evidence. 10. This is a case of rape said to have been committed by the Accused against a minor girl, who belongs to SC Community. As seen from the material placed on record, P.W.2 is the victim girl, P.W.1 is her father and P.W.3 is her paternal grandmother and there is no dispute about the relationship between P.Ws.1 to 3. As could be seen from the evidence of P.W.2 the victim girl, her parents used to attend factory work from morning to evening and her grandmother used to go outside to graze the goats. About five years prior to the lodging of the present complaint, the Accused used to come to the house of the victim. He used to call the father of the victim as brother. Accused used to bring fruits, biscuits and chocolates for her and with his deceitful words, the Accused used to participate in sexual intercourse with her without her consent and made her pregnant. He also used to threaten to 6 beat the victim if she informs the same to her parents. Likewise, the Accused participated in sexual intercourse with the victim for four or five times. 11. P.Ws.1 and 3 who are the father and paternal grandmother of the victim also deposed about the acquaintance of the Accused with their family, as deposed by P.W.2. It is not the case of the Accused that he is stranger to P.W.2 and her family. As per the evidence of P.Ws.1 and 3 also, there used to be no one on the house of the victim, as the parents and paternal grandmother used to go out on their avocation. As rightly observed by the learned trial Judge, having acquainted with the family of the victim, in the absence of the inmates of the victim, the Accused used to participate in sexual intercourse with her and made her pregnant. 12. P.W.7, who is the Headmaster of M.P.P.School, Sriramapuram Village, L.Kota Mandal, wherein the victim said to have studied from 2011 to 2015, deposed that he issued Ex.P.4 Study-cum-Conduct Certificate and as per the said Certificate, the date of birth of the victim is 26.06.2005. Whereas, the date of Ex.P.1 Report given by P.W.1 is 23.01.2019. Therefore, it is clear that the victim was aged about 13 years 06 months and 27 days by the date of lodging the report i.e., below 15 years, who is a child as per Section 2(d) of the POCSO Act. Further, the evidence of P.W.10, the then Civil Assistant Surgeon, Gosha Hospital, Vizianagaram, would go to show that, on receipt of requisition from L.Kota Police Station on 23.01.2019 he conducted examination on the victim girl and found her pregnant with 32 – 34 weeks. 7 13. The High Court of Gujarat in Premjibhai’s case (referred to supra), observed as follows: “24. It is thus clear that positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the Accused from the involvement or charge. 25. The science of DNA is at a developing stage and whenthe Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the Accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the Accused in the offence.= 14. As observed by the High Court of Gujarat, a DNA report is not always the sole basis for a conviction. However, in POCSO cases, it will be a powerful piece of evidence, when it is corroborated by the testimony of the victim child. In the case on hand, the unblemished and credible evidence of P.W.2 the victim girl clearly proves the involvement of the Accused in the alleged crime. Further, P.W.17, who is the Assistant Director of APFSL, Mangalagiri also deposed that, on 30.05.2019, on receipt of requisition from SDPO, Vizianagaram, they collected the blood samples of the victim, her male child and the Accused and after analyzing the DNA profiles of the three, it was 8 found that the Accused is the biological father of the male child of the victim. Therefore, the evidence of P.W.17, which is in corroboration with the evidence of P.W.2 the victim girl, clearly disclose that the Accused is the biological father of the son of the victim girl. As rightly observed by the learned trial Judge, in POCSO cases, generally, the evidence of the victim girl only be available and no corroboration is required for the evidence of the victim girl in rape cases as it happens within four walls and the presence of the independent witness cannot be expected in this type of cases. Moreover, the evidence of the victim girl is reliable and trustworthy and nothing could be elicited from her, during cross examination to prove that the Accused is not the biological father of the male child of the victim girl. 15. The evidence of P.W.8, the then Deputy Tahsildar, L.Kota coupled with ExP.5 letter addressed to the SHO, L.Kota Police Station would show that P.Ws.1 and 2 belong to SC Community. Further, as per the evidence of P.W.9 – the then Tahsildar, Vepada Mandal, on receipt of written requisition from L.Kota Police, he issued the caste certificate of the Accused by mentioning that the Accused belongs to Neyyala Community, which is neither the Scheduled Caste nor the Scheduled Tribe. 16. In view of the above discussion, it can be safely held that the Prosecution had established that the Accused by knowing that the victim belongs to Scheduled Caste and a minor by the time of the incident, forcibly committed rape against her, committed aggravated penetrative sexual assault towards her and made her pregnant. As such, this Court is of the view that 9 the learned trial Judge has rightly convicted and sentenced the Accused for the said offences. There are no irregularities or infirmities found in the judgment of the learned trial Judge. Therefore, it does not warrant any interference of this Court. 17. In the result, the Criminal Appeal is dismissed confirming the judgment of conviction dated 11.01.2024 passed in POCSO Sessions Case No.101 / 2021 on the file of the Court of Special Judge for trial of cases under Protection of Children from Sexual Offences Act at Vizianagaram. Pending miscellaneous petitions, if any, shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:08.10.2025 Dinesh 10 HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.A.No.33 of 2025 Dt.08.10.2025 Dinesh